Kwok Fei-li v. The Queen

CACC001115/1981

BETWEEN

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Coram: Roberts, C.J., Huggins, V.-P. & Barker, J.A.

Date: 23 November 1982

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JUDGMENT

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Barker, J.A.:

1. I will deal first with the application for leave to appeal against conviction by the 2nd appellant to whom I shall refer hereinafter the 7th accused.

2. He was charged on only one count of robbery which took place on the 13th November 1980 at Caldecotte Road, Shek Kip Mei, Kowloon.

3. Undoubtedly a robbery took place and a number of people have either been convicted or found guilty of it. The sole question in this case so far as Kwok Fei-li, the 7th accused was concerned, was whether he was one of the robbers. The only identification that was made by a witness for the prosecution of this accused was by a man called Mr. Leung Hang, the occupier of the flat in which the robbery took place. His identification evidence was characterized by the judge in his summing-up as very poor and we agree that that was a correct description of it.

4. Mr. Leung had the opportunity to observe the robber under very difficult conditions. His head had been covered with a quilt and he was only able to peep out from under it. Moreover, he attended three identi-fication parades. It is true that on one of them he picked out the 7th accused and said in evidence that he was positive about it. But he also picked out three actors during the course of those three identification parades.

5. The principle, which should be applied in a case such as this, has been laid down in the well-known case of R. v. Turnbull⁽¹⁾. It was said by the Lord Chief Justice at page 138:

"When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification."

And so, one has to see whether there was any evidence which went to support the correctness of the identification.

6. The only evidence which, it was suggested, could amount to supporting evidence, was a belt which was found hanging in the bedroom of but 73A, Kau Wah Keng Village and a fountain pen which was found under the bed.

7. There was some dispute as to whether the 7th accused was actually in the bedroom when arrested or coming out from the bedroom or outside it. But that, in our view, is immaterial. There is no doubt that the belt and the pen had come from the flat that had been robbed. But the question, which has to be decided, is whether that belt and that pen were in the possession either sole or joint of the 7th accused.

8. There was no evidence that the 7th accused was the sole occupant of this bedroom. There was at least one other person who was in the bedroom at the time when the police arrived. Indeed, Mr. Kilgour, who appears for the Crown, very fairly conceded that there was no evidence of exclusive occupation of the bedroom by the 7th accused. And indeed, rather to the contrary, this bedroom appears to have been occupied by all and sundry at various times.

9. In these circumstances, in our view, the finding of that belt and pen in that bedroom could not amount to supporting evidence. That being so, the judge should, in our view, have withdrawn the case from the jury and directed an acquittal.

10. Accordingly, so far as the 2nd appellant is concerned, we grant leave to appeal against conviction. We treat this application as the hearing of the appeal and we allow the appeal and quash his conviction. Let him be discharged:

(1)    (1976) C.A.R. 63, P. 132

Representation:

Mr. A.J.J. Sanguinetti & Mr. P. Nguyen (D.L.A.) for the Appellant.

Mr. D.S. Kilgour for Crown/Respondent.