HKSAR v. LAU TIN FEI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.108
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicants faced one charge of robbery and one charge of remaining in Hong Kong without authority. They pleaded guilty to the charge of remaining without authority and were found guilty after trial before Judge Jackson on the charge of robbery. That charge was particularized as follows - that they, on 7th November 1997, at the subway of Tai Tau Leng Tsuen, Po Shek Wu Road, Sheung Shui, robbed Cheung Suet-fung of a mobile phone, a waist bag, a wallet, an identity card, a driving licence, an Octopus card, a Super Ease card, a Mastercard, a Visa card, HK$1,040 and 280 RMB. They now seek leave to appeal against those convictions.

2. The victim gave evidence that on 7th November, at about 6:65 pm he was stopped by two men who threatened him with knives, declared robbery, cut off his waist bag and then ran off with it. The waist bag contained the stolen articles. He gave chase and, while pursuing them, found the abandoned empty waist bag but lost sight of the two men. However, he immediately reported the matter to the police and boarded a police car in which he continued to search. He said that he saw the 2nd applicant hiding under a lorry and that he was apprehended. He later saw the 1st applicant who had been apprehended by other police officers.

3. The real issue in the matter was one of identification. The trial judge, after an admirably careful examination of all relevant matters, was satisfied that the victim was both a truthful and an accurate witness.

4. The trial judge said:

"Having considered all of the evidence, I can see no room for error in PW1's identification of both defendants as his assailants. I might just add that each defendant has, as I say, given evidence before me and each has a distinctive face and a distinctive hairstyle. It follows from all of this that the prosecution has satisfied me beyond a reasonable doubt that both of these defendants are guilty of the offence of robbery as charged."

5. The 1st applicant in his written Grounds of Appeal submits that the evidence of the victim was different from what was contained in his statements. It is certainly correct that the evidence of the victim differed from what was contained his statements but the judge was well aware of this. He said:

"PW1 (the victim) was then asked about the descriptions which he had given in his witness statement. He appeared to agree that in one of his witness statements he had said that after the 1st defendant had been arrested, he, that is PW1, told the police that his appearance was similar to that of one of the robbers and not as he said in-chef that he was one of the robbers. When asked about this, PW1 seemed to think that there was no difference or discrepancy, as he put it, in what he had said."

6. The judge went on:

"He (the victim) went on from there to say that when he identified the 1st defendant following his arrest to the police, he said that firstly he told the police that it was very likely that he, that is the 1st defendant, was one of the robbers. Then he told them that he was certain about it because the 1st defendant's face changed from being very frightened to being, as I understand his evidence, normal and so he added at which time the police had stopped shining their torches on him."

7. The judge clearly bore in mind the discrepancies of which complaint is made but they did not, at the end of the day, shake him in his satisfaction that the victim was not only truthful but was also reliable.

8. The examination by the judge of the identification evidence was done with particular care and is not open to any real criticism. This applicant also complains, as does the 2nd applicant, that the identification was done at the scene and that there was no senior police officer present. It is certainly appropriate in many cases to have identification parades carried out in the police station supervised by a senior police officer. The circumstances of the present case did not, however, call for such a parade. The applicants were, in effect, caught red-handed immediately after the offences and the victim who was with the arresting police officers was in a position immediately to make identification and he did so. No criticism can be made of what occurred.

9. The 2nd applicant in his written grounds suggests that there should have been a doubt because the knives were not found. It is certainly so that no weapons were found. The trial judge was well aware of this and he took it into consideration when coming to his conclusion. The 2nd applicant also suggests that he did not get to put his own case. This is not so. He gave evidence which the judge rejected as "wholly untruthful" and "purely fanciful". He complains before us today that there was no physical evidence. This submission seems again to complain that no knives, which the victim said were used, were ever found. We have already dealt with that matter.

10. The reasons of the trial judge were careful and comprehensive. He dealt fully with all relevant matters. We are satisfied that no proper criticism can be made of his findings of guilt and the applications are, therefore, dismissed.