THE QUEEN v. KWONG YIU HUNG

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JUDGMENT

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Penlington, J.A.:

1. This is judgment of the Court.

2. On the 30th January 1989 four persons were present in premises in Shatin known as the Rich Style Industrial Co. This was in fact a company which dealt in snake skins. These four persons were YEUNG Nam Chee, the proprietor of the business, his wife YEUNG Sai Kiu, his son YEUNG Hui Lap and an employee, a Miss WONG Ching Yau. At about 10:30 a.m. there was a ring at the door which was answered by YEUNG Hui Lap and three men entered. Very shortly after doing so they produced a revolver and knives and the occupants were then robbed of various items of property. They were also tied up. Access was then obtained to the storeroom of the premises and a very valuable bale of snake skins was taken. It would seem that the robbers were in the premises for some considerable time - about an hour - and the three Yeungs all had a reasonably good view of them at close range and in ideal lighting conditions.

3. Eventually, after the robbers had left, the occupants managed to free themselves and a report was made to the police. Descriptions were given of the robbers by each of the Yeungs but hot by Miss Wong who apparently was not able to give any description. The premises were tested for fingerprints and one recognizable print was found on a pink envelope. This envelope had contained a finger-ring which had been purchased by Mr. and Mrs. Yeung a short time before at the Tung Shing Goldsmith Shop in Shatin.

4. The police endeavoured to locate the Appellant but it seemed that he had left Hong Kong and went to China. As the efforts to locate him proved abortive a photograph of him was published on the 31st March 1988. This was done in a well known Chinese newspaper and accompanying the photograph was a description which read as follows:

"Thief robbed snake skin company

Goods exceeding $860,000 were lost in robbery of snake skin company

Police are looking for KWONG Yiu Hung to assist in investigation."

There then followed a synopsis of the events which had taken place and the words:

"Anyone who knows the whereabouts of KWONG Yiu Hung (his photo attached) is urged to contact the police at the Hotline 5-277177."

The Appellant was in fact arrested on his return from China on the 21st April 1988 and on the 27th of that month arrangements were made for an identification parade to be held at which Mr. and Mrs. Yeung, but not YEUNG Hui Lap, would be asked if they could identify the Appellant. At this parade, however, the Inspector in charge decided that because the Appellant's features were so unusual the other actors on the parade could not be said to be of "similar build and appearance". Very fairly and properly he decided that he would not hold the parade under those circumstances. This resulted in a direct confrontation by Mr. and Mrs. Yeung with the Appellant on the 6th May. Both identified, him.

5. The Appellant was accordingly duly tried in October 1988 and both the Yeungs gave evidence. However as a result of an application made to him the trial judge, Bewley J., did not allow either of them to give identification evidence. This was first of all due to the fact that there had been a confrontation and not an identification parade but also to the fact that both Mr. and Mrs. Yeung said that they had seen the newspaper article and in fact had kept a copy of it in their premises. They said that they had looked at this article and the Appellant's photograph shortly before the trial. There was, therefore, no identification evidence at this trial and the Crown relied entirely on the fingerprint evidence. The jury could not agree on a verdict and accordingly a re-trial was ordered.

6. Before the second trial Mr. YEUNG Hui Lap, who had been away, returned to Hong Kong and an identification parade was held on the 17th December 1988. Mr. Yeung identified the Appellant at that parade.

7. At the trial before Barnett J. objection was taken to all the identification evidence. As far as that to be given by Mr. and Mrs. Yeung senior this was on the same basis as had been put before Bewley J. at the earlier trial. Barnett J. ruled that there was no reason to differ from the previous decision and he refused to allow the evidence of identification to be given by Mr. and Mrs. Yeung senior. So far as the evidence by Mr. Yeung Hui Lap was concerned he said:

8. However although Barnett J. allowed the evidence of identification given by Mr. Yeung Hui Lap he clearly himself was most unimpressed with it. It was Mr. Yeung's evidence that he had only seen the photograph in the newspaper once - at the time of its publication whereas his mother said all the Yeungs had seen it togther on a much later occasion. In his summing up Barnett J. made several references to this evidence the most of important of which are as follows.

9. Firstly, having referred to Mr. Yeung, he said,

"I shall say a little more about him in a moment. But it might well be a case of saying,  'Well, we think Mr. Yeung is generally honest and truthful, but as far as the question of identification is concerned, we think he is mistaken and we reject his evidence about the identification.'"

He went on a little later to say:

"First, the evidence of the son, Mr. Yeung, who purported to identify the accused as one of the robbers. Upon a careful consideration of that you may say to yourselves, 'We think he is mistaken.', to put it at its kindest, so you would reject the evidence of the identification."

He again later said:

"Mr. Yeung, the son, was, I think to say the least, not a wholly satisfactory witness. You may well be minded summarily to reject his purported identification of the accused."

He then went on to give an impeccable direction on the dangers of relying on identification evidence. He said:

"Very regrettably the law is littered with cases of mistaken identity where injustice has been done. So a special care is needed when identification is in issue."

Finally in relation to the son's evidence:

"Whatever the son may or may not have said in his evidence was by no means clear about whether or not his memory has faded. It is common sense I think, members of the jury, and it is certainly accepted in these courts, that memory does fade with time. So you will bear that at mind."

10. It also was clear from the son's evidence that there was a blanket placed over his head for most of the time. He was cross-examined about this in relation to his evidence of identification and clearly his evidence again was far from satisfactory to the extent of refusing to answer questions put to him. About this point the judge said:

"Counsel felt - and you may well agree with him - that his points have been sufficiently made and you can attach little or no weight to the purported identification."

It is therefore clear that the trial judge gave as strong a direction as he possibly could to the jury that they should place very little weight if any on the identification evidence short of specifically directing them that they must totally ignore it.

11. Mr. M.K. WONG, who has argued this matter succinctly and well has, we think quite properly, confined his attack on the conviction to the question of the admission of the identification evidence. The other evidence upon which the Crown primarily relied that of the fingerprint was challenged by the Appellant in his own grounds of appeal on the basis that the jury have not accepted his own evidence that he himself purchased a ring from the same jeweller's shop, was given a pink envelope containing the ring but returned the pink envelope to the salesman as he chose to put the ring on his finger immediately. That evidence was very fairly put before the jury by the trial judge in his summing up and we are quite satisfied there could be no challenge to the manner in which that was done. The question is then purely whether the judge was right in not ruling that the identification evidence was so bad that its prejudicial effect outweighed its probative value.

12. There can be little doubt since the decision of the House of Lords in R. v. Sang [1980] A.C. 402 that a court has a discretion to exclude admissible evidence if, in the opinion of the trial judge, its prejudicial effect outweighed its probative value or it was unfair to admit it. Such a discretion is more commonly exercised in cases of evidence such as that of similar facts or where evidence may tend to show that an accused person has previous convictions. This clearly was not the type of case contemplated in R. v. Turnbull and others (1976) 36 Crim. App. Reports 132, where it was held that in a "fleeting glance" situation or where the general quality of the identification in itself was poor and there was no other evidence to support a conviction the trial judge should direct an acquittal. Here clearly Mr. Yeung Hui Lap had considerably more than a fleeting glimpse of the robbers and his view of them was at close range and under excellent lighting conditions. The grounds upon which his identification is challenged is that firstly it was made in a very considerable time after the events; and secondly he had seen a photograph of the Appellant linking him with the robbery which he had looked at at least on the occasion when it was published in the newspaper which was some five months after the robbery. There was some evidence that he had also looked at it again shortly before the identification parade. Mr. Wong points out that in his ruling on the preliminary issue of whether this evidence should be excluded the judge had said that the photograph had not been seen by Mr. Yeung after its first publication. This was no doubt in accordance with the deposition statement. At the trial there was evidence from Mr. Yeung's mother that all three of them had looked at the photograph together on a later date.

13. The Crown relied at the trial, as it does here, on Alexander v. The Queen (1981) 145 C.L.R. 395. This is a decision of the High Court of Australia. There identification was very much in issue and several witnesses had first identified the accused from photographs provided by the police. One witness made the identification before arrest and the others after arrest. The facts were not the same as here, where only one photograph was seen by the witness, but at 400 Gibbs C.J. said:

"For example, it would be unfair and improper to show to a witness before the identification parade was held a single photograph of a person who was said to be the suspect and it would be unsafe to act on evidence of identification given in those circumstances."

He cited the New Zealand case R. v. Russell [1977] 2 N.Z.L.R. 20. He goes on:

"Indeed, where a suspect had been arrested and it was intended to ask a witness to attempt to identify him at an identification parade, it would be unfair to show the witness before the parade a number of photographs including that suspect. On the other hand it may be necessary for a police officer to show a number of photographs to a witness in an attempt to obtain information as to the identity of the offender. If such witness did identify the offender from a photograph it would not necessarily be unfair for that witness later to be asked to select the offender from a group at an identification parade but the fact that the witness had seen the photograph might affect the value of the later identification parade. See R. v. Dwyer and Ferguson [1925] 2 K.B. 799."

Gibbs C.J. goes on to refer also to the Canadian case R. v. Bagley [1926] 3 D.L.R. 717. There, after the arrest of the accused, witnesses were shown a bundle of photographs and later identified the  accused at an identification parade. The conviction was affirmed. MacDonald C.J.A. in a dissenting judgment said that he did not regard the question as one of admissibility of evidence but rather of weight and he would have sustained the verdict had the charge of the jury been sufficient.

14. Here the position was somewhat different from any of the authorities cited. It is clear that at the time police investigations were proceeding, because of the fingerprint which had been found, they had reason to suspect the Appellant of being involved but he had left Hong Kong. It was certainly by no means improper for a description of the Appellant and his photograph to be circulated as being a person who the police wished to interview. As Barnett J. said in his ruling on admissibility of the identification evidence it would have been certainly preferable for any potential witness to be shown a number of photographs including that of the Appellant to see if he could identify any of them before publication in the newspaper, together with the accompanying written material clearly linking the Appellant with the crime.

15. In R. v. Russell Richmond P said:

"In the first place we respectfully agree with what was said in R. v. Doyle [1967] V.R. 698 that evidence of identification by photograph is legally admissible and relevant. The real question in all cases is whether or not the trial judge ought to have exercised in favour of the accused his discretion to exclude admissible and relevant evidence on the ground that its prejudicial effect is out of proportion to its true evidential value or on general grounds of "unfairness". All the decided cases are, we think, no more than illustrations of this principle."

We consider that that is a correct statement of law and that each case must be considered on its own particular facts. Here the question of whether or not to admit the identification evidence was clearly a matter for the trial judge's discretion which he exercised before the trial commenced on the basis of the depositions then before him. In the course of giving his evidence in the trial Yeung Hui Lap clearly was a very unsatisfactory witness. At one stage indeed he simply refused to answer a relevant question put to him by defence counsel. It was however still a matter essentially for the trial judge's discretion as to what direction he gave to the jury concerning Mr. Yeung's evidence.  Short of directing the jury as a matter of law that they should totally disregard that evidence he went as far as he possibly could to indicate to them that they should place very little reliance on it at all. We are satisfied that we should only interfere with the exercise of that discretion if it was based on incorrect principles or was clearly wrong. We do not consider that either of those reasons was present here. The jury were given very adequate warning of the danger of placing any reliance on Mr. Yeung's evidence as to identification but there was ample other evidence upon which the jury could have reached their decision. On consideration of all that evidence we did not consider that this verdict was in any way unsafe or unsatisfactory and the application for leave to appeal against conviction was refused.