The Queen v. Ku Ming Chai

CACC000634/1987

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BETWEEN

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Coram: Hon. Silke V-P, Macdougall & Barnes JJ.

Date of Hearing: 7th June 1988

Date of Delivery of Judgment: 7th June 1988

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J U D G M E N T

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Macdougall, J.:

1. The applicant was convicted after trial by His Honour Judge Pang in District Court of robbery and of assaulting a police officer in the due execution of his duty. The case for the Crown rested principally on the evidence of the female victim of the robbery who testified that she had been awakened from her sleep in her room in Block 3 of the Kwai Shing Estate by the sound of a drawer being opened. When she attempted to rise to investigate, a man suddenly appeared and, after gagging her obtained a chopper from the kitchen and held it against her neck. He threatened her with death if she made any noise, and then proceeded to rob her of various items of jewellery and cash. The entire incident lasted for approximately ten minutes in bright light and, according to the victim, she had a clear look at the robber features for almost a minute while they faced each other and he stripped her of her jewellery.

2. A woman living in the opposite unit testified that on hearing a cry of distress she looked through her iron grille and saw the victim being, held down by a man wearing an orange coloured upper garment with a hood. As the robber emerged from the victim's flat, he caught sight of the witness and told her not to say anything. Immediately after his departure, the victim raised the alarm. An uniformed police officer on patrol nearby was alerted by a message over his beat radio. Shortly afterwards he saw a man in the lift lobby of Block 9 wearing an orange upper garment with a Hood, and moved forward to intercept him. On seeing the officer approaching him the man turned and ran up the flight of stairs. The officer then lost contact with him but made a report of the matter over his beat radio. He later went to Block 8 of the estate where he found that the same man was in the custody of two other uniformed police officers.

3. The first of these two officers had been on the lookout as a result of information he had received over his beat radio. On seeing the applicant holding an orange coloured T-shirt he went forward to intercept him but the applicant ran down a corridor. The second officer, who was at the other end of the corridor, shouted "Police don't run". However, the applicant ignored the command and, in an attempt to force his way past the officer, elbowed him in the chest and knocked him to the ground. The officer managed to grasp hold of the applicant's feet and grappled with him, and eventually the two officers succeeded in overpowering him. Shortly afterwards a polythene bag containing jewellery was found some twenty feet away from where he was arrested.

4. The victim subsequently attended an identification parade and identified the applicant as the man who had robbed her. Moreover; she not only identified the items of jewellery in the packet found by the police as those which had been taken from her in the robbery, but also recognised the oranged-coloured T-shirt with a hood that the arresting officers had taken from the applicant; as being that worn by the robber. The applicant elected to give evidence at the trial and denied having entered the victim's premises and having robbed her.

5. His account of the matter was he had returned from work that afternoon by taxi and, on proceeding to Block 8 of the estate, he saw a police officer some ten feet away running towards him. Not wanting to become involved in trouble with the police he turned and ran and, on reaching the 5th floor of Block 8, encountered the other two police officers. He agreed that he had attempted to escape and had been arrested after putting up a struggle, but denied having assaulted a police officer. In accepting the evidence of the prosecution witnesses the judge applied the guidelines laid down in Turnbull and was satisfied that the victim had had a good and clear view of the robbers features. On a consideration of all the evidence before him he was left in no reasonable doubt that the prosecution had proved its case on both charges.

6. The applicant advances several grounds in support of his application to appeal against conviction. The first ground is that because he and the victim both live in the Kwai Shing Estate, the victim would probably have seen him prior to the robbery and have picked him out on the identification parade on that basis. In support of this supposition, the applicant claims that at the parade the victim had simply said that the robber seemed to be the person standing at position 6 in the line, position 6 being that at which he was standing. There was no evidence called by the prosecution as to what had occurred at the identification parade. However, the applicant was represented by a solicitor at the trial and the identification parade book was put in evidence by consent. It is plain that the learned judge fully took into account the circumstances under which the witness had identified the applicant on the parade.

7. The second ground of appeal related to the circumstances of the robbery. In essence, it challenges the reliability of the victim's identification of the appellant. We are satisfied, however, that the judge gave proper consideration to all relevant factors and was justified in placing reliance on her testimony as to the identity of the robber. Moreover, the testimony of the witness to the robbery and that of the police concerning the finding of the stolen jewellery lent strong independent support to the victim’s evidence as to the identity of the robber.

8. The third ground of appeal is that, although the witness to the robbery had testified that the robber had said something to her as he was leaving the victim's premises, and that she had had a good look at him, she identified one of the actors on the identification parade as being the robber.

9. Moreover, the applicant alleges that the parade was not properly conducted in that the officer in charge left the room to call in the witnesses after the applicant had taken up his position in the line. In the circumstances, therefore, there was an opportunity for the officer to have told the witnesses the number of the position at which the applicant was standing. This is inconsistent, however, with the fact that the witness to the robbery made a false identification. Nor was it suggested in cross examination to either the victim or the witness to the robbery that the officer in charge of the parade had personally summoned them into the room in which the identification parade was held or had left that room at any time. We are satisfied that there is no substance in this ground.

10. The applicant also alleges that the judge had been prejudiced against him because he had earlier refused to grant him bail, that the orange coloured upper garment is a type that is freely available for a mere "several dozen dollars" and that the jewellery was not discovered by the police in his presence. None of these points leads us to think that the convictions are unsafe or unsatisfactory.

11. In developing his grounds of appeal the applicant sought to make something out of the fact that only one of the officers gave evidence on the assault charge. As each officer was at a different end of the corridor when the assault occurred this is not surprising. There was clear evidence from the second officer, which the judge accepted, that he was assaulted by the applicant elbowing him in the chest with sufficient violence to knock him to the ground. There is no merit in this ground of appeal. Accordingly the application for leave to appeal against both convictions is refused.

Representation:

Mr. A.A. Bruce, S.C.C. for Crown Prosecutor.

Applicant Ku Ming-chai in person.