HKSAR v. LEE CHING

CACC59/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 59 OF 2004

(ON APPEAL FROM DCCC NO. 1051 OF 2003)

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the court):

1. On 26 January 2004, the Appellant was tried in the District Court (Chua, D.J.) on (1) a charge of robbery and (2) a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. The Appellant pleaded guilty to the second charge on arraignment and, after trial, was found guilty of the first charge. He was sentenced on 27 January 2004 to 3 1/2 years imprisonment in respect of the charge of robbery and 18 months imprisonment in respect of the charge of remaining in Hong Kong, the sentence in respect of the second charge to run consecutively to the first charge.

3. The Appellant is appealing against his conviction on the robbery charge, having been granted leave by Yeung JA on 23 June 2004.

Prosecution case

4. The prosecution case was that on 29 August 2003 at about 10:15 pm, PW1 and PW2 ("the victims") were robbed by three men under a bridge in Tai Po. Two of the men searched the victims for property, while the third man acted as a lookout. The victims' evidence was that even though the lookout was initially standing at a distance of 18 feet or so away from them, at one stage he came towards them to a spot about 4-6 feet away, and at that point, they paid particular attention to him as they were concerned as to what he might have in mind.

5. After the men left, the victims reported the incident to the police. They each gave verbal descriptions of the three men but did not do identikit pictures of the lookout. They both described the look-out as being in his early 30's.

6. Five days later, on 3 September 2003, the Appellant was arrested by the police when he failed to produce an identity card. He said he had entered Hong Kong illegally the day before, i.e. on 2 September 2003.

7. Two days after that, on 5 September 2003 (i.e. a week after the robbery), the victims attended an identification parade. Out of 14 persons in the line-up (see p.60-R of the Transcript), they both identified the Appellant as the person who had acted as lookout during the robbery.

Trial

8. At trial, the Appellant was represented by counsel, who cross-examined the victims at length on the events of the night of the robbery. The Appellant himself also gave evidence.

9. The judge found the Appellant guilty.

Grounds of appeal

10. The grounds of appeal are, briefly as follows:

(1) the victims may have identified the Appellant at the identification parade solely because he had not washed for a few days and looked dirty and listless;

(2) the victims' identification evidence was in any event unsafe as the robbery had taken place at night and in a dark place;

(3) the victims had described the lookout as being around 33 years old, whereas the Appellant was 21 years of age at the time;

(4) the victims had said that the lookout spoke Putonghua, whereas the Appellant could speak Cantonese;

(5) none of the victims' property had been recovered from the Appellant;

(6) the Appellant was in Shenzhen on the night of the robbery.

11. We are not persuaded that the conviction was unsafe or unsatisfactory.

Ground 1 - identification parade

12. First, as far as the identification parade was concerned, the Appellant is suggesting that because he had not washed for a few days, his appearance would have revealed the fact that he was an illegal immigrant, and therefore, the victims may have been more inclined to identify him as one of the robbers (the robbers having spoken Putonghua).

13. However, there was no mention of this at the trial. The transcript (pp.29-30) shows that initially the identification parade had not been agreed. However when the judge inquired whether there was a challenge to the way in which the identification parade was conducted, the Appellant's counsel, after reviewing the situation (including studying photographs of the line-up), then agreed that the identification parade was conducted properly.

14. There was then a re-typing of the document containing Admitted Facts under s.65C of the Criminal Procedure Ordinance Cap. 221, paragraph 5 of which then read:

"On 5th September 2003, in a properly held identification parade conducted by CIP Alan Crowther inside the Tai Po Police Station, the Defendant was identified by Tang Ka-lok [PW1] and Lee Hiu Laam [PW2]".

15. In the circumstances set out above, the Appellant cannot attempt to raise this matter now and there is nothing in the first ground of appeal.

Ground 2 - lighting conditions

16. The second ground of appeal is that the victims' identification evidence was in any event unsafe as the robbery had taken place at night and in a dark place.

17. This was an issue that the judge had taken considerable care over. In her Reasons for Verdict, the judge reminded herself of the admonishment in Turnbull's case: the danger of mistaken identification; that honest witnesses can be convinced of the correctness of their identification and be convincing yet mistaken.

18. The judge then assessed the evidence of the victims and was satisfied that they (whom she described as intelligent young persons) had "carefully taken in the appearance of the robbers and remembered it". Even though the victims had deeper impressions of the other two robbers, the judge was satisfied that they were in a situation with sufficient lighting conditions to enable them to see and remember the face of the lookout, and that their identifications were of good quality and could safely be relied upon.

19. The judge has shown in the Reasons for Verdict that she has had regard to all the appropriate considerations in determining to accept the identification evidence of the two prosecution witnesses and this ground fails.

Ground 3 - age

20. The third ground was that the victims had described the lookout as being in his early 30's, whereas the Appellant is 21 years of age.

21. The issue of course is not what the Appellant's actual age may be, but what age he looked to be. The judge was aware of this issue and found "whilst most Asians generally appear youthful, this defendant does not have the bloom of youth. His features are hardened. He looks like a man who could be 30".

Ground 4 - ability to speak Cantonese

22. The fourth ground was that the victims said that the lookout spoke Putonghua, whilst the Appellant could speak Cantonese. He poses the question: "why should I create a language barrier in the robbery?"

23. However, the victims' evidence was not that the lookout spoke Putonghua to them, but to the other robbers. Therefore, the Appellant's ability to speak Cantonese is irrelevant.

Ground 5 - no property recovered

24. As for the fact that none of the victims' property was recovered, there is nothing in this point. It is not the case that the Appellant was apprehended at the scene soon after the robbery occurred, when a point like that might have more relevance. The Appellant was arrested 5 days later.

Ground 6 - date of arrival in Hong Kong

25. The sixth ground was that the Appellant only arrived in Hong Kong on 2 September 2003. In respect of this point, Yeung JA (who gave leave) observed that it had been admitted under s.65C that the Appellant had "under caution voluntarily admitted having sneaked into Hong Kong from Shenzhen ... in the evening of 2nd September 2003", but that this admission appeared to have been missed by the trial judge.

26. The trial judge was aware of the Appellant's oral evidence at trial that he had sneaked into Hong Kong on 2 September 2003 but she did not believe his evidence that he did not participate in the robbery on 29 August 2003. In any event, it is clear that his entry into Hong Kong on 2 September 2003 was not the first time he had entered Hong Kong. In cross-examination, the Appellant was asked "Now, is it the first time you came here on 2 September?" His answer was "No" (see Transcript p.63). There was no evidence on the dates of any earlier entries.

27. In the light of that evidence (which was not available to the judge who gave leave), the admitted fact that, having failed to produce proof of identity to a police officer in the early hours of 3 September 2003, the Appellant asserted after caution that he entered Hong Kong illegally on 2 September 2003 did not preclude the trial judge from finding that he had been in Hong Kong on the night of the robbery and had taken part in it.

28. For the reasons given above, this appeal is dismissed.