The Queen v. Lee Chi-yung

CACC000053/1983

IN THE COURT OF APPEAL

BETWEEN

_________

Coram: McMullin, v.-p., Li & Silke, JJ.A.

Date: 17th May 1983

___________

JUDGMENT

___________

Silke, J. A.:

1. The applicant, LEE Chi-yung, was convicted on the 5th January 1983 in Kowloon District Court of attempted robbery.

2. The attempt is said to have taken place on the 13th April 1982 when he with one KWOK Chi-wah, who is named as the 2nd defendant on the charge sheet, were said to have attempted to rob one WONG Bute in the pak Lin Restaurant

3. Wong Bute is the caretaker at the Pak Lin. At half past two-in the morning of the 13th April he was there. He said the door of the restaurant was forced and three persons dashed in. Wong Bute was told it was a robbery.

4. One of those three persons had an axe and the other two had what were described as "iron cutters". Wong was pushed down to the first floor of the restaurant where the sales department was. While he was there the telephone rang. The call was from the neighbourhood police unit who were making a security check.

5. Wong Bute very sensibly did not give - as he should have done if everything were alright - the proper code number. He put down the phone and the robbers asked him if that had been the police to which he replied "Yes". He was then taken up to the second floor where he was tied up. The robbers were afraid that the police would arrive - as in fact they did fifteen minutes later - and left. Nothing was taken.

6. Upon the arrival of the police Wong Bute was untied. Then he said in evidence:

"I saw two of the robbers being brought back into the restaurant.  I told the police they were two of the robbers."

That is as far as he went in evidence- in -chief.

7. In cross-examination he was asked was he able to see their faces and he said no, he couldn't see their faces because they were made to lie on the floor face down. He went on to say that he: could only recognise them by their clothes. "He described the clothes as follows: one in grey and the other in red. The one in grey had black shoes, grey trousers and a grey jacket. The one in red had a red windbreaker.

8. It was suggested at the conclusion of his cross examination that he was mistaken. But it was only in re-examination that he in fact identified the applicant. This is of some note for his final answer in cross-examination - we are not aware as to where the emphasis lies in this sentence - reads:

"You can say that I have mistakenly identified."

He was then asked n re-examination:

"Are you saying you could have been mistaken?"

The answer was:

"The police had caught them."

Then a little later' in answer to a question he said:

"The one sitting opposite is one of them.   I was certain that that person was the one who tied me up." (He then pointed to the applicant).

He was immediately asked:

"How do you know that?"

and he answered:

"When I attended an identification parade I was told he was the one who tied me up."

9. There was evidence before the trial court of a police sergeant who said that when the arrested persons were brought into the restaurant Wong Bute said he recognised the accused as one of the men who robbed.

10. The applicant gate no evidence and called no witnesses in the court below though he was represented by experienced Counsel.

11. The trial judge was fully aware of the vagueness of  the identification, Me described the witness as "somewhat vague as to the reasons why Wong Bute believed both wen. -were. involved."

12. I should interpolate here that kwok, the second man arrested at the time, did not appear for trial a warrant was issued - and he has not, as far as we are aware, been tried for the offence.

13. The applicant has endeavoured to tell us a story  here which he did not see fit to tell in the court below. He said he was not askew to by the Judge. There I was no reason for the Judge himself to ask. The applicant was represented by Counsel who informed the court that his client elected to remain silent.

14. But what causes us concern is this. Wong Bute has tied himself to the identification he has made because of the clothing worn by the two persons concerned.

15. We have had the benefit of looking at the commendably clear manuscript record of the trial judge and therein was recorded the evidence of the constable who arrested the applicant. He stated that the applicant was wearing blue jeans and a light colour upper garment and this is totally at variance with the evidence given by Wong Bute. Moreover this description tallies exactly with that which,this  morning, the  applicant told us he  was wearing.

16. The nature of the identification is most unsatisfactory. We accept that there was evidence that the applicant was seen running away from the premises. Whatever his explanation may be for that it was evidence uncontradicted before the court and which could well be supportive of an identification if there had been a satisfactory one.

17. We think that the identification is so unsafe as to not be capable of being supported.

18. Therefore we granted the application for leave to appeal, treated this hearing as the hearing of the appeal and allowed the appeal quashing the conviction and setting aside the sentence. The applicant was discharged.

Representation:

Applicant in person.

J.R. Sulan, Esq. for Crown/Respondent.