Lam Kwong-chuen v. The Queen

CACC000154/1980

-----------------

Coram: Huggins and McMullin, JJ.A. and Cons, J.

Date of Judgment: 27 March 1980

-----------------

JUDGMENT

-----------------

Huggins, J.A.:

1. This Appellant was convicted by a magistrate under section 33 subsection (1) of the Public Order Ordinance of having with him an offensive weapon, namely a home-made slasher, without lawful authority or reasonable excuse.

2. The appeal came on before Addison, J., who reserved the appeal to this court on the ground that there was an issue of law of public importance, that was whether the place at which the offence was alleged to have taken place was a "public place" within the meaning of the Public Order Ordinance. The learned Judge's attention was not drawn to section 32 of the Housing Ordinance and counsel before us has very properly conceded that the particular place was, under section 32, deemed to be a public place and she takes no point upon that. She has, however, pressed the ground of appeal that the identification of this Appellant was unsatisfactory.

3. The evidence was that a police officer noticed two gangs of men, one in the corridor of one resettlement block and the other in the corridor of another resettlement block. They were shouting at each other and some of them were waving weapons. He went to the floor above one of these gangs and looked over, and his evidence was that he identified this Appellant and his co-defendant as two of the men who were armed. He was eventually noticed by the gang and they tried to disperse. The officer rushed down and arrested three men, the two defendants who were eventually tried and a third defendant against whom the Attorney General did not proceed.

4. The first defendant was caught with a chopper actually in his hand. The present Appellant was not seen at the time of his arrest to have a weapon in his hand. He was told to squat down, as was the third man, and the officer then noticed that there was a weapon behind them. It is a fearsome-looking weapon, a long pipe with a rough blade welded on to the end. It is, in all, some four or five feet long.

5. The difficulty in this case, as we see it, relates to the identification. In the first instance, the evidence was unsatisfactory. The officer said that he was watching for some ten minutes: he then went and called for assistance, went back and continued his observation, and then eventually, as I have said, arrested these three men. He was asked about what he saw and one of his answers was that he saw the tops of the men's heads. He also was asked -

"So was not individual person you recognised but weapons being waved."

to which he answered -

"Correct."

This obviously required elucidation. It is unlikely that from that position, in all the circumstances, he saw nothing but the tops of their heads, but he was not, as he should have been, pressed further as to whether he could see any of their facial features. The punctuation of the record on page 7, in a passage which may relate to the possibility that the defendants were known to the witness from some previous occasion, is such that it is impossible to say exactly what was being recorded.

6. The second aspect is that the learned magistrate, in giving his statement of findings and reasons, clearly states his findings but does not clearly state his reasons. This court has said that it will not be hidebound by Turnbull (1976) 63 Cr. App. Rep. 132 but it is essential in a case where identification is important that great care should be taken to set out the material factors governing the identification. Here the learned magistrate neither set out the factors which made the identification possibly sufficient, nor did he indicate those which might have detracted from the identification, and we think it was necessary for him to do so. Turnbull is not, of course, confined to cases which have been described as "fleeting glimpse cases". It was itself a fleeting glimpse case and it may be that it is binding only to that extent, but the difficulties of identification are such that the guidelines indicated should generally be followed.

7. We think that in the present case both the evidence and the reasons and findings were inadequate and that it is impossible for us to uphold this conviction. The appeal is allowed, the conviction quashed and the sentence set aside.

27th March 1980.

Representation:

Miss A. Mok (Hampton, Winter & Glynn) for Appellant.

Alderdice for Crown/Respondent.