HKSAR v. CHEN ZHIGANG

CACC 372/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 372 OF 2005

(ON APPEAL FROM HCCC NO. 193 of 2004)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  Nearly fourteen years ago, on 31 December 1992, a robbery took place at the 'Good Friends Karaoke' ('the premises') in Temple Street.  A knife and a weapon resembling a real handgun were used to effect this offence.  The four robbers, posing as customers, had been shown into 'Room 1' at the premises.  They were served drinks on a tray by a waiter.  Some time later the four men made their intentions clear when they held up members of staff as well as the customers on the premises at the time.  The victims were tied up, gagged and blindfolded and seven of them were robbed of their possessions.  The scene was described as chaotic.  After the police had arrived, they took away, amongst other things, the drinks glasses from Room 1.  It was on one of these that a fingerprint expert was able to find two identifiable marks.

2.  The applicant was arrested on 6 January 2004.  His fingerprints were taken and the prints from his right middle finger and left thumb were in due course found to match the prints left behind on the glass taken from Room 1 at the karaoke premises.  The applicant was formally rearrested on 19 February 2004 and the allegation of robbery was put to him in the course of a video interview.  The applicant denied having any knowledge of the robbery and he added that he had no idea where the 'Good Friends Karaoke' was.  He assumed that he must have been in Guangzhou at the material time because he had not left there to go anywhere.  He gave no explanation as to how his fingerprints had found their way onto the glass, merely saying that he did not know and stating that he had nothing more to say.

3.  At trial, the applicant did not give evidence.

4.  The applicant was convicted of the robbery on 9 August 2005 following a trial before Beeson J and a jury.  He was sentenced to 10 years' imprisonment.  He now seeks leave to appeal against conviction on a number of grounds.  These are contained in written submissions dated 16 August 2005, 30 August 2005, 4 July 2006 and 1 August 2006.

5.  Most of the matters raised by the applicant deal with trivial discrepancies in the evidence given by witnesses who were describing events which, by that time, had taken place over twelve years earlier.  The applicant's complaint that the judge failed to deal with significant inconsistencies, particularly concerning the two most important witnesses who were both waiters (PW 12 and PW 13), or had done so "ambiguously", is without foundation.  The contradictions which might have had some bearing on the reliability of the witnesses were dealt with in the clearest terms.  There is no justification for this ground of appeal.

6.  Perhaps a more important complaint, if it had carried any weight, was that the judge had failed to give proper directions about the fingerprint evidence and whether or not other unidentified fingerprints had been found at the scene.  The evidence given by an expert about other prints found at the premises was that he had found these to be worthless  for the purposes of comparison and the judge more than adequately dealt with this aspect of the case.  This ground is devoid of merit.

7.  A slightly different point made by the applicant in relation to fingerprints was that although the staff at the premises said that only clean glasses would be used to serve drinks ordered by customers, it would have still been possible for an old fingerprint to have been left behind.  In this regard, he stated in his written grounds of appeal:

"… It also caused the jury to overlook the possibility that I had left the fingerprint when I went to the subject karaoke for entertainment before the day of the crime.  It was one of the chief reasons why the jury found me guilty."

8.  Relevant also to this ground of appeal, the applicant stated in his most recent written submission that, as someone who did not live in Hong Kong, the name of the premises meant nothing to him but, if the police had shown him the photographs of these premises during his interview, he would have been able to recognise that he had earlier been there.  Coincidentally, he said, his fingerprints must have been left behind on a glass presumably because it had not been properly washed.  He maintained that it was only after he had decided not to give evidence that he was shown for the first time the prosecution's photographs of the premises.  This was at the outset of the trial.  This was, in our view, a blatantly untruthful submission.  The photographs were exhibited by the prosecution well before the applicant would have been due to give evidence and they were produced under the 'Admitted Facts' requiring his agreement.  This serves to illustrate, as the applicant himself accepts, that they were in the hands of the defence well before the close of the prosecution's case.  Amongst the copious grounds of appeal, not every one of which is it necessary to make reference to, there is no hint or suggestion that counsel for the defence acted incompetently or had given bad advice to the applicant that he should not give evidence.

9.  It hardly needs to be emphasised that it formed no part of the applicant's case at trial that he had visited the karaoke premises before.  More to the point, when dealing with the evidence before the jury, the judge invited their attention to the possibility that the washing-up process might have left fingerprints behind if this had not been carried out properly by saying that they should look "particularly carefully at the waiters' evidence as to the cleaning of the glasses, the likelihood of old prints being on the glasses".  Later, the judge reminded the jury about the expert's evidence that fingerprints could be ruined by "rubbing, wiping or cleaning".  There is nothing of any substance to any aspect of this ground.

10.  In a further ground, the applicant made reference to The Queen v Kwan Kwok-hing [1977] HKLR 159 and HKSAR v Chan Ming-ngan CACC 664/1997 presumably in the belief that these cases had some bearing upon his own case.  These judgments, both of which are attached to the helpful written argument provided by Ms Louisa Lai for the respondent, bear no relevance to the issues raised in the present case and they can be safely ignored.

11.  The applicant made an equally valueless point when asserting that not one of the "ten" civilian witnesses had been able to pick him out when he stood on the formal identification parades (held over ten years after the robbery).  From this, he suggested, it was "obvious" that he had not been present at the crime.  All that we need to say in regard to what is "obvious" is that it would have been asking a great deal of anyone, after such a length of time, to make any attempt at identification.  There is nothing worthy of consideration in this ground.

12.  The summing up was in all respects fair, balanced and comprehensive.  All of the grounds raised by the applicant are without foundation.  The application is therefore, dismissed.

13.  We have concluded, in the absence of any merit whatsoever in this application, and having heard the applicant's representations in this regard, that it is appropriate to make an order pursuant to section 83W of the Criminal Procedure Ordinance, Cap. 221, that 3 months of the time the applicant has spent in custody pending this hearing shall not be counted towards the sentence he is presently serving.