KWOK HOI YUEN v. R.

IN THE COURT OF APPEAL

1994, No.87
(Criminal)

HEADNOTE

Criminal Law - Conviction - Inconsistent verdicts returned by Jury - Appeal allowed and conviction quashed.

IN THE COURT OF APPEAL

1994, No.87
(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 the applicant's conviction for burglary.

2. The brief facts are these. Around 4.15 to 4.30 a.m. on 8th December 1992, a security guard at the Ambassador Hotel, Nathan Road, found a burglar in the coffee shop on the first floor. The coffee shop was then empty and in darkness. The guard shone his torch and located the burglar. That man attacked the guard with a screwdriver aiming at his head. The injuries to his head were serious, rendering him unconscious. The victim suffered permanent damage to his vision.

3. It was the Crown's case at trial, denied by the applicant, that he was that burglar.

4. On the basis of the prosecution case the applicant was charged on two counts - (1) burglary and (2) wounding with intent contrary to s.17 of the Offences Against the Persons Ordinance. The jury convicted the applicant on the burglary charge but acquitted him on the wounding charge. The guilty verdict surprised the judge when it was returned. Hence this application for leave to appeal before us.

5. The case turned on the victim's identification of the applicant as the burglar.

6. The applicant was a former employee at the Ambassador Hotel but had left that employment about 6 months before the incident. He had returned from time to time to visit his former colleagues. His case throughout was that he was at home asleep in the early hours of 8th December. He had woken up at about 4 a.m. and had gone to work as a cook at the Royal Pacific Hotel. It is an accepted fact that he had clocked in to work at 5.17 a.m.

7. The victim recovered consciousness before he was taken to hospital. He told his colleagues that the attacker was a Chinese male wearing white, that he was trying to steal cigarettes and added that he was not a member of the staff of the hotel. The victim was taken to the Queen Elizabeth Hospital that morning. It was not until 6 p.m. that evening when his sister visited him that he first pointed the finger at the applicant: he said to her that the attacker was the kitchen boy Ah Yuen, indicating this applicant. There was some evidence to the effect that by that time, i.e. the evening of the morning of the attack, the victim's condition had deteriorated. He was transferred to St. Theresa's Hospital where the doctor who examined him found him confused or disorientated as to time.

8. Apart from what is said above, there were other worrying aspects to the case: for instance, at the scene of the crime, there was found a pair of spectacles; the guard had said that there had been a brief struggle that morning, in the course of which the burglar's spectacles had become dislodged. It was an accepted fact at the trial that the pair of spectacles found on the floor of the coffee shop did not fit this applicant.

9. The judge gave to the jury very full directions on the evidence and reminded them of the dangers of acting on the identification or recognition evidence of the security guard alone.

10. On behalf of the applicant only one ground of appeal has been put forward: that the two verdicts are wholly inconsistent and self- contradictory. Mr. Cross, Q.C., on behalf of the Crown, has not sought to argue otherwise. Rightly so. There was only one issue for the jury: could they safely conclude that the applicant was correctly identified as the attacker? If they were unable to so conclude, there was simply no room for them to kind him guilty on the burglary charge. In our judgment this is one of those rare instances where a Hong Kong jury has lapsed from their normally high standards in evaluating the evidence adduced at trial. The conviction on the burglary charge cannot safely stand.

11. We treat the application for leave as the hearing of the appeal, allow the appeal, discharge the conviction and sentence.