HKSAR v. TANG YEE LUT

[English Translation – 英譯本]
CACC 325A/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 325 OF 1999

(ON APPEAL FROM DCCC NO. 95 OF 1999)

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JUDGMENT

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Hon Wong JA (delivering the judgment of the Court):

1. The applicant for leave to appeal, Tang Yee Lut, was convicted on one count of burglary before Deputy Judge Li in the District Court and was sentenced to 4 years’ imprisonment.  He now seeks leave to appeal against conviction and sentence.

2. There are two grounds of appeal:

(1)   The trial judge erred in law and in his finding of facts in that he had not properly dealt with the issue of PW1’s “80%” identification of the applicant/appellant at the identification parade.  It was only when PW1 saw the tattoo on the applicant’s/appellant’s chest that he confirmed that the applicant/appellant was the person who had burgled his home at the material time.

(2)   The trial judge erred in law in that he had failed to warn himself of the danger of possible mis-identification in respect of PW1’s evidence of identification of the applicant.

3.  The prosecution called a total of 4 witnesses to support its case, which was that at around 10 a.m. on 18 December 1998, the defendant sneaked into Room 1328, Wing Hong House, Fuk Loi Estate to steal.  Meanwhile, the owner of the flat (i.e. PW1) happened to return home and saw the Defendant inside the flat.  A struggle ensued and the defendant managed to flee in the end.  A short while later, he was intercepted by patrolling police officers in the vicinity of the scene, on Sha Tsui Road, where he made an oral admission.  A few days later, PW1 identified the defendant at an identification parade.  The defendant contended that he had never entered PW1’s home to steal, that PW1 had wrongly identified him, that he had never made any oral admission and that the subsequent record of interview was not made voluntarily.  He also complained that the identification parade was unfair because he was the only one who was tattooed and PW1 identified him solely on that basis.

4. The trial judge briefly related the evidence of the 4 witnesses in his Reasons for Verdict.  The evidence of PW1, PW2 and PW3, as set out in pages 7 to 8 of the transcript, is as follows:

“PW1, Lau Wing Hong, testified that at around 12 noon on the day of the offence, upon his return home, he noticed that two panes at the bottom of the ventilation window facing the corridor had been broken. He looked into the flat through the ventilation window and saw the defendant standing by that window, at about one foot away from him.  He believed the defendant was standing on a chair.  The lighting at that time was sufficient and he could see the whole face of the defendant, whose hair was partly dyed gold.  They looked at each other for about ten-odd seconds.  Feeling certain that he had never seen the defendant before and suspecting him to be a thief, he asked the defendant who he was and what he was doing in his home.  The defendant answered, ‘Nothing.’  He immediately locked the entrance door and called the police.  The defendant asked for a chance and begged to be let go, but he ignored him and took guard by the ventilation window.  Suddenly the defendant forced his way out of the ventilation window.  A struggle ensued.  At one point he was embracing the defendant, face to face and chest against chest, which gave him a clear view of the defendant’s face.  Later he even pulled off the defendant’s black sweatshirt and underwear, but the defendant still had a pair of blue jeans on.  He noticed there was a tattoo of an eagle on the defendant’s chest spreading from one shoulder to the other, but he was not sure whether there was any tattoo on his back.  The defendant finally managed to break free and fled along the staircase.  He (PW1) went in his flat to have a check, and on initial inspection, a Tudor watch, $280 in coins and a bunch of keys were found missing.  Subsequently, the police arrived.  A travel bag containing the above missing items was seized near the ventilation window inside the flat.  He had not put those items in that travel bag.  Several days later, at an identification parade conducted in Tsuen Wan Police Station, he identified the defendant.  At that time he was already 80% sure that the defendant standing at position No. 2 was the one who burgled his flat, but to ensure correct identification and absolute certainty, he requested that all the subjects in the parade remove their upper garments.  Having ascertained that the defendant was tattooed, he pointed him out to the police officer in charge of the parade.

PW2, PC 2956, was a police vehicle driver.  He received a message at around 12:30 p.m. on the material day, and after taking his team members to Fuk Loi Estate, he drove alone in the vicinity in an attempt to intercept (any suspect).  At around 12:45, in Tai Chung Road, he saw PC 23137 running ahead and signalling him to drive on.  He therefore picked up speed and moved on along Tai Chung Road, paying attention to the pavement on the left.  While approaching Sha Tsui Road, he saw the defendant hurriedly turning left from Tai Chung Road into Sha Tsui Road.  At that time the defendant was naked to the waist and wearing a pair of light grey jeans.  He had tattoos on his chest, back and arms and his hair was dyed gold.  PW2 drove along the nearside lane, proceeding alongside the defendant at about two metres away from him.  After a short while he pulled up, climbed over the railings along the pavement and stopped the defendant on the staircase at No. 107 Sha Tsui Road.  As the defendant kept struggling, he pressed him to the ground and handcuffed him.  Upon questioning, the defendant admitted to the present offence.  The defendant also said he had committed the offence because he had lost his job and had to support his parents.

PC 23137 and other police officers later arrived.  PC 23137 was only responsible for keeping guard over the defendant, whereas the other officers had boarded the vehicle to see the defendant.  A short while later, at 1:15, in Room G07 of Tsuen Wan Police Station, a post-record of what the defendant had said at the scene was made.  At around 1:50 on the same day, the same officer interviewed the defendant again and took a record thereof. The defendant read the record and signed on it in confirmation.  These two documents were produced as exhibits P1 and P2 at trial.”

5. The two exhibits P1 and P2 stated that the applicant had confessed to burglary.  With respect, we do not agree with the submission of Mr So, Counsel for the applicant, because in this case the identification evidence did not form the sole basis of establishing guilt on the part of the applicant.  Viewing the evidence in the round, the prosecution case was overwhelming.  The trial judge had rejected the applicant’s evidence, and on the prosecution evidence, which the trial judge had accepted, a verdict of guilty would have been inevitable.

6. The Turnbullguidelines on identification do not apply in this case.  Here the evidence which served to establish guilt did not wholly or mainly depend on the evidence of the witness having correctly identified the defendant; indeed, it can be said that there was more than sufficient evidence to establish guilt.  Turnbull is applicable only where all or a substantial part of the evidence consists of identification evidence.

7. In our judgment, the evidence supporting the conviction was simply irresistible.  Such evidence was conclusive, secure and reliable.  We do not see anything unfair or improper in the trial judge’s verdict.

8. For the above reasons, we dismiss the application for leave to appeal against the conviction.

9. We now turn to the sentence.  The trial judge had this to say in his Reasons for Sentence:

“The defendant is convicted on one charge of burglary.  On the day in question, he sneaked into Room 1328, Fuk Loi Estate to steal.  That the victim did not suffer any loss of property does not make the defendant less culpable.  The defendant has 8 previous convictions, 5 of which are similar.  He had previously been sentenced to imprisonment for burglary, but he repeated the offence.  In my view, a deterrent sentence should be imposed.  I have considered his background and fail to see any mitigating factor.  He has no one to blame but himself.  For the offence of burglary on domestic premises, the starting point should be 3 years.  However, given the defendant is a repeat offender who keeps committing similar offences, there is no reason for mercy.  As I also consider a deterrent sentence appropriate, I adopt 4 years as a starting point.  The defendant is accordingly sentenced to 4 years’ imprisonment.”

10. The applicant has a history of criminal activities dating back to 1977.  He has 5 previous convictions for burglary.  The first was in 1977 when he was charged with two counts; the second was in 1982; the third was in 1989 when he faced three counts; the fourth in 1990 when he was sentenced to imprisonment for 4 years and one month; and the fifth in 1995, when he was sentenced to 3 years and 9 months’ imprisonment.  The trial judge very correctly described the applicant as a repeat offender.  The relatively high starting point adopted by the trial judge was also in line with the judgment of a differently constituted Court of Appeal in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.

11. Finally, Mr So for the applicant urged for a reduction of the sentence on humanitarian grounds.  We do not discern any such grounds here.  In our judgment, the sentence imposed is neither manifestly excessive nor wrong in principle.  A sentence of 4 years’ imprisonment cannot be more appropriate in the circumstances of this case.  Accordingly, we dismiss the application for leave to appeal against sentence.