THE QUEEN v. LEE MAN-WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 896 OF 1988

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J U D G M E N T

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1. On the 17th August this year the appellant was convicted of a single charge of burglary in the Magistrate's Court at Fanling.

2. The crucial evidence in the case was given by Mr. LEE Kai-kin (PW1) who testified that at 3_.10 p.m. on the 5th July 1988, he and Mr HUNG Wing arrived at the Wing Kee Hardware in Yuen Long. They went there to transfer goods from one vehicle to another vehicle. He described the premises as being "warehouses a little over 3,000 sq. ft. structure wall of wooden planks. Roofing made of petal sleets. Two doors. A main door and a rear door. Usually locked." He produced three photographs of the premises.

He testified .-

"Whist we were transferring the goods from one vehicle to another, we some persons we y removing goods at the rear doorway. The rear door was locked. I mean some goods were being thrown out over the top of the rear door it was day light. At the time I was standing at the front doorway. On the back of the lorry. I could see into the warehouse, The sides were not fully covered. It is shown in photos. MF1 Pl, P2 and P3.

I saw 2 persons inside the warehouse. One man was very tall I could see his back. The other man was short and thin. Never seen him before. I can recognize him. He is here in Court, (D2 identified). I shouted to them and asked them what they were doing there. I told them not to run away. I gave chase, I had shouted out that there were thicves. My employer/proprietor went along with me."

3. It was the identification of the appellant by PW1 which was crucial to the conviction of the appellant in this case.

4. In his Statement of Findings the learned Magistrate stated that en the same day as the offence (i,e. The 5th July 1988) the witness PW1 positively identified the 2nd defendant (the appellant) as being one of the two persons inside the warehouse and whom he chased when the 2nd defendant escaped

5. This finding provides the basis for the first two grounds. of appeal which can be considered together.

"(i) The learned Magistrate failed to consider adequately or at all that PW1 had, failed to identify the appellant when the appellant.When the appellant returned to the scene immediately after the incident.

(ii) The learned Magistrate erred in Finding that PW1's identification of the appellant was on the same day go the incident in view of the evidence that such identification did not occur until the 24th July 1988."

6. In fact an examination of the record indicates that while PW1 did testify that the appellant walked back, to the warehouse after PW1 chased him down the pathway in the bushes, it does not indicate that he ever testified that he identified the appellant on that day as one of the two men he had seen in the warehouse throwing out bags containing scrap copper. Indeed, if he had identified him on that day, there would have been no need for an identification parade either on that day or on any later day.

7. The evidence seems to be equivocal as to when the identification took place. Nobody says that there was an identification before the identification parade. PW1 says he attended an indertification parade on the 22nd of July, but he subsenquently said that he was not sure of the date, The Chief Inspector who conducted the parade said that he did hold an identification parade on the 24th July 1988 in connection with this case. However, he is recorded as saying that at 12:50 on the 5th July 1988, the appellant was brought in. It seems highly probable that there must be a mistake by the witness, the intrepreter or the magistrate, which led to the recording that this was on the 5th July 1988. The offence was only discovered at 3:10p.m. on the 5th July, according to PW1. Furthermore, if there really was an identification parade on the 5th July 1988, which seems highly improbable, there would have been no need for another on the 24th July, or for PW1 to attend on, the 22nd July.

8. Whilst, therefore, there was no evidence that there was no identifidatior, parade on the 5th November, the only clear evidence was that an identification occurred a an identification parade later oh and if that was so, it is unlikely that PW1 could have identified the appellant on the 5th July 1988.

9. It appears that the Magistrate was led into error by his finding that PWl positively indentified the appellant as being one of the two persons in the warehouse and that that was the main reason for his distinguishing between the cases of the appellant and the 1st defendant, whom he acquitted.

10. At page 37 of the appeal record the Magistrate says:-

'The court rejected the second defendant s reason for running away and accepted that only PW1 did the chasing and did so without carrying a hook in his hand and also rejected the second defendant's reason for returning to the scene. Whatever the second defendant's motives were for returning to her the scene, the Court was satisfied that the second defendant was one of the two men seen throwing out PW3's property as stated by PW1.

11. He did not specifically state how he reached those conclusions but it would appear he concluded the 2nd defendant was lying in his evidence about the circumstances of his running away and returning to the scene, and that there was postive evidence of identification by PW1.

12. He does not appear to have directed himself as to the effect of a conclusion chat the appellant had lied or that lies may be told out of panic cr to bolster up what the defendant thought was a weak but honest defence.

13. The absence of such a direction to himself would not be fatal but it does appear that the evidence of identification was crucial to his decision because he reached the conclusion also that the 1st defendant had lied, but acquitted him. Lying and running away are both indications of a possible consciousness of guilt, but both might be explained in much_. the same sort of way.

14. An examination of the record reveals that there were only two identifications in respect of this case, the first occurred at an early stage of the hearing of the case when the witness PW1 indentified the appellent in the dock. So the first identification which came out in the evidence was a dock. identification which was on 16th August 1988 just over a month after the incident. The second identification which was referred to in the evidence is the identification at the identification parade. That identification is a subject of the third to fifth grounds of appeal which I will now set out:-

    "3. The learned Magistrate failed to consider adequately or at all that:-

(a) PWl had never seen the Appellant prior to the incident;

(b)PW1 s boservation of the Appellantin the warehouse was from a distance of 40 feet and through a gap between the walls and the roof of the warehouse,

(c)there had been a lapse of some time between the date on which the incident occurred, namely 5th July, 1988; and PW1's subsequent identification of the Appellant on 24th July 1988,

4.     The Learned Magistrate erred in his finding that PW1 had ample opportunity to see and observe the appellant is all the circumstances of the case

5.     The learned Magistrate failed to warn hinself adacuately or at all of the special need for caution before convicting in reliance on the correctness of identification and of the matters set out in R. v. Turnbull (1977) Q.B.224 in assessing the evidence of identification of the Appellant by PW1."

15. The Magistrate said at page 37 of the appeal record under the heading "Conclusions" the following:-

"The Court was satisfied beyond "reasonable doubt that the second defendant was indeed one of  the two men seen by PW1 to be removing the property of PW3 as stated by PW1 and the Court was further satisfied that PW1 had ample opportunity to see and observe the second defendant in the warehouse in daylight and chased the second defendant when the latter ran away from the warehouse. The Court was satisfied that the truth of the natter lay in the testimony of PWl and accepted his evidence of identity so far as the second defendant was concerned."

16. However at page 30 of the appeal record the only evidence as to the opportunity he had to see and observe the appellant was that the time was 3.10 p.m it was daylight, PW1 was standing on the back of the lorry and could see into the warehouse.The sides were not fully covered. He saw two persons inside the warehouse. One was very tall. He could see his back. The other man was short and thin. He had never seen him before.

"I shouted to them and asked them what they were doing there. I told them not to run away. I gave chase. I had shouted out that there were thieves. My employer/proprietor went along with me.

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When I shouted out to the two person they started to run. They climbed over the wooden will of the warehouse. I gave chase after D2 and the other tall man. I ran around the warehouse. on the drive way to give chase. I went to the rear part. My employer came with me. Apart from D2 and the tall man I did not see anyone else. They ran passed a heap of plastic and down a small path. They ran into the bushes and I lost sight of them. At the rear part of teh warehouse I found the six bags on teh ground.  When I came back from the chase, I saw that lay boss had caught a man, I can recognise him. He is here (1st Defendant indentified).

When I returned it was the first time I saw D1 and that is then may boss caught him. "

17. Later he testified that on the 22nd July he attended the identification parade at Yuen Long Police Station but he was not too sure of the date. It was in connection with this case. The purpose and procedure of the parade were explained to him by a police officer and he identified the person there. He was the 2nd defendant (appellant), He was one of the persons throwing (Exh. 4) bags out of the warehouse.

18. In cross-examination he denied that he first saw the 2nd defendant (appellant) when he went out to chase the other two men. He denied that the 2nd defendant appellant) was merely sanding there when he ran out. He did not see him. He ad itted in cross-examination by the appellant that it would take a short moment for one man to throw one bag out of the warehouse. He was at a distance of about the length of the court room from the appellant (a note appears on the record that this is about 40 ft,) He agreed the appellant walked back to the warehouse after he, chased the appellant down a pathway in the bushes. In re-examination he said that the appellant returned to the waehouse whilst he and his boss were reporting the matter to the police about half an hour later.

19. PW3 (whom PW1 described as his boss) testified that he had seen the appellant before. It was after he caught the 1st defendant sornetime after that the appellant arrived. He did not now why the appellant was at the warehouse. The appellant was there when the police arrived.

20. PW6. PC22261, WONG Kwok-ying testified that at 4:10 p.m. on the 5th July 1988 near Tin Hau Temple Road, Yuen Long, he saw a Chinese man on the pavement. He fitted the description of a burglary suspect.

21. Pausing here for a moment, neither PW1 nor PW3 gave evidence that any description had been given to the. police and the Court was not therefore aware of the details of the description.

22. The police officer went on to testify that the man he arrested was the appellant and that on being told the reason for his arrest, the appellant said that the case had nothing to do with him. The appellant. continued to deny his involvement back at the police station.

23. Both the 1st defendant and the appellant gave evidence along similar lines and supported one another substantially in their evidence and claimed to be together at the relevant time, There was no evidence to the effect that PWl had had the thin man, who had been in the warehouse, in his sight at all times from the he spotted him till the time he chased him down the pathway. Indeed the evidence suggests that he must have lost sight of the man when the man climbed over the wooden wall of the warehouse and PW1 ran round the warehouse and went to the rear. There was no evidence from PW1 that he gave a description to the police.

24. It appear tome that apart from the evidence of identification there was little to choose between the cases of both the 1st defendant and the appellant and that it was primarily the evidences of the identification which led the Magistrate to convict the appellant.

25. In view of the fact that it was common ground at the hearing that the appellant was present at she scene after the incident and when the police were at the scene, I cannot see that the identification parade could really serve any useful purpose. If the appellant could clearly be identified as being one of the man in the warehouse at that time he should have been identified straight away.

26. The Magistrate did not specifically.refer to R. v, Turnbull and Others [1977] 1 Q.B 224 when dealing with the matter of identification, but under the heading "Conclusions", he appears to support his coulcusion with the comment that the Court was further satisified that PW1 had ample opportunity to see and observe the appellant in the warehouse in daylight and chased him when he ran away from the warehouse.

27. With rospoct to the Magistrate, the evidence was that PW1 had never seen the appellant before the 5th of July, but at no time did he testify as to whether he saw the appellant's face in the warehouse, how long the appellant was in his view before he climbed over the wooden wall of the warehouse, how good was his eyesight, neither did he warn himself elf of the special need for caution beforo convicting on reliance on the correctness of the identification of the appellant by PW1.

28. Ground 6 is that in all the circumstances the conviction is unsafe and unsatisfactory.

29. In view of the Magistrate's finding that the suspicious circumstances of Dl's presence at the scene was not sufficient to convict, I cannot say, with certainty, that the Magistrate would have convicted if he had not been misled on the matter of identification and had directed himself properly on the matter of identification.

30. In the circumstances, I consider that the conviction was unsafe and unsatisfactory and , allow the appeal and set aside the conviction.