HKSAR v. Lam Pok Yan and Another

CACC000097/1999

CACC 97/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 97 OF 1999

(ON APPEAL FROM DCCC NO. 1354 OF 1998)

Coram: Hon Stuart-Moore VP, Mayo, VP and Wong JA in Court

Date of Hearing : 17 February 2000

Date of Judgment : 17 February 2000

Date of Handing Down Reasons for Judgment : 2 March 2000

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REASONS FOR JUDGMENT

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Wong JA:

1. On 17 February 2000 we dismissed the applications and now give our reasons.

2. The applicants, LAM Pok-yan and LI Po-kin who were respectively D1 and D3 at trial were convicted before Deputy Judge Thomas in the District Court of two charges (Charges 2 & 3) of burglary. They were jointly charged with TAM Kan-chiu (D2) and CHAN Chu-wai (D4). On conviction, D1 and D3 were each sentenced to imprisonment for three years on each count, to be served concurrently. D1 applies for leave to appeal against both conviction and sentence. D3 applies for leave to appeal against conviction only.

3. The prosecution case was that the police started surveillance on a number of individuals as early as September 1998. During the afternoon on 3 October, D1 was seen in a taxi, GY3033 and picked up three other males in the Tai Wo Hau area. They were D2, D3 and D4. The applicants and D2 were seen again in a restaurant in Mongkok in the early hours of the morning of 4 October. On 9 October, observations were kept by a number of police officers during the evening. D1 was seen driving the taxi in the Sai Kung area with D2, D3 and D4 on board. The taxi pulled into the mouth of Hing Keng Shek Road and waited there for about ten minutes. It then drove along Hiram's Highway before turning into Ho Chung Road where it stopped in the vicinity of the development known as Villa Goldfinch. PC 50552 (PW1) was keeping observation in a village house diagonally opposite House No. 3 of Villa Goldfinch. He saw D3 on the balcony of the 3rd floor of House No. 3 watching at the entrance of Villa Goldfinch. PW1 called his colleague through their beat radios and PC 53805 (PW2) joined him and took over the observation. From there, PW2 saw D3 in the same position and he was later joined by D2 and D4 who came onto the balcony through the glass window of the apartment. They talked for a short while and went inside. Later the lights were switched off and the three men were seen climbing over the balcony and clambered down the drainpipe.

4. Another officer saw the three men walk out of the entrance of Villa Goldfinch and boarded the taxi and D1 drove it off out of Ho Chung Road into Hiram's Highway. At about 10:00 pm the taxi was seen to stop outside a development known as South View in Tai Po Kau. The observing officer, PW 4 saw the passengers get off the taxi and went into some bushes. The taxi drove off and returned some 20 minutes afterwards. The passengers got back into the taxi and it drove off.

5. At about 10:45 pm the taxi driven by D1 was intercepted and D1 together with the two passengers, D2 and D3 were arrested. D4 was arrested about 20 minutes later.

6. D1 gave evidence. He said he was a taxi driver by profession. He was not aware of the commission of any offences. He had not collected D2, D3 and D4 as his passengers.

7. Mr YEUNG who appears for the applicants advances three grounds of appeal. The first and third grounds concern D3 whilst the second concerns D1. It is, perhaps, convenient to deal first with the case of D1 whose case bears no relation to Grounds 1 and 3 and whose identity, unlike D3, is not in dispute.

8. The only complaint raised on behalf of D1 is that there is a complete absence of evidence to show either knowledge on the part of D1 or any agreement to act in a joint enterprise. As we have pointed out, there is no dispute before us that D1 was the driver of the taxi taking D2, D3 and D4 to the various places on 9 October. It is necessary to refer to the findings of the judge regarding his case. At p.48 of the transcript, the judge said :-

" I reject the evidence of D1. He gave evidence that he did not know the other defendants. It is clear from the evidence of the observing officers that D1 was continually in the company of the other defendants and that he met D2 and D3 socially.

The evidence adduced by the prosecution clearly shows that D2, D3 and D4 were committing the burglaries contained in charges 2 and 3. Is this the case with D1? He was not seen to be taking part in the burglaries himself. He clearly provided the transport for the others but was he part of the joint enterprise? In my judgment the prosecution has proved that he was. His actions were so far removed from those to be expected of a taxi driver going about his normal business activities that I have no doubt whatsoever that he fully knew what was going on and made himself a part of the joint enterprise."

With this finding we agree. It would be perverse to do otherwise. This ground has no substance and must fail.

9. The other two grounds which relate to D3 can be dealt with together. With regard to Ground 1, Mr YEUNG submits that the prosecution's case is a clear case of "dock identification". Dealing with identification, the judge first said at p.34 :-

"These three other males were identified by name although D1, D2 and D3 were also pointed out in the dock by two officers, PW4, Sergeant 23265 and PW5, Sergeant 14062."

He returned to this at p. 46 :-

"I now move on to the quality of the identification. Clearly much, if not all, of the relevant observation and identification was made at night. Much of it was made when the persons identified were inside a car. At times, the vehicle was moving. However, the identifications were made over a lengthy period by trained persons and a number of the identifications were made at Villa Goldfinch where the persons making the observations were close and where those being observed were on foot and were static. Mr CHENG and Mr WONG submit that no evidence was adduced as to the physical appearances of the persons identified. However, by the time that the witnesses gave evidence they had followed the persons identified for some considerable time, those persons were arrested according to the witnesses and three of the four defendants were pointed out in court. There is no magic in the term 'observation' as opposed to the more usual term 'identification' but I am satisfied that the quality of the identification was good and that such identification evidence is reliable. I am also satisfied that the evidence of identification is also honestly given."

10. From these passages, it is clear that the judge was not relying on any evidence of "dock identification" although he referred to the evidence of the two sergeants who pointed out D1, D2 and D3 in the dock. Rather, the judge was relying on the totality of the observation evidence by the officers over a long period of time to come to his conclusion. In this connection, it must also be noted that the identity of D3 was never challenged during the evidence either by way of cross examination or otherwise and D3 did not himself give evidence.

11. In relation to Ground 3, Mr YEUNG submits that the real problem in the trial is whether it was admitted that the shoe prints of D2 and D3 were lifted in the burgled premises. The judge dealt with this aspect at p.47 :-

"I accept, however, Mr CHENG's submission that the scientific evidence only goes so far as to say that the footprints found are consistent with the pattern of the shoe of D3. Equally, it has to be said that, taken with the other evidence, it is a powerful piece of evidence against D3."

In support of his argument on this ground, Mr YEUNG has taken us through the defence's final submission, D2's cross examination, the affirmations of D2 and D3 and a letter from Mr CHENG, who was D3's counsel at trial. Suffice to say that we have considered them and come to the conclusion that the shoe-print evidence was properly admitted as an agreed fact pursuant to s.65C of the Criminal Procedure Ordinance, Cap.221.

12. We agree with the judge that the shoe-print is a powerful piece of evidence against D3. This together with the identification evidence establishes a most formidable and overwhelming case against D3. The grounds argued on behalf of D3 also fail.

13. We are satisfied that the convictions against both D1 and D3 are neither unsafe nor unsatisfactory. Their applications for leave to appeal against conviction are dismissed.

Sentence

14. D1 also applies for leave to appeal against his sentence. It is submitted on his behalf that he should be given a lighter sentence than the other defendants because he has a much better record and he played a much more minor role. It is true that his criminal record is, by comparison, more better than the others. But it is not a powerful mitigating factor for the commission of a serious crime such as this.

15. In respect of the second point, the judge found that there was a joint enterprise in which all the defendants participated and shared equal responsibility. D1 was in exactly the same position as the driver of a get-away car in a bank robbery who cannot claim credit because he did not go into the bank to point a gun at the teller.

16. It is well-established that the starting point for domestic burglary is three years imprisonment after trial but this may be adjusted upwards if there are aggravating factors. In our view, the sentence imposed on the applicant is, in the particular circumstances of this case, lenient, having regard to the fact the offences were well planned and organised and were committed with a degree of professionalism. There is no merit in the application and it is dismissed.

Representation:

Mr Alain Sham, S.A.D.P.P. for DPP

Mr Y.C. Yeung inst'd by M/S Josip Ma & Co. for the Applicants/D1 and D3