THE QUEEN v. LAI PAUL

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J U D G M E N T

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Fuad, V.P (giving judgment of the Court):

1. The Applicant, Lai Paul, was convicted on 2nd December 1987 by Judge Sanders in the District Court of robbery and sentenced to imprisonment. He now seeks leave to appeal against his conviction.

2. The Applicant was the 2nd Defendant at the trial. The 1st Defendant was also convicted of the same robbery and his application for leave to appeal against conviction was refused by this Court, differently constituted, on 7th June 1988.

3. The case for the prosecution was that Mr. Tang Chung Hong was in the Kowloon Park at about 1:30 a.m. on 26th August 1987 with his girlfriend, Miss Chan Hu Siu, and another friend. While Mr. Tang was chatting with the girl, three men came up to them. One was armed with a knife and pointed it at Mr. Tang's neck, declaring that it was a robbery. Mr. Tang took $1,000 from his wallet and handed it over to the man with the knife who stood only about 1 foot away from him. There was plenty of light.

4. A few minutes after the confrontation, two police officers in uniform happened to pass by on patrol. Two of the men ran away, while the third man (the 1st Defendant) walked away, nonchalantly, to begin with as if nothing had happened. He was later caught trying to run away. The two other men escaped in the chase.

5. The 1st Defendant was arrested by another policeman patrolling nearby with two colleagues and was identified by Mr. Tang as one of the robbers. He was taken to a police vehicle. Mr. Tang and his friends got into the same vehicle and drove round the area with the police to see if the two other culprits could be found.

6. About half an hour after the robbery, another group of police officers intercepted the Applicant while he was coming out of a small park near a school in Canton Road. This park adjoins, but is below, the Kowloon Park. The Applicant was running very fast. Although it had not been raining, his clothes and face were wet (with sweat). There was mud on his shoes and his arms and face were scratched. He was wearing glasses. When asked why he was running so fast, the Applicant said he had just urinated in a corner of the park near a wall. A police officer went with him to the place he had indicated, but saw no signs that suggested that anyone had urinated there.

7. As the Applicant was being taken to the vehicle used by the second group of police officers, he tried to run away but was restrained, overpowered and handcuffed. He was put into their vehicle. Soon afterwards, the first police vehicle drove up. Mr. Tang got out, walked up to the second vehicle, which had its interior lights on, and identified the Applicant as one of the robbers.

8. The Applicant's defence was that he had gone out for a meal and had been to a cinema that night. He had then gone to a bar for a drink and he was walking slowly on Canton Road on his way home when he had felt the need to urinate. He had done so in the small park at the side of the road. When he rejoined the road, he saw a police vehicle. Several officers got out and stopped him. He was asked what he was doing there and he explained, but the police would not go with him to enable him to show them where he had just urinated. He was detained and about five minutes later Mr. Tang came up and accused him of being one of the robbers. He was made to sit in the police vehicle. When he denied the accusation he was punched by one of the policemen and when he shouted out he was further assaulted. He complained about the assault when he reached the police station.

9. We would mention here that Mr. Tang's girlfriend, Miss Chan, also told the Court that she had identified the Applicant as one of the robbers, but the judge, in his Reasons for Verdict, indicated that he had placed no reliance on her evidence because although she had identified the Applicant, her evidence was "vague". The other man (Mr. Shu Man Wing) with her and her boyfriend appears to have been sleeping at the time of the robbery and his evidence assisted neither the prosecution nor the defence.

10. The Applicant was unrepresented at the trial. He bad been offered legal aid but only if he made a contribution to its cost. He told the Court that he did not want legal representation. He could not afford to make the contribution sought from him. He realised that the charge was a serious one but wanted the trial to proceed. Mr. Buchanan represents him before us and the first complaint he makes is that the Applicant had not been given the statements of the prosecution witnesses before the trial and therefore he had had no opportunity to cross-examine them upon "variations, omissions and additions" when they were giving evidence in Court.

11. Mr. Buchanan also submitted that the prosecution had not drawn the attention of the Court (since the Applicant was unrepresented) to discrepancies etc. Which were apparent between the police statements of the police sergeant (PW3) and Miss Chan (PW2) and their testimony in Court.

12. All the police statements of the prosecution witnesses were before us at the hearing of the appeal. Mr. Bruce, who appeared for the crown, raised no objection to our looking at them. Mr. Bruce explained that for the past four years or so, it had been the invariable practice of the Crown to provide all police statements of proposed witnesses to the solicitors of an accused person before the trial, if they were known. When the accused was unrepresented, the practice was to send them to the Legal Aid Department on the assumption that legal aid would be applied for. This seems to have happened in this case, for we are told that the Applicant himself went to the Legal Aid. Department after the first day's hearing had concluded and was given all the statements. The Applicant who was clearly not shy in raising matters with the Court never suggested to the judge that he had been handicapped in any way. If he had wanted to have the witnesses who had given evidence on the first day recalled to cross-examine them on their police statements, the judge would surely have allowed this. If he had wanted the statements translated into Chinese, no doubt this could have been arranged.

13. We would encourage the excellent practice that has grown up of providing police staterents to the defence, but in the circumstances it seems to us that in relation to them the only matter we have to consider is the second point raised by Mr. Buchanan. We need only say that we have carefully read the relevant statements and compared them with the evidence given by the two witnesses in Court and we have concluded that there were no material inconsistencies, by variation or omission, of the kind which would have obliged counsel then appearing for the Crown to bring them to the attention of the judge.

14. In view of the next ground of appeal put forward by Mr. Buchanan on behalf of the Applicant it is necessary to review, in some detail, something that happened during the trial. A police sergeant (PW3) had given evidence in chief. He was the officer in charge of the group which had arrested the 1st Defendant and it was in this police vehicle that Mr. Tang and his friends drove round looking for the other men involved in the robbery. When they reached the school in Canton Road, Mr. Tang pointed at the Applicant who was sitting in the other police vehicle parked near the school and said that he was one of the robbers.

15. The Applicant did not wish to cross-examine this officer but complained to the judge that he had seen the Senior Inspector in charge of the case talking to the witness who had just given evidence and to other police officers outside the Court during the afternoon adjournment. He said he had heard the Inspect telling them that the police sergeant (PW3) had testified that he (the Applicant) had been inside and not outside the police vehicle. He had also earlier heard Mr. Tang speak to the Inspector telling him to inform the other officers of that fact. This was during the luncheon adjournment.

16. The judge adjourned the hearing and asked Counsel for the Crown to investigate the matter so far as he could. On the following morning the judge was told that the Inspector and Mr. Tang had denied the allegations made against them. The judge then decided to go into the matter on a voir dire.

17. The Applicant gave evidence on the issue and repeated his allegations on oath. He was then granted an adjournment to the following day to call a witness. When that witness gave evidence he said that he had seen Mr. Tang and the Inspector walk out of Court together. They were joined by another man. He could not hear what they said as he had been in the public gallery. He had been outside the Court during that afternoon adjournment and had seen Mr. Tang and the Inspector having a conversation with several uniformed police officers. He could not hear what they were talking about. In cross-examination he said that he had heard a police sergeant talking to Mr. Tang. All he been able to hear about this conversation was the use of the one word "vehicle". They were talking quite openly.

18. The Senior Inspector gave evidence denying what had been alleged against him. He had certainly spoken to some police officers but not about the evidence in the case. Mr. Tang had not told him to tell the police officers that evidence had been given that the Applicant was in the police vehicle when he was identified by him (Mr. Tang). Mr. Tang was re-called and also denied this.

19. Mr. Shu Wan Ming, who, it will be re-called, was male friend with Mr. Tang when he was robbed, also testified that he had been outside the Court during the afternoon adjournment with Mr. Tang, the Senior Inspector and other police officers. They were having a casual chat and at no stage did the Inspector tell his police colleagues anything about the police sergeant's (PW3's) evidence in Court.

20. Miss Chan (PW2) also swore that she had not discussed the evidence she had given with anyone.

21. The voir dire then concluded and the judge recorded: "I won't stop the trial at this stage and order a new trial I will only order that the evidence in this trial within a trial he evidence on the general issue." The trial proper then continued and reached its close.

22. In his Reasons for Verdict, the judge said something more about the voir dire:

"I decided that there was no reason why the trial of the general issues should not continue; and because the evidence in the Voir Dire might be relevant so far as the weight to be attached to evidence on the general issues was concerned I ordered that the evidence in the Voir Dire be evidence on the general issues."

23. Mr. Buchanan submits that the complaint made by the Applicant about the witnesses being coached and getting together had not been satisfactorily dealt with or resolved. Of course the judge was bound to go into the complaint but we think that Mr. Bruce must be right when he suggests that holding a voir dire was not the most appropriate way. With due respect to the judge, who obviously took anxious care over the matter, we consider that the judge might have been led astray by thinking that he had to decide whether or not to order a new trial. This surely was not a course open to the judge whatever he believed about the allegations made by the Applicant.

24. In our judgement the judge should have dealt with the problem simply by allowing cross-examination by the Applicant of the witnesses (and by recalling any witness if necessary). However, we feel, that having embarked upon a voir dire, it would have been better had the judge expressly dealt with the complaint made by the Applicant in his Reasons for Verdict and had indicated whether or not he accepted that the Applicant's allegations were true. However, since the judge said that the evidence on the voir dire would "be evidence on the general issue", and later in his Reasons that he had considered all the evidence, including that in the voir dire, we entertain no doubt that the judge was indicating that his confidence in the evidence which he accepted was in no way shaken by what was said during the voir dire.

25. The remaining grounds of appeal all concern the sufficiency of the evidence of identification and the way the judge dealt with the evidence in his 20-page Reasons for Verdict. Mr. Buchanan rightly points out that 18½ pages are taken up by the judge's summary of the evidence without comment and submits that the remaining 1½ pages did not adequately address the difficulties of the case.

26. It is necessary, therefore, closely to examine what the judge did say. After reviewing the evidence in great detail, the judge said, as we have seen, that he had considered all the evidence, including that given during the voir dire. He then said that he believed Mr. Tang's evidence that at about 1:30 a.m. he had been robbed by three men, one of whom was a tall man with a knife who was wearing spectacles. He then explained why he had found the 1st Defendant guilty. About the Applicant, the judge said Mr. Tang had testified that he had had a good look at the tall robber - the one with a knife. He had said that the tall robber was wearing spectacles. He could not identify him in Court but he had identified the Applicant later as one of the robbers to the police officers in Canton Road and the Applicant had acknowledged that this was so.

27. The judge went on to say that there had been discrepancies and inconsistencies in the evidence of some of the Crown witnesses. For example Mr. Tang had said that in Canton Road, after identifying a person as one of the robbers, he had been taken to the police station in the second police vehicle. Other evidence was that he gone there in the first police vehicle. Also it was unclear from the evidence of Mr. Tang and the sergeant (PW3) where Mr. Tang had been when he first saw the person and when he identified him as one of the robbers. As a matter of common sense, the judge observed, it seemed to him that Mr. Tang could not have been in the first police vehicle, moving or stationary, when he had seen the person he identified in the second police vehicle. However he did identify a person, the Applicant, who was then in the second police vehicle, as one of the robbers. The Applicant had given his explanation as to how he came to be where he was when arrested. He had decided that the Applicant was not a witness of truth. He concluded by saying that he "found":

"(a)    one of the three men who robbed PW1 was a tall man wearing spectacles

(b)     D2 could accurately be described as 'a tall man'

(c)     shortly after the robbery D2 was found in or emerging from a small park adjoining Kowloon Park and was then wearing spectacles

(d)     D2's clothing was soaked with perspiration and D2 had abrasions to his arms and face

(e)     PW1 had correctly identified D2 to the police officers as the tall robber

(f)     D2's evidence that he was not one of the robbers was untrue."

28. In his opinion, the judge said, the charge had been proved beyond reasonable doubt.

29. Mr. Buchanan submitted that the judge had not indicated that he had applied the principles required to be considered according to the guidelines in R. v. Turnbull. We do not think it is necessary for a District Judge, in terms of s.80 of the District Court Ordinance, expressly to record that he has borne the guidelines in mind, although this Court may interfere if there is reason to think that a judge has in fact overlooked the dangers generally inherent in evidence of identification or any matter particularly pertinent to the identification in question. An express reference will, of course, exclude any possibility of doubt.

30. We are unable to accept that the judge would not have taken into account, when concluding that Mr. Tang had made a correct identification, the danger that his identification might have been unconsciously influenced by the Applicant's presence, handcuffed, as one of only two men in civilian clothes in the police vehicle.

31. From the way the learned judge formulated paragraphs (a), (b) and (c) of his findings it might appear that he had derived some support for the reliability of Mr. Tang's identification of the Applicant from his own evidence describing the principal robber at the time of the robbery itself. It seems to us, however, that when his Reasons for verdict are read as a whole it is clear that the judge was indicating that he had accepted the description as an independent recollection in the sense that it was an honest statement of what Mr. Tang remembered seeing at the time, for the judge expressly said, at the commencement of his actual reasons:

"I believe PW1's evidence that at about 1.30 a.m. on 26.8.87 he was robbed by three men, one of whom was tall and had a knife and was wearing spectacles."

In these circumstances there is no reason why the judge should not have looked upon the evidence as confirming to some extent the correctness of the identification. It may not have taken him very far, for tallness and the wearing of glasses are not particularly uncommon features.

32. On the view of the evidence taken by the judge, there was ample opportunity, when the knife was at his throat, for Mr. Tang to observe the features of the robber, and the light was good both in the park and when he made the identification in the police vehicle. The fact that the Applicant was found where he was, soaked in perspiration, with abrasions on his face and arms, and, as the judge found, had told lies about what he was doing in the park at that hour, lent powerful support to Mr. Tang's identification, the honesty and correctness of which the judge accepted.

33. We are not persuaded that the verdict is either unsafe or unsatisfactory and we, therefore, refuse the application.