HKSAR v. Liu Wilon Felix

CACC 419/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 419 OF 2004

(ON APPEAL FROM DCCC NO. 550 OF 2004)

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BETWEEN

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Before : Hon Woo Ag CJHC, Stock JA and Tong J in Court

Date of Hearing : 1 February 2005

Date of Judgment : 1 February 2005

Date of Reasons for Judgment : 8 February 2005

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REASONS FOR JUDGMENT

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Hon Woo Ag CJHC (giving the Reasons for Judgment of the Court):

Introduction

1.The applicant, Liu Wilon Felix, was convicted before Deputy Judge Dufton in the District Court after trial on a charge of robbery and was sentenced to be detained in a training centre.  He applied for leave to appeal against conviction.

2.At the conclusion of the hearing, we dismissed the application.  Our reasons are set out below.

Facts

3.The prosecution’s case was that at about 8:00 am on 24 February 2004, two teenage schoolboys, PW1 and PW2, were on their way to school when two males approached them, led them to a playground and then robbed them of their money and mobile phones.  One of the robbers (robber A) searched their bodies and took away their property while the other robber (robber B) broke a glass bottle to point at them.  Sixteen days later, on 10 March 2004, sometime after 5:00 pm, while the two schoolboys were in a football pitch in a different playground, they saw one of the culprits and recognised him as robber B.  They called in the police and identified the applicant to them.  PW3, PC53034, arrested the applicant for the robbery. 

4.The applicant did not give evidence before the judge.  He called his father and grandmother to give evidence of an alibi, in that he was at home with his father and his grandmother at the time when the robbery took place on 24 February 2004.  

5.The judge rejected the alibi evidence as being not credible or reliable.  He accepted the evidence of the schoolboys that the robbery took place as described by them, and after a careful analysis of their identification evidence, was satisfied that the applicant was guilty as charged. 

The grounds of appeal

6.The grounds of appeal are directed at the quality of the identification evidence.  They complain that the judge failed in his Reasons for Verdict to demonstrate that he was mindful of the special weakness in the prosecution evidence regarding the identification issue. 

7.On behalf of the applicant, Mr Duncan Percy in his written argument referred us to R v Cheung Ping-kwong, CACC 149/1989 where Power JA stated:

“11.… We are satisfied that a District Judge is not necessarily called upon to be seen to give himself an explicit warning in the terms of Turnbull.  He should, however, show that he has been mindful of the considerations to which Turnbull makes reference.”

8.After reciting what was said by the judge in the Reasons for Verdict in that case, Power JA continued:

“	15.	The trial judge was, we are satisfied, clearly mindful of the Turnbull considerations.  He took into account, as the passages I have read show, the lighting at the scene, the opportunity to observe, the length of observation and, in the case of PW3, her prior acquaintance with the applicant.  He was satisfied, to paraphrase the words of Turnbull, that the quality of the identification evidence was good and remained good at the close of the accused’s case.
		….
	17.	The trial judge showed himself to have been mindful of all material factors there is, therefore, nothing in the first two grounds.”

9.Mr Percy relied on the judgment of the Court of Appeal in R v Cheung Tak-chi, Crim App. No. 43 of 1989, unreported, 6 April 1990, per Kempster JA, which was referred to in R v Pham Van-hai, CACC 127/1990, as follows:

“	Assuming that the judge took all these matters into account we have to consider to what extent he was called upon to reveal his thought processes in the Reasons for Verdict.  Here we bear in mind the terms of s 80 of the District Court Ordinance (Cap 336).  It was not incumbent upon him to outline all the pros and cons considered before making his findings as to veracity.  No more was he required to give himself the explicit directions, appropriate had he been summing-up to a jury, explained in R v Turnbull [1977] QB 224 and R v Reid [1989] 3 WLR 771.  However, it was in our view necessary for him to indicate that he had in mind the risks inherent in relying exclusively upon evidence of identification and this he failed to do.
	While we accept that knowledge of the burden and standard of proof required in a criminal case can be assumed when one is considering the Reasons of a professionally qualified judge the dangers inherent, for example, in identification evidence do not fall into the same category.”

10.Mr Percy also referred us to R v Dinh Van Duong & Anor [1996] 2 HKC 604, where Mortimer JA observed at 607I-608A:

“…  Usually it is necessary for a judge to summarise both the weaknesses and the strengths of identification evidence but it is not necessary for a judge to do so in every case.  This court cannot and should not lay down rules for this.  The summing up must be tailored to the evidence in each case in order to achieve a fair summary.  Having regard to the well recognised dangers inherent in identification evidence, the Turnbull directions must be clearly impressed with the authority of the judge and must not be blunted or watered down by comment, or selectivity.”

11.That case arose from a jury trial.  The Court of Appeal quashed the conviction.  Mortimer JA explained:

“The judge’s summary of the victim’s evidence was selective and misleading, he failed to give any proper Turnbull direction on recognition and such direction as he gave was blunted.  In these circumstances we were satisfied that the convictions were unsafe.”

12.On the other hand, Ms Mary Sin, for the Respondent, in her written argument referred us to a number of decisions of this Court as to how to deal with a judge’s assessment of the evidence before him, including identification evidence. 

13.In R v Chik Shui-wai & Another [1977] HKLR 259, McMullin J, delivering the judgment of the Court of Appeal on the failure of the trial judge to give a full Turnbull treatment, said at p 270:

“Delivering the judgment of this court in Criminal Appeal No. 152 of 1977 Pickering, J.A. while acknowledging the importance of the judgment in Reg. v. Turnbull, coming as it does upon the heels of the recommendations made by the committee under the chairmanship of Lord Devlin, and the general anxieties which set that committee in motion, nevertheless emphasized that the Court of Appeal was laying down the guidelines only.  Obviously, cases will differ enormously in the details of different identifications and this court will not countenance any attempt to crystallize the wisdom underlying these guidelines in a series of rigid prescriptions to be construed with the strictness of a statute so that a departure from them in one or more particular must be said to be fatal to a conviction.”

14.In R v Leung Chi-fai & Anor [1987] 3 HKC 224 at 227G, the Court of Appeal observed:

“In a number of cases, it has been emphasized by courts that the guidelines prescribed in R v Turnbull [1976] 3 All ER 549 are guidelines only and that they are not to be interpreted in an inflexible manner or treated as if they were the words of a statute.”

15.In R v Sheik Abdul Rahman Bux & Ors [1989] 1 HKLR 1 at p 4H, Roberts CJ stated:

“	In Chan King-man [[1980] HKLR 105], this Court stated that a district judge’s duty had been correctly set out by Blair-Kerr, J. in the following passage from R. v. R. E. Low [1961] HKLR 13 at p. 82 which is repeated again, for easy reference:
‘	It was contended by Mr. How that a district judge’s statement of his reasons for verdict prepared in pursuance of s. 30 of the District Court Ordinance was comparable to a judge’s summing-up to a jury.  I do not agree with this view.  The district judge’s only statutory duty is to record a short statement of the reasons for the verdict.  There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence. … But it must be remembered that the district judge is himself the jury.  He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.
	… But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the district judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the district judge’s findings if, having regard to the whole of the evidence, such findings appear reasonable.’”

16.Bearing in mind all that had been said in the above authorities, it seems to us that the question boils down to whether generally the identification evidence is satisfactory, whether there are special features of weakness in the identification evidence, and depending on the circumstances of each case, whether it was proper for the judge not to have entered into a specific analysis of such weaknesses or such weaknesses can be resolved even without any explanation in the circumstances that prevailed before the judge.  Ultimately it is for the appellate court to find whether the conviction is unsafe or unsatisfactory.

17.With this in mind, we turn to examine the evidence. 

The alleged weaknesses

18.There are several matters which Mr Percy castigated as weaknesses in the identification evidence.  We will deal with them one by one.

19.Both PW1 and PW2 told the judge that when they were robbed on 24 February 2004, the two robbers had dyed golden hair.  Mr Percy’s complaint is that there was no evidence that on 10 March 2004 when the applicant was arrested he had any dyed golden hair.  He also drew in aid the testimony of the applicant’s grandmother that the applicant never dyed his hair. 

20.The second weakness of the identification evidence complained of by Mr Percy is that PW2 said in evidence in-chief that on 24 February 2004, when he was robbed, robber B had a red dot or spot at the corner of his left eye.  However in re-examination, when PW2 was shown his witness statement dated 25 February 2004, an answer he gave in the witness statement was read out, which stated:

“At the corner of the right eye of WP2 (ie robber B) there was a red mark.”

21.The complaint is that there was no reference to either of these two special features in the judge’s Reasons for Verdict, and that there was no evidence in the course of the trial that the defendant had similar features when he was arrested on 10 March 2004.  

22.Right from the beginning of his Reasons for Verdict, the judge noted:

“

6.

…  The prosecution case depends wholly on the correctness of the identification of the defendant as one of the robbers by PW1 and PW2.  In considering the evidence of identification I direct myself as to the special need for caution before reliance can be placed on the correctness of the identification in accordance with the principles established in R v Turnbull [1976] 3 WLR 445.  I remind myself a mistaken witness can be a convincing witness and that a number of witnesses can all be mistaken.”

23.The judge then proceeded to examine the evidence relating to the circumstances of the robbery.  He came to the conclusion that:

“	20.	…  The opportunity to identify the robbers was not that of a fleeting glance.  The robbers led PW1 and PW2 to the playground where over a period of about 10 minutes the robbery took place.  This was 8.00 am when the lighting was bright. ….
		…
	22.	I am satisfied so I am sure on all the evidence that both PW1 and PW2 did have the opportunity to have a good look at both the robbers and that if they saw one or both of them again they would be able to recognise them.”

24.The judge also examined the evidence of PW1 and PW2 relating to the event leading up to the arrest of the applicant on 10 March 2004.  Regarding the golden hair, the judge said:

“I asked PW1 if the defendant had golden hair when he pointed him out to the police.  PW1 replied that as far as he could recall he had a different hairstyle. … In cross-examination PW2 said he could not see the hairstyle of the defendant because he was wearing a hat.  …”

25.The judge had not mentioned the red spot on the right or left eye corner of robber B, referred to in the evidence.  This is not surprising.  PW1 was not asked about any special feature on the face of the robbers by both counsel for the prosecution and for the defence.  On the other hand, it was only approaching the close of the examination in-chief of PW2 that he was asked by prosecuting counsel whether he noticed anything particular about the face of robber B.  The answer was:

“At that time, at the corner of his left eye, there was a red dot.”

26.Counsel for the defence did not take up this matter in his cross-examination.  He did not challenge that answer.  It was in re-examination that the point was brought up again by prosecuting counsel.  He merely asked PW2 if he added any description of the culprits at the end of his statement to the police made on 24 February 2004.  Then the judge took over to ask PW2 to just read out the last answer in the statement which PW2 did, as follows:

“At the corner of the right eye of WP2 there was a red mark.”

27.It appeared that no one took heed of this discrepancy between the left eye as in PW2’s oral testimony and the right eye as recorded in his statement to the police.  The witness was not asked any questions on this discrepancy by either counsel, nor by the judge. 

28.Apparently, as far as the golden dyed hair and the red mark on the corner of the eye are concerned, there was no evidence that they were permanent features which could be expected to remain unchanged 16 days after the robbery when the applicant was arrested.  That was probably the reason why both counsel did not pay too much attention to these two features: neither asked PW1 or PW2 whether the applicant was found to have a red mark at the corner of his eye or had dyed hair when he was arrested on 10 March 2004.  

29.In our judgment, insofar as the judge had dealt with the identification evidence in great care in all other aspects, borne in mind that honest witnesses could be mistaken, and come to the conclusion that he was sure that the applicant was robber B, we do not feel that it is proper for this Court to substitute its view, even if it may differ, for that reached by the judge.  Moreover, the red mark was not even a matter touched upon by defence counsel in his cross-examination of any of the prosecution witnesses.  If it had been anything of significance, defence counsel, who had conducted lengthy cross-examination of the witnesses, would surely have taken it up.

30.The next matter complained of by Mr Percy is that in cross- examination of PW2 on issues that related to 10 March 2004, PW2 identified the applicant by reference to the actions of robber A.  This arose out of the following answer given by PW2 in cross-examination, referring to the event when he saw the applicant across the football pitch on 10 March 2004:

“Well, since I could recognise, so I ask Wong [ie PW1] to see if he could recognise or not, if he could recall whether that person was the one who took away our belongings.”

31.Mr Percy contended that the person seen on 10 March 2004 by PW1 was there described as robber A, who had taken away the money and mobile phones from the victims, rather than robber B who broke a bottle to threaten them on 24 February 2004.  As submitted by Ms Sin, we consider correctly, this is taking the answer totally out of context.  As the judge had pointed out to counsel for the defendant before him, the line of cross-examination adopted by counsel relying on this answer as pointing to robber A rather than robber B would cause a confusion, because both robbers were in a joint enterprise and could fairly be said as persons taken away the victims’ properties or robbing them.  There is no substance in this point.

32.Mr Percy also complained that in evidence in-chief PW1 said that he identified robber A on 10 March 2004, but later PW1 said he identified the applicant as robber B.  

33.It is true that when PW1 was first asked in-chief as to what happened on 10 March 2004, he answered:

“On that day, coming across A.”

However in the rest of his evidence, in-chief and in cross-examination, he was categorical that the person he found on 10 March 2004 was the person who broke the glass bottle on 24 February 2004.  This so-called discrepancy now relied on by Mr Percy was not even alluded to in the cross-examination of PW1 by defence counsel before the judge.  Looking at the evidence as a whole, we do not think that this raises any concern as to the quality of the identification evidence as accepted by the judge. 

34.Mr Percy referred us to PW2’s evidence that he had seen the applicant on one or two previous occasions between 24 February 2004 and 10 March 2004.  He complained that the judge failed to warn himself or demonstrate that such evidence was fraught with danger and could not be relied upon as supportive of PW2’s correct identification. 

35.We do not think that Mr Percy is correct in saying that the judge relied on this evidence in support of PW2’s identification of the applicant.  What the judge said was this:

“	53.	Further this was not the first time that PW2 had recognised the person B.  PW2 was asked in cross-examination whether he discussed with PW1 about the incident after they had made a report to the police and before the 10th March, including discussion as to the appearance of the robbers.  PW2 replied 2 or 3 times and explained that on 1 or 2 occasions after leaving school alone he saw B but was unable to obtain a telephone to call the police or when he could the person had gone.  PW2 then related this to PW1.  PW2 agreed he had never told the police about these 1 or 2 occasions.
	54.	Mr Hui [defence counsel] submits that doubt is cast on the identification by PW2 by reason of the fact that he sought as Mr Hui put confirmation from PW1.  PW1 and PW2 were both robbed therefore it is not surprising that PW2 would tell PW1 that he had seen one of the robbers and ask PW1 whether he could also recognise him.  PW2 specifically disagreed he asked PW1 to look because he was not sure the defendant was one of the robbers and disagreed that he only decided to call the police after PW1 said he could recognise the person.  I reject the submission PW2 asked PW1 if he could recognise the person as well because he was unsure of his identification.”

36.In our view, the judge referred to the evidence of PW2 that he had seen the applicant on one or two occasions between the time of the robbery and the time of arrest for the purpose of answering defence counsel’s submission that PW2 had had discussions with PW1 and had to seek PW1’s confirmation about the identity of the robbers when he saw the applicant on 10 March 2004.  The judge had not used the one or two sightings to strengthen PW2’s identification evidence. 

37.The last point raised by Mr Percy is in relation to the distance over which PW1 and PW2 claimed to have recognised the applicant on 10 March 2004.

38.What we need say is that the judge had noted the so-called discrepancy and stated:

“	51.	I am satisfied the discrepancy as to how close PW1 and PW2 went up to the defendant after pointing him out to the police is more apparent than real and not material.  In answer to the court PW3  [ie PC53034] said he did not see what PW1 and PW2 did when he approached to arrest the defendant and when asked how did he know they did not follow behind replied he told his colleagues to remain there with the boys and wait for him.
	52.	I am satisfied that both PW1 and PW2 were able to go close enough to see the defendant so that they could recognise him as one of the robbers.  PW2 testified that after having a clear look he recognised the person was B and then told PW1 after which a report was made to the police …. The fact PW3 says he could not see the face of the defendant clearly from 30 metres must be viewed in the context that he was looking at the defendant for the first time.  PW1 and PW2 on the other hand recognised the defendant as one of the robbers.”

39.In our view, the judge had examined the evidence very carefully, and he had before him, as Mr Percy very fairly conceded, the evidence of two witnesses both positively identifying the applicant as the culprit.  We see nothing in the contentions of Mr Percy, who has left no stone unturned, as able to raise any doubt in our minds that the judge’s conclusion is correct.  We find the conviction neither unsafe nor unsatisfactory.

Conclusion

40.For the above reasons, the application must be dismissed.

Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent

Mr Duncan Percy, instructed by Messrs Wong & Associates, for the Applicant