The Queen v. Leung Yin

CACC001616/1983

[Exercise of judge's discretion to exclude prejudicial evidence.]

BETWEEN:

Coram: Roberts, C. J., Yang and Barker, JJ.A.

Date of Judgment: 6 April 1984

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JUDGMENT

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Roberts, C.J.:

1. The applicant seeks leave to appeal against his conviction for robbery.

2. At about 2 a.m. on the 17th May, 1983, a number of robbers entered a workers' dormitory at King's Road and robbed eight persons there of their belongings.

3. The only evidence against the defendant was his identification by one of the victims, Mr. SO Pui-san. The other victims were unable to make any identification. There was a conflict of evidence between Mr. So and the other victims as to the lighting conditions in the dormitory.

4. This was admittedly not a Turnbull situation, in that the victim had more than a fleeting glimpse of the defendant. It was, nevertheless, accepted by the Crown (in our view rightly) that the identification evidence was "not good".

5. No doubt recognizing the need for some supporting evidence, the Crown called witnesses to establish that valuables stolen in the robbery were found in the possession of OR Man-choi and AU Yuet-wing, who were sub-tenants in the same flat as the defendant, though they occupied separate cubicles. The only evidence of the relationship of the defendant to these two men was that they had met on two or three occasions when they had soup together, with their landlady. In his direction to the jury, the trial judge said -

"If you accept the Prosecution evidence mentioned, there is in my view evidence before you capable of supporting the identification evidence of SO Pui-sun and whether it does in fact support SO Pui-sun's evidence of identification is of course a matter of fact for your own decision. Such evidence cannot by itself prove the guilt of the accused but it is evidence of odd coincidence capable of showing that SO Pui-sun is not mistaken in his identification evidence.

You may ask yourself the question 'Does the fact that the three articles stolen during the robbery found after the robbery in the possession of two of three men who were residing in the flat together with the accused, although in different cubicles, satisfy you in all the circumstances that it in fact supports SO Pui-sun's evidence of identification?' It is for you to answer the question on all the evidence."

6. Counsel for the applicant argues that evidence as to the finding of the stolen property was not admissible; and that he had objected to its production but was overruled by the judge. In the alternative, he argues, if it was admissible, it's probative value was so small compared with its prejudicial effect that the judge should have exercised his discretion to exclude it.

7. The presence of these articles cannot be said to amount to recent possession of stolen goods by the defendant, since he is not shown to have been in possession of them at all. The judge makes it clear that such evidence cannot by itself establish guilt.

8. But can such evidence amount to supporting evidence of identification?

9. Undoubtedly, it raises a suspicion against the defendant; and it can be argued that it is an extraordinary coincidence that the property should have been found next to the cubicle of someone who has been identified as one of the robbers.

10. We think that the judge should have exercised his discretion to exclude it, because we feel that, in spite of the judge's warning, there is a real danger that the jury may have regarded it as probative of guilt directly and therefore have scrutinized the somewhat unsatisfactory evidence of identification with less care than they should.

11. Consequently, this is one of those occasions on which we consider that the conviction was unsatisfactory and that we should give leave to appeal and quash the conviction.

Representation:

Mr. Ming Huang (D.L.A.) for Applicant

Mr. K.B. Egan, Crown Counsel, for Respondent.