THE QUEEN v. LAI KWOK CHUN

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J U D G M E N T

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Bewley J.

1. The applicant seeks leave to appeal against his conviction for robbery on the 16th December, 1988, by Judge Moylan. He and two others were convicted of robbing Madam Lee Wan-ching of $300, a ring and a necklace at the Jade Apartment in Nathan Road on the 27th September, 1988.

2. On the night in question, the apartment, which is on the 4th floor of the building, was being looked after by Madam Lee and Mr Liu Chin-wan. The door to the corridor was shut but not locked. At 3 a.m., two teenage youths and one man in his 20s entered the apartment and said they wanted to rent a room. They entered Room 1 and said that this room would suit them, although Madam Lee thought it was too small for three people. She consulted Mr Liu, who was in the kitchen, and he agreed that they could have it. When she returned from the kitchen, she saw the three leave Room 1 and go to the lift. They said they would return at 4 a.m. They were frightened that there might be a police check before then. Madam Lee reassured them that that would not be likely and all three nodded their heads and left.

3. At 3.30 a.m., the same three people returned to the apartment; at least Madam Lee was sure about the two people in front. She led them to Room 4, which was bigger than Room 1 and switched on the light. They followed her into the room, she was then pushed to the floor and hit all over her body by two of them. She thought she was going to be raped and cried out for help, telling them to take her money and valuables but not to touch her body. She said the older one gagged her with a towel. She did not see him but said that the one who did that had the biggest hands. It is a matter of record that the applicant is 23 and the other two defendants 18 and 14 respectively. We note, however, that the applicant is youthful looking and could well pass for a teenager.

4. Madam Lee was lying on the ground with her face to the floor. Her hands and legs were tied and her necklace and ring were stolen. When the robbers left, she crawled into the corridor and was untied by Mr Liu.

5. She told the court that the lighting, both in the room and the corridor, was very bright. She took a good look at all three robbers on both occasions. She saw the faces of two of them clearly, because they walked in front, but not that of the third person. She was asked in cross-examination:

"Q: Would you agree that you did not have a good chance to look at the robbers?

A: I disagree. I have been involved in the business of renting of rooms for a long time. I take a clear look at everyone who came and that's why when they returned, I said "So its you people again'."

6. Ten minutes after the robbers had left, the police arrived with one of them, who she identified in court as the 3rd defendant. He was the tall one, who was wearing denim and was one of the two who hit her.

7. At an identification parade on the 3rd October, she identified the 2nd defendant; the short one.

8. At an identification parade on the 6th October, at which it was admitted by the Crown that the appellant was present, she failed to identify anyone.

9. Madam Lee said that all three robbers wore darkish clothes. On the first occasion, the 2nd defendant entered the apartment first and, on the second occasion, he and the 3rd defendant were in front. Two of the robbers were short and one was tall. In the light of this evidence, it is a little surprising, if the applicant was one of the robbers, that Madam Lee did not identify him on the 6th October, even if he had been third in line each time the robbers entered the apartment. -

10. Mr Liu Chin-wan was watching the close-circuit T.V. screen in the Accounts office some time after 3 a.m., when he saw three persons appear on the screen. He saw Madam Lee lead them to a room; 10-15 minutes later he saw them leave one of them pressed the lift button and kept the lift for the other two. Mr Liu went to find out what had happened and found Madam Lee tied up and bleeding in the corridor. He had not seen the three robbers when they came earlier.

11. Miss Cheung Mui-ying was in Room 505. Between 3.40 and 4 a.m. she heard the sound of fighting in the next room. She heard a cry of help and, although she is not sure, she says there might have been a cry of robbery.

12. Mr Tang Pak-shu, the caretaker of the building, was in the management office at the ground floor, when he saw three strangers enter the building at 3.15 a.m. Two were aged 15/16 and 5'1"/2", the third was 17/18 and 5'7"/8". They took the lift, which stopped at the 4th floor. According to Mr Tang, there are two apartment houses on this floor - Jade Villa and Pearl Villa. This contradicts the evidence of Mr Liu, who said that Jade Villa occupied the whole 4th floor.

13. Mr Tang's evidence in chief continued as follows :-

"...Police arrived about fifteen minutes after the three men had gone upstairs. Police then guarded the main door to the building. About two minutes later a male ran down the staircase to ground floor. He was by himself. He was running, not a normal descending pace. He was stopped by the Police for questioning. I had not seen that man before ... I saw him when he had gone upstairs. He had gone upstairs, at 3.15 by the lift, by himself, and it stopped on fourth floor. About fifteen minutes later the police came and guarded the main door. About two minutes later he ran down."

Crown Counsel

Q : You say that three men took lift together to fourth floor?

A : Yes.

Q : And that the one who ran down had gone up by himself?

A : Three went up. When he came down he was by himself. He was the one to come down first. The one who ran down had been one of the three strangers to me who had gone up to fourth floor at 3.15.

Fifteen minutes after the one man had rundown, a group of police brought down two males by the " staircase. I saw the two who were brought down. I can't remember if their heads were covered. I didn't see their faces. From their clothing and that of the male who had been stopped by Police for questioning when he had run down it seemed to me that they were the ones who had taken the lift up the fourth floor."

14. In cross-examination Mr Tang denied saying earlier that one of the three had gone up in the lift by himself.

15. PC20269 said that at 3.39 a.m. he and his colleague on beat patrol received a radio message that there had been a robbery at the Jade Apartment. It took them one to two minutes to run to the building and they were about to go upstairs when the applicant "jumped down to the staircase landing". They were face to face; he put his hand on the applicant's shoulder and asked why he was in a hurry. The applicant replied that somebody had robbed upstairs and he was afraid of being assaulted, so he ran down. He seemed frightened. The PC asked for his address but he made no reply. He was searched, but nothing suspicious was found and he was then arrested.

16. This evidence was confirmed by PC22251.

17. Other police officers went to the Jade Apartment and then to the roof top, where they found the other two defendants hiding behind a water tank.

18. That was the evidence for the Crown. The applicant did not give evidence or call witnesses.

19. The first ground of appeal is that the judge misdirected himself as to the proper test to be applied when drawing inferences. What he said was this :

"If from: proved facts, two or more reasonable inferences are open one (or more) of which is (or are) as consistent with innocence as guilt, then the Crown has failed to establish the guilt of the accused beyond reasonable doubt."

Mr Laskey, for the applicant, complains that this direction is too favourable to the Crown. We do not agree and are satisfied that it states the law correctly. The judge concluded his Reasons for Verdict thus:

"I am not left wondering at all whether there is any reasonable inference that is consistent, with the proved facts, with innocence."

There is nothing in this manner of approach which is improper.

20. The second ground is that the judge drew an inference upon an inference in finding that, the applicant's presence having been proved by inference, a further inference, that he intended to rob, could properly be drawn. We are satisfied that, if the only reasonable inference was that the applicant was one of the three who entered the apartment house on each occasion, the judge was bound to conclude that he was there for the purpose of robbery.

21. The third ground is that the judge erred in concluding matters against the applicant when these had not been the subject of evidence, or where such evidence was in conflict. There is some substance in this complaint and we shall bear this in mind when we come to consider the final ground, that the conviction was unsafe and unsatisfactory.

22. The judge seems to have assumed that, because only two robbers were found on the roof, there was no reasonable possibility that a third man might have eluded the police. There was no evidence about this.

23. He also said that he preferred the evidence of Mr Tang to that of Mr Liu as to the existence of the Pearl Villa on 4th floor. He does not say why. This is something that we feel should have been resolved in favour of the applicant.

24. Mr Tang was only able to identify the three arrested people as the three he had seen earlier by their clothes. On the other hand, he says he saw the three enter and take the lift to 4th floor; for a while before that, no one had gone into or out of the lift. The judge found that his evidence that the applicant went up on his own was an "honest and unconscious mistake".

25. Mr Tang must be in error about the time of 3.15 a.m. This would not have allowed time for the two visits to the Jade Villa, separated by a 30 minute interval; the police arrived at about 3.40 a.m.

26. The time however is not critical, because the robbers could easily have hidden in the building, or on the roof, between visits to the villa. Nor does the error, in our view, detract from Mr Tang's reliability as a witness.

27. The difficulty faced by the applicant is that, if he was not the third robber, there are several unexplained inculpatory pieces of evidence. These, in the submission of counsel for the Crown, have such a cumulative effect that guilt is the only reasonable inference.

28. Three men were seen to go to 4th floor, two of whom at least must have been robbers. If the third man was the applicant and was not a robber, then the third actual robber must have arrived a long time earlier. Why should he do that?

29. No reason was advanced to explain the presence of the applicant on the premises. Assuming that he paid an innocent visit to the Pearl Villa on the same floor, he coincidentally must have been passing close to the door of Jade Villa at the crucial moment, when he heard a cry of robbery. It is surprising that this should have caused him such panic that he went jumping down the stairs in a way that was bound to attract suspicion that he was one of the robbers. Finally, not only did he look frightened when stopped by the police, he failed to give his address.

30. We are of the view that, in the absence of evidence to the contrary, all these matters lead inescapably to the conclusion that the only reasonable inference to be drawn is that the applicant was one of the three men in the Jade Villa that night and therefore one of the robbers.

31. The fact that certain pieces of the evidence, to which we have referred, could probably have been resolved in favour of the applicant, but were not, does not detract from the view we take nor, in our judgment, does this apparont failure by the trial judge render the conviction unsafe or unsatisfactory.

32. The application is refused.