R. v. CHOW WAI YIP

IN THE COURT OF APPEAL

1995, No. 500
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 21 July 1995 the applicant was convicted by Deputy Judge Lung of an offence of unlawful wounding contrary to s.19 of the Offences against the Person Ordinance, Cap 212 and two offences of blackmail contrary to ss.233(1) and (3) of the Theft Ordinance, Cap 210. He was sentenced to a total of 3 years and 9 months imprisonment.

The facts

2. The victims of these offences were father and son. They were fishmongers who bought fish on Tsing Yi Island. Before 1991 they purchased seafood from boats at the seashore along Cheung Wan Road. In August 1991, however, the place for buying was changed to a construction site next to the Tsing Yi Pier.

3. The son usually drove the goods vehicle and in about August or September 1991 a number of males approached them and others who had parked their vehicles nearby and demanded $300 per month for each vehicle. They said they would collect the money each month and they did so. The son discussed the matter with his father as the place was not a car park and those making the demand offered no service for the payment. However, the son decided to make the payments which were initially collected by a man calling himself "Ah Wai". Later, others collected it, claiming to be Ah Wai's younger brothers.

4. In October 1992, the place for buying seafood changed back to Cheung Wan Road. At that time, the applicant approached the son saying he was the brother of the one who had previously demanded money. The money was paid to the applicant at the beginning of each month. The son said it was paid because he was worried about his safety and feared that the applicant might damage their property.

5. As was to appear later this fear was well founded. On a number of occasions, receipts for the $300 were issued, describing the payment as "car cleaning" but no such service was provided and the receipt did not bear any name. On each occasion, the applicant was accompanied by a number of other young persons.

6. The son said that these payments were made to the applicant from October 1992 until February 1994.

7. On 2 February 1994 the son and father went to buy fish. By this time, the son had been to the police and had been told not to pay. Consequently, he told his father not to do so. When they arrived at Cheung Wan Road, the applicant and a 17-year-old boy with tinted hair were waiting. The son said loudly "I am the one who told my father not to give you money". The 17-year-old boy then came over to the son, swore at him and attacked him. He was joined by the applicant. In the assault, the son was hit with a bamboo stick, a wooden pole, a torch and was kicked. The father intervened and paid the $300. The applicant and the other assailant then left on a motor scooter but returned. The one with tinted hair said to the son "Don't let me see you again".

8. The son's left arm was broken and he received injuries to his head, face, back and shoulder for which he was treated in hospital.

9. On 23 February the son picked out the applicant at an identification parade as one of the persons who had attacked him. He was unable to pick out the person with tinted hair.

10. After the attack, the son and the father never went to buy seafood again.

11. The father also attended an identification parade but was unable to pick out or recognise the applicant.

The trial

12. The father and the son gave evidence. The applicant chose not to do so.

13. The judge convicted the applicant of wounding, relying upon the evidence of the son. The father was unable to recognise the applicant.

14. On the blackmail charges, the father was able to give evidence that the offences took place, but he gave no evidence against the applicant. The son's evidence lacked particularity in relation to some of the charges. Although receipts had been given for the money paid consequent upon the threats, the son was unable to say on charges 2, 3, 6 and 7 that the applicant was the one who received the money and made the threat. All he could say was that he had frequently seen the applicant give receipts to his father without identifying the particular occasions. The son was able to identify two specific occasions - one in October 1992 (the 5th charge) which was the first occasion when the place for buying fish moved back to Cheung Wan Road and the second in February 1994 (the 4th charge) the occasion when the wounding took place. On this basis the judge convicted on charges 4 and 5.

The grounds of appeal

15. Through Mr Buchanan the applicant contends that he was acquitted by the judge of four counts of blackmail because of the father's failure to identify the applicant. Whereas the father gave no evidence against the applicant on these counts, this was not the primary reason for the acquittals. The judge accepted the son's evidence on counts 4 and 5. The reason for the acquittals was the inability of the son to speak to the particular occasion alleged in these counts as set out above.

16. With respect, this ground is based upon a misunderstanding of the judge's reasons and it lacks merit.

17. The second and third grounds can be considered together. The basis of them is that the judge failed to properly consider the strength and weakness of the identification evidence and that he accepted the identification of the applicant by the son upon a misunderstanding of the defence case.

18. It is said that he erroneously thought that the defence did not dispute:

(i) That the son had met the applicant in October 1992;

(ii) That the applicant claimed himself to be himself "Ah Yiu" at that time; and

(iii) That the applicant had regularly demanded $300 per month from the son.

19. Mr Buchanan relies upon the reasons for verdict at p.10P-R where the judge said:

"It was not disputed that PW1 (the son) had met D2 (the applicant) who claimed himself to be Ah Yiu sometime in October 1992 and since then D2 had come regularly to PW1 (the father) and demanded $300 for each month."

Considered in isolation, this is clearly erroneous. The judge noted (P.36) during the cross-examination of the son the following:

"Q. Put it to you that the man in the dock today is not the man that you called Ah Yiu?

A. I disagree."

Later at p. 38 there appears:

"Q. Put it to you that you were not sure that the person called Ah Yiu had attacked?

A. I disagree.

Q. Put it to you that you can't be sure what the person looked like?

A. I disagree.

Q. Put it to you that your identification of the person called Ah Yiu was a mistake?

A. I disagree."

20. However, a full reading of the judge's reasons demonstrates that he was fully aware that there was an issue as to identification and he deals with it in some detail. Having considered the submissions by defence counsel that the son might have wrongly identified the applicant on the identification parade, he then said on the same issue at p.10J:

"With regard to the issue of identification, it is true that even an honest witness may make mistake in identification. I bear in mind those guidance in relation to identification as set down in the case of Turnbull although I am of the view that this case was not a fleeting glance situation. If I am wrong about that, I prefer to err on prudence. I say that this case was not a fleet (sic) glance situation for the following reasons."

There follows the part relied upon by Mr Buchanan and the judge continued, pointing out in a fairly lengthy passage that there was no dispute that the man "Ah Yiu" was one of those who had been blackmailing the son and the father for a long period after October 1992. The judge concluded as follows:

"Having considered the above, I find that PW1 recognised D2 and he saw him to be one of the assailants who had hit him with a piece of wood on 2nd February 1994"

21. The judge made an unfortunate error. It was not disputed that a man calling himself "Ah Yiu" had done the things complained of. The issue was whether the applicant and "Ah Yiu" were one and the same person. Having regard to the way in which the judge addressed the issue of identification, he was well aware that identification was disputed. The judge's consideration of this issue would have been quite unnecessary otherwise. The passage complained of appears when the judge was considering the question whether this was a "fleeting glance" case and he was considering the length of time that the son claimed to have known "Ah Yiu" in his assessment whether this was a "fleeting glance" or "recognition" identification.

22. The error which the judge made is an obvious one. He clearly did not intend to say what he recorded. Taking this into account, his approach and reasoning is otherwise sound.

23. The final matter also relates to the identification evidence. The father never identified the applicant as "Ah Yiu" nor gave evidence that anyone whom he knew as "Ah Yiu" was involved. He attended an identification parade in which he picked out a man with tinted hair as one of those involved in the wounding but no one else. From the notes, the father's evidence appears to be vague but he testified that having recognised the man with tinted hair, he had never previously seen the other man involved in the wounding.

24. The applicant complains that in assessing the evidence of identification, the judge failed to consider and evaluate properly the effect of the father's evidence which it is suggested "cancels out the evidence of identification".

25. There were only two witnesses called at trial - the father and the son. The judge had the evidence of the father in mind in giving his reasons. He set out his evidence at p. 6. On identification he also had the father's evidence in mind. At p. 8C, he said:

"PW2 (the father) had also attended the identification parades. He was unable to identify D2. He was able to identify the male with tainted (sic) hair. He said that he had seen this male with tainted hair more on the day of the incident."

Later, he said:

"PW2 said that he was not sure who issued the receipts to him."

And again, at p. 14 the judge again referred to the fact that the father failed to identify the defendant.

26. Whereas it may be said that ideally the judge should have more closely evaluated the absence of the father's evidence on identification, he had this well in mind in coming to his conclusion. The real question for the judge was whether the identification of the son could be relied upon by him in the absence of any support from the father. As we have already said, the judge carefully evaluated the son's evidence with the Turnbull guidelines in mind. He had the advantage of seeing and hearing both witnesses and the son had picked out the applicant on an identification parade.

27. Having considering the submissions with some care, the criticisms advanced do not render these convictions unsafe or unsatisfactory.

28. For these reasons, the application is dismissed.