THE QUEEN v. CHEUNG YIU HUNG

IN THE COURT OF APPEAL

1987 No. 126
(Criminal)

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JUDGMENT

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O'Connor, J.:

1. This is the judgment or the Court on an application by the applicant for leave to appeal against convictions for robbery and indecent assault. A young couple were walking in a country park about 1 p.m. when a man appeared, produced a knife, threatened them, robbed them ordered them to strip (which they did), ordered them to have intercourse with each other (which they refused to do) and ordered them in turn to perform oral sex on him. They refused. He compelled the female to do so with the knife held against her. He then made off.

2. The whole incident which lasted 40 minutes to an hour, took place in the open. Six months later the male victim picked the applicant out at an identification parade. The male victim said in evidence that he had observed him for about 25 minutes at the time of the incident and had a clear impression or him, and that it was from the impression formed at the time of the incident that he recognised him at the parade. The applicant gave evidence and called witnesses in support of an alibi. No complaint is made against the Judge's summing up to the jury. It was eminently fair and if anything overly favourable to the applicant on a number of matters.

3. Ground 1(a) of the appeal is that there is a lurking doubt as to the identification, because the evidence at the trial was that, months prior to the identification parade, and also prior to the applicant's arrest, the male victim had been shown photographs by the police. It appears probable that the applicant's photograph was not among those photographs. This matter came to light when that witness was under cross-examination and admitted that he had been shown some photographs, and the transcript shows that he said in evidence that one of them was a photograph of the applicant.

4. Cross-examining Counsel elicited this information with a 'fishing' question which was not based upon any information in his possession. Subsequent enquiries have revealed, and it is not disputed, that no statement had been taken from the witness after he had been shown the photographs. Prosecuting Counsel was unaware of any photographs having been shown to the witness. In the circumstances, the matter was not further raised on re-examination. Subsequent enquiries revealed that the witness had been shown one hundred photographs, in two albums, of Chinese males of similar height and build to the applicant. A photograph of the applicant was probably not among those photographs, but we cannot be sure.

5. In a subsequent statement, put before us by the applicant, the witness said that he did not recognise the robber in any of the photographs. He said that the faces in two of the photographs looked like the person who had committed the offences, but that it was only the faces that looked alike. He, also in the statement subsequent to the trial, said that in court he did not say that the police had shown him the photograph of the man involved, and that if the record shows that he did, the interpreter must have misheard his answer.

6. It is clear that the facts revealed since the trial in no way assist the applicant on this ground of appeal. If accepted they weaken this ground. Looking at this ground, at its strongest) in the absence of the facts later ascertained, it lacks substance.

7. As regards identification on photographs the law is clear, police and prosecuting authorities must behave fairly and not assist a witness to identify a particular person, nor must they hint which person of photograph should be identified. A prospective identifying witness should not be shown a photograph of a defendant after he has been arrested. There may be exceptions to that. I myself have conducted a trial where an exception arose. It was where the arrest was a number of years after the incident charged, and the defendant's appearance had changed in the meantime. I allowed the identifying witness to be shown a photograph of the defendant, together with photographs of other generally similar persons, that had been taken about the time of the incident charged.

8. If the police are seeking information about whom to look for or arrest, they may show a photograph of the suspected person to a proposed identifying witness, but should do so only together with photographs of other rather similar persons. There should, in effect, be an identification parade of photos. The Crown should not, as part of its case in chief, reveal to the jury circumstances that indicate possession of a photograph of a defendant, if that might lead the jury to conclude that he had been involved in or suspected of other criminal matters. If there is a possibility of such an inference being drawn, the Judge should consider giving an appropriate direction. It is advisable to consult Counsel as to whether he wishes, such a direction, or considers it may only draw attention to the matter. If a witness has seen a photograph of the defendant and later picks him out or makes a dock identification, the jury should be appropriately directed of the danger of that identification, not being from memory of the incident charged but from recollection of the, photo. In the instant cases, the jury were adequately warned in a manner most favourable to the defence of the possiblity of the identification at the parade being affected by, or prompted by having seen a photograph of the applicant.

9. Counsel in his address to us sought to bolster up this ground by the fact that the male victim’s statement to the police omitted to mention some facts which appeared in his evidence. That is not an unusual occurrence, and very often it is not significant. The witness proffered his explanations which the jury may or may not have accepted. In any event, the jury were fully directed on these matters. We find no substance in ground 1(a).

10. Ground 1(b) is that during the trial the police officer conducting the identification parade mentioned that a witness to a robbery and indecent assault, not the subject matter of charges, had been called to the parade. It was submitted that, despite the Judge's direction to the jury to ignore that piece of evidence, the jury could not have ignored it.

11. The police officer was stopped by prosecuting counsel, before he mentioned whether or not that identifying witness had made an identification. No application was made to discharge the jury, and, indeed, if such an application had been made it is difficult to believe it would have been accepted. The situation, in effect, did not even contain as viable a seed of prejudice, as might exist when a person is charged with a number of counts of similar offences, and the jury is directed to consider each one separately, and without regard to the evidence on the other counts. We find nothing in this ground.

12. The further ground is that there was a material irregularity in the trial. The jury went out to consider their verdict at 11:05 in the morning. Before lunch time, the clerk to the judge came into the judge’s chambers, where both counsel were chatting with the judge, and in the presence of both counsel the judge was informed that the jury requested that they be allowed to see the initial statement to the police, of the witness whom I have referred to in respect of the other grounds of appear.

13. The judge had a short discussion in chambers with both counsel and it was agreed that the statement could not be seen by the jury, as 1t had not been produced as an exhibit. Some parts of it had been referred to in cross-examination of the witness, being put to him with the object of demonstrating that two matters which he had mentioned in his evidence, had not been mentioned in his statement. The witness, on cross-examination, had proffered explanations for this.

14. As I say; there was some discussion between the judge and counsel in chamber and it was agreed that the statement could not be seen by the jury, but that the jury could have read to them the parts that had been put to the witness in cross-examination.

15. The judge informed his clerk that it was not possible for the jury to have the statement, but that the jury should be brought back to the court for further directions, so that the judge could enquire whether the jury wished certain parts read to them. It should be noted that, the judge did not tell the clerk to tell the jury, that it was impossible for them to be given the statement. The message that was directed to be sent to the jury was that they should be brought back for further directions.

16. Statements have been taken from the clerk and from the usher, and it appears that the clerk received the message accurately from the judge but that he passing it on to the usher, did not perhaps make it clear to the usher, that the remarks of the judge that they could not have the statement, were not part of the message to be given to the jury. The usher in fact told the jury that they could not see the statement, and having told that to the jury, he apparently did not tell them that they could be informed of the contents of parts of it. He told them that if they had any questions about it, they should come back to court for further directions. The jury told the usher that they no longer wished to see the statement.

17. Apparently at some time, a message came back to the judge that the jury did not wish to see the statement. Counsel was not made aware of that message from the jury to the judge.

18. At 2:38, the jury returned their verdicts of guilty. The point which is taken on appeal on this ground is that there was an irregularity in that the communications passing between the judge and the jury were not revealed, in open court, or in part to counsel, and that the message which the judge had sent to the jury had become garbled in being relayed. We accept that, and we accept that was an irregularity. We have considered the effect of this irregularity. It is submitted to us. that the jury may have, wrongly, assumed that they could not even be told about the parts of the statement that had been referred to in evidence, and that if they had been told that they could, they may have wished to be reminded of those parts, and if they had been reminded their verdicts might have been different. We do not accept that, because the statement had only been referred to in order to illustrate that a couple of matters mentioned in evidence by the witness, were not in his statement. It was a question at most of discrepancies arising due to omissions, not of express contradictions. These matters had been brought out very clearly in the course of this very short trial, and had been referred to by the judge in his summing up, in a manner favourable to the applicant in that he did not refer to the explanation proffered by the witness. The gaps and their significance, if any, must have been in the jurors' minds. When the usher spoke to the jury, they indicated that they did not wish to pursue the matter of the statement any further. In these circumstances, we are satisfied that their verdict would have been same, whether the judge had called them back and told them of the gaps in the statements or not. We apply the proviso to this ground and dismiss the application.