THE QUEEN v. NG WING HO

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JUDGMENT

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Liu JA:

1. The applicant was charged in High Court before Burrell, J and a jury with one count of robbery. The prosecution case against him was that on 5 November 1994, in a 3rd floor flat at No. 401, Castle Peak Road, Shamshuipo, together with two men, Law and Tam, he robbed a young woman and her boy-friend of a credit card, cash, valuables and other property.

2. On the charge date, at about 3.45 a.m. when the victim, Miss Lam returned home from work, she was set upon at the entrance by three men. Her mouth was covered and a knife was put to her neck. One of the three robbers wore a mask; one of the other two carried a knife. The lights left on the corridor were switched off by the robbers within minutes. She was pushed inside by the robber carrying a knife onto a living-room sofa-bed where she was tied up, right wrist to right ankle. Up to that moment, her head had been pushed down and she was not able to see the faces of the other two unmasked robbers. The robbers demanded money, snatched her handbag from her and searched it. Her flat was on the 3rd floor and there was yellow street light coming into the living-room through small upper windows which were uncovered. The robbers took $400 from her handbag and Miss Lam offered another $1,000 from a garment inside her wardrobe. After that, she was carried by the masked robber and one other into her bed-room and placed on her bed. There was no light in the bed-room but its door was left ajar. There were two internal windows in the bed-room, one of which was covered and faint street light came through the other uncovered internal window. A credit card was taken from her handbag which, as she told the robber, could not obtain cash. Two more credit cards were found but similarly she told the robbers that they also could not obtain cash. The robber who carried a knife then punched her forehead. She described this robber to the jury as a man "having a thin face with prominent cheeks, aged 22 - 25, the hair a bit curly and of medium height", but she did not provide the police with such a description after the robbery. However in court not only did Miss Lam describe the robber who held a knife and punched her forehead, she also claimed that she could remember his face and was able to recognise him again. Under cross-examination, Miss Lam admitted that she did not tell the police in her earlier statement that she would be able to recognise the applicant again. She explained that she did not tell the police "because (she) was thinking that (she) would not be able to recognise him .... and because of the fleeting glance (she) had of all three of (the robbers) at different times of the night".

3. She was surprised and shocked. It was a painful blow. She told the jury that she could recognise only the face of this robber because of poor lighting. His face was about two feet from hers and she observed him for only about 10 seconds. Miss Lam gave her condition in the police witness statement as feeling dizzy but in court she claimed that that was incorrect.

4. At about 4.30 a.m., Miss Lam's boy-friend, Mr Fung who shared her flat came home. The three robbers hid themselves in the bed-room. Mr Fung came in and switched on the light over the television in the living room and the kitchen lights. Even at that stage, Miss Lam did not look at the robbers, but she saw them overpower her boy-friend. During the struggle, she saw the face of the man who punched her forehead. The masked man took her out to the living room after her boy-friend had been tied up. A little later, she was returned to her bed-room, and this time she was tied right hand to her right leg and left hand to her left leg.

5. One of the robbers left at daybreak. She was tied up even more securely by the two remaining in the flat. An unmasked robber came into the room and jabbed her with a pole but she was not sure which of the two unmasked men he was. Later, the masked man came into the bed-room and raped Miss Lam. As he was leaving, Miss Lam attacked him with the pole, striking off his mask. Thereupon she recognised him to be the husband of a friend, whom she had met and dined with a few times. The masked man was Tam who pleaded guilty to robbery and the rape count.

6. As for the boy-friend, Mr Fung, he was rushed at shortly after he entered. To him, it was a shock upon seeing the strangers rushing at him. The one, with a knife, was in front and he saw him for about 5 seconds. The struggle took another 30 seconds before he was subdued and tied up. He was pushed onto a black cushion and then the lights were switched off when the robbers continued to ransack the flat. According to his estimate, the lights had been left on for about 3 minutes. The robbers put a white cloth over his face, but he said that he could still see the robber with the knife and was able to recognise him if he should see him again. At about 6 a.m., he heard the shutting of the front door and he was under the impression that the robbers had all left. He managed to shake off the cloth partially so as to enable him to see the left side of a man who remained in the flat. According to Mr Fung, he was the same man who led the attack on him earlier, holding a knife. He saw that man for about 3 seconds, sitting on a cushion watching television. Later he heard his girl friend scream. Eventually all the robbers left.

7. That is in toto the evidence of identification by Miss Lam and Mr Fung at the scene. Clearly, the experience was traumatic and both of them were in a state of shock after they had been surprised by the robbers. In addition, Miss Lam was subjected to horrifying torment. She must have been even more disturbed upon discovering the true identity of Tam. Each of them could only manage fleeting glances at one or the other of the robbers. The lighting was poor. The bed-room was dark. There was commotion after commotion, ending in the rape. After the incident had been reported to the police, in her statement Miss Lam said that she was able to see only the backs of the robbers. The quality of Miss Lam's identification evidence is poor. An identification parade was held some 23 days after the robbery. As for her boy-friend, Mr Fung, whatever he claimed to have observed, his vision was obstructed by the cloth over his face. His identification evidence during the struggle is understandably vague. After he managed to shake off the cloth, he could only see for only 3 seconds the left side of the man who had been holding the knife.

8. On 28 November 1995, 23 days after the robbery, Miss Lam and Mr Fung each attended an identification parade held at different times at the police station. She picked out the applicant as the man who held a knife and punched her forehead but she wrongly identified an actor as the robber who jabbed her with a pole. A suspect of the police, the co-accused Law who was in the parade, was not identified. Mr Fung identified Law at position 5 and the applicant at position 11. Later the same day when he was asked to make a witness statement of identification, he said the man he identified at position 5, not at position 11, was the robber holding a knife. What is more significant is that in the following enquiry by the police who informed him that in fact it was the other suspect Law who stood at position 5, Mr Fung gave a firm reply: "No way". The identification made of the applicant at the identification parade by Miss Lam is clearly suspect. She made an error on the same occasion and she had told the police in her earlier statement that she could only see the backs of the robbers. In a statement made to the police after identification, Miss Lam claimed that she saw the front of the applicant's face. In her court evidence, she told the jury that she then saw the side of the applicant's face.

9. Mr Fung's evidence is equally unreliable. The only evidence against the Co Defendant Law was Mr Fung's identification evidence. The judge declined to put that to the jury and ruled Law to have no case to answer. Law was acquitted. Mr Fung's identification evidence of Law was withheld from the jury by the judge, despite the fact that both Law and the applicant were identified by Mr Fung in court. Evidently, the judge also declined to leave his court identification of Law with the jury. Mr Fung had offered no explanation as to why he was able to so readily identify the applicant and the then Co Defendant Law in Court. In all the circumstances it would be unsafe to rely on Miss Lam's court identification of the applicant.

10. In the difficult conditions at the scene, it was only to be expected that the quality of the identification evidence would be problematic. Moreover, both witnesses making identifications had demonstrably proved themselves to be unreliable when they were put to test at the identification parades. The poor quality of the identification evidence of Miss Lam and Mr Fung whose identification evidence as regards the other Co Defendant Law had earlier been ruled deficient by the judge, has caused us much concern.

11. We would repeat a oft-quoted passage in R v. Turbull [1977]1 QB 224 at pp. 229 H-230A, per Lord Widgery, CJ:

"When, in the judgment of the trial judge, the quality of the identification evidence is poor, as for example, when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification."

12. In our view, even taking into account also Mr Fung's identification evidence, the poor quality of identification evidence at the trial was such that the judge ought to have withdrawn the case against the applicant from the jury.

13. Having acquitted the Co Defendant Law despite the identification evidence of Mr Fung, when the judge came to deal with the applicant, he invited the jury to consider the possibility of mutual support in the evidence of Miss Lam and Mr Fung on identification. This is what the judge said in his summing up:

"Members of the jury, the prosecution invite you to conclude that the explanation for this part of the evidence (of Mr Fung) is when he saw (the applicant) on the parade who was, in fact, standing at No. 11, he was sure that he was the man with the knife, and when he came to make his witness statement later, he simply got the numbers mixed up......... If you are sure that both witnesses (Miss Lam and Mr Fung) at the identification parades picked out (the applicant) not only as being one of the robbers, but most specifically as the robber with the knife who punched Miss Lam and led the rush at Mr Fung when he came home later, then it is fair to say that an identification by one witness can provide support for the correctness of the identification by the other."

14. Having apparently rejected Mr Fung's identification evidence as regards the Co Defendant Law, it must be unsafe and unsatisfactory to invite the jury to consider the prosecution's speculative submission as to mistaken positions and the possibility of support to be derived from Mr Fung's identification evidence in the case against the applicant. In any event, the identification evidence of both Miss Lam and Mr Fung was of such a poor quality that neither could go to support the correctness of the identification made by the other of them.

15. Having reached the conclusion that on the identification evidence the case ought to have been with drawn from the jury, it would be unnecessary for this court to proceed further to deal with the rest of the arguments advanced on behalf of the applicant.

16. For the reasons we have given, we allow the application and treating the application as the appeal itself, allow the appeal, quash the applicant's conviction and set aside his sentence.