Kong Wing-ching v. The Queen

CACC000398/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 398 OF 1974

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Coram: Leonard J. in Court

Date of Judgment: 25th June, 1974.

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JUDGMENT

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1. This is an appeal against conviction for robbery of a person unknown. The sole witness for the prosecution was a police constable who, when off duty and in plain clothes at 11.25 p.m. on the night of the 1st May 1974, saw a couple being robbed at Sai Yi Street near Queen Elizabeth Playground by three Chinese males. The witness admitted that the lights there were not bright that he could "just notice" three Chinese males wearing light-coloured shirts. These he approached and the trio ran off. Apparently, he then had some conversation with the victims who informed him that they had been robbed of HK$40. He told them to wait for him (an injunction they ignored) and ran after the robbers who had run in the direction of Argyle Street. He chased them to Sai Yeung Choi Street where he caught the defendant because, he claimed, the defendant was held up by a large crowd of people. He cautioned the defendant who "asked for a chance". At the time of his arrest the appellant had virtually no money on his person, certainly no proceeds of the robbery. There is nothing in the record to show that the witness kept the robbers in his sight from the time of the robbery to the time of the arrest. He could scarcely have done so if they ran from the playground to Argyle Street for then they would have had to run ...(illegible) two corners - from Sai Yi Street into Argyle Street and from Argyle Street into Sai Yeung Choi Street before he arrested the accused in that crowded street. They must have been some distance in front of him for he had stopped, if only for an instant, to speak with the victims. There was a large crowd in Sai Yenng Choi Street.

2. The appellant was unfortunately unrepresented and his cross-examination of the constable was, judging from the record, extremely brief. It did not stress the obvious difficulties which anyone would have in establishing identity in the circumstances so briefly outlined by the constable.

3. The appellant gave brief evidence denying the robbery and suggesting mistaken identity. The first two questions asked in cross-examination were unfortunate, being as follows:

I cannot see why the second question was asked; the appellant had not placed his character in issue and the effect of the answer can only have been prejudicial: it had no probative value. The learned magistrate having set out the evidence of the constable as above, stated:

"In assessing the evidence I took into consideration the following:

4. There was admittedly an apparent contradiction in the evidence of the appellant under cross-examination i.e. as to whether he was walking or running when arrested. That was the only apparent contradiction I can find so that I am at a loss to understand the learned magistrate's use of the word "also". Again I would disagree with his observation that the prosecution witness was cross-examined whth "reasonable prolixity". According to the record the prosecution witness was asked five questions by the appellant. The evidence was not really tested at all on the all important question of identification although the fact that identification was in question was apparent from the five questions asked.

5. It is clear to me from the way in which he presented his appeal that the appellant is a simple, ignorant and uneducated man. He obviously did not know how to cross-examine and since he was unrepresented this was a case in which some searching questions from the bench as to the possibility of mistaken identification could have done no harm.

6. In R. v. Williams⁽¹⁾ the court, although invited so to do, refused to give a general direction requiring a warning to be given to juries of the dangers of convicting without corroboration where the only evidence against an accused person is identification by one witness and in Arthurs v. Attorney Goneral for Northorn Ireland⁽²⁾ the House of Lords left for future consideration the general issue whether, when the case for the prosecution appeared to depend wholly or substantially on the visual identification of the defendant by one or more than one witness, it was, in law, the duty of the judge to give a general warning on the dangers of convicting on such evidence. So I shall not rush in although the learned magistrate does not refer to such dangers in his findings. Nevertheless the dangers of mistaken identification are too well-known for emphasis by me and form the basis for what I may call the "lurking doubt" cases. My doubts in this case could not be described, merely, as "lurking doubts" (a phrase for which I must confess some personal antipathy); they are the gravest of doubts caused by the evidence as to the poor lighting at the scene of the robbery, the absence of any description of the robbers other than that they were Chinese and wore light-coloured shirts and the topography of the streets through which the slightly delayed chase of the robbers took place. They are compounded by the prejudicial evidence as to the appellant's employment so that notwithstanding the evidence that the appellant on arrest asked for "a chance" I cannot see how the Crown can reasonably be said to have discharged the burden of proof.

7. The appeal is accordingly allowed and the conviction and sentence quashed.

Representation:

Appellant in person.

Mr. Donaldson, C.C. for the Crown/Respondent.

(1) (1956) Crim. L.R. 833.

(2) (1970) 55 Cr. App. R. 161.