The Queen v. Nguyen Van-son

CACC000328/1990

BETWEEN

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

Coram: Hon. Fuad, V.P., Penlington & Macdougall, JJ.A.

Date of hearing: 4 June 1991

Date of delivery of judgment: 21 June 1991

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

JUDGMENT

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

Penlington, J.A. (read by Macdougall, J.A.):

1. This is the judgment of the Court.

2. This is an application for leave to appeal against conviction and sentence in respect of a conviction for robbery before Deputy Judge Z.E. Li in the District Court on 13th June 1990. The reason for the delay in hearing was that when this matter came before a differently constituted court on 9th January this year an order was made granting him legal aid and ordering a full transcript to be provided.

3. At the beginning of the hearing before us Mr. Roderick Murray, counsel for the applicant, sought leave to abandon the appeal against sentence, which we granted.

4. The background of the matter is that on 23rd April 1990 at approximately 6:30 a.m. Mr. Lee. Shun Cheung, who is 71 years of age and a night watchman, was waiting at a bus-stop near the Vietnamese refugee camp at Pillar Point Castle Peak. A man came up to him and Mr. Lee saw that he was holding a knife. The man did not say anything but with the threat of the knife he searched Mr. Lee's pockets and removed $80 in $10 notes. Immediately after this, however, Mr. Lee saw that a police vehicle had arrived on the other side of the road and he cried out "snatching". The man who had robbed him then ran across the road, pursued by police officers from the vehicle. Shortly afterwards he was taken by the police to a unit in the camp where he identified a  man as being the robber. That man was the applicant. He was also shown a knife which he identified as being similar to the one which had been used in the robbery. He said that the man who pointed the knife at him was wearing a black jacket and trousers.

5. It was Mr. Lee's evidence that the black jacket was "black denim garment".

6. He was cross-examined by the defence solicitor and agreed that while he was somewhat sleepy having just come from work and was very frightened he had no doubts about his identification.  He said that he looked directly at the man's face and that the man was facing towards him. While he did notice the man's garments he said he recognised him by his facial appearance.

7. Evidence was then given by two police officers who had been on surveillance duty on a roof-top opposite the Pillar Point Refugee Camp. The first of these was Constable Lam Kwok Cheung, PC47898. He said that while he was on duty with his colleague, Sergeant 4172, Wong Tak Shing, at about 6:10 a.m. he saw two men in Lung Mun Road outside the refugee camp. One was wearing a black jacket and dark coloured trousers. The other had brown garments. At 6:30 a.m. the man in the black jacket went over to the other side of the road and approached a man who clearly was Mr. Lee. He produced a knife. On seeing that the constable went down from the roof and rushed towards the scene. On arrival  he saw that the two men, the one in black and the other in brown, had entered the refugee camp. He then received a message through his beat radio from Sergeant Wong and went to a hillside near Block 20 inside the refugee camp and there he saw a man in a black jacket walking towards the hill with his back to him. He shouted to the man who turned round and then ran towards Block 5. He said in evidence that he saw his face and could recognise him in court. He identified the applicant as the man. He said that the man then ran inside Block 5 and went to the first level up a staircase. The man then entered the unit but the Constable could not tell which one it was. He then went downstairs to wait for other officers to arrive. When they came with Mr. Lee a search was made and he said he saw the applicant again in Unit 18 of Blolck 5. He said that he was then wearing a white T-shirt with a pattern and dark trousers. Presumably there were other persons present in the unit but the Constable only said in evidence that there was a baby there as well.

8. The Constable was cross-examined and admitted that while he said in evidence that he could see and recognise man he was chasing he had made a statement in which he had said he could not see his appearance clearly and he could not be sure that the applicant was the one he had been chasing.

9. Sergeant Wong Tak Shing said that he was on duty with Constable Lam and that he also saw the incident on the other side of Lung Mun Road. He was using bincoulars. He saw the man wearing black garments approach Mr. Lee and search him.  He then called other colleagues through his beat radio and gave a description of the man. Constable Lam went downstairs and the Sergeant saw the man in black run across Lung Mun Road together with the man in brown and in the direction of the hillside in the refugee camp. He said the man in black went into some bushes where he lost sight of him for a while. Later, however, when the man emerged from the other side of the bushes and he had taken off his jacket which he then held in his hand. Underneath it he had been wearing a white T-shirt. The Sergeant said he did not see him again. In cross-examination he said that he did not, see Constable Lam giving chase to either the man in black or the one in brown.

10. That was the only oral evidence given but other facts were admitted, pursuant to s. 66C of the Criminal Procedure Ordinance. These were that a knife which was produced, was seized by a constable in a place marked on the sketch plan, which was also produced. This apparently was the spot in the bushes described by Sergeant Wong. Secondly the applicant was searched inside Unit 18 of the refugee camp between 7:05 a.m. and 7:35 a.m. on 21st April and eight $10 banknotes were found on him. In addition to that $23.6  was also found in coins. Thirdly a search was made inside Unit 18 and a black jacket, which was produced in court but was not available at the hearing of this application, was found. It seems however that this black jacket was not made of denim, but was made of some form of synthetic material.

11. The trial judge said that while Mr. Lee had agreed that the incident was very short and that the man had come and departed very quickly, he considered that the whole incident must have lasted between one to two minutes. He went into his evidence very carefully and while not specifically mentioning the leading case on identification of R. v. Turnbull [1977] QB, 224, he clearly had the Turnbull guidelines in mind. He found Mr. Lee to be a very impressive witness and, although an elderly man and one who obviously was very frightened at the time, he considered that his identification was reliable. On the question of the jacket which Mr. Lee had described as a denim jacket, the judge said that the actual description used in Cantonese by Mr. Lee was "black cowboy jacket". He went on that the word "denim" is often used in translation to refer to both the style and material of a certain well-known common style of garment. The word "cowboy" in Cantonese however may just refer to a style resembling this well-know type of garment. He thought that the jacket seized from the applicant matched the general description of black jacket given by Mr. Lee.

12. The judge took into account the fact that the identification by Mr. Lee had taken place very soon after the incident. He did not, however, refer to the fact that there had not been an identification parade. While not saying so specifically, clearly the trial judge did not accept Constable Lam's evidence that he could identify the man that he was pursuing and that that man was the applicant.  He said that both Constable Lam and Sergeant Wong's evidence did not give an unbroken chain from the commencement of the chase of the man from the scene of the robbery to the place at which the applicant was arrested. He did however say that Sergeant Wong had followed the man through his binoculars to some bushes in the refugee camp and that this man had then taken off the black jacket he was wearing showing a white T-shirt underneath.

13. The trial judge said that in addition to Mr. Lee's identification evidence there was also evidence that a knife similar to that used in the robbery had been found in the bushes, that $80 in eight $10 notes was found on the person of the applicant, the same amount and same denomination as the notes taken from Mr. Lee, that the applicant had a black jacket, that at the time of his arrest was wearing a white T-shirt and dark trousers and that the applicant was arrested near to where the robber was last seen. He said that all these pieces of evidence, while taken individually did not amount to a great deal, as a whole supported the identification of the applcant as being the robber.  He was satisfied of the applicant's guilt beyond any reasonable doubt and convicted him of the charge.

14. Mr. Murray argued six grounds of appeal. The first was that Mr. Lee's observation was made in difficult conditions and was therefore unreliable. We do not consider that ground has been made out. This incident took place outdoors in April at 6:30 a.m. and the lighting conditions must have been good. There is no reason to doubt Mr. Lee's evidence that he got a full view of the robber's face form very short distance indeed. The trial judge's finding that the incident must have taken between one and two minutes was challenged. We accept that there appears to be no evidence to support that assessment. Nevertheless the trial judge was clearly aware that this was an incident which had taken place very quickly.

15. It was argued that there was little reliable supporting evidence. In particular there was little relevance in the fact that a knife had been found in the bushes. The trial judge did not state what he considered the finding of the knife proved and it seems that the only relevance was that Sergeant Wong had seen the man in the black jacket go into the bushes where he took it off and re-emerged wearing the white T-shirt. Presumably he had also left the knife behind at the time he took off the jacket. There was however nothing to connect the applicant with that knife.

16. As to the evidence of the eight $10 notes having being found on the applicant, the same amount and same denomination that had been taken from Mr. Lee. Mr. Murray submitted that that could easily be a pure coincidence and that in any event the applicant had other money in coins in his pockets. The other evidence which the trial judge found as supporting circumstantial evidence was that the applicant at the time of arrest was wearing a white T-shirt and dark trousers, that a black jacket was found in his unit and that he was arrested near where the robber was last seen. As the the  judge said these matters in themselves would not be sufficient, but that taken as a whole they do support the identification evidence given by Mr. Lee.

17. A further ground of appeal was that there was no identification parade held and it would seem that Mr. Lee was simply confronted with the applicant in Unit 18 and there identified him. However, as was submitted by Mr. Saw for the Crown, where there is a robbery of this sort there is very little else for the police to do but to take the victim to confront persons who may be in the vicinity to see if he can recognise anybody. Having done so, of course, there is no point in then having an identification parade. It is however quite true that a confrontation of that sort does not have the same cogency as the evidence of a witness who picks out a suspect in a properly conducted identification parade.

18. Exception is then taken to the question of the black jacket. In particular it is argued that the trial judge was wrong to impose his own knowledge of Cantonese in assessing the evidence given by Mr. Lee. The court must go by the evidence as interpreted and while in this case the applicant was defended by a Cantonese-speaking solicitor that may not always be the case. Defence counsel is entitled to go by the evidence as interpreted and if the trial judge considered that that interpretation was faulty it was his duty to advise counsel of that and to then ask the interpreter if he would re-consider his interpretation. We think that in principle that must be correct. Defence counsel are entitled to know what the evidence is against their client and if the trial judge places a different meaning on words which have been used because of his knowledge of the original language in which the evidence is given it means in effect that he is challenging the interpretation but not advising counsel that he is doing so. Here, however, we do not think any harm has been done. Although Mr. Lee did identify the jacket as being a "black denim" jacket, he said in cross-examination when asked as to whether it was opened in front "Did not pay attention. Only knew it was black." The trial judge came to the conclusion that Mr. Lee had not been positive in his evidence that the jacket was made of denim material. We think that he was entitled to do so and that the colour of the jacket was of far greater importance than the precise nature of the fibre of which it was made.

19. Further grounds were that there was no evidence as to whether Mr. Lee had described the facial features of his assailant before he identified him at the confrontation and that the trial judge had, without any evidence being called, come to the finding that a person's ability to recognise somebody who was robbing him would be enhanced by the fact that more adrenalin would be present in his blood due to the tension he was under. While there was no evidence that Mr. Lee had described the features of the robber before he was confronted with the applicant that was not surprising in the circumstances here. We do not think that there is any substance in this ground of complaint.

20. So far as the question of Mr. Lee's ability to recognise the robber, he said, "It is true that the victim was tired. But when one is being threatened with a knife, the chemical effect of adrenalin would certainly re-liven the senses and put the person on special alert." It is true that there was no medical evidence as to this phenomenon but we do not think there was any need for it.  It is a matter of common human experience that a person's adrenalin begins to flow when he is confronted with an alarming situation. The judge was entitled to take this reaction into account. We again see nothing in that ground of appeal.

21. This application was argued fully and ably by Mr Murray. He drew our attention to every possible factor that could be argued in favour of the applicant to support his contention that the conviction is unsafe and unsatisfactory. While the conviction clearly relied substantially on the identification evidence of Mr. Lee we have no doubt that the trial judge had considered that evidence in the light of the proper principles to be applied. We would also mention that here the applicant elected not to give evidence himself, which he was quite entitled to do. However we would also refer to Arcnbold, 43rd Ed., Vol. 1, para. 14 - 2b where the editor says:

"An accused's absence from the witness box cannot provide evidence of anything and the judge should tell the jury so. But he would be entitled to tell them that when assessing the quality of the identification evidence they can take into consideration the fact that it was uncontradicted by any evidence coming from the accused himself".

Having considered all the evidence that was before the trial judge and his findings of fact we are satisfied that this conviction is safe and satisfactory and that the application for leave to appeal against conviction should be refused.

Representation:

Mr. R. Murray (D.L.A.) for appellant.

Mr. D.G. Saw & Robert Lee for crown