WONG WAH YEE v. HKSAR

FAMC No. 20 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 40 OF 2000)

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DETERMINATION

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Mr Justice Chan PJ :

1. The applicant was convicted after trial before a judge and jury in the Court of First Instance of two counts of attempted robbery and one count of possession of an imitation firearm with intent to commit an arrestable offence. His appeal to the Court of Appeal was dismissed. His application made out of time to certify points of law of great and general importance was also refused by the Court of Appeal. This is a renewed application for a certificate on this ground as well as an application for leave to appeal on the ground of grave and substantial injustice. The applicant also asks for extension of time to make his applications.

2. There are 4 points of law which the applicant seeks to argue are of great and general importance. They all relate to the judge's directions to the jury on similar fact evidence and the way the Court of Appeal dealt with these points. It is appropriate to mention briefly the evidence regarding the two attempted robberies which was before the court.

3. The 2 offences occurred less than 3 and a half months apart. Both of them happened in the morning, and at the ATM machines outside the Kornhill branch of the Hong Kong Bank in Quarry Bay. In each case, the complainant was a middle aged lady trying to withdraw money from the machine; the suspect, according to the complainant, was an elderly person having a mole on his lower lip, wearing a cap, carrying what appeared to be a gun and approaching the victim from behind. In both cases, the suspect attempted to operate the keyboard of the ATM machine. The applicant was arrested in the immediate vicinity of the scene shortly after the second offence. He was found to be in possession of an imitation firearm. That was the subject matter of the 3rd count. He was later identified at an identification parade by the victim in the first offence.

4. In respect of the 1st count, the defence was an alibi and in respect of the 2nd, the applicant admitted that he was the person who approached the complainant but it was submitted on his behalf that what he did was not sufficient to amount to an attempt.

5. Having regard to the evidence adduced at the trial, we do not think the 4 questions of law which counsel very succinctly summarises into one proposition of law consisting of two parts merit consideration by the Court of Final Appeal.

6. Counsel in his written submission referred us to a number of English authorities on the approaches the court should adopt and the sort of directions a trial judge should give to the jury on the issue of similar fact evidence. By their verdicts, it is clear that the jury must have been satisfied to the requisite standard of proof that it was the same person who committed the 2 offences and that it was the applicant who committed both of them. Whichever of the conflicting approaches submitted by counsel may be the correct one, it is quite clear that the two offences in the present case are of the same nature and on any view, the similar fact evidence in question was admissible. The jury were not told by the judge to make use of such evidence for any illegitimate purpose. We observe that in rejecting counsel's submission on this point, the Court of Appeal seemed to have drawn a distinction between making use of similar fact evidence to identify the perpetrator on the one hand and to support an identification already made on the other and had also commented on the necessity of proving criminal conduct before similar fact evidence can be used. We do not think this is a suitable case to test these points and we express no views thereon.

7. In respect of the grave and substantial injustice ground, the main argument is this.

8. The judge's direction on the issue of alibi was erroneous and prejudicial to the applicant in that the trial judge had suggested to the jury that certain entries in the diary produced by the applicant's sister called on behalf of the defence supporting the alibi were concocted notwithstanding that the prosecution had not expressly put this to the applicant's sister.

9. In his summing up, the judge had clearly told the jury that it was for the prosecution to disprove the alibi, that they must be satisfied that the alibi was incorrect and that even if they rejected the alibi, that did not mean the applicant had committed the first offence since there might be many innocent reasons for putting up a false alibi. The judge then dealt with the discrepancies in the alibi evidence suggesting that the details given by the applicant's sister, in particular the entries in her diary produced in support of her evidence, were concocted. Since the prosecution had not expressly put its case to her in cross-examination, it was submitted that she was not given an opportunity to explain those discrepancies and that the trial was not fair to the applicant.

10. We do not think there is any substance in this argument. All the alibi witnesses were cross-examined to some extent as to the correctness and reliability of this defence. It would seem that the applicant's sister was closely cross-examined on various details and her evidence was substantially challenged. In particular, the cross-examination dealt with the diary, contrasting the differences between the other entries and the crucial ones in the diary. We do not think that the failure of prosecuting counsel to put to her that the entries in her diary were false has created any grave and substantial injustice to the applicant.

11. We would, however, make the following observations. Sometimes, prosecuting counsel are confronted with an apparently respectable person who provides a relative with an alibi which cannot realistically be regarded as mistaken and must be either accurate or deliberately false. And the prosecution's position is that its evidence pointing to the accused's guilt is reliable and that the alibi is false. There are cases in which prosecuting counsel, when cross-examining such an alibi witness, have refrained from expressly putting it to the witness that his evidence is false. Instead, they have relied exclusively on the strength of the prosecution's evidence to show that the alibi is false and that the accused is guilty. This approach has been countenanced by experienced trial judges and members of the Court of Appeal. We do not pronounce upon when it is acceptable to leave matters implicit and when it is essential to be explicit. But as a general rule, prosecuting counsel would be well-advised to put any suggestion of concoction to the alibi witness in express terms. Indeed, it would be open to the trial judge, if he sees fit, to invite prosecuting counsel to adopt such a course.

12. There is another matter which was raised in the Notice of Application but not dealt with in oral submissions and which is said to have given rise to grave and substantial injustice. It is that the summing up was not a balanced one in that the trial judge had failed to direct the jury on a number of matters. Having considered the summing up as a whole, we are not persuaded that it is reasonably arguable that the judge had failed to do so.

13. There is, in our view, no merit in these applications which we dismiss. That being the case, it is not necessary to deal with the application for extension of time.