HKSAR v. CHAN SING YI

CACC 280/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 280 OF 1999

(ON APPEAL FROM DCCC NO. 211 OF 1999)

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J U D G M E N T

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Keith J.A. (giving the judgment of the Court):

Introduction

1. On 10th May 1999, the Applicant was convicted of robbery by Deputy Judge Patrick Li in the District Court. He had pleaded not guilty. He was sentenced to 2 years and 8 months' imprisonment. In addition, a previous sentence of 4 months' imprisonment for managing a vice establishment, which had been suspended for 2 years, was activated, to be served consecutively to the sentence for the robbery. He was therefore sentenced to 3 years' imprisonment in all. He now applies for leave to appeal against his conviction, his application for leave to appeal against sentence having been dismissed upon its abandonment.

The offence

2. It was not disputed that on 4th January 1999 a woman had been robbed as she was getting into her car in a car park in an estate in Shatin. A man had come up to her and told her not to move. He then took her handbag which was on the back seat. She tried to stop him getting away with the bag. It was then that a second man approached and struck her on the head. She saw the two men fleeing through the exit with a third man. The prosecution's case was that the third man was the Applicant.

The evidence

3. The evidence against the Applicant came from two sources. The first was PW2, who had himself pleaded guilty to the robbery and had admitted being the man who had first approached the woman. His evidence was that he, the Applicant and a third man had agreed that afternoon to rob the woman when she came to the car park that evening. Although the Applicant had not actually done anything in the course of the robbery, PW2's evidence was that the Applicant had been there at the time.

4. The evidence which was said to identify the role which the Applicant had played in the robbery consisted of the admissions which the Applicant is said to have made to the police when he was interviewed. Those interviews were video-recorded. In them, the Applicant admitted having been given a mobile phone by PW2 to tell him when the woman, who was a dentist, was leaving her clinic. He admitted watching her clinic and telephoning PW2 to inform him when the woman came out of the clinic, and he admitted acting as the lookout while the woman was being robbed.

5. In his evidence, the Applicant denied having taken part in the robbery or being there at the time. His case was that he had initially denied his guilt when interviewed, but that the police had failed to produce the tape of that interview. He claimed that subsequent confessions of guilt had been forced out of him. He had been beaten up by the police, he had been told that his girlfriend would be charged unless he confessed to the robbery, and he had been threatened with other charges himself. What he had then told the police when the interviews were being recorded was simply what he had been instructed to say. As for the evidence of PW2, he claimed that PW2 was under pressure to implicate someone, though he claimed that he did not know why PW2 had framed him.

The assessment of the evidence

6. If the Applicant was to be convicted, the judge had to be sure that PW2's evidence was true and accurate, and that the Applicant's admissions had been made voluntarily. The judge reminded himself that PW2 had his own interests to serve, but he nevertheless found PW2's evidence to be true and accurate in all relevant respects. He considered with some care the evidence of the police officers and that of the Applicant and his girlfriend, and concluded that the Applicant's admissions had been made voluntarily. Once the judge had come to that conclusion, there was no reason to doubt the reliability of those admissions.

7. If there were inconsistencies between the evidence of the woman and PW2, or between the evidence of PW2 and his witness statement, or other factors which affected PW2's reliability as a witness, as the Applicant claims there were, the judge had to decide whether they cast doubt on the accuracy and reliability of PW2's evidence. Similarly, if there were inconsistencies in the evidence of the police officers, or other factors which affected the credibility of their evidence, as the Applicant also claims there were, the judge had to decide whether they cast doubt on the accuracy and reliability of their evidence. The judge came to the conclusion that such inconsistencies as there may have been in the evidence, or such unsatisfactory features as there may have been about the evidence of the witnesses, did not affect his overall assessment of the witnesses as witnesses of accuracy and reliability. The same applies to the judge's assessment of the evidence of the Applicant and his witness, of which the Applicant also complains.

Conclusion

8. At the end of the day, the assessment of the witnesses was a matter for the judge. He had to decide who was telling the truth and who was not. We have not been able to detect any basis on which it would be proper to interfere with his overall assessment of the witnesses. In consequence, this application for leave to appeal against conviction must be dismissed.