HKSAR v. WU SIU HONG

IN THE COURT OF APPEAL

1996, No. 463
(Criminal)

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J U D G M E N T

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

1. The Applicant who was 3rd defendant in the proceedings below seeks leave to appeal against his conviction for robbery.

2. This was a lift robbery which occurred in the afternoon of the 23rd January 1996 at the Fu Shin Estate at Tai Po. The victim was a student who was returning home. When he entered the lift he was followed by two youths. After the lift started to ascend the youths demanded that he should give them his money. When he refused to comply with the demand he was punched and pushed around. One of the youths went through his pockets and took his wallet and extracted HK$200 and his MTR stored value ticket.

3. When the lift came to a halt the youths ran away. The victim made a report to the police and shortly after this the 1st defendant and 2nd defendant were arrested by the police nearby.

4. The police also attended at the victim's home and on learning that he was feeling dizzy arranged for an ambulance to take him to hospital to be medically examined.

5. The victim gave evidence that while he was being transported to hospital he saw out of the tinted window of the ambulance police officers interviewing two youths. He told the police constable who was with him that he saw that the men were the robbers who had attacked him. Unfortunately, the police constable did not give instructions to the driver to stop the ambulance so that there might be a direct confrontation with the men.

6. Later in the afternoon police officers attended at the Applicant's residence and asked for him. He was out at the time. Later at night the Applicant, who was aged 18 at the time, and his adoptive mother attended at the police station and according to the trial judge, His Honour Judge Wilson he was satisfied that the Applicant was in fact giving himself up to the police.

7. At the police station the Applicant made a cautioned statement in which he admitted the offence.

8. Subsequently at an identification parade the victim picked out 1st defendant and the Applicant as being the youths who had robbed him.

9. On the subject of identification there was one minor problem at the trial. While the victim was sitting down he initially identified 1st defendant and 2nd defendant as the robbers. However, when he stood up and without prompting he corrected himself and identified 1st defendant and the Applicant as being the robbers. In this connection, it should be noted that according to the prosecution case. 2nd defendant only acted as a look out and did not himself enter the lift so the victim would not have had an opportunity of seeing him. 1st defendant was however with the Applicant in the lift according to the prosecution case.

10. The Judge was satisfied that the cautioned statement made by the Applicant had been made freely and voluntarily and he admitted it as evidence.

11. He was also satisfied that the victim had correctly identified the Applicant.

12. The first ground of appeal is directed towards the admission of the cautioned statement. Complaint is made that the Judge made no findings of credibility on the Applicant's evidence.

13. Although the Judge did give reasons for admitting the statement he was not required to do so.

14. However having done, so it must be said that the reasons which have been given do give rise to some concern. Mr. Nullick refers to a number of unsatisfactory features in the prosecution case including the fact that the Judge formed the view that parts of the statement had not emanated from the mind of the Applicant.

15. One of the consequences of this is that it must cast doubt upon the credibility of the police officer who strongly maintained that everything in the statement came from the Applicant.

16. Also the Judge referred to the fact that the Applicant's mother had been dissuaded from witnessing the taking of the statement. The Judge deplored this.

17. The problem though with all these matters is that the Judge makes no attempt to resolve the issues he refers to. He simply concludes that notwithstanding the matters he refers to, he is "satisfied that (the statement) was made voluntarily". We do not think that this is good enough. In our view the statement should not have been admitted as evidence without the resolution of these unsatisfactory issues.

18. It is now necessary to go on to consider the identification evidence.

19. The 2nd ground relates to this. Here again there are problems. At p.7 of the Reasons for Verdict the Judge made reference to the victim having "a good view of him, D1, but an obscured view of the other youth" when he was looking out from the ambulance. An examination of the transcript of the proceedings provides no evidence to support that analysis of the situation. The Judge then goes on to refer to the victim's uncertainty that "the pair were the robbers". This is not right. The victim at all times maintained the two men he saw were indeed the robbers. This misunderstanding of the position is in our view fatal. There must be some doubt as to whether the Judge correctly apprehended the evidence identifying the Applicant. This conviction is therefore unsafe and unsatisfactory. This being the case the application is allowed and treating it as the appeal itself we allow it and quash the conviction.