Leung Yim Ming v. The Queen
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CACC000690/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 690 OF 1973 -----------------
----------------- Coram: Huggins & McMullin, JJ. Date of Judgment: 10th December 1973. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The Appellant appeals against his conviction on a charge of wounding with intent to cause grievous bodily harm. 2. The evidence for the prosecution was that the victim, a Mr. NG Chi-Keung, was swimming at the Victoria Park Swimming Pool with his wife at about 6 o'clock on the evening of 21st May. They had been there about half an hour when somebody made rude remarks about Mrs. Ng. This person (who has been identified as the Appellant) was in the restaurant. Mr. Ng took exception to the remarks and went up to this man. A brief altercation took place, at the end of which Mr. Ng gave a push to the man and then left. Later that evening he received a telephone call asking him to go to the Victoria Park Pool: the call was apparently made by a friend of his. When he got to the pool he was suddenly set upon by about ten armed men and was chased along the side of the pool out into the street. In the pool was one of his friends. This friend identified the Appellant as being one of the attackers and the victim himself identified the Appellant in the following circumstances. After he had been chased for some distance he was struck in the back: he then turned round and saw the Appellant face to face, after which he received another blow with a knife in his chest. The attackers all escaped. On 24th May an identification parade was held at which the friend in the swimming pool was called and he identified the Appellant as one of the attackers. On 28th May a second identification parade was held and both Mr. Ng and his wife identified the Appellant. 3. At the trial the Appellant's defence was an alibi. Although part of his evidence was accepted by the learned judge the substantial part of it relating to the material times was disbelieved. 4. The real issue in the case was one of identification and it is to that that the argument on the appeal has been directed. With his usual thoroughness and fairness Mr. Bokhary has attacked the identification evidence accepted by the learned judge and has submitted that there were factors which should have led the learned judge not to accept the identification evidence, clear as it appeared to be. He relied upon the short period of time each of the witnesses had to get a look at the culprit and to the fact that two of them at least must have been under considerable emotional stress at the material times due either to annoyance or to fright. He also suggested that the identification had turned to a considerable extent upon the one consideration that the Appellant had wavy or curly hair. 5. Subject to what we shall have to say on the second ground of appeal we are satisfied that the evidence which was accepted by the learned judge was amply sufficient to justify his finding as to the identity of the attacker. The period of observation may have been short but it was not so short that at least Mr. Ng and his wife would not have sufficient time to see the face of the man concerned. It is a little more difficult to know how long the friend in the pool had, but it does appear that the attacker and the victim both ran past him along the side of the pool between two and four yards away. Although it is true that, as a result of questions put to them, all the witnesses did refer to the wavy or curly hair of the culprit, we do not think that the learned judge was wrong when he said:
Their identification appears to have been based more on a general impression than upon any particular feature. It is true again that none of the witnesses had seen the Appellant before to his knowledge, but even bearing that in mind we, as I have said, are satisfied that the learned judge was entitled to come to the conclusion which he did. 6. The real difficulty in the case has resulted from an observation that the learned judge made at the end of his judgment. He referred to "a damaging admission" made by the Appellant. A Chief Inspector of Police had been talking to the Appellant and, according to the Chief Inspector, the Appellant told him "he could give information to trace other assailants in this case". The learned judge regarded that as an admission that the Appellant himself was one of the assailants. On a plain reading of the evidence recorded in the English language the learned judge was quite clearly right, but the statement was not made in the English language - it was made in the Chinese language by a Chinese, Nevertheless, although we are bound to accept the translation as being correct, we do have some anxiety as to whether it was intended to convey precisely what it did on the face of it convey. It is not necessary to elaborate upon this. The matter was not pursued in cross-examination, as the learned judge pointed out, although where there is a possibility of misunderstanding as a result of translation and the reporting of speech it is desirable that a matter of this kind should be left in no possible doubt and we think it is a little unfortunate that the matter was not pursued further. In our view although on the face of it there was a highly damaging admission it was dangerous to attach undue weight to it. The question we, therefore, now have to ask ourselves is, To what extent did the learned judge place weight on this admission? Counsel for the Crown has submitted that he placed little weight on it and, in fact, only added this observation about a damaging admission right at the end of his judgment as a make-weight or, as he put it, as the final nail. It was certainly the final nail but it must be borne in mind that all the evidence had been given and the learned judge would no doubt have considered all the evidence when coming to his conclusion. However, we think that Mr. Polson is right to this extent, that the learned judge had gone in detail into the evidence of identification and had expressly said he did not believe that the identification by the witnesses at the parade was "a ghastly coincidence": whether or not it was a ghastly coincidence was not affected by any damaging admission which may have been made. 7. As I have said, we are of opinion that the evidence of identification and the finding of the judge upon it were unassailable apart from the possibility that the finding might be affected by the reference to a damaging admission. In the event, after most careful consideration we have come to the conclusion that we cannot say the damaging admission would have had any appreciable weight in the consideration of the learned judge and we are not left with that lurking doubt whether an injustice has been done which is the test which was laid down in Reg. v. Cooper 1969 1 Q.B. 267. 8. For these reasons the application for leave to appeal is dismissed. 10th December 1973. Representation: |