Ng Lin-pong v. The Queen

CACC000476/1979

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Coram: Trainor, J.

Date of Judgment: 22 June 1979

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REASONS FOR JUDGMENT

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1. NG Lin-pong was charged that on 16th March, 1978 he with a person unknown robbed CHOW Moon of $380. He was convicted and sentenced to eighteen months' imprisonment. He appealed against his conviction and I allowed the appeal and I now give my reasons.

2. At 2 a.m. on the 16th March, 1979 CHOW Moon was walking along Tung Choi Street towards Bute Street. He was accosted by two Chinese men of whom the appellant was one. He said the appellant "grabbed me in front and pushed me" and continued "He then grabbed my neck from behind in the doorway". He said the appellant told him to stand still or he would beat him to death while the other told him to take out all the money he had. He said that man took all his money and the two ran into a lane and towards Sai Yeung Choi Street. He said both men intended to go towards Nathan Road and he went to the corner of Bute Street and Tung Choi Street where he saw some passers-by and shouted he had been robbed. He continued "Defendant tried to turn back intending to hit me, a police constable met me at that time and told me to be calm ... I told him I was robbed. Then the police constable arrested the defendant and the three of us went to Mongkok Police Station together".

3. When I read that the appellant turned back to hit the complainant after the complainant shouted in the presence of passers-by that he was robbed I was somewhat surprised; it is not the usual behaviour of a robber. But the complainant's answers in the brief, three question cross-examination added to my surprise:

4. The only other witness was the police constable. He said he was at the junction of Bute Street and Tung Choi Street when he heard a Chinese man shouting "Robbery". He said he ran to the man who told him that he had been robbed and pointed to the appellant and said he had robbed him. The witness said that when the appellant saw him he tried to board a taxi but could not as the door was locked. He said when he first saw the appellant he was "rushing" towards the victim and he said to him "You had better not run".

5. There is a clear conflict between the evidence of the two witnesses as to what the appellant was doing. The complainant saying that the appellant turned and walked back to hit him but later said he walked back intending to board a taxi, and the police witness saying he first saw the appellant rushing back towards the victim but on seeing the witness he tried to board a taxi.

6. When the police constable was cross-examined by the appellant he said he knew the appellant was the robber because "The victim pointed you out. He shadowed you. Victim shouted and I heard him. I then arrested you". The police constable had said he had seen another man running away and the appellant asked him:

7. The appellant said that he had just left the Dol-Lee-Loy Night Club and intended to get a taxi to go home. He said he walked to Sai Yeung Choi Street where he saw a taxi and raised his hand to stop it. He said he heard someone shouting "Robbery" and saw two Chinese males running towards Nathan Road. He said as he was about to board the taxi he was stopped by the police constable at which time an elderly Chinese male approached them and said that the appellant had robbed him adding "If it was not him it was his friend".

8. This is a case where identification was of the greatest importance. I say this because from the record it would appear that the victim - though the record is not explicit on it - lost sight of his assailants and when he saw the appellant the appellant was returning, walking, towards him - "rushing" according to the police witness.

9. The learned magistrate relied on the evidence of the victim as to identification saying in his Statement of Findings that the victim said the lighting was good and he could clearly recognise the appellant's face.

10. The identification of the appellant is only to be found in the evidence of the victim. Had it been established that the victim never lost sight of his assailant there would be no difficulty but that does not appear to be the case. It would appear from the victim's evidence that he could see the face of his assailant when, no doubt to his surprise and fright, he was grabbed from in front; but the assailant changed his position to behind the victim. From the evidence the assailant might well have been in front of the victim for a very brief period.

11. The danger of convicting on the identification of eye-witnesses is notorious; it is increased considerably when there is only one such witness. The evidence would be enhanced were a witness to give reasons for his identification; if for example he could refer to some outstanding or unusual features, but the mere fact that a witness is positive as to his identification without giving reasons for his positivity is of very little significance. A positive witness may be as wrong as a less positive one, even though more persuasive. The dangers of relying on the evidence of eye-witness is dealt with comprehensively in R. v. Turnbull⁽¹⁾.

12. In his Statement of Findings the learned magistrate said

"The evidence of identification was positive and in my view left no room for doubt. The evidence of the police officer was corroborative and confirmed that of the victim to a substantial extent."

The fact is, however, that the evidence of the police officer in no way corroborated the victim's evidence as to identification; and indeed in some aspects it was in conflict with that of the victim.

13. In my opinion to convict on the bold statement: "It was this defendant who grabbed me", however positively given, and without more, and particularly after the victim's vagueness as to what happened after the robbery and the inconsistencies between his evidence and that of the police constable was unsatisfactory.

14. I have already allowed this appeal and I now give my reasons.

Representation:

Mr. Huggins (D.L.A.) for appellant.

Mr. F. Stock C.C. for respondent.

(1) [1976] 3 A.E.R. 549.