HKSAR v. CHUNG YIU LAM AND ANOTHER

CACC 117/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 117 OF 2001

(ON APPEAL FROM DCCC NO. 1130 OF 2000 AND 183 OF 2001)

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J U D G M E N T

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Hon Stock JA:

1 I shall deal first with the case of D6, Chan Lai-wing. There appears to be one matter that warrants consideration, and that is the approach of the judge to the discrepancy between this applicant's actual appearance (the tattoo issue), and the description given of him by the officer in his notes as well as in oral testimony. In particular:

(a) The notes were not made five months after the event (see p.32T Reasons for Verdict); they were made immediately after the event in question. If therefore there was a major disparity between the notes (see p.111) and the actual appearance of the applicant, then the disparity might be one which one should not expect.

(b) The suggestion at p.33R-S that the witness was clearly confused when he recorded his notes is not explained in relation to the notes. The question which might be asked is: how could the officer then had been confused about tattoos on both arms, and why does the judge conclude that the officer was confused? One notes further that, even in re-examination, the officer stuck to the contention that both arms of the man with whom he dealt had been tattooed (see p.111J).

2 For these reasons D6 is given leave to appeal against conviction out of time. The officer's notebook and a translation thereof should be included in the appeal bundle.

3 In relation to conviction as far as D5, Chung Yiu-lam, is concerned, there is nothing really in his grounds of application, save that he was identified by the same police witness, and he complains that in his case too, there was a material discrepancy between the officer's description of the culprit and his actual appearance. Since I have given leave in the case of D6, should it transpire that the officer's evidence was in D6's case unsatisfactory, or that the judge's approach to that officer's evidence in the case of D6 was unsatisfactory, that is a matter which conceivably, though not necessarily, might benefit this applicant as well. So he is also granted leave to appeal against conviction.

4 I must emphasise to both applicants that this is only the granting of leave, and that it is no indication whatsoever of the likelihood of success.

5 There is another issue which has arisen in the course of today which is that of the sentence in the case of D5. He brought to my attention a matter which, so it seems to me, deserves investigation. He was sentenced in this case on 20 March 2001 to a term of two years' imprisonment. He says, and this appears to be conceded by Ms Sin, who has consulted prosecuting counsel, that nothing was mentioned on 20 March as to whether his sentence was to run concurrently or consequently with an 18-month term imposed on 5 September 2000 for another offence. If that was so, and in the absence of anything further, the sentence for this offence would start to run, so it seems to me, from that date, that is, from the 20 March 2001. But he told me that he was brought back some months later and was told then by the court that four months of the sentence imposed in March was to run concurrently and the balance consecutively, to the sentence imposed in September. I have been shown the District Court file. It shows that on 20 March he was sentenced to two years' imprisonment, and it would appear, from the file at least, that nothing was said as to how that was to run in relation to the offence for which he was sentenced in the year 2000. Then there is an entry dated 26 April 2001 which shows an appearance on that day with the caption "Clarification of Sentence re: D5" and the order then made is the order which the applicant related to me today. The effect of that order is different from how matters were left in March, and it seems to me that a full court should investigate that issue, and whether the District Court had the power to do what it did on 26 April and, even if so, whether the justice of the matter needs attention.

6 D5, Chung Yiu-lam, has today, at my suggestion, and in order to put the matter in order procedurally, filed notice of application for leave to appeal against sentence out of time. I grant D5 leave to appeal against sentence out of time. The District Court should please provide its Reasons for Sentence in D5's case.

7 I think that both applicants should be represented on this appeal, and I grant legal aid for that purpose.