HKSAR v. Chang Po Hon

CACC 65/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 65 OF 2013

(ON APPEAL FROM DCCC 876 OF 2012)

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BETWEEN

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REASONS FOR DECISION

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1.The applicant together with two others was jointly charged with one count of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210. On 21 January 2013, he was convicted after trial in the District Court by Her Honour Judge Remedios. On 6 February 2013, he was sentenced to be detained in a detention centre. He has applied for leave to appeal against conviction. The hearing date has yet to be fixed.

2.The applicant applied for bail pending appeal. After hearing submissions, I refused the application.  My reasons for the decision appear below.

Applicable legal principles

3.Bail pending appeal is exceptional.  Generally, bail should only be granted where it appears that the appeal would be successful, or where there is a risk that the whole or a substantial part of the sentence would have been served by the time the appeal was heard : HKSAR v Lau Man Kin [2010] 1 HKLRD 336. These have been referred to as the “merits” ground and the “time” ground.  In respect of the time ground, an applicant has also to show that the intended appeal is at least reasonably arguable: see HKSAR v. Lau Man Kin at p.338 para.8.

4.The applicant’s application was based both on the time and merits ground.

Time

5.The applicant was sentenced to the Detention Centre. He is now aged 16.  Under section 4(2)(b) of Detention Centre Ordinance, Cap. 239, the period of his detention shall be not less than 1 month and not more than 6 months, to be determined by the Commissioner of Correctional Services having regard to his conduct and health.  Accordingly, the applicant will be released by 5 August 2013 the latest.  It is therefore possible that, by the time the appeal is heard, the applicant will have served all or a substantial part of the sentence.  I therefore turned to consider whether the grounds of appeal are reasonably arguable.       

Merits of the appeal

6.The facts as found by the Judge can be briefly stated as follows.  

7.On 27 August 2012 at about 6:10 am, PW1 was walking along Westland Road towards Taikooshing when someone forcefully grabbed her neck from behind and pulled her to the ground.  A male tried to snatch her handbag but she put up a resistance.  Then two other males joined in. Together the three males grabbed hold of her handbag and forcibly snatched it from her.  Afterwards, the three males fled along Westland Road in the direction of Ping Hoi Street.  Although she could not see the faces of the three males, PW1 could see their back for about 10 seconds as they were running away.  She gave a description of the colour and type of their upper garments to the police officer, namely, one of them was wearing a dark blue short-sleeve T-shirt, the other a white T-shirt and the third a black vest.

8.About 10 minutes after the incident, police officers found the applicant and the other two defendants inside a cubicle at a male public toilet in the Quarry Bay Park. The toilet was within a very short distance from Westland Road.  The three of them were seen by PW2 to be sitting and squatting inside the cubicle, surrounding PW1’s handbag. The 1^st defendant was further seen to have taken some money from the handbag and put them into his shorts pocket.  The upper garments that the three defendants were wearing correspond to the descriptions given by PW1.

9.The defendants were arrested by police.  It is the prosecution case that after arrest they had made admissions under caution. The 1^st defendant’s admission was ruled admissible whereas that of the 2^nd defendant was ruled inadmissible.  In respect of the applicant, his oral and post-recorded admissions were also ruled inadmissible by the Judge.

10.All the defendants elected not to give evidence on the general issue.

11.The principal issue at the trial was whether the prosecution had proved beyond reasonable doubt that the three defendants had robbed PW1 of her handbag. 

12.The Judge found the evidence gave rise to an irresistible inference that they were the robbers and convicted all three of them.  In the Reasons for Verdict (at para.54), the Judge said:

“There was no direct identification evidence that the defendants were the robbers. However on all the evidence before me I drew the irresistible inference on the facts that the defendants were the robbers. In summary, the defendants were found together in a one-person cubicle together with PW1’s stolen handbag, their presence in the cubicle with the handbag was a short time after the robbery, the location where they were found was very close to the robbery, they were three males and the colour and type of upper garment were identical to that as described by PW1.”

13.In the “Initial Grounds of Appeal against Conviction” dated 18 February 2013, the applicant raised four grounds of appeal as follows:

(1)  The Judge failed to have regard to the Turnbull guidelines.

(2)  The judge failed to consider the weakness in PW1’s testimony with regard to the identification of the applicant as the third robber, namely, (a) PW1 did not see the faces of the robbers; (b) PW1 could not give any description of the height, built and other features of the robbers; (c) PW1 could only see the robbers’ backs for 10 seconds when they were running; and (d) PW1 might have made a mistake, and there was some confusion in her evidence with regard to, the description of the robbers’ upper garments that she gave when she made the “999” call, a matter that the Judge had not dealt with in her Reasons for Verdict. 

(3)  The Judge erred in the analysis of the evidence and in the finding that PW1’s description of the upper garments of the robbers were identical to those worn by the defendants upon their arrest in that the garments of the defendants were not produced in evidence so that there was only in evidence a photograph showing the front of the applicant’s upper garment but there was no evidence of the colour and what was on the back of the applicant’s upper garment.   

(4)  The Judge failed to give the benefit of the doubt to the applicant in that: (a) the applicant was never seen holding, touching or pocketing any of the stolen property; (b) there was no finger print evidence to prove the applicant had held and/or touched the handbag and other stolen properties; (c) there was no direct evidence to prove the applicant’s presence at the robbery; (d) no stolen property was found from the applicant; and (e) PW1’s identification evidence was weak and unreliable.  

14.An application for bail pending appeal is not the occasion for in-depth discussions of the merits of appeal. I will not go into detailed analysis of the arguments on both sides and will instead take a broad view of the merits of the appeal.

15.The first three grounds of appeal concerned the evidence given by PW1 on the upper garments worn by the three robbers.  Miss Fan who appeared for the respondent submitted that PW1 did not give identification evidence as she had not identified any of the defendants as the robbers.  Her evidence on what she observed was the colour and type of the robbers’ upper garments was evidence of description.  Accordingly, there was no need to give a Turnbull direction and PW1’s evidence fell to be assessed in the ordinary way.  The cases of R v. Gayle [1999] 2 Cr App R 130 and R v. Byron (1999) The Times, 10 March were cited in support of the submission.     

16.In R v. Gayle at 135D-E, Henry LJ (giving the judgment of the Court) explained the difference between identification evidence and evidence of description,

“The special need for caution before conviction on identification is because, as experience has often shown, it is possible for an honest witness to make a mistaken identification. But the danger of an honest witness being mistaken as to distinctive clothing, or the general description of the person he saw (short or tall, black or white etc., or the direction in which he was going) are minimal. So the jury can concentrate on the honesty of the witness, in the ordinary way.”

17.Henry LJ further held it was not necessary to give any warning of approaching the evidence of description with caution (at 136D-F),

“That evidence was ordinary everyday evidence of what the witness had seen with his own eyes. It was general evidence. … It would make no sense for the jury to be told that they should approach that evidence with particular caution because this witness had not stood on an identification parade. This is not an area where the dangers of wrongful identification (that a mistaken witness can be a convincing one) apply. Here was an independent witness who was either telling the truth or was making the whole thing up for no obvious reason. No special warning or direction was required.”

18.I can see the force of the respondent’s submission.  PW1 did not identify the defendants as the robbers she saw.  She only gave a description of what she saw was the colour and type of the robbers’ upper garments, evidence from which it might be inferred that the three males she saw had been the defendants.  It is not evidence of identification and the guidelines in R v. Turnbull [1977] QB 224 have no application.  The evidence is to be assessed in the ordinary way by reference to the credibility of PW1, which was not really in issue, and the reliability and accuracy of her observation.  As to the latter, the Judge when assessing this aspect of PW1’s evidence, was alive to the fact that it was a brief period of 10 seconds during which PW1 could only see the backs of the robbers when they were running away from her (paragraphs 52 and 60 and 61 of Reasons for Verdict).  She was nevertheless impressed with the quality of the evidence.

19.Under ground 2(d) of the Initial Grounds of Appeal, it is said that there may have been a material error or discrepancy in the description of the upper garment wore by one of the robbers given by PW1 when she made the “999” call and the description she later gave to the police and also in court, and that the issue was not dealt with in the Reasons for Verdict.  As the transcript of PW1’s evidence was not available, the hearing of the bail application was adjourned to enable the applicant to obtain the transcript.

20.The transcript (pages 19 line P – 22 line J) shows that in PW1’s cross-examination, Mr Allan referred to what he described at the time as the transcript or console record of the “999” call, and PW1 was asked whether she agreed that when she made the call, she said one of the males wore a yellow-green T-shirt.  PW1 initial response was she didn’t recall whether she said this at the time.  She went on to say what was most important to her at the time was that the police would come quickly and maybe she was “wrong in it at the time”.  Mr Allan then asked her whether she admitted she might have made a mistake.  PW1 replied:

“A. It is only at this time when you mentioned that I told the console that one male wore a yellow-green t-shirt, only at this moment now did I come to think about it. Definitely, this would not have been something that I had seen with my own eyes and it’s only after you mentioned it at this moment that I came to remember that I said it to the console at that time. I am sure that I told the console that I had something snatched from me. I told the console where I was and I told the console towards where the people fled. Regarding the earlier sentence of a yellow-green t-shirt, I really don’t recall. It’s only after you mentioned that that I recall.” (p. 21 lines J-N)

21.This part of PW1’s cross-examination then concluded in this way:

“Q. At the time you made the 999 call - for the avoidance of doubt - that the description you first gave to the police that the male - one of the males that attacked you was wearing a yellow-green t-shirt. Do you now confirm that to be accurate?

A. It’s only after you told me that I said this then I -- did I tell them the male wear a yellow-green t-shirt, did I tell them?

Q. Yes, that’s the question, very simple, yes or no? Or you can’t remember?

A. I think if the console asked me what clothing they were wearing, I think at that time I was so scared that I did not know what I told the console.

Q. So now you’re saying you don’t know what you told the police.

A. Regarding the part that you asked me about the clothing, I really can’t remember.” (p. 22 lines D-J)

22.In re-examination, PW1 reiterated she did not recall she had mentioned “yellow-green T-shirt” in the “999” call:

“Q. So what you’re saying is you don’t recall what you said about the clothing, yes or no?

A. I think over the phone call I wanted to use just a few words to tell them what happened and to ask them to get somebody to come to help me.

Q. So you don’t recall, right, about the clothing; that’s it.

A. Actually, I can recall, but maybe at that moment I said it wrongly. Maybe I - even I did not know what I said. Now, you ask me and told me that I mention the point of yellow-green, only at this moment then I came to realise that, “Oh, I mentioned the yellow-green” point.

Q. So prior to today, you didn’t realise you had mentioned “yellow-green” until being asked about it in evidence.

A. I completely don’t recall that I mentioned the words “yellow-green”.

…

Q. Okay. I just want to clarify, so now, right, you said you completely don’t recall, right?

A. I don’t recall saying the three words, “yellow-green colour”.

Q. Okay. So you don’t recall saying that.

A. I don’t recall.” (p. 23 lines A-L)

23.It transpired a little later in PW1’s evidence that what Mr Allan had obtained was not a transcript of the audio recording of the “999” call made by PW1 (see p. 30 line R to p.36 line D).  What happened was a few days before the trial commenced on 8 January 2013, the applicant’s legal representatives asked for the audiotape record of PW1’s “999” call.  The prosecuting counsel made enquiries and was informed it was no longer available as the practice was to erase the recording after 14 days.  The applicant’s legal representatives were instead furnished with a computer printout or record of PW1’s “999” call.

24.From the transcript of PW1’s evidence at the trial, two points can be made on this submission of a discrepancy in PW1’s description of the clothing and the Judge’s failure to mention it in the Reasons for Verdict.  First, notwithstanding the criticism that it was confusing, PW1’s evidence, properly understood, is that she did not recall whether she had said in the “999” call that one of the males wore yellow-green T-shirt, but if she had, it was a mistake and not something she saw with her eyes.  Additionally, as the Judge rightly pointed out at the trial, the computer printout or record that counsel had (and, based upon which, PW1 was told she had said in the “999” call that one of the robbers wore yellow-green T-shirt) was a document compiled by a third party; its contents had not been read by or to PW1 or confirmed by her.  Further, there was no evidence of its contents and accuracy.  The document could not show what PW1 had or had not said in her “999” call.  In the circumstances, the evidence at the trial does not establish that PW1 had said in the “999” call that one of the robbers wore yellow-green T-shirt.  Accordingly, the point that there was a material discrepancy in her description of the robbers’ clothing has not been made out.  Second, it follows that it is of no material consequence on the conviction that the Judge did not mention in her Reasons for Verdict the examinations of PW1 on the “999” call.   

25.The fourth ground of appeal complained that the Judge failed to give the applicant the benefit of the doubt having regard to the several matters set out thereunder.  The point about PW1’s evidence on the description of one of the robbers’ clothing had been discussed above.  Although the applicant was not seen by PW2 to have touched, held or pocketed any of the stolen property and that no stolen property was found on him, the unchallenged evidence was that the applicant and the other defendants were inside a toilet cubicle surrounding PW1’s handbag and items originally contained in the handbag were scattered on the floor.  So far as the absence of fingerprint evidence incriminating the applicant is concerned, this is only a neutral factor.  As to the absence of direct evidence to prove the applicant was present at the robbery, the Judge was of the view that the circumstantial evidence when viewed in totality gave rise to an irresistible inference that the applicant was one of the robbers. The arguments advanced on behalf of the applicant did not demonstrate that the Judge erred in drawing the inference.      

Conclusion            

26.For the above reasons, I am not satisfied that the grounds of appeal as they now stand are reasonably arguable.  The application for bail pending appeal was accordingly dismissed.

Mr William Allan instructed by Kent Tam & Co for the applicant.

Miss Irene Fan, Senior Public Prosecutor of the Department of Justice for the respondent.