HKSAR v. Pham Quang-minh

CACC000111/1998

CACC 111/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 111 OF 1998

(On appeal from DCC 1250 of 1997)

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Coram: Hon. Mortimer, V-P, Rogers & Stuart Moore, JJA in Court

Dates of Hearing: 8 October 1998 & 9 February 1999

Date of Delivery of Judgment : 9 February 1999

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J U D G M E N T

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Rogers J.A. :

1. The Applicant was convicted before Deputy Judge Poon on 21st February 1998 of robbery and of having in his possession an unlawfully obtained Vietnamese Refugee Card, contrary to section 42 of the Immigration Ordinance, Cap. 115. It is material to this application that the second charge was that the Applicant had in his possession a forged Vietnamese Card, contrary to section 42(2)(c)(i) of the Immigration Ordinance and the particulars were that on 26th April 1997, at a footpath near Worldwide Garden, Shatin, New Territories in Hong Kong, he had in his possession a forged Vietnamese Card, namely Vietnamese Card No. 000990(RI) in the name of Ly A Bac. The conviction in respect of having in his possession an unlawfully obtained card was on the basis that he could be found guilty of having possession of an unlawfully obtained card by reason of the provisions of section 51(2) of the Criminal Procedure Ordinance.

2. On this appeal, the Applicant was represented by Mr. Percy in respect of the second charge alone, in respect of the first charge the Applicant represented himself.

3. The brief facts were that there was a robbery in the vicinity of Worldwide Garden in Shatin on the evening of 26th April 1997. The victim of the robbery managed to escape and summon the police. Two police officers who were on patrol near the scene apprehended a person whom one of the police officers subsequently identified as the Applicant. Upon that person's arrest, what at the time looked to the police officers like a Vietnamese Refugee Card was found in the wallet of the person arrested. That card bore number 000990(RI).

4. It was admitted under the provisions of section 65(c) of the Criminal Procedure Ordinance that between 1991 and 1992, a Vietnamese refugee by the name of Ly-A-Bac lost a Vietnamese Refugee Card no. 000990(RI) and that a Vietnamese Refugee Card taken by the policeman from the suspect who was arrested on the evening of the robbery bore the same particulars.

5. The person arrested was released on bail by the police two days after the incident and the Applicant was only subsequently arrested in August of that year.

The first charge

6. The Applicant's case is that there was a misidentity. His case is that at the time of the robbery on 26th April 1997 he was in Vietnam.

7. The Judge carefully weighed the prosecution evidence and in particular the identification evidence given by the victim who said that the Applicant was the person who had attached him. The Judge said :-

"The sole issue in the present case is one of identification. According to PW1 [the victim] the only chance that he had in taking a clear and close look at one of the robbers was during the three to four seconds when he grabbed hold of the knifelike object and struggled with that robber before both of them fell down the slope. For the rest of the encounter, he either had just taken a glance at the robber with no deep impression formed as to appearance, or lowered his head according to the instructions of the robbers. PW1 said that during that three to four seconds he was as close as face to face with the robber, and although the lighting at that place was darker than that up the staircase, he could still describe the lighting to be sufficient given the fact the source of lighting was derived from either the staircase or lights from the nearby highrise building. In fact, within an hour later at the car park of the Tin Sam Police Station, PW1 identified the arrested person to be one of the robbers, in the presence of PW2 and PW3."

8. Before us, one of points made by the Applicant was that the lighting was insufficient at the time for proper identification to be made and the victim had been concentrating on the struggle he had had with his attacker and avoiding the attacker's weapon. These are clearly matters which the Judge took into consideration. She held that there had been sufficient light for the victim to see the attacker at the time and the victim had seen the attacker again when the person was arrested shortly afterwards on the night in question. One of the policemen who had arrested the attacker on that night also identified the Applicant when he was arrested in August of the same year.

9. Before us, the Applicant complained that the identification had been made in what has been termed a "confrontation" rather than an "identification parade". During the trial, the Judge below had been informed that the Applicant had refused an identification parade. Before us, the Applicant has indicated that he wished to have had a lawyer present at an identification parade. Nevertheless, the Judge below took into account that the identification had been made at the so-termed "confrontation" rather than on an "identification parade" and was satisfied, in particular because of distinguishing features, that the identification was a valid identification.

10. The Judge also considered very carefully the Applicant's evidence. For a number of reasons, she found it incredible. The Judge also found the Applicant to be an evasive and unreliable witness. However, the Judge did not take into account what she held to be the false alibi evidence as supporting the prosecution case. The Judge ignored it in coming to her conclusion that she was satisfied beyond a reasonable doubt that the Applicant was the robber.

11. There is no substance in the application in respect of the first charge and the application for leave to appeal in respect of the first charge is therefore refused.

The second charge

12. At the trial, the Card which the police officer had found on the 24th April was not in evidence. The trial Judge held that without that card she was unable to come to the conclusion that it was a forgery. She said that she could not be sure whether the original photograph on the Card had been removed and replaced by the Applicant's own photograph. In the absence of that evidence, she could not be satisfied that the Card in the custody of the Applicant was a forged or even a false Card.

13. The Judge then went on to consider section 51(2) of the Criminal Procedure Ordinance. That reads as follows :-

"(2) If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence."

14. The trial Judge said :-

"I find that from the evidence before me, although there is no evidence that the card in question is forged or false, however in the absence of a credible explanation from the defendant, there is a reasonable and irresistible inference that the card was unlawfully obtained because I can surely take judicial notice of the fact that each Vietnamese card is issued to the person whose photograph and name appears thereon and is non-transferable."

15. In so saying, it appears that full consideration was not given to the question whether the allegations in charge 2 amounted to, whether expressly or by implication, an allegation of the offence in respect of which the Applicant was convicted.

16. It would be inappropriate in this judgment to attempt an exhaustive analysis of the meaning of section 51(2) and in particular as to what is comprehended by the words "amount to" on the basis of dictionary entries. It was argued by Mr. Cheung on behalf of the Prosecution that those words should be read as meaning equivalent in significance. This, in itself, is far too broad an encapsulation. The circumstances where it would be right to hold that the allegations in one charge amount to an allegation of another offence must be far more akin to a situation where the allegations in respect of the first charge constitute the ingredients of the second charge whether directly or by necessary implication. The further words of section 51(2), "or include", clearly indicate that the ingredients of the second charge would fall within the larger category of the allegations in the first charge.

17. In the second charge as originally charged, the allegation was that the Applicant had a forged Vietnamese Card in his possession. The ingredients of that are thus the existence of a fake or forged Vietnamese Card which was in the Applicant's possession. In respect of the offence of which the Applicant was convicted, namely the possession of an unlawfully obtained Vietnamese Card, the essential ingredients include the existence of a genuine Vietnamese Refugee Card in the possession of the Applicant who had obtained that Card unlawfully.

18. There was some discussion before the trial Judge as to the meaning of the words "unlawfully obtained" but it does not appear to us that the allegations in the second charge, even by implication, amount to the Applicant having obtained a Vietnamese Refugee Card unlawfully. In the first place, even if the Card in his possession on 26th April 1997 were a Vietnamese Refugee Card, there could be explanations as to how he had obtained it which were not unlawful. Certainly, there was no suggestion that the Applicant had made any false statement or representation in connection with an application for the issue of a Card which would have brought the facts within section 42(3) of the Immigration Ordinance.

19. If a person is accused of having obtained a genuine article in an unlawful or illegal manner, it is quite a different thing from having a non-genuine article in his possession. The allegations therefore in respect of charge 2 do not amount, even by implication, to the offence of obtaining in an illegal manner.

20. We would add however that as Lord Roskill said in the Commissioner of Police of the Metropolis v. Wilson (Clarence) [1984] 1 AC 242 at 261F if the Defendant is exposed to a risk of conviction on a charge which would not have been fully investigated at the trial, the trial Judge must always ensure that whatever course is adopted will involve no risk of injustice and that the Defendant has had the opportunity of fully meeting any alternative charge in the course of his defence.

21. In the present case, the possibility of conviction of the alternative offence arose during the submissions after the evidence. In our view, the correct course would have been for an amended charge to be formulated and the Applicant to have been given a full opportunity of answering that charge. Even that could only have been done if the circumstances had been such that the Applicant would have suffered no injustice by the course being adopted at such a late stage.

22. In these circumstances, we shall give leave to appeal and treating the hearing as the appeal, allow the appeal so far as it concerns the second charge and quash the conviction on the second charge.

Mortimer V-P:

23. The consequence is that the application for leave to appeal against conviction on the robbery charge is refused. On the possession of an unlawfully obtained identity card, leave to appeal is granted; the appeal is allowed and the conviction and sentence are quashed. So far as sentence is concerned, this will not make any difference to the total length of sentence being served because the 12-months imprisonment which is quashed, was being served concurrently with the 41/2 years imprisonment for robbery.

Representation:

Mr. Cheung Wai Sun, D.P.G.C. for Director of Public Prosecution

Mr. Duncan Percy instructed by Director of Legal Aid for Applicant (for 2nd charge)

Applicant in person (for 1st charge)