The Queen v. Lau Ki Cheong

CACC000014/1988

BETWEEN

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Coram: Hon. Kempster, J.A., Power & Penlington, JJ.A.

Date of Hearing: 18th May 1988

Date of Judgment: 18th May 1988

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J U D G M E N T

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Power, J.A.:

1. The applicant in this matter' faced a charge that he did on the 7th of March 1987 at No.33 Kwong Ming Street, ground floor, Walled City, Kowloon, robbed one NGAI Ngok-shing of a gold necklace. He was found guilty after trial of that charge and sentenced to imprisonment for five years and now appeals against that conviction. The sole ground of appeal argued by Mr. Alderdice who appears for him is the failure of the trial judge to observe the guidelines in R. v. Turnbull⁽¹⁾. This applies only to the second of the two witnesses who identified the applicant.

2. The evidence in the matter was given firstly by Mr. CHAN Wan-kwok the proprietor of the Kwong Hing Plastic Factory. Mr. Chan said that on the day in question at about 6 p.m. he was standing in the entrance of his factory when he was approached by a man in his twenties who asked the way to Lung Chun Road. He said the man was wearing a green jacket and European trousers and was carrying a plastic bag. It should be noted that this evidence as to a green jacket and the carrying of a plastic bag was evidence which was repeated by the later identifying witness and that both witnesses identified both the coat and the plastic bag after the incident when they had been recovered and seized by the police. The witness said that he was able to see the man clearly and that he gave him certain directions after which the man walked off. He said that after the man was allowed inside his factory he heard a cry  "snatching" and turned and found the man holding a bread knife in one hand in the course of rushing out of the factory. He said he tried to grasp him but was unable to do so and that the man then ran off and that he chased him along several streets, at one point losing sight of him for abut 5 seconds, until he eventually went into a taxi  He said that he was able to stop the taxi from moving off and that the man then ran off again and he continued the pursuit until finally with the assistance of a friend, i.e. P.W.2, he was able to apprehend the man. He said that at the time of apprehension the man was still holding the plastic bag to which I have referred. He also identified the green jacket worn by the man as one similar to the one worn by the man who he had seen at his factory.

3. The trial judge was satisfied that this evidence was clear and consistent and had no doubt that Mr. Chan was a witness of truth. The evidence of the second witness, Mr. Chan's friend, is not really material in this appeal as he came into the matter only at the time shortly before the apprehension of the man wearing the green jacket and it is common ground that the man he saw in the taxi and the man apprehended were one and the same.

4. The third witness was the arresting constable and again his evidence is not of any consequence in this appeal.

5. The fourth witness was the employee from whom the necklace was snatched. He said that when working on the day in question at about 6 p.m. he felt a pulling force in his neck and felt that his necklace was then being snatched from him. He said that he turned round, saw a man holding a knife trying to strike him, dodged and at the same time shouted "Snatching'". He said that the man was also holding a plastic bag and he identified the bag that was produced in court, which had been seized from the ground at the time when the man was apprehended, as the plastic bag which he had seen in the factory at the time when his necklace had been snatched. He also said that the man was wearing a green jacket and he identified the green jacket which the man apprehended had been wearing as the one worn by the man who snatched his necklace. This witness did not give chase but remained in the factory and went later to a police post where he identified the defendant as the man who had snatched his necklace.

6. Mr. Alderdice does not suggest that the Turnbull guidelines should have been applied in the case of the evidence of P.W.l. He however does suggest that they should have been followed when assessing the evidence of P.W.4.

7. Before we turn to deal with this submission we think it appropriate to set out the finding of the trial judge with regard to the evidence of the defendant who told the court that he had been quite. innocently going about his business and was boarding a taxi to go on a shopping expedition when he was mistakenly identified as the robber. The trial judge said that, having observed his demeanour very carefully, he impressed him as a witness who was ready to tell more lies as he was giving evidence. He was left in no doubt that he should accept the evidence of the prosecution witnesses as truthful and reject the evidence of the applicant as untruthful.

8. Mr. Alderdice submits, that the conviction is unsafe and unsatisfactory as the Turnbull guidelines were not, as they should have been, applied to the evidence of P.W.4, and clearly his evidence was in the mind of and was relied upon by the trial judge when he arrived at his verdict.

9. P.W.4 was very much a subsidiary witness. The conclusive evidence was clearly that of the first prosecution witness. It was, as the trial judge found, clear and believable, and was amply sufficient to warrant the recording of a conviction. While it may be that the Turnbull guidelines should have been applied to the evidence of P.W.4 we have no doubt given the strength of the evidence of P.W.1. and the fact that both witnesses identified the green: coat and the plastic bag that the conviction was, nonetheless, a safe and satisfactory one and the application is therefore dismissed.

(1) [1977] Q.B. 224

Representation:

Mr. A.A. Bruce (Crown Prosecutor) for the Respondent.

Mr. Gary Alderdice (Chung, Kwan, Chan & Evans) for the Applicant.