Mak Chor Lap and Another v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 171 OF 1973

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Coram: Pickering, J.

17th April, 1973.

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JUDGMENT

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1.  The two appellants, who were auxiliary policemen at the time of the commission of their alleged offence, appeal against both conviction and sentence upon a joint charge of robbery. The first appellant was sentenced to two years, the second to twenty-one months imprisonment.

2.  The victim of the robbery was a 16-year-old delivery boy who was riding a bicycle along Prince Edward Road at about 10 p.m. on 28th November 1972. He testified that when he came close to a bus stop near Mongkok Police Station, someone shone a torch and asked him to stop; whereupon, lifting his head, he saw two policemen in uniform some six to seven feet away. He propped up his bicycle against the wall, as asked, and was then informed by one of the policemen that he was to be searched. Upon being asked to do so, he raised his hands but the policeman then said, “not here there are so many people here. Go inside that side lane”. The youth did as he was instructed and inside the lane was asked to put up his hands, to spread his legs and face the wall; there were no other people in the lane, which the youth described as “quite dark”. According to his evidence, he was searched first by the second appellant and then by the first, and the second appellant took his money from his pockets, that is: $15 from his right hand pocket and four $1 coins and three 10¢ coins from a small pocket on the right hand side of his jeans. At that stage, he says, he turned his head, whereupon the first appellant punched him once on the left lower waist and he was asked by the second appellant to “apologise to the Sir”. He apologised to the first appellant, who told him to put his bicycle away, whereupon he pushed it to the main road and left the scene.

3.  This young man had the good sense to report the incident and he was instructed to go to Mongkok Police Station. There, from a more or less informal parade of 25 auxiliary policemen, he was asked to identify the two men who had robbed him. Each of the men on parade had been requested to remove his shoulder number tag, whilst those who wore spectacles had been required to remove them. The significance of this is that the victim had told the police the number of one of the two policemen whom he claimed to be involved, and had said that the other wore spectacles.

4.  A large number of grounds of appeal were advanced by Mr. Eddis on behalf of the second appellant. In my view there is no real substance in any of them, and I do not propose to dilate upon them. Thus, it is true that there were discrepancies in the evidence of P.W.1, Inspector Yuen, and between his evidence and that of P.W.2, Auxiliary Inspector Kwong, as to details of what happened at Mongkok police station, but they were not matters of substance which could possibly affect the verdict. It is true also that the learned magistrate described the two appellants as having been proved to be the only two police constables on their beat at that time whereas, in fact, a third police constable was on duty on the same large beat at the same time. Again the learned magistrate appears to have placed some over-emphasis upon what he described as the second appellant’s “continued refusal to give any explanation of events and even to give a straight denial”. These, however, are peripheral matters as were all the grounds of appeal.

5.  The substance of the conviction lay in the entirely positive identification of the two appellants by the victim within a very short time of the commission of the offence. The first appellant was actually identified by number and both visually despite the fact that both had removed their shoulder-tags, and the second appellant had removed his spectacles, for the purpose of the informal parade. The learned magistrate, who had the very considerable advantage of seeing and hearing the witnesses, was considerably impressed with the victim’s evidence and was indeed enthusiastic about his merits as a witness. There are absolutely no grounds for interfering with the conviction of the second appellant.

6.  In so saying I am not ignoring Mr. Eddis’s other grounds of appeal but, as I have said, I do not propose to dilate upon them for the reason that there is no substance in them.

7.  Mr. Lawrence Leung, for the first appellant, adopted the Additional Grounds of Appeal of the second appellant and, as his second ground of appeal, claimed that the identification of the appellants by the complainant was “unsatisfactory and worthless”. I have already expressed my view of the value of that identification, which view coincides with that of the learned magistrate. As to Mr. Leung’s complaint that the identification by the victim of the money taken from him by the appellants was inconclusive and therefore insufficient, the learned magistrate specifically said that he did not rely upon this identification.

8.  It is true that the learned magistrate indulged in a certain amount of cross-examination of the first appellant which probably went further than a mere necessity to clarify the ambiguities. That fact, however, has no relevance to the central core of the conviction, which was the positive identification by the victim of the two appellants very shortly after the occurrence of the robbery. That identification, fully accepted by the learned magistrate, is ineluctable and the appeal of the first appellant against conviction, is also dismissed.

9.  The sentences imposed upon the two appellants were, as I have said, two years and twenty-one months imprisonment respectively. These are entirely appropriate sentences and do not merit interference from this court.

The appeals of both appellants against conviction and sentence are dismissed.

Leung (Sousae & Co.) for 1st appellant

Eddis (Gunston & Chow) for 2nd appellant

Caird, C.C., for respondent.