HKSAR v. Singh Narinder
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CACC000563/1998 CACC563/98 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 563 OF 1998 (ON APPEAL FROM HCCC 201 OF 1997)
------------------------------- Coram: Hon. Power, V.-P., Liu & Rogers, JJ.A. Date of Hearing: 16 April 1999 Date of Judgment: 16 April 1999 ---------------------- J U D G M E N T ---------------------- Power, V.-P. (giving the judgment of the Court): 1. The applicant in this matter faced one count of robbery. It alleged that he on 18th December 1996, at Far East Pacific Company, Flat 7B，Kai Wah Building, 68-70 Wellington Street, together with two other persons, robbed Datta Suresh of $500 in Hong Kong currency, two Hongkong Bank ETC cards and a typewriter. 2. It was the prosecution case that Datta Suresh was the victim of a robbery in his office on 18th December 1996. The identity of the applicant as the robber has several distinctly unusual features. The person to whom we will refer as the principal robber gained entrance to the office by a trick pretending that he was delivering some cassettes. Once inside he produced a pistol and demanded $65,000 suggesting that his demand was justified as it arose out of a driving accident which had involved the victim's wife. While the victim was being threatened, a Chinese male arrived. 3. It was the victim's evidence that the principal offender was in the office from about 7 o'clock until about 8 o'clock; that he was threatened during this time and that at one time the principal robber lifted his shirt enabling him to see that his body bore a large tattoo. ETC cards were taken and the victim was forced to reveal his PIN number. The Chinese male then left and later there was a telephone call which, it appeared, informed the principal robber that money had been withdrawn. The victim said that the principal robber spoke to him in Punjabi English but mostly in Indian. He later found that a typewriter and a vest were missing from the office. 4. That was on 18th December. The victim did not, however, make any report on that day to the police but shortly thereafter went to China. On 23rd or 24th, having returned from China, he found that $77,000 had been debited to his bank account and he cancelled the ETC card. On 27th December, there was a further call and further demands for money and threats were made and he then reported the matter to the police. After the police came into the matter there were further threatening calls and there were threats that the son of the victim would be kidnapped and during those telephone calls the caller revealed that he had an intimate knowledge of the victim's family. The victim came to suspect that his secretary was involved and on 6th January he searched her desk and found photos, in four of which, he said, the principal robber appeared. He photocopied these and returned them to the secretary's desk. These were not seen again but copies of them became Exh.6 at trial. 5. In due course the applicant was arrested and DPC 10855 who had carried the arrest said that he saw snake and dragon tattoo on the body of the applicant. 6. At trial the applicant gave no evidence. 7. The trial judge gave the following direction to the jury:
8. The judge then went on to explain to the jury why no identification parade had been held as would usually be done where the issue was identification. He then said to the jury that they would be assisted in reaching their conclusion by the evidence given by Mr. Datta and by the evidence of the police officer. He referred to the fact that Mr. Datta had told the police shortly after the robbery and told the jury when giving evidence that the man who had robbed him at gunpoint had a large tattoo on his chest and stomach and that the arresting constable had, after arrest, seen that the defendant also had a large tattoo on his chest. He cautioned the jury that if they had any doubt, they must give the benefit of it to the applicant. 9. As we have said, this was an unusual case but the judge was fully aware of the unusual factors to which the jury had to turn their minds when considering the issue of identification. 10. There were two issues:
11. The applicant in his initial grounds of appeal questions the propriety of the conviction upon the basis that there was no scientific evidence to convict him and that the evidence of identity was such that it could not conclusively prove that he was the man involved. He has today raised a number of other matters suggesting that there are differences between a Pakistani person and an Indian person and that the victim's evidence in this regard was unsatisfactory. He suggests that there were discrepancies between the statement the victim gave to the police and his evidence and that the victim tailored his evidence after he had heard the evidence given in the first trial in which the jury had disagreed. All of these were matters of fact which were essentially for the decision of the jury. They do not provide any valid ground of appeal. 12. We return to the real thrust of appeal which is that there was no satisfactory evidence for identification. 13. The two issues to which we have already referred were whether the jury had evidence before them upon which they could be satisfied that the man in the photographs was properly identified by the victim and, secondly, whether they could be satisfied that the man in the photographs was the applicant. Both of those issues were squarely left to the jury in the direction of the judge which, we are satisfied, was both comprehensive and fair. The jury when convicting clearly came to the conclusion that they could be satisfied as to both of those issues. 14. There is nothing in this application which in any way indicates that the conviction was either unsafe or unsatisfactory and the application is, therefore, dismissed.
Representation: Mr. A.A. Bruce, S.C. leading Ms. Anthea Pang, S.G.C. (D.P.P.) for Respondent Applicant in person. |