The Queen v. Wong Kin Man

CACC000082/1988

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BETWEEN

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Coram: Fuad V-P., Hunter, J.A., Macdougall, J.

Date of Hearing: 24th June 1988

Date of Delivery of Judgment: 24th June 1988

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J U D G M E N T

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Macdougall, J. :

1. The applicant was convicted of robbery after a contested trial in the District Court before Her Honour Judge Chua.

2. The evidence before the judge was that sometime between 7.30 and 8.00 on the evening of the 16th November 1987 a 60 year-old woman, an eighteen year-old school girl and a man stood waiting for a lift in a high-rise residential building in Quarry Bay. When the lift arrived, all three entered. According to the olderwoman, the man was carrying a plastic bag which contained two packets of instant noodles, a pair of chopsticks and a bottle of mineral water. He produced a knife and demanded that the girl hand over her money and bracelet. He then levelled the knife at the older woman and demanded money from her. As she was attempting unzip the many compartments in her handbag, the robber became impatient and snatched it from her, telling her to hurry up and not to play tricks. He then examined every compartment and after having extracted $1,500, threw down the handbag and fled when the lift reached the 6th floor. The girl gave very much the same account of the incdent except that she did not see what was in the plastic bag that the robber was carrying, and that the robbery began at the 6th floor.

3. They reported the matter to the police and, after having made statements, assisted a police officer to assemble an identikit of the robber.

4. The following day around 4 p.m., the school girl spotted the applicant standing alone near a lift on the other side of the building. She recognised him as the man who had robbed her. He then moved away. The girl immediately contacted the older woman and told her that she had seen the robber. They agreed to return to the general location where the girl had seen the applicant in order to find out whether the older woman could find and recognise the robber. If she succeeded in doing so, she would give pre-arranged signal to the girl, who would be standing some distance away, to summon the police. Without having had the applicant pointed but to her, the older woman walked around the area and, as soon as she saw him, recognised him as being the robber. At that time he was sitting, talking with two other men. She gave the signal, and when a police officer arrived both women pointed out the applicant to him and the arrest was made.

5. Both the girl and the older woman testified that they were positive that the applicant was the man who had robbed them. The girl said that there was sufficient light in the lift to enable her to see the robber and that she had looked at him while he was robbing her. When he turned his attention to the older woman she continued to look at him until he noticed that she was doing so and ordered her to avert her gaze. She said that his speech was not clear. The older woman said that she had watched him as he was robbing the girl and that later, when he turned to her, she was face to face with him for "a long time". She also noticed that, although he spoke fluent Cantonese, he had a Fukienese accent, particularly when he used the words "hurry up", which he uttered several times. It subsequently came to light that the applicant is Fukienese and that he gave his testimony in that dialect.

6. The older woman was clearly most observant as she was able to give a detailed description not only of what the robber was carrying but also of what he was wearing. Moreover, she said that she had seen him acting furtively in the lift lobby on two previous occasions some ten and three days respectively prior the robbery. On each occasion five or six persons had entered the lift, but the applicant declined to accompany them and remained in the lobby. This had aroused her suspicion. The girl testified that the identikit bore, a 60%-70% resemblance to the robber, whereas the older woman said there was an 80% similarity.

7. The judge was most impressed with both witnesses and found them to be honest and convincing. Although she correctly appreciated that the circumstances of the, robbery were such that it could not properly be described as a fleeting glimpse situation, the judge stated that she was fully aware of the possibility that even convincing and convinced witnesses may be mistaken in their identifications. She noted that the identikit drawing bore a strong resemblance to the applicant whom she observed had most unusual facial characteristics. Having seen the applicant in this court, we feel obliged to say that we agree with her.

8. The judge was also of the opinion that the fact that the applicant was Fukienese, that both women had independently and instantly recognized him on the following day outside the same building in which the robbery had occurred and that the older woman had seen the robber on two previous recent occasions acting suspiciously near the lift, reinforced their testimony that they had clearly seen him at the time of the robbery.

9. The applicant testified that he had arrived in Hong Kong from Fukien on the 1st November 1987 to visit his sister. Although he was present in Hong Kong on a tourist visa, he began employment as a casual decoration worker on the 6th November. He denied that he had committed the robbery and claimed that on that day he had arrived home at about 6.40 p.m. where he sew his sister. Shortly afterwards, his two nieces and their father arrived. One of the nieces then accompanied the applicant on a visit to her elder sister, HUI Lai-ching, who lived some 10 minutes walk away. There, he met her parents-in-law and two sisters-in-law. On his way back home, he and the niece met a fellow Fukienese YEUNG Sai-hok and his grandchildren and, after having spoken to them, arrived home about 8.10 p.m.

10. In support of his alibi defence, the applicant called his sister, his niece, her elder sister, HUI Lai-ching, and YEUNG Sai-hok. The judge did not believe the applicant and his witnesses. She was unimpressed with their demeanour and formed the view that, although they all denied having spoken to each other about what had happened on the 16th November, their evidence was well rehearsed. In her exhaustive and closely reasoned Reasons for Verdict, the judge concluded that there was no doubt that the two victims had not been mistaken in identifying the applicant as the robber. She therefore convicted him.

11. The applicant now seeks leave to appeal against his conviction. Mr. Robert Buchanan, who represents the applicant, has submitted 6 foolscap pages containing 13 grounds of appeal, all of which, in our view, are so lacking in merit that we do not propose to embark upon a detailed analysis of them. Suffice it to say that they include complaints that there was no proper or sufficient pre-trial identification of the applicant by way of an identification parade, that the judge did not adopt the correct approach to the evidence concerning the identification of the victims; that she placed undue weight on the fact that the applicant was Fukienese; that she failed properly to evaluate the testimony of the victims and, in particular; to attach proper weight to the inconsistencies in their evidence; that she wrongly rejected the testimony of the applicant and his witnesses, and that, being concerned at the ease with which all the alibi witnesses were able to remember so clearly the details of the events of 16th November, she had invited counsel for the applicant to address her on this aspect in the course of his closing speech.

12. There was also a complaint concerning the reception in evidence of the identikit drawing. That the two victims had assisted on the composition of this drawing of the robber was raised for the first time in the trial by defence counsel (who was not Mr. Buchanan) during the course of his cross-examination of the older woman and following questioning of her as to the description she had given of the applicant in the statement she made to the police on the 16th November. An identikit was then produced and the witness identified it is being the one she and the girl had assisted the police in composing. Mr. Buchanan submitted that there was no evidence from the police officer who assisted in its composition and that therefore the identikit was inadmissible. No authorities were cited for this proposition. In our view it is untenable.

13. We have. carefully considered both the evidence and the meticulous analysis of it by the judge in her Reasons for Verdict, and have come to the conclusion that none of the complaints is justified. The application for leave to appeal against conviction is therefore refused.

Representation:

Ms. L.M.A. Shine for Crown Prosecutor

Mr. Robert Buchanan assigned by D.L.A. for the appellant.