HKSAR v. CHOW WING FU and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.442
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 27th June 1997, following a trial in the District Court before Judge Sweeney, both these Applicants were convicted of robbery. They were each sentenced on 11th July 1997 to three years' imprisonment. The 1st and 2nd Applicants, who were D1 and D2 respectively in the trial below, now seek leave to appeal against their conviction. The 2nd Applicant originally made an application to appeal against his sentence. He has given written notice of his abandonment and that application is now formally dismissed.

2. The prosecution's case in essence could not have been more straightforward. This was a thoroughly unpleasant robbery committed on 10th November 1996, at Ming Kei College. The victim had returned there at 10 p.m. He was employed at the college and had gone there to collect his car. He was accosted by three men, two of whom attacked him with wooden poles. His head was covered by a plastic bag, his arms and legs were tied up with electric wires. His valuables were taken and the robbers fled. The two Applicants were seen running away from the school by two observant police officers who were patrolling the area. Initially, they suspected that the men may have committed a burglary because this was late on a Sunday night and the school was in darkness. A chase ensued and the Applicants were caught. One of them had on him the easily identifiable gold necklace and gold bracelet and the waist bag which had only moments before been stolen from the victim. The victim was also able to identify the Applicants as being of similar stature, height and clothing to the persons who had robbed him.

3. The Applicants' case at the trial was equally straightforward. They alleged that they were chasing after the people who had really committed the robbery, and that they had seen those people drop property which must have belonged to the victim. The property was only picked up, according to the defence case, in order that it could be returned to the victim. Their case was that a dreadful mistake had been made by the police or, alternatively, that they had been framed by the police to look as if they were the real culprits.

4. Turning to the Grounds of Appeal, the first of these reads:

"In his Reasons for Verdict the learned judge failed to take sufficiently into account the fact that neither applicant was identified by the victim either at the time of the arrest of the applicants and their subsequent encounter with him or at any later stage in the course of the police investigation or the trial itself."

5. What appears to be the real point of this submission is not that there was an absence of any reliable evidence of identification by the victim but rather that such evidence as there was militated against these applicants being the guilty culprits.

6. We have been invited to look at four points in particular which Mr. Harris makes on behalf of the Applicants. Firstly, he says, the victim described the assailants as being "young" whereas the Applicants, who are twin brothers, were aged 33 at the time of the event. This is a point which is perhaps of no great consequence when considering the victim's evidence in its whole, proper context. Reading from the Reasons for Verdict at page 2 line M, the victim said:

" 'I was panic-stricken. I dared not look at their faces, I just recognised the denim clothing.' By the time he had freed himself, two police officers had brought back these two defendants to the school. And when he saw them he was of the opinion that, 'They were of similar stature, height and clothing to the persons who had robbed me, the three young assailants.' "

7. In the context of identification, age is a difficult subject to assess because it is obviously so much a matter of personal perception. Very realistically, Mr. Harris agrees that age is always going to be relative, relative that is to the person who is trying to describe another person's age. For example, a young person may regard a person of 30 as being old, just as a 50-year-old man may regard a person of 30 as being young. The victim that gave this evidence said two things in this context which are important. One is that he himself was aged 49. The other matter is that he said in the course of his evidence:

"I only felt that they were youngsters."

8. The second point in this regard that Mr. Harris makes is that the victim had seen three assailants. The police who chased these Applicants only saw two men running away. They never saw a third man. Again, this was something that the learned judge clearly had in his mind and dealt with in the Reasons for Verdict, and I can quote from page 6 at N:

"We know that the police only chased two robbers, so what happened to the third one? I surmise he must have been sufficiently behind the first two as they ran out the gate in order to see the police give chase. This is of course speculation but the fact that the third robber did not emerge at the same time as the first two does nothing to weaken the prosecution case.

9. Thirdly, Mr. Harris puts this matter before us. Both Applicants had in the past worked at the school and he argues that it is inherently unlikely that they would risk carrying out such an offence as this where their victim might be able to recognize them. But, again, this matter is dealt with in the Reasons for Verdict and it is clear that the judge had thought about this point. He said, at page 8B:

"Their reasons for going to the school at 10 p.m. on a Sunday night, without transport, to take away heavy equipment are very suspect. D1 says they had left the equipment there some two months earlier after a job, whereas their witness on that point, Mr. Tam King-woo, says in his agreed witness statement (Exhibit D3) that they had last worked for him in the summer of 1995. Whilst I accept that D1 was lawfully in possession of keys to the gate of that yard, it is somewhat surprising that they have still not retrieved those tools even to this day."

10. We observe, in relation to that comment, that this was by that time one and a half years later.

11. The fourth matter is that there was a discrepancy between what the police officers said when compared to the victim's testimony. Police said that the victim was able to identify the Applicants as having responsibility for this crime, whereas the victim himself was very clear in his denial that he had ever been able to do that. Discrepancies between witnesses are of course almost inevitable regarding evidence where human memory is called upon for details of events in the past. Once again the trial judge had that in his mind and, turning to page 6 of the Reasons for Verdict, he dealt with the question of discrepancies in a very short passage where he pointed out that there were discrepancies in police evidence:

"This is inevitable where two persons come to describe swiftly moving events that occurred 7 or 8 months ago."

The judge did not need to say more than that.

12. These last two matters are raised again in the second and third grounds of this application. Furthermore, the credibility of the police witnesses and the Applicants' credibility as well, both of whom gave evidence, was fundamental to any assessment of the evidence by the trial judge. Ground 4 deals with this aspect so that it is sensible to look at all remaining grounds together.

13. Ground 2 reads:

"In his Reasons for Verdict the learned judge focused upon what he appeared to think was the improbability of the applicants' versions of events. In dealing with discrepancies in the evidence of the prosecution witnesses, allowances were made for lapses of memory caused by the passing of time. The applicants were not given the benefit of the same allowances. In his approach the learned judge, in effect, placed upon the applicants an onus of proof which they did not have to bear."

14. Ground 3:

"In particular, the learned judge failed to address adequately or at all the important, if not extraordinary, discrepancy in the accounts of the victim and the police officers in the case concerning whether or not the victim had identified one of the applicants at the time of the arrest. The victim testified that no such identification took place whereas the officers insisted that it had."

15. Ground 4:

"The learned judge failed to have sufficient regard to the fact that both applicants were persons of good character and entitled to be believed."

16. Taking that last point first, it is difficult to see how the trial judge could have taken the good character of these Applicants more into account. Not once but twice in his Reasons for Verdict at page 7, when giving an assessment of the defence case, he referred to their clear records. Furthermore, although he did not strictly need to, but what he has done, is to set out in writing the twofold direction as to the approach that he should take to this evidence. The trial judge was also fully aware of the injustice which the Applicants alleged had occurred and summarized, together with good character, those matters in these words:

"If the defence case is to be believed, then these two brothers have had a dreadful wrong done to them. Two young men of clear record who chased after armed robbers without fear for their own safety, who recovered the 'loot' and kept it safely for the victim, have received not praise but prosecution. Their case is that because the real robbers got away and because they ended up carrying the loot, the police have falsely framed them on this charge. This would be an outrageous suggestion if it is true, so I must examine their story very carefully to see if it could possibly be true bearing in mind at all times that being of clear record, they are less likely to have committed this offence and more likely to be telling the truth than might otherwise be the case."

17. There is no substance in that ground.

18. All that needs to be said regarding grounds 2 and 3, so as not to repeat what has already been said, is that the trial judge reviewed the evidence for and against the Applicants with precision and accuracy. There is nothing unfair about his approach to any of the evidence. We observe that the Reasons for Verdict are prepared in depth and took into account the discrepancies which arose in the course of the evidence. Perhaps even more importantly in the present context, we observe that the judge examined with obvious care all the points that were made by the defence. Ultimately, he found 18 points in the case for the defence which led to the conclusion that their case did not stand up to clear close scrutiny. He was perfectly entitled to reach that conclusion save as it turns out in respect of the 17th point. I turn to that straight away because that 17th point has, in effect, become an additional ground of appeal which I will call the fifth ground of appeal. To quote from page 10 line M of the Reasons for Verdict, point 17 is this:

"D1's evidence that the victim had said, 'No' when asked if the defendants were his assailants by the police, came out of nowhere in this case. Insofar as such an assertion had not been put to the victim or any of the police officers when they themselves gave evidence, I am satisfied that such a vitally important piece of evidence was not put to the prosecution witnesses because it only arose when D1 himself came to give evidence, that this was an invention of his."

19. Very properly there is no criticism made of the judge because at the trial, where Mr. Harris was not conducting the defence, trial counsel then instructed had not put this matter right when he had been given the opportunity to do so, by telling the judge that the error was his own because he had failed to put the instructions he had received in full. I say this because we can accept what we have been told today by Mr. Harris, that trial counsel was, as a fact, in error. Trial counsel had been provided with the written instructions of D1 that D1 had dictated to the girlfriend of D2. We have also been provided with a translation. The following passage in the instructions appeared:

"When we brought the Policeman back to the college we saw a man ran out from the college and said to the policeman that he was robbed, the policeman immediately asked him were it us that robbed him, that man said no, policeman then called him to recognize again clearly whether it was us, he said it had been very dark and could not see clearly, ....."

We think that this passage is the relevant part of the instructions, but it is clear that point 17 in the list of difficulties which the defence had to face as the shortcomings to their case is a false point in the light of what have now been told. We have given this our anxious consideration. We take the view that this was a point, but not a point that was so important that it would have affected the final judgment in the case. Undoubtedly defence counsel should have corrected the judge when he heard what the judge said, but we do not feel it was a point of such importance that the verdict would have been affected even if the judge had been told, as he should have been, that instructions had been received by the defence which should have been put to the victim when he was giving evidence.

20. We can say with confidence that we can find no justification to interfere with the verdicts which are recorded. In particular, the burden of proof was never at any stage placed upon the defence but many of the 18 points which are listed by the judge would have weighed heavily with him and, in combination, they showed that the defence was not worthy of belief.

21. There is, we are satisfied, no substance in any of the points raised on behalf of the Applicants and these applications must, therefore, be dismissed.