Yu Shu-yuen and Others v. The Queen

CACC000278/1978

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Coram: Huggins, J.A., Leonard and Li, JJ.

Date of Judgment: 1 November 1979

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JUDGMENT

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Huggins, J.A.:

1. We dismissed the 1st Appellant's application for leave to appeal against his convictions on Counts 5 and 6, but adjourned his application in respect of Count 4 for enquiries to be made concerning an allegation by him of misidentification.

2. That allegation was that he had an identical twin, that it was his twin brother who had been involved in this robbery and that Yim Siu-chung, the witness who identified him at the trial, had made a mistake. In support of the allegation he produced a letter, purporting to have been signed by Yim Siu-chung since the conviction, in which Yim admits that he was unaware of the existence of a twin brother and that he was wrong when he made his identification of the 1st Appellant.

3. The 1st Appellant was indicted in the names of Yu Shu-yuen alias Cheung Hung-bun. He had been previously convicted of other offences under the name of Cheung Hung-ngai and an identity card had been issued to him in this name. He claims that Cheung Hung-ngai is his true name and that Cheung Hung-bun is his brother.

4. One thing is certain, that Yu Shu-yuen is not the 1st Appellant's true name. Yu Shu-yuen was one of the victims in the robbery charged in Count 3. His driving licence was alleged to have been stolen and it is clear that, after the photograph on it had been altered, the 1st Appellant adopted it as his own. The only relevance of this evidence is that it indicates a willingness on the part of the 1st Appellant to use a false identity when it suits him.

5. It seems to be accepted that the 1st Appellant has a twin brother, although the similarity between the two of them has not been established. The Crown now accepts that the 1st Appellant is Cheung Hung-ngai and, accordingly, that he was indicted in the wrong name. The brother has not been produced.

6. In his evidence at the trial Yim Siu-chung said that he did not know "Cheung Hung-ngai" and he identified the 1st Appellant as "Cheung Hung-bun". It is to be noted that he had seen the person who took part in the robbery for considerable periods of time on at least 2nd, 4th and 11th July 1977 and had had ample opportunities of identifying him. The two brothers may look alike but one of them has a northern accent whilst the other has a southern accent - a difference which would be immediately apparent.

7. The subsequent letter, which we will assume to have been written by Yim Siu-chung, was sent to Tong Lai-wah for forwarding to Cheung Hung-bun. Although a letter allegedly written by Tong Lai-wah for that purpose is said not to have been written by her. She says she did forward the first letter to Cheung Hung-ngai and it seems to have reached the 1st Appellant in prison in spite of his assertion that he is not Cheung Hung-bun, the addressee. Tong Lai-wah did not know Cheung Hung-bun's address and had not been in contact with him for some time. It is not satisfactorily explained why Yim Siu-chung should have sent her the letter. This letter is the whole foundation for the complaint to this court. In his statement to the police dated 26th June 1979 Yim Siu-chung explains how he was assaulted in Shatin in August 1978 by a person who claimed to be Cheung Hung-bun. Even then, he says, he thought the man was the 1st Appellant and that he must have escaped from prison. That is an incredible story.

8. An even more surprising aspect of this alleged comedy of errors is that, according to the 1st Appellant, the person whom the police took to the flat where the gun was found (p.892), who was identified by the landlord as the tenant Yu Shu-yuen (pp. 77 and 78), and in whose pocket the police found the key to the flat, was not the same person as the one who signed the statement Exhibit P15 with the name Yu Shu-yuen - i.e. himself (p. 890). Again, how such a mix up could have occurred is not explained. P.C. Tse Sai-lung, of course, says that it was the 1st Appellant whom he took to the flat (p. 555), whilst the 1st Appellant admits that he signed the statements (p. 661), albeit that he did so involuntarily.

9. We are not persuaded that any doubt remains as to the identity of the person involved in the robbery charged in Count 4 and the 1st Appellant's application for leave to appeal against his conviction on that charge is dismissed.

1st November 1979.