THE QUEEN v. TSE YUEN MING

IN THE COURT OF APPEAL

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J U D G M E N T

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Hunter, J.A. :

1. On 23rd March 1988 the applicant Tse Yuen Ming, was convicted by H.H. Judge Evans on two charges. Both charges relate to the events of the night of 23rd October 1987. The first charge was one of burglary in that he entered as a trespasser part of a building known as Flat 39, 2nd Floor, Block C, Government Quarters, No 1, Broadcast Drive. The second charge which arose out of events which occurred very shortly afterwards, was one of assaulting a police officer in the due execution of his duty. The case as presented by the prosecution in the court below went like this.

2. At about 3 am that morning the occupant of Flat 39, who was a senior police superintendent, was disturbed by noise coming from his living room. He investigated and found the door from the living room to the balcony ajar and that there was a figure standing on the balcony. He shouted to him in Chinese "Police, stop!". But the figure jumped over the balcony rail and proceeded to climb down to the ground, the flat in question being situate on the second floor.

3. On those facts the judge had no difficulty in concluding, that the intruder was a burglar. The whole issue in the case was whether that burglar was this applicant.

4. The evidence of identification came first from PW1, the police officer, who was in occupation of the flat. He told the judge that he saw this man climbing down to the ground and in the words of the judge's findings

"Although PW1 had that face under observation for 'at most' two seconds, he (PWl) says he is sure that it was the accused that 'I felt I could see him without difficulty'".

So that one starts from something which either was, in the view of the judge "a fleeting glance" identification or something very close to it, but one made by a police officer, a trained observer, of a person who was not in a position to move very fast, and whose face was not very, far away from him and immediately below him. That evidence about identification on the scene tnas supported by the same witness saying that he identified the applicant again in the public gallery at a Magistrate's Court. That was because the applicant refused to go on an identification parade Identification parades are designed to protect the suspect so that a witness can see the alleged person in circumstances where he is as inconspicuous as possible with persons of the same size and build as himself. Very much in the applicant's interest and favour the trial judge seems to have been particularly critical of the value of this later identification. It seems to us that in those circumstances he was going further than necessary in favour of this applicant, because most certainly a person who declines to go on an identification parade can hardly be too critical of the identification then made, to fill the gap which he has created. The effect of that evidence in the judge's view was that this was identification evidence which he regarded as somewhat marginal, although he had no hesitation in accepting the first witness, PWl as a witness of truth.

5. That evidence was in the view of the trial, judge decisively supported by the evidence of the third prosecution witness, PW3, who was the police officer named in the 2nd charge. Immediately after the intrusion, Pwl telephoned the police and two things happened. A van arrived at the front entrance to this compound at 3.23.am, and in the view of the judge, then sealed off the front. A minute later at 3.24 am, PW3 rode his motor cycle up the back lane. He said he then saw a man climbing over the wire fence, a high meshed wire fence topped with 5 strands of barbed wire, from inside the Broadcast Drive premises and then jump down to the path. He tried to stop the man, and a struggle ensued. The man broke away and ran off, dropping in the process a pair of light coloured shoes and an extra pair of socks. In relation to that witness, the judge's finding is this.

"I am nonetheless sure that PW3, who I found to be honest, fair and reliable, has told the truth and that the circumstances were as he described and that more particularly the accused was discovered by him in the act of furtively leaving the compound area of the Broadcast Drive flats to this dark pedestrian path at a time quite soon after the burglar had fled by which time the front entrance was covered by police".

He found that that evidence, the act of flight by this applicant, gave direct support to the identification of him by PW1.

6. In arriving at that very careful conclusion, the learned judge also seems to us to have erred somewhat in the applicant's favour, by in effect treating what the applicant had said in his cautioned statement to the police as evidence which he had to consider by which to test the accuracy of the police officer's evidence. With respect that cannot be right; but it is not a matter of which this applicant can complain.

7. We have listened very carefully to everything that Mr. Laskey had said on his behalf. But it seems to us quite impossible, as he seeks to persuade us to do, to suggest that in any way the evidence of PW3 can be said to be unreliable. It equally follows that the evidence of PW3 was corroborative of that of PW1. I should add for completeness that this applicant gave no evidence at all, and that is a relevant factor.

8. In those circumstances we see no substance in this application which is dismissed.