Lam Chau Hung and Others v. The Queen

CACC000146/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 146 OF 1974

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Coram: Briggs, C.J., Huggins & Pickering, JJ.

Date of Judgment: 22nd July 1974.

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JUDGMENT

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1. On the 29th May, 1973 there was a robbery at the August Moon Jewellery Company, the premises of which are in the shopping arcade of the Hilton Hotel. On the 16th June there was a second robbery at the New Universal Jewellery Company which is situated in the same arcade. These robberies resulted in the trial of the three appellants, LAM Chau Hung, CHU Man Fai and LAI Yau Wah. All three were convicted on both counts and all three have appealed against their conviction.

2. On the 12th July we dismissed the appeals of the first and second appellants and at the same time reserved the appeal of the third appellant for further consideration.

3. The evidence in each case was that there was a robbery by a group of armed men of whom the three appellants were members. In each case there were identification parades at which the appellants were picked out. So far as the August Moon robbery is concerned not only were the first and second appellants identified by persons who were in the shop at the time of the robbery but there was other evidence connecting the appellants with the crime. The first appellant made a statement confessing that he had taken part in this robbery which was admitted in evidence by the trial judge as being a voluntary statement and the fingerprints of the second appellant were found in the shop after the robbery. However, so far as the third appellant was concerned there was only the evidence of identification by the persons who were present in the shop at the time of the robbery, there was no other evidence connecting him with the crime. The evidence of identification came from two employees of the August Moon Jewellery Company who picked out the third appellant at an identification parade. Miss Yau, the first of the two witnesses testified that the person picked out at the identification parade was "similar" and "looked similar" to one of the persons she had seen entering the shop when it was robbed. Mr. Chan, another employee of the shop at the identification parade told the officer who was in charge of that parade that the third appellant was "similar" to one of the robbers. However, he did not point him out openly at the parade. He said this was because he was afraid to do so. The defence of the third appellant on this charge was an alibi. This was to the effect that on the afternoon in question he was in Kowloon with his fiancee on a shopping expedition. During that afternoon he became ill and attended a clinic. Evidence of this was given in great detail and witnesses were called by this third appellant to prove not only that he was on a shopping expedition but that he did attend a clinic. In the circumstances, we feel that it would be unsafe to allow this verdict to stand. Therefore the appeal of the third appellant on the first charge is allowed and the sentence imposed for that offence set aside.

4. In the second case, the New Universal Jewellery Company robbery, there was ample evidence of identification of the first and second appellants and, in addition, there was also the evidence of a confessional statement made by the first appellant and, again, the fingerprints of the second appellant were found in the premises immediately after the robbery. Again, the only evidence against the third appellant was of visual identification.

5. The six employees of the firm who were present at the time of the robbery in the shop all identified the third appellant as being one of the robbers at the identification parade. During the trial evidence was given on behalf of this appellant that a police party had raided the house of the parents of his fiancee and had removed some photographs of the appellant. It was suggested that the reason that this was done was that those photographs would be used to assist the employees of the New Universal Jewellery Company in their identification of this appellant. However, it transpires that this appellant had formerly been a constable in the Royal Hong Kong Police Force and also that he had a previous conviction, so the police must already have had in their possession his photograph. Five out of the six employees who gave evidence were asked whether they had been shown any photographs of this appellant before the identification parade and all five said that they had not been shown any photographs of this appellant before the identification parade and all five said that they had not been shown any photographs of him. In the circumstances, we think that the identification of the third appellant at the scene of the robbery was conclusive as to his guilt and his appeal on this charge (the second charge) is dismissed.

Representation:

A. Sedgwick (Gunston & Chow) for 1st Appellant. 2nd appellant in person.

Eddis (D.L.A.) assigned for 3rd appellant.

Alderdice, C.C., for Crown/Respondent.