The Queen v. Yick Tin-wai

HCMA000918/1986

BETWEEN:

Coram: Roberts, C.J.

Date: 21st November, 1986.

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

JUDGMENT

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

1. This is an appeal against conviction by YICK Tin-wai ("D.1"), a girl aged 16, who was convicted of robbery and sentenced to detention in a training centre.

2. D.1 was jointly charged with two other persons with robbing LAI Mei-hing ("P.W.1") of various articles on 19th May, 1986, at Sheung Kwai Chung in the New Territories.

3. It is not disputed that at about 3.30 p.m. on the day in question P.W.1 was attacked by a group of persons in the lift of the block in which she lived and that her braclet and her handbag containing various articles were stolen from her. She hurried home and reported the matter to the police, who arrested D.1, as well as D.2 and D.3 who were subsequently tried and convicted.

4. The case against D.1 depended entirely on the identification of her by P.W.1, who identified her in court as having taken part in the robbery.

5. There are numerous authorities which emphasize the undesirability of a defendant being identified for the first time in court, in the dock. If, however, a court warns itself of the danger of relying on such an identification, it is not fatal to a conviction, though it is a ground for additional caution.

6. In this instance, however, D.1 gave evidence that she was nowhere near the place of the robbery at the time when it took place and, at the conclusion of her evidence, said "P.W.1 could not identify me at the police station", after which the magistrate convicted her.

7. This was an allegation of great importance, the implication being that an identification parade had been held and that there had been a failure on the part of the victim to identify her at it.

8. If this were so, it must throw grave doubt on the validity of her identification of D.1 in the dock. It is, therefore, a matter which the magistrate ought to have investigated further before convicting D.l. It is also something which the prosecutor ought to have drawn to the magistrate's attention.

9. A passage in the magistrate's findings suggests that he himself was uneasy, as a result of this assertion by D.l. He says -

"Perhaps, in all fairness to the appellant, Crown Counsel might be able to check the defendant's statement to this Court, after she closed her case, to the effect that the victim could not identify her at the Police Station."

10. I am given to understand by counsel for the Crown that enquiries were subsequently made, that an identification parade had been held and that the victim had failed to identify D.1.

11. Mr. Bruce, very fairly, does not seek to support the conviction.

12. I have no doubt that this conviction is unsafe and that the appeal consequently must succeed.

Representation:

Mr. A.S. King (D.L.A.) for Appellant

Mr. A.A. Bruce, Senior Crown counsel, for Crown.