Ng Wai Hung v. The Queen

Case No.CACC 264/1970

Court

Court of Appeal

Date18 Aug 1970

Judge—

Case Document

100%Judiciary

CACC000264/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.264 OF 1970

-----------------

BETWEEN:
	NG WAI HUNG	Appellant
	AND
	THE QUEEN	Respondent

Coram: Rigby, C.J., Scholes, S.P.J., and Mills-Owens, J.

Date of Judgment: 18 August 1970

-----------------

JUDGMENT

-----------------

1. The appellant was charged, together with two other men, with the offence of robbery with aggravation. At the trial, the second accused was not present so the case proceeded against the present appellant and the third accused.

2. The brief facts of the case were that at about 9.15 on the morning of the 31st March a man named Mo was walking along the street with his wife and two small children. Mo was walking at the time behind his wife. Whilst walking along in the street in broad daylight, according to the evidence of Mo, his wife was suddenly attacked by two men, one of whom tried to snatch her handbag and the other at the same time put his arm around the woman's neck. Mo went to the assistance of his wife and was then attacked by another man who punched him from behind. He had a momentary blackout which lasted for a few seconds and he had in fact also been knocked down by a blow which had been inflicted upon him. When he got up a few seconds later he saw that the handbag had in fact been snatched from his wife and that three persons were running to a car which was parked nearby. That incident took place at about 9.15 in the morning. The matter was at once reported to the police by telephone. Mr. Mo, according to his evidence, had noted the registration number of the car to which the three men ran immediately after the incident. The number of the car was AD 3712 and this was at once reported, or shortly afterwards reported, by him to the police, who immediately radioed the number of the car to patrol cars in the vicinity. At about 9.25 a.m. a police patrol car spotted this car, registration number 3712, and gave chase to it with the siren of the patrol car in full blast. The car, after a short distance, stopped in the immediate vicinity of the Taikoo Dockyard and four persons were seen to jump out and run from the car. The police gave chase to those persons; two of them, the first appellant and the man who was not present at the trial, were seen to run to the roof of a temple which was in fact near to Shaukiwan Police Station. The police gave chase and these two men were caught, one of whom as I have said, was in fact the appellant. The incident occurred on the 31st March. On the 1st April an identification parade was held at the Bayview Police Station. On that parade were eighteen persons, including the three accused persons who had been arrested when they had run away from the car. Mr. Mo was present at that parade and was given an opportunity to identify any of those persons who had been present at the incident. According to the evidence, he identified the appellant. That was the evidence which was given by the prosecution.

3. At the close of the case for the prosecution, the appellant did not think fit to go into the witness-box, and the defence rested on a submission, made by his counsel, that there was no case to answer; a submission which was over-ruled by the learned judge. The learned judge convicted the appellant of the offence charged. That evidence, we repeat, consisted of the following facts:-

	(1)	that the incident took place at 9.15 a.m.;
	(2)	the three persons who had been concerned in the incident were seen to run to a waiting car, the number of which was noted;
	(3)	that some 10 minutes later that car was spotted by the police who gave chase;
	(4)	that the car stopped, and four persons were seen to run away from the car;
	(5)	that one of those persons was in fact the appellant who ran to the roof of a nearby building where a was arrested;
	(6)	that he was identified by Mr. Mo as the man who had assaulted him when he went to his wife's assistance, and as one of the three men who had fled to the stationary car, registration number 3712; and
	(7)	that he offered no explanation at the conclusion of the case for the prosecution to show that he had not taken part in the incident or for his presence in the car registration number 3712 and for the fact that he ran away from the car when it came to an abrupt halt, and when chased by the police.

4. Criticism is made by Mr. Lawrence Leong that the woman, whose handbag had been taken was not in fact called as a witness. We think it desirable that she should in fact have been called. But it is abundantly clear that the incident was observed by her husband who was immediately behind her, and we are quite satisfied that any defect that may have arisen from the fact that she was not called was entirely cleared by the husband's own evidence as to the incident which he so witnessed at close quarters.

5. A more substantial complaint was made by Mr. Lawrence Leong that the identification parade itself was unsatisfactory. It would appear that at the parade Mr. Mo was wearing glasses, whilst in fact he was not wearing glasses at the time of the incident. He himself, when asked about that matter, replied in evidence that it was true that he was not wearing glasses at the time of the incident and he went on to say, for what it is worth:

"It does not matter whether I wear my glasses or not".

6. The learned judge accepted that testimony.

7. Mr. Lawrence Leong further complained, and it is established by the evidence, that Mo in fact wrongly identified one of those persons on the parade. There were in fact the three suspects on the parade including the appellant himself. The explanation given by Mo himself as to that was that from the moment he got on to the parade he himself had identified in his own mind the appellant but he continued to look at the other persons present on the parade and it was in those circumstances he admitted that he had made a wrong identification in respect of the other suspects. What Mo in fact said in the course of his evidence was this. It was put to him:

"Q. The second time you pointed at 1st defendant?"

and he replied,

"No. On entry I recognized 1st defendant, I said 'I already recognize one'. Then I was asked if I could identify the other two."

And he went on to say,

"I was told by Inspector Leung that it was not enough to say I could identify one for I had to push him out. I was not able to identify the other two".

He then went on to say that he did, in fact, upon Inspector Leung's instructions, push out the present appellant whom, according to his testimony, he had identified from the first moment he had gone on the parade.

8. Mr. Leong further complains that it was improper to have Police Inspector Leung, who was in charge of the investigation, on the parade. He understand that it is the normal practice for police officers who are in charge of investigations to be present at an identification parade. But it is clearly improper that they should take any part in that parade. In this instance, it is apparent that Inspector Leung did take it upon himself to interfere in the parade to the extent of saying to the man, Mo, that he was not allowed to say that he could identify anyone but that he must take active steps to show that identification by pushing the man out. We accept this criticism and we think that it was quite wrong for Inspector Leung, who was in charge of the investigation, to take any part in the parade in the manner in which he did.

9. Nevertheless, we are quite satisfied in all the circumstances of this case that there was ample evidence here to support the conviction.

10. The application for leave to appeal is accordingly dismissed.

11. The application for leave to appeal against sentence out of time is also dismissed.