Cheuk Che-leung v. The Queen

CACC000369/1983

BETWEEN

---------

Coram: Jones J.

Date: 5th May, 1983.

__________

JUDGMENT

__________

1. The appellant was convicted on the 4th February 1983 of one charge of burglary, one charge of attempted theft and one charge of handing stolen goods. A sentence of four months' imprisonment was imposed on the first charge, three- months' imprisonment on the second and three months imprisonment on the third which sentences were ordered to be concurrent. The appellant has in fact served his sentence and was released last week.

2. The appellant appeals against conviction.

3. It was alleged that the appellant participated with other persons in a burglary that occurred on the 2nd September 1982 at 73 Bonham Strand West where a bank passbook was stolen. Later the same day at about 11.40 a.m. the prosecution alleged that tee appellant attempted to withdraw the sum of $20,000 by presenting the passbook at the Hang Seng Bank Shamshuipo.

4. The conviction was founded upon the identification of the appellant by a bank teller P.W.1 and three cautioned statements made by the appellant.

5. P.W. 1 identified the appellant at an identification parade held on the 19th November 1982.

6. In his decision the learned magistrate said that P.W.1 made a positive identification and he found her to be a reliable witness.

7. This was a case in which it was necessary to follow the guidelines laid down in R. v. Turnbull (1). It was submitted by Mr. Westbrook appeared for the appellant that P.W.1's evidence did not support the finding of a positive identification.  According to P.W.1 the appellant was in front of her window at the bank facing her for about two to there  minutes. Although there was no evidence that the appellant had any distinctive features, she remembered that he had a perm. The appellant agreed that he did have a perm at that time.

8. In assessing the identification evidence the learned magistrate warned himself of the time lapse between the incident and the identification parade. No allegation was made that P.W.1 was not an honest witness, but it was submitted that she could have been mistaken.

9. Complaints were levelled at the admissibility of the cautioned statements and the weight to be attached to the contents.

10. The appellant objected to admissibility at the trial on the grounds that he was physically assaulted by the Police. In accepting the evidence of P.W.1 as truthful and rejecting that of the appellant and his witness, the learned magistrate described the allegations as criminal and outrageous misconduct. No grounds were put forward to justify the exclusion of the statements and in my judgment they were properly admitted.

11. In the first statement the appellant admits that he acted as a lookout during the burglary and later went to the Hang Seng Bank with the passbook where he attempted to withdraw the sum of $20,000.

12. In considering the weight to be attached to the statements the learned magistrate said that he did not accept that they contained the full facts, but believed that they were tailored to protect others who were involved. Nevertheless he accepted the admission of the appellant that he was involved. Whilst I have had regard to all the matters raised by Mr. Westbrook, I am satisfied that he was entitled to make this finding.

13. The learned magistrate found the evidence of alibi to be unconvincing. In view of this finding the alibi evidence must be treated as neutral, and not as additional evidence confirming the identification evidence.

14. Mr. Westbrook contended that the learned magistrate might have been influenced by the admissions made by the appellant in the cautioned statements to bolster what he argues was a case of mistaken identification. However, I am unable to accept this proposition. Quite clearly he came to his decision on the totality of the evidence.

15. The learned magistrate saw and heard the witnesses and was able to observe their demeanour. He did not refer to demeanour in his findings, but I do not consider that he was required to do so. Demeanour in any event can be misleading, and is of no assistance so far as the identification evidence is concerned.

16. The question to be asked is was the quality of the identification evidence good? P.W.1's honesty was not challenged and she was found to be a reliable witness. The lighting at the scene would have been good. There was nothing to impede P.W.1's observation. The accused faced her for two to three minutes. There was a lapse of time from the incident to the identification parade of two and a half months, but P.W.1 saw the photographs a month before the parade.

17. In R. v. Oakwell ⁽²⁾ Lord Widgery in the course of his judgment said that the identity problem that Turnbull's case is intended to deal with is the ghastly risk run in cases of fleeting encounters. Although Turnbull is to be borne in mind this was not a case of a fleeting encounter. Having considered the whole of P.W.1's evidence and taking into account the criticisms that have been made I do not think that the quality of the evidence was poor.

18. In my opinion this evidence coupled with the admissions of the appellant fully justified the verdicts found by the learned magistrate. Despite the able argument of Mr. Westbrook, I do not agree that the convictions were either unsafe or unsatisfactory. The appeal is therefore dismissed.

(1)    (1976) 3 W.L.R. 445

(2)    (1978) 1 All E.R. 1233

Representation:

Mr. Westbrock (D.L.A.) for Appellant.

Mr. S. Leung (Legal Department) for Crown/Respondent.