R. v. LI TAK LUNG and Others

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.116 OF 1995

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J U D G M E N T

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1. The three appellants pleaded guilty to unlawfully remaining in Hong Kong. They were also found guilty of robbery after a trial. They all appealed against conviction on the count of robbery.

2. The Crown's case is this : the victim was robbed in the early hours of 11th July 1994 inside a pedestrian subway at the junction of Nathan Road and Soy Street in Mongkok. He said he was robbed by three men : the one who was behind him grabbed his neck, the second one who was on his left tried to snatch his bag but he resisted, and the third one who was on the right punched him in the eyes so that he let go of the bag. The three men then fled and he gave chase. At the later stage, the victim, with two persons assisting him in the chase caught up with two of the men, who were now the 1st and 2nd defendants. The third one, according to the victim, had gone. While they were there, about half an hour later, the police came with another person. The victim said he could recognise this person as the third robber and that was the 3rd appellant. The victim said he had not lost sight of these people when he was chasing them and he could recognise the 3rd appellant also because of his blue garment.

3. While the victim said that all the three robbers fled in the same direction, an officer, PW2, said that he was told by the victim that two men ran in the same direction while the third ran in the opposite direction towards Shamshuipo.

4. The 1st and 2nd appellant gave evidence. They said they were illegal immigrants from China. They were wandering round the street looking for a place to stay for the night. They noticed that someone was running behind them and there was some shouting. Since they had no identity card with them, they feared that the police would check this out and so they started to run. In their evidence before the court, they said that they were caught by the victim and the officer. However, in their submissions before me, it appears that they now said that they were in fact arrested by the officers and it was at a later stage that the victim came and was asked to identify them. The 3rd appellant elected not to give evidence.

5. The main evidence against these appellants were of course the identification evidence.

6. In this appeal, the first two appellants were unrepresented and the 3rd appellant was legally represented. The grounds of appeal relied upon by the 3rd appellant attacked the identification evidence. It was suggested that the identification was poor and that it was a fleeting glance situation; that the victim was at the time in very difficult conditions : he was being grabbed, he was punched and obviously in fear. It was also suggested that he might not have too much of an opportunity to watch and see these three robbers.

7. The learned magistrate gave himself the Turnbull direction. He said that he had examined all the evidence and the circumstances in which the identifications were made by the victim and the third witness. He said he had to warn himself especially for caution when dealing with visual identification. He accepted the evidence of PW1 and PW3 as being frank and honest witnesses. He rejected the evidence of the 1st and the 2nd appellants.

8. In respect of the 1st and 2nd appellants, I do not think there could be any mistaken identification. The victim had the opportunity of watching the robbers for three to four minutes. He said the lighting in the subway was sufficient. What is more, he said he gave chase after these people, had not lost sight of them and finally caught up with them. Having heard the submissions of the 1st and 2nd appellants and considering the grounds of appeal filed by the 3rd appellant which were relevant to the issue of identification in respect of the 1st and 2nd appellants, I have no reason to doubt that the 1st and 2nd appellants were two of the robbers and that the learned magistrate had not erred in dealing with the identification evidence in the way he did. So the appeals against conviction by the 1st and 2nd appellants are dismissed.

9. In respect of the 3rd appellant, although the general evidence of identification against him was similar, the case in my view is slightly different. There are a few matters which have caused me concern.

10. First, the officer PW2 said in evidence that he was told by the victim that two men ran in one direction and the third one in the opposite direction. The victim denied this. The learned magistrate said he rejected PW2's evidence and thought that he was mistaken. Unfortunately, the learned magistrate did not give any reason as to why he rejected such evidence and how he came to resolve this discrepancy. This matter in itself is of course not sufficient to upset the conviction of the 3rd appellant.

11. However, there is also another point which have arisen from the evidence of the 1st and 2nd appellants given in the court below. They said that the two of them were originally walking together. There was absolutely no mention by either of them of a third person, be it the 3rd appellant or some other person, in their company from beginning to end and during the running. This part of the evidence in a way supported the evidence of PW2, the officer. It is, therefore, not clear whether they had ever been in the company of the 3rd appellant and whether in fact they even knew the 3rd appellant. Quite unfortunately, the learned magistrate did not deal with this point.

12. Furthermore, the 3rd appellant was brought back to the victim in about half an hour's time. According to the evidence, he should have been apprehended very near to the place where the victim was. The sketch produced in court seems to confirm that. However, if he was just nearby, it seems that half an hour was a little too long to bring him back.

13. Finally, the identification of the 3rd appellant cannot be described as satisfactory. When he was brought back by the police officer to see the victim, he was shown to the victim and the evidence on this part of the case was, according to the victim, like this :

"The police arrived and they told me something. The police officers asked me to identify an additional person in addition to the two people who had been apprehended. I identified that person as one of the three males who had snatched my bag."

In my view, this sort of identification or recognition in some circumstances of this case was quite leading, to say the least.

14. So having considered all these matters, I have, in my mind, a lurking doubt as to whether the 3rd appellant was in fact the third robber. I have, of course, not lost sight of the fact that the victim also identified him as the person wearing a blue garment and of the circumstances under which he said he saw the 3rd appellant during the course of the robbery. However, taking the evidence as a whole, I do find that the conviction against the 3rd appellant to be unsafe and unsatisfactory. I would allow his appeal.

15. So the appeals against conviction by the 1st and 2nd appellants are dismissed. The appeal against conviction by the 3rd appellant is allowed. His conviction on robbery is quashed and the sentence of 12 months set aside.

16. I now deal with the appeals against sentence in respect of the 1st and 32nd appellants.

17. As far as the 1st appellant is concerned, I do not think there are any special circumstances or any humanitarian grounds for me to depart from the normal guideline in respect of the offence of unlawfully remaining in Hong Kong. In respect of the 12 month sentence for the count of robbery, I do not think that is manifestly excessive in the circumstances. The learned magistrate had considered the principle of totality when he imposed this sentence on top of the 15 months. He had also taken, in my view correctly, that the two sentences should run consecutively because they arose out of two different sets of facts.

18. In respect of the 2nd appellant, the same comments can be made. I do not find any special circumstances or humanitarian grounds with respect to the 15 month imprisonment for the immigration offence. For the same reason, the 12 month imprisonment for robbery and the order that they be run consecutively are not wrong in principle. Nor is the totality of 27 months for the offences too much or manifestly excessive.

19. In respect of the 3rd appellant, I take note of the medical certification tendered to me which said that his 74 year old grandmother had a heart decease, diabetes and high blood pressure and is now hospitalised in China. There is no evidence to show that the elderly lady had any of these conditions before or after the appellant came to Hong Kong. It seems to me that these were not diseases which come up within at the last three months. He should have been aware of this before he came to Hong Kong. So I am not satisfied that this is a humanitarian ground or special circumstance. His appeal against sentence is also dismissed.