HKSAR v. LAU TAT KEUNG MILKY

CACC4/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 4 OF 1999

(ON APPEAL FROM HCCC 132 OF 1998)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. On 26th November 1998 the applicant was convicted after a trial before a jury and Deputy Judge Jackson (as he then was) of three counts of possession of arms and ammunition without a licence (i.e. counts 1, 4 and 5) and one count of shooting with intent (i.e. count 3). Originally the applicant seeks leave to appeal against the convictions on counts 1, 3 and 5 but before us, he has abandoned his appeal against the conviction on count 5. Accordingly that application has been dismissed.

2. We are concerned with the appeal against conviction of counts 1 and 3.

3. The particulars of offence of the count 1 are these:

"LAU Tat-keung, Milky, on the 18th day of November, 1997 at the 17th Floor, Lok Shun House, Tsz Lok Estate, Tsz Wan Shan, Kowloon, in Hong Kong, had in his possession arms and ammunition, namely a pistol, revolver or rifle capable of discharging a 0.22 calibre lead bullet and one 0.22 calibre ammunition without a licence."

4. The particulars of offence of the count 3 are these:

"LAU Tat-keung, Milky, on the 18th day of November, 1997 at the 17th Floor, Lok Shun House, Tsz Lok Estate, Tsz Wan Shan, Kowloon, in Hong Kong, shot at LO Fong-ping with intent to do him grievous bodily harm."

5. The prosecution evidence was PW1 Lo Fong-ping had a girl friend Miss Ng. The Applicant had been trying to attract the attention of Miss Ng, but she did not seem to like him very much. In September, 1997, PW1 was introduced by Miss Ng to the applicant when PW1 went to her home. On that occasion, the applicant was there installing a ventilation fan for Miss Ng and that was the only occasion prior to the attack on PW1 that PW1 had seen the applicant. PW1 was a person who needed glasses to see clearly but for objects two to three feet away, he could nevertheless see them without glasses.

6. On 18th November 1997, shortly after 8 a.m. PW1 went to the lift lobby on 17th floor, Lok Shun House to wait for the lift. He saw a man there with his back towards him. He recognised from the man's back, his height, physique and his hairstyle to be similar to that of the applicant. But he did not see the man's face. PW1 whilst waiting, turned his sight elsewhere. Suddenly, he felt something touched his neck which produced numbness over his body, a sensation he never felt before. He turned round and saw the man was two to three feet behind him facing him. He saw the man's face, albeit for a few seconds. He recognised the man's features to be that of the applicant. PW1 then ran along the corridor to escape from the attack and shouted for help but the man chased after him and caught up with him. The man touched him again with the same object. PW1 then tripped and fell. Before he fell, he saw the profile of this man and he recognised that it was the applicant's although he was not quite sure. Until he fell, he was wearing glasses and could see clearly. He then struggled with the man who tried to touch him once again with the object. In the course of the struggle, the man dropped the object while PW1's glasses came off. The man then got up and went back to the lift lobby. PW1 also got up and went to the lift lobby. When he was about four to five feet from that man, the man went towards him and PW1 could see the man's face. PW1 then ran back to the corridor but because he was still affected by the body numbness, he fell again. Then he heard the sound "bang" twice. He was shot on his right face.

7. On 25th November 1997, about a week later, PW1 attended an identification parade and picked out the applicant who was No. 4 on the parade line as the person who attacked him on 18th November 1997. He also recognised the man he picked out was the applicant Lau Tat-keung. PW1 also identified from photographs which came from the CCTV on the premises in question that the person shown in the photographs looked 80 per cent like the person who attacked him.

8. PW1 also recognised the applicant in any case because he had met him on that occasion in September, 1997, although such recognition was not 100 per cent. But the September encounter, according to PW1, helped him in identifying the applicant as the assailant in the identification parade.

9. The applicant's case was that he was not the attacker.

10. The main issue at the trial was whether the applicant was the attacker on 18th November 1997 and identification evidence was therefore of crucial importance.

11. The 1st ground of appeal is that the quality of the identification evidence of PW1 was weak and the quality of the CCTV photographs evidence is flawed and should not have been relied upon as supporting the poor quality evidence of PW1 and the Judge should not have found a case to answer.

12. The 2nd, 3rd and 5th of the perfected grounds of appeal have been abandoned by the applicant.

13. The 4th ground of the appeal in short is that the Judge should have further directed the jury that:

a. if they are not satisfied that PW1's identification of the applicant was sure and not mistaken, they still could not convict even though they are satisfied that the man in the CCTV photographs evidence was the applicant.

b. before they could convict, they must be sure that the defendant was the attacker having regard to the circumstances of the attack.

14. The 5th ground is that the inadequacy of the Judge's direction is borne out by the jury's question after they retired asking for the evidence of PW1 and parallel evidence to be recalled.

15. The 6th ground which is amended today reads as follows:

(a) That the learned Deputy Judge had failed to direct the jury in his summing-up that there was no direct evidence that the applicant shot at LO Fong-ping.

(b) Further and/or in the alternative, the learned Deputy Judge has failed to direct the jury properly and adequately in that even if they are sure that it was the applicant who had opened fire, whether the only irresistible inference was that the applicant deliberately shot at Mr. LO or whether other possible inferences were to be drawn such as whether it was an accidental discharge or reckless shooting.

16. The final ground of appeal is a general ground that the convictions are unsafe and unsatisfactory.

17. Mr. Chui for the applicant submits that the evidence of identification was weak because the opportunity was limited to, as he puts it, several fleeting glances and PW1 had eyesight problem and his glasses had fallen off during the incident. Further, PW1 had little impression of the applicant from his September encounter. He was not sure of his identification at the identification parade and he needed to see the profiles of the participants before he picked out the applicant. The CCTV evidence, Mr. Chui submits, was also of poor quality because they were obscure. Therefore the evidence was such that the Judge should have withdrawn the case from the jury.

18. The evidence of PW1 clearly shows the following:

a. At the lift lobby there were only PW1 and the man who subsequently turned out to be the attacker. Before the attack, PW1 saw the back of the attacker and recognised such features as his height, physique and hairstyle as similar to those of the applicant.

b. Immediately after the first attack, PW1 turned and was face to face with the attacker for a few seconds at close distance of 2 to 3 feet and he saw the facial features were those of the applicant.

c. When PW1 ran to avoid further attack, he was chased by the attacker. He saw the attacker's face again before he fell and he recognised it was that of the applicant.

d. He was wearing his glasses at all times before the struggle with the attacker.

e. He saw the attacker's face the third time though at 4 to 5 feet and without his glasses and thus was not very clear.

f. He was able to recognise the applicant even before the attack on 18th November 1997 because of his encounter with him in September 1997 and that encounter assisted him to identify the Applicant as the attacker at the identification parade.

g. At the parade, he was sure that the applicant at No. 4 was the attacker and this was doubly confirmed after he viewed the right profiles of the line up.

19. It is said that in examination-in-chief, when PW1 was asked if he was sure his identification of the applicant as the attacker, he mentioned percentages of 90 per cent or more than 85 per cent. But this relates to the occasion when PW1 had the opportunity to observe the attacker. In effect, he said he did not see the face 100 per cent and if he were to rely on the profiles only, it would only be 85 per cent sure. However, in his evidence in cross-examination and in re-examination, the sum total of his evidence there is that he was sure that the attacker was the applicant. Thus it is necessary for me to refer to PW1's evidence in cross-examination and re-examination so as to have this particular fact borne out.

20. The relevant part of this evidence is to be found on p.235 of the bundle. This reads as follows:

"Q. Now, about the identification parade which was held on 25 November 1997, some seven days after the incident. Yesterday, do you recall when my learned friend for the prosecution asked you are you sure the man you picked out from the parade was the attacker, your answer was, 'Sure.' Do You recall that?

A. Yes, I do remember.

Q. Perhaps, can you explain why you were sure that the man standing at position No. 4 at the parade was, according to your evidence, was the attacker at the material time. Bear in mind you agreed already in evidence that you had, firstly, little impression on the man you had first seen in September inside your ex-girlfriend's house and two months later on the day of the incident. You also agreed in evidence that for the whole of the incident, bear in mind the situation is confused, you only had five to six seconds in total, of this man who you said was the attacker. And how can you now say seven days after the incident at a parade you are sure that this man was in fact, the attacker at the material time on the material day?

A. Because I could remember his build, his appearance, his look. To me, five to six seconds was good enough to recognise a person. I want to say this once again. Yesterday I said that I had met him on one occasion at my girlfriend's home. It assisted me when I tried to pick him out.

Q. Now, I suggest to you that you cannot be sure at the parade.

A. I was sure.

Q. Do you recall during the parade you made some request?

A. Yes.

Q. And the request, was it not, at that time, you yourself having viewed some nine persons in front of you at the parade line, you requested to have all the persons turning right with their right face for your identification?

A. Yes.

Q. And it was only when all the nine persons had their face turning right for your identification had you then told the chief inspector holding this parade it was No. 4 being the attacker at the material time. Was it the case?

A. Having looked at their front view I was certain in mind that it was No. 4, and when I asked to take a look at his right side of the face, I was trying to be more sure."

"In re-examination

Q: Mr. LO, are you sure that the man that you picked out of the identification parade was the man who attacked you?

Q. Sure."

21. Overall, the effect of PW1's evidence on identification was that he was sure that the person he identified as the attacker was the applicant.

22. Thus, the identification evidence did not as suggested by Mr. Chui, consist of a number of fleeting glances. There were three occasions albeit short whereby observation can be gained from these face to face encounters, with adequate opportunity for PW1 to register in his mind the features of the attacker, although these were not in optimal conditions. It was such evidence coupled with recognition that the applicant was identified. PW1 was sure of his identification of the applicant and it was out of extra caution that he requested to see the right profiles of those participating, after which he was doubly sure. The evidence of PW1 on his identification of the applicant as the attacker could not be said to be so weak that the case should not be left to the jury.

23. The Judge in his summing-up to the jury told them that the case against the applicant in relation to these counts depends to a large extent on the correctness of an identification of the applicant by PW1 which identification the defence alleged to be mistaken. He then directed the jury along the guidelines of R. v. Turnbull [1976] 63 Cr. App. R. 132 and the necessary circumstances as to the identification that they needed to consider. In relation to the length or opportunity in which the witness was able to see the attacker the Judge said this:

"Consider, too, members of the jury, the length of the attacks which Mr. Lo told you were made upon him, their suddenness, their unexpectedness, the state of mind which Mr. LO was in at the time of the attacks. And it may help you, members of the jury, if you imagine yourselves in the position in which he told you he found himself."

24. The Judge then referred to the evidence of PW1 and told the jury to further consider the need for caution in approaching identification evidence because even in cases of recognition, mistakes could be made and mistakes sometimes were made even in the identification of close friends and relatives. He said this:

"In the present case before you, the evidence certainly is not that the alleged victim and this defendant were closely acquainted. They had only met each other once before and that was in September. And, members of the jury, if, having borne my warning to you fully in mind, you are not sure that when Mr. LO picked the defendant out of the identification parade as being his attacker, he was sure and that he was not mistaken, then ignore the evidence of that identification parade and put it aside completely."

25. Thus the jury were made aware of the circumstances of the observation of the attacker at the material time by PW1 and all the dangers of wrongful identification. And they were told in no uncertain terms that they must be sure that the applicant was the attacker before they could convict.

26. Mr. Chui submits that the CCTV photographs evidence should not also have been left to the jury because they are of a poor quality and flawed and it is dangerous for the jury to compare the obscure images on those photographs from that of the applicant himself in court.

27. Mr. Pang for the government has referred us to two cases, the case of R. v. Dodson and R. v. Williams, [1984] 1 WLR 971 and the case of R. v. Downey [1995] 1 Cr. App. R. 547 where the courts considered photographs taken by video camera were admissible and the jury should not be prevented from looking at a defendant in the dock and then to conclude if it be safe to do so that the man in the dock is the man shown in the photographs. What was said by Watkins L.J. in Dodson and Williams in this regard as cited with approval in R. v. Downey at p.554 is this:

"Moreover, we reject the attempt here made to persuade this Court to prevent a jury from looking at photographs taken by means of this technique, looking at a defendant in the dock and then to conclude if it be safe to do so that the man in the dock is the man shown in the photographs ... In performing this task juries cannot possibly in our judgment be regarded as acting as experts . . . They are called upon to do no more than the average person in domestic, social and other situations does from time to time, namely to say whether he is sure that a person shown in a photograph is the person he is then looking at or who he has seen recently.

It is, however, imperative that a jury is warned by a judge in summing-up of the perils of deciding whether by this means alone or with some form of supporting evidence a defendant has committed the crime alleged. According to the quality of photographs, change of appearance in a defendant and other considerations which may arise in a trial, the jury's task may be rendered difficult or simple in bringing about a decision either in favour of or against a defendant. So long as the jury having been brought face to face with these perils are firmly directed that to convict they must be sure that the man in the dock is the man in the photograph, we envisage no injustice arising from this manner of evaluating evidence with the aid of what the jurors' eyes tell them is a fact which they are sure to exist."

28. There is no evidence that the quality of the photographs was poor and in fact PW1 was asked in his evidence to concentrate on the first photograph in the bundle which clearly depicts the man in the lift lobby at the time. PW1 was asked to make comparison of this man in the picture with the applicant. We have seen these photographs and they are not at all of poor quality or obscure. In our opinion it would not be wrong for them to be left to the jury. The Judge in relation to the evidence on the CCTV photographs evidence said this to the jury:

"... if a witness tells you that he is 70 per cent, 80 per cent or 90 per cent sure of something, then I direct you, as a matter of law, that he is not sure. When considering if you are sure that Mr. LO's identification of the defendant as his attacker was a correct identification and not a mistaken one, you are entitled to consider evidence which is capable of supporting that identification.

And, members of the jury, the only evidence that falls into that category is the closed circuit television evidence, and you have to approach that evidence with care, as I shall direct you shortly. But, members of the jury, there is no other evidence which is capable of supporting the identification evidence."

29. Later on, the Judge at p.22 of the bundle told the jury this:

"Now, you have had the advantage, members of the jury, of observing the defendant during the course of this trial; in particular, over the two days when he gave evidence before you, but also whilst he was in the dock, and also when you viewed the video film of his being interviewed by the police. Can you be sure that the man shown in the closed circuit television photographs and the defendant are one and the same person? Be very careful when considering that question."

30. The Judge then warned them of the dangers and difficulties in making identifications from photographs saying:

"... You will, members of the jury, I am sure, know from your own experiences, that photographs may give different impressions of the same person. Doubtless each of you, at some time or other during your lives, will have looked at a photograph of somebody, somebody you know well, perhaps even yourself, and have thought that it was somebody else.

But, as I say, provided that you bear in mind the need for caution in relation to that evidence, you have seen the defendant over many days in this court. You have seen the video film of his interview with the police. You have before you the photographs taken from the closed circuit television film and, indeed, you have seen that film itself and it is for you to say whether or not you are sure that the man in the photographs and on the film and the defendant are the same person."

31. The way the Judge had dealt with the CCTV photographs evidence was indeed consistent with the authorities which have been cited above. He dealt with the evidence at length interpolating with warnings to the jury about the perils in identification from photographs. The Judge did not make this evidence as independent evidence of identification as suggested by Mr. Chui. The jury were told that photographs were merely to support the identification evidence of PW1.

32. The complaint in the 4th ground is that the Judge in his summing-up (at p.23 of the bundle) did not adequately direct the jury as to what they should do if they accept the CCTV photographs evidence as showing the applicant but reject the evidence of PW1's identification.

33. As we have said earlier, the Judge's direction on the photographs as a whole did not in any way indicate to the jury that the photographs are independent evidence which they could rely on to convict. While the Judge did not say in the paragraph referred to what Mr. Chui would have wanted him to say, the tenor of the Judge's summing-up once again clearly set out the crucial question for the jury to decide, i.e. they must be sure of the evidence that the Applicant was the attacker and the jury was to decide if the photograph depicts the applicant and if that evidence is capable of supporting PW1's evidence of identification.

34. As to the 6th ground, there was no challenge to the evidence that PW1 was shot on the day in question. The Judge in his summing-up had referred to the evidence of SDC 11671 who seized a piece of bullet of 0.22 calibre at the scene. There was expert evidence that this had been fired from the barrel of a pistol, revolver or rifle but there was no evidence indicating that the shooting was the result of accident, recklessness or negligence. The evidence of PW1 was that it was a deliberate attack on him. Clearly, if the jury accepted the evidence of PW1 that the applicant was the attacker on that morning attacking him first with the stunning object and later shot him, the jury would inevitably come to the conclusion that PW1 was shot by the applicant with intent to cause him grievous bodily harm. The fact that the Judge did not direct the jury stating there is no direct evidence of the shooting is not of material importance. The 6th ground therefore has no substance.

35. The Judge had fully and rightly directed the jury in all aspects of the case. We find no fault in his summing-up. The verdict of guilty returned by the jury of the two charges cannot be said to be unsafe or unsatisfactory. The application for leave to appeal against conviction on these two charges must be dismissed.

36. The Applicant also asked for leave to appeal against sentence in respect of the sentences on counts 1, 3 and 5. In respect of the count 1, he was sentenced to 7 years imprisonment. In respect of the count 3, he was sentenced to 9 years imprisonment and in respect of the count 5, he was sentenced to 4 years imprisonment. He pleaded guilty to the count 4 and he was sentenced to 2 years imprisonment. In his notice of appeal, he mentioned he wishes to appeal generally against sentence. I presume that he also wishes to appeal against the sentence on the count 4. These sentences were made concurrent and the total sentence which the Judge ordered that the applicant should serve is a period of 9 years. The Judge had referred to the authorities of Chan Chi Mei-wah [1990] 1 HKLR 190, Ho Chun [1992] 1 HKCLR 86 and Yeung Wai-kwong [1994] Crim. App. 238 which indicate generally that a s.13 possession of arms and ammunition offence attracts a sentence ranging from 4 years to 8 years following a plea depending upon the nature of the firearm and ammunition as well as their quantity. The Judge adopted a sentence of 9 years in respect of count 3 which was the most serious offence among the four offences the applicant has been convicted of.

37. The applicant today has furnished to us a written submission. This does not state anything more than his background and the matters of mitigation which the Judge had already taken into consideration. The whole object of the application today by the applicant is to ask this court to reduce the sentence. We see no reason that such sentences should be interfered with. In fact, these offences are clearly serious and the total sentence of 9 years for the criminality involved in all four offences is on the lenient side and cannot be regarded as manifestly excessive or wrong in principle. For these reasons we dismissed the application for leave against sentence.