HKSAR v. SHEHOZA VICENT KENNEDY AND ANOTHER

CACC 151/2023, [2025] HKCA 687

On Appeal From [2023] HKDC 1111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 151 OF 2023

(ON APPEAL FROM DCCC NO 371 OF 2022)

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J U D G M E N T

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1.  The 1^st applicant (“D1”) and the 2^nd applicant (“D2”) applied for leave to appeal against their convictions on 10 August 2023 following a trial in the District Court before Deputy Judge M Chow (“the judge”) on a joint charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. They were each sentenced to 3 years and 9 months’ imprisonment.

The prosecution case

2.  D1 and D2 were Form 8 Recognizance holders originally from Tanzania. The prosecution case was in essence that at about 3:40 am on 4 December 2021, they acted in concert to attempt to steal PW1’s Rolex watch with force as he and PW2 were walking down D’Aguilar Street in Central. D1’s role was to distract PW1, while D2 attempted to unfasten PW1’s watch.

3.  It was PW1’s evidence that as he walked down D’Aguilar Street with his left arm draped around PW2’s left shoulder, D1 and D2 approached them. D1 was in front of PW1 and D2 was in front of PW2. D2 looked at PW1 and said loudly, “I like this guy”. D1 tapped lightly on PW1’s chest to distract him[1] and said something. D2 simultaneously grabbed PW1’s left wrist and attempted to remove his Rolex watch, for which PW1 said he had paid HK$85,800[2]. However, the attempt failed. Nevertheless, the pulling force of D2’s action caused the bodies of PW1 and PW2 to turn to the left, at which point PW1 shouted, “You want to steal my watch?” He then shouted to some police officers, who were performing crowd control duty nearby, to arrest the applicants. In the meantime, D1 and D2 walked away.

4.  PW3, who was one of the police officers, said that the attention of the officers was drawn when “a passer-by came to tell me that someone stole something from somebody outside Yip Fung Building” in D’Aguilar Street; and when he approached the scene, PW1, PW2, D1 and D2 appeared to “in a quarrel”[3]. Enquiries were made, after which, at 4:10 am, D1 and D2 were arrested for attempted theft.

The defence case

5.  D1 testified that he saw PW1 and PW2 with a group of other males coming down D’Aguilar Street and they appeared to be dancing. D1 joined them for a few seconds, before the group continued to walk on down the road. At some stage PW1 accused him of stealing; he did not see D2 throughout the incident and they were not together that evening. D2’s defence was one of mistaken identity; however, he elected not to give evidence.

6.  It was D1’s case that after consuming 10 cans of beer in a bar, the name of which he had forgotten, over a period of 2 hours, he left to wait at some railings for a female friend before going home to the New Territories. He then saw a group of four persons singing and/or dancing. So he joined the group for a few seconds, during which he put his hands on their shoulders as they moved up and down. When he resumed his position at the railings, one of the group called out to the police accusing someone of trying to steal. The police suggested that the two parties should apologise to each other but D1 refused to do so because he had not done anything wrong. D1 was then put in a police vehicle, which he said was the first time he saw D2[4].

7.  D2’s counsel submitted that PW1 and PW2 had only had a few seconds to observe D2. Furthermore, there was a time gap, according to the witnesses, after the person who grabbed PW1’s wrist walked away and before the police arrived at the scene. It was D2’s case that he had never grabbed PW1’s wrist and he was the victim of mistaken identity.

Reasons for Verdict

8.  It may be noted that the judge had conducted a voir dire in relation to a record of interview (“VRI”) taken from D1. This she found had been taken voluntarily, but nevertheless exercised her discretion to exclude it on the grounds of unfairness. She dealt with her findings on the voir dire at the beginning of her judgment under the heading ‘Special Issue’.

9.  The judge then examined the issue of mistaken identity in respect of D2’s case. Having considered the evidence, including the fact that D1 and D2 were facing PW1 and PW2 about a metre from them with nobody in between; the sufficiency of lighting; and the evidence of PW1 and PW2 that they did not lose sight of D1 and D2; the proximity of the police officers nearby; and the descriptions of D2 given by the prosecution witnesses, the judge ruled that the identification evidence was reliable and there was no scope for a case of mistaken identity.

10.  The judge outlined various inconsistencies in the prosecution evidence relied upon by the defence on several issues: for example, the number of pedestrians on the street at the time, the distance between the police and the witnesses; and how long the incident lasted. The judge found that they were minor discrepancies or mere estimations.

11.  In dealing with D1’s evidence, the judge observed that he would only receive HK$350 in cash for transportation each month, and was unable to work in Hong Kong. She found his evidence of consuming 10 cans of beers over two hours in a bar in Central before the incident to be untrue. As for D1’s account of how he met a group of four persons (including PW1) dancing at the scene, but only met D2 when he was in police custody (whether in the police vehicle or at the police station), the judge found the account contradicted by both PW3’s evidence and the admitted facts[5]. She ruled out the possibility that the clasp of the Rolex watch accidentally unfastened itself. She disbelieved D1’s evidence that he only danced and put his hands on someone’s shoulder, and regarded his evidence that the police would urge the parties in the circumstances to apologise to each other as “absurd”.

12.  The judge found that D1’s role was to distract PW1 by saying something to him and behaving in such a way that he may or may not have touched PW1’s chest, while D2 simultaneously grabbed PW1’s arm and opened the clasp of the watch with the intention of stealing the watch.

D1’s Grounds of appeal

13.  Mr McGowan, on behalf of D1, has articulated five substantive grounds of appeal: (1) the judge made use of D1’s evidence during the voir dire to determine credibility on the general issue; (2) the judge failed to make a properly balanced evaluation of all the evidence; (3) the judge made a number of gratuitous comments adverse to D1, and used them to justify her rejection of his evidence; (4) the judge “descended into the arena”; and (5) D1’s counsel at trial (not Mr McGowan) was flagrantly incompetent, on the basis that inadequate or insufficient instructions were taken from D1, while available supportive evidence was not identified.

14.  Mr McGowan sought to admit fresh evidence at the appeal concerning (i) D1’s cash found in his prisoner’s property, which was more than sufficient for a night out in Lan Kwai Fong; and (ii) the fact that the regular franchised bus operation between Wan Chai and Yuen Long was in operation in the early hours of 4 December 2021.

D2’s Grounds of appeal

15.  D2, acting in person, has argued that: (1) the judge erred in accepting PW1 and PW2’s evidence when they were both under the influence of alcohol, and the case was not supported by fingerprint, DNA or CCTV evidence; (2) the judge did not properly deal with the different versions of facts given by prosecution witnesses: PW1 and PW2 said that D2 walked away after the incident, yet PW3 said he saw the four men (namely, PW1, PW2, D1 and D2) quarrelling; (3) the judge misquoted or misunderstood D1’s evidence: D1 gave evidence that he first saw D2 at the police vehicle but the judge wrongly thought that D1 had said he first saw D2 in the police station; (4) the judge was biased and racist; (5) the judge descended into the arena and interfered with the evidence of the prosecution witnesses.

Consideration

D1

16.  Although Mr McGowan has conducted a meticulous examination of the judge’s reasons for convicting the applicant(s) and further sought to adduce fresh evidence at the hearing, it is important to remember that neither an application for leave to appeal nor the appeal itself is a retrial. In a District Court case, it is the judge at first instance who hears the evidence and sees the witnesses and is, therefore, in the best position to assess the witnesses and make determinations and findings of fact, not this Court or the Court of Appeal. Moreover, it is only in exceptional circumstances that the Court of Appeal will entertain further evidence on appeal, particularly when it was available, but was not called, at trial. In this particular case, the evidence sought to be adduced was clearly available at trial and could have been called. However, the argument put forward is that its significance did not become apparent until the judge delivered her verdict. I am not prepared to admit the evidence other than on a de bene esse basis. Should the matter go to the Court of Appeal, it will be a matter for that Court whether the evidence is relevant and admissible and should be admitted.

17.  There are five substantive grounds of appeal and one general ground that the trial was unfair and the verdict unsafe and unsatisfactory. Ground 1 has not been persisted with, Mr McGowan recognising that he cannot point to any particular aspect of the evidence elicited during the voir dire that was used to make or strengthen any of the judge’s findings on the general issue. He is right in taking this course: the section in the judge’s Reasons for Verdict dealing with the ‘Special Issue’ was merely a statement of her findings in relation to the admissibility of the VRI. It had nothing to do with the general issue and there is no reasonable basis for thinking that the judge allowed her findings on the voir dire to colour her decision to convict. I do not need to say anything further about this ground.

18.  Ground 2 was originally concerned with an attack on the judge’s evaluation of the evidence, in particular on what was said to be her flawed assessment of the credibility of D1. However, as the argument developed, the criticism of the judge essentially transformed into a criticism of defence counsel at trial for not clarifying or supplementing the evidence of D1 and thereby disabusing the judge of her negative view of his credibility. It was submitted that defence counsel had been flagrantly incompetent in his handling of the defence case, which was already Ground 5 of the grounds of appeal.

19.  Thus, for example, when the judge observed that D1 had said in evidence-in-chief that he lived in the “Tuen Mun area”[6], but in cross-examination said he lived in Yuen Long[7], she was in fact doing no more than reflecting the actual evidence[8]. I cannot see how she can be blamed for simply reciting two inconsistent answers in D1’s testimony. Whether defence counsel could or should have cleared the matter up in re-examination or by other evidence is another matter. However, so far as the judge was concerned, she was not to know what was or was not in D1’s instructions: she was governed in her making her findings by the evidence and, as Mr McGowan had to concede, D1 had said two different things.

20.  Similarly, whether D1 was waiting at some railings to return a house key to a female friend[9], or was waiting for her to return his house key[10], was the subject of inconsistent evidence on his part. In any event, it is difficult to see how it mattered who was receiving a key from whom and the judge does not seem to have regarded this discrepancy as material.

21.  As for his taking transport from Central to Yuen Long, the fact is that D1 only ever referred in his evidence to his taking a “minibus”[11], as distinct from a regular, franchised bus, and that his route would take him via Wan Chai[12]. The judge did not say that there was no way he could have got to Yuen Long at that time of the day by such means; all she said was that she was doubtful “there was any minibus to run in that route unless there were enough passengers to take that route”[13]. I note that Mr McGowan in his written argument did not disagree, for he submitted “that minibuses on both the Island and Kowloon/New Territories are a fundamental part of the Hong Kong Public transport system, and they certainly operate throughout the night, particularly after the MTR closes. They wait until they have sufficient passengers. This is surely so well known to be a matter of ‘judicial notice’” (emphasis supplied)[14].

22.  Since D1’s evidence only concerned minibuses, I do not see the relevance of the applicant’s fresh evidence that there was no suspension of service of franchised buses on the date in question. D1 never said he was taking a franchised bus service. Moreover, we do not know, despite Mr McGowan’s assertion otherwise, whether there was such a franchised bus service at that time on that date on that route, nor does the fresh evidence seek to establish that fact.

23.  Mr McGowan also takes issue with the judge’s comments that D1, as a Form 8 Recognizance holder, would not have had the financial means to buy himself 10 beers at a Club in Lan Kwai Fong in Central, and wishes to adduce further evidence that in his detained person’s property list compiled by the police on 4 December 2021, he had HK$2,216 in cash in his possession; more than enough for a night out in Lan Kwai Fong. However, the judge did not know about the cash or the property list and was entitled to make rather obvious remarks about the impecuniosity of a Form 8 Recognizance holder: the unfortunate financial position of Form 8 Recognizance holders and the fact that they are unable to work (unless their claims are substantiated) is one well-appreciated by courts in Hong Kong. The judge’s remark that “surely he would be very careful in his spending” was, therefore, an unexceptional thing to say.

24.  Whether defence counsel ought to have realised the existence of the property list and/or adduced evidence of D1’s cash and other financial means was not a matter within the control of the judge. Again, such criticism as there may be does not attach to the judge, who was confined to the evidence adduced before her and the inferences which flowed therefrom. Whether there is a reasonable argument that defence counsel at trial was flagrantly incompetent in not putting the relevant evidence before the judge by way of evidence or re-examination is another matter, which I shall consider when dealing with Ground 5. But, as to whether there is a reasonable argument that the judge was unfair in her assessment of the evidence regarding his finances, on the basis of the testimony before her, I am not persuaded.

25.  In respect of the other matters under Ground 2, such as the judge rejecting the notion that the Rolex watch could have unfastened itself and D1’s evidence that the police asked the parties to apologise to each other, failing which they would be taken to the police station, the judge was entitled to reject this evidence as respectively fanciful and absurd. I see no reasonable argument that the judge’s evaluation can be impugned on these issues.

26.  I should note that the judge does, however, seem to have been in error when she suggested that D1 said he first saw D2 in the police station. D2 has made the same point in his grounds of appeal. That was plainly not D1’s evidence. But whether he first saw D2 in the police vehicle or at the police station does not seem in the least material. The fact was D1 said he first saw D2 when he was effectively in police custody (whether in a vehicle or a building), which the judge did not accept and was contrary to the account given by PW1 and PW2, who said they were at all times acting together in concert.

27.  I do not consider Ground 2 to be reasonably arguable.

28.  In respect of Ground 3, as I have just observed, the judge did make what may be regarded as assumptions about the position of Form 8 Recognizance holders in Hong Kong. However, the fact is that the evidence placed before her was that D1 was only given HK$350 cash per month for travel expenses; otherwise he received food coupons, whilst his rent was paid directly to the landlord. He was not permitted to work. All of this information was given by D1 in evidence. The judge knew nothing else about any other possible sources of finance because she was not told. In these circumstances, I do not think it is reasonable to criticise the judge for making what are obvious comments that D1 would have to “be very careful in his spending”. That he would be in a position to have a Friday/Saturday night out as a non-refoulement claimant drinking 10 beers in Lan Kwai Fong, Central on his own when he lived in Yuen Long or Tuen Mun would be surprising and, in the absence of any independent evidence that he had actually been drinking or appeared drunk, such innocent purpose was rejected by the judge. This ground is not reasonably arguable.

29.  As for Ground 4, I can deal with it simply. No one reading this transcript could sensibly (or reasonably) accuse the judge of descending into the area. It is true she asked questions frequently, but she was the tribunal of fact and it was appropriate for her to engage in clarification and questions which were relevant to her decision. She did the same during PW1’s evidence. This ground is not arguable.

30.  I come, therefore, to Ground 5. The hurdle faced by Mr McGowan is a difficult one for any appellant. Allegations of flagrant incompetence are not about mere mistakes, errors of judgment, or mistaken or ill-advised tactics. Nor are they about poor advocacy or powers of persuasion. As the Court of Final Appeal has said, such allegations concern “in some exceptional instances, an error of sufficient proportion and consequence (that) will enable the court to intervene and avert a miscarriage of justice”[15]. A central complaint by Mr McGowan in the present case is that the judge was never told that D1 had over HK$2,200 in cash when he was arrested and could, therefore, well afford a night out in Lan Kwai Fong. Had the judge been so informed of this fact in some way, by evidence or testimony, she could not have made the assumptions she did about D1’s financial state, resulting in the eventual findings she made. A secondary argument is that it was never clarified with the judge by counsel where it was that D1 lived and how exactly he was going to get home.

31.  The problem facing any new set of legal representatives coming into an appeal when they were not involved in the trial is that it is never easy, from the transcript alone, to grasp fully the tensions of the evidence or issues and the dynamics of the various players at a trial in motion, particularly one where there are two defendants and two sets of lawyers, and to understand why a particular counsel asked one question and not another, or developed the defence in one way rather than another. It is very much easier for new legal representatives on appeal to say what they could, would or should have done or asked with the benefit of hindsight when looking at the conviction through the prism of how the judge ultimately approached the evidence. Trial counsel do not usually have that luxury.

32.  Since D1 was a non-refoulement claimant, there would reasonably have been expected to be cross-examination as to his means when enjoying a night out in Central. The question was how to deal with it and, more importantly, how to present D1 sympathetically to the court, given that he was a Form 8 Recognizance holder in Lan Kwai Fong, miles from home in the early hours of a Saturday morning, in the apparent company of another Form 8 Recognizance holder from the same country of origin and facing a charge that they had acted in concert to commit a robbery which ultimately was not successful.

33.  To be fair to defence counsel, he would not necessarily have seen the detained person’s property list relating to his client, which was not a documentary exhibit and nor (as was established at the hearing) was it listed in the unused material. Accordingly, he would not have known about the fact that D1 had over HK$2,200 on his person when arrested, unless he was told about it. It is, therefore, rather puzzling that D1 never chose to mention the cash in his own evidence despite being examined and cross-examined as to his funds and expenses and the unlikelihood of someone in his position spending several hundred dollars on beers in Lan Kwai Fong; nor does it feature at all in his signed written instructions to his lawyers. Yet, it seems he is the only one who would have known about the cash unless he informed his counsel, which was not the case according to his latest affirmation[16]. Perhaps there was a recognition by D1, and/or by D1’s counsel if indeed he did know about the matter, that this issue was a proverbial ‘double-edged sword’.

34.  For it is one thing to present one’s client as an indigent refugee, existing on public handouts, who was enjoying a night out in Lan Kwai Fong for only the second time in some 7 years in Hong Kong; and someone who, according to the detained person’s property list, was in possession of HK$2,216; two mobile telephones; a key card for a room in the Grand City Hotel; and, as I am informed by the respondent, a private gym membership card. Mr McGowan went so far to say in argument that D1 was someone who could have taken a taxi home if he had wanted to that night. The applicant now says by way of affirmation that the funds were given to him by various legitimate sources. Assuming these had been his instructions and that defence counsel knew of all these matters, any counsel would have had to weigh carefully the advantages and pitfalls of disclosing such evidence, how his client might be cross-examined in relation to these matters and the impression that such evidence might have given of his client to the court.

35.  How counsel portrays and presents his client before a judge (or a jury) is delicately balanced and may depend on a number of factors, such as the nature of the case and the charge, his assessment of his client as a witness under cross-examination, the areas and scope of likely cross-examination and the ultimate relevance of the material to the issues in the case. It is counsel’s function to assess these matters at trial, not upon appeal. I note in this regard that, in her written submissions, Ms Fung, for the respondent, made the point that I have just made about D1’s personal property[17]:

“Moreover, introduction of the property record will reveal the other items in D1’s possession such as 3 Starbucks cards, 1 gym card, 1 access card to a hotel (Google check suggests that it is located in Sai Ying Pun), 1 Apple and 1 Samsung mobile phone and D1 may be cross-examined about them. It may or may not be wise to adduce the property record.”

36.  As for whether the applicant lived in Tuen Mun or Yuen Long, the issue was not an essential element in proof of the charge, nor was it particularly important to the question of D1’s credibility: how he was to get home to wherever he lived at 4 o’clock in the morning was the more interesting issue. The matter might not have been improved had he been cross-examined as to his possession of a key card for a hotel in Sai Ying Pun (assuming this is the correct location of the hotel). The essential point was that D1, a Form 8 Recognizance holder, supposedly lived in the New Territories, yet was in Central at 4 am on a Saturday morning accused of attempted robbery. The ultimate issue was whether he was acting in concert with D2 in front of PW1 and PW2, when D2 forcibly tried to remove PW1’s Rolex watch. On this issue, the judge accepted PW1 and PW2’s evidence. I cannot see that there is any reasonable argument that she should not have done so.

37.  I do not consider Ground 5 to be reasonably arguable. Accordingly, there is no reasonable basis for Ground 6 either.

D2

38.  I turn to the application of D2. I shall deal with Grounds 1 and 2 together. The judge was entitled to accept the evidence of PW1 and PW2. Although PW1 conceded he was “tipsy”[18], neither accepted they were drunk: indeed, PW2 said they were “not drunk”[19]. More significantly, PW3 never suggested they were drunk. I can see no reasonable argument for not accepting the evidence of PW1 and PW2. Such discrepancies as there were are to be expected in such circumstances and were not so significant that the judge should not have accepted their testimony. As for the absence of fingerprint, DNA and CCTV evidence, the absence of such evidence is not fatal to such a prosecution.

39.  With regard to Ground 3, I have already addressed the misstatement of the evidence when dealing with D1’s application. While the judge evidently got this matter wrong, it really was of no significance. Importantly, when PW3 approached the scene as a result of information from a passer-by, he saw four men quarrelling[20]. Those men were PW1, PW2, D1 and D2. These facts were accepted by the judge. The notion that D2 was not present and has been incorrectly identified is not reasonably arguable.

40.  In respect of Ground 4, there is simply no basis whatsoever for the allegation that the judge was biased or racist. As for Ground 5, I have already dealt with this point in D1’s grounds of appeal at [29] supra.

Disposal

41.  It follows that I refuse both applicants leave to appeal against conviction. Each applicant is advised that he has the right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time which he has served in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

42.  Furthermore, given the nature of D1’s grounds of appeal, in particular Ground 5, D1 should also be specifically reminded of Practice Note (Crime: Sentence: Loss of time)[21], issued by the Court of Appeal on 9 October 2013, that, inter alia, “an unwarranted assertion of incompetence will normally attract an order for loss of time”.