Lin Yiu-hung v. The Queen

CACC000896/1982

BETWEEN

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

Date of Judgment: 2nd February 1983

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This Appellant appeals, by leave of the single judge, against his conviction on a charge of robbery. This was the second count in an indictment containing two counts of robbery. On the first count, which alleged an offence some eight days before that charged in the second, there was a similar offence of which this Appellant was acquitted. He was arrested two days after the offence of which he was convicted: he was accosted by the police when they thought he was acting suspiciously and he ran away. After a chase he was caught and in his possession were found various items of property. They included a watch, a piece of jade and a finger ring. These three items were subsequently identified by the witnesses to the second count as being their property and as having been stolen from them two days before. Their story was that they got into a lift and were followed by the Appellant, who produced a knife, threatened them and stole their property. He then escaped.

2. The vital issue in the case was one of identification and Mr. Lok in a careful and fair argument has submitted to us that the conviction was unsafe and unsatisfactory because the learned judge did not sufficiently direct the jury as to the possible dangers in accepting the evidence of the witnesses. The fact is that two of the three witnesses, a man and a woman (the owners of the three items of property), seemed to be uncertain of their visual identification of the defendants but were certain of their property. The third witness, a woman, said that she was "100% certain" of the identity of the person who robbed her but in cross-examination said that she had looked at the floor for a large part of the time that she was in the company of the robber. She had identified the Appellant at an identification parade, but it is submitted that the identification parade itself was unsatisfactory because, although the officer in charge indicated that the actors, seven in number, were all of average build and aged between 20 and 26, the witnesses who were called on to the parade had indicated that the Appellant was not of average build and that he was the shortest among those on the parade, and they indicated that the others were not average - some were old, some young, some fat, some thin, some tall and some short. It is always difficult to know what these comparative terms mean and they obviously import a subjective connotation. All that counsel submits is that in the light of that evidence a very careful direction was required by the judge, warning them fully along the guidelines in Red. v Turnbull (1976) 63 Crim. App. P. 132. We agree that it would have been desirable that the learned judge should have made more than he did of the dangers, but we approach the matter as we did in Chan Kwong-wah v Reg. (1981) Cr. App. No. 486 when we said that "in every case one must have regard to the overall effect of the summing-up to ascertain whether the jury has been sufficiently put on its guard against a witness who may be honestly mistaken". The learned judge on four different occasions warned the jury that they had to be careful in accepting the evidence of identification and that it was suggested that the witnesses were mistaken. Looking at the matter as a whole we have come to the conclusion that we cannot say that the direction was so inadequate that the verdict is unsafe. The judge referred to the warning that counsel for the defence had said in his closing address would have to be given. Counsel had gone in detail into the matters which he said affected the possibility of mistake and, although a judge is not entitled merely to refer back to what counsel has said and then tell them to consider their verdict, one must read the summing-up in the light of what has been addressed to the jury by counsel, and, after very careful consideration, we have come to the conclusion that this appeal must be dismissed.

2nd February 1983