HKSAR v. WU SIU HIN

HCMA 200/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 200 OF 2003

(ON APPEAL FROM KCCC 18251/2002)

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J U D G M E N T

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1. This is an appeal against conviction for robbery. In the late afternoon of 27th August of last year, a 30-year-old lady was walking along a main road in Wong Tai Sin with her four children. She was robbed by two men. They got away with her handbag. The total value of the items taken was some $10,000. She put up a struggle. There was a tug-of-war over the bag.

2. The robbers would doubtless have got away with this save that one of them dropped his mobile phone. The victim had lost hers in the robbery. She picked up the dropped one and called the police. The robbers, of course, had made off. But while she was waiting, she suddenly noticed one of them had returned and he got as close as 15 feet to her. It was an overwhelming inference that his presence there at that time after the robbery was because he wanted to retrieve the dropped mobile telephone.

3. The police arrived and the victim went with them to the local police station. There she saw this appellant. She immediately identified him as one of the robbers. He said, "No, certainly not, I'm here to report the loss of my mobile telephone". His account, which he repeated in his evidence, was that, that afternoon, he had been in an amusement game centre and that someone had stolen his telephone and that person must have been the robber who dropped it, or the robber was someone who had been given it by the original thief. He said, "Look, the SIM card in that telephone was a prepaid one, it doesn't tell you who paid for it". He said, "Why would I go to a police station if I'd just done a robbery in the locality?"

4. The issue was one of identity. As one would expect, the Magistrate found the lady victim to be an honest witness. In applying the usual Turnbull considerations, he looked at the opportunity the lady had to take in the appearance of the robbers, the lighting, the distance and the short time that occurred between the event and the subsequent identification. He determined, as I would have done, that the lady had the opportunity to take in the appearance of the culprits and therefore had the ability to identify one of them a short time afterwards.

5. But of course, he looked for confirmation of that and he found it by the presence of the defendant's mobile telephone at the scene. I shall in fact read from the statement of findings how this support was used because it could not be better expressed. The Magistrate said:

"I disbelieved the defendant's account of how he came to lose it. If he had, as he claims, left it on the machine in the amusement games centre, he would, when he went back in to look for it, have checked with the staff to see if it had been handed in. If the phone was worth going to the police station for, it was worth asking the staff about. Of course, if he had, there would have been a record and he would have been able to call the staff. So he has to say that he did not check with them, a failure which is, in the alleged circumstances, wholly implausible.

The defendant's report to the police of the missing phone was made, I am sure, because he knew it had been dropped and retrieved by PW1. He had seen her with it. He must have believed the phone to be traceable either through its serial numbers, plain to see on the phone, though not, it seems, through the SIM card or by fingerprints, or by some other means. He was not willing to take the risk and he reported its loss quickly.

It should be noted that one of the robbers returned to the scene. That can only have been in connection with the mobile phone. There could be no other reason. If it had been someone who had stolen the phone from the defendant or had otherwise acquired it unlawfully, they would not have returned to the scene or loitered in the vicinity of the scene. It is the very last thing that such a person would have done. There would be no point. The only person who had an interest in getting the phone back in these circumstances was the defendant, its owner, to avoid the possibility of any tracing to him. That is why the presence of the defendant's phone materially supports the identification. I am sure it is a correct identification of the defendant."

That reasoning is totally compelling. The Magistrate disbelieved the account given by the appellant.

6. Nothing the appellant has been able to put before me today has raised any doubt in my mind as to the correctness of this conviction. He repeats, as he is entitled to, the points that were made below, to which he adds two apparently new ones. He says it was unfair that there was no identification parade and that there was a dock identification by the victim in court. Let me reassure the appellant that he has in fact misunderstood how these rules apply. There is no question of the rules concerning dock identification and the need to hold identification parades being breached. The need for an identification parade and the prohibition of dock identifications apply in circumstances where the witness is making the identification for the first time. That was not the case here. The witness had already made the identification at the police station.

7. Accordingly, the order I make is to confirm the conviction.

8. The appellant does appeal his sentence which was that he be detained in a Training Centre. All that he says in support of it is that he would rather be in Pik Uk Prison than in Training Centre. Even though the appellant was only 17, this is his second conviction for robbery. He had already been to a Detention Centre for that offence. As the Magistrate remarked, this is an extremely serious case and that he was lucky not to have been dealt with in the District Court.

9. Given the jurisdictional limit when it came to imprisonment, Training Centre was clearly the right option. It would be quite wrong to take this appellant now out of Training Centre and send him to prison for a time that would be too short to meet the gravity of the offence.

10. Accordingly, the appeal against sentence is dismissed.