HKSAR v. Kwok Chi Fung

CACC 292/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 292 OF 2010

(On Appeal From District Court Criminal Case No. 37 of 2010)

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BETWEEN

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Before : Hon Cheung, Hartmann JJA and Lunn J in Court

Date of Hearing : 26 January 2011

Date of Judgment : 26 January 2011

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

1.The applicant was convicted after trial by H H Judge Longley of the offence of robbery. He was sentenced to three years’ imprisonment. The applicant now seeks leave to appeal against conviction.

The facts

2.The facts show that on 13 April 2009, two youths, Wong and Lau, were accosted by two men as they were walking towards Sun Chui Estate in Shatin at about 7:30 p.m.  One of the two men was later identified by Wong and Lau as the applicant in this case. 

3.The applicant at that time had gold tinted hair and was carrying a Gucci bag.  He repeatedly asked the two youths whether they ‘followed’ anyone.  Wong understood that he was asking whether they were members of a triad society.  They replied that they did not follow anyone.  The two men then asked the youths to go around a corner to a walkway where there was a railing which was quite dark.  Wong followed the instructions because he thought that after answering the men’s question they would be allowed to go.  He was nervous at that time.  The applicant then alleged that his ‘younger brother’ had been hit by other people and he asked the two youths whether they were involved. Wong said that he regarded this remark as a threat.  The applicant said that a phone call would be made to call other people to come to the scene.  He took out a mobile phone as if to make a call, placed to his ear but did not say anything.  The applicant again asked Wong and Lau if they followed anyone. Wong again denied that he did.  Whereupon the applicant scolded him with foul languages and repeated the same question.  He then demanded the youths to take out both their mobile phones.  The youths complied with the demand.  

4.Wong said that he considered that they had no alternative but to hand over the phones or they would be beaten unless they did so.  As soon as the two men received the phones they told the youths to leave quickly or they would be assaulted.  The youths left the scene and they made a report to the Police.  

5.About one month later on 28 May 2009, Wong and Lau were walking in the New Town Plaza in Shatin.  Wong recognised a man who walked past them as being the applicant who was involved in the incident on 13 April 2009.  Wong recognised his face and noted that he had gold tinted hair and was carrying a similar bag.  Wong and Lau both looked at each other.  Wong asked Lau whether he was the man who had been involved in the robbery of their mobile phones and Lau replied yes.  They followed the applicant to a restaurant and called the Police.  After the Police arrived Wong was told by the Police to enter the restaurant ahead of the Police and approached the man.  Wong followed the instructions and the Police then arrested the applicant.  

6.Wong, Lau and the applicant were taken to the Police Station in two separate cars.  While Wong was sitting in a police vehicle he could see the side of the applicant’s face.  At the report centre at the Police Station, Wong again saw the applicant being brought into the centre and taken to a room near where he was sitting.  Wong said that he was able to see the applicant from time to time inside the room when the door was open.  

7.Later, on 9 September 2009 Wong identified the applicant at an identification parade.  

8.Lau also gave evidence similar to that of Wong.  

The mother’s evidence

9.The applicant did not give evidence but called his mother as an alibi witness.  The mother’s evidence was that between 7 p.m. and 7:30 p.m. on 13 April 2009 the applicant was sleeping at home while she was cooking dinner.  They had dinner at 8 p.m. and the applicant had not left home between 7:30 p.m. and 8 p.m.  The mother said that when the applicant was released on bail on or after 28 May 2009, he had told her about the incident and mentioned that he was with her that day and questioned how he could have been accused of the crime.  The mother said that she remembered that evening because on the previous day, i.e. 12 April 2009 she had returned from a visit to the Mainland with the applicant and her husband.  There was no dispute that the applicant had returned to Hong Kong from the Mainland on 12 April 2009.

The finding

10.The Judge found that Wong and Lau had correctly identified the applicant as one of the two men who had robbed them.

Fear of being subjected to force

11.The first challenge to the finding by the Judge is that he had wrongly held that at the time of the offence the applicant had put the two youths in fear of being then and there subjected to force when there was no evidence of a threat being uttered nor had Wong testified that he felt he was threatened before they handed out their mobile phones.

12.This issue was not raised at all at the trial.  As the Judge stated in his Reasons for Verdict, counsel for the applicant (not Mr. Wong who only appeared at this appeal) did not dispute that the two youths were the victims of the robbery.

13.In any event, in our view, the Judge was right in his finding that the words and conduct of the applicant and the other man had left, and were intended to leave, the two youths in no doubt that they would be assaulted if they refused to hand over their mobile phones.

14.In our view the whole sequence of events from the time the youths were stopped to their departure after leaving the scene must be looked at together in considering this issue.  The youths were repeatedly questioned with triad language : they were asked if they were ‘followers’ of anyone.  They were asked whether they were involved in hitting the applicant’s ‘younger brother’.  They were also scolded with foul languages.  The applicant also acted as if he was calling more people to the scene to deal with the two youths.  By the use of triad language, the applicant must have intended to give the impression that he had triad background and the questions asked by him must have been intended as a threat.  Commonsense dictates that these questions were intended to show that the applicant was trying to seek revenge for the wrong done to his ‘younger brother’. This clearly connotes the threat that force could be used on the two youths. After the youths had handed over their mobile phones they were told to leave quickly or they would be assaulted.  This must be a continuation of the earlier threat.  Clearly the Judge cannot be faulted for holding that the youths had been put in fear of being subjected to force.

15.Counsel for the respondent relied on the Hale (1978) 68 Cr. App. R 415 line of cases which were also applied in Hong Kong in R. v. Keung Sai-chung & Ors. (CACC 19/1985).  The issue there was on the continuation of the act of appropriation.  In our view it is not necessary to consider these authorities.

Alibi evidence

16.The second challenge is against the Judge’s rejection of the evidence of the mother.  It is argued that the Judge had failed to properly evaluated the evidence of the mother.

17.The Judge held that,

‘ 51. I found I could attach no weight to Madam Shek’s evidence. If her evidence is true that after telling her about his arrest, the defendant had mentioned that he could not have been involved because he was with her, I am satisfied that she was simply doing her best to support his account without having any real recollection of the events of 13 April.

52. Bearing in mind her evidence that she cooked dinner for her family almost every night I do not believe that she would have had a recollection of what the defendant was doing on a specific night some six weeks earlier even if she had returned from the Mainland the previous day.  Still less do I believe that she would had been able to remember the specific time she claimed.’

18.It is argued that the Judge failed to consider the evidence of the mother that she could recall what happened on 13 April 2009 because she seldom took leave.  She said that over that period of time she took four days’ leave.  After she came back from the Mainland on 12 April 2009, she took leave and only returned to work on 14April 2009.

19.Clearly this is a challenge on the Judge’s assessment of the credibility of a witness.  This assessment is clearly within the province of the Judge.  The Judge had clearly recognized that 13 April 2009 was the second day of her return from the Mainland and that she was then on leave.  Even with that the Judge was still entitled to reject her evidence that she would have had a recollection of what the defendant was doing on that specific night.  The applicant’s argument has to be rejected.

Identification

20.The third challenge raised by the applicant is on the issue of identification.  It is said that the Judge had not properly evaluated the evidence of identification of the two youths and had failed to consider that their observation was carried out under difficult situation.  Further it was said that the identification parade was unfair and unreliable because the Police had failed to keep the applicant away from the views of the two youths after his arrest.

21.We disagree.  The Judge was clearly aware of the need for caution on the issue of identification.  Nonetheless he accepted the identification evidence of the youths.  When the youths were stopped there was street lighting for them to see the faces of the two men clearly.  Wong had seen the applicant after the applicant first told him to stop.  He then talked to him face to face.  Lau could also see the faces of the two men clearly.  While there was slight difference in the estimation of time by Wong and Lau of the conversation, their evidence clearly showed that it was not a fleeting glance situation.

22.When Wong and Lau followed the men to another spot, the Judge found that although the place was dark, they could see the two men clearly and the conversation lasted another five minutes (according to Lau) and eight to ten minutes (according to Wong). 

23.Although Wong and Lau felt they were being threatened, it does not mean they could not see the face of the applicant clearly.  They were able to recognize the applicant about one month later.

24.Wong was the one who led the Police to the applicant.  He and Lau then had the further opportunity of observing him at the Police vehicle and in the Police Station. 

25.The strength of their identification of the applicant does not depend on the identification parade although it also strengthens the correctness of their identification.

Conclusion

26.There are no merits in the application.  The application is accordingly dismissed.

Mr. Man Tak-ho Jonathan, SPP of Department of Justice, for the Respondent

Mr. Philip Wong, instructed by Messrs Anthony Kwan & Co., for the Applicant