Lam Wah and Another v. The Queen
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CACC000607/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 607 OF 1974 -----------------
----------------- Coram: Huggins & McMullin, JJ. Date of Judgment: 20th November 1974. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This is an appeal against conviction by two men out of four who were jointly charged in the District Court on two charges of wounding with intent. 2. The basic facts are that on 17th February this year, early in the morning, these four Accused went to a dog fight. Also at the dog fight were a man called Leung (who was the victim in the first charge), a man called Lo (the victim in the second charge) and two other men, named Lui, only one of whom gave evidence in the court below. Apparently the first Defendant and Leung had known each other for some time and they had previously had some disagreement. It seems that they were both owners of dogs and that there had been some discussion about pitting the one against the other. On 17th February, after the fight, Leung went up to the first Defendant and recalled the previous altercation. 3. The learned Judge was clearly of opinion that there was a probability that what ensued was the result of the aggressiveness not of the first Defendant but of Leung. There was a discussion between these two men and the judge appears to have been satisfied that Leung made some aggressive move against the first Defendant, who called for help, and another man described as the "tall man" then came up. The altercation at this point did not develop: they went their separate ways. The prosecutions evidence was that Leung, Lo and the two Luis went down the hill, that the other man went off down the hill separately in transport, and that when the people I shall call the "Leung party" arrived at the bottom of the hill a car drove up with a number of people in it, who then got out and were seen to include the four Defendants. These people who came from the car were armed with knives or choppers and with iron bars. It was alleged that they proceeded to attack Leung, that he ran away, having been injured, that he was not pursued but that the attackers then turned their attentions to Lo. It is, I think, common ground that both men did receive serious bodily injuries. The two men were taken to hospital and Leung made a report to the police in the hospital - in fact I believe he made two statements. Nothing further happened so far as the Accused were concerned until 6th May when they were arrested. 4. The grounds of appeal, as they have now been argued before us, can, I think, be summarised in this way. The main objection relates to the identification of these two Appellants. First it is said that the learned judge did not adequately direct himself as to the dangers of accepting oral evidence of identification. Secondly it is said that, even if there was no failure to direct properly, the evidence of identification was so unsatisfactory that this Court ought to set aside the verdicts as being unsafe and unsatisfactory. The basis of the dissatisfaction expressed on behalf of these Appellants is three-fold. First it is said that the delay in the arrest indicates that the police were not told in the first place that it was these Appellants who were responsible for the attack - that the evidence of identification is probably, or may therefore be, a concoction of the witnesses subsequent to the statements taken by the police. Secondly the Appellants complain of the manner in which an identification parade was held after their arrest and thirdly, on behalf of the first Appellant, it is argued that there was no corroboration of the spoken word and that that in itself should have made the judge unwilling to convict. Then the only separate ground of appeal not related to the identification alleges a misdirection by the learned judge in relation to the fact that the second Appellant, along with the third and fourth Accused, did not give evidence in the court below. 5. It may be convenient to dispose of this last ground briefly in the first instance. The ground turns upon the passage in the judgment which reads as follows:
What is suggested is that the learned judge has taken the silence of the second Appellant to infer something which supports the prosecution case. We have been referred to a number of cases dealing with the silence of the Accused but we do not think that they really assist. If, indeed, what the judge said can fairly be interpreted as showing that the judge did infer some evidence of guilt from the silence of the Appellant clearly he was wrong and we would interfere, but in our view this is not a fair interpretation of what the learned judge said. He did not say "because of the absence of any evidence": he said "in the absence of any evidence". It has been said that the evidence of an accused person can have one of three effects: it can show that the prosecution case is proved; it can prove that the prosecution case is not true; and, thirdly, it may cast doubt upon the prosecution case. It was this third possibility to which we think the learned judge was directing his mind. He had to decide the case on the whole of the evidence. He had to be satisfied that the prosecution case was true. If the Accused had given evidence it might have cast doubt upon the prosecution case. As it was, the prosecution case had to stand or fall solely by itself: if it was to be believed then the Accused were guilty but if it was not to be believed or if there was any doubt about it then he was entitled to an acquittal. We think that all the judge was saying was that there was nothing to throw in the scale on the other side and the evidence for the prosecution had to be considered solely on its own merits. 6. Turning then to the matter of identification. We are asked to say that in a case of this kind, where the conviction must turn entirely on the oral evidence of identification, the judge ought expressly to warn himself of the dangers of such evidence. We have been referred to two cases: one of the House of Lords (Arthurs v. Attorney General of Northern Ireland)(1), where it was held that there was no necessity in directing a jury to give such a warning, and the subsequent case of Long(2), where it was held that in a case where the issue is identification and guilt depends on visual identification by witnesses who did not know the defendant the law does not require the trial judge to give the jury a warning about the dangers of convicting on visual identification, still less to use any particular form of words. We were asked to say that although that is the law in England it is desirable that we should adopt a different stand in Hong Kong in view of the fact that we are not strictly bound by those decisions (they not being decisions of the Privy Council) and that we should rather be guided by the report of the Criminal Law Revision Committee 11th Report where they recommended that it should be a statutory requirement that the judge should in certain circumstances warn the jury of the need for care in convicting on disputed evidence of identification; and we were referred to the draft Bill in that Report, which would make such a requirement. In our view it would not be desirable that we should take this course. We would be reluctant to lay down any requirement that a jury should be so directed specifically, but we do not think that it is necessary for us to decide that in the present case because this was not a trial by jury but was a trial by a District Judge sitting alone. We were asked to say that this case should even then be considered as analogous to that where corroboration is necessary, for this Court has held that even a judge sitting alone ought to indicate whether he has found corroboration - or at least that he has considered the need for corroboration - but the distinction there is that it is necessary for an appellate court in a case where corroboration is required to know on what facts a verdict was reached and that must involve knowing whether the judge found facts which could be corroboration. Therefore in such a case it is essential for a judge to indicate whether or not he has considered the matter of corroboration. We do not think that it is necessary for a judge sitting alone to direct himself expressly as to the dangers of accepting identification evidence. That is not to say that we wish to discourage District Judges or magistrates from bearing very much in mind that there are such dangers and it may well be that they will wish to express the fact that they have considered the matter quite clearly. The report of the Criminal Law Revision Committee is based upon the opinion of persons with very great experience in these matters and the dangers are notorious. So we do not, in reaching this decision, in any way suggest that it is not important for a judge to consider the dangers: it is merely that we do not think it is incumbent on him to make express reference to them. 7. Was the evidence, then, so unsatisfactory that we ought to intervene? We do not think that there is any substance in the submission that no evidence of this kind ought to be accepted or relied upon in the absence of corroboration in the form of documents or something of that kind. It may well happen that in a case the only possible evidence of identification is the visual identification of a witness. The judge or jury must very carefully consider the possibility of mistake but we cannot, and ought not, to lay down that there is any specific requirement of corroboration. 8. The point which has caused us some anxiety is whether or not the failure to call any evidence to explain the delay in the arrest throws such doubts upon the evidence of identification that we ought to interfere. The difficulty is that we do not know what report was made to the police by the first Defendant. That he did make a report is clear. He says that he told them that the first Defendant was involved, but we do not know how the first Defendant was described. The witness Leung says that he knew the first Defendant by the name "Wah Chai" and we are told, and it would appear to be correct, that throughout the trial Leung referred to the first Defendant as "Wah Chai". He did not in his evidence expressly say that he did not know him by his true name but it may be that that was the position. What in effect is argued is that if Leung told the police sufficient about the first Defendant to enable them to effect an immediate arrest then the delay is inexplicable, and in the alternative that if he did not give them sufficient information to enable them to effect an arrest then he was concocting his subsequent identification. We do not think that that is a fair interpretation of the position. It is true that it would have been much better, at least from the point of view of this Court and of an appeal, if there had been evidence to show why there was this delay. It is common to call evidence of arrest and it is somewhat surprising that no such evidence was called here. If there had been evidence of arrest questions could have been put to explain the delay in the arrest, but in our view this was a matter for the trial judge and it is not a matter which can enable us to interfere. It may well be that the prosecution ran a grave risk in not calling other evidence and it would not have been altogether surprising had the learned judge not convicted because he had some doubt arising out of the absence of explanation for the delay. The fact remains that despite that lack of evidence and having expressly referred to it in his judgment (so that he was clearly aware of the significance of the delay) he nevertheless was satisfied beyond reasonable doubt that the first Defendant and the second Defendant were among those who took part in this attack. 9. Then objection is taken to the manner in which the parade was conducted. There were five suspects put on a single parade with thirty other persons, making a total of thirty-five on the parade. Two witnesses were called, Leung and Lo, and both of them identified the four Accused out of the five suspects and the thirty actors. There was apparently some delay or hesitation in the identification of the last three Defendants but that, as counsel readily admitted, cut both ways: without having been there one cannot say whether that hesitation was the result of lack of certainty or whether it was over-cautiousness. What counsel has submitted is that we ought to bear in mind the practice which is now approved in England requiring that where there are more than two suspects there should be more than one parade. Unfortunately we do not know on what ground the Home Office Circular No. 9 of 1969, which gave certain instructions to the police with the approval of the Lord Chief Justice, laid down this practice and we confess to having some difficulty in understanding why it was laid down. It seems to us that the important thing is that there should be a reasonable ratio between suspects and actors and that there should be sufficient numbers of actors who are of similar height, build and complexion to each of the suspects Provided those requirements are fulfilled then it seems to us that no injustice will result. Indeed it may be said that for a witness to be faced with a very large number of persons makes his task more difficult and therefore, when he does identify somebody, increases the value of his identification. But be that as it may we are not persuaded that in the present case there was any irregularity which goes to render the identification invalid. 10. We would also like to sound one warning. We have allowed ourselves to be referred to the Home Office Circular, just as courts have in the past allowed themselves to be referred to the Judges' Rules. Happily this circular has not been headed "Rules" and they should not be regarded as rules: they are in fact, so far as the courts are concerned, nothing more than advice, just as the Judges' Rules are no more than advice, and we do not think that any useful purpose can be served by referring to the precise terms of this type of document and then saying that there has been a breach. The question which the Court has to decide in each case is whether in all the circumstances which obtained in that case there has been anything which may have led to injustice. There was in this case nothing which leaves with us any doubt that the Appellants were correctly identified. 11. We are of opinion that there is no substance in the appeal and the applications must be dismissed. 20th November 1974. Representation: (1) (1971) 55 Crim. App. R. 161 (2) (1973) 57 Crim. App. R. 871. |