Lau Ping Chan and Another v. The Queen

CACC000296/1976

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Coram: Huggins, J.A.

Date of Judgment: 8th April 1976.

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JUDGMENT

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1. These two Appellants, young men of previously good character, were charged before the magistrate with robbery. It is necessary to state briefly what the evidence was. A man who had spent the evening in a music parlour left the premises on the sixth floor and took the lift down to the street. He said that three persons then entered the lift and robbed him. Two of those men be clearly identified as these Appellants and he described what each of those Appellants had done: the second Appellant was holding something like a knife and the first Appellant grabbed his neck and searched his pockets. The second Appellant was also alleged to have said. "Don't move otherwise you will be stabbed to death". The men left him trussed up in his own trousers and ran away. The victim did not make any report of any kind then or for two days, but after that period he happened to see two persons at a stall having tea and he said that they "appeared to be" the robbers. He therefore reported to the police and these Appellants were arrested.

2. Police officers gave evidence of the arrest and of the two Appellants' being taken to the police station. There was some discrepancy between the evidence of the victim and one of the police officers and that of the second police officer as to what happened en route.

3. The defence was one of alibi and each of the Appellants called a witness to say that he was not at the scene but was elsewhere at the time that this alleged robbery took place. The defence was not in a position to challenge the fact that the robbery had taken place but the learned magistrate was clearly satisfied that the robbery did take place despite the fact that it was not immediately reported. It is unfortunately a notorious fact that many robberies are not reported and I agree with Mr. Duffy that no significance attaches to the fact that a report was not made until the victim had reason to believe that he could pin the offence on those responsible.

4. The issue in this case - and the only issue of any importance - was whether the robbery which quite clearly the magistrate was satisfied had taken place was committed by these Appellants. The Appellants alleged first that there was no evidence, or no sufficient evidence, to justify conviction. That in my view cannot possibly hold water, because the evidence of the victim himself was ample evidence to justify conviction if it was believed.

5. Secondly it was argued that the main evidence against these Appellants was obtained by virtue of a leading question from the magistrate himself. In my view that is not correct. The evidence of identification had already been given at the beginning of that witness's evidence, when he clearly identified the two men in the dock as the two robbers. The fact that he subsequently said that the persons he saw at the stall "appeared to be" two of the robbers was really of no great consequence because of the previous identification even if one takes the word "appeared" as meaning "seemed". In my view there was clear identification here, and, furthermore, the question put by the learned magistrate was not a leading question. It is not, as was once suggested, the proper test to ask whether or not the question can be answered "yes" or "no". The question, as Mr. Ming Huang rightly said, has to be considered in its context and in my view the question put by the learned magistrate, although it was put at an unhappy time - it should not have been put by him when it was but at the close of the cross-examination and any re-examination - did not suggest the answer which was expected. It was a question asking for confirmation one way or the other whether the witness was sure of his identification.

6. The next point which was taken has caused me rather more anxiety and that is the fact that in his Reasons for Verdict the learned magistrate has referred to the contents of a notebook which was never put in evidence. The argument for the Crown is, of course, that this evidence did not go directly to the identification, and that is correct, but it is impossible in my view to say that it did not have some bearing on the question whether the magistrate was right to convict or not, because it did go to some extent to the question of credibility. One must assume that somehow the learned magistrate did see the notebook because he referred to its contents, but how he came to see it we do not know - and what it said we do not know, because, as it was not made an exhibit, it is not part of the record before this Court. Secondly in relation to the allegation that the magistrate referred to evidence which was not before the court the magistrate said that the two alibi witnesses were originally called to give evidence in relation to another night and not the night of the alleged crime. He also said that "the representatives for both Defendants" - and I pause to mention that there was only one representative for both the Defendants - "were under the impression that the offence had been committed shortly after midnight on the night of 31st December and 1st January". Now, why the learned magistrate said that, again we are not sure, but I think it is safe to say that he must have been told that - he could hardly have made this up - and there is in the record some slight support for that conclusion in that at the beginning of the cross-examination of the victim, when he was being asked about the date of the offence, there was an entry that the representative requested an adjournment to take further instructions. That is, as I say, only slight evidence but it is some evidence that that is the point at which the learned magistrate must have been told that the representative was doubtful about the date on which the offence had been committed. But, be that as it may, I think the answer is that the learned magistrate should not in any event have criticised the evidence of the two alibi witnesses because of any mistake which was made by the counsel appearing for the two Appellants. If the two witnesses themselves had started by giving evidence about the wrong night and then said their evidence in fact related to the right night it is possible that some criticism could have been directed to them and it might have been suggested that they were muddled about the night themselves, but that does not necessarily follow in the circumstances of this case, and I think it was unfortunate that the learned magistrate ever referred to this particular matter.

7. Next it was complained that the learned magistrate had made a remark that the evidence of one of the police officers was based solely on his recollection and it was suggested that that comment was "adverse". With respect I do not think it was. The purpose of the comment was to indicate that although that particular witness had made some notes in his notebook he had not made a note on the matter upon which he was at variance with the other two witnesses and therefore that it was the memory of one man against the memory of two men. The learned magistrate was perfectly entitled to make that comment and to prefer - if he thought proper - the evidence of the two. It was then said that the magistrate refused to believe the second Appellant's alibi witness "simply because that witness had visited the former in prison pending the trial". I do not read the judgment f the learned magistrate as so saying: all he was saying was that there was an opportunity, if the second Appellant had wished to concoct an alibi, for such an alibi to be concocted with the witness who was going to support it. What he said was:

"Bearing in mind that the witness had visited the defendant while he was in prison pending trial I had no hesitation in concluding that the alibi had been engineered for my benefit".

I think the argument rather puts the cart before the horse. What the magistrate was saying was that there was opportunity to concoct a false alibi, that he did not believe the alibi and therefore it had been engineered. It was not necessary for him to say that, but in my view it was not wrong so to do.

8. Finally I come to the last ground - which is really a summation of everything else which had gone before - where it is suggested that the convictions were unsafe and unsatisfactory. This is a matter upon which I can say very little. I think that there is some justification here for suspecting that the learned magistrate may have formed a very strong view on the evidence - which, of course, in itself is ground for dismissing this appeal - but that it may have coloured his approach to this case somewhat. The fact that evidence was referred to which was not before the court, and which is not before this Court, is a matter which might conceivably have affected his mind in reaching that conclusion, and although I do it with some hesitation, nevertheless I do feel compelled to say that I have a lurking doubt at the back of my mind that possibly justice has not been doen, or at least has not been seen to be done, and for that reason these appeals must be allowed.

9. I think the proper course in view of the conclusion I have reached in this Court is that I should make an order that the case be retried, but it is, of course, entirely up to the Attorney General whether that further trial proceeds or not.

8th April 1976.

Representation: