HKSAR v. HO CHUN PONG

CACC 136/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 136 OF 2000

(ON APPEAL FROM DCCC 1179 OF 1999)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 23 March 2000, following a trial in the District Court before Judge Saunders, the Applicant was convicted of robbery and sentenced to seven years' imprisonment. The Applicant now seeks leave to appeal against conviction.

Prosecution's case

2. The sole issue at trial was concerned with identification.

3. The prosecution's allegation was straightforward. On 1 October 1999, at about 5.00 p.m., a 37-year-old Nepalese male (the victim) was followed by two men to a flat in Nathan Road where he lived. Inside the flat, the victim was tied up with telephone wire and threatened with a chopper. He was then robbed of $2,200, a mobile telephone and an Octopus card. Finally, he was forced out into a small balcony and the door leading to the balcony was then tied shut. The whole incident lasted about 10-20 minutes in conditions where the lighting was good.

4. In due course, the victim was able to free himself and to get back into the flat by which time the robbers had left.

5. The victim, instead of reporting the matter to the police, went to a hospital where his brother was and spoke to him about what had happened. The mobile telephone was his brother's property. However, the matter eventually came to the notice of the police some six days later as the result of a sighting in the street by the victim of one of the people who he believed had robbed him. The victim grabbed the man and demanded the return of the mobile telephone. His actions are perhaps better understood when it is appreciated that the victim had been a Gurkha corporal and had spent some fifteen years in the army. It was after he had taken hold of the man in the street that police became involved. The Applicant was the man who was arrested.

Defence case

6. During the trial the Applicant gave evidence. He denied having played any part in the robbery and he maintained that between about 4.30 and 8.00 p.m. he had been in Wanchai with six of his friends before watching the firework display in Victoria Harbour in celebration of National Day. He called no witnesses to support his account.

Grounds of Appeal

7. Mr Wong Po-wing, on the Applicant's behalf, has advanced three grounds of appeal.

8. In his first ground, he submitted that the judge had "erred in failing sufficiently or at all to warn himself of the danger of convicting the Applicant based solely on the evidence of the victim, in particular that an honest and credible witness may be mistaken". Mr Wong set out eight illustrations taken from the evidence which might have led the judge to feel some unease about the correctness of the identification. We do not need to set out these eight points which were listed by Mr Wong because it is apparent to us from what was said by the judge in his Reasons for Verdict that he was well aware of the factors to be taken into account in his assessment of the accuracy of the victim's account. The judge said, amongst other things:

"The only issue in the trial is whether or not the victim's identification of the defendant as one of the two persons engaged in the robbery, is an identification upon which I can say I am sure that the defendant was one of the robbers."

9. Then, after considering and evaluating and, it has to be said, rejecting the Applicant's assertions in evidence, including his story about having been elsewhere at the time of the robbery, the judge went on to say:

"I must still be satisfied beyond reasonable doubt as to the truthfulness of the victim and as to his identification of the accused."

10. The judge then went on to deal with the various criticisms of the victim's evidence which had been put forward by counsel on behalf of the Applicant in the trial, before observing:

"I found the victim to be a clear, straightforward and credible witness, who gave his evidence sensibly, logically and without any effort at all. The victim was in the presence of the robbers for at least 10 minutes. It was a clear day. There was no difficulty with lighting, and there was no reason why he should not, throughout that time, have had a clear view of the robbers. He kept the picture of them in his mind. He said that he saw their faces when he went to bed every night after the incident. His identification of the defendant in the street occurred within only six days of the original robbery. That is not such a lapse of time as to allow him to have forgotten the true features of the person he saw and was so close to for such a period of time.

I am satisfied beyond reasonable doubt that I can rely safely upon his identification of the accused as one of the two people involved in the robbery."

11. Mr Wong argued that in the absence of anything to corroborate the victim's evidence of identification, the judge should have specifically reminded himself of the danger of convicting in such circumstances because even if the witness seemed honest and credible, he may nevertheless have been mistaken.

12. In the present case, we are left in no doubt that the judge had, by his careful appraisal of the evidence, exercised due caution in respect of the evidence taken as a whole. He did not, in terms, refer to the judgment of R v Turnbull (1977) 1 QB 224. He did not have to do so provided he complied with the sense and the spirit of the guidance which is provided by that judgment. We are satisfied that the judge was mindful of all material factors and convicted the Applicant on clear evidence of identification because, as the judge expressed it, he could "safely" rely on the victim's account having satisfied himself not only as to the "truthfulness of the victim but also as to the identification made by the victim of the accused". The judge could, however, have made somewhat more explicit his acknowledgement that an honest witness can be mistaken.

13. The second and third grounds of appeal can be taken together. These concerned the defence of alibi. Mr Wong submitted that the judge erred in rejecting the evidence of alibi "solely because he had been unable to secure the attendance of the alibi witnesses at the trial" and by "not allowing the trial to be adjourned to enable the defence to call an alibi witness who had attended court during the morning ..... but was not present in the afternoon after the Applicant had completed giving his evidence".

14. The Applicant's alibi defence emerged extremely late in the proceedings. He had given no indication of any kind as to his alibi prior to trial. The judge summarised the position at page 7 in the appeal bundle by saying:

"At the time the proceedings were transferred from the magistracy to the District Court, the defendant was warned in terms of the appropriate legislation as to the necessity for an alibi notice. When he appeared in the District Court on 18 January, no suggestion was made that he had an alibi. His only request was that the trial should be conducted in Chinese. The first suggestion that any alibi might be involved, came when he appeared in this court this morning, and the matter was raised ...

Although no formal alibi notice had been given in terms of the rules, the prosecution did not take the point, .... Time was given this morning to allow the alibi witness who had been notified to the prosecution to come to court ...."

15. With this background, the judge went on to provide cogent reasons for rejecting the Applicant's alibi defence and he stated, amongst other things:

".... the defendant elected to give evidence. I did not find him to be a believable witness in any way in relation to his alibi. 1 October is a plainly memorable day, and one which would be remembered by anybody as to what they were doing that evening. He has had since 6 October (1999) his arrest, only five to six days after the alleged incident, until now (23 March 2000), and it is only the day before trial that he apparently remembers about the alibi. I disbelieved him when he says that he has made requests for his telephone book in which the names and addresses of other witnesses are contained. Had he made such a request and it being denied, he would have undoubtedly raised it with the duty lawyer scheme in the magistracy or with the Legal Aid Department in January this year, and would have been advised that the court would make an order making the book available to him. As it transpired, the alibi witness did not appear to give evidence. I draw no inference from that, other than to say that there is no evidence to support the defendant's alibi.

Although I have rejected the defendant's assertions and his alibi, I must still be satisfied beyond reasonable doubt as to the truthfulness of the victim and as to his identification of the accused."

16. It is quite apparent from this passage that the judge did not reject the Applicant's alibi defence merely because he was unable to secure the attendance of any of his alibi witnesses. Furthermore, the judge was prepared to allow the Applicant an additional day to give him further time in which to find alibi witnesses. Ultimately, defence counsel decided he would not avail himself of the opportunity. Mr Wong in this court realistically accepted that these grounds were extremely weak and effectively added nothing to this application.

Conclusion

17. Accordingly, the application is dismissed.