The Queen v. Wong Wing Yip and Another

CACC000512/1990

HEADNOTE

Appeal against conviction after trial of robbery. A situation of not pursuit and apprenension distinguished from a fleeting glance situation. In the former situation, a Turnbull direction is not required. The Court pointed out further that a Turnbull direction is only required where the case against the defendant rests wholly or substantially on the correctness of the identification.

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

Date of Hearing: 13 November 1991

Date of Judgment: 13 November 1991

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicants faced a count of robbery and an alternative count of burglary. Each was convicted on the robbery count and each now appeals against that conviction.

3. The count was particularized as follows: that the two applicants, together with another person, on 18th May 1989 at Lung Yue Godown, Sui Lek Yuen, Shatin, New Territories, together with CHAN Yiu-nam and other persons unknown, robbed CHENG Keung of 32 rolls of nylon material, 48 rolls of nylon cloth, 58 packs of men's suit material, 53 boxes of electronic parts and 3 boxes of electrical contact points.

4. It was the Crown case that the 1st and 2nd applicants were part of a group which entered the Lung Yue Godown in the early hours of 18th May and, having tied up the watchman, proceeded to load the stolen goods onto 2 lorries.

5. The second prosecution witness was PC10550. He gave evidence that he was watching the general area of the scene through binoculars. He said that at 3 minutes to 3, he saw a red private car turn into Tai Chung Kiu Road and that this car was eventually parked out of his sight on On Sum Street behind a hoarding. He did not actually see the car park but, it would appear, saw it disappear behind the hoarding, and not reappear. He said that he then saw 4 or 5 people coming into view from behind the hoarding. His evidence was imprecise and to an extent contradictory and the trial judge was at pains to tell the jury to proceed with the utmost caution in relation thereto. He went on to say that, at 10 past 3, two goods vehicles arrived: DY6667 and CH2437. He said that the people from the goods vehicles were joined by the 4 or 5 people to whom he had referred earlier. There was later evidence that the 1st applicant was found to have the key of a red vehicle, DY4200, which, according to the evidence, was parked at On Lai Street. There was also evidence that the 2nd applicant was the registered owner of the goods venicle DY6667.

6. The evidence of PW3, which was vital in the prosecution of the 1st applicant, was outlined for the jury in the summing-up as follows: he saw a man who had been standing in the vicinity of where the trucks had been walking towards a gate hearby which he was concealed. When the man attempted to leave by the gate, the witness called to him, "Police. What are you doing?" The man, who was the 1st applicant, then immediately turned and fled with the witness in pursuit. His evidence that at that time, i.e. at 5.10 a.m. or very soon after, the lighting was:

".... very sufficient. You know that there was street lighting, and although there was lighting on inside the warehouse, he told you that did not particularly help him with identification. He said the sky was already bright.

He had seen this man - he says it was the 1st accused - about a minute, not to look at directly, he had first seen him about a minute before the man arrived at the gate to open it. When he was in the process of opening the gate, they were very close, face to face, he said, for some 2 or 3 seconds.

Now, that then is a matter for you, whether you accept that he has accurately identified the 1st accused to you as being the man at the gate. Consider the lighting, their proximity to each other, the shorthess of the viewing time and things like that. But there is more than that, is there not? There is, of course, the evidence of the chase and as P.W.3 would have it of catching the 1st accused on On Lai Street.

So far as P.W.3 is concerned, it is the same man wearing the same white top and jeans as the man at the gate. His evidence was that he chased him broadly at a distance equating with from the witness-box to the last jury line away from him around the northern end of the building and out the exit on On Ping Street, down On Ping Street onto On Lai Street near the intersection where a sergeant and another PC helped him catch the 1st accused. He claimed that he did not lose sight of him during the chase, except briefly as he turned the corner of the godown."

7. When the 1st applicant was stopped, he was found to have the key of DY 4226. Upon being arrested and cautioned for burglary, he said "Ah Sir, give me a chance. My wife is at home. She is pregnant."

8. The 1st applicant gave no evidence. It was put in cross-examination to P.W.3 that the 1st applicant was not the man whom he had seen at the gate and that he had not asked for a chance when apprenended.

9. The 2nd applicant gave evidence denying involvement and saying that he was at home and that he had lent his lorry on that evening to a person called An Nam. Three police officers identified the 2nd applicant as the person who had been driving the goods venicle DY 6667. Two of them, PW3 and PW7, were in a private vehicle which pursued the lorry and the third, a sergeant, PW6, was in a police venicle which eventually came into collision with the lorry. The sergeant said that his vehicle, in which he was sitting in the front passenger seat, intercepted the lorry which appeared to be about to stop and that as he went to get out, the lorry speeded up forcing him to jump out of the way and hitting the door of the police car. He said that he saw the driver from a distance of 2 feet and that driver was the 2nd applicant. He said that prior to this he had also seen him as the vehicle was approaching the lorry for about 6 seconds.

10. PW5 and PW7 were in a private car. PW5 said that he called out to the goods vehicle "Police, stop the car." He was then seated in the rear of that car and he said that he saw the driver of the lorry from a distance of about 7 to 8 feet for 4 to 5 seconds. Under cross-examination he revised this estimate saying it was only 2 seconds but he also said that he was sure that it was the 2nd applicant. PW7 was in the passenger seat of the private car and he said that he saw the driver of that lorry for 3 to 4 seconds from a distance of 4-5 feet and he also said that that driver was the 2nd applicant.

11. The 2nd applicant's portable phone and his wallet containing his photo were found at the scene. They were on the ground between the lorry and the police car hear the front right hand wheel of the lorry. The 2nd applicant gave evidence saying that he had on that evening inadvertently left them in the lorry.

12. The thrust of the 1st applicant's appeal is the suggested poor quality of the identification evidence upon which it is submitted the Crown case rests. When considering this submission it must first be pointed out that the identification evidence was not the only evidence against the 1st Applicant. The evidence of PW3 was that the 1st applicant was the man he saw inside the premises with the others at the lorries, that the 1st applicant took flight and that he chased him in hot pursuit and eventually caught him with the assistance of other police officers. At trial he agreed with Mr. McLananan, who appeared for the 1st Applicant both here and below, that he lost sight of him "momentarily" as he turned the corner. If he was to be believed, however, there is no room for the suggestion that the man he continued to chase was not the same man as the one he had been chasing prior to turning the corner. One cannot help but remark that even if PW3 had not seen the face of the person at the gate his evidence would have been no less cogent against the 1st applicant. This was, in the view of this court, far from being a fleeting glance situation. The evidence of the officer was that he saw the 1st accused in the compound, chased him, caught him, and that the accused then used words which indicated complicity in the offence of robbery. It is also to be borne in mind that this evidence was unchallenged by any evidence to the contrary.

13. The grounds argued by Mr. McLanahan must be looked at against this background. Grounds 1-5 deal with the issue of identification. They, in our view, quite wrongly isolate this evidence and appear to be predicated on the assumption that this was a fleeting glimpse situation such as was dealt with in R. v. Turnbull [1977] 1 QB 224. In our view it was not. The evidence of PW3 did not rely upon the correctness of an allegedly mistaken identification. The grounds further appear to assume that in a Tarnbull situation corroboration is required. We are satisfied that this assumption also is unsustainable. We refer to Turnbull at p.230 where Widgery C.J. there said:

"When dealing with a pure fleeting glance situation the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word, but it need not be so if its effect is to make the jury sure that there has been no mistaken identification."

He then, having given examples of such evidence, continues:

"The trial judge should identity to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality the judge should say so." (Emphasis supplied.)

14. In a fleeting glance situation, the question for the judge is whether or not there is supporting evidence, and if there is, he must identify it and should also direct the jury as to the evidence which is not capable of giving support. The true fleeting glance situation was dealt with by Lord Widgery at p.228 when he said:

"Whenever the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications."

The case against the 1st applicant did not, in our view, rest wholly or substantially on the correctness of an identification. The evidence, as we have already indicated, was of not pursuit and an admission upon apprenension. The trial judge was not required to give a Turnbull direction, although such was, and we shall come to this in a moment, required in the case of the 2nd applicant who escaped from the scene. The outline of the evidence given by the trial judge and his directions thereon were in the circumstances quite proper and no complaint can be made thereof.

15. This brings us to ground 7 which reads as follows:

"The Learned judge compounds the above failures by giving a direction on what evidence can support an identification in relation to the second co-accused and, confusingly for the jury, says that a plurality of officers can strengthen any particular police officer's identification."

The trial judge, when dealing with the evidence against the 2nd applicant which involved evidence from three police officers whose identification was based upon a limited opportunity to observe, did, quite rightly, pursuant to directions in Turnbull, direct the jury as to the evidence which could, in his view, support those identifications. We are unable to see now that direction can have caused any confusion in the minds of the jury when they were considering the evidence against the 1st applicant.

16. Mr. McLanachan also filed additional grounds of appeal. These complained of the inadequacy of the evidence insofar as it related to two sketch plans which were tendered as Exh.P3 and Exh.P3A. The evidence which came from PW2 certainly was unsatisfactory. The plans themselves were not, it is true, as comprenensive as they might have been, but the judge was at pains to direct the jury as to the inadequacy of the evidence of PW2 in this regard. In our view, the only matter of any significance arising out of this is the suggestion by Mr. McLanchan that the judge should have directed the jury to ignore the evidence of PW2 as to the red car. The judge might well have so indicated but we must act upon the basis that the jury relied upon the evidence and upon their common sense and were perfectly well aware that there was no evidence linking the red car seen by PW2 and the red car that was later said to have been discovered in On Lan Street.

17. Nothing has been raised in relation to the conviction of the 1st applicant that indicates to us that it is either unsafe or unsatisfactory.

18. We turn now to the matters raised by the 2nd applicant.

19. The first is a suggestion that the trial gave only a vague explanation of the alternative charge of burglary. This is simply incorrect. The trial judge gave a clear definition at p.7 of his summing-up setting out fully the elements that make up the offence of burglary. It is difficult to understand what concerns the applicant in this regard as the count of burglary did not in the outcome play any part in the trial.

20. The applicant suggests that the jury did not take all the doubtful points into consideration. There is nothing to support this suggestion. The trial judge was comprenensive in his consideration of the evidence. The doubtful points such as they were were quite properly left for the jury's determination and it clearly resolved them against the applicant. He suggests that the time for observation by the police officers were so short that it would have been impossible for them to recognize him. The evidence of limited time for observation given by the police officers was carefully dealt with by the trial judge in his directions to the jury and it was for the jury to say in the light of those directions whether they accepted that evidence.

21. The applicant suggests that it would have been impossible to escape from the driver's door and that any suggestion that he did must therefore have been wrong. It is difficult to see how this suggestion can hold any water as there was, without doubt, a driver of the vehicle and that driver did escape. The applicant complains that the alleged wrongful identification must have been made with the assistance of his photograph which was in his wallet. This was never suggested in cross-examination and nothing can be made of such a suggestion at this stage.

22. The applicant complains further that his criminal record was made public and that he was prejudiced thereby and, indeed, that the prejudice of the trial judge showed itself in his directions to the jury.

23. The first comment to be made in this regard was that there is no suggestion that any such information ever came to the knowledge of jury. The record was quite properly revealed during a bail application.

24. The applicant goes on to suggest that the prejudice which he says the trial judge displayed was manifested, inter alia, when he came to direct the jury as to the wallet and the phone. The trial judge suggested that this might have been dropped from the driver's door of the vehicle. The applicant says that this is contradicted by the evidence regarding the place in which the objects were found. What the judge said in this regard was as follows:

"My only comment about the finding of the 2nd accused's possessions between the two vehicles is this. He said that he left them both in the box between the two seats. Now, I ask myself, is it that they were two of the three items that fell to the ground after the collision. I ask myself: if somebody other than the 2nd accused were driving the lorry, why would it be that that person, whoever it was, would have moved those items to the position near the door where they would fall out, or be items which the driver would try to take with him as he fled, or be items even which he would try to get rid of, because after all the 2nd accused was readily traceable anywhere? It was, after all, his truck. Or could it be, if the 2nd accused was there: did he try to take with him as he left either items of value or items which could more closely tie to the goods in the vehicle and his presence there at that time?"

These observations were perfectly proper ones in no way making observations prejudicial to the accused. The trial judge was simply leaving possibilities to the jury for their consideration.

25. The applicant goes on to suggest that a further indication of prejudice on the part of the trial judge occurred when he indicated to the jury that the applicant had told a lie in court. This shows a misapprehension of what the judge said in his summing-up which was as follows.

"Chief Inspector Rich told you that he was in the escorting party taking the accused to the identification parade room and that he was not seen by any prospective identifying witness. The 2nd accused says that Chief Inspector Rich did not escort him to that room, in other words, he was telling a lie."

26. The applicant complains that there were discrepancies in the police evidence as to the identity of the officer who took him to the identification room. These matters were before the jury and were for their resolution.

27. The applicant pursued suggested unsatisfactory features of the identification evidence. As we have already indicated, the jury was properly instructed in this regard and these were matters for their determination. The final matter raised is the absence of fingerprint evidence. The applicant suggests that fingerprint evidence must have been found, and discovered to be not helpful to the Crown case and must, therefore, have been concealed. There is nothing to support such a suggestion. As this court has often indicated, the absence of fingerprint evidence proves nothing either way.

28. None of the matters raised by the 2nd applicant occasions us any doubt as to the propriety of his conviction. His application to appeal must therefore be dismissed.

29. We finally observe that there were no perfected ground of appeal filed by Mr. McLanchan for the 1st applicant and draw attention to item 4 of the Practice Direction which deals with this matter and which was not followed.

Representation:

Mr. Macleod (Crown Prosecutor) for the respondent.

Mr. John McLanachan (Messrs. Tang, Wong & Cheung) for 1st Applicant (D1).

2nd Applicant (D2) in person.