R. v. TANG CHI WAH

IN THE COURT OF APPEAL

1992, No. 235
(Criminal)

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J U D G M E N T

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Litton, J.A. giving the judgment of the court:

1. This is an application for leave to appeal against conviction by the District Court on 22 May 1992 on two charges: one of common assault and the other of robbery. The alleged victim was one WONG Chi-hong, PW2, both crimes having been committed on 24 July 1991. They arose from the same incident.

2. In relation to the first charge, the applicant was sentenced to imprisonment for two months and in relation to the second charge to four years concurrent with the first. He had originally been charged on the first charge with wounding with intent contrary to section 17 of the Offences Against the Person Ordinance but upon the evidence before the court, the judge convicted him of the lesser offence of common assault. The applicant was charged together with NG Yam-yiu who was the second defendant in the proceedings.

3. The background facts can be very shortly stated:

(1) Miss CHAN Suk-man (PW1) 17 years old at the date of trial, and the second defendant (D2) had at one time a relationship as girl-friend and boy-friend.

(2) In the course of their relationship PW1 had lent to D2 a total of $15,000. PW1 later sought repayment and failed.

(3) In about April 1991 after PW1 had broken off the relationship with D2 she formed a relationship with PW2 WONG Chi-hong. The judge found PW2, who was 20 years old at the trial, an impressive witness.

(4) PW2 became involved in PW1's attempt to recover the loan from D2. Eventually D2 promised to repay part of the loan on 24 July 1991.

(5) On that date, 24 July 1991, PW2 having borrowed a car, a BMW, from his brother-in-law, went with PW1 and PW3 to Lam Hau Tsuen in the New Territories where D2 lived. When they got there they were met by D2 and then ambushed by a large number of men armed with a variety of weapons.

4. On the judge's findings this applicant became involved in this way. When PW2 tried to escape his assailants he went past a car, a gold coloured Nissan "Sunny" which reversed into him, knocking him to the ground. This formed the subject matter of charge one. The other assailants caught up with PW2, beat him with pipes and other weapons and bundled him into the car, the car being driven by the same person.

5. The Crown's case was that this driver was the applicant. The car was driven to a neighbouring village, Shan Ha Tsuen, to a place where containers were stored. PW2 was pushed out of the car. PW2's testimony was that the driver, whom he identified as this applicant, then beat him again with a water-pipe whilst he was on the ground, until someone told the applicant to stop otherwise he might die.

6. PW2's evidence was that this applicant then pointed a knife at him and required him to hand over all his valuables including a gold bracelet, a wrist watch, the contents of his wallet which contained cash and a visa credit card. PW2 said that this applicant then required him to give his address which this applicant then proceeded to write down, either in the palm of his hand or on a piece of paper held there. The container yard where this took place was brightly lit. The evidence was to the effect that a few weeks later PW2 saw this applicant in the street and contacted the police by mobile phone, at a number which had been given to him by the police. This applicant was then arrested.

7. The only issue at the trial was identification. The judge found PW2 had ample opportunity to identify this applicant. In seeking to describe the driver of the Nissan vehicle to the police, PW2 gave this description: "Aged 27 to 28, 1.7 meters tall, thin with dark complexion, short hair-cut and pointed face, spoke Wai Tau dialect, wearing brown shirt and dark coloured jeans".

8. The judge found that the description was reasonably accurate as far as this applicant was concerned except on the matter of age. At the time of the trial the applicant was aged 21. The judge said in his Reasons that looking at him one could see that he might have looked older: an impression now nearly a year later which to us does not seem inaccurate. The applicant has today raised a point about a scar which he carries on the left of his face, which was not mentioned in that description. This was referred to at trial and, apparently, counsel did not consider that to be very relevant evidence; and sitting where we are on the Bench today that scar though faintly visible is certainly not very prominent.

9. There was at trial a submission of no case to answer which was rejected. The applicant elected to give no evidence. Whilst this was his right, the effect was that the trial judge was left with the uncontradicted testimony of PW2. The question now before us is whether the judge had properly convicted upon that evidence. On this application the applicant raises a number of grounds. He says that there were no weapons found in his possession; none of the valuables stolen from PW2 was found at his home and that if the visa credit card had been lost as alleged by PW2 it is odd that there was no evidence of his having reported that fact to the credit card company. These seem to us to be peripheral matters. The question ultimately is whether the judge had analysed the evidence before him carefully, and the issue boiled down to PW2's identification. Plainly, there was ample opportunity for identification. Not only did PW2 travel in the car driven by the applicant; it was also the applicant who had held him at knife point and robbed him of his valuables at the container yard.

10. On the evidence the judge was entitled to convict and we see no ground for saying that the conviction is unsafe or unsatisfactory. The application must therefore be dismissed.