The Queen v. Li Kwok and Another

CACC000167/1984

BETWEEN

Coram: Sir Alan Huggins, V.-P., McMullin, V.-P. & Li, J. A.

Date of Judgment: 2nd August 1984

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V.-P. :

1. LI Kwok was the third of three Defendants indicted for robbery on two counts of an indictment containing five counts. He was concerned in counts 2 and 5 only. Each of those counts alleged what might reasonably be described as piracy on the highway: a motorist was driving along about his lawful business when he was rammed by another car, his vehicle boarded and himself robbed. After the second robbery the robbers drove off in the victim's car with the victim in the back seat. While one of the robbers was driving the car he - whether deliberately or not is immaterial - drove it into a third motor car. Two of the robbers. alighted, but when police motor-cyclists came on the scene the robbers drove away. A high speed chase ensued. When the robbers eventually stopped, two men jumped out of the car and escaped but the 2nd Defendant was caught at the wheel. He pleaded Guilty to the four counts laid against him.

2. The judge correctly told the jury that the real crux of this case is the question whether it has been proved that the 1st Defendant or [the 3rd Defendant] or both was involved in either robbery". At identification parades the victim of the first robbery identified all three Defendants. The victim of the second robbery similarly identified the 3rd Defendant. The driver of the third car, which was rammed, made a hesitant identification of the 3rd Defendant, but this was not much relied upon by the Crown and the judge directed the jury to ignore it altogether.

3. That was all the evidence against the 3rd Defendant and the judge carefully directed the jury about the risk of mis-identification. Nevertheless the only real substance in the application of the 3rd Defendant relates to the identification issue. His complaint that the jury reached their verdicts so quickly that they could not have given proper consideration to the evidence appears to be founded in part upon a false premiss of fact and in any event is not one which we could countenance. His further complaint that a statement of the witness LAU Yan-kit was wrongly admitted in evidence is also based upon a false factual premiss.

4. The 3rd Defendant contended before us that "the identification parade was not a fair one", although the judge expressly told the jury that Chief Insp. Carter's conduct of the two identification parades "has not been criticised in any way". There are two complaints now made, one relating to the appearance of those on the parade and the other to the possibility that the witness LAU Yan-Kit saw the 3rd Defendant in the police station before he was called on to the parade, so that the value of the identification which followed was uncertain.

5. The first of these complaints was itself based upon three matters. It was said that the 3rd Defendant had been in custody for two days before the parade and was not given an opportunity to wash or clean himself up before the parade: as a result he looked tired and unkempt and stood out among the actors. Then it is said that some of the actors were shorter than the 3rd Defendant, and finally it is said that the other actors were not required to divest themselves of their watches and other "adornments", so that once again he stood out among the actors.

6. The Chief Inspector did not recall whether the 3rd Defendant looked tired but said that he would have noticed it if his condition had been particularly remarkable. As to the height of the actors, the Chief Inspector said that the 3rd Defendant first complained of a difference in height after a witness other than Mr. Lau had identified him. He accepted that four of the actors were slightly shorter than the prisoner and accordingly he asked the 3rd Defendant whether he would be agreeable if everybody on the parade sat down. The 3rd Defendant agreed to this and the parade proceeded. Much was made before us of the fact that when a second group of parades was held for the 1st and 2nd Defendants the actors were instructed to remove their watches, their "belongings" and their shoes. The Chief Inspector was not cross-examined about this and there is no reason to believe that the 3rd Defendant was outstanding on account of the absence of such articles. The 3rd Defendant was permitted, at his request, to change clothing with one of the actors, although he chose to retain his own shoes. We were not persuaded that the identification was suspect on account of any gross dissimilarity in the appearance of the participants in the parade.

7. The second complaint was that the identification was unsafe because of the risk that one of the two identifying witnesses (Mr. Lau) was shown to have been in the police station under circumstances in which he might have seen the 3rd Defendant before the parade. He himself said that for 20 minutes after his arrival at the police station he was sitting in a corridor outside the Sub-Unit Commander's office before being conducted into that office to wait with some of the other witnesses. The first parade was held shortly before noon. It would seem that, at the time when Mr. Lau was sitting in the corridor, the 3rd Defendant was confined in the cells some distance down that same corridor. There was no evidence that it was possible for Mr. Lau to see into the cells and, of course, no evidence that he did see the 3rd Defendant. Just before the first parade was held the 3rd Defendant was led along the corridor to the Duty Room, where the parade was to be held. That took him past the Sub-Unit Commander's office but, again, there is no evidence that the door of that office was open or that Mr. Lau saw him going past. When the parade was lined up, the Chief Inspector sent for the first witness. After six witnesses had been on the parade, the "leading-in constable" was directed to fetch Mr. Lau at 13.52 hours. It then transpired that Mr. Lau had gone off for lunch and thereupon some of the actors asked to go to the lavatory. The 3rd Defendant also indicated his desire to go. At this point Mr. Lau returned, but all who wished were led to the toilets, in the direction opposite to that in which the Sub-Unit Commander's office lay. There is nothing to suggest that Mr. Lau saw the 3rd Defendant going to or from the toilets and the Chief Inspector did not see Mr. Lau in the corridor. When everyone was in place, Mr. Lau was brought in to the Duty Room and confidently identified the 3rd Defendant after only three seconds.

8. The judge very carefully warned the jurors of the dangers involved in accepting the evidence of identification and, having implicitly reminded them of the possibility that Mr. Lau might have seen the 3rd Defendant in the police station before the parade, told them that if they found any reasonable possibility that Mr. Lau's identification of the 3rd Defendant at the parade was in any way assisted by outside circumstances, they should reject it. We were satisfied that the possibility that Mr. Lau saw the 3rd Defendant in the police station, before the parade was, on the evidence, so remote that it was not wrong for the judge to leave the evidence to the jury or for the jury to act upon it. The direction was a fair one and we saw no ground upon which we ought to interfere.

2nd August 1984

Representation: