HKSAR v. YEUNG CHI CHIU NICKY

CAC C 268/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 268 OF 2013

(ON APPEAL FROM DCCC NO. 218 OF 2013)

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R E A S O N S   F O R   J U D G M E N T

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1. The applicant (Yeung Chi-chiu, Nicky), pleaded not guilty to a single charge of attempted robbery and stood trial before Judge Tallentire (the judge) in the District Court.  He was found guilty as charged and sentenced to 30 months’ imprisonment.  Represented by Ms Eugenia Yang, the applicant sought leave to appeal against conviction.  We dismissed the application on 14 February 2014 and these are the reasons.

Prosecution case and evidence

2. The victim (Yip Tin-chi) was a mobile telephone promoter, working for a telephone company at Kingswood Richly Plaza (the Plaza) in Tin Shui Wai.  On 24 December 2012, the victim finished work between 8.45 and 8.55 pm and was on his way to return to his company.  He was carrying a bag of 10 mobile phones valued at $40,000 to $50,000.  When the victim was near the bus stop outside the Plaza, someone approached him from behind and threw some powder at his face.

3. The attacker said to the victim, “Need money urgently, don’t put up a struggle” whilst trying to snatch his bag of mobile phones. The victim did not let go.  He struggled with the attacker and pushed him away. The attacker ran off and the victim chased after him.  The victim called the police after a short chase.  A face mask and a bottle of baby powder left behind by the attacker were seized by the police in the vicinity shortly after the incident.

4. The victim said he saw the face of the attacker for a few seconds during the struggle and was able to describe his appearance. He identified the applicant as the attacker at an identification parade on 5 February 2013.  The victim admitted that he could not see the face of the attacker clearly and he was only 70% sure of the identification.

5. The CCTV cameras of the Plaza (Cameras 5, 7, 11, 12, and 13) captured, according to the prosecution, the culprit wandering around the Plaza on 24 December 2012 from 6.09 pm onwards.  PC 10111 who had viewed the CCTV footage described what he saw as follows:

“…at 1809 hours, there was a male who was in similar clothing with a wanted person. He entered from the main door of …Plaza. At that time that male was wearing a face mask. The camera…was…A13. Then I saw that male wandering around in the plaza for a number of times and for a number of times he appeared in a passage way in the plaza. The times…were 1835 hours, 2002 hours and 2007 hours. … At 2048 hours I saw the male, that is the wanted person, in the shop… and he kept paying attention to the victim…who was buying things…At 2051 hours the victim…walked past the passageway outside the 7-Eleven on the ground floor of the plaza….the wanted person was closely following the victim… with a distance of about 4 or 5 foot spaces. …At 2057 hours I saw the wanted person…walk past a passageway on the ground floor of the plaza. At that time the wanted person took off the face mask and his jacket and he was holding the jacket…At 2058 hours…I saw that the wanted person left the plaza via the main door…”

6. The relevant footage captured by cameras 5, 7, 11, 12, and 13 were played in court.  It was, however, unclear if there was any CCTV footage which recorded the actual incident despite the judge’s observation – “Because I understand the incident was actually caught, according to the brief facts, it was actually caught on camera”.

7. There was evidence that another CCTV camera 15 would depict the area near Kwan Kee Congee Shop which was near the spot where the victim was attacked.  PC 8028 who had viewed the CCTV footage of camera 15 described what he saw from 2055.48 hours onwards as follows:

“…I first saw the victim...appear. He was walking from the management office of the…Plaza to the material location, Kwan Kee Congee Shop; that is, from the bottom of the camera to the top. Then after a short while I saw the wanted person of the case appear. He also appeared at the bottom of the camera, that is, the management office of ...Plaza. I saw the wanted person…follow the victim…and he was getting closer and closer. When both of them reached the top-most of the camera then I didn’t see what happened to both of them anymore. Then at 2056.40 hours…I saw the two of them appear at the top-most of the camera again. In the top-most camera I saw the victim…pushed the wanted person…down. Then the wanted person…lost balance and fell to his front. Then I saw him insert something into the edge of the drainage cover. Then the wanted person…left in the direction of the main entrance…on the left-hand side of the camera. Later on when I viewed the broadcast of camera 15, I saw that the object that had been put by the wanted person…was still there. Then I immediately went to the drainage cover….I found that it was a blue face mask…”

8. Unfortunately, camera 15 was not seized by the police together with other cameras. When they tried to seize camera 15 at a later stage, it was no longer available.

9. The applicant was intercepted and arrested by PC 10111 on 4 January 2013 at about 10.20 am because PC10111 found his “appearance, features and clothing” tallied with that of the culprit whom he saw on the CCTV footage.  In the presence of PC12122, PC10111 cautioned the applicant in connection with the attempted robbery of the victim on 24 December 2012.

10. According to PC10111, the applicant admitted that out of greed, he threw baby powder at a man who was playing with his mobile phone intending to snatch it from him.  The applicant said he failed and he took off his jacket and mask.  He said he then returned to the Plaza and left via the main door to take the LRT home.  The applicant claimed the jacket that he wore at the material time was at home.

11. The applicant further said that the bottle of baby powder was bought for his daughter several days before and the mask, purchased for $2 before he entered the Plaza, had been discarded. 

12. The applicant was arrested for attempted robbery and under caution, he said, “Ah Sir, I had a crash when I went to work and needed to pay compensation leaving me no money to celebrate Christmas with my kids”.

13. The applicant was taken back to the police station where a record was made in PC10111’s notebook of the arrest and the caution.  The applicant wrote out a declaration acknowledging the correctness of the record before signing at various places of the notebook to signify his agreement with its contents.

14. There was a subsequent video-recorded interview of the applicant by DPC46178.  Before the interview started, the applicant said he needed a lawyer and he was allowed to make phone calls to make the necessary arrangement.  A staff member of a solicitor’s firm arrived.  According to the police officers, the staff member indicated that her firm would not send a lawyer to represent the applicant and after being told of it, the applicant said “Okay”.  The video-recorded interview then commenced.

15. In the interview, the applicant confirmed that he did not need the presence of a lawyer and repeated what he told PC10111.  However, he said the bottle of baby powder was only purchased several hours before the robbery and not several days as what he had told PC10111.  He again admitted he intended to take the phone that the victim was playing with.

16. The police subsequently searched the applicant’s residence.  The applicant again admitted under caution that he had committed robbery and pointed out a brown jacket and said it was what he wore at the time of the offence.  The police seized the brown jacket together with the applicant’s other items of clothing.

The Defence case

17. The applicant did not dispute that there had been an attempted robbery of the victim, but claimed that he was not involved. The applicant gave evidence to challenge the admissibility of his confession and called his sister to give evidence on his behalf.

18. The applicant alleged improper conduct on the part of the police officers and objected to the admission of the note-book entries and the record of interview as evidence against him.

19. The applicant said he had not been cautioned and he had not made any admission, but was tricked into signing the post-recorded statement in the police station.  He said he was not allowed to write his own answers or read it over so that he could correct mistakes.  He said he thought he was only admitting attempted theft in exchange for not being charged with possession of dangerous drugs.

20. The applicant alleged that he had been coached what to say in the video-recorded interview and was induced by the promise of getting bail.  He further alleged his elder sister was induced by DPC46178 to dispense with the services of a lawyer.

21. The applicant’s sister said she had arranged for a lawyer to see the applicant and she went to the police station to wait for the lawyer.  However, she was told by DPC46178 that the applicant was only suspected of a trivial matter and there was no need to waste money engaging a lawyer.  The applicant’s sister said she trusted DPC46178 and cancelled her appointment with the lawyer.

22. After the judge ruled that the post-recorded entries in PC10111’s notebook and the record of the video-recorded interview were admissible, the applicant elected not to give evidence or call any witness.

The Judge’s findings

23. The judge rejected the applicant’s objection and ruled his confessions admissible as evidence.  The judge rejected the applicant’s allegations of inducement, threats or coaching.  The judge took the view that if the police had intended to deny the applicant legal representation, the applicant would not be given access to a phone to contact his elder sister.

24. The judge made some adverse comment about the police’s failure to retrieve and preserve the CCTV footage of camera 15.  As for the CCTV footage covering the inside of the Plaza both before and immediately after the incident occurred, the judge took the view that they were of little or no assistance as they merely showed a male who bore some passing resemblance to the description of the culprit.

25. The judge also took the view that the victim’s identification of the applicant as the culprit could not be relied on as it was made after a short duration in a stressful situation and when the victim had had powder thrown at his face.  The judge accepted that the culprit’s appearance and build strongly resembled that of the applicant.

26. However, the judge accepted that the applicant’s confessions made to PC10111 and during the video-recorded interview were freely made.  The judge accepted PC10111’s notebook entries and the record of interview as evidence and he attached full weight to them.

27. On that basis, the judge was satisfied beyond all reasonable doubt that the applicant had attempted to rob the victim of mobile phones and he convicted the applicant as charged.

Grounds of Appeal

28. Ms Yang enthusiastically complained about the absence of the CCTV footage of camera 15 which would have showed what actually happened when the victim was being robbed.  She also complained about the police not conducting DNA tests to the face mask and not conducting fingerprint tests to the bottle of powder seized in the vicinity shortly after the incident.  Ms Yang suggested that DNA and fingerprint tests might contain potentially exculpatory evidence that could have assisted the applicant’s case.

29. Ms Yang argued that in admitting the confession made by the applicant in the video-recorded interview as evidence, the judge had ignored the fact that the applicant’s sister had arranged legal representative for him.  Ms Yang emphasized that both the applicant and his sister testified to the effect that they had been induced by the police not to engage a lawyer to represent the applicant.

30. Ms Yang also suggested that there was clear indication of coaching, but the judge had failed to evaluate the evidence properly.  She emphasized that the applicant’s confessions were inconsistent with the prosecution case in the following aspects, namely:

1. The applicant only admitted to have intended to snatch the mobile phone that the victim was holding in his hand as opposed to the prosecution case that he intended to snatch the bag of mobile phones;

2. The prosecution case was that the applicant bought the bottle of baby powder a few days before for his daughter.  In the video-recorded interview the applicant said, “it was (not) bought several days before.  It was bought several hours ago.” When being asked by the police officer if it was bought several hours ago, the applicant said, “Right. However, at the beginning, I didn’t read that – didn’t read it carefully, and its him who said er, to write it as several days, since I was frightened and confused.”; and  

3. The victim said he was able to see the face of the robber, but from the CCTV record, the robber who followed the victim was wearing a mask and in the video-recorded interview, the applicant also said that he only took off the mask before getting back into the Plaza.

Discussion

31. We do not wish to speculate why CCTV footage of camera 15 was not retrieved by the police in the first place.  We are not sure that the judge was right when he commented that the incident was actually caught on camera.

32. It appears, from the evidence of PC8028, that camera 15 did not capture the moment when the culprit threw powder at the victim’s face and tried to snatch his bag of mobile phones.  PC8028 said he could not see the victim and the culprit when they reached the top-most of the camera and when they appeared again, he saw the victim pushing the culprit. 

33. According to the victim, the culprit was not wearing a face mask during the confrontation and he was able to see his face for a brief moment.  The CCTV footage showed the culprit was wearing a face mask when he followed the victim, but when he appeared again he had taken off the face mask.  Camera 15, according to PC8028, depicted the culprit inserting what appeared to be a face mask into the edge of the drainage cover after he was pushed down by the victim.  PC8028 was unable to say if the culprit was wearing a mask.  The applicant himself admitted that he took off his jacket and face mask after his attempt to take the victim’s mobile phone failed.

34. We do not find any inconsistency on the question of whether the culprit was wearing a face mask at the material time when he had a struggle with the victim.

35. In any event, we fail to see the significance of such discrepancy, if any.  It was not disputed that a robber had attempted to rob the victim and it was not disputed that the robber depicted in the CCTV footage was the robber in question.  The robber was wearing a mask before he attacked the victim, but the mask was removed after the attack.

36. Ms Yang suggested that the missing CCTV footage of camera 15 was a critically important piece of evidence and could have assisted the applicant, but she did not explain how.

37. It is true that the applicant’s counsel at trial (Mr Kwan) had at one stage complained about the missing CCTV footage of camera 15 and other matters, but he was happy to proceed with the case without camera 15.  Mr Kwan, having discussed with prosecution counsel (Mr McGuinniety), expressly told the judge: “…Mr McGuinniety and I have sorted out the matters already except camera 15.  In relation to camera 15, we don’t have any application to make but reserve our right to cross-examine on it.”

38. There was no suggestion that the police deliberately failed to obtain and/or destroyed evidence favourable to the applicant.  If it was the applicant’s case that the police had deliberately failed to obtain and/or destroyed evidence favourable to the applicant or that the absence of camera 15 would somehow mean that a fair trial was not possible, the matter could have been raised before the judge and properly dealt with.  There was in fact no suggestion at trial that without camera 15, the applicant was so prejudiced that a fair trial was not possible.

39. The victim described what had happened to him.  PC8028 had described what he saw on the CCTV footage of camera 15.  The appearance of the culprit was depicted in other CCTV footage.  Mr Kwan was happy to proceed with the case in the absence of the CCTV footage of camera 15.  Ms Yang is unable to demonstrate how the absence of CCTV footage of camera 15 would adversely affect the applicant’s case.

40. We were not persuaded that the absence of CCTV footage of camera 15 constituted a valid ground of appeal against conviction at all. 

41. There was no evidence that the police had conducted any DNA test on the face mask or any fingerprint examination on the bottle of baby powder after they were seized.  It is also speculative as to whether such test or examination could provide any useful evidence, one way or the other.  The defence could have asked for the chance to have the mask and bottle of baby powder examined if it was considered the examination could have assisted the applicant’s case, but there was no such request.

42. It is a matter for the police to decide how to investigate a crime and it is not for the court or anyone to dictate the police on such a matter.  The court acts on evidence and not its absence.  The only issue was whether on the evidence, the charge against the applicant had been proved to the required standard.

43. In our view, the absence of DNA and/or fingerprint evidence is not a valid reason to vitiate what is otherwise a proper verdict.

44. The judge, in convicting the applicant, relied solely on the confessions made by the applicant to PC10111 and DPC46178.  PC10111, having cautioned the applicant in respect of the offence in question, put a number of questions to the applicant and he answered those questions.  The applicant’s answers were subsequently recorded in the notebook of PC10111.  The applicant signed the notebook and wrote out a declaration to verify its accuracy.  The applicant’s answers clearly indicated that he had admitted the offence in question.

45. In the subsequent video-recorded interview, the applicant again made full confession to the offence to DPC46178.

46. The admissibility of the confessions in the notebook entries and the video-recorded interview were objected to.  Mr Kwan put forward detailed grounds of objection running to no less than 4 pages.  The judge heard evidence from police officers, the applicant and his sister on the circumstances in which the notebook entries and the record of the interview came into existence.  The judge gave reasons for rejecting the defence evidence on how his legal representation was cancelled and why he accepted that the notebook entries and record of the interview were voluntarily made.  In our view, the judge was entitled to reject the applicant’s contentions and ruled that the applicant’s confessions were given freely and voluntarily.

47. Ms Yang emphasized the discrepancies between the applicant’s confession and the prosecution case.  If the police officers were to coach the applicant, it is slightly surprising that they would coach him to say something that is inconsistent with the prosecution case.

48. The prosecution contended that the applicant had made a full confession to the offence, but it was not the prosecution’s case that everything said by the applicant during the interview was true.  The applicant could have tried to minimize his culpability by suggesting that he only intended to rob one mobile phone instead of a bag of mobile phones.

49. Only the applicant could tell when he bought the bottle of baby powder and there was no basis for suggesting that the prosecution case was that the applicant bought it a few days before.  It appeared that the applicant told PC10111 that the bottle of baby powder was bought several days before and when interviewed by DPC46178, he said it was bought several hours ago and he had forgotten where he bought it.  The applicant also claimed not to have read the whole of the entries in PC10111’s notebook.

50. It was for the applicant to decide what he wanted to tell the police officers.  Ms Yang’s suggestion that police officers on two occasions suggested two different answers to the applicant relating to the time he bought the bottle of baby powder was not convincing.  We did not agree with her suggestion that the answers given by the applicant during the video-recorded interview indicated that he had been coached.

51. The prosecution case rested entirely on the contents of the notebook entries and the record of interview.  The applicant clearly made a full confession to the offence in question and the judge was entitled to convict the applicant on his confession.

52. We would add this, though it does not determine the outcome of the appeal, we have had the opportunity of comparing the CCTV photographs with the appearance of the applicant.  The photographs seem to us clearly enough to show the applicant.  We think that in that regard, the judge took a view generous to the applicant.

53. We did not find the conviction against the applicant in any way unsafe or unsatisfactory and we therefore dismissed the application for leave to appeal against conviction.