The Queen v. Kwong Chung Keung

CACC000464/1991

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Coram: Hon. Silke, V.-P., Macdougall, J.A. & Bewley, J. in court

Dates of hearing: 26th February and 22nd May 1992

Date of delivery of judgment: 22nd May 1992

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J U D G M E N T

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Bewley, J. (delivering the judgment of the court)

1. The applicant was convicted by Judge Cameron in the District Court on. 6th September 1991 of blackmail and claiming to be a member of a triad society. The offences were alleged to have taken place on 3rd May 1989. The first trial had been fixed for June 1990 but the applicant absconded. He was arrested and a new trial took place.

2. The principal prosecution witness, Paulo Lobo, a proprietor of a hair salon in Bonham Road, said that on 3rd May a man entered the salon and asked him to go outside. There were three other men in the doorway who surrounded him. One of these men said that they had come to collect a protection fee. He asked for the equivalent of the wages of a shampoo boy - about $3,000 a month - and he also said that he was of the Wo Hop To. Lobo was scared and he told the men he wished to discuss the matter with his partner, to which they agreed. Because a protection fee demand was unusual in that area he had decided to wait to see if the men returned. In fact they did not return. He only reported the matter and gave a description of the men when he was visited by the police later that month.

3. The applicant was arrested on 29th September 1991.

4. On 17th October 1991 an identification parade was held and the man who had asked for a protection fee was identified by Lobo as the man standing at No.8 position. He had not seen him before the 3rd May visit. He said they had been face to face in daylight; the others in the group had also spoken, but his main attention was on the man who has spoken first outside the salon and said he was Wo Hop To.

5. Chief Inspector Coombs was in charge of the identification parade. He said Lobo identified one KWONG Chung-keung, who had stood at No.8 in the parade.

6. The applicant did not give evidence or call witnesses. The only issue at trial was that of identification.

7. The first ground of appeal is that there was no evidence that the applicant was present at the scene on the 3rd May, or that he was picked out at the identification parade. Lobo identified the blackmailer at the parade and the Chief Inspector said the name was the same as the applicant. There was no suggestion that the applicant was not on the parade or was not standing at No.8. The point was not taken by the applicant's counsel at any stage of the trial. Mr Wong, who appears for the applicant on appeal, has relied on a Divisional Court case Jones v. Carter, (1956) Crim. L. Rev. p.275, in which it was held that the prosecution had to see that their tackle was in order where the identity of a car driver was concerned. That, however, was a case where the prosecution failed completely to identify the driver, which was far from the situation here. We are satisfied that the applicant was sufficiently identified.

8. The second ground of appeal is that Lobo said the man he picked out at the parade was relatively older than the others. This point was not referred to by the judge in his reasons. Lobo denied in evidence that this was the reason for his identification.

9. Chief Inspector Coombs said the men on parade were between the ages of 20 and 26. The applicant was in fact 23 at the time. There was no complaint made at the time concerning the ages of those on the parade. The Chief Inspector said he would not have held the parade if the applicant had looked older than the others. Even if he did look older, this in itself does not make the identification parade unreliable or unfair. The judge warned himself of the special need for caution and was aware of the five months time lapse. We are satisfied that there is no substance in this ground.

10. The third ground of appeal is an additional amended one and reads that, the remark by the learned trial judge in assessing the quality of the identification evidence "that the evidence of identification was uncontradicted by any evidence coming from the defendant himself" was wrong, in that the quality of the identification should be assessed independently of the evidence, if any, from the defendant.

11. There is nothing on the record to suggest that the judge did not properly assess the quality of the evidence of identification led by the prosecution. He was merely stating the fact that the defendant did not give evidence. He was not suggesting that there was an onus of any kind on the defendant.

12. We do not consider that the verdicts were either unsafe or unsatisfactory and we refuse this application.

Representation:

Mr Saw, Crown Prosecutor, for Respondent

Mr Richard Wong, inst'd by M/s K.F. Wong & Co., for Applicant