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Leung Fei Wah v Hksar

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date28 February 2006
Year2006
Citation[2006] 1 HKLRD 993; (2006) 9 HKCFAR 118
Judgement NumberFACC9/2005
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC000009/2005 LEUNG FEI WAH v. HKSAR

FACC No. 9 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 of 2005 (CRIMINAL)

(ON APPEAL FROM CACC No. 311 of 2002)

_____________________

Between :

LEUNG FEI WAH Appellant
and
HKSAR Respondent

_____________________

Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Ivor Richardson NPJ

Dates of Hearing: 17 February 2006

Date of Judgment: 28 February 2006

_____________________

J U D G M E N T

_____________________

Chief Justice Li :

1. I agree with the judgment of Sir Ivor Richardson NPJ.

Mr Justice Bokhary PJ :

2. I agree with the judgment of Sir Ivor Richardson NPJ.

Mr Justice Chan PJ :

3. I agree with the judgment of Sir Ivor Richardson NPJ.

Mr Justice Ribeiro PJ :

4. I agree with the judgment of Sir Ivor Richardson NPJ.

Sir Ivor Richardson NPJ :

5. The appellant was convicted in the Court of First Instance before Deputy Judge Toh and a jury on 5 counts of robbery and 1 count of indecent assault (Count 2) associated with the first alleged robbery. The incidents the subject of the robbery charges involved different victims who had advertised their flats or rooms for lease and they occurred on different dates.

6. The Appeal Committee gave leave to appeal limited to the conviction for indecent assault. The point in issue is whether the trial judge erred in directing the jury that, if they found the appellant guilty of robbery on Count 1, they could not find him not guilty of indecent assault on Count 2. While the other convictions and the sentences are not in question on this appeal, it is as well to add that the appellant was sentenced to 7 years’ imprisonment on Count 1 and 2 years on Count 2 reduced to 1 year for totality reasons, and by making sentences on the other 4 counts partly consecutive the appellant was sentenced to serve a total of 14½ years’ imprisonment.

7. The Court of Appeal dismissed an appeal against conviction on Counts 1, 2, 4, 5 and 6. The misdirection ground was not raised before the Court of Appeal but there is ample material from the trial for this Court to determine whether, as the appellant contends, substantial and grave miscarriage of justice has been done while the appellant remains convicted and sentenced on Count 2.

Counts 1 and 2: the facts

8. The evidence at trial of Madam Wong Yuen Mei (“Madam Wong”) was that she advertised her flat for renting; the appellant came to view the flat on 14 July 2000; in the course of the viewing and, after he said he liked the flat and she was inputting the mobile number he gave her into her mobile, he grabbed her around the neck, declared robbery, tied her hands with string and gagged her mouth with a towel, both of which he had brought along. She was pushed to the floor and her assailant hit her on the head and on the back with his hand. He searched her wallet and took money and credit cards. When she refused his demands for her pin numbers, he put his hand into her brassiere and at some point took off her bra, and tied it around her neck. He pulled her nipple twice and threatened to molest her if she did not comply. She responded by giving false pin numbers. The statement of agreed facts recorded that she sustained bruises over her right back and abrasions over both her wrist and ankle areas in the robbery. The appellant did not give evidence at trial. He made no admissions in his video/statement and denied ever being at the flat or knowing Madam Wong.

9. The substantial issue for the jury was whether Madam Wong had correctly identified the appellant as her assailant. Shortly after the incident she failed to identify him from his photo from amongst some 880 photos but did so at an identification parade held earlier on 18 May 2001, the day of the video interview. She said she could see his face clearly, because it was mid-afternoon and the lighting was bright, and she gave a physical description. She chatted with him for some minutes before she was assailed. She noted, she said, that her assailant had the Chinese character “wah” on his left forearm and a police officer gave evidence that he saw a tattoo with that character on the appellant’s left forearm.

10. The cross-examination of Madam Wong focused wholly on her identification of the appellant as her assailant and the reliability of her evidence in that regard. Indeed, before beginning the cross-examination itself counsel for the appellant said:

“Now, I want to make it quite clear to you from the outset that I’m not suggesting that you’re telling any untruths, and I’m not suggesting that you didn’t go through a terrible ordeal on 14 July 2000.”

There was no challenge to her account of the indecent assault charged or of the robbery itself. What was put to her, and denied, was that her identification of the appellant as the robber was mistaken. That was put on the proposition, which she denied, that she had previously met the appellant in Central when he wanted to collect a debt on behalf of somebody else, and 10 months later in the identification parade she had mistakenly identified him as the robber.

The judge’s directions to the jury

11. Beginning the summing up, the Deputy Judge noted that the real issue in the case was whether it was the defendant who was the robber and that it was not seriously disputed that an indecent assault of the victim of the robbery in Count 1 also took place. The Deputy Judge gave careful comprehensive directions on the identification issues and reviewed the relevant evidence.

12. The Deputy Judge appropriately directed the jury that the prosecution had to prove the particulars set out in each count. The particulars given for Count 1 identified currency, a mobile telephone, 2 credit cards and a bank card as the subject of the robbery. Dealing with Count 2 the Deputy Judge said:

“As you go down to the 2ndcount again, as I have said, it has indecent assault and the particulars of the offence. As far as the particulars are concerned, the only matter which really concerns you is whether it was the defendant who committed this indecent assault. The fact that Wong Yuen-mei was indecently assaulted has not been seriously challenged, and after I have instructed you on the law, it is a matter for you to decide if there was an indecent assault, and if there was, then you should have no difficulty in finding that Wong Yuen-mei was indecently assaulted and the only issue is whether it was the defendant.”

But, more specifically, she continued:

“Now, you must consider the case against and for the defendant on each count separately. That means, if you find the defendant guilty or not guilty on one count it does not necessarily follow that you have to find him guilty or not guilty in the other counts. You have to consider the evidence in each count separately and reach a decision on each count separately, except in relation to Counts 1 and 2, because the evidence for Counts 1 and 2 are totally tied in that it is just one victim, and that is Wong Yuen-mei, so it would be obvious that if you find the defendant not guilty on Count 1, he cannot be found guilty on Count 2 – he would be found not guilty on Count 2, and similarly, if you find him guilty on Count 1, then again it would be obvious to you that you cannot find him not guilty on Count 2. It would have to be a similar verdict.

But apart from that, members of the jury, you have to look at each count separately. One matter between Counts 1 and 2 is that Count 1 charges robbery and Count 2 is indecent assault, so after I have directed you on the law relating to robbery and indecent assault, it is still for you to decide if there was a robbery at the end of the day and if there was indecent assault….”

And,

“Now, in this case, the defence does not challenge that Madam Wong was assaulted in the circumstances as she had described to you by the robber, and I think you will have no difficulty at all in concluding from her evidence that the robber who assaulted her by twisting her nipple intended to assault her in that way, and that this act, this assault, is capable of being considered by right-minded persons as indecent, and that the robber had intended to commit such an assault on Madam Wong. So I do not think you will have any difficulty in finding that an indecent assault, according to the law, did take place, and the only matter you have to decide is whether the defendant was the robber and the person who indecently assaulted Madam Wong.”

Then, she summarized her assessment of the case in this way:

“…. So, in Count 1 you have her identification of the defendant and you have the character “wah” on the forearm, which you may consider may help you, but it is a matter for you. In Count 2 similarly, as I have told you, it really depends on the evidence of Madam Wong, and so you again must assess her evidence and consider if she had made the correct identification in this case.”

As well, the Deputy Judge gave standard directions that in respect...

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