HKSAR v. WU KIM POR

CACC 31/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 31 OF 1998

(ON APPEAL FROM DCCC 909 OF 1997)

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J U D G M E N T

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Liu, J.A. (giving the judgment of the court):

1. The appellant was charged with arson. The prosecution's case is that on 30 October 1996 he hurled a Molotov cocktail at the entrance of a Japanese restaurant in Hunghom. He was arrested by the police on 25 June 1997, almost 8 months after the alleged offence. On 30 December 1997, 14 months after the alleged offence, the appellant was convicted by His Honour Judge Chow of arson but acquitted of a charge of being a triad member.

2. The appellant's conviction was founded on the evidence of a co-defendant (Tang) and on his own statement given to the police. The appellant gave evidence at the trial, denying his presence at the scene, but he could not recall where he was or what he was doing on 30 October 1996.

3. In this appeal, the appellant seeks to overturn his conviction on five grounds. First, it is complained that the judge ignored or at least failed to apply fully the Turnbull principle. It is submitted that the judge did not pay any or any sufficient regard to the difficult circumstances in which Tang who gave evidence against the appellant, could observe him on the date of the charge. It is further complained that the judge speculated on a great many premises upon which he convicted the appellant. The judge is also said to have wrongly placed reliance on dock identification which was monumentally unhelpful.

4. Tang had pleaded guilty and been sentenced. He was approached in prison by the police to testify against the appellant. Tang pondered over the police invitation for about two weeks before a decision was taken to turn against the appellant as a prosecution witness. Tang had stood in the same dock with the appellant on an identical charge of arson. It is understandable that no identification parade was held. At the trial, Tang was asked to make a dock identification without objection from counsel for the appellant. The judge made a reference to it in these terms : "In court (Tang) had no difficulty in identifying the (appellant)". There is little to show that the judge was aware of Tang, having at one time shared the same dock in court with the appellant. A dock identification made over a year after the offence should not carry weight, and the judge should not have relied on Tang's apparent lack of difficulty in making his dock identification. After Tang hurled the fire bomb, he ran to the end of the street. The judge accepted that Tang was in a panic. Questions were not asked in chief of all the relevant matters which could go to the quality of the identification evidence of Tang. These matters were not fully canvassed in cross-examination either. The judge is criticised for making speculative assumptions in reaching several conclusions in terms such as : "It must be true .......", "He must have been informed ........, must have verified .......... or must have made enquiries of ...........". But the judge had warned himself repeatedly of the burden of proof. He had it placed on record that the appellant did not need to prove anything and that any weakness in the defendant's case would not, of itself, assist the prosecution. In his analysis of the evidence "stage by stage", the findings he made could have been better or more neatly expressed. In the proper context of his reasoning, the judge was simply saying that in the circumstances it was "incredible" or "strange" if he did not proceed to draw the conclusions he did. The identification issue could have been and should have been canvassed in more detail both in chief and in cross-examination. Also the appellant's case should perhaps be more explicitly put. Counsel for the appellant wound up his cross-examination thus :

"You (Tang) and Ah Wai (another co-defendant) carry out this bombing as you have described, but you carry it out under direct instructions and in the presence of your big brother, not the defendant."

As put, it would seem that the appellant's case was focused on false accusation by Tang rather than misidentification of the appellant. In that state of the evidence, what really mattered was : Is Tang's positive identification as given in his evidence, coupled with the dock identification linking his evidence to the appellant, sufficient identification? It has to be accepted that the dock identification of Tang carried no weight save for linking what was said by Tang in court about a man he met to the accused.

5. The case against the appellant was that Tang and another co-defendant had been instructed by their big brother, Ng, to fire bomb the Japanese restaurant in Hunghom. Their instructions were to meet up with a person in Sung Kit Street near Mei Moon Club. Upon arrival, the appellant told him where the fire bombs were. Tang and the other co-defendant went as directed to fetch the two fire bombs near a handcart. Tang lit up the Molotov cocktail and threw it at the entrance of the Japanese restaurant. The other co-defendant just threw the bottle unlit. According to Tang, the appellant also instructed them to fire bomb the restaurant. After Tang had hurled his fire bomb, he ran to the end of the street and met up with the appellant again. There Tang and the other co-defendant and the appellant waited for a taxi. They boarded the same taxi which took them to Mongkok where the three separated. The judge also took into consideration that Tang had never met the appellant before the encounter near the Mei Moon Club in Sung Kit Street. Tang testified that the appellant was the man he had been instructed to meet. Tang was ready to and did receive from that man information about the location of the fire bombs. It is inconceivable that Tang did not wholly satisfy himself with the identity of the appellant as the man he had set out to meet and take orders from, albeit that the meeting was short, no more than ten minutes. Tang allowed himself to be instructed also by the appellant to fire bomb the restaurant. The waiting time for the taxi to get away was at most a few minutes, but they shared the same taxi from Hunghom to Mongkok. The judge was right that it was not a fleeting glance. The time was 2:30 in the afternoon. Both the short initial meeting and the incriminating conversation were expected to be unobtrusive, but there was good reason for Tang to be cautious of not making a wrong contact. Tang accepted the appellant as the man he was to meet and took his order. After the short initial meeting, there was a relatively protracted period in which a taxi was hailed and the three shared it to Mongkok. These circumstances in broad daylight do not suggest any difficult conditions for making a later positive identification. None was specifically put at the trial. The time spent by Tang with the appellant could be said to be somewhat extended from the meeting, including the need to make the right contact for the supply and acceptance of information as to the whereabouts of the fire bombs, the taking of an order on the spot to fire bomb the restaurant, the regrouping at the end of the street, to the taxi journey for Mongkok. It is inconceivable that Tang could possibly misidentify the appellant. Tang's identification was positive. That was the decision of the judge. The judge must be right. The shortfalls with reference to Tang's dock identification and in the way in which the judge struggled for a well-reasoned analysis would not have the effect of diminishing the force of his conclusion on the identification issue. The evidence against the appellant was overwhelming, and evidence was all one way. It is quite unnecessary for this court to deal specifically with the separate criticisms levelled by Mr Grounds, counsel for the appellant. Ground 1 fails.

6. What is said by this court under Ground 1 would apply equally to the complaints raised in Ground 2 which targets the judge's reasoning processes. In the manner set out earlier, the judge is said to have made illogical and/or speculative evaluations. Insofar as these complaints are directed at the voluntariness of the statement given by the appellant to the police, the judge found it incredible for strangers to be admitted into a home unless they had sufficiently revealed their identity to the occupant, that is the mother of the appellant in this case, and disclosed the lawful purpose of their visit. In resisting the admissibility of his statement, the appellant maintained that he was not told of the reason for his arrest. The judge concluded that the mother would know from the given purpose of the visit that the police investigation of arson involved the appellant. Hence, in essence, the judge found it inconceivable for the police to withhold the nature of the charge from the appellant. In the circumstances, the judge was entitled to reject the appellant's allegation. It was also open to the judge to make findings on what was said or done or what was not said or not done on the way to Hunghom police station after the appellant's arrest and in the subsequent journey to Police Headquarters at Arsenal Street. The appellant alleged police assault and intimidation. The judge relied on an entry of "11.20" on the notice served upon the appellant by the police advising him of his rights. The notice was signed by the appellant and a police officer. There was no evidence as to the authorship of this entry of "11.20". The appellant and the police arrived at Police Headquarters, Room 2347 at 11.10 a.m. The judge is said to have wrongly assumed that forms and papers were not readily available and had to be brought into this room for interviewing the appellant and to have wrongly relied on this entry on the notice of "11.20" as the time at which the appellant was about to make his alleged voluntary statement. The judge found that in the ten minutes that elapsed pending the supply of the interview forms and paper, little time would have been left for the police to misbehave in the series of acts complained of. That conclusion is clearly unjustified. Whether or not the police had committed acts of impropriety, no time element in this case was or could be very helpful. However, there were ample other matters on which the judge could and did find in favour of the police officers' version against the appellant in admitting his statement. The judge was also entitled to ask himself whether it was incredible that having agreed with another police officer after assault to give a statement (as alleged by the appellant), it was necessary (as further alleged by the appellant) for another police officer taking the statement to have to refuse to turn down the volume of the air-conditioning so as to induce the appellant to make a statement which he had already agreed to give after the alleged earlier assault. It is quite unnecessary to deal with each and every complaint of the appellant on the matters relied upon by the judge in reaching his conclusions. The complaints, even if true, would not override the good justification for the judge to admit the appellant's statement. The weight of the other matters on which the judge relied remained little affected. For these reasons, we are not prepared to intervene on account of the complaint of the "11.20" entry and others in Ground 3.

7. We should comment that there was no evidence of the police having ever offered to assist Tang to seek a further reduction of his sentence for co-operation. The possibility of being given a reduction was far from the mind of Tang who in fact stated in evidence that he did not expect any special privileges or an early release. The judge was silent on a possible incentive of this kind. In the circumstances, we are not persuaded that the evaluation of Tang's evidence by the judge was materially affected by such a remote possibility which had not influenced the witness at the time when he testified.

8. We are unimpressed by the contention in Ground 4 of the Grounds of Appeal that the judge misdirected himself or misapplied the principle of burden and standard of proof. The complaint arises from what the judge said, viz. that he had "grave doubt that the (appellant) made up the story of assault". Immediately following, the judge said that he doubted the appellant's credibility. It was part and parcel of the judge's overall evaluation process. We are not satisfied in the overall context of his judgment that by that very sentence, the judge departed from correct principles of onus and standard of proof he had so clearly given in the earlier part of his reasons for verdict.

9. Finally, in all the circumstances, the appellant's conviction is neither unsafe nor unsatisfactory.

10. Despite counsel's eloquent submissions, we can find no real substance in any of the grounds advanced on behalf of the appellant. His appeal must be dismissed and we dismiss it.