Lam Wai Kwong v. The Queen
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CACC000637/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 637 OF 1980. -----------------
----------------- Coram: Bewley, J. in Court. Date of Judgment: 11th September, 1980. ----------------- JUDGMENT ----------------- 1. The appellant was charged, together with one Mak Kim-chiu, with robbery in Sau Mau Ping Estate on 28th May this year. It was alleged that they and three others robed Wong Ping-hung of $300. He was convicted and ordered to be detained in a detention centre. He now appeals against conviction only, his appeal against sentence having been abandoned. 2. Wong and two friends, Ng Shu-wai and Lam Ching-han, were passing Block 30 at 10.15 a.m. when they were accosted by two youths. Wong was taken to the first floor of the block, asked for money and, when he refused, beaten up by the two youths and others. He eventually gave them $300 and was allowed to leave. 3. There was a police post at Block 28 and here, after rejoining his friends, Wong reported the matter and gave descriptions of the robbers to the police. 4. That afternoon police officers on patrol in Sau Mau Ping Estate arrested the appellant and Mak Kim-chiu on the grounds that their appearance tallied with the description given by Wong and his friends. They denied guilt, but were taken to the police post. 5. Later that day Wong and the other two witnesses were asked to identify the two suspects. They did so. There was no identification parade. According to the two police officers involved, although there was some contradiction as to the extent of the identifications, Lam Ching-han and Ng Shu-wai identified both Mak and the appellant. 6. However, Wong told the magistrate that his identification in the police post was based on the fact that the suspects were wearing clothing similar to that of the robbers. He was now quite sure that the two persons in the dock were not the ones that robbed him. An application to treat Wong as a hostile witness was refused and rightly so. 7. Ng Shu-wai also said that no one in court was involved and explained that he had identified Mak at the police post on account of his clothes and general similarity. 8. Lam Ching-han told the court that she also had made her identification because of a similarity in appearance. She did not recognise in court either of the persons that had taken Wong upstairs. 9. From this synopsis it is obvious that the evidence of identification was decidedly shaky. In his statement of findings the learned magistrate unfortunately does not really deal with the matter. He notes, firstly, that Wong made no identification in court. He later records: "On the same afternoon at about 3.00 p.m. PW1 identified D1 and also the said appellant. PW3 identified D1 as the person who took PW1 up to the staircase." But he makes no reference to Wong's qualification in court that he identified them only as being similar. 10. The appellant called an alibi witness, who confirmed the appellant's evidence that the latter was working in a hut on the hillside all that morning. Although there were discrepancies in their evidence, neither the appellant nor his witness appears to have been shaken in cross-examination. 11. But, apart from saying he had considered the evidence and demeanour of the witnesses, the learned magistrate makes no reference to this evidence. As was said by McMullin J in Yeung Chiu v. R (1):
12. In my judgment these remarks apply to the present case. Having regard to the nature of the identification evidence and the evidence for the defence, and to the magistrate's apparent failure to rationalize the obvious difficulties and contradictions, I conclude that this conviction is unsafe and cannot stand. The appeal is allowed, the conviction quashed and the detention centre order set aside. 13. I note in passing that, in the statement of findings, reference is made to an admission by Mak to the probation officer, after his conviction, to the effect that he had taken part in the robbery, and also to an allegation by Mak that the appellant was involved. 14. Not only are such statements never evidence against a defendant but, with respect, the inclusion of comments of this kind in a magistrate's reasons for conviction, referring as they do to events subsequent to conviction, is, to say the least, unhelpful. 15. There is one final matter. The appellant was subject to a probation order made in February, 1979. The probation officer requested in his report to the magistrate that this order be discharged. It seems that this was not done: the order thus remains in force. 16. It is clear from the report that the appellant has proved to be a difficult, not to say unmanageable, probationer. If the probation officer thinks it proper to renew his application, he should now proceed to do so. If, in addition, he considers that the appellant's behaviour on probation amounts to a breach of the order, this is something that he will doubtless bring to the attention of the magistrate.
Representation: Miss Audrey Eu (Director of Legal Aid) for appellant. Mr. Tom Gall, c.c., for respondent. (1) Criminal Appeal 1043/75 |