HKSAR v. SAJID MAHMOOD

CACC 333/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 333 OF 2013

(ON APPEAL FROM DCCC NO. 280 OF 2013)

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REASONS FOR JUDGMENT
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Hon Macrae JA (giving the Reasons for Judgment of the court):

Introduction

1.  The applicant, who was the 5^th defendant at trial, originally sought leave to appeal against his conviction and sentence.  He had been tried by Deputy Judge Longley in the District Court on a joint charge of Robbery, contrary to section 10 of the Theft Ordinance, Cap 210 together with four other defendants.  The 1^st defendant (D1) pleaded guilty to the charge; the 2^nd defendant (D2) was, together with the applicant, found guilty after trial; and the 3^rd and 4^th defendants (D3 and D4) were found not guilty after trial.  The applicant was sentenced to 3 years’ imprisonment.

2.  He was represented at the appeal by Mr Sutherland, with him Mr Tibbo, on the instructions of the Bar Free Legal Service, Mr Sutherland having also represented the applicant at the trial.  In the course of the hearing in relation to the appeal against conviction, the applicant abandoned his appeal against sentence.

The Background to the Offence

3.  Subject to one matter, which we have italicised in the passage below and which we shall deal with in due course, the deputy judge accurately summarised the factual background and the respective roles of each of the defendants at the trial.  In view of that apparent inaccuracy, which was initially relied upon by Mr Sutherland as demonstrating a misunderstanding by the deputy judge of what he characterised as “confused, contradictory and inconsistent evidence” by the victim, Jonathan Lau, we shall set out the relevant parts of the deputy judge’s summary.  The judge said as follows:

“At the time of the alleged offence, Jonathan Lau was a 16 year old schoolboy. The prosecution allege that he was using his mobile phone as he walked across (Kwok Shui Road) Park on his way home just after midnight on 10 January when he was suddenly attacked by Khan Safian, the 1^st defendant and the 5^th defendant. They had both previously been sitting with the other three defendants near a toilet in the park. Jonathan Lau was pushed to the ground. This resulted in him dropping his phone which was snatched up by the 1^st defendant who started to run away. As Jonathan Lau stood up in order to give chase, his way was blocked by the 2^nd, 3^rd and 4^th defendants and he was assaulted and restrained from chasing the 1^st defendant. It is alleged that after a short while, the 2^nd, 3^rd and 4^th defendants had themselves left Lau and strolled in the same direction as the 1^st and the 5^th defendants whereupon Jonathan Lau had made a call to the police.

The prosecution adduced evidence that less than 20 minutes after the alleged robbery, the five defendants had been located together in Kwong Fai Circuit and that at that time Lau’s mobile phone was found in the 5^th defendant’s jacket pocket. The SIM card that had been in the phone was no longer there and the phone had been reset to a factory setting. The prosecution adduced evidence of the finding shortly afterwards of the SIM card which had been in Jonathan Lau’s phone previously near entrance A of Tai Wo Hau MTR Station.

The principal witness for the prosecution was the alleged victim, Jonathan Lau, PW1. His evidence was that he had left Exit B of Tai Wo Hau MTR Station before entering the park. His route across the park took him by the public toilet where he noticed that there was a group of five South Asian males. He described the lighting in the park as bright. His evidence that the park was well-illuminated is lent support by the lamps visible in photographs P9A (3), (4) and (5). He admitted that he did not pay particular attention to the South Asian males as he was engaged in using his Smartphone. His evidence was that initially he was attacked by two of the group of five Asian males whom he identified as the 1^st and the 5^th defendants. He admitted that by the time of the trial his memory was unclear as to the exact sequence of the initial attack and which of the two men did what but that when he gave a statement to the police on 10 January he was certain about those matters. He confirmed his statement that the 5^th defendant had first approached his left side with his face towards him and grasped his left wrist whereupon the 1^st defendant had pushed him hard on the right shoulder causing him to fall to the ground and drop his mobile phone. When the 5^th defendant picked up the phone, he had got up to chase him but was prevented from doing so by the intervention of the three remaining members of the group.

As far as this second stage of the attack is concerned, he said that as he stood up, these men had blocked his way. One had stood in front of him, one to his right and one had stood behind him. He identified the 2^nd defendant as the man who had stood in front of him. He described how the 2^nd defendant had kicked his leg and, when he had tried to move, had punched him in the vicinity of his ear. He said that the man who stood behind him, whom he subsequently identified as the 4^th defendant, had been pulling his upper garment and the man to his right, whom he subsequently identified as the 3^rd defendant, had told him not to give chase.

In the meantime, the 1^st and the 5^th defendant had headed off in the direction of Exit A of Tai Wo Hau MTR Station. After having prevented Jonathan Lau giving chase in the manner I have described, the 2^nd, 3^rd and 4^th defendants had walked away leaving him. PW1 had then made a report to the police. The police sent a police vehicle to the scene and subsequently PW1, Jonathan Lau, had been taken in that vehicle to search the vicinity for the culprits. Evidence was given that as a result of the description which had been given by Jonathan Lau, officers from another police vehicle had located the five defendants less than 20 minutes later. They were sitting together at a location not far away in Kwong Fai Circuit.

PC3774, PW6, who arrived at Kwong Fai Circuit shortly after the five defendants had been located, gave evidence of searching the 5^th defendant and finding a mobile phone, Exhibit P5, which Jonathan Lau subsequently identified as his, in the 5^th defendant’s jacket pocket. It has not been seriously disputed that Exhibit P5 was Jonathan Lau’s phone. I am satisfied that it was. I am also satisfied that the SIM card which had been in the phone was missing and that the phone had been reset to (its) factory setting. The police accompanied the 1^st defendant to entrance A of Tai Wo Hau MTR Station where the SIM card that I am satisfied had formerly been in Jonathan Lau’s mobile phone (Exhibit P5) was found.

The five defendants were arrested at Kwong Fai Circuit. Evidence was given by PC6507, PW5, that after being cautioned, the 3^rd defendant had pointed to the 1^st and 2^nd defendants and said “It is they who robbed, I have no idea”. PC3774, PW6, gave evidence that after he had found Jonathan Lau’s mobile phone in the 5^th defendant’s jacket pocket, he had asked the 5^th defendant from where he had obtained the phone and the 5^th defendant had said in Punti that he had bought the phone in Tsuen Wan. I admitted evidence of this remark after a voir dire as to its admissibility. Evidence of these remarks is only admissible in considering the case of the defendant who made them.

…

On 14 January 2013, Jonathan Lau picked out the 1^st and the 5^th defendant at an identification parade. I admitted evidence of the identification parade at which Jonathan Lau picked out the 5^th defendant after a voir dire as to its admissibility. It is admitted that at identification parades held on 16 January 2013, Jonathan Lau picked out the 2^nd, 3^rd and 4^th defendants.” (Emphasis supplied)

4.  To elaborate on that summary, when the police intercepted the five defendants, PC 3774 had asked the applicant, before conducting a body search on him, if he understood Punti.  The applicant confirmed that he did.  Having found the mobile phone in the applicant’s jacket, he then asked the applicant about the source of the phone.  The applicant replied in Punti that he had bought it in Tsuen Wan.  When, a few minutes later, he was informed by a colleague that the mobile phone had now been identified by the victim, PC 3774 proceeded to arrest and caution the applicant, again in Punti, after which the applicant pointed at D1 and said in English, “He give me the mobile phone”.  After a voir dire, the deputy judge exercised his discretion to exclude the applicant’s answer under caution on the basis that he may not have fully understood the formality of a caution administered in Punti.  The answer given by the applicant during PC 3774’s preliminary enquiries before caution was, however, admitted into evidence.

The defence Case

5.  The applicant gave evidence both in the voir dire and on the general issue.  His defence essentially was that he was present in the Park with the other defendants when D1 and D3 had suddenly left the group and become involved in an altercation with Jonathan Lau.  He was not, however, involved in that incident.  He challenged by way of voir dire the admissibility of:

(i) The two remarks attributed to him by PC 3774, one before and one after caution, concerning how he had come by the mobile phone.  It was suggested that the applicant did not say what was alleged and was not able to understand either Punti or English sufficiently; and

(ii) The evidence of the identification parade held on 14 January 2013, four days after the alleged robbery, in which he had been identified by Jonathan Lau.  Among the applicant’s complaints were that his appearance and clothing were markedly different from the actors participating in the parade; that he was not asked if he understood the words of the chief inspector in charge of the parade, which were translated by an interpreter into Punjabi, a language he did not understand; and that the police had deviated from the Police Force Manual and/or from the Criminal Investigation Manual, in the conduct of the parade and the role played by the officer-in-charge of the case at the parade.

6.  On the general issue, the applicant was the only defendant to give evidence.  The deputy judge summarised his account as follows:

“The 5^th defendant’s evidence was that while he was present in the park when the incident involving Jonathan Lau occurred, neither he nor as far as he observed, the 2^nd, 3^rd or 4^th defendants had anything to do with what occurred to Jonathan Lau, only the 1^st defendant had any involvement. On his account, he met up with the 3^rd and the 4^th defendants earlier that evening in the flat that he shared with the 3^rd defendant in Tsuen Wan. The 3^rd defendant had received a telephone call and suggested that he and the 4^th defendant accompany him to Kwai Chung where he would either collect or receive some money. The three of them had then walked for 1½ hours until they entered the Kwok Shui Road Park where they came across the 1^st and the 2^nd defendants whom the 5^th defendant had never previously met. The five of them were together either sitting or standing in front of the toilet. He and the 4^th defendant were sitting while the 1^st, 2^nd and 3^rd defendants had a conversation about work.

During the conversation, the 1^st and the 3^rd defendants had suddenly left the group and started to walk quickly towards a Chinese male whom the 5^th defendant now knew was Jonathan Lau. He then saw the 1^st defendant punch or slap Jonathan Lau but could not see anything more as the 1^st defendant had his back to him. He did, however, notice something fall to the ground “and turn into two pieces”. He saw the 1^st defendant pick up one of these pieces and then run away. Although the 3^rd defendant had approached near to the spot where the 1^st defendant had punched or slapped Jonathan Lau, the 5^th defendant had not noticed him doing anything more than just stand nearby. He did not hear the 3^rd defendant say anything. When the 1^st defendant ran way, he had heard the 1^st defendant call the 2^nd defendant and the 2^nd defendant had run in the same direction as the 1^st defendant. At this point, the 3^rd defendant had walked back from where he had been standing in the direction of where the 5^th and the 4^th defendants had been sitting. The 5^th defendant and the 4^th defendant had walked towards him. They, that is the 5^th, the 3^rd and the 4^th defendants, had then stood chatting.

After the 1^st defendant had run off, he saw Jonathan Lau pick up one of the pieces of the thing that had dropped on the ground and move a short distance in the same direction as had been taken by the 1^st and 2^nd defendants before he stopped. He was shouting something in Chinese. Jonathan Lau then spoke to a Chinese passer-by before leaving the scene. He together with the 3^rd and the 4^th defendants had remained in the park in the same position for 5 to 10 minutes before leaving. They had walked for about 15 to 20 minutes to Kwai Chung where they went to an internet café where the 3^rd defendant had made a telephone call. Then at the 3^rd defendant’s suggestion they had gone to the garden at Kwong Fai Circuit where they had ultimately been found by the police. They sat on a wall and by coincidence happened to see the 1^st and the 2^nd defendants again. The 2^nd defendant said that he had asked the 1^st defendant about the earlier incident in the Kwok Shui Road Park. The 1^st defendant explained that PW1 had used abusive language and so … he had beaten him.

The 5^th defendant said that he had then gone on to ask what it was that had fallen on the ground which the 1^st defendant picked up and the 1^st defendant had replied that his own phone and PW1’s phone had both fallen to the ground and because they were similar he had picked up the phone that did not belong to him by mistake.  The 5^th defendant had then asked the 1^st defendant to show him the phone and while it was in his hand examining it the police arrived.  He denied that he had ever put the phone in his pocket or that he had told the police that he had bought the phone in Tsuen Wan.”

The issues at trial

7.  The major issue at trial was the correctness of the identification of the applicant as someone who had been involved in the incident with Jonathan Lau in Kwok Shui Road Park.  Although the applicant admitted his presence in the Park and later at Kwong Fai Circuit at the material times, his case was that he was not involved in any robbery of the victim.  Accordingly, Jonathan Lau’s identification of him as a participant in the robbery was severely challenged.  There was a further issue of whether the victim’s mobile phone had been found in the applicant’s jacket as PC 3774 claimed, or whether the applicant was innocently holding it in the circumstances for which he contended.  The verbal uttered before arrest and caution was, therefore, disputed.

Reasons for Verdict

8.  Notwithstanding the applicant’s previous good character, the deputy judge found that he could attach no weight to his evidence.  He did not believe that it was simply a coincidence that the applicant should have come across D1 and D2 at Kwong Fai Circuit after walking for 15 to 20 minutes after the incident at Kwok Shui Road Park.  He found it artificial that the applicant would have asked D1 what he had picked up in the Park and then, for no particular reason, examined the mobile phone, at which time he happened to be intercepted by the police.

9.  The judge explained in detail his reasons for admitting the applicant’s statement that he had bought the mobile phone in Tsuen Wan, while excluding the applicant’s answer to the caution that he had been given the phone by D1.

10.  In relation to the evidence of the identification parade, the deputy judge considered the authorities of R v Walsh[1] and Secretary for Justice v Lam Tak Ming[2].  He was satisfied that there was no truth in the applicant’s allegations of assault in the police vehicle on the day of arrest, or that his resulting fear of further assault caused him to raise no objection when he attended the identification parade a few days later.

11.  In respect of the suggestion that the identification parade had not been conducted fairly, in as much as the applicant did not understand his rights, the interpreter having used Punjabi which was not a language or dialect with which he was sufficiently familiar, the deputy judge noted that the applicant had appeared before a magistrate on four occasions when proceedings had been translated into Punjabi and that he would normally communicate with his Indonesian wife in English.  Furthermore, the applicant had admitted that he understood the purpose of the parade and that he had been asked whether he was willing to take part in it.  He had also asked for one of the actors to be removed from the line-up.  The deputy judge was satisfied from this and other evidence that the applicant’s knowledge of both Punjabi and English, and his understanding of what was going on at the parade, was greater than he admitted and sufficient to negate any suggestion of unfairness.

12.  Insofar as the issue of the applicant’s appearance and clothing were concerned, the judge found that there was no impropriety in the conduct of the identification parade and there was no deviation from the procedure laid down in the Police Force Manual. He distinguished the circumstances of the case from HKSAR v Wong Chi Kwan[3]and R v Gall[4].

13.  The deputy judge reminded himself of the observations in R v Turnbull[5].  However, on the basis of all of the evidence, he was satisfied that the applicant was the one who had held Jonathan Lau’s wrist or arm at the initial stage of the robbery, after which D1 had picked up and run off with his mobile phone.  Accordingly, he convicted him as charged.

Application for leave to appeal against conviction

14.  On behalf of the applicant, Mr Sutherland argues a number of matters, which may be reduced to essentially three grounds of appeal.

15.  First, Mr Sutherland complained of the quality of the identification evidence.  He submitted that:

(i) The judge, in acquitting D3 and D4 because of the possibility of mistaken identification, had nevertheless convicted the applicant on the basis of identification evidence which was inherently weak so as to give rise to a lurking doubt as to its correctness;

(ii) The judge erred in accepting, and in failing to give any proper reasons for accepting, the evidence of Jonathan Lau, which he described as confused, contradictory and inconsistent.  Similarly, he failed to give any proper reasons for rejecting the testimony of the applicant, where it was at variance with various prosecution witnesses;

(iii) The judge was wrong to admit the evidence of the identification parade and what was said or done by the applicant at the parade, in circumstances where the Punjabi interpreter present at the parade was not called to give evidence.

16.  Secondly, Mr Sutherland argued that the judge erred in admitting into evidence what the applicant had allegedly said before caution, yet had excluded what he had said after caution; when he should have excluded them both.  The effect of allowing the pre-caution utterance into evidence was to compel the applicant to give evidence and thereby compromise his right to remain silent.

17.  A third ground averred that the deputy judge’s reasons were inadequate in dealing with the issues raised by the evidence.

Consideration of the appeal

18.  Before considering Jonathan Lau’s evidence and what the deputy judge made of it, we should return to and deal with the apparent error relied upon by Mr Sutherland in the italicised part of the passage recited at para 3 supra, which he contends demonstrates a misunderstanding of the witness’s evidence.  In fact, earlier on in the same passage, the judge had stated as part of the factual background that:

“Jonathan Lau was pushed to the ground. This resulted in him dropping his phone which was snatched up by the 1^st defendant who started to run away.”

Later in his reasons for verdict, the deputy judge drew a distinction between “the person who (Jonathan Lau) says was the 5^th defendant rather than the person who snatched up his phone”, while in his concluding remarks, he made the following finding in relation to the applicant:

“I am satisfied beyond reasonable doubt that he grasped Jonathan Lau’s wrist or arm in order that the 1^st defendant could physically steal Jonathan Lau’s phone.”

19.  It becomes patently clear when these passages are examined within the deputy judge’s reasons for verdict as a whole that the italicised reference in the passage concerned to “the fifth defendant pick(ing) up the phone” was a slip of the tongue on the part of the deputy judge and that, consistent with the other passages to which we have referred and his eventual findings, he had meant to say that it was D1, and not the applicant, who had picked up the phone. 

20.  In our view, it is not right to say that the deputy judge was in any doubt as to what Jonathan Lau was saying about the applicant’s role.  It is true that the witness’s version of the attack on him on the first day of his evidence differed from his later evidence, which had changed when he was shown his written statement of 10 January 2013 during cross-examination.  The witness explained that any inconsistencies between his oral testimony and his written statement to the police were caused by a blurring of his memory with the passage of time.  He insisted that the account he had given to the police in the statement presented a true and accurate version of events.  That version, as the deputy judge found, was that it was the applicant who had first grabbed him by the wrist or arm, after which D1 pushed him to the ground and then made off with his phone which had fallen from his hand.  We do not agree that the witness’s evidence, as it ultimately emerged once he had been shown his witness statement, was so confused, contradictory or inconsistent that no reasonable tribunal could accept it.  Indeed, Mr Sutherland accepts that he did not see fit at the conclusion of the prosecution case to make a submission of no case to answer on the basis that no reasonable tribunal could safely act upon it.  His brief submission was solely confined to the issue of whether there was sufficient evidence to prove the offence of robbery as distinct from an offence of assault.

21.  In respect of the criticisms of the identification parade, the judge was plainly alive to all of the issues advanced on the applicant’s behalf and the issue of fairness upon which they impacted.  He asked himself:

“What is particularly relevant when considering the issue of unfairness in relation to the issue of the identification parade is whether there is any possibility that any irregularities might have occasioned a wrong identification which might result in an unfair trial, always bearing in mind the ability of the court to take into account irregularities in assessing the weight to be attached to any identification.”

22.  The deputy judge was satisfied that there was no truth in the applicant’s allegations concerning the previous assaults by police officers.  That was a finding peculiarly within the province of the fact-finding tribunal.

23.  In respect of the complaint that the applicant did not understand what was said to him at the identification parade or the implications of his attending the parade, the deputy judge analysed the issues in considerable detail.  He found as a fact that the applicant's knowledge of Punjabi and English was greater than he was prepared to concede and that at no stage during the parade had he indicated that he did not understand what was being said. 

24.  It is clear from the cross-examination of the applicant that, whatever language may have been used during the identification parade, he understood that he was being asked by the chief inspector in charge of the parade whether he needed to have a lawyer present and he had said “No”.  He accepted that the chief inspector had further asked him in English whether he had any objection to any of the actors selected for the parade and that he had chosen to stand in place of the actor at position number 5.  Thereafter he had confirmed that he had no objection to the remaining selected actors on the parade.  To a question from the deputy judge, the applicant agreed that had he been asked in Urdu whether he was willing to take part in the identification parade, he would have said “Yes”.

25.  In the light of these answers, which the deputy judge referred to in his reasons for verdict, we cannot see any unfairness in the conduct of the identification parade, even if the language of interpretation was Punjabi when the applicant’s preferred and primary language (or dialect) was Pahari or Urdu.  It is clear that he understood the proceedings sufficiently for there to have been no misunderstanding or unfairness in the conduct of the parade.

26.  In respect of the complaint that the judge had failed to exclude the words spoken by the applicant before caution, the judge distinguished between the time when the police were making enquiries of the applicant, by which time, as PC 3774 explained, “there was not yet sufficient information to confirm that the mobile phone was a stolen property”, and the time when the victim had subsequently identified his property, as a result of which the applicant was arrested and cautioned.  The judge excluded the ensuing answer to caution, not on the basis that it was involuntary, but because it was “possible that something as technical as a caution with its accompanying preamble might not be understood or fully understood by someone who had only been in Hong Kong since March the previous year” and the officer had not ascertained whether he understood it.  In our view, the same considerations did not apply to any answers made to the officer’s enquiry before the caution.  The questioning of the applicant as to where he had obtained the mobile phone, and his reply that he bought it in Tsuen Wan, would both have been in simple Cantonese, which the applicant had told the officer he understood.  The applicant had also told the officer in Cantonese that he had lost his Identity Card. 

27.  Mr Sutherland had seemed to suggest in his cross-examination of PC 3774 that before asking questions of, or seeking information from, someone when investigating a crime, a police officer must wait for an interpreter who could speak the language or dialect of the person from whom enquiries are being made to be procured before proceeding further.  To this proposition, PC 3774 gave an obvious and entirely understandable answer:

“If I made investigation with a suspect on a street, due to geographical difficulty we would not be able to arrange the interpreter. In that situation we would try to communicate with that suspect in the language that we both understand.”

The police were investigating a serious offence which had taken place a short time earlier.  They were making enquiries of a group of persons who may or may not have been connected with that offence.  A mobile phone had been found which, likewise, may or may not have been connected with the offence.  A conversation ensued in simple Cantonese, which the applicant said he understood.  No misunderstanding or ambiguity of language was alleged.  There is nothing in this point.

28.  Finally, it is submitted that the deputy judge’s reasons for verdict were inadequate.  Presumably, this ground is founded principally upon the deputy judge’s alleged failure to give proper reasons for accepting Jonathan Lau’s evidence in the face of the various criticisms which were made of it, while rejecting the applicant’s account for no good reason.

29.  With respect to this argument, the deputy judge’s reasons for verdict were in many ways a model of how a District Court judge is expected to deal with issues in a contested trial.  Having set out the respective cases of the prosecution and the defence, he dealt with all the significant issues and disputes in the evidence as well as the legal arguments which they engaged.  He considered the relevant authorities which were placed before him and explained clearly in a concise and reasoned manner what his findings were and why.  While Mr Sutherland may not agree with the way the deputy judge resolved various issues of fact, he has had considerable difficulty in pointing to any flaw in the reasoning which might vitiate those findings.  The deputy judge did not simply accept the main witness’s evidence and thereby conclude that he must have been correct in his identification of the applicant.  He gave careful, considered reasons for his decision and came to the conclusion that:

“If that had been no other evidence other than the identification evidence of PW1, I would not have been able to be sure. However, that evidence has to be looked at in conjunction with all the other evidence to which I have referred, including the fact that (the applicant) has a markedly different facial appearance to the other defendants. I have no doubt whatsoever, taking all the evidence into account, that this was not a mistaken identification by Jonathan Lau, PW1, and (the applicant) was the person who at an early stage of the robbery had held his wrist or arm. I am satisfied beyond reasonable doubt that he grasped Jonathan Lau's wrist or arm in order that (D1) could physically steal Jonathan Lau's phone. I find him guilty of the robbery charged.”

30.  Amongst the other evidence which the deputy judge accepted was the rather significant discovery of the mobile phone in the jacket of the applicant less than 20 minutes after the robbery, by which time the SIM card had been removed and the phone reset to its factory setting.  Further, when asked in the course of police enquiries how he had come by the mobile phone, the applicant gave an answer which, upon the phone’s subsequent identification by the victim as his stolen property, was plainly untrue.  The deputy judge accepted the evidence of the police office that the stolen mobile phone was in the applicant’s jacket when intercepted and rejected the applicant’s account that it was in his hand.

31.  In our view, there can be no criticism whatsoever of the adequacy of the reasons for verdict in this case.

Conclusion

32.  There is in the result no merit in any of the grounds advanced by Mr Sutherland.  The verdict is in no sense unsafe or unsatisfactory and the application for leave to appeal against conviction must be refused.

33.  Wisely, the applicant has not pursued his application for leave to appeal against sentence, although notice that he wished to abandon his application was only given during the course of the appeal against conviction.  Given that this was a robbery of a 16 year-old student by more than one defendant after midnight in a public park, the sentence passed on the applicant, who was a 33 year-old torture claimant permitted to remain in Hong Kong by virtue of a Form 8 recognizance, was lenient in the extreme.  Quite apart from the complete lack of any merit in the appeal against conviction, we are very surprised that the Bar Free Legal Service should have countenanced advancing an appeal against sentence which, in the event that it had been pursued and failed, would almost certainly have had ramifications on the applicant’s original sentence.

Post-script

34.  Finally, we would point out that the Court was presented with no less than 1055 pages of transcript in this matter, which it was obliged to read in preparation of this appeal.  No proper explanation has been given as to why the Registrar was prevailed upon to order so much transcript when so little of it was germane to the issues raised on appeal or referred to in argument.  Further, as is emphasised by paragraph 6(d) of Practice Direction - 4.2 ‘Criminal Appeals to the Court of Appeal’, the preparation of such transcripts is expensive, which is a matter to be clearly borne in mind by those requesting their provision.

[1] R v Walsh [1987] 85 Cr App Rep 255

[2] Secretary for Justice v Lam Tak Ming (2000) 3 HKCFAR 168

[3] HKSAR v Wong Chi Kwan [2006] 2 HKC 318

[4] R v Gall [1990] 90 Cr App Rep 64

[5] R v Turnbull [1977] QB 224