HKSAR v. CHAN PAK HANG

CACC18/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.18 OF 2003

(ON APPEAL FROM DCCC NO.994 OF 2002)

----------------------

--------------------

------------------------

J U D G M E N T

------------------------

Hon Beeson and Jackson JJ :

Introduction

1. The applicant was convicted in the District Court after trial before HH Judge Christie of the offence of robbery and he seeks leave to appeal against that conviction. He was charged with two others, who pleaded guilty. It was alleged that he and the others had (on 17 August 2002 at the To Kwa Wan Recreational Ground in Hung Hom) robbed a 78 year old man, Mr Cheng, of a gold wrist chain.

2. Mr Cheng was reading a newspaper whilst sitting on a bench next to a Madam Fan, a friend. He saw three men sitting nearby and all of a sudden they attacked him; he was knocked to the ground and his chain was taken from him. It was an admitted fact that shortly after the incident a taxi was stopped by the police and in the taxi was the applicant and the two other men. The taxi driver had picked up the three men near the scene of the attack. Upon his arrest the applicant said to the officer who cautioned him : "Ah Sir it has nothing to do with me. It was the two of them ... who snatched it away. I did not take part in doing that case." At the police station, the police found the chain inside a sock of one of the other men.

3. There was an identification parade on 21 August 2002 at which Mr Cheng (PW1) identified the applicant although he did say, when unable to identify the other two, that it "was very confused at the time." Madam Fan (PW2) identified one of the other men as being involved in the attack but incorrectly identified an actor on the parade as also being involved.

4. In his evidence, Mr Cheng spoke of three persons forcing him to the ground; and in hers, Madam Fan spoke of two of the three men holding down Mr Cheng's arms whilst the third snatched the chain.

5. The applicant is aged 23 years and is a person with no previous convictions. Testimony was given by his former employer who described him as "kind-hearted and timid". The applicant gave evidence. He admitted his presence when the robbery occurred but said that, far from taking part in it, he tried to prevent it. He had met D2, who was his friend, for breakfast, and they were joined by D1 and then went to the park where they talked, and D1 said that he was in financial difficulty. The applicant told D1 that he could not help and he (the applicant) decided to leave but as he was doing so the other two went towards PW1. D1 said "Let's do it" and he and D2 rushed to the old man and set about him. In his evidence the applicant said that he did not know what to do, but he went to help the old man and tried unsuccessfully to pull D1 and D2 away. He then left the scene but was followed by the other two and he was pushed against his will into the taxi which D1 had hailed.

6. In his reasons for verdict, the learned judge noted that the evidence given at trial by the applicant was consistent with his reaction upon his arrest. He then noted that in its effect the evidence of the two prosecution witnesses implicated the applicant as one of the robbers. What he said was this :

"Both PW1 and PW2 say that PW1 was attacked by three people. PW1 for example : 'They forced me down.' PW2 : 'Two grabbed Mr Cheng and held his arms down and one snatched the chain.' Their evidence, therefore, does implicate the 3rd defendant as one of the robbers."

Then he went on :

"Even so, I am not satisfied that it is safe to rely on that part of those witnesses' evidence."

He pointed to contradictions in Mr Cheng's testimony; for example, that PW2 said that the applicant had punched Mr Cheng many times; whereas to the police she had said she could not remember who had hit him. Then the judge noted that Mr Cheng had spoken to Madam Fan after he had given evidence but before she did. When Mr Cheng had identified the applicant at the identification parade he had not described the applicant's role.

7. From there the learned judge went on to reject the applicant's evidence, concluding as he did so, that :

"the overwhelming inference I find to the drawn from his actions at the scene was that he was part of a coordinated attack on PW1 with the purpose of taking the gold chain."

The grounds of appeal

8. The first ground of appeal is that there was insufficient evidence to support the finding that the applicant acted in concert with the other two men in the robbery. The second ground is that the judge erred in holding that the real question was whether PW1 and PW2 could have misunderstood the applicant's actions.

Conclusion

9. What particularly troubles us is the learned trial judge's repeated references in his reasons for verdict to what he describes as "coincidences and other implausibilities" in the evidence of the applicant, which lead him to draw what he regarded as being the overwhelming inference that the applicant was a participant in the robbery.

10. In those reasons, the judge states that the applicant's defence rested on :

"the coincidence that at the same time as he decided to leave the other 2 persons decided to commit a robbery without telling him"

and

"the coincidence that at the same time as he decided to leave the scene of the robbery after trying to stop it, the others came with him taking the same route."

and he went on to say this :

"it is not plausible that in his conversation with the other 2 persons he should not know what 'lets do it' meant : nor is it plausible that, having seen the chain on PW1, he did not know that a robbery was taking place to get the chain; nor is it plausible that he should choose not to remain at the scene afterwards if it was his intention to help the victim; nor is it plausible that he would be forced into the getaway taxi if he were not willing."

11. From our reading of those words the learned judge is not saying simply that he rejected the applicant's evidence because he did not believe him, but he is saying no more than that the applicant's account of matters is unlikely and because it is unlikely (or implausible or coincidental) the inference that the applicant was a participant in the robbery becomes overwhelming.

12. Again for our part given the character evidence of Mr Chan (the applicant's former employer) to which we have referred together with the evidence that the applicant was of good character and gainfully employed, and given that the judge says nothing in his reasons to suggest that he does not accept that evidence, it seems to us that such may add credence to the applicant's account and thus make it more "plausible". And it is a fact, as we have stated, that the applicant's evidence in denying participation in the robbery was entirely consistent with what he told the police following his arrest.

13. As to the word "plausible" which is defined in the New Shorter Oxford English Dictionary as meaning (in relation to a statement or an argument) - "seeming reasonable or probable (though speculative) : apparently acceptable or trustworthy", it seems plain to us that what the judge was saying was that because the applicant's account of matters did not appear to him to be reasonable or probable (and thus apparently unacceptable or untrustworthy) he rejected it.

14. Having thus rejected it the learned judge proceeded, upon the prosecution's case, to convict the applicant despite his expressed reservations concerning the evidence of the prosecution witnesses which evidence he regarded as being unsafe in so far as it implicated the applicant directly in the robbery. In his reasons for verdict the judge then asks himself what he describes as being the "real question" which is that if the applicant had joined in the struggle to help PW1, might PW1 and PW2 have misunderstood his actions? In seeking to answer that question the judge concluded that it was "unlikely", which at least suggests that he was reviving the evidence of PW1 and PW2 concerning the struggle.

15. If the judge found himself unable to rely upon the evidence of the two principal prosecution witnesses concerning what had happened during the robbery, we fail to see how he could then conclude that it is unlikely that they would have misunderstood or misinterpreted the actions of the applicant.

16. In any event, or so it seems to us, there has to be certainty about what a judge believes or does not believe, and if such certainty is absent from his reasons so that his findings cannot be matched with his verdict, then the safety of that verdict must be called into question.

17. Had the applicant given evidence which the judge rejected because it was incredible or purely fanciful he would arguably have been entitled to convict the applicant. But that was not his finding. He rejected the evidence because it was implausible and coincidental and that is a very different matter which raises questions (which are not simply academic) touching upon the burden and standard of proof. In our judgment that is where he fell into error and it is no answer, as Mr Zervos has in effect suggested, to say that the trial judge plainly meant something other than what he in fact said.

18. For our part we would grant leave to appeal and, treating the hearing of the application as the hearing of the appeal, we would quash the conviction and set aside the sentence.

Hon Stock JA:

19. I find that I must respectfully disagree with the reservations which have moved my colleagues to allow the appeal. I am satisfied that what the judge was saying was that the account given by the applicant was not believable, and that he did not believe it; and that that is the sense in which the judge used the word 'plausible'.

20. Amongst the matters about which there was no dispute were the facts that Mr Cheng was robbed; that there were three men who were around and about his body whilst he was being attacked; and that one of the three men was this applicant. Of all of this the judge was satisfied, as he was that when shortly after the incident the other two men were apprehended, the applicant was with them.

21. In the light of those accepted facts one has to ask, as did the judge, what possible innocent explanation there might be for the applicant's involvement in the melee. The only possible innocent explanation is the one which the applicant provided. Once that explanation was disbelieved, it is difficult to see at what other conclusion the judge could reasonably have arrived.

22. The question, therefore, is whether the judge did disbelieve the defence and, if so, whether his reasoning was sound.

23. The judge did not reject the evidence of Mr Cheng and Madam Fan that the applicant was present at the time of the attack; nor the effect of their evidence that the applicant was somehow involved in the melee. He could hardly reject that, for it was agreed. What he was not prepared to do was to use their evidence upon which to reject the applicant's account as to his role, because their evidence as to his exact role was not satisfactory; and he said so, even though commenting that it was unlikely that they would have misunderstood his role.

24. So what then of the defence itself? We decided when this matter first came before us to adjourn in order to obtain a transcript of the applicant's evidence at trial. We are very grateful for the speed at which this request was met. A reading of the transcript rather brings to life the common sense of the judge's assessment as to coincidences and implausibilities to which, in his Reasons for Verdict, he refers. There are a number of features of the applicant's evidence which do not hang at all readily with reality. It is odd that he should have noticed, as he said he did, the old man's gold chain although there had been no discussion about it; but more particularly odd that, though having seen it, and that although (according to him) there had been no mention whatsoever of the chain and no mention of attacking the old man, the two other defendants then attacked the old man, without any prior discussion amongst themselves, without waiting for this applicant to depart when he had already announced his intention of doing so, without having any idea what attitude this applicant was to adopt, and that the applicant had no idea why they were attacking him, and did not even know after the event that the attack had been in order to steal the gold wrist chain, a photograph of which we have seen, and which is a rather prominent piece. So, too, it is highly relevant that the applicant was in the taxi with the other two after the event, and most unlikely indeed that the other two would have forced him into a taxi which they had hailed. All these are the factors which the judge addressed; and I am satisfied that by the passages which are recited at paragraph [10] above the judge was saying that, taking all these factors into account, such were the nature and number of features of the applicant's evidence that did not accord with reality, that he found the entire story not believable. Indeed, he said immediately after the passages thus recited that:

"For these reasons I reject the evidence of the defendant."

Once that evidence was not believed, a finding of guilt inevitably followed.

25. I would have dismissed the application for leave to appeal.

Result

26. By reason of the majority's decision, the Court grants the applicant leave to appeal and, treating the hearing of the application as the appeal, allows the appeal, and quashes the conviction, and sets aside the sentence imposed.

27. We shall hear such submissions as counsel may wish to make on the question whether there should or should not be a retrial.