HKSAR v. LI WAI

CACC 426/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 426 OF 1999

(ON APPEAL FROM DCCC NO. 511 OF 1999)

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J U D G M E N T

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Keith JA (giving the judgment of the court):

Introduction

1. On 4 August 1999, the Applicant and his co-Defendant were convicted by Judge Line in the District Court on four charges. The two charges which the Applicant faced were charges 1 and 2. Charge 1 was attempted robbery. Charge 2 was remaining in Hong Kong without the authority of the Director of Immigration. He had pleaded guilty to charge 2 but not guilty to charge 1. The two charges which the Applicant's co-Defendant faced were charges 3 and 4. Charge 3 was robbery and charge 4 was remaining in Hong Kong without the authority of the Director of Immigration. He had pleaded guilty to charge 4 but not guilty to charge 3.

2. The Applicant and his co-Defendant were sentenced to terms totalling 6 years' imprisonment. The Applicant originally applied for leave to appeal against his sentences but that application was abandoned last October. He then applied for leave to appeal against his conviction on the attempted robbery charge out of time. The reason why the application for leave to appeal against that conviction was filed out of time is that the Applicant, who comes from the Mainland, is said to have misunderstood the advice which he had been given by Mr Jonathan Acton-Bond, who represented him at his trial and who represents him on this application for leave to appeal. He is said to have thought that an application for leave to appeal against his sentences was sufficient to put the correctness of his conviction for the attempted robbery into issue. When that misunderstanding was pointed out to him, he filed his application for leave to appeal against that conviction as well. Without investigating whether what we were told is true, we are prepared in the circumstances to permit the application to proceed although it was filed out of time.

The facts

3. The robbery of which the Applicant's co-Defendant (D2) was convicted was close in time and place to the attempted robbery of which the Applicant was convicted. The robbery of which D2 was convicted occurred at about 11.40 p.m. on the evening of 3 May 1999 in Tin Shui Wai. A woman (PW2) was grabbed at knifepoint in the street. She handed over some money to the robber. When asked in Putonghua for more money, she gave him all the money she had on her. That consisted of two $500.00 notes, four $100.00 notes, five $20.00 notes, five 50 RMB notes, two 10.00 RMB notes and a 20.00 Pataca note.

4. Shortly after 12.20 a.m. on 4 May, i.e. about 40 minutes later, the attempted robbery of which the Applicant was convicted occurred not far away in the same locality. A woman (PW1) was walking along a path when a man came out of the bushes. He demanded money from her. She was so frightened that she dropped onto the ground some coins which she had been holding in her hand. PW1 turned out her pockets to show the man that she did not have any other money on her. After patting the back pocket of her jeans, the man let PW1 go. During this attempt to rob her, another man wearing a yellow top had come out of the bushes and had stood behind the first man. There was evidence that at some stage D2 had been wearing a yellow windcheater.

5. At about 3.50 a.m., i.e. about 31/2 hours later, police officers in a police vehicle saw the Applicant and D2 not far from where the robbery and the attempted robbery had occurred. They ran off when they saw the police vehicle but were caught. When interviewed by the police following his arrest, the Applicant admitted that he and D2 had clandestinely come to Hong Kong together from the Mainland on the morning of 3 May.

6. There were three other significant pieces of evidence. First, during the chase D2 was seen by the police to drop onto the ground a knife which had been wrapped in some newspaper. The blade of the knife was subsequently found to have a fingerprint of the Applicant on it. Secondly, when they were arrested the Applicant and D2 had notes on them of various denominations from which the judge inferred, when considering the case of D2, that the Applicant and D2 had divided up between them the proceeds of the robbery. It has not been suggested by Mr Acton-Bond that that was not an inference which the judge could not have drawn from the denominations of the notes found on them. The Applicant was found to have on him a $500.00 note, two $100.00 notes, four $20.00 notes, two 10.00 RMB notes and a 20.00 Pataca note. D2 was found to have on him a $500.00 note, two $100.00 notes, three $20.00 notes, five 50.00 RMB notes and eight 10.00 RMB notes. Thirdly, in identification parades which took place on the following day, i.e. about 36 hours after the robbery and the attempted robbery, the two women picked out the Applicant and D2. PW2 picked out D2 as the man who had robbed her, and PW1 picked out the Applicant as the first of the two men she had seen.

7. The Applicant did not give evidence at his trial. However, when interviewed by the police following his arrest, he denied having committed any robbery. He had no explanation for the knife which the police had seen D2 drop to the ground, though he claimed that before then he and D2 had been picking up newspapers from the ground. As for the notes, he said that he had got the Hong Kong notes in Shenzhen, that he had brought the RMB notes with him to Hong Kong, and that the 20.00 Pataca note had been given to him as a tip for helping to push a car which had broken down.

The judge's reasoning

8. The judge appreciated that the case raised issues of visual identification, and he approached his consideration of the evidence of the two women in accordance with the principles in R. v. Turnbull [1977] 1 QB 224. He reminded himself of the special need for caution before convicting the Applicant and D2 on the basis of their evidence, and he reminded himself that honest, convincing and reasonable witnesses can be mistaken. However, he concluded that he could safely rely on their identification of the Applicant and D2.

9. In addition, the judge looked for evidence which was capable of supporting the evidence of identification. In the case of PW1, the judge relied on the evidence relating to the second man she had seen - the man wearing the yellow top. The judge inferred from the fact that he had, like the first man, come out of the bushes, and from the fact that he had not interceded on PW1's behalf, that that second man had been the confederate of the first man. The judge said that it would have been an odd coincidence if the confederate of the man who had attempted to rob PW1 had been wearing something similar to what the man who had robbed PW2 an hour earlier had at some stage been wearing. The judge himself referred to the passage in Turnbull at p. 230D when the court had said that "odd coincidences can, if unexplained, be supporting evidence".

10. That was the basis upon which the judge convicted the Applicant. He said in terms:

"It is thus on the quality, and I find it to be good quality, of the identification by PW1, with that support about the yellow top, that makes me sure of this man's guilt and I make that finding."

However, the judge went on to take into account the Applicant's fingerprint on the blade of the knife which D2 had been seen to drop, and the 20.00 Pataca note which had been found on the Applicant. The judge said that that evidence provided a connection between the Applicant and the very similar robbery which had taken place so recently and so close by. He regarded that evidence as negating the possibility of a mistake in PW1's identification of the Applicant. It would have been what the judge described as an "enormous coincidence" if PW1 had mistakenly identified the Applicant as the man who had tried to rob her at knifepoint when the evidence suggested that the Applicant had been involved in exactly the same thing so close by and so recently. However, consistently with his view that the guilt of the Applicant had already been established, he added:

"Nonetheless I would still have convicted without taking into account that evidence for the reasons I have already explained."

11. Mr Acton-Bond wished to attack this additional support which the judge regarded the fingerprint on the blade of the knife and the 20.00 Pataca note as having given to PW1's identification of the Applicant. However, he has realistically accepted that if the judge's view of the quality of PW1's identification of the Applicant and the support for that identification which the judge gleaned from the evidence about the yellow top was justified, then the additional support for the correctness of the identification which the judge gleaned from the Applicant's fingerprint on the blade of the knife and the Applicant's possession of the 20.00 Pataca note would not justify the quashing of the Applicant's conviction. We therefore propose to address first the criticisms of the grounds on which the judge did indeed choose to convict the Applicant.

The quality of PW1's identification of the Applicant

12. Mr Acton-Bond conceded in the course of the trial that this was not a fleeting glance case. However, he argues that the judge's conclusion on the quality of PW1's identification of the Applicant was flawed. He advances a number of reasons for that assertion, and we have had to consider them in turn.

(i) The identification parade. PW1 admitted in cross-examination that, as a result of what she had been told by the police, she had believed that there was a good chance that she would see on the identification parade the man who had tried to rob her. Initially, she told the court that when she had seen the Applicant on the parade she had recognised him, but to ensure that there had been no mistake in her identification of him, she had looked at the other men on the parade as well. It was then put to her that when she had first seen the Applicant, she could not have been sure that it had been him who had tried to rob her, because otherwise there would not have been any need for her to ensure that there had been no mistake in her identification of him by looking at the other men on the parade. She agreed with that suggestion, but disagreed with the subsequent suggestion that the only reason why she had finally selected the Applicant had been because there had been no one on the parade who had looked more like the man who had tried to rob her.

13. The criticism of the judge is that, although he noted her concession that "at the first moment of vision she was not sure", he failed to give effect to the logical consequence of that concession, namely that if a witness is initially not sure of her identification of a person on an identification parade, looking at the other persons on the parade cannot convert that initial state of uncertainty into a state of certainty. We reject that argument. It assumes that PW1 only became certain about her identification of the Applicant because there had been no one else on the parade who had looked more like the man who had tried to rob her. In fact, she rejected that notion. The judge in effect found that by saying that she had not been sure when she had first seen the Applicant that he had been the man who had tried to rob her, all that she had been doing was deferring her considered and final opinion until she had seen all the men on the parade. In other words, she had not been sure at that initial stage only because she was not going to be applying her mind to whether she was sure that any of the men on the parade had been the man who had tried to rob her until she had seen all the men on the parade. In our view, the judge was entitled to treat her evidence in that way, and to conclude that her ultimate identification of the Applicant had in no way been undermined by her initial lack of certainty - which had been attributable simply to the fact that she was, as the judge put it, suspending her judgment until she had looked at all of the others.

(ii) The circumstances of PW1's identification of the Applicant. It is argued that the judge failed to take into account sufficiently the circumstances which militated against PW1 making an accurate identification of the Applicant. PW1 herself conceded that the incident had been an upsetting and frightening one, and that the lighting on the path had been relatively dim. For part of the time, she could not have been looking at the man's face, says Mr Acton-Bond, either because he had not been in front of her, or because she had been looking at the knife which had been pointed at her stomach (which must have been for a little while at least, because she had subsequently been able to say that the knife which had been recovered by the police had not been the knife which the man who had tried to rob her had had), or because she had been turning out her pockets to show that they were empty. And on no conceivable view could the incident, says Mr Acton-Bond, have lasted for as much as the 4 minutes which she had claimed in her evidence.

14. We do not agree that the judge did not take sufficient account of these matters. In dealing with the evidence of PW2, the judge had said that "it is a distressing matter when you are waylaid by a man with a knife", and he therefore did not have to say the same thing when he was dealing with the evidence of PW1. In his Reasons for Verdict, the judge referred to the suggestion that there had been times when PW1 had not been looking at the man's face, but the judge was nevertheless entitled to conclude on the evidence, as he did, that PW1 had been looking at the man face to face for long enough for her to recall his features. The judge referred to the fact that the lighting had been dim, but concluded, as he was entitled to on the evidence, that PW1 and the man who had been trying to rob her had been so close that his features had been clearly visible to her. And although the judge himself thought that 4 minutes might have been an inaccurate estimate of the length of the incident, he found, as again he was entitled to on the evidence, that the incident had lasted long enough to enable PW1 to take in the man's features.

(iii) The Applicant's trousers. PW1's evidence was that she had told the police that the man who had tried to rob her had been wearing a blue denim shirt and blue jeans. Although the Applicant was wearing a denim shirt at the time of his arrest, he was not wearing jeans. He was wearing trousers, and they were grey. The judge is criticised for not attaching sufficient weight to that discrepancy. This was not simply a mistake as to the colour, but a mistake also as to the material of the trousers. It is said that denim is such a popular material nowadays that PW1 could not have been mistaken about it. The fact that the Applicant was not wearing denim, whereas the man who had tried to rob PW1 had been, showed, says Mr Acton-Bond, that the Applicant could not have been the culprit.

15. We do not agree. The judge said that he had taken this discrepancy on board, but that he attributed PW1's mistake to the fact that most of the time PW1 would have been looking at the man's face and the upper part of his body (which explained why she accurately recalled the type of shirt which the man had been wearing). Although the judge did not say so in terms, he must have had in mind that PW1 would not have been as aware of the colour or kind of trousers the man was wearing as his shirt. That was a view which, in our opinion, the judge was entitled to take on the evidence.

(iv) The knife used in the earlier robbery. The knife which D2 was seen to drop in the street with the Applicant's fingerprint on its blade was shown to PW1 by the police. She told them that it was not the knife which had been held by the man who had tried to rob her. Since no other knife was found by the police when the Applicant and D2 were arrested, the point was made to the judge that that indicated that the Applicant could not have been the man who had tried to rob PW1. If he had been, a knife other than the one dropped by D2 would have been found on him. The criticism of the judge is that he did not address that argument in his Reasons for Verdict, and the inference which we assume we are being invited to draw from that submission is that the judge failed to consider it at all.

16. We do not think that the judge's failure to refer to this argument in his Reasons for Verdict means that he did not address the argument. A judge is not obliged to refer in his Reasons for Verdict to all the points which are made. The fact that the judge did not refer to this point in his Reasons for Verdict is just as consistent with him rejecting it. After all, the Applicant may have dropped the knife after the incident. Alternatively, it may be that PW1 was mistaken when she said that the knife which she had been shown by the police had not been the knife which had been used to threaten her. In that case, the Applicant may have given the knife he had used on PW1 to D2 after the incident. It may, with the benefit of hindsight, have been better for the judge to have explained in his Reasons for Verdict why he rejected that argument, or why he did not regard that argument as undermining PW1's identification of the Applicant, but we cannot criticise him for not doing so.

(v) The red bag. In her evidence, PW1 said that the man who had tried to rob her had been carrying a red plastic bag. Since there was no evidence that either the Applicant or D2 had had a red bag with them at the time of their arrest, the point was made to the judge that that indicated that the Applicant could not have been the man who had tried to rob PW1. The judge dealt with that point by saying:

"Absence of evidence is not necessarily evidence of absence. No one asked the police officers about it to my recollection."

The point is made that the judge in that passage went some way towards reversing the burden of proof, by requiring the defence to establish, by cross-examination presumably of the police officers who arrested the Applicant and D2, that the Applicant had not had such a bag with him at the time.

17. We disagree. All that the judge was saying was that it could not be assumed that they had not had a bag with them at the time of their arrest without evidence to that effect. He was not criticising the defence for not cross-examining the police officers on the topic. He was simply making the point that, without evidence on the topic, no assumptions on the topic could be made. In any event, even if it had been established that neither the Applicant nor D2 had had such a bag with them at the time of their arrest, that could hardly have undermined PW1's identification of the Applicant: the bag could have been disposed of or hidden in the meantime.

The yellow top

18. As we have said, the judge gleaned support for PW1's identification of the Applicant from the evidence about the yellow top. At one stage in his Reasons for Verdict, the judge said that "we know D2 all through this period [i.e. during the 3 1/2 hours between the attempt to rob PW1 and the arrest of the Applicant and D2] was dressed in a yellow top" (emphasis supplied). That was not quite the evidence. The judge had himself said earlier in his Reasons for Verdict that there had been no evidence as to what D2 had been wearing when he had been arrested. The gloss which the judge put on the evidence is now being used by Mr Acton-Bond to justify an attack on the support for PW1's identification of the Applicant which the judge gleaned from the evidence about the yellow top.

19. In our view, that attack is very seriously undermined by the other evidence in the case. In his evidence, D2 testified that he had come to Hong Kong wearing a yellow windcheater, and that he had been in possession of it between his arrival in Hong Kong and the identification parade. Moreover, the identification parade book showed that D2 had the yellow windcheater with him before the identification parade began, and that he took it off before any of the witnesses came in. Thus, the point which the judge made was still in our view a compelling one. It would have been an odd coincidence if the confederate of the man who had attempted to rob PW1 had been wearing something similar to an item of clothing which the man who had robbed PW2 an hour or so earlier had had with him, even if that man had not actually been wearing it at the time. Contrary to what has been argued, we share the judge's view that a yellow windcheater is a sufficiently unusual garment as to make the coincidence a significant one.

Conclusion

20. For these reasons, despite Mr Acton-Bond's valiant attempts to overturn the Applicant's conviction, we do not regard the judge's decision as flawed in any way so as to render the conviction of the Applicant either unsafe or unsatisfactory. Accordingly, the application for leave to appeal against the Applicant's conviction on the charge of attempted robbery out of time must be dismissed.