HKSAR v. Vu Trong Huan

CACC000628/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.628
(Criminal)

-------------------------------

Coram: Hon. Power, V-P. Leong and Stuart-Moore, JJ.A.

Date of Hearing: 25 September 1998

Date of Judgment: 25 September 1998

----------------------

J U D G M E N T

----------------------

Power, V.-P. (giving the judgment of the Court):

1. The applicant faced two charges. The first charge was of robbery, it being alleged that on 12th May 1997, at an unnamed path between Chui Tin Street and Shatin Tau Road near Greenview Garden, Tin Sum, Shatin, he together with two persons unknown, robbed Hui Kar-wai of $500 cash, a gold finger-ring, two silver finger-rings and one ATM card of the Hang Seng Bank. He also faced a charge of remaining in Hong Kong without the authority of the Director of Immigration. He pleaded guilty to the second charge but not guilty to the first charge. He was found guilty after trial before Deputy Judge Poon. He now seeks leave to appeal against conviction on that charge.

2. The facts as set out in the Reasons are straightforward. The victim was on his way home when he was approached by three persons as he went along the path from Chui Tin Street to Shatin Tau Road. One declared robbery and pointed a knife at him. They indicated that all they wanted was money and told him to keep quite or he would be stabbed to death. He was then dragged to a slope where he saw three persons already tied to trees. He was then tied up and menaced with a knife. His wallet and person were searched. His finger-ring was removed and his credit cards were taken out. The robbers asked for his PIN number threatening to stab him to death if he gave a false number. Eventually his eyes were blindfolded with a piece of adhesive tape as was his mouth.

3. Some four days after the event, he attended an identification parade where he picked out the applicant as the robber who had held a knife and had hit him on the head.

4. The defence was one of alibi. The applicant called three flat-mates, all of whom swore that he was at home in a flat at Mei Foo Sun Chuen on the evening of 12th May.

5. The trial judge embarked upon an exhaustive examination of the identification evidence and of the evidence of the defence witnesses. She concluded:

"By virtue of the above discrepancies (those were the discrepancies she found in the evidence of the defence witnesses) as well as illogicalities, I find defendant as well as all the defence witnesses are not credible witnesses; I reject their evidence in total and find the allegation of alibi to be a falsehood.

On the other hand I find PW1 is an honest and credible witness. This is not a fleeting-glance situation. As the present case against the defendant depends solely on the issue of identification I have warned myself of the special need for caution before convicting on such evidence. I have closely examined the length of the observation, the distance from which the observation was made and that the observation by PW1 of the robber, that he tried hard to memorize, was not impeded in any way and a relatively short time elapsed between the robbery and the date of the identification parade.

I find that he must have meant that he was absolutely sure at the identification parade that the defendant is one of the robbers by saying that he is more than 90 per cent sure, especially taking into consideration that PW1 said this was the very first time that he encountered such circumstances and he is neither a trained nor professional witness. I am satisfied that when he said so, he meant he was sure of the identification. I also find it a fact that he had confused the role played by the defendant when giving a statement subsequent to the parade, does not affect the quality of his identification. I am satisfied with his identification and the quality of the identification.

I find the presence of knives in the flat where the defendant was found is supportive evidence as to PW1's identification and I find that defendant was one of the robbers on 12 May 1997 who robbed PW1."

6. When this matter first came before the court, we were concerned by certain of the aspects of the evidence and of the judge's findings and we, ordered that full transcript be provided and directed that the applicant be granted legal aid. He has been granted Legal Aid and Mr. Watson appears for him today.

7. Mr. Watson has set out a number of grounds of appeal. In the first, it is complained that the judge failed properly to warn herself in accordance with R. v. Turnbull, (1976) 63 Cr.App.R. 132. We do not consider there is any real weight in that ground. The judge was fully aware of the need to examine the evidence with particular care as is required by Turnbull when identification is the sole issue. Complaint is also made of the failure by the judge to give proper weight to the applicant's evidence that he was 90% sure of his identification and to his differing versions as to the part played by the applicant. These were, however, matters of which the judge was well aware and she resolved them as can be seen in the passage set out above. We find no real weight in those complaints. There is also a complaint that the judge used, in effect, made improper use of the evidence of the defence to establish the prosecution case. We are not sure what exactly is meant by this unless it is a reference to the final ground of appeal to which we now turn. This reads:

"The Deputy District Judge considered the finding of the knives (these were knives found in the kitchen of the residence in Mei Foo Sun Chuen) to be of particular relevance and says 'I find the presence of knives in the flat where defendant was found is supportive evidence as to PW1's identification and I find that the defendant was one of the robbers. ...' There was no evidence to attribute possession of such knives to the appellant on that date or other - there is no evidence that the knives were or similar to those used by the robbers - PW1 was not shown or asked to identify the knives."

8. We find considerable force in this ground and the respondent, represented today by Mr. Sean, has not been able to dispel the grave misgivings which we have in relation thereto. Four knives were found in the kitchen of the flat in Mei Foo Sun Chuen. The finding of knives in a kitchen would not, of itself, be a matter in any way remarkable. The question that had then to be asked was whether the knives were shown to be in any way linked to the knives used in the robbery. The simple answer is that they were not. The observation of the judge that the finding of those knives was "supportive evidence" of the victim's identification evidence is misconceived. They were not supportive of anything. Knives are to be found in every domestic kitchen. The argument of Mr. Watson is, in our view, wholly correct when he submits that there "was no evidence to attribute possession of the knives to the appellant on that date or other - there is no evidence that the knives were or similar to those used by the robbers" and "PW1 was not shown or asked to identify the knives. Simply put, the knives were not supportive evidence of anything and the use of them by the judge was wrong." Identification was the sole issue once the alibi had been rejected. The use of the knives as supporting evidence of identification was a serious error. The conviction is neither safe nor satisfactory.

9. The hearing of the application will be treated as the hearing of the appeal. The appeal is allowed and the conviction is quashed.

Representation:

Mr. Eddie Sean, S.G.C. (D.P.P.) for the Respondent.

Mr. Geoffrey Watson assigned by D.L.A. for the Applicant.