The Queen v. Fok Ka Man

CACC000507/1990

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Coram: Hon. Silke, V.-P., Power & Penlington, JJ.A.

Date of Hearing: 26 April 1991

Date of Judgment: 26 April 1991

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JUDGMNT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant was charged with two others. They were alleged, in one combination or another, to have been involved in eight offences of robbery. The applicant was said to have been involved in the first five of those charges. He pleaded not guilty to all charges before Deputy Judge Li in the District Court. The trial proceeded and after a voir dire, Deputy Judge Li dismissed all of the charges against the applicant except for the fourth count on which he was eventually found guilty. It alleged that he and one HUI Chun-wan on the 15th day of May 1989, at the subway at the roundabout near Route Twisk and Luk Yeung Sun Tsuen, Tsuen Wan, robbed MAK Yin-ling of $120 and one gold necklace.

3. The findings of the trial judge on which he based his conviction were as follows:

"The only evidence against D2 (the applicant) on the 4th charge came from PW1, a civilian witness.

PW1 said that she was walking in a pedestrian subway in Tsuen Wan at 8 p.m. on the 15th of May 1989. She saw a man walking towards her. The moment he walked past her he turned round to rob her. She was sure the robber was the man because he had just walked past her and there was on one else in the subway. During the robbery, the robber stood on one side behind her. She agreed in chief and under cross-examination that lighting in the subway was dimmer than that of the courtroom. But she was adamant she had at least 5 minutes to see the face of the robber at close distance. She picked out D2 in a subsequent identification parade. She also identified D2 among the three defendants in the dock. I cannot agree with defence counsel that PW1 had only a fleeting glance.

Counsel for D1 tried strenuously in cross-examination to shake PW1'S evidence. The witness, however, came through with flying colours. The record of the trial shows that she not only held firm on her evidence in chief, she gave more details which made her all the more credible and reliable. It should also be noted that she appears to be a meek young lady.

One factor that did worry me is the description she gave to the police of the robber. She described the robber as aged 27-28, looking like a worker. The defendant is in his teens. He has a clean and smooth round face. He was neatly dressed in court. Defence counsel placed much emphasis on the 'misdescription'. In my view, D2 has the physique of a fully grown adult. It is very difficult to tell the age of a young 'adult.. I don't know what a 'worker' should look like. May be it is just an impression from the clothing. Having considered all the evidence and circumstances, I am more than satisfied that PW1 did not make any mistake in identification.

No evidence has been called on behalf of D2 on the general issue. The evidence of PW1 being credible and reliable, 1 have no difficulty finding the case against D2 on the 4th charge proved beyond reasonable doubt. In the premises, D2 is convicted of the 4th charge."

4. When the matter first came before this court, we did not have the benefit of a transcript of the evidence of PW1. Because of matters raised in the grounds, in particular the suggestion that the verdict was in some way inconsistent in so far as it stated that "During the robbery the robber stood on one side of PW1", and then went on to say that, "She was adamant she had at least 5 minutes to see the face of the robber at close distance", it was felt necessary to obtain the transcript of the witness's evidence. This has now been done. In her evidence she said:

"When he searched my handbag, bag was still on my left shoulder. He was still at my side. I could see his face. Sure it was the same person who walked past me. He could not find anything in my bag. He found a bag for putting spectacles. Then he asked me to give him my purse. I took my purse out from handbag. He took my money in my purse and handed back purse. As he was taking money from my purse, he was on my left. I could see his face."

She then went on to tell how someone approached and the robber fled.

5. She said that she had identified the applicant at the police station and that in her view he was 27 to 28, and repeated again when looking at the applicant in the dock that he was 27 to 28. In our view this mistaken impression as to the age of the applicant is not a fact of any real significance, it simply indicates  that she is not a very good judge in this regard. In her view persons who look like the applicant are in the vicinity of 27 to 28. She may be incorrect in this but it does not affect her identification.

6. When it came to cross-examination, she was asked again about the circumstances of the robbery:

This clears up the apparent contradiction in the judgment. It was clear that she was saying that he stood at her side, but also that she had him in clear view and that she saw him for about 5 minutes.

7. Mr. Alderdice, who appeared for the applicant in this court, initially indicated that the thrust of his argument was based upon a passage in the landmark decision on identification: R. v. Turnbull and others (1977) Q.B. 224. He referred to the passage at p.229 where Lord Widgery C.J. said:

"In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the 'special need for caution."

8. It is the submission of Mr. Alderdice that the trial judge nowhere gave himself: an adequate warning about the special need for caution. The trial was, of course, a jury trial. The trial judge was not called upon to give himself a warning in the terms a judge would use when directing a jury. He was, however, required to show that he had in mind the need to exercise caution when considering the identification evidence.

9. The first specific matter which it is submitted should lead us to conclude that the conviction was unsafe and unsatisfactory was the evidence of PWl that the applicant was 27 to 28 years of age. We have already dealt with that. The further submission is that, where the reasons for verdict indicate that the trial that the judge found PW1 to be an impressive witness, he failed to proceed to an assessment as to the correctness of her evidence. He said that she came through with, to use his words, "flying colours". Mr. Alderdice submits that the trial judge failed to demonstrate that he was aware that the real matter in issue was not whether she was an impressive witness but where his evidence could be safely relied upon. He reminded us that an impressive witness can also be a mistaken one.

10. We, having read the whole of the relevant passages in the reasons, are quite satisfied that the trial judge did have in mind all of the proper considerations when assessing the identification evidence. He was well aware that the only evidence against the applicant was that of PW1 and that it involved an identification made at the time of the robbery. He was well aware that he was dealing with a case in which it was being suggested that the identification arose out of a fleeting glance". He examined the evidence of PW1 with care and was satisfied that she was, on the face of that evidence, an entirely credible witness. He did not rest there. He then asked himself whether or not he should be occasioned any doubt as to the correctness of her evidence by reason of the fact that she was a poor judge of age. He then came to make the following observation:

"Having considered all the evidence and circumstances, I am more than satisfied that PWl did not make any mistake in identification."

He was here clearly differentiating between her apparent credibility and the reliability of her evidence. We are satisfied that the trial judge did approach this matter as he should have and, having done so, found not only that PW1 bore every evidence of being a credible witness, but also that her evidence was truthful and that there was no mistake as to identification. We are satisfied that the application to appeal against conviction must fail and it is dismissed.

Silke, V.-P.:

11. I am in agreement with the reasoning and conclusions of my Lord Power.

12. There is one matter, which does not impinge in any way on the appeal, but to which I think we should refer. We note that, in the course of the proceedings in the voir dire, there was sought to be led evidence relating to entries in a Prisoner's Register - this to show when the applicant had been signed in and out of his cell. The trial judge referred himself to The Queen v. Beanie, Times Law Reports 15th February 1989, and the general rule, affirmed in that decision, that, as he put it:

"it was not competent for a party calling a witness to put to that witness a statement made by that witness consistent with his testimony before the court in order to lend weight to the evidence."

He was of the view that police notebooks and Prisoner's Registers constituted that type of self-serving statement.

13. With respect, although the point has not been argued before us, being unnecessary for the determination of the appeal, we would wish to indicate our doubts that so to hold was correct.

Representation:

Mr. S.R. Bailey (Crown Prosecutor) for the Respondent.

Mr. Gary Alderdice (instructed by M/s David K.W. Tsang  & Co.) for the Applicant.