HKSAR v. Tsang Chiu Wong and Another

CACC000063/2000

CACC 63/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 63 OF 2000

(ON APPEAL FROM DCCC NO. 985 OF 1999)

Coram: Hon Stuart-Moore, Ag CJ/HC, Leong and Wong, JJA in Court

Date of Hearing: 22 November 2000

Date of Handing Down Judgment: 6 December 2000

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

1. Tsang Chiu Wong (D1) and Cheung Yau-fat (D2) were convicted after trial before Judge Chua in the District Court of one charge of attempted robbery and were each sentenced to imprisonment for a term of six years. They now apply for leave to appeal against their convictions. The charge alleged that

"TSANG Chiu-wong and CHEUNG Yau-fat, on the 12th day of September, 1999, at a path leading to Shek Pai Wan Estate at the back of Aberdeen Technical School, Aberdeen, in Hong Kong, attempted to rob STANDRING Patricia Kate."

2. The evidence in support of the charge came primarily from two witnesses Ms Standring (PW1) and Mr Valentine (PW2) who came to Hong Kong from New Zealand in August 1999 and have since lived here together. PW1 was a school teacher and PW2 a builder.

3. At around 11 a.m. on 12.9.99, they left their home and went picknicking at the waterfall near the Aberdeen Technical School in Aberdeen, when they were approached by two men from behind. One culprit who was subsequently identified as D2 grabbed PW1 by her neck and pointed some syringes at her. The other one who was identified as D1 held a stick and stood near D2 and demanded HK$100 from PW1 and PW2 in English.

4. PW2 picked up a pole and threatened to knock on the culprits who then let go of PW1 and fled. PW1 sustained minor injuries.

5. PW1 and PW2 went to the Aberdeen Police Station to make a report. PW1 was then sent to hospital for medical treatment whilst police officers accompanied PW2 to cruise around in a police vehicle in the vicinity to look for the culprits.

6. When PW2 and the police party reached the Aberdeen Technical School, they saw 4 men and the applicants were among them. PW2 identified the applicants as the robbers to PC 33651 (PW3) and PC 48988 (PW4). The applicants were arrested. This was about one and a half hour after the attempted robbery.

7. Under caution, both applicants claimed that at around noon-time that day, they went up the hill to inject heroin. When they came down with the other two friends, they were all intercepted by the police.

8. Both applicants gave evidence denying the offence. Their case was that they went up to the hill to inject heroin. D1 said that he was only at the scene after 12 p.m. It is clear that the judge disbelieved them and rejected their evidence.

9. The main issue in this appeal as indeed in the trial was the identification evidence against the applicants. The Perfected Grounds of Appeal contain a total of 9 grounds. Grounds 1 to 6 and Ground 8 can be dealt with together as they all relate to the identification of the applicants and discrepancies of the description of the applicants by PW1 and PW2. Ground 9 is a general ground that the convictions were unsafe and unsatisfactory on account of insufficient evidence, which does not require separate treatment.

10. The judge warned herself in terms of Turnbull as the sole issue was the reliability of PW2's identification. It was not disputed that PW1 made no identification of either applicant. PW2 was able to give a description of the physical features and clothing of D2 to the police that the man was 1.6 metres in height, slim built, short haircut, wearing a dirty white T-shirt. What D2 was wearing was actually a singlet, not a T-shirt. PW1 also said in her witness statement that D2 was wearing a white T-shirt. Both PW2 and PW1 gave no description of D1 to the police in their witness statements.

11. In the case of D2, PW2 testified in Court that he was wearing a dirty white singlet, like an undergarment with no sleeves. Initially there was some confusion whether the upper garment he was wearing was a white T-shirt or a singlet, but this was cleared up during the evidence. PW2 further testified that D2 was about the witness's height, i.e. about 5 feet 9 inches, reasonably slight built. He had no difficulty in walking. The witness was sure when he identified D2 at the carpark. In relation to D1, PW2 said that D1 was wearing a lightly clad, dark T-shirt dark or black jeans. He was shorter, slightly shorter than D2. Under cross-examination, he said D1 was a little bit slow in walking. In fact it was D2 who had an injury to his foot. He did not have a good look at their facial features when the applicants walked past them. He admitted that he remembered D1 partly by his clothing and partly by his appearance. He was sure that D1 was the one holding the stick.

12. This was all about the descriptions and evidence of the identity of the applicants from PW2. How did the judge deal with this aspect? What did she say? At p7 M-U and p8A of the Appeal Bundle she said :

" This being a case of identification, initial descriptions are important. Throughout their evidence-in-chief both witnesses described the man who had grabbed PW1 ("the first man") as wearing a dirty white singlet. PW2 has said he was sure of this. They admit they had reported the same man as wearing dirty white T-shirt, jeans, thin build, short hair and, in PW1's case, 1.5 metres tall; in PW2's case 1.6 metres tall. They put the men's ages as in their 30s. The second man with thin face and build, and black T-shirt and jeans, somewhat older. They admit they could not describe the faces of these men to the police and had not given a description of the second man at all.

There are discrepancies between the evidence of the two police officers who arrested the defendants upon PW2's identifications, and PW2, as to what occurred after he arrived at the park with officers from Aberdeen Police Station. "

13. We turn now to Ground 7 which is only relevant to the case of D1. It reads :

"The learned judge erred in finding that the 1st appellant told lie when he said in evidence that he was only at the scene of crime after 12 p.m. on 12/9/99. She further erred in finding that such alleged lie told by the 1st appellant in Court was within the ambit of the case of R v Lucas (1981)1 QB 720 in that :

(i) there was no independent evidence to show that it was not true,

(ii) there was no evidence to show that the 1st appellant told such alleged lie because of his consciousness of guilt and to give himself an alibi,

(iii) such alleged lie was corroborative or supporting evidence of the identification of the 1st Appellant by PW2. "

14. This is what the judge said at p13 A-J :

" While admissions made in a cautioned statement is only evidence against its maker, testimony in court is evidence for or against another defendant. I do not believe D2 when he testified he was in a habit of leaving directly after an injection and that he was ready for a second fix immediately after his first.

I believe at the time he went uphill at 11 a.m. he was with D1, having met him in the park, and they had bought drugs and syringes together.

I am satisfied D1's testimony that he, D2 and Wu So-ming, did not get hold of the packet of drugs till after 12 is untrue, and this deliberate lie was said, not for any other innocent reason, but from a consciousness of guilt, R v Lucas (1981)1 QB 720, to give himself an alibi.

I am sure he was with D2 on the hill, and when they came down at 11.30, took the opportunity to rob the couple for money to buy their next packet of drugs. "

15. We are fully mindful of the decision in R v Lucas (1981)1 QB 720. But the leading authority on "lies" in Hong Kong is HKSAR v Mo Shiu Shing [1999] 1 HKC 43, which considered, explained and modified the tests laid down in Lucas. In Mo Shiu Shing, one of the grounds of appeal was :

"On the issue of the applicant's lies, the jury was directed, in terms, that they could use a lie to strengthen the inference of guilt but, before doing so, they would have to be satisfied the only reason the applicant had lied was because 'he knew he was guilty of the particular offence'. The applicant claimed that as the case depended upon proof of guilt by inferences drawn from primary facts which themselves had to be established beyond reasonable doubt, a primary fact which encompassed a consciousness of guilt either pre-judged the finding of the proof of guilt by inferences or took matters so much out of their logical sequence that the jury was, in effect, misdirected as to the burden of proof; "

This Court held, inter alia that, at p.44 :

"(1) The evidence of a proved lie or admitted lie that was material to the case had never in modern times been sufficient in itself to establish guilt. The most a lie could do, where the jury found that no innocent explanation existed for the lie, was that it might lend support to the prosecution case.

(2) Where an allegation had simply been made against the defendant that he had been lying, the judge could direct the jury in terms that it was an issue which related solely to credibility, namely that it was for the jury to decide whose evidende they believed. Nothing more needed to be said. R v Ng Chi Wai & Anor (Crim App 346/96, unreported) followed."

Obviously the judge was not aware of the existence of this decision nor was her attention drawn to it by counsel. But it is plain from the tenor of her judgment, so it seems to us, that the judge had not relied on the lie to prove guilt. What she really meant was that she treated the lie as an issue of credibility to reject D1's evidence that he was not up on the hill during the attempted robbery. In this context, she was clearly referring to Lucas in loose terms. The judge had relied on the evidence of identification of PW2 to convict both D2 and D1. She considered the identification evidence and analysed the discrepancies arising therefrom with care and satisfied herself beyond reasonable doubt that the evidence was reliable and could be acted upon. The judge heard the evidence and observed the demeanour of the witness. It was on this basis that she had come to the conclusion that she did and it is not for us to substitute her opinion with our own. Given the closeness in time of the offence and the applicants being seen again in the same vicinity, the identification evidence of PW2 makes the prosecution case a very powerful one.

16. We have not been persuaded that the convictions are in any way unsafe or unsatisfactory. Accordingly, all the grounds of appeal fail and the applications for leave to appeal against conviction are dismissed.

Representation:

Mr David Leung, S.G.C., of the Department of Justice, for the Respondent

Mr IP Tak Keung, Peter assigned by the Legal Aid Department, for the 1st and 2nd Applicant