Tsoi Chau Fat and Another v. The Queen
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CACC000737/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 737 OF 1972 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 30th November, 1972. ----------------- JUDGMENT ----------------- 1. The two Appellants appeal against their convictions on a charge of robbery. The evidence for the prosecution was that of three witnesses. First, the victim said that he was attacked by two persons: one of them grabbed him by the neck and took $110 from his pocket while the other took his watch. He then identified the first Appellant as the one who took the watch and the second Appellant as the one who grabbed him and took his money. The two men went away and he went to clear up his hawker stall before making a report to the police. He went to the Mongkok Police Station and after he had made his report, he says,
This evidence is important, because the whole case turns upon a matter of identification. The implication of this evidence is that this was not an identification without any prompting at all, but clearly the mind of the witness was directed to these two men. There is no doubt that the two men in the Police Station were the Appellants. Two police officers gave evidence that they saw these two Appellants moving in a hurried manner and that they stopped and searched them. The second Appellant was found to have two sums of money in his pocket: in his right trouser pocket was a sum of $110, which was in similar currency notes to those stolen from the first witness, and $30 was found in his left trouser pocket. He was asked why he kept these sums separately and he said nothing in reply. A wrist-watch was found in the pocket of the first Appellant. Constable CHAN Kwok-shing says that when they took these two men to the Police Station he heard a man shout out: "They are the two persons who grabbed my neck and robbed me". Constable MOK Fong, who corroborated the evidence as to the arrest and search, said that he heard the first witness say: "These are the two persons". 2. Standing by themselves these two witnesses would appear to suggest that this was a spontaneous identification by the first witness. However, when read with the evidence of the first witness, it certainly cannot be said that their evidence shows a clear inconsistency. Although the learned magistrate does not expressly refer to the apparent inconsistency, I think it must be accepted (and counsel for the Crown, I think, concedes this) that there was no spontaneous identification. It must also be added that, although the first witness insisted that he was able positively to identify the Appellants, he had to admit that he really could only identify the first Appellant positively and that he had an impression that the second Appellant was the other man. 3. Both Appellants gave evidence and denied that they had robbed TSOI Chok-tung. The first Appellant denied ever having seen the watch and certainly denied that it was in his pocket. Likewise the second Appellant denied having the $110 in addition to $30 which he admitted. 4. Had no property been found in this case it is clear that the identification would have been unsafe but the learned magistrate was fully satisfied that the two police officers were telling the truth and the evidence of finding the property alleged to have been stolen clinched the matter. I cannot say that there was no evidence upon which the learned magistrate could convict these Appellants and their appeals are dismissed. 30th November, 1972. Representation: |