Wong Ching Wai v. The Queen

CACC000181/1979

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Coram: Roberts, C.J., Huggins, JA & Yang, J.

Date of Judgment: 12 July 1979

[Identification evidence]

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JUDGMENT

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Roberts, C.J.:

1. On the 12th of July, the appellant sought leave to appeal against his conviction on one charge of robbery in the District Court. We gave leave to appeal against conviction and quashed the conviction. We announced that we would give our reasons later, which we now do.

2. The appellant was originally charged in the District Court with four counts of robbery and one of blackmail.

3. At the close of the Crown case, the trial judge ruled that the appellant had no case to answer on four of the five charges but found that there was evidence upon which a properly directed jury could convict the appellant on the third charge, which was of robbery.

4. On the 5th of July of last year, Mr. Leung Tin-chau, who is a butcher, opened his shop at about 6.30 in the morning. He then left the shop and went to his office, which is in a cockloft very close to the shop.

5. As Mr. Leung was climbing the staircase towards the office two men came from behind him and threatened him with knives. They forced him to open the door to the cockloft and made him open the safe which was inside. Mr. Leung opened the safe and handed over to the two men about $3,500 in cash, which was inside the safe. He was then bound and gagged by the two men, who took the money and left the premises.

6. About four months later Mr. Leung attended an identification parade, at which the appellant was present. Mr. Leung however failed to point out the appellant on that occasion. He explained his failure to do so by saying that he had thought that he was being asked to identify those responsible for blackmailing him and not the persons responsible for the robbery in question.

7. However, during the trial Mr. Leung did identify the appellant at the dock. This identification did not emerge as part of the Crown's case in examination-in-chief but during the cross-examination of Mr. Leung by counsel for the appellant.

8. No doubt the Crown, entirely properly, did not seek to obtain as part of its case a dock identification of the appellant, since the Crown knew that Mr. Leung had failed to identify the appellant at the identification parade the previous October.

9. It is not disputed by the Crown that the only significant evidence against the appellant is that of his identification by Mr. Leung. It was therefore incumbent on the trial judge, bearing in mind the principles set out in Turnbull's case, to approach this evidence with the greatest caution.

10. Counsel for the appellant advanced five main grounds of appeal, three of which do not seem to us to be of substance.

11. The first was that the judge failed to dismiss the case against the appellant at the close of the Crown's case, and that he was wrong in law to reject a submission that there was no case to answer.

12. The general principles which should guide a Court in dealing with the submission of no case were set out in a practice direction issued by the Divisional Court in 1962, which is to be found at paragraph 575A of the 39th Edition of Archbold. This direction has been followed by both the Full Court and the Court of Appeal in Hong Kong.

13. According to this direction, a submission of no case should be upheld - (a) when there has been no evidence to prove any essential element in the alleged defence or (b) when the evidence produced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

14. In our view, it would have been open to a reasonable tribunal to have convicted, if properly directed, on the basis of the evidence adduced at the close of the prosecution case.

15. It was submitted to us that this general statement of principle has been modified, if the main item of evidence is identification, by R. v. Turnbull⁽¹⁾.

16. At p.138 Widgery, L.C.J. observed as follows:-

"When in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes on to support the correctness of the identification."

17. This passage from Turnbull's case does not, in our opinion, affect the general principle set out in the direction to which I have referred. Lord Widgery appears to us to be doing no more than saying, in effect, how the practice direction will operate where identification is the main issue - i.e. if the quality of the identifying evidence is poor, that evidence would be so manifestly unreliable that no reasonable tribunal could safely convict upon it.

18. The second ground was that it was unsafe for the judge to rely on a dock identification of the appellant by Mr. Leung in view of Mr. Leung's failure to identify the appellant at the police identification parade in October. It was further objected that the judge should not have accepted without further enquiry the explanation given by Mr. Leung for his failure to identify the parade.

19. We cannot say that we think that the trial judge was wrong in giving some weight to dock identification of the appellant. Nor can we say that he was wrong in accepting Mr. Leung's explanation of his failure to identify the appellant at the police identification parade. Both were findings of fact with which it would be wrong for us to interfere.

20. A third ground of appeal was based on a passage from the trial judge's judgment which read as follows:-

"As it is however the second accused's evidence concerning his illness on the 5th of July stands utterly unsupported, and his purported reasons for being able to establish the date of that alleged indisposition are so manifestly unsatisfactory that they do not maintain a reasonable doubt in his favour."

21. It is said that this is a misdirection to himself by the judge on the onus of proof.

22. Certainly, the choice of words of the trial judge was an unfortunate one but it must be remembered that he was here dealing with the defence of alibi put up by the appellant, which the judge firmly rejected.

23. It cannot be said, however, that the judge was under misapprehension as to the general principles which govern the burden of proof. Two paragraphs later in his judgment he expresses himself as being satisfied beyond a reasonable doubt that Mr. Leung was correct in his identification of the appellant as a participant in the robbery committed on the 5th of July, 1978.

24. There remain however two further grounds of appeal of a substantial nature which, taken together, persuaded us that it would have been unsafe to have upheld the conviction.

25. The first ground was that the judge was wrong in saying that the identification of Mr. Leung must either have been accurate or the result of perjury; the second that it was unsafe for the judge to assume, as he did, that, because the appellant had seen Mr. Leung on three or four occasions at Mr. Leung's shop before the robbery, therefore, Mr. Leung must have seen the appellant before the robbery so that this was the case of recognition by Mr. Leung of somebody already known to him, as distinct from identification of a stranger.

26. The trial judge comments as follows in the course of his judgment:-

"Accordingly when P.W.1 identified in Court the second accused as one of the robbers, he was not indicating a stranger, but a man whom he knows by sight. It follows therefore that the risk of a mistaken identification is pro tanto reduced, and if P.W.1's evidence is untrue, it must be, rather, a deliberate false identification. I do not personally regard P.W.1 as a man who would lend himself to perjury, as distinct from honest mistake."

27. It is dangerous for a trial judge to exclude the possibility of a mistake in cases of identification. An entirely honest witness may very well be unreliable in identifying an assailant.

28. The second ground, which has caused us the most concern, is the assumption by the trial judge that, because there was evidence given by the appellant himself that he knew Mr. Leung by sight, the complainant must also have known the appellant by sight.

29. We do not wish it to be thought that we are excluding the possibility of a judge coming to the conclusion that, because A knows B well by sight, B must necessarily also know A by sight. It depends entirely on the circumstances.

30. If for example A had been buying his daily newspaper from B for three years it is reasonable to assume that in those circumstances both that A would recognize B and that B would recognize A.

31. However, in this instance, the evidence was only that the appellant had visited Mr. Leung's shop on three or four occasions. It is dangerous to infer from this, as the trial judge did, that the main prosecution witness Mr. Leung must have known the appellant by sight before the robbery.

32. It is clear, from an examination of the judgment, that the judge attached considerable importance to his finding that Mr. Leung was identifying somebody whom he already knew by sight. At the bottom of p.57 of the record the judge comments:-

"In the first place, it appears from the evidence given by the second accused himself, that he knew P.W.1 by sight, (and it reasonably follows, vice versa), because he had visited P.W.1's meat shop on a number of occasions."

Shortly afterwards the judge comments:-

"Accordingly, when P.W.1 identified in court the second accused as one of the robbers, he was not indicating a stranger, but a man whom he knows by sight."

Shortly afterwards the judge continued:-

"Bearing in mind the additional information supplied by the second accused in his evidence that he and P.W.1 were known to each other by sight, the identification of the second accused as being one of the robbers in itself represents a very strong case against the second accused."

33. It should be noted here that the second accused (the appellant) did not say that he and Mr. Leung were known to each other by sight, only that he (the appellant) knew Mr. Leung by sight.

34. Although this cannot be a matter of certainty, the frequent references in the course of his judgment to the fact, as he found it, that Mr. Leung knew the appellant by sight before the robbery, suggest that the judge must have given substantial weight to this factor in his decision. We cannot be sure that, if he had not made this assumption, he would necessarily have come to the same conclusion.

35. There is one further aspect of the judge's finding about which we should comment.

36. On page 58 of the record the judge comments:-

"Furthermore, it is in my view not without relevance that P.W.1 has correctly identified the first accused as one of the robbers. (I can assume that by reason of the first accused's plea of guilt to the charge). Because P.W.1 is correct in his identification of the first accused, it does not necessarily mean that he is correct in his identification of the second accused, but it does at least lend some force to the value of his evidence."

37. This seems to us to be a dangerous proposition. Where identification is in issue, the evidence against each person whose identification is in question must be carefully sifted by itself. It cannot be said that, because a witness' accuracy in identification in relation to one suspect is beyond doubt, this lends any strength to his identification of a different suspect, at least in the absence of evidence of any relationship between the two persons identified.

38. Taking into account the various criticisms which have been made in relation to the manner in which the trial judge approached the question of the appellant's identification, we were of the opinion that it would be unsafe to uphold this conviction. Consequently we gave leave to appeal against conviction and quashed it.

Representation:

A. Huggins (D.L.A.) for appellant

Cross for respondent

(1) 63 C.A.R. 132.