HKSAR v. Chan Kwok Yee

[English Translation]
CACC 276/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 276 OF 2006

(ON APPEAL FROM DCCC312 OF 2006)

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BETWEEN

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Before: Hon Tang VP, Cheung JA and Barnes J

Date of Hearing: 22 May 2007

Date of Judgment: 22 May 2007

Date of Reasons for Judgment: 30 May 2007

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Reasons for judgment

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Hon Cheung JA (giving the judgment of the Court):

1.The applicant was charged with one count of robbery.  He was convicted and sentenced to 4 years’ imprisonment by Deputy District Judge Kwok (“Judge Kwok”).  The applicant applied for leave to appeal against conviction.  At the conclusion of the hearing, we allowed the application and, treating it as the appeal, allowed the appeal and quashed the conviction.  The reasons for our judgment are set out below.

The facts

2.According to the “Summary of the Prosecution’s Case” in Judge Kwok’s Reasons for Decision, PW1 and the applicant both lived in Sun Chui Estate, Shatin and had known each other for many years.  At around 6:20 p.m. on 19 February 2006, PW1 came across the applicant in the said housing estate.  The applicant put a hand on PW1’s shoulder and said, “I’m holding a knife.  I’m in need of money.  Something happened … I just want to take the phone now.”  PW1 felt that a hard object was pressing against his waist.  After the applicant said the above, PW1 asked him whether he only wanted to take away his phone.  The applicant answered, “Yes.”  PW1 indicated agreement and pointed to his mobile phone which was placed in a leather case worn around his waist.  The applicant took away PW1’s phone and left the scene.  According to PW1, when the applicant left, he was holding PW1’s mobile phone with one hand and a shiny silver-coloured object which looked like a knife with the other.

3.PW1 did not cry out for help after the applicant had taken away his phone.  After the incident, he went to see his elder brother, i.e. PW2, who had also known the applicant for many years.  Subsequently, PW1 and PW2 tried to find the applicant at his address in Sun Chui Estate, only to discover that he no longer lived there.  They then went to a police station nearby to report the case.  On the night in question, PW1 called a friend of his (i.e. PW3) and told him that the applicant had taken away his phone and used a knife.

4.At around 7:30 p.m. on 1 March 2006, PW3 came across the applicant near Che Kung Temple in Shatin.  PW3 questioned the applicant as to the whereabouts of PW1’s phone and called PW2.  The applicant tried to escape, and PW3 gave chase and caught him up.  The two of them had a scuffle, and the applicant lost consciousness and fell onto the ground.  Subsequently the police arrived and arrested the applicant.

5.The applicant elected not to give evidence.  His defence was that the so-called robbery was entirely made up by the three witnesses.  The applicant alleged that he had borrowed money from PW2 but had not made repayment, and that he had sought assistance from the police because PW2 had threatened and blackmailed him.  All the three witnesses have criminal records.

6.Judge Kwok held that the three prosecution witnesses were credible witnesses.  He was satisfied that the offence was proved beyond reasonable doubt and therefore convicted the applicant.

Legal principle

7.In dealing with cases concerning findings of fact, the appellate court adopts the legal principle that the trial judge had the opportunity to listen to the witnesses’ evidence and observe their facial expressions and demeanour when they gave evidence.  Therefore, unless the findings of fact made by the trial judge are inconsistent with some crucial evidence or the trial judge has overlooked some crucial evidence, the appellate court will not overturn the trial judge’s findings of fact and replace them with the appellate court’s own findings on the facts.  Clearly, this principle does not mean that the appellate court is bound to accept all findings of fact made by the trial judge.  If the appellate court considers that the trial judge has not made use of his advantageous position to thoroughly deal with all the material contradictions in the evidence before him, and such evidence would directly affect the outcome of the case, then the appellate court is entitled to reject the trial judge’s findings in this regard.

8.Neither the appellate court nor the law itself requires the trial judge to account for his treatment of each and every discrepancy in the evidence.  Indeed, such a requirement would be unnecessarily meticulous and impractical.  However, where there is a material contradiction in the evidence, the trial judge must clearly set out his analysis of the issues involved and his reasons for accepting the controversial evidence.

PW1’s evidence

9.We overturned Judge Kwok’s decision because he had not thoroughly dealt with or analysed the inconsistencies and contradictions in PW1’s evidence.

Inconsistencies in the evidence at trial

10.The first question concerns PW1’s evidence that the applicant had said to him, “I’m holding a knife.  I’m in need of money.  Something happened … I just want to take the phone now.”  During examination-in-chief, PW1 repeated 4 times that the applicant had told him he had a knife.  The relevant evidence is extracted below:

Q:   Do you have anything to add about how you felt, apart from the poking and the feeling that something was pressing against you?

A:    No.

Q:   Right.  Then was there any conversation, or was there – anything happened?

A:    Then (he) said, ‘I’m holding a knife.’

Q:   Say again.

A:    ‘I’m holding a knife.’

Q:   Who did you hear was saying this?

A:    He said ‘It’s a knife that’s poking (you).’

Q:   Yes.

…

Judge: He said, ‘I’m holding a knife.’

A:    Yes.

Q:   Eh, you heard this?

A:    Yes.

Q:   Just now you said someone (‘E.T.’) had taken away your phone.

A:    Hm.

Q:   Were you willing or not willing to give him that?  What was the situation?

A:    He told me that I – he told me that he had a knife, and I really felt pain.  Something was pressing against me.  I dared not guess if it really was a knife.  At that moment I was really not – (I) mean I reluctantly let him take away my phone.

…

Q:   Let me ask you this.  He was just 5 or 6 steps away from you.  How come you did not give chase – do something you would normally do upon being robbed?

A:    Because I saw he was carrying a silver-coloured object, and he told me that he had a knife.  I dared not – (I) mean rush forward to do anything.  I feared he might hurt me.

…

Q:   Well, you have said that you feared he might hurt you with the knife, and therefore you did not give chase even when he was 5 or 6 steps away from you?

A:    Hm.

Q:   But then you went to his residence by yourself.  Did you not fear he might stab you with a knife?  What was in your mind? 

A:    At the moment – I was by myself at the beginning.  At that moment I was confused.  He said he had a knife.  (I) mean I was frightened.  Then my elder brother – how should I put it?  I was not frightened when I was with him.  I mean when someone was there you could take care of each other.  That was how I felt.

…

11.However, under cross-examination, PW1 said that the applicant had not told him he was holding a knife.  The relevant questions and answers are extracted below:

Q:   Then (he) went straight to the point and said ‘I’m holding a knife.  I’m in need of money.’  Is that what (you) mean?

A:    Hm, no, he did not say that.  I did not express it clearly because I was dozing off outside before I came in, and at that moment I – well, I mean I did not express it clearly, I mean he – I felt that something was pressing against me.

Q:   I do not really understand what you mean.  I just quoted what you had said, what you said this morning.  Do you now say that he did not say anything like that?

A:    Hm, (he) did not.

Q:   (He) did not say that?

A:    Hm.

Q:   If he did not say that, what actually did he say?

A:    He said something had happened and he was in need of money.

Q:   He said,  ‘Something happened, in need of money.’  And then?

A:    Then he said he had to take my phone.

Q:   Something happened, in need of money, had to take your phone?

A:    Hm.’

12.In the “Summary of the Prosecution’s Case”, Judge Kwok did not mention PW1’s withdrawal of the part of his evidence regarding his allegation that the applicant had claimed to be holding a knife.  Judge Kwok did not take into account or discuss this discrepancy in PW1’s evidence in the “Analysis of Evidence” in his Reasons for Decision.  This is what Judge Kwok said:

Although PW1 was unable to express himself very clearly when he was giving evidence, he had not less than once asked the court to forgive him for being unable to express himself well when he was giving evidence.  In general, this has indeed given rise to some uncertainties in his evidence, but viewing his evidence as a whole, I do not think it is so bad that it has become incomprehensible.

13.It is difficult to understand why PW1 changed his evidence.  His explanation that he could not express himself well is not convincing.  Judging from the above extract of questions and answers, the fact that PW1 changed his evidence had nothing to do with his ability to express himself.  He stated of his own accord that the applicant told him he was holding a knife, and this statement was repeated many times.  This was the way in which PW1 recounted the incident and had little to do with his ability to express himself.  He also explained that he had gone to bed late on the night before the hearing and he was therefore sleepy during the examination-in-chief.  Again this is hardly a credible explanation.

14.In the present case, the fact that the applicant told PW1 he was holding a knife was a crucial piece of evidence.  Obviously, PW1 let the applicant take away his phone mainly because the applicant threatened him that he had a knife.  Had the applicant not said this, why would PW1 have obeyed the applicant’s order?  Judge Kwok had not properly dealt with this important issue.

Discrepancies between evidence given in the witness statement and in court

15.Nor had Judge Kwok analysed or dealt with another material discrepancy in PW1’s evidence.  PW1’s testimony at trial was that the applicant told him, “I’m in need of money.  Something has happened.  I just want to take the phone now.”  However, according to the witness statement (sic) provided by the applicant to the police after the incident, the applicant told him “Something happened to me, I’ll take the mobile phone and use it, where is the phone?”  These words were not threatening at all.  PW1 admitted that he never mentioned in his witness statement that the applicant had said he was “in need of money”.  It was only when Judge Kwok asked PW1 whether the applicant did utter the words “in need of money” that PW1 said, “I remember that he seemed to have said, ‘Help a fellow in urgent need’…”  PW1 said he had mentioned the words “Help a fellow in urgent need” to the police officer, and he agreed with what Judge Kwok put to him: he had no idea why the officer did not record those words in his statement.

16.When a robber utters words such as “Help a fellow in urgent need” during the robbery, he is definitely ordering the victim to do as he says and to surrender his money.  It defies common sense that an officer who hears a victim say that the robber has uttered the words “Help a fellow in urgent need” will not record those words.  We find PW1’s evidence in this respect inherently incredible.

17.In his Reasons for Judgment, Judge Kwok said:

24.       In my view, although ‘in need of money’ and ‘help a fellow in urgent need’ are different expressions, they bear a similar meaning.  I also accept PW1’s explanation that the defendant should have actually said, ‘Help a fellow in urgent need’, but he transformed ‘Help a fellow in urgent need’ into something which meant ‘in need of money’.  That was why he applied or used the two expressions interchangeably.  The above example clearly reveals some blemishes in PW1’s evidence, but I do not think these blemishes will affect the credibility of his evidence as a whole.

18.We agree that these two expressions mean the same.  However, Judge Kwok did not discuss why PW1 made no mention whatsoever of the words “Help a fellow in urgent need” in his post-incident witness statement or why the police omitted these important words.  Judge Kwok’s findings in this regard leave the impression that he had not seriously considered whether PW1’s evidence in this respect was credible.

Other evidence

19.As the incident merely involved PW1 and the applicant, we do not think PW2 or PW3’s evidence could support the charge in question.  Even though at trial Counsel for the applicant did not cross-examine PW3 on the issue of his having asked the applicant of the whereabouts of PW1’s phone, this does not mean the applicant had committed robbery.  The applicant might indeed have taken away PW1’s phone, but the evidence in the present case does not reveal the circumstances under which he had done so.  More importantly, there are still unresolved material doubts about the evidence that went to the elements of robbery, for example, whether the applicant “used force on” PW1 or “put or attempted to put PW1 in fear of being there and then subjected to force” when he took away the phone.

Conclusion

20.The courts must give effect to, and not merely pay lip service to, the legal principle that an accused person can be convicted only where his guilt is proved beyond reasonable doubt.  The present case is a typical case where guilt has not been proved beyond reasonable doubt.  The applicant’s conviction is unsafe.  Accordingly, we allow the appeal and quash the conviction.

21.Mr Robert Lee, Counsel for the respondent, has indicated, in our view appropriately, that he will not apply for a re-trial.

Mr Robert Lee, Acting Deputy Director of Public Prosecutions, for the respondent

Mr Andy Hung, assigned by the Legal Aid Department, for the applicant

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor