HKSAR v. KWOK HIU KEUNG

IN THE COURT OF APPEAL

1997, NO. 170
(Criminal)

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J U D G M E N T

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Saied, J. (giving the judgment of the court):

1. This Applicant was out of time in filing his application for leave to appeal by one day. We extended the time and proceeded to hear the application.

2. The Applicant was convicted in the District Court of the offence of robbery contrary to Section 10(1) and (2) of the Theft Ordinance. He was one of the three men jointly tried on a charge sheet, the 1st charge of which was the robbery. The remaining three charges were against them individually contrary to Section 38(1)(b) of the Immigration Ordinance with which this application is not concerned.

3. The evidence against the Applicant was short and was to the effect that on the 23rd April 1996, the victim Lai Wing, PW1, who was sleeping in his hut, woke up to find in the light of the small bulb which had been left on during the night, two masked men, the taller of whom holding a knife against his face and who told him not to say anything and the other who was fatter was at the end of his bed searching the area of the cabinet. He claimed to have seen a third man, the smallest of the intruders from the distance of two and a half meters, rummaging among the chest of drawers at the end of his bed. PW1 was unable to see this man's full face because the man had either his back or his profile to him. But he did see that he was wearing his daughter's leather jacket. Some three hours later, he was able to identify him as this Applicant. He was the first to leave the bedroom to go into the sitting-room. He took some laisee money from the altar, also some food and searched the cupboard in the sitting room.

4. After the other two had gone into the sitting-room, the taller man sat at the door way of the bedroom still holding the knife, keeping watch over PW1. Then the second man tied up PW1's hands with shoelaces and after the Applicant had washed his face and the other two had taken a shower, then all three left.

5. PW1 was able to dial 999 and the police responded and went to the village where they were able to arrest the three men who were still in the village at about 4:41 a.m. And later PW1 identified this Applicant.

6. The Applicant gave evidence and he said that he and the other two had sneaked together into Hong Kong but he had parted company with them upon reaching the village. He told the court that he had not eaten for three days and driven by hunger, he entered the victim's hut through the main door which was then half open. He did not see anyone in the sitting-room where he then proceeded to eat an orange and drink some water. He maintained that he did not go to check the bedroom as did not want to run the risk of waking anyone up. Instead, he went into the kitchen to look for food. Finding nothing there, he took a bar of soap and a can of hair spray, various items including money, watch, camera, and radio etc, from various places in the sitting room.

7. He said that upon hearing some noises from the bedroom, he took a glance into that room from the doorway and saw some people inside, and he then left. He denied that he was never inside the bedroom and said he knew nothing about the knife and the shoestring. And he maintained that he did not see what the other two men inside the bedroom were doing.

8. It is submitted on his behalf that there was insufficient evidence of identification to enable the court to be sure on this issue, in that:

(1) it was necessarily dependent in part upon a process of elimination of the other two men,

(2) the circumstances under which PW1 saw the men were not favourable, and

(3) the identification of the Applicant to the police was made sometime after the crime had been committed and was made not on the basis of "face" but on the basis of the comparative body sizes of the individuals and because the Applicant was (according to PW1) wearing this same jacket as he wore during the incident.

9. Mr. Spicer, for the Applicant, this morning quite frankly conceded that he could not find any fault in the trial judge's reasoning but he referred to two authorities which dealt with identification in such circumstances. We think that in view of this concession, it might be useful if we were to deal briefly with the matter of identification and joint enterprise.

10. The first question clearly was of the correctness of the victim's identification of the man he later identified as this Applicant whom he had seen in his bedroom at the time he was being held at knife point by one of the other two men. The trial judge dealt with the issue of the jacket and mentioned the conflict in the evidence about where it actually was, PW1 saying it was hanging on the wall at his bedroom, the Applicant saying it was on the sofa in the sitting-room. But the fact of the matter is that the Applicant on his own admission picked up some items from the sofa and the sitting-room. The learned trial judge had this to say:

"PW1 impressed me to be a very observant person, I accept that he knew where the leather jacket was. Even allowing room for mistake or misrecollection, I find as a fact that by the time PW1 was woken up, this 3rd person had already put on his daughter's leather jacket"

11. The trial judge was, in our opinion, entitled to make that finding. It is true that PW1 next saw the man wearing the same jacket some three hours later after he had been arrested by the police. This case is distinguishable from R.v. Oscar [1991] Crim. L.R.778, on facts, firstly, in so far as the difference in the lapse of time between the incident and the identification is concerned, in Oscar that being within a few minutes; secondly, unlike that case the trial judge does not appear to have warned herself of the dangers of such confrontation evidence which quite clearly amounted to the witness identifying a man who had been caught by the police and so it was more likely to make a positive but mistaken identification. See the case of R.v. Rogers [1993] Crim. L.R.386 which cites Oscar.

12. Notwithstanding the omission of such warning, the trial judge had found PW1 to be "not one to exaggerate", "a very obervant person" and "an honest and reliable" witness. She had seen and heard the witnesses and was able to make such findings relating to the creditability and reliability of the witness. She accepted the identification of the Applicant as the man he had described as being the 3rd person.

13. Considering all the evidence, the time gap between the incident and the identification, the fact that it was still in the small hours of the morning and the man identified as this Applicant was still wearing the same jacket, we are of the opinion that the informal identification did not, in the circumstances of the case, give rise to any unfairness to the Applicant and that the trial judge quite properly relied on that identification.

14. In so far as the other issue of joint enterprise is concerned, the trial judge's basis for her conclusion was (1) the Applicant's explanation which she found in all the circumstances unconvincing of having fought with his conscience for about half an hour, and over-come by hunger going to PW1's hut to steal food but ending up stealing various items of property; (2) notwithstanding his claim that he did not check the bedroom lest he woke up anyone, upon hearing some sound from the bedroom, he went in to have a glance instead of fleeing immediately.

15. The learned judge found and in our opinion rightly that the Applicant had tried unsuccessfully to play down his role in this incident and she ended by saying:

"It is quite right from the description of the roles played by all three in this incident, an irresistible inference has to be drawn is that the 1st Defendant (that is this Applicant) was part of the joint enterprise to rob even though the knife used to threaten PW1 in fact was PW1's".

16. We are satisfied that on the evidence which she had accepted the learned trial judge was entitled to draw that inference which proved the Applicant's active participation in the robbery, together with the other two men.

17. In the judgment of this court, there is nothing in this application which would merit the court interfering with the conviction in any way. This application is refused.