HKSAR v. CHAN SUNG LAM AND ANOTHER

CACC 432/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 432 OF 1999

(ON APPEAL FROM DCCC 362/1999)

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J U D G M E N T

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Hon Mayo JA (giving the judgment of the Court):

1. The applicants were respectively D1 and D2 at their trial in the District Court before Deputy Judge Duggan. They were both convicted of attempted robbery. They both seek leave to appeal against their convictions.

2. A group of people were in a shop in Des Voeux Road West in the evening of 28 October 1998. Some were chatting together while others were playing mahjong. A group of men suddenly burst into the shop. According to the prosecution case A1 said that he was the "tor tei" and that he asked to see the boss. When he was told the boss was not in he produced a knife and declared a robbery. There was a general commotion and someone was able to call the police. The men went out of the shop when they realised that the police had been summoned. During the pursuit which took place a mobile telephone was dropped. This was registered in A2's name.

3. The four main prosecution witnesses were PW1, PW2 and PW4 who had been talking together when the men entered the shop and PW3, the police officer who was in attendance shortly after the men left. PW1, PW2 and PW4 all gave evidence which the Judge accepted. They also attended an identification parade, PW1 identified A1 and PW2 and PW4 identified both A1 and A2.

4. A1 gave evidence at his trial. He claimed to have known PW2 and that there was ill feeling between them over a debt he said he owed PW2. He also called alibi evidence that he had been in a restaurant at the time in question. Also one of the people who had been in the shop gave evidence for the defence which conflicted with the evidence of PW1, PW2 and PW4.

5. The Judge pointed out that the main issue at the trial was the credibility of the witnesses. Suffice to say, the Judge believed the prosecution witnesses and disbelieved the defence witnesses.

6. The first ground of appeal is that:

"The evidence of identification was inadequate to justify the conviction beyond all reasonable doubt.

Particulars

1. The trial judge at page 4H-I had failed to consider the other aspect of the Turnbull warning, that is 'a longer observation made in difficult conditions.'

2. The circumstances of the identification was made under difficult conditions: a gang of robbers, armed with weapons in a confined space.

3. The identification of the 1st Applicant as recorded in 4-B is unsatisfactory as there is a lurking doubt as to whether or not the 1st Applicant was actually the robber. Furthermore, it tends to show that the learned trial (Judge) had confuse (sic) the essence of a Turnbull warning. That is a 'credible' witness may still nevertheless be a 'mistaken' witness."

7. There is no merit in this ground. The Judge specifically referred to the case of Turnbull. There is every reason to suppose that a professionally qualified judge would be fully conversant with the dangers attendant upon identification evidence. The Judge appears to have given careful consideration to all of the relevant background circumstances. No grounds have been made out to justify us interfering with the Judge's assessment of the position.

8. Ground two is that:

"The learned trial judge had erred in approaching the case by way of balancing the defence and prosecution stories against each other and to conclude that the case has been proved on the basis that the defence story must be rejected, because the prosecution story must be accepted.

Particulars

1. The complaint is supported by reference to page 5-K of the reasons for verdict.

2. The Deputy Judge has essentially reversed the burden of proof onto the defendants.

3. Alternatively the wrong approach to the evaluation of the evidence prejudiced the 1st Applicant."

9. Again there is no merit in this ground. It is clear that the Judge carefully analysed all of the evidence of the prosecution and the defence witnesses. There is no reason whatever to suppose that the Judge was not fully mindful of the burden of proof.

10. In ground three complaint is made that:

"Further and in the alternative to ground two, the learned trial judge erred in that he had wrongly failed to consider the defence case without proper basis and/or upon impermissible speculative grounds.

Particulars

1. At page 5-K the learned trial judge admits that he is 'speculating' as to why the 2nd Applicant and his defence witness had said the same thing. This in effect reverses the burden of proof onto the defendants, who are required to prove their innocence.

2. Furthermore this supports the 1st Applicant's argument that the learned trial judge never fairly (if at all) considered the defence evidence."

11. The Judge has not reversed the burden of proof. He was simply commenting on the evidence at large. The truth of the matter is that there was an overwhelmingly strong case against A1 and there was ample evidence to support his conviction.

12. The 2nd applicant in his homemade grounds of appeal makes general observations concerning the case which was made out against him. All of the matters he refers to were before the Judge and he made his adjudication upon them. It is no part of the function of the Court of Appeal to rehear this case. There was an overwhelmingly strong case against this applicant also.

13. Neither of these convictions are in any way unsafe or unsatisfactory and these applications are dismissed.