HKSAR v. WONG YING KIT

CACC 27/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 27 OF 2008

(On Appeal From District Court Criminal Case No. 767 of 2007)

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REASONS FOR JUDGMENT
and
JUDGMENT ON ALTERNATIVE VERDICT

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Hon Cheung JA (giving the reasons for judgment of the Court) :

1.  At the conclusion of the hearing of the 1^st defendant’s application for leave to appeal against conviction, we allowed his application, treated it as the appeal proper, allowed the appeal, quashed the conviction and set aside the sentence.  The following are the reasons for judgment and judgment on the alternative verdict of this Court.

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REASONS FOR JUDGMENT

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The robbery and subsequent events

2.  On 18 July 2007 at about 2:25 pm, PW1, a middle-aged woman, was assaulted and robbed by a man of her necklace which haD an attached jade pendant.  The robbery took place on the footbridge connecting Tsz Wan Shan Shopping Centre and Lok Shun House in Tsz Lok Estate, Tsz Wan Shan.  PW1 did not see the face of the robber but she managed to chase after him for a short distance after the robbery.  She followed him on the footbridge, down its staircase, then along Wan Wah Street towards the Fung Tak Road direction before eventually losing sight of him outside the exit of Tsz Lok Estate car park.

3.  Shortly thereafter at about 2:36 pm, at the Luk Fook Jewellery Shop at Fung Tak Street which is located at a short distance down the slope from Tsz Lok Estate car park, the 2^nd defendant sold the stolen necklace without the jade pendant for the sum of $2,992. 

4.  On the same day at about 6 pm, PW1 was accompanied by her son to meet the police who had contacted her about the robbery.  While they were going to the meeting place, they saw three men coming out from a pawnshop.  PW1 recognized one of the men whose feature was similar to the robber.

5.  PW1 and her son then immediately went inside the pawnshop and inquired with the pawnshop keeper.  He showed them the item that was just pawned by the three men.  It was the jade pendant that was stolen from PW1 in the robbery.  PW1 called the police while her son followed the three men.  Eventually the police intercepted and arrested 1^st defendant and another men.  The third man was arrested a few days later.

6.  The 1^st defendant and the 2^nd defendant were charged with the robbery of PW1. 

The verdict

7.  At the beginning of the trial, the 1^st defendant pleaded guilty to theft by finding which was rejected by the prosecution.  After trial Deputy District Judge J Lam found the 1^st defendant guilty of robbery.  He held that he was the one who robbed PW1 on the footbridge.  He was sentenced to imprisonment of three years nine months.  The Judge found the 2^nd defendant not guilty of robbery but guilty of handling the stolen necklace.  He convicted him of the offence of handling.  He was sentenced to imprisonment for 18 months.

8.  The 1^st defendant applied for leave to appeal against the conviction.  The 2^nd defendant who had also lodged an application for leave to appeal, subsequently abandoned his application. 

The evidence of the 1^st defendant

9.  The 1^st defendant did not give evidence and called no witness at the trial.  His record of interview to the police was produced as evidence.  In it he denied that he was the robber.  He said that he picked up the pendant at 3 pm to 4 pm on 18 July 2007 when he was walking on the podium outside Tsz Wan Shan Shopping Centre.  Later on the same day he pawned the pendant.

The evidence of the 2^nd defendant

10.  The 2^nd defendant gave evidence in his defence.  It is apparent that the Judge relied on the 2^nd defendant’s evidence to convict the 1^st defendant.

11.  The 2^nd defendant denied that he was the robber.  His evidence is that he lived in Tsz Ching Estate.  On 18 July 2007, which was the day of the robbery, at about 2 pm, he went to a rest place in the Tsz Ching Estate to watch people playing chess.  After about half an hour, the 1^st defendant, whom he knew, came and asked for his help.  The 1^st defendant told him that he had lost his identity card and asked him to sell a necklace for him.  The 1^st defendant said the necklace was his.  The 2^nd defendant agreed and they took a taxi to the Luk Fook Jewellery Shop.  Inside the taxi, the 1^st defendant took out a necklace and pendant and gave the necklace to the 2^nd defendant.  Upon arriving at the shop the 2^nd defendant sold the necklace for $2,992.  The 1^st defendant gave him $100 as reward and they parted company.  The 2^nd defendant was arrested on 21 July 2007.

The receipt

12.  The receipt issued by Luk Fook Jewellery Shop which was signed by the 2^nd defendant, recorded the time of the sale as at 14:36:50.  This is about 11 minutes after the robbery.  This means that if the robber had followed a downhill route after he managed to escape from the chase, this would give him sufficient time to carry out the sale of the necklace.  Common sense dictates that the 2^nd defendant would need to spend some time at the shop discussing the sale before the transaction was completed.

The time frame

13.  PW1’s evidence was that the robbery was about 2:29 pm.  The Judge found that the robbery took place at 2:25 pm.  According to the Judge and on the basis of the 2^nd defendant’s evidence, the 1^st defendant was the robber.  This means that the 1^st defendant after losing PW1 would have to go uphill again to reach Tsz Ching Estate in order to meet the 2^nd defendant.  Tsz Ching Estate is located on a slope above Lok Shun House to its right.  It was further away from Luk Fook Jewellery Shop than from Lok Shun House.  The 1^st defendant was unlikely to have taken the same route that he had used to escape from the chase in order to go to Tsz Ching Estate, otherwise he would have run the risk of meeting PW1 again who was chasing after him.  So he probably would have taken a more circuitous route to Tsz Ching Estate.  All this means that the 1^st defendant would have to proceed in great haste after he had completed the robbery at 2:25 pm, meet the 1^st defendant about five to six minutes later at some time about 2:30 pm, discuss the matter of selling the necklace with him and then take a taxi to Luk Fook Jewellery Shop where the transaction was conducted at 2:36 pm.  The 2^nd defendant did not say in evidence that when they met, the 1^st defendant appeared to be in a great hurry.

14.  It is unfortunate that (and through no fault of his) the Judge did not have the benefit of the maps of the location when he heard evidence from PW1 and the 2^nd defendant.  With the benefit of the maps, he would have seen the 2^nd defendant’s evidence was riddled with problems in the context of the time frame between the robbery and the sale. 

15.  There was no evidence that more than one robber was involved.  If the 2^nd defendant was the robber, he would have sufficient time to dispose of the necklace according to the time frame.  But, if, on the other hand, the 1^st defendant was the robber, according to the version of the 2^nd defendant, he would have great difficulties in being able to find someone to sell the necklace at 2:36 pm.  Luk Fuk Jewellery Shop was about 500 metres from Tsz Lok Estate car park.  From there to Tsz Ching Estate by a direct route would take about 500 metres.  If a more circuitous route is taken at that point to go to Tsz Ching Estate, it would take about 800 metres and the distance between Tsz Ching Estate and Luk Fook Jewellery Shop is another 1.4 kilometer away.  This means that, time wise, the 1^st defendant would have great difficulties in being able to dispose of the necklace, through the 2^nd defendant, in the short time after the robbery.  The 2^nd defendant’s version of events is inherently improbable.

The position of the prosecution

16.  Mr. Robert Lee S.C. who appeared with Ms Teresa Kam as counsel for the respondent accepted that the 2^nd defendant’s version was implausible.  However, he contended that the Judge was still entitled to choose which part of the 2^nd defendant’s evidence to be accepted as evidence against the 1^st defendant.

17.  We have difficulty with this argument because if the 2^nd defendant’s version of events on how the 1^st defendant gave him the necklace was implausible then we cannot see how the Judge could still at the same time accept some other parts of his evidence because, subject to issue of the 1^st defendant’s admission which we would later address, the linkage between the 1^st defendant and the robbery would be broken if the 2^nd defendant’s evidence was rejected.

Accomplice’s evidence

18.  The 2^nd defendant was an accomplice, at least in relation to the offence of handling.  The danger of relying on the evidence of an accomplice who implicates a co-accused is well known.  The Judge had already found two major inconsistencies in the 2^nd defendant’s evidence, namely, first, his knowledge of the origin of the necklace and second, the reward to him for helping the 1^st defendant to sell the necklace. 

Propensity

19.  Added to this, the 2^nd defendant was not someone with good character.  He had previous criminal convictions which were disclosed as a result of his attack on the 1^st defendant.  He was 30 years old at the time of the offence.  He had 10 previous convictions dating from 1994 to 2007.  The offences included possession of dangerous drugs, robbery (1997) and wounding (1999). 

20.  The Judge held that the previous convictions were only relevant in relation to the issue of his credibility but not on propensity to commit the crime.

21.  This is not the correct principle.  In R. v. Randall [2004] 1 WLR 56, the defendant and a co-accused G were jointly charged with murder.  Each denied the charge and gave evidence against the other.  Each relied on the criminal conviction of the other to show propensity to violence.  The defendant had relatively minor convictions unrelated to violence, but G had a number of convictions for burglary and had been party to violence.  The trial judge directed the jury that G’s bad character was relevant only to his credibility and that convictions and character were irrelevant to the likelihood of his having attacked the deceased.  The jury convicted the defendant of manslaughter and acquitted G.  The Court of Appeal, concluding that the judge had misdirected the jury, allowed the defendant’s appeal and, quashing the conviction, ordered a retrial. 

22.  The prosecution’s appeal to the House of Lords was dismissed.  The holding in the headnote of the report of the judgment summarized the relevant principle : although it would not normally be relevant to inquire into the previous character of an accused and to ask questions tending to show his previous criminal conduct, there were circumstances in which evidence of an individual’s character and propensity might be relevant to the facts in issue; that a defendant was entitled to disprove his own guilt and might do so by tendering evidence of propensity to show that his version of the facts was more probable than that put forward by a co-accused; that, since the defendant and G had each asserted the guilt of the other, evidence of G’s propensity to threaten and use violence was relevant to the issue whether the defendant was the more likely to have inflicted serious violence on the deceased; and that, accordingly, the evidence was relevant not only to G’s credibility but to the likelihood of his having attacked the deceased.

23.  In this case the 1^st defendant was 49 years old at the time of the offence.  He had one conviction of possession of dangerous drugs in 1978, a non-violent offence some 30 years ago.  This conviction was voluntarily disclosed by him.  Considering the 2^nd defendant’s previous convictions of robbery and wounding much more recently, the Judge when assessing the 2^nd defendant’s evidence against the 1^st defendant was entitled to and should consider whether the 2^nd defendant himself had the propensity to commit the robbery offence.  This was not done.

Credibility of the 2^nd defendant

24.  Further the 2^nd defendant’s credibility clearly was not properly evaluated.  The 2^nd defendant was not working because he claimed that he was on sick leave as the result of an industrial accident.  He received $14,000 compensation each month.  He also claimed he was not in financial difficulties.  Yet there was evidence that on three separate occasions in less than two months before the robbery he had pawned small items of jewellery, including his wife’s necklace and his own wedding rings, for sums of $400, $900 and $650.  All these should have sounded an alarm bell for the Judge when he was considering the truthfulness of the evidence of the 2^nd defendant.

The 1^st defendant’s action and admission

25.  It is of course true that the 1^st defendant had on the same day of the robbery pawned a piece of the stolen property.  He claimed that he found it near the scene of the robbery. 

26.  The fact that the 1^st defendant was in possession of the stolen pendant shortly after the robbery does not necessarily mean that he was the robber.  Even if his explanation of finding the pendant on the ground may not be credible, it does not necessarily mean that he must be guilty of robbery.  He might have committed the offence of theft.  Also it could equally be possible that he had handled the stolen pendant but not robbed PW1.  Hence his admission would not support the 2^nd defendant’s case against him.

Verdict unsafe

27.  In our view the Judge had not properly evaluated the inherent improbability of the 2^nd defendant’s evidence and his credibility.  He also had not properly considered other possible reasons for the 1^st defendant’s possession of the stolen pendant.  The verdict on robbery was unsafe and unsatisfactory.

No case to answer

28.  A point that was raised at the hearing by this Court, although not stated to be part of the 1^st defendant’s grounds of appeal, was that the Judge should have ruled that the 1^st defendant had no case to answer on the robbery charge.  The 2^nd defendant only gave evidence against the 1^st defendant after the Judge ruled that there was a case to answer.  Before that, the only evidence against the 1^st defendant was that he had pawned the pendant and his admission that he picked it up on the ground.  The judge took the view that the identification was unreliable.  In our view the evidence of recent possession alone was not sufficient evidence upon which a reasonable fact-finder, properly directed, could find the 1^st defendant guilty of the robbery.

Conviction quashed

29.  Accordingly we granted the application for leave to appeal against conviction, treated the hearing of the application as the appeal, allowed the appeal and quashed the conviction for the offence of robbery.

Hon Stock JA (giving the decision of the Court on the alternative verdict) :

The alternative verdict

30.  Before allowing the appeal, we heard submissions from counsel on the question whether we might substitute a verdict for an alternative offence pursuant to the powers conferred by section 83A of the Criminal Procedure Ordinance, Cap 221.  In that regard, we reserved our decision.

31.  Section 83A provides as follows :

‘(1)  This section applies on appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2)  The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at trial as may be authorized by law for the other offence, not being a sentence of greater severity.’

32.  Mr. Bullett had originally suggested that it would be appropriate to substitute a conviction for theft to reflect the basis of the plea of guilty to theft by finding which the appellant had offered at the outset of the trial but which had been rejected.  Mr. Bullett, correctly in our view, resiled from that position.

33.  There are only two offences that in the circumstances of this case could lie as alternatives to robbery : theft (by finding) and handling stolen property.

34.  It is a condition precedent to the operation of s. 83A that it appears to this Court that on the finding of the judge below he must have been satisfied of facts which proved the appellant guilty of the alternative offence.

35.  Such a test may readily be satisfied in a number of different settings. Thus, for example, were a judge to convict of robbery but the appellate court were to find that the element of force had not been proved and had been the subject of an erroneous analysis but that the theft finding was not impeachable,the section could be utilized to substitute a conviction for theft.

36.  The alternative of theft is not open to us under the section.  That is because :

(1)  the plea of guilty to theft by finding cannot be relied upon.  It was rejected by the prosecution and the case proceeded on an entirely different factual basis.  In such circumstances the plea is treated as a nullity and does not revive on an acquittal on the more serious charge : see Archbold Hong Kong (2009) para 4-28; and

(2)  the judge specifically rejected the appellant’s account of the finding of the pendant.  We cannot therefore say that the judge must have been satisfied of those facts that would go to prove a verdict of theft on that basis.

37.  It was argued by the respondent that it was open to us to substitute a verdict of guilty of dishonestly handling the pendant knowing or believing it to have been stolen.

38.  On any view of the case, the judge must have been satisfied that the appellant was in possession of the pendant, that the pendant was stolen and that the defendant was in possession of it a few hours after it was stolen.  So much is clear from his findings, none of which, in these aspects, is impugned.

39.  There is but one further fact of which the trial court would have to have expressed itself (either in terms or by clear implication) satisfied which proved the appellant guilty of handling, namely, his knowledge or belief that the pendant was stolen.  That knowledge might in the absence of a credible explanation be inferred from recent possession.  The appellant had said quite clearly that when he took the pendant he did not know or believe it had been stolen.  He believed that it had been dropped.  If that were true or possibly true he would not have been guilty of handling stolen goods.  Yet the only basis upon which the judge rejected that defence was his reliance upon the evidence of the 2^nd defendant, a reliance which we have found to be flawed.  Had he rejected the 2^nd defendant’s account and then gone on to consider the circumstances of the appellant’s possession of the pendant, he might have rejected the story of finding the pendant on the footbridge as being in itself implausible and then found that in the absence of any credible explanation for its possession a few hours after its theft, the appellant was guilty of handling the pendant, as was the 2^nd defendant in respect of the necklace.  

40.  But that is not what happened.  The judge never addressed the appellant’s defence that he did not know the item was stolen other than by reliance on the 2^nd defendant but, because that reliance was misplaced, we must put it to one side.  In the absence of an analysis by the judge of the appellant’s state of mind when he came into possession of the pendant, divorced from the testimony of the 2^nd defendant, there is no basis upon which we would have been enabled to say that on the findings of the judge, he must have been satisfied that all elements of the offence of handling had been proved.

41.  For these reasons, we do not substitute a verdict on an alternative charge.  We might add that having allowed the appeal and quashed the conviction, it may be that the terms of s. 83A preclude the subsequent substitution of an alternative offence in any event but, given the conclusion to which we have already referred, we do not have to decide that.