Man Ka-keung v. The Queen
Read the full judgment text of CACC 255/1980 on BabelCite. This Court of Appeal judgment was delivered on 24 April 1980.
1. The facts in this case are of the simplest possible description. On the 9th of December last year, the victim aged 12 was robbed in the company of his 14 years' old friend. The incident lasted quite a considerable time, as a result of which the victim was relieved of his jacket and a sum of money testified to be $287.00. On the 16th of December, seven days thereafter, the two boys observed the appellant in some shop premises. Thereafter, the appellant was said to be positively identified by b
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CACC000255/1980
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----------------- Coram: LIU, J. in Court Date of Judgment: 24 April 1980 ----------------- JUDGMENT ----------------- 1. The facts in this case are of the simplest possible description. On the 9th of December last year, the victim aged 12 was robbed in the company of his 14 years' old friend. The incident lasted quite a considerable time, as a result of which the victim was relieved of his jacket and a sum of money testified to be $287.00. On the 16th of December, seven days thereafter, the two boys observed the appellant in some shop premises. Thereafter, the appellant was said to be positively identified by both the victim and his friend. Accompanied by the uncle of the victim and friends, the boys confronted the appellant in what was subsequently known to be a stall run by his mother. An altercation soon ensued resulting in the summoning of the police. The appellant was later charged with robbery and brought before the learned Magistrate. 2. Both the victim and his friend as well as his uncle were called. The appellant himself elected to and did give evidence, and so did his mother. Alibi was made an issue, and the impact thereof on identification was at no time overlooked. Having properly directed himself on the Turnbull principles, the learned Magistrate found the identification evidence satisfactory. 3. In answer to a deliberate question from the bench, the appellant's mother explained:
4. In his Statement of Findings, the learned Magistrate said of the evidence of the mother in these terms:
5. It would not be appropriate to indulge in semantic, and I would attribute no specific intent to the phrase, "much the more reliable". However From the tenor of his observations it is evident that the learned Magistrate was primarily unimpressed by the quality of the mother's evidence rather than by her basic credibility. 6. It was submitted on behalf of the appellant that no less than three pre-eminently significant features underlined her recollection of the events on the day in question: First, it was a Sunday; secondly, Sunday lunch was served at a different hour at 12.30; and thirdly, there was the proximity of the alleged incident to the commotion at her stall, only some seven days after. Counsel for the Crown disapproved of any attempt to highlight one particular Sunday and declined to accept a different lunching hour as unusual. 7. Mr. Chandler resisted this appeal by constantly reminding me of the divers discrepancies in the evidence of the appellant and between his evidence and that of his mother's. Counsel also urged the Court to have due regard to the compelling evidence of identification which does not, so ran his submissions, embrace any of the pitfalls envisaged by the Turnbull guidelines. 8. The mother must have been made aware of, even assuming she was not in the centre of the commotion at her stall, the accusation soon on the same day. It was merely seven days after an alleged incident of an extraordinary nature. It would seem that the appellant's mother would then require little more to reconstruct the events on a Sunday last past. Such reconstruction should have, with ease, left an imprint on her memory. 9. Counsel for the Respondent fairly conceded that the crux of the matter is whether the evidence of alibi coming from the mother would cast any reasonable doubt in the identification evidence. Identification evidence must at all times be received with great caution. There seems to be little warrant for the anxiety of the learned Magistrate as to difficulty on the part of the mother, if truthful, to recount events on the day of the robbery. In the result, I cannot be sure what effect the evidence of the appellant's mother, viewed in its proper perspective, would have had on the learned Magistrate in his evaluation of the identification evidence. In these circumstances, the appeal must be allowed and conviction quashed and sentence set aside.
Representation: Mr. Chandler, counsel for the Crown/Respondent Mr. J. Mullich instructed by W.L. Yuen for Appellant |