HKSAR v. LEUNG KWOK WING

CACC 410/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 410 OF 2003

(ON APPEAL FROM HCCC NO. 51 OF 2003)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. This applicant was convicted on 10 September 2003 of attempted robbery after trial before Gall J and a jury. He was sentenced to a term of ten years' imprisonment. He now seeks leave to appeal against conviction.

2. There is no issue as to the fact of the attempted robbery at a jewellery shop at the Fanling Centre Shopping Arcade on 7 November 2002. The sole issue in the case was whether this applicant was party to that attempt. Four men wearing balaclavas and gloves rushed into the shop and threatened staff there with machetes and tried to smash the display cabinets with hammers but failed and then fled empty-handed. Immediately outside the store was a silver coloured private vehicle that had been stolen in Sheung Shui seven days previously. The four men entered the vehicle which was driven by a fifth, and the vehicle moved on.

3. Police were alerted and they located the car when it stopped nearby at a traffic light, at which point the driver alighted and ran off, some four minutes after the attempted robbery. A police officer PC 34568 ran after him and followed him down a lane, over a central divider, across a footpath, and then over a wall into a housing estate. It was the evidence of this officer that throughout the whole chase he never lost sight of the driver of the vehicle. The man who was apprehended was this applicant. The officer said that when the driver emerged from the vehicle he was wearing a windbreaker tied around his waist, and that when apprehended the applicant was wearing the same windbreaker.

4. At trial, the applicant gave evidence saying that he was indeed apprehended by this police officer but that he had taken no part in the robbery and had not been the driver of the vehicle in question. He was merely at the housing estate waiting for a friend who was engaged on an errand. In short, the defence case was that the police officer had made a mistake.

5. The grounds of appeal turn upon the directions which the judge gave to the jury on the issue of identification. It is said that the judge, though warning the jury to take great care in relation to the issue of identification, failed to tell them why such care was needed, namely, because honest people can be mistaken. It is further said that there was particular reason for a direction of this kind since the evidence of the officer was uncorroborated by any other witness; and because there was a discrepancy between the evidence of this officer and of another as to the precise place of the applicant's arrest; and where there were a number of obstacles which must, it is contended, have impeded the officer's vision during the chase; that the officer had failed to record the details of the chase in his own witness statement; and that there was no evidence in rebuttal of the applicant's contention that he had no driving licence and could not drive. Other supposedly discrete grounds of appeal are enumerated but they all turn on much the same issue, namely, the adequacy of the judge's directions as to the safety of the officer's evidence.

6. In our judgment this is by no means the typical Turnbull situation at all. It was the officer's testimony that he never lost sight of the man he chased and apprehended. That was either accurate or not. But in any event we have studied with care the judge's summing-up and it is obvious that the judge could hardly have taken greater pains to emphasize to this jury the care to be taken in relation to the officer's testimony that the man he apprehended was the same man he had chased. The judge told the jury that they had to examine the officer's evidence "very carefully" and that there was a special need for caution. He told them that "... the longer the chase the more opportunities there will be for a mistake to take place"; and in particular that: "If he lost sight of him at any time, or may have lost sight of him, or could have lost sight of him, then you may have a doubt. It is only if he had him in observation and you are sure that he did for the whole of the period would you be able to say that it was the same man for the whole of the period." Further, "... you must take into consideration that this [the central divider] is the first point ... that the police officer may have lost sight of the man he was chasing and picked up someone else, also running, and got the wrong man". And of particular relevance to the points that Mr Allan urges before us is the fact that the judge reminded the jury that the defence case was not that the officer was lying but that: "We just say he is and we emphasise honestly mistaken.". The judge added:

"I cannot emphasise to you enough that the first issue is: was the accused the same man who was the driver. You must look very carefully at the evidence. You must be cautious of it. But if at the end of the day you are sure that the accused was the driver, then you will go on to consider: if he was the driver, then was he part of a plan to rob the jewellery store."

So, in our judgment, the judge identified the correct issue which was whether in fact the officer saw the man he chased all the way to his arrest. We are satisfied as well, in so far as Mr Allan presses the issue of reliability and the judge's direction in that regard, that this summing-up as a whole very clearly carried the particular message which Mr Allan says was not carried, namely that the jury had to guard against honest mistake.

7. It is also said that the judge ought the more particularly to have taken care because of a disparity between the evidence of the two officers as to the place of the accused's arrest but we note that the judge specifically drew this disparity to the jury's attention.

8. There are other allied points but there is nothing in them. In our judgment, there is no merit in this application and it is dismissed.