HKSAR v. Lai Hon Wan

CACC000538/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 538
(Criminal)

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Coram: Hon. Mayo, Leong and Stuart-Moore, J.J.A in Court

Date of hearing: 14 January 1998

Date of delivery of judgment: 14 January 1998

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The Applicant was convicted by a jury after a trial before Deputy Judge Hawkes in the Court of First Instance of one count of robbery and he was sentenced to 9 years' imprisonment. He now applies for leave to appeal against conviction and sentence. The prosecution evidence is this:

2. At about 5.30 p.m. on 23 August 1996 a man in a pink shirt wearing glasses and carrying a plastic bag went into the Tse Sui Luen Jewellery Shop at Ma Tau Wai Road, Kowloon. He grabbed one of the sales assistants in the shop PW3, and put a screw driver against her neck. He then told 2 other shop assistants PW1 and 2 to put gold ornaments into the plastic bag. He was seen to put on his gloves with one hand while with the other hand he grabbed PW3's neck. When the shop assistants appeared to be putting the gold ornaments into the bag too slowly, he threatened to stab PW3. He used a hammer to smash the show case with force. As a result, the head of the hammer came off the handle. While this was going on, PW4 another sales assistant managed to get into the cashier room and there he pressed the alarm and alerted the police. After gold ornaments were put into the bag, the man put the screw driver, the handle of the hammer back into the bag. He did not retrieve the hammer head. He then walked out of the shop taking the bag along with him.

3. PW1 immediately followed the man into the street. He saw the man cross to the opposite side of the road. At this point, PW1 returned to his shop to look for the police. PW4 who had also been following the man continued to follow him without losing sight of him. He met a police officer PW8 and told him about the robbery and that the man was the robber. Together they chased the man. PW8 saw the man take off his pink shirt and put it into the plastic bag. Subsequently, they caught up with the man and PW8 struggled with him. Two other police officers PW9 and PW10 arrived to give assistance and the man was subdued and arrested. There is no dispute that the man arrested was the Applicant. The scene of arrest was 12 shop premises from the jewellery shop. By that time, PW1 had returned to the scene. He immediately identified the applicant and told the police that the Applicant was the robber.

4. PW5 a construction worker who happened to pass by saw the struggle between the Applicant and the police officer. He said the Applicant was wearing a grey vest and even during the struggle, the Applicant was still holding a plastic bag.

5. After his arrest, the Applicant was searched and a pair of gloves was found in his trousers' pocket. The plastic bag was recovered by the police and inside the bag were gold ornaments of the jewellery shop, a pink shirt, a screw driver and a hammer handle. A hammer head was recovered from inside the shop premises. The handle was found to fit the hammer head. PW1 identified the plastic bag, the hammer handle, the head were those used in the robbery and PW1 also identified the pink shirt was the one the robber was wearing during the robbery.

6. PW12, a finger print expert from the police, examined the scene and the exhibits for finger prints but none was found.

7. No identification parade was held by the police after the Applicant's arrest. At the trial PW2 and PW3 made dock identification of the Applicant as the robber.

8. The Applicant did not deny he was at the scene and he was later arrested by the police. But he denied he was the robber. He said at that time, he was with his wife and he parked his car near Ma Tau Wai Road. His wife went to play mahjong while he went to visit his friend and to have two watches repaired. After the repairs and failing to find his friend, he walked back to the vicinity of his car. He then heard shouts and a running person bumped against him. Thereupon, people came upon him from all sides and subdued him. He was attacked but he did not know how he ended up in the police station. He denied he had worn a pink shirt, and that the handle of the hammer, the head, the gloves, the plastic bag were in his possession. His wife gave evidence in support of what he said.

9. The grounds of appeal can be summarized as follows:

"a. There are doubts and contradictions in the prosecution evidence. There are also inconsistencies between the evidence of the prosecution witnesses and their previous statements, in particular, the evidence of PW1 and PW4 is inconsistent with their previous statements on the identification of the robber and in respect of the gloves. PW3's evidence is inconsistent with her statement that she was able to recognise the Applicant's face.

b. The prosecution should not have relied on the dock identification evidence of PW2 and PW3. Police and another shop employee had viewed the tape on the robbery recorded by the security camera but they were unable to confirm that the Applicant was a robber.

c. The police found no finger print at the scene or on the exhibits that could implicate him."

10. At the trial prosecution witnesses were cross-examined at length in relation to their evidence as well as their previous statements. On the issue of inconsistencies, the trial judge in his summing up said this:

"It would appear that several of the prosecution witnesses particularly some of the civilian witnesses had apparent discrepancies between the evidence they gave in court and what they said in their witness statements. However, the matter occurred almost 12 months ago and you may consider that it is understandable that there should be discrepancies. I can tell you from judicial experience that it is not uncommon for those witnesses to give evidence in court about matters contained in their witness statements or vice versa. Also it is not uncommon for there to be conflicts particularly where a witness has not read his witness statement before he came into court. On the other hand such conflicts particularly if they are significant ones, can be an indication of a dishonest witness."

11. By this direction, the trial judge had drawn the jury's attention to the presence of discrepancies in the prosecution case. It would be for the jury to decide on their significance. All the discrepancies were before the jury and they must have considered them before they came to their verdict. No complaint can be made by the Applicant in this respect.

12. On the next ground, dock identification is unsafe and unreliable and it would be improper to rely on it to identify the Applicant as the robber. But the present case is not one of identification in the normal sense. The Applicant was caught by PW4 who had followed him all the way without losing sight of him as he was making his escape. Immediately after the Applicant was caught, PW1 identified him as the robber. The stolen ornaments, the hammer, the screw driver which had been used to commit the robbery were found on the Applicant. Where the Applicant was caught in such circumstances, it is immaterial that no identification parade had been held by the police. On dock identification, the trial judge told the jury this:

"Experience has shown that it is all too easy for a witness to identify an accused because it is assumed that he must be the culprit because he is in the dock. You may feel in this case that it is safer to place no weight on PW2 and PW3's dock identification of the accused."

13. The trial judge had thus put down squarely before the jury that they should not rely on the dock identification made by the two witnesses to convict the Applicant. The jury being fully aware of this, such evidence would not have affected the outcome of the case. On the finger print evidence, the trial judge told the jury it had a neutral effect. As regards the other matters complained of by the Applicant, such as the planting of the pink shirt on him, the gloves were not found on him and in particular the video recording of the shop's security camera did not confirm he was robber, they were fully reviewed together with defence's evidence by the trial judge in his summing up. No criticism can be made against the trial judge. We have also considered the matters raised by the Applicant in this application. We are satisfied that by their verdict of guilty, the jury must have accepted the prosecution evidence and there was ample evidence for them to convict the Applicant. The application for leave to appeal against conviction must be dismissed.

14. On the application for leave to appeal against sentence, the Applicant has been sentenced to 9 years' imprisonment. This is the case where violence had been used to threaten an employee in order to perpetrate a robbery of a jewellery shop in broad day light. A screw driver, which could be as lethal as a knife, and a hammer had been used to cause alarm in the employees. There were no mitigating factors. The trial judge's sentence of 9 years' imprisonment is a sentence we considered not a single day too long. There is no merit in this application for leave to appeal against sentence. The application is dismissed.

Representation:

Mr. D.G. Saw, S.C., S.A.D.P.P. & Mr. Robert K.Y. Lee (D.P.P.) for Respondent

Lai Hon Wan, Applicant in person