Wong Shing @ Wong Ming v. The Queen

CACC000431/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 431 OF 1975

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Coram: Huggins, McMullin & Cons, JJ.

Date of Judgment: 11th August 1975.

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JUDGMENT

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Huggins, J.:

1. This is an appeal against conviction and sentence on a charge of robbery. Two persons holding knives entered the premises of a fishery company. Some eight or nine inmates were threatened and told to squat down. Some of them were tied up. The two men robbed the persons present of a total of $21,400. The men then escaped. Subsequently the Appellant was arrested. He was put on an identification parade with another man and a number of witnesses were called on to the parade. Two positively identified the Appellant: three did not identify him.

2. The learned judge was well satisfied that a robbery had taken place and he appreciated that the identification of the Appellant was the real issue which he had to decide. There was some slight difference between the Appellant and the description of him given by the witness YUNG Man to the police, but we think the learned judge was perfectly entitled to say that he attached no great significance to this difference. What concerned the judge was that there appeared to have been some impropriety in the conduct of the identification parade. He thought that that impropriety arose from the fact that the parade was not conducted in the manner recommended in Home Office Circular No. 9 of 1969. The Home Office Circular advises that where there are two suspects there should be separate parades held. The learned judge said, after referring to this circular:

"Accordingly by itself it would be unsafe to convict the defendant upon this [the identification parade] evidence".

Nevertheless, he went on to convict the Appellant and there does appear to be some contradiction in the way in which the judge expressed himself. Having said that it would be unsafe to convict upon this evidence he did in fact convict upon that evidence and the evidence of a positive identification in court. It is obvious that if it was unsafe to convict on the identification parade evidence the addition of an identification in court was not sufficient to justify conviction, for the subsequent identification depended to a very large extent upon the earlier identification. However, the judge did say that the two witnesses who made the identification were confident in the evidence that they gave and had no doubt as to the correctness of their identification.

3. We think that the learned judge has indicated by what he has said that he attached too much weight to the Home Office Circular and, indeed, appears to have regarded it almost as laying down a matter of law. That was not correct and, indeed, in an earlier case this Court has indicated that it does not entirely agree with the whole of that circular. The opening words of the circular are undoubtedly correct: "the object of an identification parade is to make sure that the ability of the witness to recognize the suspects has been fairly and adequately tested". Every case must be looked at with that test in view. The mere fact that in the present case there were two suspects on the parade did not make it unsafe to convict the defendant. It was a matter which might have to be considered, for the judge had to be satisfied that there were sufficient actors on the parade to make the parade a proper test: as we indicated in the earlier case, there must be sufficient actors for the number of suspects. In the present case we do not think that there was any ground for objection to the number of actors in relation to the number of suspects. It is quite clear that the learned judge thought that despite what he apparently treated as a matter of law, namely the undesirable inclusion of two suspects in the parade, the confidence with which the identification was made overcame the defect. We do not take his statement that "it would be unsafe to convict the defendant on this evidence" as meaning that it was unsafe in any circumstances. Although he expressed himself in an unfortunate manner, we think he clearly meant that he was merely warning himself of the danger where there are more than one suspect on a parade and deciding that in the circumstances of this case the identification was sufficient. We are satisfied that there has been no miscarriage of justice and the application for leave to appeal against conviction is dismissed.

4. As to the appeal against the sentence of five years' imprisonment, the Appellant has really advanced no ground for the interference of this Court and we see no reason to interfere. The application for leave to appeal against sentence is likewise dismissed.

11th August 1975.

Representation: