HKSAR v. YUNG WING YAN

CACC 67/2026, [2026] HKCA 1481

On appeal from [2026] HKDC 161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 67 OF 2026

(ON APPEAL FROM DCCC NO 496 OF 2024)

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J U D G M E N T

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1.  This is the applicant’s application for bail pending appeal.

2.  On 26 January 2026, the applicant was convicted after trial of one count of assisting the passage within Hong Kong of unauthorised entrants. He was on 27 January 2026 sentenced to 36 months’ imprisonment. He subsequently lodged a Form XI and sought leave to appeal against conviction.

3.  The prosecution case was that a Chinese man on the morning of 13 October 2023 at the East Dam of High Island Reservoir made arrangement for the conveyance of 4 Vietnamese unauthorised entrants from there to Sai Kung Town Centre. The conveyance was a taxi trip. The taxi was driven by PW3.  

4.  There is no dispute that what the Chinese man did did amount to the charged act of assisting. The sole question in dispute is whether the applicant was correctly identified as being that Chinese man. PW3 was the principal identifying witness.

5.  In applying for bail pending appeal, Mr Azan Marwah for the applicant relies principally on the time basis. He points to PW3’s evidence in Court, which the trial judge summarised as being this, that “[PW3] told the court that he was 90% certain that the man that he identified to the police at the scene was the man who had made the driving arrangement with him for the 4 passengers.”  Mr Marwah submits that that was not a positive identification, but a qualified identification. He relies on R v George[1] and HKSAR v Lee Wan Kong[2]. He submits that it was not open to the trial judge to convict, and that the trial judge should have disregarded PW3’s qualified identification. Mr Marwah also submits that the identification evidence is weak. He submits that the applicant’s appeal is reasonably arguable on merits, and that if the applicant is not granted bail, he would have served a substantial part of his sentence by the time of the appeal proper.

6.  I have considered the totality of the evidence. I have considered the authorities cited. PW3 had 2 face-to-face encounters with the Chinese man. It was not a fleeting glimpse situation. His evidence is admissible. His evidence is not weak. His evidence also does not stand alone. There was the evidence of PW2 who worked nearby and whose evidence “indicates [the applicant] committed the crime with which he is charged” (borrowing Lord Woolf’s words in George). PW2 pointed out the Chinese man to the police at the scene. I refer to §§48 and 49 of the Reasons for Verdict. PW2 was confident that the man she pointed out was the applicant. I refer to PW4’s and PW5’s evidence as summarised by the trial judge at §63 of the Reasons for Verdict, which I regard as important and which established the nexus between the applicant and the Chinese man. The totality of the evidence shows, borrowing the words of Lord Woolf again at §76 of George, that there was an “underlying unity” and “general consistency” in the identification evidence.

7.  This being a bail application, it is not the occasion for this Court to go deep into the grounds of appeal. But on what is before this Court, I am not satisfied that the appeal is reasonably arguable on merits.

8.  I refuse the applicant’s bail application.