The Queen v. Yip Chi Keung
Read the full judgment text of CACC 70/1987 on BabelCite. This Court of Appeal judgment.
1. On 26th January of this year the applicant was convicted after trial before Bewley J. of one count of robbery. The robbery took place on 16th September 1986, in the early afternoon, when some 30 or 40 people, members of the Hong Kong & Kowloon Good Pals Game Birds and Crickets Association were having a meeting at 24 Sai Yeung Choi Street. What happened thereafter was described by the trial judge early in his summing up in this way:
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CACC000070/1987 No. 70 of 1987 (Criminal) ______________________ H E A D N O T E ______________________ On a submission of no case to answer the same principles apply to identification cases as to all other cases. Turnbull(1) is not exception to but an example of the principles of Galbraith(2). An accused’s immediate response when confronted by the police is admissible in evidence, albeit that it may be of minimal value. Use of the phrase "on information received" is not objectionable if coupled with a warning that no adverse inference can be drawn from it. Observations upon the fairness and comprehensibility of a cross-examination of a witness on previous statements when those statements are not put before the jury. IN THE COURT OF APPEAL
BETWEEN
______________ Coram : Hon.Yang, Ag. C.J., Hunter & Power JJ.A. Date of Hearing : 1st – 2nd July 1987 Date of Delivery of Judgment : 2nd July 1987 _______________________ J U D G M E N T _______________________ Hunter, J.A. 1. On 26th January of this year the applicant was convicted after trial before Bewley J. of one count of robbery. The robbery took place on 16th September 1986, in the early afternoon, when some 30 or 40 people, members of the Hong Kong & Kowloon Good Pals Game Birds and Crickets Association were having a meeting at 24 Sai Yeung Choi Street. What happened thereafter was described by the trial judge early in his summing up in this way:
2. The whole trial turned upon the reliability of the identification evidence. Three persons identified the applicant as one of the robbers who fulfilled a particular function on this occasion. There were certain features that they mentioned in common in relation to him. One, which may or may not have impressed the jury, was that they all commented that he seemed to have had a rather crude hair-cut in the interval of time between 16th September and 1st October. 3. In addition to those three witnesses, two of the victims attended parades and picked out actors with equal confidence, and were plainly wrong. One of the three identifying witnesses relied upon by the Crown attended a second parade. He then picked out another actor as another culprit with equal confidence. So this was a case where there were problems for the jury on the evidence of identification. I should add that some 15 or more other people seem to have attended parades, 15 out of the 34 plus who were actually on the premises, and failed to make any identification at all. 4. In those circumstances at the end of the case for the prosecution Mr. Alan Hoo for this applicant rose to make a submission and invited the trial judge to withdraw the jury upon the authority of the decision in Turnbull(1). The judge immediately questioned whether Turnbull(1) was the relevant authority. He referred, I think by a slip of the tongue, to the case of Barker(2) . In fact he intended to refer to and then at once proceeded to quote from the case of Galbraith(3) . 5. At the time of Galbraith(3), as the report shows, there were then two schools of thought as to the proper test to be applied on a submission of no case. The Lord Chief Justice at p.125 said:
Having considered the position with care the court came to this conclusion, p.127:
6. What the judge did in answer to Mr. Hoo’s submission was in fact to quote the passage at (b) which I have read, making it clear that he regarded this as a case where he thought that a properly directed jury could convict, and that this was a matter which should be left to them. He went on to say that he was considering telling them that they could stop the case if they wished. Mr. Hoo’s answer to that was:
I need hardly add that all this was going on in the absence of the jury. There being no comment from prosecuting counsel the jury then came back. In a matter of a very few sentences the judge told the jury that they could consider the quality of the identification evidence, and if they were not satisfied of the quality of that evidence they could stop the case any time from then on . He invited the foreman of the jury to say whether she understood. Her reply was:
The judge replied “that’s it”. He went on to point out some of the problems. They then asked for a little time to discuss the matter, and went out for 10 minutes. They came back and the foreman said:
7. On this application Mr. Hoo’s first and fundamental challenge to that couse, is to assert that the judge applied the wrong test in applying the test in Galbraith(3) rather than the test in Turnbull(1) . He accepts that in Galbraith(3) the principles are set out which are generally to be applied on an application of no case. But he seeks to persuade the Court that identification cases are exceptional. He says that exceptionally there the judge has to evaluate the evidence for himself. He relies particularly upon that passage in Turnbull(1) starting at the foot of p.229 where this appears :
8. His submission is that the judge should have assessed the identification evidence for himself upon that basis and not applied the test in Galbraith(3) as he did. 9. I am unable to accept that submission. It is not immaterial to notice that in the judgment in Turnbull(l) itself the Court goes on at the top of p.231: "in setting out these guidelines for trial judges which involve changes of practice, not law, we have tried to follow the recommendations" of the Devlin Committee. 10. It is trite and fundamental to the consideration of a problem like this that in our system the judge at a criminal trial is the judge of the law; the jury is the judge of the facts. The applicable law is the same in every case. One of the questions for the judge is whether the evidence led is sufficient in law to found a conviction. In my judgment Turnbull(l) is simply a particular example of the principles of Galbraith(3). 11. This emerges most clearly in the speech of Lord Diplock giving the opinion of the Privy Council in a case called Haw Tua Tau(4). The relevant passage is to be found on p.151. In describing the system of criminal jurisdiction operating in England (and Hong Kong), he says:
He then goes on:
12. In those words it seems to me that Lord Diplock was setting out the principle consequences of this division of function with simple clarity. I cannot for a moment accept the proposition that some hidden qualification of evidence in identification cases has to be read into that opinion. 13. The test as formulated by Lord Diplock is "inherently incredible". The test in Galbraith(3) I have already read:
14. A similar test is to be found in Barker(2) at p.288 : “The necessary minimum evidence to establish the facts of the crimes”. In a recent decision of this Court in Attorney General’s Reference No. 2 of 1968, reference was made to a number of Australian cases where different formulae are used, see p.10 of the judgment. One is “the sufficiency” of the evidence as a matter of law; the other “evidence which is capable in law of supporting a conviction”. 15. All these phrases in my judgment are simply different ways of expressing the same concept. There is no difference between these phrases and that upon which Mr. Hoo founded; “evidence fit for the jury”. All Turnbull(l) was doing was to identify the type of evidence which it was proper to leave to the jury in identification case; and to identify by the use of this adjective 'poor', identification evidence which should not be left to the jury. There is no fundamental conflict between these authorities at all. I am happy to reach that conclusion because as long ago as 1979 in Tang Wai-tong(5) this Court seems to have reached an identical conclusion. The same conclusion would appear to have been reached in England in the case of Heffernan decided on 23rd May 1986 by Neill LJ in the Court of Criminal Appeal in England, but not otherwise reported. So in my judgment the judge applied the correct test. 16. Then it is said that he did not correctly apply this test. Now this is essentially a matter of fact for the judge who saw and heard the witnesses. It is a question upon which I am minded to think this Court should hesitate long before interfering. 17. There are three reasons for declining to interfere in this case. First, it is quite apparent from the sequence of events that I have already referred to, that the jury took exactly the same view that there was sufficient evidence here fit to be considered by them. 18. Secondly, there is a particularly difficulty here in assessing the effect of the three identifying witnesses evidence, and particularly of their cross-examination. They were cross-examined at some length upon the various statements which they had given to the police, both after the robbery and after the identification parade. A number of critical comments on, and comparisons between those varying statements, were put to them by Counsel. Counsel of course both had copies of the statements. So had the trial judge. It was very easy for them to follow this process of cross-examination. The jury were at no stage allowed to see any of these statements. The result is that this Court is in the same position as the jury. I have endeavoured to follow the cross-examination by reading the transcript. I can only describe it as a singularly frustrating and aggravating exercise. 19. Now it is perfectly possible within the terms of section 14 of the Evidence Ordinance, in a simple case, to cross-examine a witness upon his previous statement without putting that statement before the Court and the jury. I am minded to think this is possible only in very simple cases. Certainly where the matter is at all complex, and comparisons are being made by Counsel between the content of two statements, it is I believe rarely fair to the witness to have his particular answers taken out of their context. That is the first point I would desire to make. This procedure may well be unfair to the witness. I cannot say more than that in this case because we have not got the statements, and cannot judge the matter. What I can see exactly is that this is a matter which it is very very difficult for a jury to follow. I can see that in many instances in this case it is quite impossible to form any view as to the weight and validity of the criticisms, that were directed at the witnesses upon basis of their statements so that we can judge for ourselves. I found it extremely frustrating. 20. The problem I suspect is that Counsel conducting the case tend to get involved in their conceptions of sensible tactics. Defending Counsel frequently feel that they can get the best of both worlds by extracting the apparently favourable entries, and leaving the rest of the statement out. So frequently they do not want the whole document to be put before the jury. Prosecuting Counsel are sometimes left in two minds as to whether their best interests are served by having the statement in or not. Questions, which are really quite irrelevant, like copying and convenience sometimes come in. 21. I venture to believe that altogether too little attention is paid to the proviso of section 14: altogether too little regard is paid to the concept of fairness to the witness: and what is most important of all, too little regard is paid to the jury's ability to follow and weigh the evidence that is being led before it. I believe that if you want a fair and effective cross-examination on inconsistent statements in any case of any complexity the proper way is to let the jury see the statements. In circumstances of this case it is really quite impossible for us to criticise the reaction of the trial judge to the apparent reliability of these three identifying witnesses. 22. Thirdly, on the facts it is quite plain that the evidence does not come within the guidelines described as 'poor' in Turnbull(l). First, this is not a case of a fleeting glance identification. If anything it was fleeting glances. The witnesses were being threatened and told not to look. They had the opportunity to make several glances. When they were individually being searched, they had rather more opportunity of having a look at the person that they were being searched by, whom they later identified as this applicant. 23. Secondly, it is said that one witness's evidence should be jettisoned in its entirety because on the way to the identification parade he compared notes with another potential witness as to the events that they had both been through and what they could remember. Certainly this is a factor which the jury should consider. But it is quite impossible to suggest that it vitiates his evidence. So in my judgment the judge was perfectly entitled to come to the conclusion that he did. This was a matter fit for the jury. 24. The next point of criticism relates to the judge's invitation to the jury to which I have already referred. This is plainly an after-thought as far as this applicant is concerned. It does not appear in the notice of appeal. It does not appear in the skeleton argument. It is based upon the decision of this Court in Attorney General's Reference No 2 which, was given very recently, and with respect to Counsel, upon a total misreading of that decision. What this Court did in that case was to emphasise the same points as I have been seeking to emphasise already, the distinction between fact and law and the functions of the judge and the jury. It is the judge’s duty to rule upon the law on the principles to which I have already alluded. It is the jury’s right to stop the case on the facts if they are quite dissatisfied after the half-way stage. The judge has a discretion to remind the jury of that right in an exceptional case. 25. Really what is now sought to be done by this applicant, is to challenge the validity of the judge's exercise of his discretion in the way that I have indicated. It seems to me that that is hopeless for at least three reasons. 26. The first is that very far from objecting to that course at the trial, Counsel encouraged it in the passage that I have read. No doubt he did so quite deliberately, because he then anticipated or hoped that this course would be to his client's advantage. That seems to me to make it impossible for him to challenge a matter of discretion in this Court. It is quite unlike the judge's ruling on law which he can challenge. 27. Secondly, I cannot see that any prejudice of any sort was caused to his client by this course. The jury when they came back and uttered the words that I read were not indicating any preliminary judgment on the case. All they said was that they wanted to hear the rest of the case. 28. Thirdly, the judge in fact followed precisely the guidelines that we suggested later in Reference No.2. He decided first of all that there was a case to answer. He then decided that this was a case where it might be permissible and proper to remind the jury of their right to stop it. He could do so in a matter of sentences and got to their opinion a few moments later. I can see no basis for asserting that this was such an improper exercise of discretion on his part that this Court should intervene. 29. The result was that the trial then proceeded and no evidence was given by the applicant. That, as Turnbull(l) shows, is a factor which the jury were entitled to take into account in assessing the reliability, or in Turnbull(l) language, the quality of the identification evidence. Because it was then seen in a different context. There was nothing to set against it. That is the way that the lawyers put it, and the way in which the judge properly put it to the jury. The jury might be minded to put it slightly more bluntly. There is all this talk about honest mistake: but he has not said that in the box. 30. The trial then proceeded to summing up and verdict. I would like to emphasise that we do not have in this case to consider the impact of that part of the decision in Turnbull(l) which deals with the possible withdrawal of the case from jury at a later stage than the close of the prosecution case. There are indications in Turnbull(1) that that is a possibility which the Court had in mind. One notices at the foot of p.228 this phrase: “if the quality is good and remains good at the close of the accused’s case”. If one considers their reasoning for allowing the decision in the appeal of Roberts, which is set out at p.235-236, one sees that they came to the conclusion that that case ought to have been withdrawn from the jury. They further came to that conclusion having considered the evidence which had been led by the defence. It does seem to me that the Court was then saying in Roberts case that on the strength or weaknesses of the whole evidence led, it was “unsafe or unsatisfactory” to leave the matter to the jury. It is probable that two distinguished members of that Court at that time was supporters of what is referred to as the first school of thought in Galbraith(3). They were Roskill LJ, who said so in terms in the case of Falconer-Atlee(6); and probably Lawton LJ who said almost this in the case of Mansfield(7). Therefore there is considerable doubt following Galbraith(3), and following the decision in the Privy Council, weather those observations in Turnbull(1) are still good law. I say no more except to emphasise that we do not have to consider that in this case. 31. I then move on to the second ground of appeal which is that the judge’s summing-up was defective in that insufficient warnings were given to this jury. Mr. Hoo founds particularly upon the decision in Keane(8), upon the passage at p.248 where Scarman LJ says this:
What Mr. Hoo seeks to do is to establish a new catechism out of those observations of Scarman LJ. His complaint is that the trial judge here gave what he called a rendition and not an exposition. With respect to him this a playing with words. 32. In this case the judge started his summing-up with as forthright a warning as anyone could ask. Having drawn attention to the problem, to the risk of an honest mistake, and to the credibility of the witnesses he goes on. “But that does not mean that their identification is necessarily correct. The mere fact that they are so anxious to assist the Court, and that they have no obvious motive for deliberately picking out the wrong man makes their evidence very persuasive indeed. It also makes it very dangerous. The fact that three victims have picked out actors in good faith shows how easy it is to make a mistake.” The problem could hardly be more carefully and graphically put before a the jury. The judge went on to go through all the material parts of all the witnesses’s evidence which bear upon identification. It seems to be totally impossible to downgrade this into something called a rendition and not exposition. The material facts were all laid out before the jury in this summing-up. There is no substance in this point. Equally there is no substance in the third ground in the notice of appeal which I will be dignify by mentioning. 33. The fourth ground is a complaint of a refusal to admit evidence. The accused was arrested on 26th September as I have said. To the arresting officer he said this (I am reading from the arresting officer's note):
34. The judge ruled that evidence to be inadmissible. 35. In my judgment that ruling was wrong but understandable. Cases such as Storey(9) and Pearce(10) show that an accused's immediate reaction on confrontation or on arrest is admissible as evidence. Therefore, it is unfortunate I think that these cases were not put before the trial judge. Instead a lot of what I regard as misleading references were made to the res gestae. 36. The error is understandable because the evidence itself is of very limited value indeed, and of very little actual help to a jury. It is no evidence of the facts asserted. It is no evidence that he did not in fact rob. It is evidence only of his reaction when the allegation is made. Such evidence is I believe regarded as admissible in English law out of a sense of fairness, and particularly to give the accused an opportunity to show consistency. But when the accused later simply pleads not guilty and then gives no evidence, it is a remark which adds very little indeed to his plea of not guilty. But the ruling in my judgment was wrong. 37. The last point taken in the grounds of appeal is objection to the use of the phrase “information received”. That phrase was not used at all in evidence. It was apparently used by prosecuting counsel in opening the case. It was also used again by the trial judge in the passage I had already read when giving the history of these events. Very shortly after he used that phrase, he went on to direct the jury that they must decide the case on the evidence: that they must ignore any comments from Counsel or from himself; and that they should draw inferences only from the evidence which was led. So at once it is difficult to see how any complaint can be made of the use of that phrase in this case. 38. Much reliance is placed here upon the decision of this Court in Chan Tat-wah(11). The problem about that case is that it is difficult to see from the report exactly what happened. But it is clear that much more happened there than a simple reference to this phrase “information received” in the evidence. Not only was evidence to that effect given, but apparently evidence was also adduced beyond that that it was that particular applicant for whom the police were looking. It is therefore a very special decision on its own facts. It is special also by reason of the fact that the Court was able to hold that that such evidence was inadmissible; not simply that the evidence was admissible but of such prejudicial value that the judge ought to have excluded it. 39. It is a very real problem which arose in this case and arises in many cases such as the surveillance cases, where the first evidence which is put before the jury associating the particular defendant with that particular crime, is evidence of arrest or the start of surveillance. That evidence is calculated to provoke in the minds of the jury questions: why did they do that? They must have known something. What is it all about? It really matters very little which of various formulae are used. “Information received” has become almost conventional. The witness can use different phrases like “acting on instruction” or “following a conversation with my senior officer I went and made the arrest.” Any formula is calculated to give rise to some speculation. 40. There is I think much to be said for the view that the use of a conventional phrase like “information received” brings the matter into the open. It cannot stop speculation by the jury. But at least it is calculated to limit it. It is calculated to stop stupid questions or embarrassing questions being asked, particularly by a defendant in person, or a co-defendant in person, as to the reason why this happened. It calculated to stop suggestions of arbitrary arrest on basis at all. I cannot see that it would normally cause any harm if it is coupled wither with a warning at the time from the Court that no inference could be drawn from this evidence, or with the typical classic direction to the jury to deal with the matter on the evidence and draw inferences only from the evidence which they have heard. This is what happened in this case. 41. So that for my part I do not regard the use of this phrase as necessarily detrimental It can be useful as a means of seeking to stop unfounded and unnecessary speculation, and if coupled with a proper direction I cannot see that it does any harm at all. In fact here there was simply no evidence and a proper direction. So I see nothing in this complaint. 42. One is therefore left with this position, that the judge reached a wrong conclusion on the question of admissibility, a question law. It was a trivial error; an error which, as I see it, could have had no impact on jury once the proper effect of this comment was explained to them, i.e. the fact that it was no evidence of the facts stated. It does not, in my judgment at least, render this verdict remotely unsafe or unsatisfactory. Equally I am satisfied that no miscarriage of justice has actually occurred. For my part, therefore, I would dismiss this application.
Yang, Ag. CJ, 43. For the reasons given by my Lord Hunter I too would dismiss the application.
Power, J.A., 44. I also concur with all that has fallen from my brother Hunter.
Mr. A.A. Bruce, Senior Crown Counsel for the Crown Mr. Alan Hoo instructed by m/s C.W. Leung & Co. for the Applicant (1) 91977) 1 QB at 224 (2) (1981) 73 Cr. App. R. at 124 (1) (1977) 1 QB at 224 (2) (1977) 65 Cr. App. R. 287 (3) (1981) 73 Cr. App. At p.124 (4) (1982) A.C. 136 (5) (1979) HKLR 479 at p.488 (6) (1974) 58 Cr. App. R. at p.346 (7) (1977) 65 Cr. App. R. at p.276 (8) (1977) 65 Cr. App. R. at p.247 (9) (1968) 52 Cr. App. R. 334 (10) (1979) 69 Cr. App. R. 365 (11) (1983) Cr. App. No. 545 (unreported) |
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