The Queen v. Wong George Alias Wong Yiu-cheong

CACC000356/1985

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Kempster, J.A. & Hunter, J.

Date of Hearing: 28th November 1985

Date of Judgment: 28th November 1985

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JUDGMENT

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Kempster, J.A.:

1. On 9th August last, after trial, WONG Yiu-cheong was convicted of robbery by Deputy Judge Eu in the Kowloon District Court. Against that conviction he seeks leave to appeal on grounds which he originally set out in writing and which have been replaced by the handiwork of his lawyers. By both documents, in effect and in summary, he contends that the evidence identifying him as the robber, because it is accepted that a robbery took place, was unreliable, unsafe and unsatisfactory.

2. The evidence of a dance hostess, the victim, was to the effect that in the early hours of 17th October 1984 the applicant met her at a ballroom in Tak Hing Street, Kowloon. They chatted together for some time. She lent him some money. At about noon on the same day she received a phone call following which she met the applicant in broad daylight and went with him to watch a film at a cinema in Nathan Road. During the performance he repaid her what he owed. Then, by way of the ballroom at which she was employed, the two of them went to another floor in the same building where the applicant rented a room. The hostess had sexual intercourse with her client for a fee of $??400. Afterwards they both watched television in the course of which the applicant assaulted her. He took jewellery to the value of $??4,000 before making off. The hostess rang the police.

3. In due course, a matter of weeks afterwards, and after helping to build up an identikit picture, the hostess identified a photograph which, according to unchallenged evidence, was a photograph of the applicant from three albums of photographs shown to her. A witness said that she was shown photographs of some 800 to 900 different persons in each album. It was also said by a witness that only one photograph resembled the applicant. In the context of her selection of a photograph the hostess said in evidence that she had some reservation about this identification but would be quite sure once she could see the man. It must not be overlooked that she and the applicant had been together for some five hours overall on 17th October. This is not a "fleeting glance" case.

4. On 6th February 1985 the applicant was arrested. The arresting constable noticed that he then had a lot of white hair which corresponded with evidence given by the hostess. But that white hair was not apparent at trial. The applicant elected not to give evidence and not to call any witness. So there was no positive evidence before the trial judge that he was not the man. There was evidence before him, deriving from the Crown, showing that at some time on 17th October 1984 he had left Hong Kong for Macau.

5. In giving her Reasons for Verdict the learned Deputy Judge, generally speaking, took into account all the considerations that have been urged upon us so ably by Mr. Plowman:

"The Defence is one of mistaken identity. I am conscious that in such cases, the witness is often honest, positive and convincing, but may still be totally mistaken. She was mistaken as the Defence had pointed out as to the name of the theatre she went to with the Defendant. She was very vague about the movie she saw and its title. "

The Deputy Judge referred to other discrepancies. Again I quote:

"But she said and I agree recollection of a person's face and identity is a different matter. She may have had many customers in the course of her employment, that is not to say that she will be in a less favourable position than an ordinary person in the recollection of faces. "

Then again the judge noted the fact that apparently the hostess was unable to distinguish an overseas from a local Chinese person and came to the actual evidence of identity. She described the circumstances in which the hostess picked out the photograph of the applicant and noted that she was not a hundred percent certain at that juncture. Then the judge referred to the dock identification which took place at the hearing. We pause here to mention the important consideration that for reasons that are not readily apparent no identification parade was held. But according to the hostess as soon as the applicant was brought into court, and that means prior to the invitation by prosecuting counsel, which may or may not have been appropriate, to identify her assailant, she had recognised the applicant.

6. The learned judge was relying on two matters: - the identification by the hostess of a photograph of the applicant and her assurance as to his identity when she saw him in court. She was alive to the unexplained absence of an identification parade and to the fact that there was no confirmation of any similarity of handwriting between that of the applicant and that on a document he had signed in relation to the occupation of the room where the robbery had taken place. In the view of the judge evidence of identification was reliable so that she was sure that the applicant was the robber.

7. Mr. Plowman has referred us to Home Office Circular No.109 of 1978 relating to photographs. He has pointed out that in a number of respects the procedure suggested in that circular were not followed. On the basis of that circular he has made a number of submissions to us. One was that identification by photograph not followed by an identification parade is weak evidence of identity. He has pointed out that such identification has dangers of its own analogous to those attendant upon a dock identification. He has submitted that identification by photograph should not be followed by an invitation to a witness by counsel appearing for the Crown to make a dock identification. He submits overall that the case brought by the Crown was so weak in all the circumstances as to be unsafe. There was also what is, perhaps, a subsidiary point, particularly when the case was tried by a member of the Bar who for all intents and purposes is to be regarded as a professional judge, that reference in the trial to photographs in the possession of the police might well have indicated that the applicant had a criminal record. That is a matter which, when an accused is tried by jury, should be borne firmly in mind when considering how to adduce this sort of evidence, but in the present instance we do not think it can have affected the outcome of the trial in the least.

8. What Mr. Plowman has finally invited us anxiously to consider is whether or not, looking at the evidence and the conduct of the trial as a whole, there remains in our minds any doubt as to whether an injustice was done to the applicant by his conviction. We have, naturally, considered this invitation with appropriate care, but, in the event, we have not even a lurking doubt as to the justice of the conviction and are content to let the matter rest where it is.

9. The application for leave to appeal against conviction is refused.

Representation:

Mr. Gary Plowman (So & Karbhari) for applicant

Mr. Bessell for D.P.P./respondent