Shum Kok Ming v. The Queen

CACC000347/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 347 OF 1971

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Coram: Huggins, J.

Date of Judgment: 15th July, 1971.

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JUDGMENT

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1. This is an appeal against a conviction "for robbery with aggravation". In fact the conviction was not for robbery with aggravation as stated in the Notice of Appeal but merely for robbery under s.10 of the Theft Ordinance.

2. The whole case turned upon the identification of the Appellant, who relied upon an alibi. The offence was said to have been committed at about 10 p.m. on 27th February 1971. Mr. CHEUNG Yee-chor left a flat on the 6th floor of a house in Kiu Kiang Street and got into the lift. He saw two youths inside the lift. One of them, he said, was the Appellant. When the lift reached the 5th floor one youth seized him round the neck and he was pushed out of the lift and told to keep quiet, otherwise he would be beaten to death. He said that the Appellant then took money from the witness's pocket. He was, at that moment, facing the witness. The two youths escaped and nothing further happened until 5th March so far as the victim was concerned. Then a police officer told him that someone had been arrested and he was asked to go to the Police Station. When he got there he was taken up to the C.I.D. Office, where some ten persons were. On entering the office he said: "That is he: I identify him" and pointed to the Appellant. Unfortunately no questions were asked about the circumstances in which the Appellant came to be in the C.I.D. Office at the time that the witness was brought in, but in cross-examination the witness repeated that he identified the Appellant as soon as he saw him in the Police Station, and I may at this point refer to the finding of the learned Magistrate that his evidence was given forcefully and with confidence and that "his recollection of the Defendant's appearance and his subsequent identification were nothing more or less than a victim's delighted and certain recognition of his assailant".

3. The only corroboration of the identification is to be found in a statement which was alleged to have been made by the Appellant when he was arrested. He was cautioned upon his arrest and taken to Sham Shui Po Police Station, where he was apparently further cautioned and replied "I know this robbery was done by me and Man Chai". It is not very clear what happened when this evidence was given: the solicitor then representing the Appealant appears to have objected to the evidence when it was first given, then withdrawn his objection and a moment later objected to it again on the same ground. In any event a trial within a trial was held and the learned Magistrate came to the conclusion that it was a voluntary statement ...... and I should have said that when the Appellant was cautioned the details of this alleged robbery were given to him.

4. His defence was that on the material day he was in a cinema from 9:30 p.m. until the close of the 9:30 show. He sought to prove this not only by his own evidence but by production of two cinema tickets and by calling five witnesses who say they were with him in the cinema. The tickets were produced in a rather unusual way, during the evidence of the prosecution in the trial within a trial. The solicitor for the Appellant is recorded as having said: "Wish to preserve evidence and called Defendant to produce tickets as exhibits pending re-trial. I call Defendant". The Defendant was then called and the two tickets were produced. They were two tickets for the 9:30 show on the material day. When he produced them the Appellant said: "I still have the tickets with me" - that presumably being intended to indicate that they were two of the eight tickets which were purchased by him and his friends on that day. As I say, there were five other witnesses who were called to give evidence on behalf of the Appellant and the learned Magistrate had to make up his mind whether the evidence for the prosecution was true or not. He commented that it was unfortunate that no identification parade was held and an explanation of that has in fact been given to me in this Court - that was, however, not in evidence before the learned Magistrate.

5. There was clear evidence which, if believed, would support this conviction and the only question which has caused me any anxiety is whether in all the circumstances it is safe to allow this conviction to stand, the learned Magistrate having accepted the prosecution evidence. Had the identification evidence not been corroborated at all then even with the explanation for the absence of an identification parade which I have been given I would have felt difficulty in allowing this conviction to stand. However, the learned Magistrate was fully aware of the danger of convicting on this identification, he very carefully considered the arguments on both sides and I see no reason to interfere with the conclusion which he reached. The appeal is dismissed.

15th July, 1971.

Representation: