R. v. Lam Ka Lok and Others

CACC000213/1994

IN THE COURT OF APPEAL

1994, No.213
(Criminal)

HEADNOTE

Examination of evidence leading to Appeal Court hold that it entertained a "lurking doubt".

IN THE COURT OF APPEAL

1994, No.213
(Criminal)

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Coram: Hon. Yang, C.J., Power, V.-P. and Mortimer, J.A.

Date of hearing: 8 June 1995

Date of judgment: 21 June 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. At trial the 1st and 2nd applicants faced one count of robbery and one count of possession of arms and ammunition at the time of committing a robbery. The 3rd applicant faced one count of possession of arms and ammunition without a licence and one count of handling stolen goods. All pleaded not guilty. After trial before Deputy Judge Woolley and a jury the 1st and 2nd applicants, were found guilty on both counts, and the 3rd applicant, was found guilty on the count of possession of arms and ammunition.

2. It was the Crown case that on 2nd January 1993 the first two applicants, together with two others, robbed the customers inside the Tai Ping Koon Restaurant of their cash and valuables. This was a typical restaurant robbery in which everyone was relieved of their valuables at gun point. The case against the first two applicants rested upon fingerprint and identification evidence and also, in the case of the 2nd applicant, upon a confessional statement.

3. The evidence against the 3rd applicant was that on 17th January 1993 she was apprehended while carrying the arms and ammunitions the subject of the 7th count, and the stolen goods the subject of the 8th count, in a bag which she had carried down from her home.

4. A1 was convicted and sentenced to imprisonment for 15 years on the robbery count and to 12 years on the possession of arms and ammunition count and the sentences were ordered to be concurrent. He now seeks leave to appeal against those convictions. A2 in the course of the hearing of this appeal abandoned his applications for leave to appeal against both conviction and sentence.

5. A3 was sentenced to ten years on the possession of arms and ammunition count. She now seeks leave to appeal against both conviction and sentence.

6. The evidence against A1 came from two identifying witnesses who said that the robbers had been sitting at tables 43 and 44 and that A1 had been one of them. There was also evidence that a fingerprint which was shown to be that of A1 was found on a glass on one of those tables. The trial judge gave the following directions to the jury on the evidence:

"Now, in view of what I have said about the fingerprint evidence, you will appreciate that the case against the 1st defendant depends wholly or to a large extent on the correctness of one or both of the identifications of him which the defence alleges to be mistaken.

I must, therefore, warn you of the special need for caution before convicting the defendant in reliance on the evidence of identification. That is because it is possible for an honest witness to make a mistaken identification. There have been wrongful convictions in the past as a result of such mistakes. An apparently convincing witness can be mistaken, so can a number of apparently convincing witnesses.

Examine carefully the circumstances in which the identification by each witness was made. How long did he have the person he says was the defendant under observation? At what distance? In what light? Did anything interfere with the observation? Was there any special reason for remembering him? How long was it between the original observation and the identification to the police? Is there any marked difference between the description given by the witness to the police when he was first seen by them and the appearance of the defendant.

Now, I must remind you of the following specific weaknesses which appeared in the identification evidence. Mr. Chan and Mr. Wong gave statements to the police the next day about what had happened in the restaurant. In those, they gave a description of the man who had come to their table with a gun.

Although they agreed on age, height and length of hair, there was a striking difference in their accounts of what he was wearing and his build. Mr Chan said that he had a pointed face and was wearing a dark jacket, a white turtleneck T-shirt and dark blue jeans. Mr. Wong said that he was of fat build and wearing a beige-coloured cardigan and light blue jeans. If you think that they may in fact be describing different people, that must affect the credibility of their identification.

It seems clear from the evidence that they were told to lower their heads at the very early stage of the robbery and most did so, did these witnesses do so as well and only have a fleeting glance of the man who came to their table? As the length of time they observed him is obviously critical to their ability to identify him later, was it a fleeting glance or was it several seconds?

Although they say they saw him clearly, how clearly was it? How many times did they look at the robber? Mr. Wong says the robber came back to his table three times. However, the evidence of the others at the table does not, you may think, support this. Remember also that it was a month after the robbery they were asked to identify the man they had seen, how accurate were their memories after all this time?

The other thing to bear in mind is that of all those who attended the identification parade, it was only these two who made an identification. Did none of the others look at the man when he first shouted? Did none look up during the robbery? These are all matters which you must consider when assessing the strength of the identification evidence and then ask yourselves whether or not you are sure you can accept that evidence as true and accurate."

7. The 1st applicant in his written grounds dated 13th May 1994 complains of doubts and inconsistencies in the prosecution evidence and of the likelihood of a mistaken identification. He expanded those grounds in a letter written to the Registrar on 17th May 1995. His first complaint in the letter was that the trial judge had misdirected the jury when he said that the two identifying witnesses agreed on height. When addressing us he said that one of the witnesses had said the witness was 5'6" and the other had said 5'6", 5'7" or 5'8". We find no substance in this complaint.

8. His next complaint was that one of the witnesses, it seems that it was Mr. Wong, had said that the person he identified had been wearing a straw white sweater and not, as the judge told the jury, an apricot colour sweater. In fact the judge told the jury that Mr. Wong had said that the person he identified was wearing a beige coloured cardigan. Again we find no substance in this complaint.

9. His next complaint is that the judge did not remind the jury of the evidence which the two identification witnesses gave as to the robbers' face and appearance. The trial judge, it is true, did not remind the jury of everything that each witness said. He did, however, we are satisfied, sufficiently direct them to allow them to bring to mind the evidence which they had heard.

10. His final complaint is that the judge failed to honour the promise which he had made to his counsel that he would instruct the jury clearly as to the identification evidence. We find no substance in this complaint. The directions that the judge gave were detailed and clear.

11. We are satisfied there is no merit in the matters urged by the 1st applicant and his application for leave to appeal against conviction is therefore dismissed.

12. We turn now to the 3rd applicant.

13. The trial judge directed the jury in the following terms:

"The facts of the case against the 4th defendant (3rd applicant) are very simple. She was observed by a police officer watching her flat go into a room, pick up a brown bag and leave the flat with it. Very shortly after leaving, she was stopped by the police and the bag was found to contain a gun, a grenade and two watches which had been stolen in the Tai Ping Koon robbery.

The prosecution says that from these facts there is an inference that she knew what was in the bag, that she knew that she was in possession of the gun and the grenade and she was carrying goods she knew or believed to have been stolen.

As I have in respect of the 1st defendant, I must direct you, as a matter of law, that you may not draw an inference adverse to a defendant unless you are sure that it is the only reasonable inference to be drawn from the facts. There is no need for you to dream up fanciful possibilities. You must use your common sense.

You have heard the defendant's explanation of how she came to have the bag. She says her husband called up from the street to ask her to bring it as he was in a hurry. She picked it up without looking into it, and there is no evidence from the police officer observing her that she did look into it. His evidence was that she just picked it up. She picked up her own handbag as well and left the flat to meet him at a restaurant.

She says that she had only gone a short distance when she was arrested and it was not until the police told her later that she knew just what was in the bag she was carrying.

In order to convict her on the count of possession of arms, you have to be sure that she knew that the gun and the grenade were in the bag. There is no direct evidence of this. There is no evidence that she looked in the bag or that it was not closed when she picked it up and she could have seen into it. It was not her own handbag which she was carrying separately. The prosecution could only point to her possession of the bag itself and ask you to infer from that that she knew of the contents."

14. Mr. Griffiths, Q.C., who appears with Mr. Tong for the 3rd applicant, takes no issue with this direction. He first points out that the evidence from which an inference of knowledge might have been drawn was slight, and that the jury, by reason of the joint trial, heard days of evidence about the Tai Ping Koon Restaurant robbery in which her husband was involved which was inadmissible against and highly prejudicial to the interests of the 3rd applicant. He contends further that the counsel for the 3rd applicant was incompetent both in failing to ask for a severance and in leading evidence of the husband's participation in the Tai Ping Koon Restaurant robbery. He submits that these matters must leave this court with a lurking doubt as to whether an injustice has been done. He reminds us of the words of Widgery LJ when dealing with "lurking doubt" in R. v. Cooper (1969) 1 Q.B. 267 at 271:

"That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it."

He submits that any appellate court, having examined all of the circumstances in the present case, would have an inevitable reaction that injustice may have occurred.

15. It was the evidence of the applicant that her husband came to the downstairs entrance of the block of flats in which they lived, and pressed the door bell and that she then looked out the kitchen window and saw him. She said that he called out to her to go into the bedroom of Ka Lok Chai to fetch a brown bag and to take it to him in Lai See Restaurant. She said that she did as she was instructed and, having got the bag, took it downstairs. She said that her husband had also told her that he was to meet a friend in the restaurant to which she was to bring the bag. She said that the room from which she got it had been Ka Lok Chai's room, although occupied more recently by two friends of her husband, and that she had never been called upon to do housework in that room.

16. We think it of particular importance to examine the approach which Crown Counsel took regarding this evidence when cross-examining. It was never put or even suggested to the 3rd applicant that her husband had not come to the ground floor and called up to her to bring the bag to the restaurant. It was never suggested to her that she had not gone in to get the bag from one of the rooms in the flat and that at that time the bag had been closed. Indeed this could hardly have been done as she had been observed by a police officer on surveillance duty going into the room and picking up the bag. It was suggested to her that she had had an opportunity to open the bag had she wished to do so and she agreed that this was so. This line of questioning did not, however, take the matter any further as it was not put or suggested that she had, in fact, ever opened the bag. The cross-examination proceeded upon the basis that she "knew" that the arms and the stolen goods were in the bag. She denied this.

17. It is true that the jury, when considering whether or not they could properly draw the inference of knowledge, might, had she been discredited in cross-examination, have thrown any lack of credibility in explaining the events of the evening, into the balance. However the line pursued by the Crown was not an attack upon her evidence as to what occurred on that evening but was to put to her that she "knew full well what was in the bag". The jury were being asked, upon the basis of a very narrow area of evidence, i.e. possession standing alone, to draw an inference of knowledge. We acknowledge without hesitation that the drawing of such an inference is a matter for the jury. Were there no other considerations, it could be strongly contended that this court could not properly interfere in the jury's preparedness to do so. There were, however, other considerations.

18. The first and, in our view the most important of these, is the fact that the applicant was tried with two other defendants who were facing a robbery charge in which at least one gun was used. The evidence as regards those defendants unfolded over a period of several weeks. The factor which allowed the 3rd applicant's trial to be joined with the trial of the other two defendants was that the goods in the bag were part of the proceeds of the Tai Ping Koon Restaurant robbery. In the outcome, however, the applicant was found not guilty on the receiving charge. Mr. Saw, for the Crown, conceded that had an application been made for severance, there would have been little ground to resist it. The evidence against this applicant if dissociated from the robbery was not strong. The failure to apply for severance might have been highly prejudicial to the applicant for the following reasons:

(a) There was evidence of use of guns at the robbery. There was no evidence that the gun found in the bag was one of those used.

(b) As the applicant was being tried with the other robbers, her counsel felt it incumbent to lead evidence that her husband had pleaded to the robbery.

There was further no proof that the bag itself belonged to the applicant. Indeed, her evidence that it was not her bag had some support from the police who saw where she picked it up.

19. We feel, given how fine the balance must have been in favour of drawing the inference, that the mass of evidence against the other two defendants, involving a violent robbery, in which the 3rd applicant's husband was involved, might have worked to her prejudice. The jury's task in deciding whether it was safe to infer that she had knowledge of the contents of the bag when it was not proved that the bag belonged to her and she had little, if any, opportunity of examining the contents was far from easy if examined in isolation as it should have been. The evidence of the robbery, her husband's participation and her general association are circumstances which lead us to conclude that the verdict was unsafe. We do not find it necessary to canvass the suggested incompetence of the 3rd applicant's counsel. In all these circumstances we have a lurking doubt whether injustice has been done to the 3rd applicant and conclude that the verdict is unsafe.

20. We treat the hearing of the application as the hearing of the appeal and order that the conviction be quashed.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the respondent.

Mr. J. Griffiths, Q.C. and Mr. P. Tong instructed by Messrs. Leo K.W. Lok & Co. for the 3rd Applicant (D4).