Fan Wai Hung v. The Queen

CACC000274/1976

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Coram: Pickering, J.A.

Date of Judgment: 5th May, 1976

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JUDGMENT

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1. The appellant faced five charges of robbery. His co-accused pleaded guilty to all five charges and was duly sentenced. The appellant pleaded not guilty to all the charges and, upon the learned magistrate's holding that he had no case to answer upon three of them, was acquitted of those three charges. He was, however, convicted upon the remaining two charges and sentenced to nine months' imprisonment upon each, those sentences to run consecutively. This appeal lies against both convictions and sentences.

2. The first ground of appeal in respect of the first charge was that the trial was unsatisfactory in that the learned magistrate sought a dock identification of the appellant from a prosecution witness although that witness had failed previously to identify the appellant. What in fact happened was that the victim, having given evidence about identifying the appellant's co-accused at an identification parade went on to say "the other was in his 20's, 5'6" about. I had a blurred impression of him". At this stage the transcript of the court's record reads as follows:

"COURT:

Defendant's Counsel: Court already asked him.

3. When the court resumed upon the following morning, the transcript continues:

"P.W.4 FONG Fu-ki re-affirmed in Punti.

4. It can thus be seen from the record that there was a certain persistence by the learned magistrate, in the face of objection from defence counsel, in an attempt to obtain an identification in court - an identification which could have been of almost no value as constituting a dock identification of a person whom the witness had already been unable to identify at an identification parade. The prosecutor had been content, on receiving the answer that at the identification parade the witness had "a blurred impression" of the second man he was asked to try to identify (that is the appellant) not to press for an identification in court. No doubt this was done because the prosecutor recognized the virtual futility of any dock identification in those circums ances and, in pressing the matter as he did, the learned magistrate may fairly be said to have been, if not in the middle of the arena, at any rate within its boundaries. The appellant's counsel's complaint under this ground of appeal is not that direct damage was done to his case in the court below, since the best answer the learned magistrate got to his thrice-put question as to whether the witness could see the man in court was "His outlook is similar to the person in the dock", an answer which the learned magistrate properly rejected as being of no value on the issue of identity. Rather is the suggestion that the learned magistrate was displaying something less than total impartiality and, in counsel's words, showing a "resolute determination to supplement the prosecution case" in the face of which it was difficult to see how he could approach the case as a whole in an open frame of mind. It is a suggestion which is not wholly without justification but, as we have seen, in the event no direct damage was done and, that being so, this ground of appeal is insufficient in itself to justify setting aside the convictions.

5. I will deal later with the second and third grounds of appeal.

6. The fourth ground related to the identification of the appellant by the victim in the second charge of robbery. This young man had agreed in cross-examination that he had never seen the appellant prior to the robbery, that five days had elapsed between the robbery and the identification parade, that he had claimed to recognize the appellant because (inter alia) the appellant had "some curls" whereas in the court below, counsel said, there were no curls, that at the time of the robbery it was "not very" dark, that the victim had been approached from the side, that he admitted to being frightened at the time and that the whole incident could have occupied only a short period of time although the witness claimed that several minutes transpired whilst he was being searched and robbed of cash, a camera, a wrist-watch and a bank account book.

7. It is true that these are all matters which might have had some influence upon the issue of identification and true also that the learned magistrate did not deal with them point by point. It is, however, unnecessary for a magistrate to deal with every detail of the defence case in his Reasons for Verdict, the more so where he has the evidence of what he described as "an impressive witness" who positively and without hesitation identified the appellant in court; who said "They assaulted me and I had a deep impression of them"; who was emphatic in cross-examination that he could identify the appellant as one of the two, namely the one who assaulted him and searched his pockets and who said in his evidence "I well recognized them" - a reference to the identification parade.

8. There is no merit in the attack upon the identification evidence in regard to the second charge.

9. The fifth ground of appeal was that the learned magistrate failed or failed sufficiently to direct himself as to the evidence for the defence, and in particular as to the evidence that the appellant had a regular job and was not in need of money and that he was working when the robbery was carried out. It is true that the appellant comes from a family in relatively comfortable circumstances, that he had employment at $600 per month in a decorator's business and that he was presumably not in pressing need of money. These factors however are wholly inconclusive for it is a commonplace in the courts that greed is often the motive for criminal offences of this type and that necessity is by no means the only spur to their commission.

10. The second angle of attack upon the verdict under this fifth head of appeal is that the appellant had produced an alibi witness of good character who was not connected with his family and that the appellant had established, as far as he could, that he ought to have been in his employer's shop at the time of the commission of some of the offences; that it was not for the appellant to prove an alibi but for the prosecution to disprove it. That last proposition is entirely true where an apparent alibi has been established and there may be some justification in the criticism that the learned magistrate's comment that the evidence of the appellant's employer was "essentially negative" in character was an exaggeration but the alibi evidence, which centred around the precise lunchtime of the employer's fokis established only that lunch was very much a moveable feast and the alibi evidence, so far from being apparently watertight, was so leaky that it could by no stretch of imagination be said that an alibi had ever been established.

11. There remain the second and third grounds of appeal. These related to the admissibility of two confessional statements made by the appellant. The first such statement related to the first charge of robbery and the second to the four remaining such charges which the appellant originally faced. It was the appellant's evidence that at the Police Station he was handcuffed to a chair "from the back"; that whilst so handcuffed he was elbowed once in the back and asked to admit; that when he denied the offences a police constable placed a telephone book against his back saying that if the appellant continued to deny he would hit the telephone book so hurting the appellant but avoiding any visible injuries. The appellant told the police he was scared, that there was no need for them to assault him and that he would admit which, after visits to pawn brokers, he proceeded, in writing, to do. One of the police constables, who assaulted him, the appellant said, had the nickname Chu Chai. The police constable who took the appellant's statement agreed in cross-examination that he had a police friend called Chu Chai and that Chu Chai was on duty at the police station when the appellant was brought in. When asked if he saw Chu Chai strike the appellant he said "I did not see". It was put to the learned magistrate in the submission regarding the admissibility of the statements and repeated in this Court, that the witness was visibly uncomfortable when asked about Chu Chai. Chu Chai was not called as a witness.

12. A further line of attack upon the admissibility of the statements related to the very detailed nature of their contents especially that of the second statement which related to four alleged robberies. In regard to each robbery the statement was in a very similar form and in each case gave the date, time and place of the offence together with a description of precisely what was stolen, identifying various watches by manufacturer's name, and continuing with the address of the pawn shop at which the goods had been disposed of. The very regularity of this statement together with the copious detail given in relation to each offence raises strong suspicion that the statement was the result of prompting. The case is not so blatant as that of Chan Hung v. Reg.⁽¹⁾ in which four statements detailing precisely large quantities of tools stolen from parked lorries were found by the Full Court to have been prepared by, or at the instance of someone on the basis of information derived from the respective owners of the stolen property. The statement in the present case, however, is nonetheless so very precise in detail as to leave the strongest suspicion that it was the result of prompting. That fact, coupled with the evidence regarding Chu Chai, the handcuffing to a chair and the elbowing must render the admission of the statement unsafe and, since that statement was the only evidence to connect the appellant with the first charge of which he was convicted, that conviction must be quashed and the sentence of nine months' imprisonment imposed thereon set aside.

13. The same remark does not apply to the second charge upon which the appellant was convicted because in that instance there was very clear evidence of identity and the appeal, so far as it relates to that second charge, is dismissed both as to conviction and sentence.

Representation:

E.C. Mumford (Hoosen & Co.) for appellant.

Stevenson, C.C., for respondent.

(1) 1961 H.K.L.R. 721.