HKSAR v. MARIA MANINDER SINGH

CACC 85/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 85 OF 2016

(ON APPEAL FROM DCCC NO. 747 OF 2015)

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REASONS FOR JUDGMENT

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1. The applicant sought leave to appeal against his conviction after trial by District Court Judge Casewell on 29 February 2016 of a charge of robbery jointly with Karnaveer, the 2^nd defendant, of Ms Tsui Wai Ki on 2 May 2015 of her bag and its contents at the rear lane of 52A, Ngan Hon Street, To Kwa Wan, Kowloon, contrary to section 10 of the Theft Ordinance, Cap. 210. The applicant was sentenced by the judge to 3 years’ imprisonment. The 2^nd defendant was acquitted after trial. At the hearing, I refused the applicant’s application for leave to appeal against conviction and said that I would give my reasons for judgment in due course. That, I do now.

The trial

2. There was no dispute that Ms Tsui was robbed of her bag and its contents having been grabbed from behind by one of two men as she waited at about 2:30 a.m. on 2 May 2015 at the door to the premises at 52A, Ngan Hon Street for her friend to come from her flat to open the door.  Ms Tsui planned to spend the night in her friend’s flat.  She had been working night shift and it was more convenient for her to stay there.  Having alighted from a bus she had walked to the entrance to those premises.

Prosecution case

3. Ms Tsui said that, as she waited at the entrance to the premises, the taller of two South Asian men grabbed her shoulder bag from behind her.  They had dark complexions and appeared to be close to 30 years of age.  However, she did not have a clear look at them.  The bag was rather large and contained an array of items, including a pair of high-heeled shoes she wore at work, a cosmetics bag, her wallet, her mobile phone, five Starbucks vouchers and sundry items.  She resisted his attempt to grab the bag and in doing so fell to the ground, where she cried out.  The strap to the bag broke and the robber succeeded in taking control of the bag and ran off in the direction of Wing Kwong Street.  The shorter South Asian man followed the man who had wrestled the bag from her.  She gave chase and saw them run towards Hung Fook Street, which has a right angle junction with Wing Kwong Street.  She saw the shorter man enter a building on that street.  She went to that building and heard from upstairs the sounds of keys and what sounded like a conversation between South Asian people.  Then, she was joined by her friend and they went to her home where she reported the matter to the police.  Later, she pointed out to the police the building into which she saw the shorter man run.

4. CCTV recordings from a camera on the mezzanine floor of 43 Hung Fook Street between 02:00 and 03:00 hours on 2 May 2015 were admitted into evidence by way of admitted facts.  There was no dispute that two men were depicted running one after the other up the staircase towards and beyond the camera.  The time stated on the CCTV film in which the first of the men was depicted was 02:27:26 to 02:27:29.  The second man was depicted in the film from 02:27:29 to 02:27:30.  The first man was cradling a black object in the crook of his right arm, which was held upwards towards his body.  It was the prosecution case that the black object was Ms Tsui’s bag and that the marks on the outer aspect of the right-hand and outer aspect of the right biceps of the first man, clearly visible in the CCTV film, were tattoos.

5. On 4 May 2015, the applicant and the 2^nd defendant were arrested by police officers at Flat 5A, 43 Hung Fook Street.  The applicant had tattoos in the same locations on his right arm and right hand as were visible on the first man in the CCTV.  Both of them admitted living in the premises.  Application forms in the name of the applicant for a permanent identity card and for public housing were found on the premises.  The 2^nd defendant was found in possession of keys to the premises.  A YSL cosmetic bag, containing various items of cosmetics, was found in the living room.  Five Starbucks vouchers were found in a bedroom, which the 2^nd defendant admitted was his bedroom.

6. Ms Tsui identified the cosmetics bag and its contents not only as her property but also as having been in the bag of which she had been robbed.  She identified the five Starbucks vouchers as having been stolen from her.  They had been given to her by a friend who worked at Starbucks and all had the same validity expiration date, namely 30 June.

The defence case

7. Neither the applicant nor the 2^nd defendant gave evidence at trial.  In cross-examination and submissions issue was taken with the reliability of Ms Tsui’s evidence, in particular in relation to the man who had seized her bag from her and run off.  In cross-examination, she agreed that in a witness statement that she had given to the police she had described that man as wearing a black top.  Ms Tsui accepted that she had lost sight of that man when he ran into Wing Fook Street.  Also, she agreed that in her statement she said that the shorter man had run into a building in Wing Hong Street.  Finally, she agreed that in none of the four witness statements she made to the police had she mentioned that she had heard the voices of men, coming from upstairs in the building into which the shorter man had run, talking in a South Asian language.

8. Ms Crebbin pointed out to the judge that Ms Tsui had not testified as to the colour of the shoulder bag stolen from her nor had she been asked to view the CCTV film.  It was submitted that it was not possible to identify the applicant as being one of the two men depicted in the CCTV film.  No detailed description of the tattoos on the applicant had been adduced in evidence by the police officers who had seen those tattoos nor was there evidence of whether or not they resembled those visible on the right arm and hand of the first man in the CCTV film.

Reasons for verdict

9. In his reasons for verdict, the judge acknowledged that there was no direct evidence at the defendants’ trial who the robbers were. He noted that it was the prosecution case that it could be inferred that they were the robbers from the circumstantial evidence.  The defence took issue with that submission.

10. Having acknowledged that Ms Tsui, whom he described as PW1, had agreed in cross-examination that she had said in her witness statement to the police that the man who grabbed her bag wore a black top and that she had lost sight of him in Wing Kwong Street, the judge said that she had marked a photograph at 43, Hung Fook Street identifying the building into which she had seen the shorter man run and went on to note:[1]

“ PW1’s answers to these earlier statements was that she was not familiar with the street names and, in any event, she pointed out to the police the premises where the two men had entered.”

11. In the result, the judge concluded:[2]

“ Taking PW1’s evidence as a whole, it is clear that initially she was not clear as to description of the street name. However, in court she was able to show the actual location pointed out to be 43 Hung Fook Street. I found her identification of this location to being the location that the shorter man entered was reliable. Furthermore, this evidence is supported by the CCTV recording which shows two men running up the stairs carrying a bag at the location PW1 identified in her evidence and at the time she stated it happened, namely 2.30 am.

Her evidence on this is further confirmed by the finding of items from her bag in the premises at Flat A, in the same building, 43 Hung Fook Street.”

12. Of the reliability of Ms Tsui’s identification of the cosmetics bag, its contents and the Starbucks vouchers the judge said:[3]

“ PW1 was able to identify the YSL bag because of its contents. It had a number of cosmetic items that she had collected and placed in it. These items are her choices and must be unique to her. It is highly unlikely that anyone else would choose exactly the same cosmetics.

Similarly she identified the five Starbucks coupons by the fact they all bore the same date which is 30 June 2015.  They had been given to her by a friend who worked at Starbucks who was able to source them. Again, the possibility of another person acquiring five coupons on the same date is very remote.”

13. In the result, the judge determined:[4]

“ I was prepared to accept PW1’s evidence that the YSL bag and its contents and the five Starbucks coupons were in the bag that was stolen from her.”

14. In consequence, he went on to find:

“ The presence of these items also assist the court in drawing the inference that in the CCTV the first male shown is carrying the bag stolen from PW1.”

15. Then, the judge said that, having regard to:[5]

•   the combination of PW I’s evidence, which I find reliable;

•   the CCTV recording; and

•   the presence of the items in Flat 5A.

“ I draw a factual conclusion that PW1 having been robbed by the two men, followed them to 43 Hung Fook Street where they ascended the staircase and were caught on the recording by the CCTV camera. The first man shown in the video is carrying PW1’s bag and that was the bag that she says was taken from her in the robbery, it being then taken to the Flat 5A where at some point over the next days - two days - the YSL cosmetics bag and contents and the five Starbucks vouchers were taken out and placed in the flat.”

Grounds of appeal against conviction

16. The sole ground of appeal advanced by Mr Philip Ross for the applicant, was that the judge erred in finding beyond reasonable doubt that the applicant was the robber.  He said that the judge erred in identifying the applicant as the first person shown on the CCTV footage by reason of the applicant also having tattoos in the same location as the first man depicted in the CCTV film.[6]  He submitted that the judge was wrong to state that Ms Tsui said that she followed the robbers to a building in To Kwa Wan.[7]

17. Mr Ross invited the court to note that Ms Tsui had not testified that either of the robbers had tattoos.  She said that she had not seen the taller man, namely the man who seized her bag, enter the premises.  She accepted that, in her statement to the police, she said that the man was wearing a black top.  That description was inconsistent with the first man depicted in the CCTV film, whose clothing was light in colour.  It was not clear from the CCTV film whether the first man was holding a bag.  Although some of the contents of the bag recovered from the applicant’s flat had been identified by Ms Tsui, the bag itself was never recovered.  The seizure of those items occurred two days after the robbery.

18. Mr Ross submitted that the judge erred in not having regard to the out-of-court statement by the 2^nd defendant, favourable to the applicant, that the bedroom in which the five Starbucks coupons have been found was his bedroom.

19. Mr Ross said that the judge’s reliance on the time stated on the CCTV film as being accurate to the events depicted was misplaced. It did not appear that evidence had been agreed or proved.

The submissions of the respondent

20. In opposing the application for leave to appeal against conviction, Mr Jonathan Man Tak Ho submitted that the only issue at trial was whether the judge could draw an irresistible inference from circumstantial evidence that the applicant was one of the robbers.  The judge did not rely on direct evidence from Ms Tsui to prove the applicant’s identity.  No such evidence was given.  Rather, he relied on a combination of her evidence of seeing the shorter robber enter the premises, the CCTV footage and the presence of some of the stolen property in the flat to find that the robbers had ascended the staircase and taken Ms Tsui’s bag and its contents into the flat of the applicant and the 2^nd defendant.

A consideration of the submissions

21. Although the judge did state that Ms Tsui followed the robbers to a building, it is clear that in his detailed recital of the evidence that he was aware that she testified that she had only witnessed the shorter man entering the building.  He said so.  Of her evidence, the judge noted that she had described the chase in these terms:[8]

“ I saw them running to Hung Fook Street. I followed them. I saw the shorter one enter a building. I am not sure which building I walked over there and heard a conversation like between South Asian people.” [Italics added.]

22. Furthermore, the judge noted that Ms Tsui had said in her statement that in the chase “…she had lost sight of the man” …who had seized her bag.[9]  It was a shorter man that she had seen entering the premises.[10]

23. The judge did not identify the applicant as the robber because of his tattoos.  Rather, as Mr Man pointed out, the judge had regard to a combination of Ms Tsui’s evidence, the CCTV film and the presence two days later of the stolen items in the flat, in determining that, having been robbed by the two men, Ms Tsui had “followed them to 43 Hung Fook Street where they ascended the staircase and were caught on the recording by the CCTV.” [11]

24. The judge said that he found Ms Tsui’s evidence of the location of the building into which the shorter man entered reliable, noting that it was:[12]

“ …supported by the CCTV recording which shows two men running up the stairs carrying a bag at the location PW1 identified in her evidence and at the time she stated it happened, namely 2.30 am.”

25. Of the issue of the accuracy of the time displayed on the CCTV film, the judge said in his recital of the evidence in respect of the relevant part of the CCTV film that:[13]

“ This was taken 0227 hours - actual corrected time, three minutes later, it should be 0230 hours on 2 May 2015.”

26. Mr Ross pointed out that the issue of the inaccuracy of the time displayed on the CCTV film was not the subject of an admission in the admitted facts.  On the other hand, he was not able to point to any evidence which contradicted the judge’s statement.  There is no dispute that the CCTV film was played to the judge in the trial.  That occurred during the evidence of one of the police officers.  There is no transcript of that evidence available to the court.  For his part, Mr Man said that his instructions were that the three-minute inaccuracy was the subject of an agreement between the parties at the time that evidence was adduced.

27. In the absence of evidence to suggest that the judge’s reference to the inaccuracy of time was his own flight of fancy, I am prepared to act on the judge’s statement of fact in his considered reasons for verdict.

28. The significance of the combination of the evidence is obvious.  Having been robbed at about 02:30 hours, Ms Tsui chased after the two robbers.  She lost sight of the robber who seized her bag, but she saw the other robber entering the premises at 43, Hung Fook Street.  Those premises are relatively nearby to where she was robbed.  The CCTV film showed two men running up the staircase, three seconds apart, from the ground floor level at about that time.  Two days later, part of the stolen property was found in the appellant’s flat.

29. The CCTV film was played and replayed during the hearing of the application.  It is of a much better quality than the still photographs taken from it.  As the judge said it shows the first man:[14]

“ …has on the back of his right hand a pattern that is like a tattoo, and also a pattern like a tattoo on the upper part of the right arm, partly covered by the short‑sleeved shirt worn by the man.”

30. Of the significance of that evidence, the judge said:

“ When the defendant was arrested there was evidence he was seen to have a tattoo on the back of his right hand and also a tattoo on his upper right arm. When this is combined with the presence of some of the proceeds of the crime in premises admittedly occupied by D1, then this presents a compelling set of facts for which an inference contrary to this defendant can be drawn.”

31. Of Ms Tsui’s evidence that, in her out-of-court statement to the police, she had described the man who seized her bag as wearing a black top and that the CCTV film shows that the man holding a black object cradled in his right arm was wearing what appears to be a light top, the judge said:

“ Her observation of dark clothing is explained by the fact of her observation being made under trying circumstances and at night.”

32. It is appropriate to note that the judge said that it had been submitted on behalf of the defence that Ms Tsui had said that “the shorter man who took the bag wore a dark top.” [15]  That was not her evidence nor was it a submission made in closing on behalf of the applicant. There is no transcript available to the court of the submissions made on behalf of the 2^nd defendant.  Ms Tsui said that it was the taller man who seized her bag.[16]  She agreed that she had said in a statement to the police that the man who grabbed her bag was wearing a black top.[17]  She saw the shorter robber enter the building in Hung Fook Street.[18]

33. Earlier in his reasons for verdict, the judge had summarised her evidence correctly:[19]

“  She was robbed by two men, a taller and a shorter man she described as having dark skin or South Asian.  After a struggle her bag and its content were taken.  The men ran away towards Wing Kwong Street.  She followed.  She saw them running to Hung Fook Street.  She saw the shorter man enter a building.  She identified their location with a “X” on a map as 43 Hung Fook Street in Hung Hom.”

34. Of Ms Tsui’s evidence of what she had said in her statement to the police, the judge said:[20]

“ The man who grabbed her had a black top and that she had lost sight of him. She had said in her statement that the shorter man entered the premises…”

35. That is the context in which to view the judge’s statement:[21]

“ PW 1 followed the man with the bag to 43 Hung Fook Street, saw him enter. The timing of the CCTV and the fact that he is holding the bag means it must be the same man.”

36. As the judge had found, accurately reflecting the evidence of Ms Tsui, she saw only the shorter man entering the premises.  He was not the man who grabbed the bag.  So, she did not see that man enter the premises.  The judge’s statement to the contrary was an aberrant statement in light of all his earlier findings.  However, in context that statement is to be considered in light of all those earlier findings, including the finding, adverted to earlier, that in fact Ms Tsui “…had followed them to 43 Hung Fook Street” [22].  The shorter man, who did not seize the bag, did enter the premises and was seen running up the staircase only three seconds behind the man carrying the bag.  So, albeit unknown to Ms Tsui, she had been hard on the heels of the man who seized her bag.

37. The fact that the five Starbucks vouchers had been found in the bedroom, which the 2^nd defendant asserted, in his out-of-court statements, was his bedroom was not a matter of any significance enuring to the benefit of the applicant in the context of the charge of a joint enterprise robbery with the 2^nd defendant brought against the applicant.  Other stolen property was found by the police openly displayed in the living room of the premises which they both occupied.

Conclusion

38. In my judgment, no reasonably arguable grounds of appeal against conviction were advanced on behalf of the applicant.  Accordingly, I refused the application.

39. I advised the applicant that he had the right to renew his application for leave to appeal against conviction to the full Court if he so wished.  However, I advised him that, if the full Court was to determine that the renewal of the application was without justification, the full Court had the power to order that some of the time that the applicant has spent in custody since filing the notice of the application and the hearing of the appeal shall not count towards the completion of his sentence.

[1] Reasons for Verdict, paragraph 22.

[2] Reasons for Verdict, paragraph 23.

[3] Reasons for Verdict, paragraphs 24-5.

[4] Reasons for Verdict, paragraph 25.

[5] Reasons for Verdict, paragraph 26.

[6] Appeal Bundle pages 10S and 16T.

[7] Reasons for verdict, paragraph 1.

[8] Reasons for Verdict, paragraph 21.

[9] Reasons for Verdict, paragraph 22.

[10] Reasons for Verdict, paragraph 22.

[11] Reasons for Verdict, paragraph 26.

[12] Reasons the Verdict, paragraph 23.

[13] Reasons for Verdict, paragraph 6.

[14] Reason for Verdict, paragraph 28.

[15] Reasons for Verdict, paragraph 30.

[16] Appeal Bundle, page 29A-E.

[17] Appeal Bundle, page 38 A-M

[18] Appeal Bundle, page 30 R-T

[19] Reasons for Verdict, paragraph 4.

[20] Reasons for Verdict, paragraph 22.

[21] Reasons for Verdict, paragraph 31.

[22] Reasons for Verdict, paragraph 26.