HKSAR v. Lau Chi Kong

CACC 305/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 305 OF 2008

(ON APPEAL FROM DCCC NO. 288 of 2008)

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Before:   Hon Stuart-Moore VP, Stock JA and Beeson J

Date of Hearing: 31 March 2009

Date of Judgment: 31 March 2009

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.Lau Chi-kong (the applicant) was charged with attempted robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200.  On 26 August 2008, he was convicted, following a trial before Judge S. D’ Almada Remedios, and, on the same day, he was sentenced to 5 years’ imprisonment.

2.The matter now comes before us as an application for leave to appeal against conviction.

3.There are two grounds of appeal which Mr Tong Ming, who also appeared in the court below, has advanced on the applicant’s behalf in these proceedings.  These are both related to aspects of the evidence concerning the identification of the applicant as the culprit responsible for the offence.

Prosecution’s case

4.The facts were straightforward.  Mr Choi (PW1) was the proprietor of a shop in Tai Po which sold mobile telephones and accessories.  On 28 January 2008, a man came into his shop at about 2.30 p.m. when PW1 was on his own.  The man asked to be shown a particular type of mobile telephone.  The man left the shop without buying the telephone.  PW1 described this man as having been inside the shop for between 5 and 10 minutes during which time the man had been “a little more than 2 feet away from him”.

5.Seven hours later, at about 9.15 p.m., while PW1 was again on his own in the shop, the same man returned and once more requested to see the mobile telephone he had looked at earlier in the day.  However, on this occasion, as the man sat on the opposite side of a table to PW1, the man drew out a knife from his coat.  This caused PW1 immediately to press a silent alarm button under the table which was connected to a security company’s alarm system.  The man pointed the knife at PW1 and told him to hand over the telephone.  PW1 refused to do so and told the man that there was a CCTV system installed in the shop and he asked the man not to do such “silly things”.  PW1 enquired whether the man was in urgent need of money.  The man was still pointing the knife at PW1 when he replied that he wanted $5,000.  PW1 told the man that there was not that much money available whereupon the man tried to come behind the counter.  PW1 stopped him by pushing him away.  At this stage, the man went to a grille on the other side of the shop where he seemed to be about to take some of the mobile telephones from behind the grille.  PW1 then pulled out the crowbar he kept below his table but the man grabbed PW1 and arm-locked him by putting an arm round his neck.  PW1 was dragged to the shop doorway where he was able to shout out “Robbery”.  It seems that this caused the man to run away. 

6.PW1 estimated that the last episode, from the time the man came into his shop until he left it, lasted about 15 to 20 minutes.  PW1 made a statement to the police that day and a further statement on 18 February 2008 when he returned to the police station and viewed photographs on a computer screen to see if he was able to recognize the culprit.  PW1 thought that he was able to do so and, four days later, following the applicant’s arrest, PW1 picked out the applicant at a formal identification parade.

Defence case

7.At trial, the applicant did not give evidence. His case was presented on the basis that PW1’s evidence was extremely unreliable, not only in itself but also when compared to the evidence given by a woman police constable (PW2) as to the conduct of the photographic identification of the applicant by PW1.

Grounds of appeal

8.The grounds of appeal sought to rehearse the arguments advanced in the court below. 

9.In the 1^st ground, Mr Tong submitted that the widely differing descriptions given by PW1 in his two statements to the police as to the robber’s height were such as to make him a “wholly unreliable” witness.  The 2^nd ground related to PW2’s evidence that PW1 had viewed 674 photographs in a process of identification which lasted forty minutes whereas PW1 thought that he had viewed about twenty photographs in the space of about ten minutes.  Mr Tong submitted that this was such a wide discrepancy that this materially reflected on PW1’s credibility and “the evidential weight of his identification” of the applicant as the culprit.

10.Mr Tong emphasised, in making his submissions, that he was not in any sense alleging that PW1 had not been an honest witness.  Part of the problem with the identification, he submitted, was that on both occasions PW1 had seen the robber in his shop, the culprit had worn a cap whereas, neither in the photograph of the applicant seen at the police station nor when the applicant stood on the identification parade, had he done so.  Added to this, the two descriptions of the culprit’s height supplied by PW1 to the police differed by 9 centimetres.  Mr Tong submitted, therefore, that these shortcomings in PW1’s evidence were so dramatic that the conviction should be regarded as unsafe or unsatisfactory.  A further point raised was that as PW1 had just seen the applicant in a photograph, there was as danger that he might simply have been identifying the applicant because he recognized him from the photograph.

Discussion

11.The height of the culprit, in terms of general description, was of course a matter of importance.  However, the point was one which was fully and properly explored at trial and the judge was well aware of it.  The judge said as follows:

“30.   I turn now to the height submissions. It is an admitted fact that the defendant is 5 feet 3 inches tall, which is 160 centimetres. PW1 was cross-examined by Mr Tong as to his height. It was PW1's evidence that he did not know or was not clear how tall he was. He knew that he was 5 feet-something, but not exactly how tall. In the police witness statement which PW1 gave, it states that he says he is 5 feet 7 inches in height. He said he had never measured his height, but that 5 feet 7 was put in the statement because when the statement was taken by the police officer, the police officer informed PW1 that he was about 5 feet 7 inches in height, and he agreed.

31. PW1 said he could not be sure of the defendant's height or the robber's height. He had told the police on the first occasion, the day of the incident, that the suspect was a little shorter than he, and that is when the police had written down in the statement that the suspect was 169 centimetres tall. He, however, gave no measurement to the police officer.

32. [In] the second statement, he told the police officers that the suspect was up to his mouth in height. However, he still could not be sure exactly how tall that was. It was an approximation as to the suspect's, or the robber's, height.

33. Mr Tong submits that there is a 4-inch difference between 169 centimetres, the height given in PW1's first statement, and 160 centimetres, which is the height approximately up to PW1's mouth. Given the difference of this amount, which is about 4 inches, it is a great difference and no reasonable man could make a mistake like this, and furthermore that PW1 was untruthful and that how could anyone not have an idea about his own height.

34. It is clear - and I accept PW1's evidence - that he was estimating the heights. He himself did not know his exact height. I do not find any inconsistency in the words of PW1 in that all along he had said the robber was shorter than he, and in the second statement he was more detailed and said that he was approximately up to his mouth in height. That is a more accurate measurement of height than measurement of centimetres or feet. Further, there is no suggestion and no evidence that PW1 viewed the photograph that he changed his account as to the defendant's height. Further, there is no evidence before me as to whether the photograph shown was only facial or full-bodied. It is clear, however, from the evidence that if PW1 is 5 feet 7 inches approximately, that up to his mouth would be about 5 feet 3.”

12.No more needs to be said.  The 1^st ground fails.

13.The judge went on, in her Reasons for Verdict, to deal with the point raised in the 2^nd ground in the course of which she found that PW1 had been able to see the face of the person who had attempted to rob him clearly and at a close distance for a sufficiently lengthy time to make an accurate observation of him.  She did not find the discrepancy between PW1’s evidence and that of PW2 as to the number of photographs shown to PW1 to be a material matter.  It was obvious from the evidence, the judge said, that PW1 had identified the person he recognized as the robber within the “first third” of the photographs he was shown and in any event it was not clear from PW1’s evidence as to whether he knew the “actual number of photos viewed per screen” although the evidence had been there were eight photographs shown on each screen.

14.It seems to us that this was a matter of little consequence.  The real issue at trial was the correctness of the identification and it is plain that the person trying to commit this robbery had been seen by PW1 at close quarters twice in the same day and in good lighting conditions.  PW1 was then able to recognize the alleged culprit in a photograph and again on the identification parade within a short time of the offence.

Conclusion

15.We are, in these circumstances, satisfied that there was no merit in the grounds of appeal and we are equally satisfied that there is no basis for finding that the verdict was unsafe or unsatisfactory.  To the contrary, the evidence was carefully scrutinised by the judge and there is nothing whatever to cause us to interfere with the findings she made.

16.The application is dismissed.

Mr David Leung, SPP, of the Department of Justice, for the Respondent.

Mr Tong Ming W. M., instructed by Messrs S. H. Leung & Co., assigned by Director of Legal Aid, for the Applicant.