THE QUEEN v. YIU YUEN SANG

IN THE COURT OF APPEAL

1986, No. 437
(Criminal)

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JUDGMENT

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Silke, J.A.:

1. The App1icant Yiu Yuen Sang was tried before Judge Cameron in the District Court on two charges of robbery. At the conclusion of the prosecution's case he was acquitted on the second charge. He was convicted on the first at the end of the trial.

2. The Applicant was sentenced to a period of 5 years' imprisonment. He originally sought leave to appeal against both conviction and sentence but has today abandoned the application in respect of sentence.

3. It was the prosecution's case that the Applicant was the driver of taxi DE4997. At about 11 o'clock in the evening of the 19th April, he picked up a fare and, in the course of driving her, he robbed her. The Applicant was not the owner of the taxi but was the person who drove the taxi on occasions.

4. The owner of the taxi DE4997 gave evidence. She said she had two drivers, she always used the same two drivers and the Applicant was one. He drove the shift from 4:00 p.m. to 4:00 a.m. His taking over of the taxi was usually done in Hung Wo Street in Tsuen Wan and, on the 19th of April, she had seen the taxi handed over to the Applicant at about 4 o'clock in the afternoon.

5. The victim of the robbery was unable to identify the person who perpetrated it but she did remember and give evidence of the taxi number.

6. The Applicant went into the box and his evidence was basically alibi. He said that, having taken over the taxi, he re-joined friends in a billiard saloon at about 5:15 p.m. that evening. They suggested he took the day off which he then did. He went on to have dinner with them but before that, he paged one Yuen Sai Ching to act as his substitute driver. He knew Yuen's paging number but not his actual address and, after Yuen arrived at the billiard saloon, he handed the taxi over to him. The normal handing back after work was by leaving the taxi in a street with the keys on top of one of the wheels.

7. The Applicant described the course this evening took as his having played snooker with the two friends, Wong Wai Man and Fong Ming, going on for dinner and going on to a nightclub. Their sojourn together ended at about half past four in the morning. As we have said there was evidence that the robbery took place at about 11:00 p.m.

8. He went on that he had attempted to find Yuen Sai Ching but had been unable to do so. He did not give evidence of any attempt to find either Wong or Fong. In any event none of the three persons were called in the course of the trial.

9. In his "Decision”, which we take it as being the Reasons for Verdict, and which was dated the 12th of September., the conviction having been on the 13th of August, the trial judge, having considered in full the evidence of both the Crown and of the defence said at page 8 - and of this there have been various complaints made by Mr. Tse who appears for the Applicant in this Court -

"Section 65D of the Criminal Procedure Ordinance Cap.22l concerning notice of particulars of alibi does not apply to the District Court but where as in this case the Defendant was legally represented at an early stage a Court would expect a defence of alibi to be raised before the trial got under way to enable the Prosecution to investigate it. It was not raised on plea day 30th June when Defendant was represented by Counsel. It was not raised by Mr. Chang Huan when the case was called before me. There was no suggestion that the Legal Department had ever been informed that a defence of alibi would be put forward. Added to the fact that alibi was raised at the last possible moment the fact that the Defendant did not call in support WONG LAI MAN and for FONG MING or anyone else in whose company he said he had been from shortly after 4 p.m. on 19th April until 4:30 a.m. on 20th April and whom apparently would have been available to give evidence as it was only the substitute driver the Defendant said he could no longer trace I concluded that the alibi was a fabrication and the sole reason for the fabrication was to deceive the Court."(Emphasis supplied)

10. The second ground of appeal relates to the immediately following sentence where the judge went on:

“Having found that the alibi was a fabrication I was satisfied beyond reasonable doubt that the Defendant, was the driver of taxi DE4997 ..... and that the Defendant was the robber.”

11. Mr. Tse has referred us to six points which, he says, arise from that first portion quoted. It is true that section 65D does not, as legislation presently stands, apply to the District Court. In Choi.Nai Yin v. The Queen the Court of Appeal said:

"We can see no logical reason why notice of particulars of alibi and of the witnesses to it should not be given in the District Court in the same or similar way as in the High Court.”

12. The judgment went on that:

“…… this would be for the benefit of the accused so that he could avoid allegations of last minute fgbrication.”

13. We were informed then, in 1981, that legislation was contemplated. It would appear that that legislation is still pending.

14. We take the view that the matters enumerated by the judge in the passage to which we have made reference were simply comments, and legitimate comments, upon a very late produced alibi which he eventually considered to be a late fabrication. The comments were factually correct though Mr Tse says that the reference to "no suggestion" that the Legal Department had ever been informed of the alibi was speculation on the part of the judge there being no evidence to support it. We think him to be entitled to make that comment. There was equally no suggestion by the defence that such information had been given.

15. Certainly, if the judge is satisfied that an alibi produced is a late fabrication, he is entitled to reject it though we are aware, bf course, that the burden of disproving an alibi lies upon the prosecution, there being no burden to prove it resting upon a defendant.

16. The conclusions of the trial judge where he said that, having found the alibi was a fabrication, he came to a finding of guilt has caused us some concern. We think that this passage could have been more happily phrased. But having considered the way in which the judge set out and gave consideration to the whole of the evidence in the case and the manner of his rejection of the alibi, we considered that he was really saying in that passage that he did not find the Defendant to be a credible witness.

17. The rest of the prosecution evidence was circumstancial and the judge was entitled upon it to consider that there was an irresistible inference raised that the Applicant was the robber.

18. In those circumstances, we do not think ourselves called upon to interfere and the application will be dismissed.