HKSAR v. LAU WAI

CACC397/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 397 OF 1998

(ON APPEAL FROM DCCC 480 OF 1998)

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J U D G M E N T

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Stuart-Moore, V.-P. (giving the judgment of the Court):

1. On 24th July 1998, the Applicant (D2) was convicted of robbery following a trial before Judge H.C. Wong in the District Court. He had earlier pleaded guilty to a second charge of remaining in Hong Kong without the authority of the Director of Immigration. The Applicant now seeks leave out of time to appeal against his conviction on the charge of robbery.

2. There is no need to go into the facts of this application because they have already been set out in the judgment which relates to the successful appeal of Chiu Keung (D1) in CACC 397/98 which this Court, differently constituted, gave on 19th March 1999. We indicated that there were doubts as to the propriety of D1's conviction and allowed his appeal and that we were unable to question D2's conviction at the same time because he was not before the Court. However, no doubt after the learning about D1's success in his appeal, not surprisingly, D2 lodged an application for leave. This had, to a large extent, been encouraged by this Court. We have no hesitation in entertaining this application out of time and it is clearly one in which the merits are on his side.

3. The grounds which were to have been advanced on his behalf relate to the unsatisfactory nature of the identification by PW1 and PW2 who were the victims of the robbery and who provided the only evidence against D2. Exactly the same situation applied also to D1.

4. There is no material difference between the quality of the evidence of identification given against D2 and that which applied also to D1. In both cases, the quality was poor as the judgment given in D1's case demonstrates.

5. The Respondent does not seek to argue otherwise. In particular, when PW1 was cross-examined on behalf of D2, he was asked a question which appears in the earlier judgment at page 4:

"Q. Apparently, the reason why you picked out these two persons at the two different parades was because they look like those ones who robbed you?

A. Yes.

Q. You're not quite sure about that?

A. Correct."

6. As for PW2, she had seen the robbers only as they were leaving because she had hardly looked at them during the offence itself on account of fear.

7. She had picked out D2 on an identification parade but when asked during the trial as to whether she was sure of her identification, she replied "average". She also said that she did not know what role had been played by the person she had picked out at the parade.

8. The trial judge referred to R. v. Turnbull, (1977) 1 QB 224, but she went on to refer to the "strong evidence" of identification. The judge had, in fact, put the two identifications together, though each was very weak indeed, and regarded them as corroborating each other. It suffices to quote from the judgment earlier given at page 7 where the Court was setting out the Respondent's attitude to the application in D1's case in the light of the judge's finding that there was "strong evidence" of identification. The Court said this:

"... Mr. Saw, S.C., who appears for the respondent today, was unable to support that finding, and understandably so, as, given what we have set out above, it clearly fell considerably short of being strong evidence of identification. The evidence from neither of the witnesses was satisfactory and the evidence of each gave little support to that of the other. We cannot help but feel that the judge, when she came to the conclusion that there was 'strong evidence of identification', was relying upon her finding that the witnesses were truthful and that they had made positive identifications and that she had, somehow, lost sight of the fact that their evidence, on their own admissions, was far from strong. We are left with a lurking doubt as to the propriety of the conviction."

9. Having satisfied ourselves that there is no basis for any distinction between D2 and D1, whose appeal was allowed, we shall grant leave. Treating this hearing as the appeal, we allow the appeal and quash the conviction for robbery.