Tsang Po Man v. The Queen

CACC000463/1978

Coram: Trainor, J.

Date of Judgment: 26th June, 1978.

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JUDGMENT

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1. CHEUNG Hak-ping arrived in Hong Kong on the 10th January of this year and when he reached the Customs section of Kai Tak Airport he was taken into a small room to be searched. His person was searched and at the same time also his belongings. While the personal search was being made there was found a bundle of Singapore currency wrapped in a piece of paper, and at the same time a certain amount of opium was found in his luggage. In the course of that search the accused entered the room and proceeded to assist.

2. The accused is a customs officer of many years standing who, according to the evidence, from time to time did offer his assistance in the searching of suspects, particularly since, of late, a number of inexperienced officers have been on duty at the Airport.

3. The officer who found the quantity of Singapore currency, it is said to be $3,000, was Customs Officer 7764. He said that having found it in an inner pocket of the jacket of the complainant, Mr. Cheung, he handed the money and the jacket to Mr. Cheung. The evidence of Mr. Cheung was that he put that jacket and the money on a bench nearby. He said that the accused pretended to be assisting in the search but that after a certain time he picked up the currency from the bench and quickly left the room. At that time, or shortly prior to it the intimate person of the complainant was being searched. In fact it had just been completed, as I understand, the position, and the complainant had been told to sit down. The complainant said that whilst sitting he saw the accused do what I have just narrated and he proceeded to call out that his money was being taken by the accused. The unfortunate thing was that the complainant is Fukien and that is predominantly his language. He did say he knew a few words of Cantonese. Ultimately it was understood what the complainant was saying and a report was made to a senior officer. He came to the room and directed that those who had been involved in the search of the accused's person or belongings should themselves be searched. There was ample evidence both from the defence and the prosecution witnesses that the accused was present in the room when the search of those officers took place.

4. The officers present were all searched with the exception of the accused. He was asked in the court below why he didn't volunteer to be searched and he gave certain explanations none of them I might say were very impressive but for the purposes of my judgment I think that they are irrelevant. The fact is he was not searched. The various witnesses were adamant that the accused was present, and one or two, I can't remember how many, gave evidence to the effect that the accused did volunteer to be searched. One witness said that the accused asked the complainant, "Was it I who stole your money" pointing at his nose.

5. The complainant was eventually taken from that room to the room of the senior Inspector of Customs & Excise on duty and he was there questioned about what took place.

6. The interesting thing about the evidence of the complainant was that he was adamant that after the thief took the money from the bench and left he never returned to the room again. In fact he said he never saw the accused again until some considerable time later, to which I shall later refer. Now there is, as Mr. Ingham pointed out, the fact that at most times when he was giving evidence on this point the complainant said he did not see the accused present. Mr. Ingham points out that in that room which is small there were eight or nine people and the complainant was confused, in strange surroundings, everyone speaking a tongue that he didn't understand and that, possibly, he meant to convey that he did not see the accused. But the fact is that he did state categorically on more than one occasion that after the money was stolen the accused did not come back to that room. It might also be pointed out that at the time of the search of the officers there had already arrived a Fukien interpreter who said in his evidence that the complainant was asked if he could identify the person who stole the money and said no. The complainant on cross-examination on that point explained that he meant he could not identify the person who stole his money because he was not in the room at that time. This was in complete conflict with the evidence of the other witnesses; witnesses both for the prosecution and for the defence.

7. The complainant said that having made the statement to the senior inspector (counsel will correct me if I am wrong in this) he wanted to urinate and that an officer was called to take him to the lavatory. That officer was the accused. He said he went to the lavatory with the accused and while returning the accused spoke to him about "Ree" which is the Singapore word for money. The complainant went back to the office in which was the chief inspector and I think, though I am not sure, 7764. He was there for some time before he was taken to the police post. There he was charged with the offence of being in possession of dangerous drugs, and there he later, somewhere about half-past-ten that evening, (he having arrived in Hong Kong at about half-past-four) made a statement to the Police concerning his loss. At no time in the office of the Senior Inspector of Customs nor in the police station did the complainant identify the person who had taken him to the lavatory as being the person who stole his money.

8. It is important to note here the extent of the view that the complainant had of the person who stole his money. If one accepts what the complainant said he only saw the back of the thief who disappeared out of the room never to return to it. In those circumstances and in the condition in which the complainant must have been, that is the tension he must have been under by reason of having been discovered with opium in his possession, it occurs to me that it would be very difficult easily to identify a person from a view from the back, and that is what the accused said he saw. The complainant said the next time he saw the accused was at an identification parade. That identification parade was held about seven days after the incident, that is on the 17th January, and prior to making the inspection the complainant was informed that there was a suspect taking part. The parade was composed of the accused and seven other customs officers none of whom had anything whatsoever to do with this case. It was a most unfortunate line-up. The complainant was told that there was a suspect on the parade; and there was one person and one person only there whom he had seen before: the customs' officer who had taken him to the lavatory.

9. It is patently clear that money of the complainant was stolen in the search room, and here we find that of all those who were associated with that search and the activities in the room at the time it was stolen, the appellant was the only person on the parade; the other seven were complete strangers. It was almost inevitable that the complainant would make the selection he did.

10. The accused appealed against his conviction and Mr. Niamatullah has set out very many grounds to support the appeal. The only one that I shall deal with is the one to which I have referred and that is the question of the identification, or perhaps I should say the failure to identify and identification, because I consider it to be of the greatest importance that the complainant did not identify the accused prior to the identification parade.

11. The learned magistrate who tried this case found as a fact that the appellant was present in the customs room at all relevant times; he found him to be present in the beginning and he found him to be present when the various officers were searched. That being so the magistrate's finding is in complete conflict with what the complainant said that is that the accused never returned to that room. The learned magistrate's conclusion is very far from the evidence of the complainant, but having regard to the evidence of the various witnesses I think that the conclusion of the learned magistrate, the finding of fact of the learned magistrate, that the accused was present all the time must be accepted. If that were so why did not the complainant identify and challenge the appellant. Well, the learned magistrate had an explanation for that. He says that in all probability the complainant was tired, he had previously considered him to be an excitable person, that he was a person in strange surroundings with persons speaking in a different tongue and that in the room there was considerable number of people and therefore he may have missed or overlooked the presence of the accused in the room. But that is a case of a judge making up for the deficiencies in the evidence of a prosecution witness; filling in the blanks, so to speak.

12. It is notoriously dangerous to convict in a case that depends on the identification of a single person. It is quite proper to do so if the judge or jury being aware of the danger are convinced that the identification has been made for good and solid reasons. But when one finds, as in this case and as established by the evidence of the witnesses and the findings of the magistrate himself, that the opportunities of seeing the accused by the complainant were transient, and available under extreme difficulty then, indeed the danger is great. When one finds that later there was a meeting between the complainant and the accused in, what must have been, more relaxed circumstances and when there was the opportunity to look at each other one finds that the circumstances exist whereby the complainant could easily identify at a future time the person to whom he was then speaking; and that is what he did when he went on the identification parade and saw the only face that he could place in the context of the events that took place on the 10th January.

13. I arrive at a conclusion based on the facts found by the learned magistrate, and that conclusion is that it would be extremely dangerous to rely on the identification of the complainant; and to uphold the conviction in this case would be, indeed, dangerous. I think the conviction is unsafe and unsatisfactory and on that I would allow the appeal.

14. But before I leave this case I must say that in my opinion there are many matters unanswered. I hope that the attention of the proper authorities will be brought to it and that an inquiry will be held and a thorough examination made of the evidence that was given by a number of the witnesses in the court below. Moreover, I think there ought be an inquiry made into the lack of any action on the part of the Police between the 10th January and the 17th January on the loss of money by the complainant. It occurs to me that had it not been for the volte face of customs officer 7764 this case might never have been heard of, and that no steps would have been taken to investigate the complaint of that unfortunate man from Singapore. I do not know if any compensation were ever made to him, but the magistrate had no doubt, and I certainly have no doubt that it was a member of the Customs Department of Hong Kong who stole that money.

15. I allow the appeal and he can go out of the dock.

Representation:

Mr. A.M. Niamayullah (W.I. CHEUNG & Co.) for appellant.

Mr. Ingham, C.C. for Crown.