Yee David v. R.

CACC000420/1993

IN THE COURT OF APPEAL

1993, No. 420
(Criminal)

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Coram: Silke, V.-P.,Macdougall, V.-P. and Litton, J.A.

Dates of hearing: 16, 17 March and 29 June 1994

Date of judgment: 14 September 1994

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Originally, there were five defendants in a consolidated and amended indictment. As the result of pleas of guilty by the 2nd named defendant, Kan Chi Kin, there was before the jury an abstract of that indictment. In that there were four named defendants who were respectively, Lam Chun Keung (D1), Wong Siu Ling (D2), David Yee (D3) and Kan Yee Sang (D4). After trial before Keith J. and a jury, Lam Chun Keung (D1) was found guilty of the first count, that of handling stolen goods. Wong Siu Ling (D2) was found not guilty on that count. David Yee (D3) was found not guilty on the second count which alleged robbery. This related to a robbery at Flat 2, Block C, The Castle Bay, 17 Milestone, Castle Peak Road, Tuen Mun. On the third count, also of robbery, David Yee was found guilty. This was what came to be known as the "Savanna Garden" robbery. Its particulars alleged that he, on 11th April 1991, at House No. 6, Savanna Garden, Tai Po Road, Tai Po together with other persons unknown robbed Wong Siu Wai of various personal items and several sums of cash in different currencies. There was also named in the indictment as having been robbed at the same time Li Yu Chin and Wong Yuk Wah.

3. The fourth and fifth counts were related. The fourth count, laid against David Yee and Kan Yee Sang, was of robbery on 27th April 1991 at House D, Casa Delmar, Clearwater Bay Road where they and other persons unknown robbed a husband and wife of various personal possession and cash. The fifth count, and this was laid only against David Yee, was that of the rape of the wife referred to in the robbery count.

4. Kan Yee Sang (D4) was found not guilty of the robbery count. David Yee was found guilty of both the robbery and the rape count.

5. Lam Chun Keung sought leave to appeal against his conviction on the first count and Kan Chi Kin against, originally, sentence and, later, against conviction out of time. Both of them abandoned their applications. We are therefore concerned only with David Yee.

6. David Yee was sentenced to a total of 18 years' imprisonment. The total comprised of individual sentences of 9 years on each of the two robbery counts to run concurrently; he was sentenced to a period of 9 years on the rape count to be served consecutively to the other sentences. He sought leave to appeal against his convictions and, if necessary, his sentence.

7. At the conclusion of the hearing of his applications, we treated his application for leave to appeal against the robbery/rape convictions as the hearing of the appeal and allowed the appeal, quashing those convictions and setting aside sentence. We reserved our decision on the single count of robbery remaining - the Savanna Garden robbery.

Counts 4 and 5

8. Dealing first with the convictions on the robbery/rape counts. His applications first came before the court on 16th March 1994 when he was represented by Mr. Griffiths, Q.C. with him Mrs. Wacks. The Crown was represented by Mr. Cross, Q.C. with him Mr. Saw. At that hearing, we entertained an application made under the provisions of section 83V of the Criminal Procedure Ordinance, Cap.221 to admit fresh evidence. That fresh evidence related to DeoxyriboNucleicAcid - "DNA" - profiling, seminal stains which were on a chemise - or as it has been referred to and as we shall call it, - a "teddie" night-gown contrasted with a DNA profiling of the applicant.

9. The background was as follows: in the early hours of the morning of 27th April 1991 the wife woke up to find there were three men in the bedroom which she shared with her husband. One was on her side of bed, one was on the husband's side and the last was at the end of the bed. Two other men joined them. All of these men had beef knives and one had a pistol. She and her husband were tied up and pinned under a quilt on the bed. She was lying face up, her husband was lying face down. There had been no light on in the room when the robbers first entered it but one of them - it was not contested that a robbery had taken place - on her side of the bed turned the bedroom light on.

10. It was her evidence that that robber spoke English and was the one who later committed the rape. She described him as having eyes that stood out and that he did not look fully Chinese.

11. The husband and wife were asked if there was anyone else in the house and one or either of them mentioned their two sons. Two robbers went out and returned with one of the sons who was pushed to the floor, tied up and forced to lie face down. Then three of the robbers went out and brought the second son back who was treated in like manner. Initially, the wife had not mentioned her daughter who was sleeping downstairs but, she was asked if she had an amah and, after the English speaking robber threatened to kill all of them if they were not telling the truth, she disclosed the presence of her daughter. Two of the robbers went downstairs and she heard her daughter screaming. She was allowed to get up and, still tied, hopped downstairs to bring her daughter up. The English speaking robber had taken her to the top of the stairs. She and her daughter were put in the same bed with her husband.

12. When the husband and wife denied that they had any money in the house, the English speaking robber said that they could not live in such a large house without money and that he would murder the children one by one if they were not telling him the truth. The husband and wife then mentioned their ETC cards and they gave the PIN code. Two other robbers then left leaving only the English speaking robber in the bedroom.

13. The English speaking robber turned down the quilt on the bed and ran the blade of his knife up and down the leg of the wife. He took off his left glove and began to feel her leg. The wife, who was clearly a person of great resolution, thought of getting that robber's fingerprints on some item in the bedroom. She asked him to adjust the air conditioner setting and to get her a glass of water because she said she was thirsty.

14. That robber then committed sexual indignities upon her over a period which she thought to be about an hour. While the robber was doing these things, the other robbers were coming in and out of the bedroom. As the wife did not wish what she thought to be inevitable to happen to her in the presence of her daughter, the robber untied her ankles and told her daughter they were going into one of the other bedrooms to get more money. He then took her in to the nearest bedroom, pushed her onto the bed and raped her. He ejaculated. The rape took at least 15 minutes. She was taken back to her bedroom and got back into bed.

little later, two of the robbers returned with the ETC cards. Before leaving, the robber who spoke English kissed the daughter and wished her a happy birthday. He also spoke to the wife and thanked her. He took off her wedding ring but put it back on her, telling her it was his present for what had just taken place. All the family were gagged, for which the English speaking robber apologized but said it just had to be done.

e wife took part in three identification parades on 18th May. On the first of those, she identified an actor. On the second parade, she picked out no one at all. On the last parade, and this was the first parade on which David Yee was present, she picked him out as the robber who raped her and as the robber who spoke English. The jury had the benefit of seeing that take place on a video which was put before them. None of the other family members was able to identify anyone.

15. It is of note that, four months later, on 12th September, the wife was confronted with two men. One was D4 who, as we have indicated, was subsequently acquitted. She identified him as the one of the robbers who had been beside her husband's bed. She said he was the tallest of the five.

16. The trial judge had made it clear to the jury that the only evidence connecting David Yee with the robbery and the rape was the identification by the wife. He warned them as to the dangers of mistaken identification. He pointed out to them the weaknesses of the identification. He indicated to them what was the strength in the wife's identification and her capability of seeing the face of the English speaking robber which she said was "for really quite a while". The robber originally had no mask on. Later he had used a T-shirt as a mask but had taken that off after the other robbers had left to try to collect money on the ETC cards. He was not masked at the time of the rape.

17. At trial, David Yee gave no evidence, a matter of some significance in that the jury were left with only the prosecution evidence. But there was called on his behalf a witness as to his contested capacity to speak English. The Crown had called no specific evidence to show that capability. The witness was a brother in law of David Yee whose evidence was to the effect that David Yee did not speak English as far as he was aware. He had met David Yee on a number of occasions and never heard him speak it. He said that when he first met David Yee he had spoken to him in English and David Yee's reaction was that of a man who did not understand. The witness also said that all three of David Yee's sisters did speak English. David Yee, in a statement, had told the police that his father, though of mixed blood, was British. The trial judge very properly pointed out to the jury that, at the time when the defence witness had met David Yee, there was no apparent need for Yee to disguise any capability to speak English. The police inspector who had dealt with him said that everything had to be translated for him and that, on the identification parade, he showed no reaction after the wife had identified him, she speaking in English.

trial, there was a statement, dated 24th June 1991, from Dr. Betty Law Man Yee as to her examination of vaginal swabs, fingernails scrapings, blood samples, saliva samples and - in particular - the teddie. Of the genital swabs of the wife, human spermatozoa was found on the low and external vaginal swabs. There was no evidence of the presence of semen on the high vaginal swabs.

18. Areas of staining in which human spermatozoa were identified were located on the teddie. The swabs and the samples were subjected to agrouping analysis but they all yielded either inconclusive or negative results. Dr. Law's conclusion, and this was the conclusion which was drawn to the attention of the jury, was that the source of the semen could not be determined.

19. In support of the application to adduce fresh evidence, Dr. Law was called before us. She explained to us the technicalities and the process of DNA profile matching. It was her evidence that in Hong Kong DNA profiling technology had not been available for criminal case investigations until May 1992 - well after this trial took place. Having carried out her earlier inconclusive tests, Dr. Law had cut out the relevant stains and materials from the various items which had been brought to her and stored them in case of any future development which would require further testing. David Yee's legal advisers asked for that further testing to be carried out and Dr. Law did so.

20. She carried out profile characterisation on the DNA extracted from blood samples of the wife and that of David Yee. This was under the four probe-typing system. She extracted DNA from the semen contained in stains and swabs and performed a DNA profile testing in the same four probe-typing system on them. She compared the result to determine the possible source of human bodily fluid found. Her work on the low and external vaginal swabs of the wife yielded very little DNA and did not produce a result on a subsequent profiling analysis. The only stain that gave results was that on the teddie. The DNA extracts from the sperm fraction of the stain on the teddie had profile characteristics different from the wife and therefore were indicative of a semen source. The results from their supernatant fraction of the same stain were consistent with the mixture of DNA from the wife and from the same semen donor.

21. It was her evidence that to declare a match between two samples the DNA profiles of the samples should:

(a) exhibit the same number of bands;

(b) comprise bands that line up horizontally on the X-ray film; and

(c) comprise corresponding bands of determined sizes differing by less than 5% of their average size.

22. . Law had explained, and very usefully, the theory of DNA and the matching criteria. It was her conclusion that David Yee bore DNA profile characteristics different in all four systems from the semen source identified. He could not have been the donor of the semen.

this court needs to be satisfied that a verdict is unsafe and unsatisfactory before it can consider allowing an appeal in circumstances such as this, we desired to know whether the human spermatozoa discovered on the teddie could have emanated from the husband. If this were so, then the evidence might well not have been thought to be conclusive in favour of David Yee. If the semen source was from a complete stranger to the wife then clearly it would be strongly in favour of David Yee. We therefore asked that there be further tests carried out, to which the husband was willing - and a further DNA profiling of him was made.

23. We also wished to know whether, after the seminal staining had come upon the teddie, it had been washed. The wife was quite positive that it had not been - and there was fresh evidence to that effect - but we thought it better that, again, forensic examination of it be carried out. In relation to that latter test, it was the opinion of Dr. Law that the abundance of sperm heads which she found would not have been present had the teddie been washed. And it was her further opinion that any machine washing or washing with detergent to the ordinary household standard would remove seminal staining so that the results which she observed could not have been obtained. Similarly if the teddie been soaked in water for any length of time or had been hand washed to ordinary standards.

24. When this matter resumed on 29th June we had before us Dr. Law's report in relation to the comparison between the husband's DNA and the spermatozoa upon the teddie. We did not require her to give oral evidence in respect of this. It was her conclusion that the husband could not have given rise to the semen detected. This was not contested by the Crown.

25. There was therefore evidence before us of which the jury did not, and indeed at the time of the trial could not, have the benefit. Had that evidence been available to the Crown we do not speculate on what course the Crown would have taken in relation to prosecution. It might well have been that no prosecution would have been mounted in the first place despite the strength of the wife's identification. It is impossible for us to say what view the jury would have taken on the participation of David Yee in the robbery and rape counts if the DNA evidence had been before them. It would undoubtedly have been a powerful factor in any verdict to which they would have come.

26. In those circumstances, the conviction of David Yee on the rape/robbery counts can be nothing other than both unsafe and unsatisfactory. It was for those reasons that we allowed his appeal, quashed the convictions and set aside the sentences.

The third count

27. This, as will be remembered, was said to have taken place on 11th April 1991 - the Savanna Garden robbery. Again, the issue was identification.

28. Before going into a consideration of that evidence, we would stress that we are fully conscious of the inherent dangers of identification evidence, particularly in this case as shown by the quashing, and its reason, of the conviction on the other counts.

29. We are conscious of the fact that the jury acquitted him of the second count, that was the Castle Bay robbery where identification was also in issue and where there was reference to an English speaking robber. As Mr. Griffiths has raised matters relating to the issue of "English speaking", we will revert to that at a later stage.

30. We note the warning which the trial judge gave to the jury in impeccable terms at the very outset of the summing up when he said this to them:

" Well, members of the jury, let me now turn to the indictment. There are, as you know, five counts in the indictment and the defendants appear in different counts. You must consider each count against each defendant separately. The fact that you find one defendant guilty on one count does not mean that you must find another defendant guilty on that counts as well, nor does the fact that you find a defendant guilty on one count mean that you must find him guilty on any other count.

That is particularly important in this case because one of the defendants, the 3rd defendant David YEE, faces four counts in this indictment. If, for example, you are sure that he has been correctly identified by one witness and is therefore guilty of the offence to which the evidence of that witness relates, it does not begin to mean that he is being correctly identified by another witness in relation to another offence. What you have to do therefore is to reach a separate verdict for each defendant on each count, ignoring when you consider each count evidence which relates to another count only."

31. About two-thirds through what was necessarily a lengthy summing up - given the number of defendants and the number of counts - the judge had this to say to the jury:

" I have to tell you that the fact is that those identifications do not corroborate each other. In relation to each of the robberies there is just one identification. And the fact that another witness identified the 3rd defendant as a robber in another robbery is completely and utterly irrelevant. What you must do is concentrate on each of the robberies separately and not be side-tracked when considering one robbery by looking at the evidence relating to another robbery."

32. There can be no doubt that this was a clearly and correctly directed jury on the main issues which lay for their consideration.

33. In statements to the police, David Yee had denied any participation in the robberies with which he was subsequently charged. This the jury knew. There were allegations made in cross-examination that he had been severely beaten by the police in order to force a confession from him. Yet he maintained, says Mr. Griffiths, his denial. The act of an innocent man.

34. On the third count, three witnesses gave evidence. The third was a formal witness who was not present at the time and simply identified property which had been stolen. The two who gave direct evidence were Mr. Wong Siu Wai who was PW13 at trial and Madam Wong Yuk Wah, his mother, who was PW15 at trial. Only Mr. Wong identified David Yee as a participant in the robbery.

35. The numbering in the summing up - PW11 and PW13 - were the deposition numbers. Nothing turns on this.

36. It is Mr. Wong's evidence that he was woken up that night by a knocking on his door and by hearing his mother calling his name. He opened the door and saw a man pointing a knife and a gun at his mother. Four other men burst into Mr. Wong's bedroom and the man with the gun pointed it at Mr. Wong's head and told him to lie on the bed. His hands were tied behind his back and he was laid on the bed on his side. The men, at that time, wore masks over their noses and mouths. Initially the lights were not on. Mr. Wong was told to turn them on and got up and did so. He was "laid prone" on the bed again.

37. His mother's evidence as to the position in which Mr. Wong was laid down differed, for she said that he had been laid face down. This obviously, as the judge pointed out to the jury, was of some moment for a person on his side can see more than one who is face down.

38. The mother was also made to lie on the bed and both were tied up and gagged. A robber then brought Mr. Wong's young daughter into the room and seated her beside her grandmother. Madam Wong was told to watch her and keep her from crying. Despite being warned not to look at the robbers, or otherwise she would be chopped or assaulted, she did in fact look at them. The table lamp at the head of her son's bed was on but a robber covered it with a light blue towel. She said:

"So I could see a little bit."

39. The robbers, said Mr. Wong, spoke abusive language in punti and occasionally in mandarin. The mandarin was the kind of mandarin dialect spoken by Hong Kong people. He was threatened and told to co-operate. He was asked where he kept his jewellery and his valuables. He heard the robbers call each other by nicknames which he said were "Lo Tai", "Lo Yi", "Lo Sam" and "Lo Sei". Having told the robbers that his valuables were in the drawers, they searched all the drawers in the room and this took about one hour. They found nothing of great value. One of the robbers then poked a gun at his head and said that if he did not surrender more things his daughter would be taken away as well when they left. Mr. Wong said that the man who spoke was Lo Tai.

40. The robbers carried on searching until some time between 4 and 5 a.m. During the time the robbers were in the room Mr. Wong said that the lighting was such that:

"I could fairly clearly see the appearance of the people."

41. It is clear from a combination of the evidence of these two witnesses that Mr. Wong had looked, or glanced, at the robbers from time to time during the course of this whole incident. His mother described him as "stealthily looking" and sometimes turning his face sideways to look.

42. As the evening progressed the robbers started to smoke cigarettes and get drinks from the refrigerator. They walked to and fro around the room. They let their masks drop and did not replace them.

43. Having made inquires as to the residents in the house next door, which the robbers wished to "do that as well", they left. Before they left the one holding gun said, very fiercely, that they were leaving and no report to the police should be made. In fact, the Wongs freed themselves shortly after the robbers left and telephoned the police.

44. It would seem that the house next door was not "done as there was a dong barking there. The robber who made the greatest impression on Mr. Wong, and there were two whose appearances were impressed upon his memory, was the one addressed as Lo Tai, who was the person who carried his two-year-old daughter into the bedroom and who later threatened to take away his daughter.

45. Mr. Wong had at various times during the whole robbery lifted up his head to speak to the robbers. Of the occasion when the daughter was carried into the room, he said this:

"Q. Wasn't he [reference was to Lo Tai] pointing a gun at your head and speaking to you at the same time?

A. There were several stages. But I wish to reiterate an occasion which gave me the deepest impression. It was at the time when my daughter was carried to my mother. My mother was told not to look at them, otherwise she would be chopped to death. They were saying that they would kill her if she dared look at them. It was at that time that I lifted up my head and said to them, 'Please, my mother is suffering from heart disease, don't scare her.' That is the reason why I had a deeper impression of that person and also coupled with the fact that he threatened to take away my daughter."

46. Mr. Wong described Lo Tai as being of fair complexion with thick eyebrows and big eyes. He was tall, about 1.7 metres. He was strong and he looked a bit like a foreigner. He was a bit different from the average Chinese. There were, therefore, two distinct occasions which impressed themselves on Mr. Wong's memory: the first was when his daughter was brought into the room by Lo Tai and the second was when Lo Tai, the man with the gun, threatened to take the daughter with them unless further valuables were pointed out.

47. Mr. Wong attended three identification parades on 18th May. On one of those parades he identified no one; on another he identified an actor; and on the third he identified David Yee.

48. The trial judge pointed out to the jury what he described as a gap in the evidence on these identification parades saying this to the jury:

" So we know from Chief Inspector WHYTE that on the identification parade Mr WONG picked out the 3rd defendant in one parade and then an actor in another parade. The gap in the evidence is that we do not know whether he thought that Lo Tai was the 3rd defendant or whether he thought that Lo Tai was the actor. Do you follow me?

Be that as it may, the fact remains that Mr WONG did identify the 3rd defendant as one of the robbers. Whether is was Lo Tai or whether it was the actor, for this purpose it does not matter."

49. Mr. Griffiths, in the light of what he says are the weaknesses of Mr. Wong's identification, and these were drawn fully to the attention of the jury by the trial judge, submits that that this matter deserved greater emphasis than that given it by the trial judge.

50. On 27th December 1991 Mr. Wong attended further identification parades. At the first of them he identified two actors and at the second he identified a suspect and an actor. The suspect was not before the court and there was no evidence as to whether he had in fact participated in the robbery.

51. In the course of cross-examination Mr. Wong was asked to describe the appearance of the robber who had poked the gun at him. He repeated his earlier description that he was rather pale and his eyebrows were thick. He agreed that, throughout the incident, only one robber had pointed a gun at him. He agreed that was the man he had pointed out on 18th May.

52. Of the identification parades on 27th December, he had said that the police had told him that he could tell them when he had found someone of similar appearance. He said that on the first occasion he had seen two who looked a bit like the culprits in the robbery. So, when he walked out of the room, he told the police that they possibly "looked like". This parade was of course some 8 1/2 months after the incident.

53. Mr. Wong was asked questions concerning a statement he had made to the police after the identification parades on 27th December. Mr. Wong accepted that in that statement he had said that the person standing at No.5, whom he had picked out, was the one who used a black pistol to point at his forehead and who had told him to turn on the light. That person was also the one who told him to lie face down on the bed. David Yee was not on that parade.

54. It is Mr. Griffiths' contention that, apart from what he suggests are weaknesses in the identification evidence, we should also treat any identification with special care because of the, to all appearances, strong identification by the wife in the rape/robbery counts which has been shown, by the later DNA evidence, to be wrong. He urges us to the view that this jury although very carefully, and clearly directed on the matter may, nevertheless, have strengthened the Wong identification by referring to the identification, strong as it then appeared, on the rape/robbery counts.

55. With respect to him, this jury seems to have taken their duties seriously and considered the options open to them with care. Having convicted on the rape/robbery counts, where there was positive evidence from the victim that the man who was identified as David Yee was English speaking, they nevertheless acquitted David Yee on the second count where there was also identification evidence and evidence relating to the robber being an English speaker. This, in our view, indicates that they considered each count on the indictment separately as they were directed so to do.

56. Mr. Griffiths in his attack upon the Turnbull directions given by the judge complains that they were not full enough and that, in any event, as the identification of Mr. Wong, was one of observation made in difficult conditions, the judge should have withdrawn the case from the jury. He seeks to support his submissions by referring us to Scott v. R. [1989] AC 1242 and to the more recent case of Reid (Junior) v. The Queen [1990] 1 AC 363.

57. In the course of giving judgment in Turnbull, the Court of Appeal said at page 229:

"When in the judgment of the trial Judge the quality of the identifying evidence is poor, as for example, a fleeting glance, or a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification ..."

58. We accept that here there was no other evidence which went to support the correctness of Mr. Wong's identification. We accept that, while his observations were made under difficult conditions, they took place at intervals over a long period. We do not consider here that the quality of the evidence was so poor in the Turnbull sense as to justify the judge in withdrawing the issue from the jury. Whether the identification was correct or not was essentially a matter for a properly directed jury considering all the relevant evidence.

59. The other half of Mr. Griffiths' submissions related to the form of the directions given. Both Scott and Reid (Junior) were appeals from the Court of Appeal of Jamaica. In the trials, which were the root of the Appeals, no proper directions on the Turnbull lines had been given by the trial judge. In Scott, the evidence of identification was contained in depositions and there was substantial argument on the admission of those depositions. However that may be, the Judicial Committee was of the view that the evidence of identification contained in those depositions was of such poor quality that it would have been unsafe to convict upon it even if the jury had received, which they did not, appropriate guidance in the summing up.

60. The Jamaican Court of Appeal had taken the view that the directions on identification were adequate and had said that the judge had discussed with the jury the danger of identification evidence. The Judicial Committee, in the judgment delivered by Lord Griffiths, did not agree, for it was their view that the judge did not discuss with the jury the fundamental danger of identification evidence:

"which is that an honest witness convinced of the correctness of his identification may yet be mistaken."

61. That fault cannot be laid at the door of the judge here.

62. It is Mr. Griffiths' further contention that Reid (Junior) laid down further and stricter formulae for directions to juries on the issue of identification - thus extending the guidelines given in Turnbull. With respect, we do not agree. There had been a number of cases from the Court of Appeal of Jamaica where that court had clearly indicated that it was of the view that Turnbull need not necessarily be followed. What the Judicial Committee was doing in Reid (Junior) was reiterating, in emphatic language, the desirability and indeed the requirement, that the courts of Jamaica accept the guidance given in Turnbull. The expressions used such as "special category", "class that is particularly vulnerable to mistake", "very special care" were intended to that end.

63. The jury here was left under no illusion that the case against David Yee depended, as the judge put it at page 6 line J,K:

"completely on the correctness of the identifications ...".

He went on to warn them of the "special need for caution" before convicting in reliance upon identification evidence. He repeated the expression "special need for caution" a paragraph or two later in his summing up, having told the jury why this form of warning was necessary. We do not consider that the directions of the trial judge can be faulted. Provided the Turnbull guidelines are followed, it is not incumbent on trial judges to use the form of emphatic language made use of in Reid (Junior).

64. It has often been said that the invoking of the Cooper [1969] 1 QB 267 "lurking doubt" is the last resort of desperate counsel. The test set out by Lord Widgery at page 271 was that:

"That means that in cases of this kind [unsafe and unsatisfactory] the court must in the end ask itself a subjective question, whether we are content to let the matter stand, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it."

65. Mr. Griffiths in the light of all the circumstances of this trial asks us - and he is fully entitled to do so - to pose to ourselves here that subjective question. Have we a sense of unease?

66. In answering that question, we have given earnest consideration to all the evidence that was before the jury, to the obvious care with which the jurors performed their duties and to the nature and quality of this summing up. We have not permitted ourselves to be over influenced by the quashing of the convictions against this applicant on the rape/robbery counts and the reasons for that decision though we have the submissions of Mr. Griffiths firmly in our minds. Mr. Wong was, no doubt, giving honest evidence, his main observations - "the greatest impression" - were supplemented by occasional glances.

67. His identifications - incorrect ones - on the 27th December were as the result of his being asked to pick out "persons similar" to the robbers. His identification of David Yee was a positive one.

68. We have considered with anxious care, in the unusual circumstances of this appeal, the submissions so forcefully made by Mr. Griffiths.

Conclusion

69. Could there be, strangely coincidental as it is, someone at large in Hong Kong who is different from the average Chinese and who bears a startling resemblance to David Yee? Could that person have been involved in three crimes - the Castle Peak Road, the Savanna Garden and the Casa Delmar robberies - in each of which the modus operandi was almost identical?

70. Mr. Wong, honest as he may have been, did make mistaken identifications.

71. In this case, exceptional and extraordinary as the circumstances are, we cannot say with confidence that we are content to let the matter stand.

72. After a great deal of thought, our reaction, to quote Lord Widgery, "produced by the general feel of the case" is to make us wonder whether an injustice has been done.

73. That being so we have come to the conclusion that this conviction is unsafe and unsatisfactory.

74. We therefore give leave to appeal, treat the hearing of the application as the hearing of the appeal and also quash the conviction on the third count - the Savanna Garden robbery.

Representation:

J. Griffiths, Esq., Q.C. & Mrs. Wacks (Lawrence Ong & Chung) for Applicant

I.G. Cross, Esq., Q.C. & D.G. Saw, Esq. for Crown/Respondent