HKSAR v. Zhang Liming

CACC42/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.42 OF 2006

(ON APPEAL FROM DCCC 1 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and Burrell J in Court

Date of Hearing : 11 July 2006

Date of Judgment : 11 July 2006

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J U D G M E N T

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Hon Burrell J (giving the judgment of the Court) :

1.On 18 January 2006 the applicant was convicted after trial in the District Court before Deputy Judge F. Yiu on a single charge of robbery, contrary to section 10 of the Theft Ordinance, Cap.210.  He was sentenced to seven years’ imprisonment.  He now seeks leave to appeal against his conviction.

2.The trial before Deputy Judge Yiu was a re-trial.  His original conviction for the same offence having been set aside by this court and re-trial ordered.  The reasons for a re-trial having been ordered are not relevant to this application.

Prosecution case

3.The case against the applicant was that he was one of two robbers who had broken into residential premises at 3:15 a.m. on 12 October 2004.  The occupant, the victim of the robbery, woke up to find two masked men in his bedroom, one of which was holding an eight-inch knife.  The victim was assaulted and sustained a one-inch wound to his neck and bruising to his right eye.  He spent the next four days in hospital.

4.The robbers stole $1,500 in cash and a Rolex watch in the course of the robbery.  They fled the scene, still wearing masks.  The victim was unable to give any description of his attackers as a result.

5.Acting on information the police arrested two men the next day.  They were the applicant and a man named Liu.  The applicant had over $5,000 on his person at the time of his arrest which, it was alleged, must have been from the proceeds of the sale of the Rolex watch.

6.Forensic evidence linked Liu to the robbery.  A shoe print matching one of his shoes was found at the scene and, more importantly, DNA tests showed that blood on his clothing was that of the victim.

7.Liu decided to plead guilty and furthermore gave evidence, as PW1, against the applicant.  His reasons for giving evidence for the prosecution were, as stated by him, because of the strength of the evidence against him, and because the applicant had, after the robbery, sold the Rolex watch and kept all the proceeds for himself.

8.At trial there was no dispute that a robbery, as described by the victim, had taken place.  The applicant’s defence was abili.  He said he was not the other robber and that Liu had given false testimony against him because he had a grudge against him over an old gambling debt dating back to 2001.

Defence case

9.The applicant elected to give evidence at trial.  In outline he said that he had recently come from the mainland with $10,000 in his pocket for the purpose of gambling.

10.On the morning of 11 October 2004, he met PW1 at the Jade Guesthouse in Kowloon.  He knew PW1, having met him in Shenzhen.  He said that PW1 had owed him $1,000 since about 2001.  He said that he and PW1 quarrelled over the debt but that PW1 eventually said he would soon repay him.  During the night of 11/12 October, he said he had gambled with other men in Victoria Park.  His alibi witness, Zhang Fan-yung was present at that time.  The applicant said he spent the whole night in the park, only returning to the guesthouse at about 9:00 a.m. on 12 October.

11.The issue at trial was simply therefore, was PW1 an honest and reliable witness when he said that his fellow robber was the applicant and had the prosecution proved the defendant’s alibi to be false?

Grounds of appeal

12.The applicant has appeared in person on both his appearances in this court.

13.His grounds of appeal state that he had been “framed up” by Liu and that the trial judge had “practised discrimination” and “his verdict was unfair”.  By way of example he stated that one of the judge’s reasons for convicting him was that he had a criminal record.  He also complained that the judge was wrong to believe the evidence of the accomplice.

14.In a separate letter he further explained about the grudge Liu had against him arising out of the $1,000 gambling debt dating back to 2001.

The verdict

15.After giving a detailed recital of all the relevant evidence the judge explained his reasons for finding the applicant guilty.  He found that the defendant and his abili witness had lied in evidence about their whereabouts at the time of the robbery.  He noted that the applicant’s recorded interview made no mention of being with his abili witness at the material time and neither did it mention the grudge between he and Liu over the 2001 debt.

16.He also specifically dealt with the fact that the applicant’s criminal record had been disclosed in the course of the evidence.  The judge referred to this in his reasons as follows :

“       … Despite the reminder by the court, defence counsel saw fit at the outset by disclosing all the defendant’s previous criminal record, Exhibit D1, which included 10 criminal convictions with five illegal remaining, two burglaries in 1982 and 2001, and also another offence of carrying arms with intent to commit an arrestable offence when he was sentenced to 8 years’ imprisonment.

45.    The defendant said if he had committed the present offence, he would have pleaded guilty to it because in the past, for most offences he had pleaded guilty, and for burglaries in the past he only acted alone without any co-defendant.  He said if he had really committed this robbery, he would have pleaded guilty.”

17.He later said :

“76.  Even as disclosed and initiated by defence counsel of all the defendant’s previous criminal record, equally, there was no inference of guilt and one must not say that therefore the defendant is more likely to commit the offence because of his previous criminal record.  In gist, there cannot be any adverse inference at all, and that was exactly the forbidden chain of reasoning.”

18.Thus, the judge did not disbelieve the applicant because of his previous convictions, as complained by him in his first ground of appeal.  On the contrary he said “there cannot be any adverse inference at all. ”

19.He gave a reasoned analysis of the defendant’s account and concluded as follows :

“70.  I have had a full opportunity to observe and assess the defendant’s evidence when the defendant was giving evidence in court.  I assess that his evidence was no more than a pack of lies and that his explanation in the video record of interview and also his explanation under caution were not worthy to believe .  In the circumstances, I reject his evidence entirely.”

20.He made a similar analysis of the evidence of the abili witness.  The abili witness gave evidence about the date, the time, the place and the circumstances in which he was a spectator to a game of cards in Victoria Park over a year earlier.  The judge rejected his explanation for being able to recall such details and came to the same conclusion that his evidence was untrue.

21.The judge went on to say that even though he had disbelieved the defendant and his witness the burden of proof remained on the prosecution.  He then explained why he was able to rely on the accomplice’s evidence.  He took into account the dangers associated with convicting a man solely on the evidence of an accomplice.  We are satisfied that he evaluated the evidence fairly and correctly when he concluded :

“Through more than a day and a half of giving evidence in court I had the opportunity to fully observe and assess PW1 when he gave evidence.  I found his evidence was coherent and rational.  Despite the very subtle and detailed cross-examination by defence counsel, his evidence was not shaken.  I find PW1’s evidence truthful and reliable.”

22.Thus, we conclude that the judge did not “practise discrimination” nor was he “unfair” which is the applicant’s second ground of appeal.  We are satisfied that he received a fair trial and that he was correctly convicted.

23.It is a case where the judge was fully alive to all issues of both law and fact; in particular that the prosecution case depended on the evidence of an accomplice and also that the defendant’s bad character had come into evidence.

24.We see no grounds to interfere with his findings.  The application must be dismissed.

Miss Rosaline S.Y. Leung, SGC of Department of Justice, for the Respondent

Applicant in person