Yiu Tim Choi v. The Queen

CACC000528/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 528 OF 1974

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Coram: Pickering, J.

Date of Judgment: 10th September 1974.

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JUDGMENT

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1. This appeal has occasioned me considerable anxiety. It is an appeal primarily against a conviction for robbery and the case turned upon the identification of the appellant by a single witness, the victim of the robbery. The learned magistrate warned himself carefully of the desirability of corroboration of that evidence and of the dangers of convicting upon the identification evidence of a single witness. Having so warned himself he proceeded to convict the appellant and his Statement of Findings, prepared for the purpose of this appeal, is expressed in terms of extreme confidence. There is no question but that the learned magistrate was attracted to, and influenced by, the personality of the victim. No less than three times, once in his ruling upon a submission of no case to answer, again in his Judgment and finally in his Statement of Findings, he refers to the victim as a gentleman of culture and education. He further describes the victim as "honest and painstaking" and "careful, intelligent and demonstrably objective". These are the impressions of the person who had the very real advantage of seeing and hearing the witness and it is not without diffidence that a judge of appeal, bereft of that advantage, will permit himself to wonder whether those qualities necessarily add up to certainty.

2. But culture; education, honesty, care, intelligence and objectivity in a witness do not dispense with the need for critical analysis of his evidence, and there is no doubt that some of the evidence of the victim was muddled. In order to particularise, it is necessary to relate the facts of the robbery.

3. At a time which the victim puts at 9:35 p.m. on 22nd March this year he was taking a short cut through a scavenging lane near a playground at Argyll Street, Kowloon, when three persons approached him, one of whom took out a knife, or something resembling a knife, and told him not to move under penalty of being stabbed in the back. The victim subsequently identified the appellant as the man with the knife or knife-like object. He said that he saw the appellant facing him holding "something like a knife, resembling a knife, I could not say it was a knife"; and that as he was made to turn to the wall he saw the facial profile of this man, who was wearing glasses; there was, he said, no outstanding feature of the profile, and he saw the man for a few seconds. The victim was pushed face to the wall and his pockets were searched by the other two men; he was robbed of his watch, $80 in notes, his car keys and his identity card. After these items had been taken, he was told to remain facing the wall and to count up to ten. He did this and when he turned around the three men had gone; although he did not see them leave he had the impression that they had gone in the direction of Argyll Street. In evidence-in-chief he said that he followed them at a distance of about fifty yards and did not lose sight of them but in cross-examination he said that he lost sight of them but that when he got into Argyll Street he saw three Chinese men on the other side of the street one of whom was wearing glasses as had the man with the "knife". There were other persons in Argyll Street but on his own side of the street. The victim followed the three men to Fook Lo Chun Road where they went into the International Cinema. The victim reported the theft to two police officers who advised him to report to Kowloon City Police Station. He went to the Police Station and was accompanied back to the cinema by a police officer; the two waited and, as the crowd was leaving at the end of the show, the witness identified the appellant to the police officer who, after some resistance by the appellant, arrested the latter.

4. According to the policeman who accompanied the victim back to the cinema, the journey from Kowloon City Police Station to the cinema was undertaken on foot and occupied about 15 minutes and it was common ground that the time required to walk from the site of the robbery to the cinema is approximately ten minutes. The time element is important in relation to alibi evidence offered by the appellant and supported by his brother.

5. I have referred to the evidence of the victim as being, in places, muddled, I must demonstrate what I mean by that. Reference has already been made to his assertion that after the robbery he did not lose sight of the three robbers and his later admission that he did lose sight of them. Indeed this must have been the case for his evidence was that he "thought" they had gone in the direction of Argyll Street. Had they been visible to him when he turned from the wall, there would have been no need for conjecture. Additionally, in cross-examination, referring to the two robbers who held no weapon, he said that he could not recognize them but a little later said that he could recognize them although he was "afraid to look at the faces too closely". These contradictions of themselves do not invite complete confidence in the testimony.

6. But in relation to the time factor confusion held Court. In evidence-in-chief he put the time of his return to the cinema with the policeman at "about 9:40". This was demonstrably impossible if the robbery occurred, as he said, at 9:35 p.m. for the journey from the scene of the robbery to the cinema, then to Kowloon City Police Station and back to the cinema must have occupied at least thirty minutes and probably nearer to forty. Admittedly at that stage he had been robbed of his watch but he placed the time by reference to a clock in the foyer of the cinema. If the time was in fact 9:40, the robbery must have taken place between 9 p.m. and 9:10 p.m.

7. At a subsequent stage of his evidence the witness put the time of his return to the cinema with the police constable not at 9:40, but 9:48. Still later he said that the thieves had entered the cinema at 9:48 - but between their entering the cinema and his return thereto with the police constable he had had to travel to Kowloon City Police Station and back. The police constable said that a single journey from the station to the cinema took about fifteen minutes.

8. Clearly the victim's evidence was very confused as to time. In his Statement of Findings the learned magistrate says he was satisfied beyond all reasonable doubt that the robbery took place at about 9:35. But, with respect, that is not what he said in his Judgment. In his Judgment he was wary as to time, merely finding as a fact that the victim was robbed between 9 and 10 p.m. The learned magistrate is perhaps not to be blamed for that lack of precision in view of the confused evidence of the victim as to time. But that very lack produces certain possibilities. On that finding of between 9 and 10 p.m. it is conceivable that the robbery took place at 9:50 p.m., when the three men were already in the cinema. More significantly, it is conceivable that it took place at 9:05 p.m. at which time, according to both the appellant and his brother, the appellant was just leaving his home alone. Yet despite his understandably inability to pinpoint the time of the robbery the learned magistrate found as a fact that "it was possible for the defendant to take part in the robbery and still be able to attend the performance at the International Theatre which began at 9:45 p.m." That is a finding which cannot logically be sustained in view of the earlier finding which was merely that the robbery took place between 9 and 10 p.m.

9. According to the victim, it was very dark at the scene of the robbery and he could not see well though there was some reflection from lights in the playground. Certainly it appears to have been too dark for him to see whether the object held by one of the three men was a knife or merely something resembling a knife. In addition he saw the man for only a few seconds and although he subsequently identified him by his facial profile he agreed that that profile bore no particular feature. It may also not be without significance that when the appellant was arrested, having run away into a restaurant, the victim said to him "It was you, if not you would not have run away". I have asked myself whether this was just a commonsense remark or whether it indicated a residual doubt in the mind of the identifier. The remark appears to me to be open to either construction.

10. Perhaps the robbery did take place at 9:35 p.m. and perhaps the appellant took part in it but I cannot say that that has been proved beyond reasonable doubt and I am left with what Widgery, L.J. (as he then was) referred to in the case of Reg. v. Cooper⁽¹⁾ as a lurking doubt which makes me wonder whether justice has been done. In my view the conviction is unsafe and the appeal is allowed and the conviction quashed.

11. The appellant faced a second charge of resisting arrest contrary to s.36(b) of the Offences Against the Persons Ordinance (Cap. 212) and the appeal against this conviction claims that the learned magistrate failed to consider whether the appellant had a defence of self-defence in that he genuinely believed that the arresting police constable was not a ploice officer. That defence was put forward at some length and the very finding of guilt is itself evidence that the learned magistrate rejected the defence. It would be fanciful, because the defence was not referred to specifically, to assume that the learned magistrate had not considered what was in fact the only line of defence upon this charge.

12. The appeal against conviction upon the second charge is dismissed but the sentence of detention in a detention centre is set aside and substituted by a fine of $400.

Representation:

Caesar Wong (Edmund Cheung & Co.) for appellant

N.R. Macdougall, D.D.P.P. for respondent.

(1) 1969 1 Q.B. 267 @ 271.