IN THE COURT OF APPEAL
1995, No. 236
Coram: Hon Power, V.-P., Mortimer and Mayo, JJ.A.
Date of hearing: 12 March 1996
Date of judgment: 12 March 1996
J U D G M E N T
Mayo, J.A. (giving the judgment of the Court):
1. The applicant seeks leave to appeal against his conviction for robbery. The robbery occurred on 9 May 1990.
2. The first prosecution witness PW1 who was a student at the time was at home with his younger brother. The door of the premises wasopen and the metal gate was closed but not locked. PW1 saw two men in the flat each holding a chopper. They said that they were robbingthe premises and told him and his brother not to make any commotion. They then proceeded to ransack the flat and take the articlesreferred to in the charge.
3. For a short period he was ordered to lie down and a towel was placed over him. However according to him he did have an opportunityof seeing the robbers face to face. The men escaped. A report was made to the police.
4. Nine days after the incident PW1 was invited to inspect an album containing photographs of men. He identified a photograph of theapplicant as being the photographic image of one of the perpetrators of the robbery.
5. Approximately two months later he attended an identification parade and picked out the applicant.
6. It is common ground that the only evidence against the applicant is PW1’s identification of him.
7. When this case came before us an application was made pursuant to section 83V of the Criminal Procedure Ordinance to admit additional evidence. The evidence which it was sought to admit was the expert evidence of Dr Paul Cheung an ophthalmic specialist.We dismissed this application as a conscious decision was made by counsel not to seek to introduce this additional evidence at thetrial. Counsel’s decision not to call Dr Cheung appears to have been a rational decision and certainly could not be characterisedas flagrant and incompetent such as was referred to in The Queen v. Rodolpho de los Santos 2 HKLR 136.
8. District Judge Muttrie in his Reasons for Verdict considered the evidence which was before him on whether the applicant had beenwearing spectacles at the time of the alleged robbery. He also considered the implications of a robbery offence being perpetratedby someone whose visual faculties may be impaired.
9. He was however satisfied at the appropriate level that the applicant had indeed been one of the robbers who entered these premises.He was satisfied of this after warning himself fully of the dangers attendant upon accepting identification evidence.
10. We see no reason to interfere with the judge’s findings. This application is dismissed.
Mr F. Veltro for Crown Prosecutor
Mr Wilson Chan (DLA) for Applicant