THE QUEEN v. TSANG PAK MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 391 OF 1988

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J U D G M E N T

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1. The events with which this appeal was concerned took place on the late evening of 12th September 1987 in the streets behind the Lee Gardens Hotel. The Appellant was alleged to have been acting in concert with one, Yip Wing Ho, and a taxi driver (using his taxi) in a pickpocketing enterprise. Yip was arrested on the spot and subsequently convicted, while the Appellant was not arrested till some four months after the event.

2. The sole issue in the appeal was whether or not the learned magistrate had properly considered and evaluated the evidence as to identification before convicting the Appellant of attempted theft. He had originally been charged with theft but quite properly and in response to defence counsel's submission the magistrate found that the matter was more correctly described as attempted theft.

3. However that was not in issue and identification was. Mr Plowman who appeared for the appellant both in the appeal and at trial complained that the learned magistrate had failed either adequately at all to consider the principles laid down in R v Turnbull⁽¹⁾ when assessing the evidence of identification. That well known case established that there were matters which a tribunal of fact should take into account when assessing identification evidence, and generally emphasised the need for caution before relying on that evidence, as well as highlighting the risk that exists of a truthful identifying witness also being a convincing mistaken one. Mr Plowman's other complaints related to the learned magistrate's treatment of the evidence, and a failure on his part to appreciate the real weaknesses and inconsistencies in the prosecution's case.

4. There was no dispute that an organised and professional attempt had been made by this pickpocketing group to wrest the wallet from the back pocket of Tseng Woon-tung, a tourist from- Taiwan, who had been strolling with his friend Li Fungon back to Lee Gardens Hotel where they were staying during their visit to Hong Kong. There was no dispute about the fact that two men and a taxi had been involved, that two men had been in the taxi around 10 p.m. that evening, had been seen to emerge from that taxi around 10.35 p.m. and together and aided by the taxi to have made the attempt on Mr Tseng's wallet. There was also no dispute that Yip Wing Ho was one of the two men. The prosecution alleged that the Appellant was the other man, and that was contested.

5. The prosecution called three live witnesses, and the evidence of the Taiwanese tourists, taken by another magistrate on 14th September 1987, just two days after the event., was agreed in terms of section 65C of the Criminal Procedure Ordinance, Cap. 221, and became part of the record. The prosecution's live witnesses were three police officers who were patrolling in the Causeway Bay area near hotels on anti-pick-pocket duties.

6. In his findings the learned magistrate "ignored" the evidence of two of the police officers in coming to his decision about the identification issue, and relied entirely on the evidence of the remaining officer PW1, Sergeant 20776 Lo Chung Yiu. Neither of the Taiwanese witnesses could effect an identification of the appellant., though, as it turned out, their description of the pickpockets gave the magistrate some cause to ponder before convicting the Appellant. Mr Plowman argued that what the Taiwanese witnesses said should have resulted in the acquittal of the Appellant.

7. Mr Harris for the Crown argued that in his findings the learned magistrate obviously had in mind the case of R v Turnbull⁽¹⁾ but Mr Plowman countered that by arguing that his evaluation of -the evidence of PW1 did not expressly have regard to the factors which Turnbull⁽¹⁾ urged should be taken into account. Certainly the learned magistrate did not refer to the case by name nor did he identify any of the matters he took into account as principles which had been enunciated in that case.

8. Mr Plowman also pointed out that there were worrying features of PW1's evidence not discussed by the learned magistrate in his findings, not least of which was the fact that in his examination in chief PW1 said he was in his car when he viewed and could identify the Appellant emerging from the taxi at 10.35 p.m. where as in cross-examination he said he was standing in the street. That interpretation of the facts certainly seemed to be open on a fair reading of what was at times a difficult record to follow, and the two versions. could not be reconciled, so that it was at least surprising that no mention was made of them by the learned magistrate.

9. The witness had said he saw the Appellant in a taxi in the area at 10 p.m. Of this identification the magistrate said:-

"I considered this evidence but I felt there was a possibility he could not have had more than: a passing glimpse. While this observation may not have been enough to satisfy me on the question of identification I accept that it was certainly sufficient to put PW1 on his guard."

I found this passage a little difficult to follow, because though he had not accepted the evidence of the 10 p.m. sighting as amounting to acceptable identification, yet he appears nevertheless to have put it to use to make more credible the later identification. He did not appear to consider, as should always be considered in fleeting glimpse cases, the possibility of a mistaken identification, which then might have affected any later identification.

10. At any rate the second identification was the one on which he relied, and yet he did not appear to take into account the inconsistency in PW1's evidence about it, which I have already mentioned, nor did he expressly refer to the difficulties which might he in the way of a reliable identification, including heavy pedestrian traffic, the fact that it was night time, and the ever present possibility of a genuine mistake, and so on. This identification was effected mainly from an angle with a view of the left side of the appellant's face over only a matter of a few seconds, though he claimed to see the appellant full face for one or two seconds. He then walked behind the appellant at a distance of about 50 feet.

11. As well as which it was PW1's evidence that after the attempted pickpocketing, he being still about 50 feet away at the time, he ran after the Appellant who was walking away, got to within one foot of him but could not catch him. In his findings the magistrate said this about that part of the evidence. "I also accepted that after the incident PW1 did confront the Appellant who eluded him". Once again there was no analysis of that evidence to suggest that the magistrate tested its reliability, and it seems to me that the sergeant's account of that incident was at least worthy of close scrutiny, if it was not most improbable.

12. The evidence of both Taiwanese witnesses was that the man Yip was the shorter of the two men involved. Evidence was led by the Defence that Yip was four inches taller than the Appellant. That is a significant difference and even allowing for possible confusion in the witnesses due to the suddenness of the events, and their involvement, it is my view that that evidence could not simply be dismissed as the learned magistrate dismissed it in these words:-

"I considered the evidence regarding the differences in height which would tend to suggest. that the Appellant was not involved. I considered that in a highly charged situation which was no doubt confusing the 2 Taiwanese visitors could have been mistaken. It would have been a simple error. There was only 3 inches difference."

13. In fact the difference was four inches, and in my view that evidence cast a dark shadow over the reliability of PW1's identification. The difference in height was not marginal and there was nothing in the evidence itself to suggest the witnesses were confused. Certainly it is a well known phenomenon that sudden trauma may seriously affect a witness's powers of observation. But it is also well accented that this varies significally from witness to witness. No attempt had been made in this case to find out into which category these witnesses fell. They were able to identify Yip without apparent difficulty.

14. I acknowledge that it is not encumbent on a magistrate to refer in his findings to every piece of evidence, or to analyse the reasons for every conclusion he reaches. However, I would suggest that in a case such as this where the conviction rests substantially, if not entirely, upon the evidence of one identifying witness, the magistrate should be seen to expressly consider all factors which are relevant to the strengths and weaknesses of identification evidence, and to address his mind to any inconsistencies or improbabilities in that evidence. That must lie so particularly where other evidence exists which is at least prima facie acceptable, and which if accepted would cancel out the evidence of identification.

15. The call in R. v. Turnbull⁽¹⁾ for caution when considering identification evidence should not have mere lip service. That cautionary tone reflects the sobering experience of many past instances of mistaken identification. It seems to me therefore that it is at least desirable for magistrates dealing with identification cases, and where it is appropriate to do so, to clearly indicate that they have had regard to the principles enunciated in R. v. Turnbull⁽¹⁾. Failure to do so, in appropriate cases, might well cause the appellate tribunal to doubt that the magistrate's decision followed a proper consideration of all relevant factors.

16. In that general connection a further matter arises. The learned magistrate in relating the evidence of PW1 referred to his claim that he knew the appellant and to the fact that that claim was not disputed by the appellant. That matter was not mentioned again and especially it was not expressly relied upon in coming to his decision. I was left wondering whether this potentially highly prejudicial evidence, which was nonetheless relevant and admissible, became part of the magistrate's decision making process. If it did, I would have expected some form of indication that he had separated the probative from the prejudicial. Once again the findings were silent on the magistrate's approach to a most important piece of evidence, and one which went directly to the reliability of PW1's identification.

17. I find therefore that I cannot be satisfied from the learned magistrate's findings that he addressed his mind to those factors which are essential and relevant to consider in a case of identification. Furthermore, in the record of proceedings, I detected features of the evidence of the only identifying witness which, in my view, called for careful analysis before that evidence could be accepted, if it was to be accepted. None was apparent in the findings. In light of these matters, and of the evidence of the Taiwanese witnesses which unequivocally rejected the possibility of the appellant's involvement, it is my view that this conviction is unsafe and unsatisfactory and that this appeal should be allowed. The conviction is therefore quashed and the sentence is set aside.

(1) (1976) 1 ALL E.R. 549

(1) (1976) 1 All E.R. 549

(1) (1976) 1 All E.R. 549