The Queen v. Chan Ngai Hung

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 497 OF 1986

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BETWEEN

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Coram: Hon. Kempster, J.A., Hon. Penlington & Hon. Barnes, J.J.

Date of hearing: 15^th January 1987

Date of delivery of judgment: 15^th January 1987

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JUDGMENT

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Penlington, J.

1. This is an application for leave to appeal against a conviction on 10^th September 1986 in Victoria District Court on a charge of robbery.

2. The facts as found by Deputy Judge Ho were very simple. The Crown relied principally on the evidence of a Miss Ng Yuk-yin who said that she was employed in an industrial concern and that on the 5^th June 1986, with her employer, a Mr Cheung, had been to the bank to collect the fortnightly pay. On the way back from the bank she was approached by a man who put his hand under his clothes, she thought initially to scratch himself, but in fact who then produced a pistol which he pointed at her and demanded that she hand over the envelope she was carrying containing the wages, some $26,000. She did hand over this money because of the threat of the pistol, and the man then ran off. She and her employer pursued but lost sight of him.

3. There was evidence that some distance away, a few minutes later, the applicant was found on a motor cycle which had collided with a pedestrian. There was some evidence, admitted at the trial, relating to an unidentified person telling Miss Ng of the person who had run off with the envelope getting onto a motor-cycle bearing the same registration as the one ridden by the applicant. While the evidence was admitted the judge quite rightly by the applicant. While the evidence was admitted the judge quite rightly paid no attention to it in his reasons and relied entirely on the evidence of identification given by Miss Ng. That evidence was that some twelve days later she attended an identification parade, and identified the applicant as the man who robbed her. She said that she had no doubt about that and said she had had a good look at him. She agreed however that she was frightened at the time.

4. Mr Matthews said that the judge has not taken into account the guidelines which had been set down in the well-known case of Turnbull[1], and although he concedes that this is not a “fleeting glimpse” situation, he said that the lady was frightened, that the events took place in a few seconds but principally, however, he says that she failed to mention the fact that the robber had any distinguishing identification marks, whereas the applicant has a distinctive mark, that is a lump over his right eye. If Miss Ng had, as she said, had a clear view of his face at a close distance she could not fail but to have mentioned that.

5. While not specifically referred to in any findings this was quite clearly brought to the attention of the trial judge in the closing address of defence counsel.

6. The other matter is that the Crown did not produce the applicant’s clothing. Miss Ng had given evidence relating to this clothing and she was cross-examined about it at some length. However, it is to be noted that it was not put to her that in fact the applicant was not wearing the clothing which she described which was a blue-grey short sleeved shirt. It is not in dispute that the lighting conditions at the time were good, as it was full day-light, and that there were no obstructions or anything like that coming between miss Ng and the robber.

7. Turnbull certainly lays down that where there is a fleeting glimpse situation and no corroboration, the evidence may be such that it should not even go to a jury. That was not the situation here. There is always a danger of acting on identification evidence alone but that was quite clearly well in the mind of the trial judge. The protuberance on the applicant’s face is not, in our view, such a distinctive characteristic that the failure of the witness Miss Ng to mention it must mean that her evidence should not be accepted. It may well have been that the Crown should have produced the clothing but the applicant must have been aware of the clothing that he was wearing at the time. If it was not as described by Miss Ng then, no doubt, she would have been specifically challenged on it.

8. Having considered the evidence as a whole we see no reason why we should interfere with the finding of fact which the trial judge has come to and the application for leave to appeal is refused.

Mr. J. Matthews (M/s Y.K. Poon & Co.) for Applicant

Mr. I.G. Cross, Senior Asst. Crown Prosecutor, for Respondent

[1]  (1976) Vol. 63 Crim. App. Report 132