R. v. FUNG CHUN KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 94 OF 1992

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J U D G M E N T

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Mortimer, J.

1. The applicant was convicted on the 24th May 1991 of Robbery in front of Her Honour Judge Barbara Chan at the Wanchai District Court and on the 7th of June 1991 he was sentenced to a period in a Training Centre.

2. The facts of the case are simple. The victim of the robbery WONG Pui-hing was walking home in the early hours of the morning. She heard someone behind her and saw someone behind her. That person announced robbery and produced an object which she thought was a decoration tool. To cut the account short the lady tried to get away, fell down, and the robber (whoever he was) snatched her handbag. She raised a 'hue and cry'. As a result several people chased the robber. She noticed that apart from having her bag at that time the robber had a dark coloured bag himself. The main person who chased the robber was a Mr. Lau. He saw that as the robber ran away he had with him a dark coloured bag and he also saw the robber throw away a handbag. Later, that gentleman saw the robber with a weapon which he thought was a melon knife. By that time the robber announced that he had thrown away the handbag. Mr. Lau then left leaving the robber holding the other bag with what was thought to be a knife, and returned to find the police. By this time the lady victim was with the police and Mr. Lau handed her the handbag and the contents which he had recovered. Mr. Lau pointed out to the police the person who he thought was the robber. When the police came up to that person - who was indeed the applicant - he threw his own bag away and on the evidence of one witness ran away and was caught. In the dark triangular bag which he had thrown away were a number of tools. There was one in particular which was by that time between the lining and the side of the bag. That tool was seen by the Learned Judge in the Court below and from her own inspection she said that it had the size and shape of a melon knife and could well look like one under poor lighting. Also she thought that it could be seen as a decoration tool.

3. Having heard all this evidence, the Learned Judge convicted the applicant - finding in effect that she was sure that the person pointed out by Mr. Lau and who ran away, threw the bag away, and was arrested by the police was indeed the same person as the robber. She relied not upon the identification of Mr. Lau but upon the circumstantial evidence - the evidence that the robber had a weapon that the victim thought was a decoration tool, that the robber had a dark coloured bag when he ran away with her bag; also Mr. Lau's evidence that he saw the robber run away and throw away the victim's bag. There was a break in his observation but when he returned the person who he pointed out threw away when running off a bag which although not identified exactly - was similar,to that which had been seen earlier. In the bag was a weapon which, if not observed very carefully, could look either like a melon knife or a decoration tool. This coupled with the acts of the applicant in running away and throwing away his bag (as the Learned Judge said) to distance himself from the incriminating evidence in the same way as the robber had indeed thrown away the victim's bag to distance himself from that piece of evidence. She found that the only inference she could draw from all that circumstantial evidence was that she was sure the applicant was indeed the robber and she convicted.

4. Mr. Allan seeks to disturb that conviction by submitting that there must be a doubt because of the difficulties of identification. That matter can be dealt with easily. It is quite clear from the Learned Judge's reasons, first that she puts no reliance whatsoever upon the victim's identification. The victim had in fact picked out the applicant on an identification parade, but the prosecution did not seek to rely upon that. Although it is not clear from the papers, we have no doubt the reason was that the victim picked out the person whom she later saw arrested. It is also clear that the Learned Judge placed no reliance upon the identification of Mr. Lau (P.W.2) in picking out the person who he said at the time was the robber. She relied upon the evidence that we have already outlined.

5. Mr. Allan relied also upon the break in the chain of Mr. Lau's evidence in that he did not have that person in sight all the time and the difficulties in specific identification of the applicant's bag and the applicant's weapon. Further in his skeleton argument and in argument here today, he relies upon certain inconsistencies in the evidence, submitting in the end that the Learned Judge failed to warn herself sufficiently about the dangers in the circumstantial evidence as it was circumstantial evidence leading to an identification, and that in those circumstances the verdict ought to be quashed.

6. In our view, there is nothing in those matters. The Learned Judge approached this particular problem with the greatest care. She was very careful not to fall into the trap of relying upon the victim's identification on an identification parade and upon Mr. Lau pointing out the man who he said was the robber at the time. The circumstantial evidence upon which the Learned Judge relied amounted in the end to an overwhelming case against the applicant.

7. The application is in our judgment without substance and leave to appeal in these circumstances is not granted.