THE QUEEN v. KWOK TIK MING

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J U D G M E N T

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Clough, J.A. :

1. The applicant Kwok Tik-ming (to whom I will refer as "D3") was convicted by His Honour Judge Leonard in the District Court on the 13th December 1988 after a trial on a charge of robbery and, being 16 years of age at the time of his conviction, he was subsequently sentenced on the 5th January 1989 to detention in a training centre. He now seeks leave to appeal against his conviction.

2. D3 was originally charged with three others, namely Wong Wai-ko (D1), Yu Chun-man (D2) and Leung Kai-pui (D4) with the robbery on the 14th July 1988 of Tsui Chi-hung (PW1) a taxi driver on board his taxi under a flyover near Wang Tau Hom Middle Road, Kowloon. The charge alleged that PW1 had been robbed of a handbag containing a wallet, $389.30 and some personal cards.

3. At the trial only D2 was tried with D3 because D1 had previously pleaded guilty and been sentenced and D4 had absconded when on bail. D2 was convicted at the same time as D3. D2 applied for leave to appeal against his conviction but has abandoned, his application.

4. The circumstances of the robbery were in accordance with a familiar pattern. PW1 had picked up four passengers in his taxi just after midnight in Shun Ling Road. He was asked to take them to Wang Tau Hom. One passenger sat beside him. The other three passengers sat in the back seat. He was asked to stop under a footbridge between Wang Tau Hom and Lok Fu. When he complied one of the back seat passengers threatened him with a knife and someone behind him called out "Robbery. Take all your money out."

5. Then the passenger in the front seat removed PW1's handbag from the glove compartment of the taxi. The handbag contained a wallet and other, articles including $389.30 and PW1's driving licence and identity card. The robber returned PW1's driving licence and identity card to him at his request and then made off in the direction of Wang Tau Mom Estate.

6. There was no issue at the trial regarding the robbery as such by four confederates. The defence was that D3 (and D2) were not involved at all.  They had not been there at the time of the robbery which had been committed by D1 and D2 and other iTdividuals.

7. The Crown witnesses were PW1 and two police officers, namely Sergeant 11251, Chu Chor-fai (PW2) and his colleague PC 20952, Tse Ka-shing (PW3). Neither D3 nor D2, who were represented by the same counsel at the trial, elected to give evidence in their defence. They called D1(who had earlier pleaded guilty to the joint charge) as a defence witness.

8. The relevant evidence of PW1 which PW2 and PW3 supported and the judge believed was to the effect that at about the time the four robbers made off after the robbery (PW1 actually said it was less than a minute after wards) a police car happened to arrive and PW1 and the police officers in the car chased after the robbery who were then still in sight. PW1 and the police followed the robbers to Wang Fu House, lost sight of them briefly as they entered the building and then saw them enter a lift which the indicator showed to have gone to the 8th floor. Thereupon PW1 and his police companions took another lift to the 9th floor, whence they descended by the stairs to the 8th floor where they saw four persons, one of whom was D1 who was holding PW1's bag which contained the money taken from PW1 and other articles belonging to him. D1 was later found to have a long knife stuck in his waist band. His companions had nothing of significance on them.

9. At this time PW1 identified all four men, including D3, as the robbers to the police. He said in evidence that he bad no doubt that the men he pointed out to the police were the four men who had earlier been in his taxi. However, under cross-examination he was only able to say that he actually recognised the man who had sat in the front seat and he was not able to make any identification at the trial due to the lapse of time.

10. The judge, after considering PW1's evidence regarding his observation of the passengers in his taxi, formed the view that if this were a casein which the identification evidence had been required to be considered only by reference to Turnbull principles, he would not have been satisfied beyond reasonable doubt of the guilt of D2 and D3. He went on to say:

"But this was not a Turnbull case. P.W.1 and the police had chased the robbers to the building. After what must have been the briefest of intervals they had seen four persons enter the lift and go to the 8th floor. Very shortly afterwards they had found four persons on the 8th floor, one of whom had a knife and the proceeds of the robbery. Even on the defence evidence, two of the four were robbers."

11. The police sergeant (PW2) and constable (PW3) having given supporting evidence of the Circumstances of the chase and arrest following the robbery, the judge considered the circumstantial evidence against D2 and D3 to have been very strong. He attached particular weight to the evidence of the sergeant who, when pressed in cross-examination as to whether he was able to say that the group he saw going towards Wang Fu House was the group who got into the lift or whether he was not sure, replied "I can say for sure they were the same group because there was no one else around."

12. The judge concluded that D1 had been lying to save his two friends when he gave evidence for the defence to the effect that he and D4 had carried out the robbery with two others who had disappeared by the time D1 and D4 entered the lift lobby.

13. On behalf of D3 it was contended that the judge erred in attaching undue weight to the evidence of PW1 that at the time he saw four persons on the 8th floor he had no doubt that they were the robbers. It was contended that he should have attached little weight to that evidence because of the weakness of PW1's identification evidence.

14. The evidence of identification given by PW1 was undoubtedly weak, but the judge in effect said that if the Crown's case had depended solely on the identification evidence of PW1 assessed in accordance with Turnbull principle, he would have acquitted D3. He cannot therefore be said to have attached undue weight to that evidence. Indeed Mr Hung for D3 did not press this point in argument when the court put the matter to him in the way indicated above.

15. The judge made it clear in his Reasons for Verdict that he was convicting D3 on circumstantial evidence which he regarded as strong. It is contended on D3's behalf that this conclusion was arrived at against the weight of evidence because there were two Brief intervals of time in the chain of the Crown witnesses' evidence during which the four robbers had disappeared out of sight of their pursuers.

16. One instance was just before the robbers were seen entering the lift lobby. The other was when the lift had stopped at the 8th floor and the pursuers were in the lift going up to the 9th floor and thereafter descending the stairs to the 8th floor.

17. Bearing in mind the lateness of the hour, the brevity of the periods during which the pursuers lost sight of the pursued men, the absence of other persons and the physical surroundings in which the chase terminated, it is difficult to comprehend how the judge, who is required to exercise the common sense of a jury on issues of fact, could have come to any other conclusion than he did when holding that the circumstantial evidence of the guilt of D3 was very strong,

18. It was further contended that the judge erred in failing to reject or attach no weight to the evidence of PW1 and PW2 that PW1 had in the presence of the police pointed at D3 three other persons and said to the police that they were the robbers, in the hearing of the four persons.

19. There is nothing in the Judge's Reasons for Verdict to indicate that he relied on this evidence for any purpose other than as evidence of identification. For that purpose it is clearly admissible. However the judge made it clear that he was not relying on PW1's evidence of identification but on circumstantial evidence for convicting him. In such circumstances we cannot accept Mr Hung's argument that the judge failed to evaluate the evidence of identification.

20. Another ground of appeal was that the judge erred in attaching undue weight to PW2's evidence that he could say for sure that the four persons found on the 8th floor were the robbers, because there was no one else around.

21. The fact that there was no one else around at the material time is a highly material fact which has to be considered in conjunction with all the other relevant circumstances all the other relevant circumstances which the judge took into account in as assessing the circumstantial evidence as a whole. He is not to be faulted in doing so.

22. Finally it has been contended that the judge erred in finding that D3 (and D2) had engaged in a joint enterprise with D1 and D4 - but this was put forward by Mr Hung only as the corollary of the earlier grounds of appeal attacking the judge's finding.

23. On the evidence it is difficult to comprehend how the judge could reasonably have come to any other conclusion once he was satisfied that D3 was a member of the group of four passengers in the taxi. Morever D3's defence had been that he was not in the group, his defence had not been that he was in the group but not a participant in the robbery.

24. Accordingly we are not persuaded that there are any grounds for concluding that D3's conviction was erroneous or unsafe or unsatisfactory. His application for leave to appeal against his conviction is dismissed.