The Queen v. Chan Ka Hing

HCMA000349/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 349 of 1991

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BETWEEN

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Coram: Hooper J. in Court

Date of hearing: 25 June 1991

Date of delivery of judgment: 3 July 1991

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JUDGMENT

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1. On 7th March 1991the appellant a 17 year old boy was convicted after trial of robbery, contrary to section 10(l) of the Theft Ordinance, Cap. 210, Laws of Hong Kong. The learned magistrate having adjourned the matter for the usual reports ordered him to be detained in an detention centre.

2. He appeals to this Court against conviction.

3. The grounds of appeal, in a nutshell, are that the learned magistrate failed either adequately or at all to consider and evaluate the evidence as to identification before convicting he appellant of robbery, and that he failed to appreciate the real weakness and inconsistencies in the evidence of the only prosecution witness upon whose evidence the conviction was based. It is contended that he failed either adequately or at all to give himself an explicit warning in terms of Turnbull, and that he erred in law in holding that the appellant had a case to answer in the light of the weaknesses and inconsistencies in the witness' evidence.

4. As I have said, only one witness gave evidence for the prosecution and he was the alleged victim. There were also admitted facts under s.65C of the Criminal Procedure Ordinance that the appellant was arrested on 25th October 1990 at the Immigration check-point in Lowu and handed over to DPC13609 and that he was interviewed by the said DPC and under caution he denied the offence.

5. The appellant having been advised to do so by his counsel, Mr Dixon Tang, submitted that there was no case to answer, and on having this submission turned down, he elected to remain silent and called no witnesses.

6. In his statement of findings the learned magistrate set out the evidence as follows:-

"PW1 for the Prosecution gave evidence that on 22nd November 1989 at about 2.30 p.m. he was dragged into a park in Fa Yuen Street in Mongkok by 3 persons. He said he could recognise them if he sees them again. He identified the Appellant in Court as one of the three persons. He described how he was 'dragged' into the park. He said the Appellant told him that he had assaulted one of his brothers causing injuries, and he was told to follow the Appellant into the park. He  followed the Appellant while the hands of two of the three persons were placed on his shoulders. While in the park, two of the three men left the park for about five minutes. The remaining one stayed with him in the park with a hand on his shoulder. The Appellant was one of the two who left the park. On their return, the Appellant told PW1 that he had to take PW1 to a block of flats in Fa Yuen Street for him to be identified. PWl then was taken to a block of flats by the three men and they came to the staircase .near the roof top. The Appellant shouted for someone to come out but no one appeared. PW1 then wanted to leave. Suddenly PW1 was arm-locked from behind and had a bottle thrushed at him behind his right ear. The glass of the bottle cut him. Another of the three men then stripped or took his necklace and bracelet. Then one of the three told PW1 not to chase them, and the three of them fled. PW1 ran downstairs and a report was made to the police. He Was sent to hospital for Treatment and he was hospitalized for three days. On 12th November 1990 at around 12.30 p.m., PW1 attended an identification parade in Mongkok Police Station, and he instantly identified the Appellant standing at position No.6. PW1 also described an incident on 28th March 1990 when he saw two of his three robbers in Sanpokong. He recognised the Appellant to be one of the two robbers, and after he summonsed help at his workplace, he and his colleagues chased the two men. One of them was caught and handed over to the police. The man whom PW1 recognised as the Appellant got away. Under cross-examination, there were some discrepancies in PW1's evidence as to what role each of the three robbers had in the robbery and how they went up to the staircase near the roof top.  PW1 also agreed that he was confused and very frightened when he was injured or cut by the bottle. He agreed he was off-balance and was so frightened that he could not remember the faces of the culprits.  He described the culprits to be around five feet five ''inches to five feet six inches tall. He agreed that the Appellant on trial was four to five inches taller than him and he was about five feet six inches in height. He also said that the Appellant was the same height as he was on date of trial, as on the day in March 90 when he and his colleagues chased the Appellant and another of the robbers in Sanpokong.

The Appellant's arrest and his denial of this offence under caution were admitted by consent under Section 65C of the Criminal Procedure Ordinance. That was the Prosecution's case and I found that the Appellant had a case to answer on the charge. His rights were explained to him by his Counsel and he elected to remain silent and had no witness to call for the Defence.

The case against the Appellant rests wholly on the quality of the identifying evidence of PW1, whether PW1 had correctly identified the Appellant. The offence was in November 22nd 1989. The identification parade was on 12th November 1990, about a year later, and the trial of this case was on 7th March 1991. I had carefully considered the circumstances under which PW1 became able to identify the Appellant. It was not a brief encounter or a fleeting glance scenario but PW1 had spent quite sometime with the Appellant and two others in a park and from there, to the staircase in a building. There were ample opportunity and time for PW1 to see the Appellant's face and appearance. He had conversation with the Appellant and subsequently he was wounded at the back of his right ear with a bottle and had his necklace and bracelet robbed from him. I had also considered the fact that PW1 was off-balance and very frightened after he had been wounded and robbed. I had also considered all the discrepancies in his evidence concerning what role was played by the Appellant in the robbery and how PW1 was brought to the staircase where the robbery took place. I had warned myself of the special need for caution before convicting the Appellant, in reliance on the correctness of the identification. I was aware that an honest witness may still be a mistaken witness. I did find PW1 an honest witness. Having considered all these factors, I was satisfied that that the identification of the Appellant by PW1 was good and reliable. PW1 identified the Appellant with no hesitation in the identification parade, and also in Court. He firmly insisted that he was not mistaken when it was put to him that he had made a mistake in identifying the Appellant as one of the culprits. I was satisfied that the charge had therefore been proved against the Appellant beyond reasonable doubt. I found him guilty and convicted him of the charge. He was sentenced to be detained in a Detention Centre."

7. Mr Dixon Tang, for the appellant, at this appeal, submits that there were discrepancies in the witness' evidence which were not considered by the magistrate.

8. Although the witness had consistently said early in his evidence that the robbers had dragged him for about three minutes into the park. He later on described how the defendant said:-

"I walked past the park at Soy Street. Somebody put his hand on my shoulder behind me.  Then that person told me that I had assaulted one of his brothers causing injuries. The defendant said that. The defendant told me to follow him into the park to identify the person.  I went with him. I followed him into the park."

9. Mr Tang complains that there is a discrepancy there as to whether the appellant was dragged into the park or he merely followed the robbers into the park. However, immediately after the passage which has just been quoted, the witness went on "At that time, the hands of two of them were placed on my shoulders. Four of us went into the park." This seems to suggest that there wasn't a significant discrepancy in his evidence on this point.

10. It does appear, however, from an examination of the witness' evidence that there were serious discrepancies as to the role played by the appellant, and as to the place in the building where he was taken. There were also serious discrepancies between his description of the appellant at the time of the robbery and the appellant as he appeared in Court. In particular, his description of the robbers as being the same height as himself contrasted unfavourably with the actual fact that the appellant was four to five inches taller than the witness.

11. Mr Dixon Tang has taken me through the evidence in detail with a view to highlighting the weak points in the evidence of the witness. He submits that in all the circumstances of this case the conviction is unsafe and unsatisfactory. He stresses the concern of Lord Widgery, C.J. in the Turnbull case concerning the danger of evidence relating to visual identification being mistaken.

12. He also relies on a passage in the judgment in the following terms:-

".. the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearnace?"

Mr Dixon Tang relies also on Magistracy Appeal No.475 of 1988 R.v. TSANG KAU and Magistracy Appeal No.391 of 1988 R.v. TSANG PAK MING.  In both these cases appeals were allowed on the basis that the identification evidence was not sufficiently reliable to justify the conviction, which was unsafe and unsatisfactory. However, in both those cases, the period of time during which the victim had the culprit under his observation was very short.

13. Examination of the facts in other cases can be helpful but in the end the magistrate has to consider the facts of the case as they appeared before him.

14. Although the witness in the present case identified the appellant immediately at the identification parade, and although he was in the company of the robbers for a considerable period of time, there is good reason to doubt the accuracy of his identification. Not only did he admit, under cross-examination, that he was so frightened that he could not remember the faces of the culprits, but he also gave a description to the police which is in consistent with the true description of the appellant. Furthermore the identification took place nearly one year after the offence.

15. Finally, at the end of the cross-examination he was asked this question:-

16. Despite this unsatisfactory answer there was no re-examination.

17. No mention is made on the record of any submission by the prosecutor in reply to Mr Tang's submission of no case to answer. I am told that the prosecutor recognised the significance of the last answer of the witness in cross-examination as being very damaging to her case.

18. In my judgment, that was a very unsatisfactory answer for the witness to make leaving as it does the matter in the air as to who had made the mistake, and what the mistake was. That coupled with the other unsatisfactory aspects of the evidence of the prosecution witness is enough, in my judgment, to make the conviction unsafe and unsatisfactory.

19. For these reasons, I allow the appeal and set aside the conviction and sentence.

Representation:

Mr Dixon Tang, instructed by Messrs Paul T.S. Lam & Co., for appellant

Mr Hally, Senior Crown Counsel, for Crown