Cheng Tin Fat v. The Queen
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CACC000702/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 702 OF 1973 -----------------
----------------- Coram: Huggins & McMullin, JJ. Date of Judgment: 13th December 1973. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The Appellant appeals against his conviction on a charge of robbery. This was one of two charges, which, although originally contained in the same charge sheet, were tried separately. 2. The alleged offence in the present case was that on 12th April in Nathan Road, Kowloon, the Appellant attacked a woman who had just drawn money from the bank. The woman said that two men came up to her and that this Appellant struck her in the stomach and knocked her down. She was unconscious for a time and when she came round her bag containing the money had disappeared. She had an injury on her head but she very fairly said she did not know how she had received that injury. She had been grabbed behind round the neck by one of the men and she identified this Appellant as the one who struck her in the front. On 16th April she attended an identification parade and there she identified the Appellant. The Appellant made a statement to the police in which he admitted this offence. 3. The learned judge in a very careful judgment said that he attached negligible weight to the statement. He was satisfied that it was a voluntary statement but he pointed out that it had been made after the Appellant had been in custody for two days and within a few minutes of his identification at the identification parade. The learned judge thought that the effect of all this might be to lead the Appellant to make a false confession and, therefore, he chose to decide the case almost entirely upon the evidence of the woman as to identification. He analysed the evidence with care and he was satisfied that she had sufficient opportunity at the moment of the attack to see the Appellant face to face and therefore to be able to recongise him. 4. Before us the Appellant has said that the description given by the woman to the police did not entirely correspond to the description which she gave after the identification parade. He said that he had seen the entry in the Report Book but that he had not told his solicitor that there was nothing in that Report Book about a red mark near the mouth which was referred to in the course of the evidence. Since he did not tell his solicitor no questions about this were put to the witnesses. Mr. Duckett has very properly drawn our attention to the fact that the initial report in his possession also makes no mention of the scar on the face. The victim said this scar was one of the factors which led her to identify the Appellant and it is, therefore, suggested that since it was not mentioned before the identification parade this was a fabrication which she had adopted in order to support her identification and that the identification, therefore, is not safe. It is unfortunate that this matter was not raised at the trial. However, we are satisfied that the failure to mention the scar in the initial report does not nullify the identification. The learned judge was satisfied that the identification was based not only on three particular characteristics - the red mark, the height and the build - but also on a general impression of the man's looks. It is not impossible that the woman did not, at the time, remember the scar but that it was brought back to her memory when she saw it at the identification parade. In our view the learned judge was entitled to believe the evidence of identification and, once that was accepted, a conviction was inevitable. 5. This application for leave to appeal against conviction is therefore dismissed. 13th December 1973. Representation: |