R. v. WONG NGAN WA

IN THE COURT OF APPEAL

1995, No. 323

(Criminal)

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J U D G M E N T

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Ching JA (giving the judgment of the Court):

1. The applicant was charged with another man, YU Hong Kit, with two offences. The first was that they robbed a husband and wife at their restaurant of the articles itemised in the first charge on 8th June, 1994. The second was that at the time they had in their possession a firearm or an imitation firearm. Yu, who was the 1st defendant, pleaded guilty to both charges. The applicant, who was the 2nd defendant, pleaded not guilty but was convicted by the jury. The applicant now seeks leave to appeal against both convictions.

2. The case for the prosecution was that just short of midnight on the day in question the husband and wife were alone in the restaurant preparing to close. There were no customers, the staff had left and they were alone. Two men came in. One, identified as Yu, was armed with a kukri. The other, identified as the applicant, was armed with a firearm or imitation firearm. The applicant made no admission of guilt and none of the stolen articles was found upon him. He gave evidence at the trial consisting of an alibi and he called Yu as his witness who gave evidence that he had committed the offences with another person altogether.

3. The prosecution case depended solely upon the identification by the husband. The evidence of visual identification was very strong and was the subject of a comprehensive direction by the Judge to the jury. The matter however did not end there.

4. The first ground of complaint put forward in the grounds of appeal is that in the summing up to the jury the Judge failed to give them a suitable Turnbull direction as to what is described as the voice identification. The question of the applicant's voice arose in this way. The evidence of the husband was that when the two men entered the restaurant the one with the firearm or imitation firearm went up to him, declared a robbery and told him not to move. In the course of the robbery he spoke other words. He asked if there was any more money in the restaurant. He demanded the personal identification numbers of the husband's credit cards and he said that the husband should make sure he was telling the truth. The husband also heard the robbers speaking between themselves. His evidence was that the man with a firearm or imitation firearm spoke Cantonese with a Vietnamese accent. The applicant was not arrested until September, 1994, that is to say 99 days after the robbery.

5. On 15th September, 1994 the husband attended an identification parade. His evidence was that he recognised the applicant but nonetheless he asked that the applicant should say the words "Robbery, don't move." Other persons in the parade were also asked to say the same words but there is no record of who they were or in what order they spoke. The husband said in his evidence that he had already in his own mind picked out the applicant but when he heard the applicant speak the words he was "very sure, dead certain, that it was him".

6. The difficulty, however, is why more than one person should have been asked to speak. It is not clear who asked them to do so. If it was the husband who did so, it might indicate that he may not have been sure in his own mind as to the visual identification. However that may be, the applicant was entitled to have adequate directions put by the Judge to the jury on the point. No such direction was given and the evidence with regard to the voice identification was mentioned only casually.

7. Other points have been argued before us but we need not deal with them. The absence of a proper direction as to the voice identification makes, in the circumstances of this case, the verdict unsafe and unsatisfactory. We therefore treat this application for leave as the appeal itself and we allow the appeal. We have sought Counsel's views as to whether or not there should be a re-trial and in the circumstances we consider that that would be a proper order. The appeal is therefore allowed and there will be a re-trial in respect of the charges.