HKSAR v. Wong Chak Man
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CACC 210/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL criminal APPEAL NO. 210 OF 2006 (ON APPEAL FROM DCCC NO. 891 of 2005) ______________________ BETWEEN
______________________ Before : Hon Ma CJHC, Stuart-Moore VP and Beeson J Date of Hearing : 20 November 2007 Date of Judgment : 20 November 2007 Date of Reasons for Judgment : 28 November 2007 ____________________________________________ REASONS FOR JUDGMENT ____________________________________________ Stuart-Moore, VP (giving the reasons for judgment of the Court): 1.The appellant sought leave to appeal against his conviction on 10 May 2006 for robbery which followed a trial before Deputy District Judge A Kwok. When the appellant came before the single judge on 30 January 2007, he was given leave because it was considered to be a possibility that hearsay evidence may have been utilised to bolster the case for the prosecution. 2.At the conclusion of proceedings on 20 November 2007, we dismissed the appeal and now give our reasons for so doing. 3.The facts do not need to be rehearsed in any detail for present purposes. It suffices to say that Ms Man (PW1) became the victim of a robbery on 8 February 2005 at about 6.22 pm as she walked home from work. Her mobile telephone was stolen. The robber was a man of Chinese appearance who had been holding a cutter in his hand. PW1’s statement, made at about 7.45 pm on the same day, included a description of the robber in these terms:
4.PW1 had not previously encountered this man and, four weeks later, after the appellant had been arrested, she failed to pick him out as the culprit at an identification parade. In the result, as PW1’s statement was not contentious, it was read into the evidence under the provisions of section 63B of the Criminal Procedure Ordinance, Cap. 221. 5.The police officer in charge of the investigation distributed a crime message to a number of police stations in regard to the robbery. DPC 50165 (PW2), who had received the message, later accompanied PW1 to the vicinity of the crime scene in an attempt to locate the robber. This was not successful but it led to a conversation between them which was related by PW2 during his cross-examination by defence counsel at trial. He said that PW1 had told him that the robber was about the same height as himself which, he said, was 1.73 metres tall. 6.On 8 March 2005, exactly a month after the robbery, PW2 and his team of officers were on duty when, as the result of information, they went to a shop where the appellant was duly located. On arrest, the appellant replied: “Ah Sir, the ‘lo lup’ was done by me. Would you give me a chance and mitigate for me?” The appellant was then taken to the police station where he signed a post-recorded note of the confession he was alleged to have made. After this, he was interviewed about the offence. Again, he admitted involvement and he said that he had sold the mobile telephone he had stolen from the victim for $800. 7.The prosecution’s case was wholly dependent upon the confessions allegedly made by the appellant to the police. 8.The appellant gave evidence at his trial both on the special issue to determine the admissibility of his interviews and on the general issue. The appellant’s girlfriend was called as an alibi witness. In short, the appellant’s allegations of assault, inducements and threats to make him sign a confession to the offence were rejected by the judge. Equally, the judge disbelieved the appellant’s defence that he was with his girlfriend at the material time. 9.During the trial, as a result of PW2’s evidence that PW1 had told him he was about the same height as the robber, the judge asked the appellant to stand next to PW2 in court when it was observed that the appellant was slightly taller than PW2. Plainly, therefore, PW1’s original estimate of 1.70 metres as the height of the robber was inaccurate if she had told PW2 that he was about the same height as the robber. It is the use to which the judge may have put the evidence of what PW2 was told by PW1 which is fundamental to this appeal. 10.Mr Hemmings, on the appellant’s behalf, has raised what he described as a single ground of appeal although this is set out, rather unhelpfully, in nine paragraphs. In short, he complained that the judge had, or may have, used what was said by PW1 (the robbery victim) to PW2 about the height of the robber being similar to his own “as evidence of the truth of what the complainant had said”. 11.The evidence of the conversation between PW1 and PW2 emerged when counsel for the defence was cross-examining PW2 in an effort to find out why PW2 had intercepted the appellant when the appellant was rather taller in appearance than 1.70 metres as described by PW1 in her original complaint. PW2 explained that not only had he been given the information contained in the crime message but other information also which included the suspect’s name and what PW1 had told him about the height of the robber. The following dialogue during cross-examination sets out the relevant evidence given by PW2 on this topic:
12.This evidence, introduced by the defence, was admissible for the purpose of helping to explain why PW2 had arrested the appellant. The evidence about the height of the robber, which PW1 was said to have described to PW2 by reference to his own height, obviously was not admissible for the purpose of establishing the actual height of the robber. With this in mind, we have looked to see how the judge dealt with this topic. In the judge’s Reasons for Verdict, he said:
13.Mr Hemmings submitted that the judge’s process of reasoning left an impression that the judge had accepted the evidence given by PW2 about his conversation with PW1, to establish that PW1 must have revised her description of the robber as a man who was only about 1.70 metres tall. Mr Hemmings also remarked on the absence of any documentary account of PW1’s conversation with PW2, recording in some formal way what had been said about the robber’s height. He suggested that the evidence, which had emerged only in cross-examination, was “inherently suspect” in that it appeared to be an attempt by PW2 to justify his arrest of the appellant when the original crime message described the culprit as a man who was not as tall as the appellant. 14.We do not consider these arguments to have been sound. As Mr Hemmings recognised, the use, if any, which may have been made by the judge of the evidence given in cross-examination by PW2 about the height of the robber was a matter of speculation. More to the point, it seems to us that the judge had rightly decided that there was no evidence against the appellant apart from his confession. The judge stated in his Reasons for Verdict: “… the only evidence against the Defendant was the two cautioned statements”. In the same context, the judge found the police witnesses to have been telling the truth and he accepted that the appellant had been: “remorseful and regretful and he voluntarily confessed to the crime with the hope of expecting some leniency from the authority”. These findings are echoed in the last sentence of the passage earlier cited where the judge said:
15.There is no suggestion that the judge relied upon any hearsay evidence in reaching a conclusion adverse to the appellant. The judge’s decision to ask the appellant to stand side by side with PW2 was understandable as, if there had been a marked discrepancy in their respective heights, this would have detracted from PW2’s account that he was looking for someone of about his own height. 16.For the reasons we have given, therefore, the appeal was dismissed.
Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent. Mr John Hemmings, instructed by Messrs Boase Cohen & Collins, assigned by Director of Legal Aid, for the Appellant. |
Further hearings and rulings under CACC 210/2006