HKSAR v. WONG CHAK MAN

CACC 210/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 210 OF 2006

(ON APPEAL FROM DCCC NO. 891 of 2005)

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REASONS   FOR   JUDGMENT

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

1.  The appellant sought leave to appeal against his conviction on 10 May 2006 for robbery which followed a trial before Deputy District Judge A Kwok.  When the appellant came before the single judge on 30 January 2007, he was given leave because it was considered to be a possibility that hearsay evidence may have been utilised to bolster the case for the prosecution.

2.  At the conclusion of proceedings on 20 November 2007, we dismissed the appeal and now give our reasons for so doing.

3.  The facts do not need to be rehearsed in any detail for present purposes.  It suffices to say that Ms Man (PW1) became the victim of a robbery on 8 February 2005 at about 6.22 pm as she walked home from work.  Her mobile telephone was stolen.  The robber was a man of Chinese appearance who had been holding a cutter in his hand.  PW1’s statement, made at about 7.45 pm on the same day, included a description of the robber in these terms:

“	… about 20 to 25 years old, about 1.7m tall, of medium build, with common complexion, with a fleshy square face and a fleshy nose, with parted long hair touching the jaw, clad in a beige jacket, speaking Punti dialect.” (Appeal bundle p.42)

4.  PW1 had not previously encountered this man and, four weeks later, after the appellant had been arrested, she failed to pick him out as the culprit at an identification parade.  In the result, as PW1’s statement was not contentious, it was read into the evidence under the provisions of section 63B of the Criminal Procedure Ordinance, Cap. 221.

5.  The police officer in charge of the investigation distributed a crime message to a number of police stations in regard to the robbery.  DPC 50165 (PW2), who had received the message, later accompanied PW1 to the vicinity of the crime scene in an attempt to locate the robber.  This was not successful but it led to a conversation between them which was related by PW2 during his cross-examination by defence counsel at trial.  He said that PW1 had told him that the robber was about the same height as himself which, he said, was 1.73 metres tall.

6.  On 8 March 2005, exactly a month after the robbery, PW2 and his team of officers were on duty when, as the result of information, they went to a shop where the appellant was duly located.  On arrest, the appellant replied: “Ah Sir, the ‘lo lup’ was done by me.  Would you give me a chance and mitigate for me?”  The appellant was then taken to the police station where he signed a post-recorded note of the confession he was alleged to have made.  After this, he was interviewed about the offence.  Again, he admitted involvement and he said that he had sold the mobile telephone he had stolen from the victim for $800.

7.  The prosecution’s case was wholly dependent upon the confessions allegedly made by the appellant to the police.

8.  The appellant gave evidence at his trial both on the special issue to determine the admissibility of his interviews and on the general issue.  The appellant’s girlfriend was called as an alibi witness.  In short, the appellant’s allegations of assault, inducements and threats to make him sign a confession to the offence were rejected by the judge.  Equally, the judge disbelieved the appellant’s defence that he was with his girlfriend at the material time.

9.  During the trial, as a result of PW2’s evidence that PW1 had told him he was about the same height as the robber, the judge asked the appellant to stand next to PW2 in court when it was observed that the appellant was slightly taller than PW2.  Plainly, therefore, PW1’s original estimate of 1.70 metres as the height of the robber was inaccurate if she had told PW2 that he was about the same height as the robber.  It is the use to which the judge may have put the evidence of what PW2 was told by PW1 which is fundamental to this appeal.

10.  Mr Hemmings, on the appellant’s behalf, has raised what he described as a single ground of appeal although this is set out, rather unhelpfully, in nine paragraphs.  In short, he complained that the judge had, or may have, used what was said by PW1 (the robbery victim) to PW2 about the height of the robber being similar to his own “as evidence of the truth of what the complainant had said”.

11.  The evidence of the conversation between PW1 and PW2 emerged when counsel for the defence was cross-examining PW2 in an effort to find out why PW2 had intercepted the appellant when the appellant was rather taller in appearance than 1.70 metres as described by PW1 in her original complaint.  PW2 explained that not only had he been given the information contained in the crime message but other information also which included the suspect’s name and what PW1 had told him about the height of the robber.  The following dialogue during cross-examination sets out the relevant evidence given by PW2 on this topic:

“	Court:	What counsel on behalf of the defendant would now like to know is when did you get the information, view all this information?
	A.	Apart from the name, Wong Chak-man, those information - that is, the date, the stolen property, the time, the place of the offence - all these kind of information was obtained and stated in the crime message that I got in the several days after the occurrence of the offence.
	Q.	You mean more than three weeks before you made the arrest?
	A.	Yes. That’s right.
	Q.	Coming back to it, officer, one of the fundamental things in that information would have been a description of the alleged criminal. Just over 5 feet 6 inches. Mr Wong is over 5 feet 10 inches tall. How can you go and arrest a person with that discrepancy in the actual physical description of the person?
	A.	Because we contacted the victim and we had been to the place of the alleged offence once and according to the description given about the suspect his height was similar to that of mine or he was a bit taller than me.
	Court:	How tall are you?
	A.	1.73 metres.
	Court:	Was this conversation anywhere recorded in your notebook or notes?
	A.	It was not recorded as far as I can remember because I just asked [her] verbally because when I had the -- when I tried to have the interception with her I -- no suspect was found and I just asked her verbally.” (Appeal bundle p. 122)

12.  This evidence, introduced by the defence, was admissible for the purpose of helping to explain why PW2 had arrested the appellant.  The evidence about the height of the robber, which PW1 was said to have described to PW2 by reference to his own height, obviously was not admissible for the purpose of establishing the actual height of the robber.  With this in mind, we have looked to see how the judge dealt with this topic.  In the judge’s Reasons for Verdict, he said:

“

… Mr. Boase [defence counsel] has submitted the Defendant is inconsistent with the outlook and appearance of the robber especially in terms of the height which was described by PW1 as about 1.7 m. Here, I agree with the submission made by Mr. Stirling, counsel on fiat, that the purported description of the robber by PW1 was at most an identification of a stranger whom she had never met before under frightening circumstances. The reference to the 1.7 m after all was only an estimate on her part and furthermore, there was no evidence as to exactly how tall the Defendant was. On the other hand, during the trial, PW2 testified that he had once accompanied PW1 to search around in the vicinity for the robber a few days after the robbery and he distinctly remembered that PW1 had told him that the robber [was] of similar height as himself. In this regard, I recalled that I have asked the Defendant to come out of the dock and stand by the side of PW2 in court and I found that they were really of similar height with the Defendant being slightly only higher. PW2 testified that he was 1.73m tall. While it is true that PW1 failed to make any positive identification more than one month later, the fact of the non-identification did not, in my judgment necessarily mean to say that the Defendant was not the robber. Victims sometimes failed to identify the suspect for a variety of reasons. I decided to attach full weight to the confessional statements and I found them to be reliable.” (Appeal bundle p. 19)

13.  Mr Hemmings submitted that the judge’s process of reasoning left an impression that the judge had accepted the evidence given by PW2 about his conversation with PW1, to establish that PW1 must have revised her description of the robber as a man who was only about 1.70 metres tall.  Mr Hemmings also remarked on the absence of any documentary account of PW1’s conversation with PW2, recording in some formal way what had been said about the robber’s height.  He suggested that the evidence, which had emerged only in cross-examination, was “inherently suspect” in that it appeared to be an attempt by PW2 to justify his arrest of the appellant when the original crime message described the culprit as a man who was not as tall as the appellant.

14.  We do not consider these arguments to have been sound.  As Mr Hemmings recognised, the use, if any, which may have been made by the judge of the evidence given in cross-examination by PW2 about the height of the robber was a matter of speculation.  More to the point, it seems to us that the judge had rightly decided that there was no evidence against the appellant apart from his confession.  The judge stated in his Reasons for Verdict: “… the only evidence against the Defendant was the two cautioned statements”.  In the same context, the judge found the police witnesses to have been telling the truth and he accepted that the appellant had been: “remorseful and regretful and he voluntarily confessed to the crime with the hope of expecting some leniency from the authority”.  These findings are echoed in the last sentence of the passage earlier cited where the judge said:

“	I decided to attach full weight to the confessional statements and I found them to be reliable.”

15.  There is no suggestion that the judge relied upon any hearsay evidence in reaching a conclusion adverse to the appellant.  The judge’s decision to ask the appellant to stand side by side with PW2 was understandable as, if there had been a marked discrepancy in their respective heights, this would have detracted from PW2’s account that he was looking for someone of about his own height.

16.  For the reasons we have given, therefore, the appeal was dismissed.