The Queen v. Wong Ting-kei

CACC000189/1988

BETWEEN

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Coram: Hon. Power, J.A., Liu & Macdougall, JJ.

Date of Hearing: 3rd August 1988

Date of Judgments: 3rd August 1988

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J U D G M E N T

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Power, J.A.:

1. Originally the applicant faced seven charges of robbery in the District Court. He was, in the outcome, found guilty on only the last of those charges as Sanders, D.J. ruled that the confessional statement which he had made implicating him in the other six should not be admitted. There being no evidence of identification from the victims in those robberies the court returned verdicts of not guilty in each case. On the seventh count the applicant was convicted upon the basis both of a confessional statement and of identification by the victim.

2. The Statement recorded that when the arresting officer put the circumstances of the offence to him he replied "Seventy dollars were taken by me. Understand." He went on in answer to questions to say. "I snatched $70 for buying food for eating and the chopper was thrown into a litter bin."

3. The offence occurred at 8.30 a.m. but it took place on a stairway which was not, except for the landings, very well lighted. The trial judge had this very much in mind when he made his assessment of the evidence of the victim. He said:

"I gave careful consideration to P.W.7’s evidence and in deciding what reliance I should place on her evidence of identification of the defendant as the robber I kept in mind what was said by the Court of Appeal in Turnbull’s case and warned myself of the special need for caution before convicting in reliance on the correctness of her identification, and kept in mind the guidelines mentioned in that case.

I found that P.W.7 was an honest, intelligent and reliable (illegible) evidence was, and I believed it, that she saw the robber coming up the stairs from the ground floor to the mezzanine floor where she was collecting her mail."

He went on to say that upon the basis of that evidence and of the cautioned statement he was satisfied that the charge had been proved beyond reasonable doubt.

4. In the Grounds of Appeal which the applicant drafted himself he suggested that there were doubtful points in the police testimony. He has not, however, indicated what any of those points were.

5. He suggested the trial judge should have had doubt and given the benefit of doubt to him. The $70 for buying food for eating and the chopper was thrown into a litter bin."

6. The offence occurred at 0.30 a.m. but it took place on a stairway which was not, except for the landings, very well lighted. The trial judge had this very much in mind when he made his assessment of the evidence of the victim. He said:

"I gave careful consideration to P.W.7's evidence and in deciding what reliance I should place on her evidence of identification of the defendant as the robber I kept in mind what was said by the Court of Appeal in Turnbull's case and warned myself of the special need for caution before convicting in reliance on the correctness of her identification, and kept in mind the guidelines mentioned in that case.

I found that P.W.7 was an honest, intelligent and reliable witness. Her evidence was, and I beleived it, that she saw the robber coming up the stairs from the ground floor to the mezzanine floor where she was collecting her mail."

He went on to say that upon the basis of that evidence and of the cautioned statement he was satisfied that the charge had been proved beyond reasonable doubt.

7. In the Grounds of Appeal which the applicant drafted himself he suggested that there were doubtful points in the police testimony. He has not, however, indicated what any'of those points were.

8. He suggested the trial judge should have had doubt and given the benefit of doubt to him. The fact of the matter was, however, that the trial judge, after carefully considering all of the relevant matters, had no doubt as to the guilt of the applicant.

9. He also complained that there was no identification parade. This is true. However, this occurred because the victim had seen him and identified him on the street at the time of his arrest. In such circumstances no identification parade was, for obvious reasons, conducted.

10. The applicant goes on to suggest that the victim did not in face identify him but recognised some clothing he was wearing as being similar to the clothing worn by the robber and that she therefore said that he must be the robber. This suggestion is not correct. The trial judge in his findings said:

"The victim said the clothing the robber wore was similar to that which the defendant was wearing next morning. It was not because of that similarity that she had identified the defendant. She had identified him because of his features and actions."

11. The last two matters raised by the applicant are very much matters of fact which were for the trial judge to make his determination upon and we do not consider it is necessary for us to deal any further with them in all of the circumstances nothing has been raised before this court which gives us any doubt as to the correctness of the decision reached by the trial judge and the application is therefore refused.

Representation:

Mr. A.A. Bruce (Crown Prosecutor) for the Respondent.

Mr. Wong Ting-kei, Applicant in person.