HKSAR v. LAU CHAK LAM, ANDY

CACC 130/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 130 OF 2013

(ON APPEAL FROM DCCC 1201/2012)

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BETWEEN

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JUDGMENT

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  The applicant pleaded not guilty before Judge Yip in the District Court to a charge that on 9 August 2012 at Shop A on the ground floor of 19 Yim Po Fong Street, Mong Kok, he robbed Shum Siu Kang of one pair of earrings.  He was convicted on 10 April 2013 and sentenced to 4 years six months imprisonment.  He now seeks leave to appeal the conviction.

The evidence

2.  Mr Shum is an employee of a jewellery company which has three shops. They include shop A, at which the robbery took place and Shop B which is in Nullah Street, about 400 m away from Shop A.

3.  It is common ground that at about 4 pm on 9 August 2012 male went into shop A, spent some time looking at jewellery, was shown a pair of diamond earrings in a windmill design, threw pepper in Mr Shum’s face and fled with the earrings.  The issue in the case was whether the applicant was that male.

4.  It is also common ground that about 23 minutes later, the applicant presented himself in Shop B, in the company of his girlfriend, and offered for sale a pair of earrings identical in appearance to the earrings which had been stolen in shop A.  From CCTV films of both visits, it is apparent that the male who presented himself in the first shop was similar in build to the male who presented himself in the second but the clothing was different in that at shop A, the male wore a white cap, white shirt (plus dark trousers and dark shoes); whereas at shop B, the male was wearing no head covering, and sported sunglasses, and a grey top (plus dark trousers and dark shoes).

5.  Mr Shum telephoned the owner of the shop and told her of the robbery.  She in turn telephoned her daughter, Ms Tong, who was then in shop B, to tell her of the robbery but did not at that stage disclose to her that the robbery was of the windmill design earrings.

6.  In shop B, the applicant produced the earrings from a piece of tissue paper and asked Ms Tong to give him a quote for them. She was sure that the earrings were the windmill earrings from shop A and, with a mobile telephone, took a photograph of the applicant’s girlfriend.  This outraged the girlfriend who picked up the earrings and, with the applicant, left the shop.

7.  The applicant was arrested on 28 August 2012 and upon the interview denied the robbery but admitted trying to sell a pair of earrings at shop B, earrings which he claimed belonged to his girlfriend.

8.  The prosecution sought to prove its case at trial by the identification evidence of Mr Shum, who attended an identification parade on 5 September 2012; the testimony of Ms Tong who was sure that the earrings came from shop A; and the circumstances as a whole, most particularly the fact of an attempted sale of earrings of precisely the same shape and design as the earrings which she knew had been acquired by her mother's company and kept in shop A, within half an hour and 400 m of the robbery in shop A.

9.  The applicant did not testify or call evidence on his behalf.

Conduct of the trial

10.  It is clear to us from a reading of the transcript of the cross-examination and of the submissions by counsel then acting for the applicant, that the applicant was putting the prosecution to proof of its case,  most particularly by asserting that proof that the earrings presented in shop B were similar in every respect to the earrings stolen from shop A, was not of itself sufficient to prove that they were in fact the same earrings; that the identification of the applicant by Mr Shum was not strong enough; and that it was inherently improbable that the robber would have been so foolish as to attempt to sell the stolen goods within half an hour at a shop nearby bearing the same ownership name.

11.  Mr Shum had adequate opportunity to observe the robber before the act of violence and seemed entirely sure that the man whom he identified at the identification parade was the same man who had committed the robbery.  Nonetheless, because the witness said in evidence that the description he had given to the police was flimsy, the judge held that the evidence of Mr Shum as to identification was not sufficiently reliable and he disregarded it.  We do not ourselves read the reference to flimsiness as going to anything other than his description to the police as opposed to the certainty of his identification. 

12.  Be that as it may, the judge was satisfied that the evidence of Ms Tong of itself established that the earrings presented to her were the same as those which had been stolen.  Much in this application turns upon that finding and the judge’s approach to it in the course of the trial.

13.  At the end of re-examination of Mr Shum, there followed a lengthy dialogue, instituted by the judge, about the ability of the prosecution to prove that the earrings of which Mr Shum had testified were the same as those which the applicant had tried to sell shortly after the theft.  The judge explained why he raised the question: “I didn't want to leave a tail when the case proceeds further on because there may be [a] … statutory alternative for handling … [and] for handling you need to make it unique … because similarity does not qualify.” The fact that the judge prompted this line of enquiry is one ground of complaint, the judge saying "at the end of the day if there is not enough for robbery then I don't want to be given a statutory alternative of, say, handling some issues still quite … obscure.”  Prosecuting counsel's response is relevant for he accepted that the prosecution was not in a position to do other than show that the earrings were similar to those stolen, save by reference to Mr Shum's identification of the applicant as the robber.  In other words, prosecuting counsel did not suggest that there was some marking on the earrings by reason of which the owner or her staff were able to identify them as the very ones stolen.  

14.  The judge gave the prosecutor time to consider the matter and to ask Mr Shum further questions: this, prosecuting counsel proceeded to do by reference to a photograph which had been taken when the earrings were purchased.  All Mr Shum could, in the event, say was that the earrings in the photograph were 99% similar to those stolen.  Prosecuting counsel, after further cross examination and further re-examination, notified the court that he intended to call the next witness, Ms Tong.

15.  But the judge was concerned that there remained a matter for clarification with the first prosecution witness, Mr Shum. Defence counsel had put to Mr Shum, and Mr Shum had accepted, that he had mentioned no special feature of the male to the police whereas, the judge noted, in his statement to the police Mr Shum had spoken of the age, height and hair length of the robber.  So the judge had Mr Shum recalled, over the objection of defence counsel and was shown his statement in which he had described those features.  This, again, is said upon this application to be an act of the judge overstepping his role by prompting the prosecution to do that which it had been perfectly open for prosecuting counsel to do in re-examination.

16.  The testimony of Ms Tong was important.  She was normally in charge of the Nulla Road branch of the business but was familiar with the business as a whole and with the items kept in the other shops.  She said that when she first saw the earrings presented by the applicant, she was very sure that they belonged to her company.  When an item of jewellery was purchased she would provide electrical coating to make the item look new and take a photograph of the item which would be stored on her mobile telephone.  She had never before seen diamond earrings of this configuration other than the ones purchased and kept in shop A.  She had viewed the earrings kept in shop A many times before the incident in question and they had left a deep impression upon her.  This is why she felt confident in saying that these were the earrings which must have come from shop A.  When the applicant had presented earrings to her, she picked them up to check whether they were real and authentic and then she asked the applicant, according to the evidence, how he had come by them to which he gave no reply.  In relation to this latter part of her evidence, the judge made no finding or, at least, he does not appear to have relied on the oddity, in the circumstances, of the applicant's silence.

17.  It is perfectly clear to us that the thrust of cross examination was to suggest that similar or even identical in every respect though the earrings stolen were to those shown to her, there were no registration or other mark on the earrings purchased or shown by the applicant to distinguish them from such other earrings of the same design as might exist.  That was the point of the cross-examination, namely, to explore the perfectly reasonable question whether, given the vast number of jewellery shops in Hong Kong, these particular earrings were of a unique or common design.

18.  The witness accepted that there was no mark on the earrings that made them, or showed them to be, unique.

19.  There then followed closing submissions by counsel for the applicant, which concentrated upon two matters: the question of Mr Shum's identification of the applicant and the question whether the evidence was sufficient to show that the earrings proffered by the applicant at shop B were the same as those stolen from shop A.

20.  We have the transcript of closing submissions.  They constitute something in the order of 40 pages of transcript and the flavour of them is difficult to convey unless we were to exhibit them to this judgment.  It is not so much closing submissions as a constant dialogue between counsel and bench.

21.  Much of it is devoted to the question of identification of the earrings, in which counsel for the applicant was suggesting that the fact of similarity was not to be equated with proof positive that they were the same.  “The burden,” she said “is on the prosecution to prove that this pair is exactly the pair stolen.”.  “I know,” said the judge “but there is not even the suggestion that there was another pair like this in the world.”  There was, so the judge repeatedly suggested, an evidential burden on the defence to show that there was another such pair somewhere in the world.  So, for example:

“Do we have to interview everyone in this whole world to see … whether you have hidden anything like this in your secret drawer? What kind of evidence do you want? What level does the prosecution need to achieve? … [If you suggest that there may be another sample of this kind of North Pole in a secret corner] you have to raise it … if you don't raise a case, how can the prosecution tackle a case that is not raised? You know what is evidential burden? You have to raise it … How can the prosecution interview everyone [in the world]? … How can they [the prosecution] know what's in the mind of you or in your client? You may say it is someone from Mars from outer space, which brings this one in. How can they know? It may be a donkey making it. … Nothing is unique ... I don't understand what can be unique? ”

22.  “Tell me,” the judge then said to counsel “give me a real good example of what is enough [proof]?”  “If [Ms Tong] told us that only one serial number for example,” was the answer.  Court: “It [the serial number] can be faked.  How can you say that the machine is not out of order generating the serial number? ”

23.  And so it went for many pages.  To the question whether counsel was given a fair wind and whether the judge erred in his suggestion of an evidential burden, we shall return.

Reasons for Verdict

24.  The judge, having put to one side in his Reasons for Verdict, the identification of the applicant by Mr Shum, based his conclusion as to the provenance of the jewellery shown to Ms Tong, on her evidence of familiarity with the earrings in shop A which she could recognise, she said, from their shape, the pattern, and the diamonds.  He said:

“Given her familiarity with the pair of earrings based on her 4 visual criteria, I am satisfied beyond reasonable doubt that her identification is of good quality and reliable.

Defence counsel submits that there was no marking to make it unique. The prosecution has therefore failed to prove it was a unique pair on earth. I do not agree. The prosecution is of course required to prove that the pair of earrings presented to her by the defendant at shop B was actually the Windmill earrings. But that has nothing to do with uniqueness. If there are 100 identical pairs in existence but the existence of 99 of them are not known to the prosecution or defence, then those 99 pairs are not relevant to our present case. Only this pair is relevant for the purpose of the case. In the present case, the defence suggestion is, in a rather mild tenor, that there may be a second pair on earth.

I am of the view that the prosecution has proved beyond reasonable doubt (based on her for visual criteria and a confirmation of not having seen or heard of any second pair like it) that the earrings presented to her by the defendant were the actual Windmill earrings.” (original emphasis)

Analysis

25.  It was not accurate for the judge to contend that the defence had not suggested that there might be another pair of earrings of the same design.  That was the main thrust of cross-examination and of the submissions.  It was not for the defence to prove that there was another pair or other pairs of the same design; and it was wrong for the judge to suggest that on the facts of this case, there was an evidential burden on the defence to that effect.  This is a question to be examined in the context of subject matter and the subject matter was a pair of earrings in a city awash with jewellery shops which stock earrings; a matter of which one can take judicial notice.  All the witness, Ms Tong, could say was that the earrings she saw were identical in shape and design to the earrings which had been stocked in shop A.  On its own, that was insufficient to prove that they were in fact the same earrings.  The fact of identical shape and design coupled with the rest of the evidence is an entirely different matter, but what disturbs us is the notion, implicit in the judge's comments during submissions, that the prosecution discharges its high burden and standard of proof by doing the best it can in the circumstances.  That supposition presents itself not for the first time in recent cases and is a supposition which, if it gains currency, will undermine the central tenet of our criminal law.

26.  There may be cases where, absent something to the contrary known peculiarly to a defendant, the evidence as a whole suffices to establish identity of a person or of an object to the requisite standard; in such a case, one may properly speak of an evidential burden but, otherwise and absent a statutory exception, it is for the prosecution to prove its case and if there is a difficulty in its way, then so be it.  That is how our system works.  In the case of a stolen item in a category of goods of which there are or are likely to be many, the burden is on the prosecution to prove that the item in the hands of an accused is not merely an item of an identical kind or design, but is the item itself.  That may be proved in many different ways: by an identification mark, or by the presence of the accused in the place and at the time of the theft, or by threads of evidence which, circumstantially, amount to the requisite proof.  If the prosecution is not able to prove its case, then the accused must be acquitted.  Those representing a defendant are entitled to put the prosecution to strict proof, to ask no questions, to say nothing, to offer no suggestions or theories; in short, to say that the prosecution has a task to prove its case beyond reasonable doubt.  That task may in a particular case be easy or difficult.  But, from beginning to end, that is its task. 

27.  No one in this case was suggesting that there might be another sample of this earring design in the North Pole, or in a secret corner, or in some secret drawer, or in Mars.  Those were disparaging remarks by the judge which did not do justice to the fundamental and straightforward submission which counsel was making.  She was not speaking of the Large Hadron Collider or some other unique invention. She was addressing the court in the context of a common item - a set of diamond earrings.

28.  It would have been open to the judge to come to his conclusion as to guilt on the evidence as a whole.  That evidence was strong.  It consisted of the evidence of Ms Tong in recognising the earrings as identical in shape, size and design as those in shop A; of her testimony as to the applicant's reaction when she challenged him as to their provenance; of the fact that earrings of the same shape size and design had been stolen but half an hour before and only 400 m away a series of circumstances from which, absent a contrary explanation, the only reasonable inference was that the applicant was the thief.

29.  There is a ground of appeal which turns on the failure of the judge to redact from the transcript of the video interview that part when the interview of the girlfriend was played to him and upon which he was asked to comment but did not do so.  The judge, erroneously in our view, admitted that evidence, yet we are satisfied from comments he made that he did not treat what the girlfriend had said or the applicant's reaction to it as probative against the applicant.

30.  The question which remains is whether the applicant had the benefit of a fair trial.  No matter how strong the evidence against an accused, justice must be seen to be done.  That too is at the core of this jurisdiction’s criminal law and procedure.  An accused person is entitled to feel that arguable submissions have been given a fair wind.  That is not to deny to a judicial tribunal the undoubted right to give short shrift to meritless arguments.  But the arguments which counsel sought to advance in this case were not nonsensical; she was not wasting time; and yet there was barely a contention advanced by her that was not immediately interrupted in a manner which must have conveyed the clear impression to an informed and objective observer that the judge had, despite his conscientiousness, unfortunately set his sights firmly against the accused’s case without according to counsel a proper hearing.  That is far from saying that a judge must sit mute and listen to whatever counsel has to say.  To the contrary, a judge is entitled to probe, to question, to point out apparent or obvious weaknesses in the submissions; and is duty bound to stop prolixity.  But we have, with respect, come to the conclusion that on this particular occasion the judge fell short of what was required.

Result

31.  Accordingly, we grant the applicant leave to appeal conviction, treat the hearing of the application as the appeal, allow the appeal, and set aside the conviction.  We have seen the CCTV footage of the robbery itself and it is an ugly and serious event; and this fact plus the quality of the evidence is such as to warrant a retrial, a proposition that is not opposed by counsel for the applicant.  We order the applicant to be retried upon a fresh indictment for the same offence.  He is remanded in custody until retrial or further order.