The Queen v. Ngan Chi-shing

CACC001150/1983

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Li & Yang, JJ. A.

Date of Judgment: 19th September 1984.

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JUDGMENT

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Sir Alan Huggins, V. -P.:

1. The Applicant, having abandoned his appeal against sentence, now seeks leave to appeal only against his conviction on a charge of robbery. The case has been argued upon three grounds:

As it seems to us the third ground, even if established, could not justify our quashing the conviction and would, at the most, have been relevant to sentence.

2. There was uncontested evidence that on 5th December 1982 at about 8 p.m. four men entered a factory and announced that they were there to rob. They were all masked with nylon stockings and some or all were armed with knives and a pistol. Two women employees had money of their own taken from them and a substantial amount of the factory's money was also stolen. In addition the prosecution alleged that a camera and flash unit, which were on 7th January 1983 found in the Applicant's home and were identified as the property of an accounts clerk at the factory, were stolen at the same time.

3. The Applicant was arrested on 26th January 1983 in the departure hall of Kai Tak Airport when he was about to leave the colony. He made a statement to the police in which he admitted possession of the camera and flash unit and said that they had been brought to him on 6th December 1982 at about 10 a.m. by one CHU Wai-ming (another Defendant in the case) who had asked him to keep them for him. He guessed that Chu must have obtained them unlawfully but "could not be sure of that".

4. The two women employees both identified the Applicant at an identification parade at which the Applicant and all the actors were masked with nylon stockings. Both had a reasonable length of time in which to observe the robbers at close quarters in adequate light, but, as the robbers were masked with stockings, their features were distorted. Those of the persons on the identification parade were, of course, similarly distorted. The judge warned the jury of the possibility of mistake even by a witness who was convincing. However, Mr. Whitehead submits that the identification by these two women was such that, if it stood alone, the judge should not have put the Applicant upon his defence. Counsel relied upon the passage in Reg. v Turnbull 1976 3 W.L.R. 445 where Lord Chief Justice Widgery said at p.448G

"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. "

Although this was not a "fleeting glance case", it was in our view a case which should be classified as one where the identification was made in difficult conditions: although the distortion of the Applicant's features would be similar on the two occasions on which the witnesses saw him, the effect of the masking would be to flatten the distinguishing features and therefore to make them less prominent. The judge should therefore have withdrawn the case from the jury unless he thought there was other evidence which went to support the correctness of the identification. If he thought there was such other evidence then the further guideline at p.449B in Reg. v Turnbull should have been followed:

"The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so."

Whether or not there was evidence which the jury might have thought was supporting when it did not have this quality, the judge did not identify the evidence (if any) which he did adjudge was capable of supporting the evidence of identification.

5. Was there such supporting evidence ? There was if, having accepted (a) that the Applicant made the statement to the police in which he admitted possession of the camera and flash-gun on 6th December 1982 and (b) that that statement was true, the jury was not satisfied that he had given a reasonable explanation of his possession. His recent possession would have justified an inference that the Applicant was one of the robbers. We think it was the existence of this evidence which led the judge to leave the case to the jury. Although he did not indicate expressly to the jury that it could be supportive of the identification evidence, the judge fully explained the doctrine of recent possession and we do not think that his failure to relate the Applicant's admission to the identification evidence was fatal.

6. It would be more serious if there was evidence which the jury might have thought was supporting when it was not. Mr. Whitehead suggests that there were two such pieces of evidence, (i) that relating to the arrest of the Applicant at Kai Tak and (ii) anything in his statement to the police which the jury thought to be untrue so that they came to the conclusion that he had told lies. The judge referred to the possibility that the jury might infer that the Applicant's attempted departure from Hong Kong when he must have known that the police were looking for him "showed a consciousness of guilt", but did so in relation to the issue whether his possession of the camera and flash-gun was honest or dishonest. He never suggested that if the Applicant were fleeing from the police this was indicative of a consciousness of guilt of robbery rather than, for example, of handling stolen goods (with which he went on to deal) and the jury can hardly have thought that it was but for the fact that the judge concluded that part of his direction as follows:

"However, you should only do so if you are satisfied that that would be the only reason for his departure. Well, that is really all I want to say on the subject of robbery".

In the light of that direction we conclude that the jury might have thought the circumstances of the arrest supported the evidence of identification, whereas clearly it did not. The judge said nothing about the possible effect of a finding that the Applicant had told lies, and we are not persuaded that it was incumbent on him to mention the matter. Nevertheless, the failure to warn the jury about the possible flight of the Applicant as supportive of the identification evidence is fatale.

7. It is now unnecessary for us to consider in detail the argument that the judge was wrong to leave the doctrine of recent possession to the jury because the evidence would not justify a finding that the camera and flash-gun were stolen on 5th December 1982 at the factory: they might have been stolen on another occasion or even at some other place. This argument was based on the evidence of their owner, who said in examination-in-chief that he had last seen the camera in the office of his elder brother at the factory about a month before the date on which he discovered his loss, but who in cross-examination was asked

"Is it correct also that you don't remember the last time you saw the camera ?"

and replied

"Correct".

We are satisfied that this answer could not have been taken by the jury to detract from the certainty of his previous answer that, whenever the occasion was, it had been in the factory. Although there had been times when the camera had been taken home, when he wanted it on 11th December it was in the factory that the owner looked for it. There was no reason to believe that it had been stolen before the robbery on 5th December and it was a reasonable inference that it was taken on that day.

8. Clearly the conviction for robbery cannot stand. We will hear counsel as to the order which should be made.

19th September 1984.

Representation: