SZE MAN KI v. R.

IN THE COURT OF APPEAL

1993, No. 675
(Criminal)

___________

_______________

J U D G M E N T

_______________

Hon Yang CJ:

1. On 11 November 1993, the applicant was convicted by a jury before Leong J on one count of robbery, namely count 2, and was sentenced to 7 years' imprisonment. He now seeks leave to appeal against both conviction and sentence.

2. There is no dispute that on 4 May 1992, a robbery was committed against a Mr Kwok Chee Sang and his wife inside the lift at 10A Humphrey's Avenue, Kowloon. Mr Kwok gave evidence of the robbery and of his identification of the applicant at an identification parade held some six months after the robbery.

3. There is only one ground of appeal, namely, that the verdict was unsafe and unsatisfactory.

4. First, it is argued that the learned judge erred, when referring to the evidence of the identification parade, in saying that Mr Kwok picked out "the shorter one" at the first identification parade. That was a reference to the applicant's co-accused who pleaded guilty to the charges and gave evidence for the Crown. The complaint is that this reference to Mr Kwok's evidence was both irrelevant and prejudicial to the defendant in that because Mr Kwok had correctly identified the other robber his identification of the applicant was likely to be correct. However, the direction must be read in its proper context. The judge gave a very full direction along the Turnbull guidelines on the issue of identification. The direction was so detailed that it covered some three or four pages. In our view, it was an impeccable direction on the issue of identification and the complaint under this ground cannot stand.

5. It was also argued that the judge should have emphasised that there was a period of six months between the offence and the identification parade. The judge did tell the jury that the time-gap between the offence and the parade was a factor to be considered in assessing Mr. Kwok's evidence. We do not consider anything further was required. The jury was fully aware that there was a six months' gap and, using their common sense, no doubt took into account that aspect of the evidence in accordance with the direction given them.

6. Secondly, complaint is made that the learned judge failed to adequately direct the jury on the question of alibi. In our view, the term "alibi" is incorrectly used in the context of the evidence given by the applicant at the trial. The applicant was simply saying in his evidence that he did not commit the robbery but he could not remember where he was and he said further that he had never been to the place of Humphrey's Avenue. For this reason, the usual rules regarding alibi evidence are not applicable in the present case.

7. Thirdly, it is submitted that the jury ought to be told even if they found that the applicant had lied about his so called "alibi", that it did not necessarily mean that the applicant had committed the offence. But the judge did make it clear in his summing up that even if the applicant had told the jury that he could not remember where he was, the jury should not take that as anything prejudicial against him. There is nothing in this ground of appeal.

8. Lastly, it is urged upon the court that there are certain irregularities in the way the identification parade was conducted that rendered the verdict unsafe and unsatisfactory. It was contended that the identification parade was so irregular and ought to have been excluded on the basis of fairness. It was said that the witness i.e. Mr Kwok was permitted to enter and view the parade on two occasions, in breach of the identification parade procedure.

9. In short, the evidence was that Mr Kwok was first brought in to see the applicant in the presence of the applicant's solicitors and barrister. Later, the applicant was asked to change his clothes and to shift his position after Mr Kwok had gone out. Then, Mr Kwok was invited to come in again and there he walked half way down the parade line passed the applicant and then went to the back and identified the applicant from behind. The complaint here is that the practice was so irregular that evidence of the identification should not have been admitted. Furthermore, it was said that an inspector in charge of the parade informed Mr Kwok that not only was there a suspect or suspects on the parade but there were also a number of other people. The complaint here is that the identifying witness might be induced to conclude that a suspect must be on parade.

10. We have taken all the arguments stated in the grounds of appeal into consideration and are of the view that whilst the identification parade was a slight departure from the usual steps taken in identification parades, there was nothing unfair or prejudicial about the whole situation. The applicant's legal advisers who were present made no complaint. We, therefore, reject the arguments under that ground of appeal.

11. For these reasons, the application for leave to appeal against conviction is dismissed. We shall now hear Mr Percy on the application for leave to appeal against sentence.

(Having heard Mr Percy, the court continues - )

12. In passing sentence, the learned trial judge took into consideration the fact that the robbery was committed against a man and a woman in the confined space of a lift at knife point; items totalling some $150,000 in value were stolen from the victims none of which has been recovered. The learned judge also took into consideration that the applicant was at the "lowest level of normal intelligence, according to the report of the clinical psychologist". Taking into consideration the way in which the robbery was committed and the amount stolen, we are of the view that while the sentence of 7 years' imprisonment after trial is somewhat on the high side, it is still within the acceptable range of sentences. We are, of course, aware of the guidelines which one may find in numerous authorities in robbery cases but these guidelines were intended to be no more than guidelines and never designed to achieve mechanical certainty in sentences. The application is refused.