Tsoi Chi Shing v. The Queen
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CACC000966/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 966 OF 1974 -----------------
----------------- Coram: Li, J. in Court Date of Judgment: 28th November, 1974 at 11.40 a.m. Present: Mr. D. Murphy (D.L.A.) for Appellant Mr. Niamatullah for Respondent ----------------- JUDGMENT ----------------- 1. The appellant is convicted of the offence of robbery. It is alleged that he, on the 19th of April, 1974, in a music parlour in Hong Kong, robbed one LEUNG Ming of HK$440.00, US$40.00, 3,000 Yans, one watch, one finger ring and one cigarette lighter. 2. The evidence adduced at the trial was that on the material day, the appellant went, with three other persons, into the music parlour under the pretence of being customers, and after a while, the appellant and his confederates produced knives and hustled employees and LEUNG Ming, the proprietor, into various cubicles. LEUNG Ming was pushed into cubicle No.5, and LEUNG Ming's wife was pushed into cubicle No.4 by different persons. LEUNG Ming was pushed by the appellant himself into cubicle No.5, tied up, searched and articles alleged in the charge taken away from LEUNG Ming. Some time in October, namely, the 1st of October this year, the complainant LEUNG Ming happened to see the appellant walking along a street in Kowloon near Argyle Street/Nathan Road. He called a police constable to arrest the appellant. When the appellant saw the approach of the constable and the complainant, the appellant saw the approach of the constable and the complainant, the appellant started to run, and was caught in the course of running across the road. Further evidence was adduced from the complainant's wife to the effect that she also recognised the appellant in the act of tying up her husband on the 19th of April. She attended an identification parade on the 2nd of October this year and identified the appellant as a person who took part in the robbery on the 19th of April. A third witness for the prosecution was called - the constable - to give evidence of the arrest. According to him, that when he approached the appellant and shouted to him to stop, the appellant looked and ran into the centre of the road, and was caught there at the junction of Argyle Street. 3. The defence was that the appellant committed no robbery at all. He gave evidence that on the 1st of October at the material time, he was walking along Shanghai Street near Nathan Road with his friend, a fellow tenant. At the junction of Argyle Street, he was already crossing the street and on a traffic island. When they were standing waiting for the traffic light to turn in their favour, he was stopped by a constable and was taken back to the police station. On being told of the alleged offence, he could only say that he never committed any robbery. His friend, a fellow tenant, TSE Wai-man was called to give evidence as to the circumstances under which the appellant was arrested. He corroborated his evidence in a sense that they were already on the traffic island when they heard the shout "Do not go away", and that the appellant was seized by the police officer concerned. 4. Having considered the evidence, the Learned Magistrate who heard the case convicted the appellant and gave his finding in the case stated. It is short and it can be repeated here. The Learned Magistrate says this:
5. From this finding, the appellant appeals against conviction, and the particular grounds of appeal are:
In that case, that is abundantly clear from the case stated by the Learned Magistrate that he was indeed setting two versions of the evidence and frankly observed that:
Earlier the Learned Magistrate in that case said:
It is sufficient for me to observe that I cannot read the same of the Learned Magistrate's findings in this particular case. Indeed he first considered the evidence of the prosecution witnesses, and he was quite satisfied with the accuracy and honesty of the prosecution witnesses. Then he found that the appellant's evidence and his witness's evidence was not sufficient to raise any doubt in his mind. Of course, if one approaches a criminal case in a detailed analysis of the process of reasoning, one is bound to say that a judge or magistrate, who has heard the prosecution witnesses, will first have to decide at the end of the prosecution case to see whether there is a prima facie case, not forgetting that the burden is always on the prosecution, and then proceed to listen to the defence evidence. Having listened to the evidence of both the prosecution and the defence, it is then up to him, on the whole of the evidence, to find out:
6. Mr. MURPHY, learned counsel for the appellant, directed also my attention to Archbold at page 364, in which the case of R. v. Bradbury is referred. It is said that:
7. The Court of Appeal in England was referring to a direction to the jury. It is possible that the jury might misunderstand the burden of proof in the circumstances. However, in the case of a trial Magistrate, who is legally qualified, whatever the analysis of the process of his reasoning, he must have known that the prosecution has always the burden to prove the guilt of an accused beyond reasonable doubt. 8. In this case, the Learned Magistrate found that he was quite satisfied on the evidence of the prosecution witnesses, as to the guilt of the appellant, and that taking together with the evidence of the appellant, there was no doubt raised in his mind as to where the truth of the identification laid. I cannot, on this ground, speculate and find fault with the Learned Magistrate as to what was the process in his mind I do not find that he has acted or erred in such a way as suggested by Mr. MURPHY. Nor is there any indication that the Learned Magistrate assumed that the onus was on the defendant to prove his innocence. It is only a matter of putting his case stated that indicates his process of reasoning, and has not indicated that he assumed that the onus was on the defendant. The first two particular grounds of appear must fail. 9. The third ground of appeal is that he was wrong, in fact, in stating that the two prosecution witnesses gave detailed reasons in cross-examination to explain the identification made. The alleged detailed reasons were details of what the robbers had done while committing the robbery and not details of identification, such as the colour of the spectacles, the colour of clothes, the style of the spectacles, the colour of the trousers, and the colour of the shirt was not known. That indeed, it is true. But the Learned Magistrate is not wrong in stating that the two prosecution witnesses gave detailed reasons in cross-examination to explain the identification made. It is quite correct to say that such details came out from cross-examination. The complainant, the first prosecution witness, gave details of what he lost and what took place on the 19th of April. But he frankly admitted he could not see the colour or style of the appellant's spectacles & clothes. These are not really part and parcel of the evidence relied on by the prosecution. It was brought out as a result of the cross-examination. In so far as the second prosecution witness is concerned, she could remember that it was a pair of short-sighted spectacles. She also remembered the colour of the shirt of the appellant at the time. Her evidence had never been shown to be untrue. There is no evidence of anyone to say that on that day, the appellant was not wearing such spectacles and was not wearing such clothes. 10. The fourth ground of appeal was that the Learned Magistrate was wrong in law on relying on the identification parade of which no evidence was provided by the police. Indeed, no evidence was given by the police as to the identification parade. The second prosecution witness referred to the identification parade that on the 2nd of October she was called and she was taken to an identification parade where she identified the appellant. Now this evidence is attacked on two grounds: firstly, that the second prosecution witness, being the wife of LEUNG Ming, could have an opportunity of wife and husband getting together to corroborate one another; and secondly, that since no police evidence as to the parade has been given, such evidence of identification parade by the second prosecution witness should never have been accepted by the Court or even presented to the Court of trial. My attention is drawn to the case of LIU Ping-yeung and others (Cr. App. 542 of 1964). In that case, the only evidence connecting the appellant with the offence was that the complainant in court pointed out the appellant as being one of the persons who had robbed him. In cross-examination the complainant admitted that he had not pointed out the appellant to the police, and in re-examination it was revealed that the complainant had failed to pick out the appellant on an identification parade. It was held by the Full Court that:
Thus, instead of condemning the presentation of evidence of such an identification parade, the Court was in fact suggesting that if there had been an identification parade and the appellant was not identified, such evidence should be presented to the Court and should never be suppressed. That case is not an Authority in support of the proposition, that if there is no police evidence as to an identification parade. 11. The first and second prosecution witnesses are husband and wife. There is such a possibility that they talked to each other. But there is no evidence that they had so conspired together so as to enable the wife to support the evidence of the husband. Furthermore, there is no law against a wife giving evidence in support of a husband's evidence, who is a complainant. The outcome of their evidence as to details was brought out in cross-examination. Indeed the reasons for the identification by the wife somewhat varied from that of her husband. The husband, for instance, could not remember the colour of the clothes, could not remember the style of the spectacles but the wife could. Of course, as far as the dock identification is concerned, well no one would take a dock identification too seriously. 12. The fifth ground of appeal is that the only identification by the second prosecution witness was a dock identification. The details of his appearance were given in court from an inspection at the time. If one completely eliminates her evidence that on the 2nd of October, she identified the appellant, then whatever she said would be a dock identification. But the colour of the appellant's clothes on the 19th April could not be a dock identification, unless there is some evidence that the appellant wore the same dross on the day of the robbery as on the day he appeared in court. 13. The sixth ground of appeal was that the music parlour was, according to the evidence of the first prosecution witness, dark, and it would have been difficult to see the colour mark or items as given by the prosecution witnesses. It was therefore unsafe to rely on the evidence of subsequent identification. Well, admittedly there is evidence that the music parlour was dark, but there is no evidence that it was so dark that the witnesses could not see anything. The argument that is put forward as a ground of appeal in paragraph 6 of the appeal is purely speculation. 14. Paragraph 7 of the grounds of appeal is that the first prosecution witness relied on a later appearance at the music parlour of the appellant. That was not proved in his evidence in chief to explain his identification. First of all, I must observe that this bit of evidence again came forward as a result of the cross-examination by the appellant himself. The appearance of the appellant, some three months after in the same music hall was the uncontradicted evidence of the first prosecution witness. In any way, the findings of the learned Magistrate has not referred to this particular bit of evidence. The learned Magistrate described the witnesses as being honest and accurate. 15. The eighth ground of appeal is the danger of the prosecution relying on an identification parade by husband and wife, and particularly by the wife when she had had an opportunity of learning from her husband the marks of identification before she performed her identification. The prejudice should have been made clear by the Learned Magistrate, and that he should have stated that he had taken it into account. I have already observed that there is no objection to a wife giving evidence in support of her husband's evidence, and although there is an opportunity of the two conversing with one another - there is no evidence to point one way or another. It is entirely a matter of speculation. 16. The ninth ground of appeal is that there was no evidence that the appellant had tried to run away when arrested. There was no evidence that the accused heard the police officer calling on him to stop before he crossed the road to the island. The defendant and his witness gave evidence to the contrary. It is contended that the learned Magistrate wrongly relied on the act of running away as indicative of some guilty knowledge and as corroboration. Indeed, there is no evidence that the appellant heard the police constable shouting to him to stop while he was on the pavement. But whether he heard it or not, only the appellant could say so. His evidence was that he was already on the traffic island of the road. But there is evidence by the constable, the 3rd prosecution witness, that he shouted to the appellant to stop, the appellant saw him and started to run. It comes back to the same point - a point that is repeated again and again that in an appeal of this nature, the learned Magistrate has the benefit of seeing the witnesses receiving evidence on first hand, and having heard the evidence, he believes a certain witness and disbelieves others. In this case, admittedly, he has given reason as to why he believes one and why he does not believe others. 17. Looking at the case as a whole and his statement of findings, I must confess that I cannot find fault with the learned Magistrate's findings. And the counsel for the appellant has argued with great skill in interpreting everything in the evidence in favour of the appellant, as he is entitled to do. But that was not the view that was formed by the learned Magistrate when he heard the witnesses and saw the witnesses. As I have said, I cannot find anything that is wrong with the findings according to the evidence. Accordingly, the appeal must be dismissed. Representation: Mr. D. Murphy (D.L.A.) for Appellant Mr. Niamatullah for Respondent |