HKSAR v. CHU TSZ LONG

CACC 139/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 139 OF 2000

(ON APPEAL FROM DCCC NO. 74 OF 2000)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. On 14 March 2000, the Applicant was convicted by Judge Wright in the District Court on two charges of robbery. He had pleaded not guilty. A few weeks later, he was sentenced to 51/2 years' imprisonment on each charge to run concurrently with each other. He now applies for leave to appeal against his convictions.

The nature of the evidence

2. The two robberies of which the Applicant was convicted were taxi robberies. They occurred on 18 and 22 July 1999. The evidence of the taxi drivers was that on each occasion they had picked up four men in Wan Chai and had driven them to Pok Fu Lam. Once there, they were threatened with sharp objects, and money - and in the case of the second robbery other possessions - were stolen.

3. The evidence that the Applicant was one of the robbers came from two young men (PW3 and PW4) who admitted that they had been two of the four robbers. They both said that their two accomplices had been Chan Cheuk Ho and the Applicant. For his part, the Applicant denied that he had been one of the robbers. He claimed that he had been at home at the time. Although he had not taken part in the robberies, the case which was put on his behalf to the prosecution witnesses was that there had only been three robbers - PW3, PW4 and Chan Cheuk Ho. The judge accepted the evidence of the taxi drivers and PW3 and PW4 that there had in fact been four robbers, and he accepted the evidence of PW3 and PW4 that the fourth robber was the Applicant.

The evidence of PW3 and PW4

4. The circumstances in which PW3 and PW4 came to give their evidence meant that the judge had had to treat their evidence with considerable caution. PW3 and PW4 had themselves been charged with the two robberies with which the Applicant had been charged. Unlike the Applicant, they had also been charged with a third taxi robbery which was said to have occurred on 20 July 1999. They had pleaded guilty to that robbery, and they had offered to give evidence against the Applicant. In recognition of that co-operation, the charges against them relating to the other two robberies, i.e. the robberies with which the Applicant was charged, were ordered to be left on the court file. When they gave evidence in the Applicant's trial, they were awaiting sentence on the one robbery to which they had pleaded guilty.

The application to call fresh evidence

5. It is against that background that Mr David Boyton for the Applicant requests the court to receive fresh evidence. The evidence is that of Chan Cheuk Ho, and the substance of his evidence is contained in an affirmation made two days ago. Court records show that on 20 December 1999 Chan Cheuk Ho had pleaded guilty to the taxi robberies which had occurred on 20 and 22 July 1999, and that he is at present serving a total of 50 months' imprisonment for those robberies. The thrust of his affirmation is that he was involved in the two robberies of which the Applicant was convicted, i.e. the robberies of 18 and 22 July, with PW3 and PW4, but that the Applicant had not been the fourth robber. The fourth robber, according to Chan Cheuk Ho, had been a friend or a classmate of PW3 and PW4. However, although Chan Cheuk Ho had known the fourth robber for a few months prior to the robberies, he did not name him in his affirmation.

6. Section 83V(2) of the Criminal Procedure Ordinance (Cap. 221) sets out the circumstances in which the Court of Appeal can receive fresh evidence which would have been admissible at the trial. It provides, so far as is material:

".... where evidence is tendered to the Court of Appeal .... the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if-

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it."

We have concluded that the evidence which Mr Boyton wishes us to receive does not fulfil the requirements of section 83V(2)(b). We accept, of course, that Chan Cheuk Ho's evidence was not adduced in the course of the Applicant's trial, but we do not think that we have been provided with any explanation, let alone a reasonable one, for the failure to call him as a witness.

7. Well before the Applicant's trial began, the Applicant knew that the prosecution was saying that Chan Cheuk Ho had been one of the Applicant's accomplices in the two robberies. That is because the charge sheet, which was dated 19 January 2000, named Chan Cheuk Ho along with PW3 and PW4 as the person with whom the Applicant was alleged to have committed the two robberies. Indeed, by then Chan Cheuk Ho had pleaded guilty to one of those robberies. If the Applicant had not been one of the robbers, he would have realised that Chan Cheuk Ho could have given evidence exonerating him. Chan Cheuk Ho in his affirmation said:

"Neither the police nor the Applicant's lawyer asked me to give evidence at the latter's trial. Had I known I could have assisted the Applicant in giving evidence on his behalf, I would have done so at his trial."

Yet no explanation whatever has been given on affidavit or affirmation as to why the Applicant (who was on bail) or his solicitors had not approached Chan Cheuk Ho to inquire whether he would confirm that the Applicant had not been involved in the two robberies. Not only had there been plenty of time for that approach to have been made between the date on which the Applicant knew that the prosecution was saying that Chan Cheuk Ho had indeed been involved in the robberies (19 January) and the date when the Applicant's trial began (13 March), but we now know from Chan Cheuk Ho's affirmation that he would have been prepared to give evidence on the Applicant's behalf if he had been approached.

8. In his skeleton argument, Mr Boyton wrote that the reason why no approach had been made to Chan Cheuk Ho to inquire whether he could confirm that the Applicant had not been involved in the robberies was because there was concern that such an approach might be regarded as an illegitimate attempt to interfere with a potential prosecution witness. That explanation has not been verified on affidavit or affirmation, and bearing in mind that the burden is on the Applicant to establish as a matter of fact what the explanation for not adducing Chan Cheuk Ho's evidence at trial was, the court cannot be expected to proceed on what effectively is a statement from the Bar Table. But even if this explanation had been verified by an affirmation from the Applicant's solicitors, we would not have regarded the explanation as a reasonable one. Unlike PW3 and PW4, the prosecution was not intending to call Chan Cheuk Ho as a witness. In any event, there is no property in a witness, and there is nothing to prevent a firm of solicitors seeking to interview prior to the trial in a responsible way a person who the prosecution might later decide to call as a witness.

9. Mr Boyton has today been told that when Chan Cheuk Ho was interviewed by the police (an interview which was recorded in writing), Chan Cheuk Ho admitted that the fourth man involved in the two robberies had indeed been the Applicant. Mr Boyton told us that that may have been the reason why Chan Cheuk Ho had not been approached by the Applicant's solicitors before the trial. Again this has not been verified on affidavit or affirmation, and it does not lie well with Mr Boyton's initial statement to us that the record of the interview had not been known about until this morning. But in any event if it had been thought right to approach Chan Cheuk Ho after the Applicant's trial when it was not known what he is alleged to have told the police, why was it not thought appropriate to approach him before the trial?

10. Moreover, we do not think that the evidence of Chan Cheuk Ho fulfils the requirements of section 83V(2)(a). We accept, of course, that Chan Cheuk Ho's evidence would have been admissible at the Applicant's trial, but we do not believe that his evidence now would be likely to be credible. We accept that Chan Cheuk Ho may have been reluctant to get the fourth man into trouble by naming him, but he can hardly blame anyone listening to his story for being sceptical of it when it is so plainly designed to secure the release of the Applicant without putting anyone else in the frame in his place. In addition, the fact that Chan Cheuk Ho is alleged to have originally admitted that the Applicant was the fourth man involved in the two robberies very seriously undermines the truth of what he would now be saying.

Conclusion

11. For these reasons, we reject the application to call fresh evidence. Mr Boyton accepts that without that evidence the application for leave to appeal cannot succeed. Accordingly, the Applicant's application for leave to appeal against his convictions must be dismissed.