HKSAR v. WONG WAH YEE

CACC 40/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 40 OF 2000

(ON APPEAL FROM HCCC NO. 79 OF 1999)

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

Introduction

1. The applicant was convicted after a trial before Deputy Judge Longley and a jury on an indictment containing two counts of attempted robbery and one count of carrying an imitation firearm with intent to commit an arrestable offence. The first count alleged that WONG Wah-yee, on 30 August 1998 at the Hong Kong Bank, Ground Floor, Kornhill Plaza South, Quarry Bay, in Hong Kong, attempted to rob Yeung Sui-yee. The second count alleged that he, on 7 December 1998 at the Hong Kong Bank, Ground Floor, Kornhill Plaza South, Quarry Bay, in Hong Kong, attempted to rob Lam Wai-ching. At the time of his arrest on 7 December 1998, the applicant was found in his possession an imitation firearm, namely a replica of a Smith and Wesson pistol, which, the prosecution alleged, the applicant intended to use to commit an arrestable offence and this was the subject of the third count. The applicant was sentenced to imprisonment for a total period of four years. He now applies for leave to appeal against the convictions.

Count 1

2. The evidence against the applicant in relation to Count 1 was mainly from Madam Yeung Sui-yee who testified that at around 10 a.m. on the morning of 30 August, 1998, she had taken a taxi from her home in Braemar Hill and had gone to the ETC machine outside the Kornhill branch of the Hong Kong and Shanghai Bank. She intended to withdraw $1,000 from the machine. After she had inserted her card into the machine, a man came up and stood to her left. She described this man as a bit aged, around 60 with a round face, round eyes, round nose. He was wearing a peaked cap on his head, a blue checked shirt and denim jeans. He had a wart on his lower lip. He was not very tall, about 1.56 metres in height. The man told her : "This is a robbery. I have a gun." and showed her that he was holding a gun inside a small plastic bag. She asked the man "How much money do you want?" He did not at first reply but instead started to push buttons on the keyboard. He selected the Chinese language option. She asked again how much he wanted and he replied $20,000. She keyed in $20,000 but the display on the machine indicated that that sum of money could not be withdrawn. By this time, people were queuing behind, and he left. He had not taken any money.

3. Madam Yeung attended an identification parade on 11 December 1998 and identified the applicant as the man who had attempted to rob her. Each participant on the parade had covered his lower lip with sticking plaster and wore something to cover his head. She also pointed out the applicant in the dock during the trial and said she was 100% sure that the applicant was the man.

Counts 2 and 3

4. The evidence in support of Counts 2 and 3 also came principally from one witness, and that was Madam Lam Wai-ching, the victim of the second attempted robbery. She said that at about 7:20 a.m. on 7 December 1998, she went to withdraw money at an ATM machine of the same branch of the Hong Kong and Shanghai Bank at Kornhill Plaza South, which was just a short distance from the machine where Madam Yeung tried to withdraw her money. When she inserted her card into the machine, she felt that someone was standing close behind her. She nonetheless continued and keyed her PIN number into the machine. As she was doing this, the man behind her placed his hands on her left shoulder. She felt his breath against her ear after he had moved to her right. She turned her head, thinking that it was someone she knew but when she turned round, she saw that it was an old man wearing a black coloured cap, a blue windcheater and a pair of sunglasses whom she had never seen before. She asked the man "What do you want?" The man patted her shoulder and said "Do not be nervous. Take it easy, go on." She felt very nervous as there were only the two of them there. She walked up the stairs and shouted loudly, "Help, robbery". After she walked up the stairs, she kept looking in the direction of the man down the stairs. She saw that the man's hand appeared to be on the keypad and was moving but she could not see if he was actually pushing any keys or not. Realising that she had left her ATM card in the machine, she went back to the machine and said, "What are you doing? Are you trying to take my money?" At this point, the man took out a gun from his waist area and pointed at her. She was very frightened and went up the stairs she had just come down from shouting out : "Help, robbery, he has a gun." At that stage, a passer-by in white sports wear came up to her and asked what happened. After having been told of what happened, this passer-by, later known to be a Mr. Lee, gave chase. The man, who turned out to be the applicant, was later arrested by the police and an imitation pistol was found in his possession.

5. Madam Lam attended an identification parade on 17 December 1998. She said in her evidence that as soon as she entered the room, she suspected that the person standing at number 7, who was the applicant, was the man. But she admitted that she went on viewing the parade for several more minutes before saying to the officer that the lighting had been dim but that number 7 looked similar, and she then requested that all the men on the parade said the words that she said the man had said to her when they were by the ATM machine. She said she had made this request because she had a very strong recollection of the voice of that person. After the men in the parade had all uttered the words, she identified the applicant who was standing at number 7.

Defence

6. The defence on Count 1 was an alibi. In relation to Counts 2 and 3, his case was that it was all a misunderstanding on the part of Madam Lam, who must have seen the butt of his gun inside his waistband. As to the gun, he said he bought it at a toy shop in Mongkok for self-protection because there were quite a number of wandering dogs barking at passers-by during his walk from his flat up to Kornhill every day to take exercise.

7. It is clear from their verdicts of guilty, the jury had rejected the defence and concluded that the applicant was the very man who attempted to rob Madam Yeung and Madam Lam and had the imitation pistol with intent to commit the second attempted robbery.

Grounds 1 and 2

8. A number of grounds of appeal were advanced. It is only necessary to deal with Grounds 1, 2, 3 and 5 in the Perfected Grounds of Appeal because Grounds 4, 6 and 7 were general grounds alleging insufficient evidence or the verdicts were unsafe and unsatisfactory. Grounds 1 and 2 can be more conveniently dealt with together. Ground 1 complains that the deputy judge erred in law by directing the jury that they could

"consider the evidence (they) found proved on one charge when considering the evidence on the other charge"

when the issue in relation to Count 1 was the very identity of the robber. Ground 2 says, alternatively, the deputy judge failed to make clear that such evidence of similarity must be such as to exclude the possibility of a mistake having been made. Moreover, his confusing and unhelpful references to a "coincidence" undermined the cogency of the evidence required in using the facts of one count in proof of another. References were made to p.19K-L and p.20K-T of the summing-up. We will examine what the deputy judge says in these passages. Starting from p.19K, the deputy judge said:-

"I told you you must examine the evidence against the defendant on each charge separately. There is, however, one circumstance in which it would be permissible for you to consider the evidence you found proved on one charge when considering the evidence on the other charge, and that is in relation to the evidence of identification by Madam YEUNG to which Count 1 relates.

That situation would arise if you were satisfied, after considering the evidence of Madam Lam relating to Count 2, that Madam Lam was correct when she says that the defendant, wearing a cap, pointed a gun at her outside the ATM machine on 7 December, 1998. If you were so satisfied, members of the jury, it would be quite wrong for you to say, "Well, the defendant is a criminal, and as he is a criminal, he is much more likely to have committed the first offence." That would be quite a wrong approach.

But you may, however, consider the evidence in the following way: you may think, members of the jury, that while it unfortunately may happen from time to time that middle-aged women are robbed at ATM machines, and those robberies might involve the robber pointing a gun at the victim, it is highly unusual to say the least, for the man pointing the gun to be in his 60's, have a mole or wart on his lower lip, to be wearing a cap, and to do so at the Kornhill branch of the Hongkong and Shanghai Bank, and that is what both Madam Yeung and Madam Lam alleged happened to them.

When you consider the identification made by Madam Yeung at the identification parade on 11 December, it is open to you to consider, if you accept Madam Lam's evidence, what are the chances of Madam Yeung mistakenly pointing out a man on the parade who not only happened to have a mole on his lower lip, which she was not able to see at the identification parade, but also to have just happened to have pointed a gun at another middle aged woman at the same ATM machine, wearing a cap, just over three months later. Could this be a coincidence or would it be an affront to common sense to suggest it was a coincidence?

You must, however, members of the jury, when you consider this question, consider also the fairness of the identification parade which Madam YEUNG attended on 11 December. The defendant had been arrested on 7 December and put on the identification parade on 11 December. It would not be surprising if Madam YEUNG pointed him out as the robber, if he was the only person on the parade who looked like the person she had described to the police and all other men on the parade looked different. In those circumstances, it would be much less of a coincidence that she happened to pick out a man who had pointed a gun at Madam LAM at the same ATM machine three months later.

The coincidence would be much greater if you considered that all the other members on the parade were approximately of the same appearance as the defendant, and I say approximately because of course, all human beings are different and it is always possible to point out differences between one person and another."

Earlier in the summing-up at p9E to p10M, the deputy judge had given a full Turnbull [1977] Q.B. 224 direction in relation to Count 1.

9. It was submitted by Mr Marash, SC on behalf of the applicant that the deputy judge erred in :

(a) directing the jury that they could use the evidence of identification in Count 2 to support the evidence of identification in Count l as there was insufficient similarity between the incidents for the evidence on Count 2 to be left to the jury on Count 1;

(b) failing to instruct the jury that they first had to decide that the similarity between the offences was such that they concluded beyond reasonable doubt that one man committed both offences;

(c) leaving the evidence to the jury on Count 2 at all as there was an attempt to rob on that count, taken alone;

(d) not instructing the jury that they first had to be satisfied of the Applicant's guilt on Count 2 on the offence charged (i.e. that he had committed an attempted robbery) before they could use the evidence of identification on Count 2 to support the identification of Madam Yeung on Count l;

(e) implying to the jury in the crucial part of the summing-up that anyone who pointed a gun at a woman in the vicinity of an ATM machine must be attempting to rob her;

(f) failing to point out the discrepancies between the two women's identifications and elevated them into similarities (wart/mole) or homogenized them (man in his 60's).

Similar Fact Evidence

10. Mr Marash referred us to the decisions of the English Court of Appeal in R v McGranaghan [1995] 1 Cr. App. R. 559; R v Downey [1995] 1 Cr. App. R. 547 and R v Barnes [1995] 2 Cr. App. R. 491 and complained that the deputy judge when directing the jury had not adequately followed the tests (the sequential approach) set out in these cases.

11. The question of admissibility in situations where similar fact is relied upon is always essentially one of probative value. What must first be addressed is the purpose for which the evidence is sought to be led, the issue to which it is relevant; and then to ask whether the similar fact evidence is genuinely and logically probative of that purpose and, only if so, assess the weight of that probative value, and the prejudice which it imparts.

12. In this particular case, the purpose to which the deputy judge referred by his allusion to the December incident and its possible relevance to the August robbery, was not its potential to establish an original identification of the applicant as the perpetrator of the August offence, but merely to suggest that it could provide possible support for, or corroboration of, the identification already made by Madam Yeung in relation to the August incident. There is, in the circumstances of this case, no need for close analysis of cumulative or sequential approaches. It was established beyond any doubt that in the December incident, this applicant was the man who, armed with a gun, was standing behind the complainant, Madam Lam, at the bank in Kornhill Plaza. His identity in relation to that occasion was proved. And the deputy judge invited the jury to consider the December incident, when addressing Count One (the August event), only if they were satisfied that Madam Lam was correct "when she says that the defendant, wearing a cap, pointed a gun at her outside the ATM machine on 7 December 1998". One proceeds, for the purpose of the present point, on the assumption, therefore, that the applicant's identity in relation to the December incident was proved, and that it had been established that he had pointed a gun at Madam Lam whilst she stood near the ATM machine in the Kornhill branch of the Hong Kong Bank. Once that was proved, and assuming features of sufficient similarity between the two incidents to which features we shall shortly turn and given the limited purpose for which the evidence was to be utilised, we see nothing wrong in the deputy judge's direction.

13. It was suggested that it was necessary, however, before evidence of the applicant's December conduct could be utilized in relation to the August event, that it first be proved that his conduct in December amounted to attempted robbery. The point does not really arise because the jury found the applicant guilty of attempted robbery. But in any event, we do not agree with the proposition, as a proposition of law. In other words, we say that it was open to the jury to use the applicant's December conduct, even though falling short of attempted robbery (had that been their conclusion) to support the identification in relation to the August offence. That is because :

(1) an acquittal in relation to the December incident could only, on the facts, have resulted from a conclusion that the conduct before the applicant drew a gun fell short of an actual attempt, and because the conduct in drawing the gun was, given the fact that a hue and cry had been raised, equivocal; and

(2) the overt conduct of the applicant in the December incident, whatever his motive, encompassed a series of features, prior to that final or supposedly equivocal act, which in each particular and especially when taken together, bore a remarkable resemblance to the conduct of the man identified by Madam Yeung in relation to the August incident.

In each case, the incident occurred by an ATM machine at the same branch of the Hong Kong Bank. Each case concerned a middle aged lady as the object of the man's unusual attention. The man in each case was elderly. In each instance, he wore a cap. In each instance, he had a mole or a wart on his lip (and we think too much has been made of the variation in description). In the course of each event, the lady in question had inserted her card, and thereafter the man had himself sought to operate the keyboard. In each case the man took no money. In each case the man carried a gun, and Madam Yeung described the gun seized in December as about the same size and colour as the gun pointed at her in August. To suggest in such circumstances that the failure to prove the final constituent of the offence of attempt, if failure there was, must result in the casting aside of all the other evidence of the December incident, which nonetheless could realistically be said to support the identification, is to defy the meaning of "probative value". There is, furthermore, authority against the proposition advanced (see R. v. Barrington [1981]1 WLR 419; R. v. Ball [1911] AC 47; Griffith v. R. [1937]58 CLR 185; and discussion of this point in Cross & Tapper on Evidence, 9th Ed., pp.345-347). There can be no doubt but that these common features, taken in combination, were unusual and clearly supportive of the identification of the offender in the August offence. In these circumstances, the direction given by the deputy judge that, once they accepted Madam Lam's evidence, it was open to them to consider its possible utility in relation to Madam Yeung's identification, was a direction that accorded with principle as well as with common sense.

14. We also find no substance in the complaint of the use of "coincidence". The word has to be looked at and understood in the full context of the summing-up. These two grounds therefore fail.

Ground 3

15. Ground 3 starts with a passage of the summing-up at p.28 E-J where the deputy judge said :

".....is true, as Mr. Mullick told you, that Miss Cheng for the prosecution did not specifically put to Sister Joanna that she was incorrect when she said that she had made the entry before 30 August nor did she put to her that she had concocted the entry, nor did she put to her that it was incorrect that they had arranged to meet at 10 am that day. But, members of the jury, if those things had been put by Miss Cheng to Sister Joanna, what do you think her answer would have been?"

16. It goes on to complain :

"The said direction was inappropriate and unfair in circumstances where it was the duty of the prosecution to disprove the alibi if it did not accept it, having been given sufficient notice of such evidence prior to trial. Furthermore, it was not for the learned Deputy Judge to invite the jury to speculate upon how Sister Joanna might have answered, refuted or explained that which it was the duty of the prosecution to put to her."

17. It was also submitted by Mr. Marash S.C. that it was the duty of the prosecution to disprove the alibi and the failure on the part of the prosecution to challenge the evidence of Sister Joanna was unfair and prejudicial.

18. The deputy judge gave a correct and, in our view, adequate direction of the defence in relation to Count 1 and in particular the abili evidence. One must read the summing-up as a whole and not just one or two short paragraphs in isolation. The summing-up in this particular aspect started from p20 T to p26 C. All this was before the passage at p28 E-J which the applicant complained of. We do not propose to reproduce the passages in our judgment. We only need to recite two short passages to demonstrate the careful approach by the deputy judge in relation to the abili evidence and the defence case. At p25 N-T and P26 A-C :

"Members of the jury, what you must always remember is that the burden lies upon the prosecution to establish the guilt of the defendant. The defendant does not have to prove that he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi.

There's no burden on the defendant or his witnesses to prove that the alibi was correct. You must be satisfied beyond reasonable doubt that the alibi is incorrect. Even if you conclude that the alibi evidence was false, that does not of itself entitle you to convict the defendant. The prosecution must make you sure of his guilt. Bear in mind that sometimes, defendants concoct alibis for other reasons that they are guilty of the offence. Sometimes, they even concoct alibis to bolster a true defence. So just because you might find that this was a false alibi does not mean that the defendant is guilty."

19. Immediately after the passage at p28, the deputy judge also gave this direction at J-M:

"The other thing I want to say to you is this: if it were the case that you did not believe Sister Joanna's evidence about the making of the entry in the diary, simply because you did not believe that evidence does not mean necessarily that the alibi is untrue, you would have to look at all the evidence relating to the alibi."

20. There is no hard and fast rule as to how a witness's testimony should be challenged : see R v Wong Hing-tong Criminal Appeal No. 45 of 1993; R v Hart [1932]23 Cr.App.R. 202; paragraph F7.4, Blackstone's Criminal Practice, 2000 edition and paragraph 8-116 Archbold 2000 edition.

21. The prosecution case and the defence had been one of stark contrast from beginning to end. The jury could not have been misled or confused in this regard. We are satisfied that the summing-up was, on the whole, balanced and fair.

22. There is no substance in this ground and it also fails.

Ground 5

23. Ground 5 is in these terms:

"There was no evidence of any demand or attempt to appropriate in relation to Count 2. Indeed the learned Judge considered that

"..... if he did not point a gun at her, you may think from the other circumstances, it would be difficult to conclude beyond reasonable doubt that he actually attempted to rob her" (p.33L-M).

Furthermore, the circumstances clearly showed that the applicant had produced the imitation firearm only after Madam LAM had walked upstairs, raised the alarm by shouting "Help, robbery", and returned to challenge the applicant (p.30F-N). Accordingly, there was no sufficient evidence to prove that the applicant had attempted to rob Madam LAM."

24. This was what the deputy judge directed the jury at p33 I-S:

"The question that you will have to decide is whether he was attempting to rob her. Now, Madam LAM does not say that the man actually said, "This is a robbery," nor did he say that he wanted money from her. So you may think that a crucial question in your consideration of this matter is whether or not this man actually pointed a gun at her because if he did not point a gun at her, you may think from the other circumstances, it would he difficult to conclude beyond reasonable doubt that he actually attempted to rob her. But of course, you do have the evidence that Madam Lam says that this man had put his hand on her shoulder before he produced the gun and that he uttered those words that I told you about and that he was also so close that he was breathing in her ear, well, his breath could be felt on her ear.

If you are satisfied that he did point a gun at her, you will have to consider whether there is really any other reasonable explanation than he attempted to rob her and as I said in relation to the 1st charge, you will obviously have to bear in mind that no money was actually taken from the machine."

25. At p.35 C-N, the deputy judge had this further to say:-

"The other factor which obviously is relevant to your consideration as to her reliability is the difference in the story between her and Mr LEE as to what the circumstances were when Mr LEE first arrived. Was she in fact at the top of the steps or was she crouching down at the bottom of the steps as Mr LEE says.

The defendant, of course, seems to suggest that she had gone up to the top of the steps and had come down with Mr LEE and that there was a conversation, I think indeed the conversation that Madam LAM told you about. Well, as a result of these matters, do you feel that her evidence is unreliable to such an extent that you cannot be sure that the man actually pointed a gun at her or do you think, members of the jury, that if a gun is pointed at somebody, that is such a significant matter that one is not going to be mistaken about it?

As I said in relation to Charge 1, you will also have to be satisfied that no money was actually taken from the ETC machine and you will have to consider whether that is relevant to the charge of attempt to rob and whether in fact the man, the defendant, intended to steal.

The defendant's account of what happened that day is essentially that it was all a misunderstanding on the part of Madam LAM, who must have seen the butt of his gun inside his waistband. He denied that he had ever pointed a gun at her and he denied that he intended to rob her."

26. We have to some extent dealt with this ground under similar fact evidence. As it can be seen from the passages to which we have referred, everything that was of any importance or relevance was put to the jury. It had been pointed out to us during argument that the steps which Madam Lam walked up and down were only a very short distance of a matter of feet from the ATM machine. This was wholly a matter of fact for the jury, who having heard the evidence of the witnesses and observed their demeanour, was perfectly entitled to draw the inference from the totality of the evidence that the applicant was attempting to rob Madam Lam.

Conclusion

27. There is no substance in any of the grounds of appeal. We are satisfied that the convictions are neither unsafe nor unsatisfactory. The application for leave to appeal must therefore be dismissed.