The Queen v. Chan Kwok Lok

CACC000058/1986

BETWEEN:

Coram: Roberts, C.J., Power & Clough, J.J.A.

Date of Hearing: 4 June 1986

Date of Judgment: 12 June 1986

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JUDGMENT

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Roberts, C.J. -

1. The applicant was convicted on a charge of robbery and sentenced to six years' imprisonment. He sought leave to appeal against both conviction and sentence Both applications were dismissed. We undertook to give our reasons later, which we now do.

Agreed Summary of Facts

2. Counsel representing the Crown and defendant put forward an agreed summary of facts to the judge, which covered the majority of the issues in the case.

3. It was agreed that a number of men, some of them armed with knives, entered the premises of the National Manufactory Corporation at 31-35 Sha Po Road, at about 4.10 p.m. on 1st August, 1985.

4. The assailants tied up those who were present in the factory with wire, closed. their mouths with adhesive tape and stole valuables from them. They then removed a quantity of stock from the premises.

5. Four weeks' later, the applicant was found inside a flat, No. 168, 4th Floor, Fa Yuen Street. Here, 33 cartons of imitation gold jewellery pieces were found and subsequently identified as having been stolen from the premises in the robbery on lst August.

6. On 3rd Septebmer, the defendant was identified by four of the victims of the robbery as having been present at it and taken part in it.

7. The only issue remaining was that of identification. Having recited the agreed facts, the judge dealt with the issue of identification in the following terms -

"I was satisfied so that I was sure that the Accused was guilty. He was identified by 4 witnesses. At the place where he lived was  found a  substantial   amount  of  the   stolen goods.  Discussions between the witnesses clearly would not have influenced the identifications as, in common with a lot of people,  their descriptions were such that could fit half the male population of Hong Kong in their twenties,    but all were certain when they saw the Accused in a line up that he was the one who had guarded them. They each had ample time and  opportunity to see him for some time in lighting conditions which were excellent.  I was left with no doubt whatsoever."

Grounds of Appeal

8. The first ground of appeal was that the judge had made no evaluation of the identification evidence of the witnesses, nor any reference to the differences in the descriptions given by the four identification witnesses as to the two culprits inside the premises.

9. In support of this argument, counsel for the defendant put forward a Schedule which showed that there were a number of discrepancies between the descriptions given by the identifying witnesses in their initial statements to the police and in the evidence which they gave before the judge.

10. Undoubtedly them were a number of differences in the two descriptions.  However, it rust be accepted that verbal descriptions of suspects are of a very subjective nature and do vary from time to time in the recollection of a victim.

11. The really important factors in these identifications were that, as the judge himself said, the witnesses had ample opportunity to observe the defendant for some time in excellent lighting conditions.  All four of them about a month later, identified him at identification parades held by the police in conditions as to which there has been no complaint.

12. Such variations as there were in verbal description were obvious to the judge and were detailed to hire by counsel appearing for the defendant in his final duress.

13. The second argument was that the judge had made no reference to the defence put forward in the reasons for verdict.  This would, in many cases, be a fatal objection and judges should normally make it clear that they have considered such defence as has been put forward end that they have rejected it.

14. In this instance, however, the only issue of substance in the trial was the identification of the applicant, by his acceptance of the identification of the applicant by the four prosecution witnesses the judge must inevitably have rejected the defence put forward by the applicant, which was simply that he knew nothing about the robbery because he was not present at it.

15. In those special circumstances, it would have added little to the judge's reasons for verdict for him merely to have canvassed the defence in order to reject it, although, as a general rule that is the proper practice for a judge to follow.

16. The final ground put forward was that the trial judge it was wrong in relying on the fact that a portion of the stolen goods was found four weeks' later at the place where the appellant lived.

17. While evidence of recent possession of goods stolen in a robbery is some evidence of participation in the robbery, such possession at an interval of four weeks cannot be given any significant weight.

18. However, although the judge mentions the fact that a substantial part of the stolen goods was found at the place where the applicant lived, he did not suggest that he had placed any weight on this factor.  Obviously, he reached his decision on the basis of the identification of the applicant by four victims of the robbery.

19. We were invited to say that the convictions were unsafe and unsatisfactory by reason of the nature of the identifications.  We can only say that the chances of a mistake where four victims separately and individually identified the applicant are so remote as to raise no doubt in our mind that the verdict was a correct one, though there were certain deficiencies in the reasons for verdict, as we have indicated.

20. The applications for leave to appeal against conviction and sentence were refused.

Representation:

Mr. S. Ma (D.L.A.) for Appellant (in respect of conviction)

Appellant - CHAN Kok-lok - in person (in respect of sentence)

Mr. M. .J, Hartmann, Ag. A.S.C.P., for Respondent/Crown Prosecutor.