R. v. LI CHUN YUE

Criminal Appeal No. 240 of 1996

Headnote

The proper approach of an appellate court to submissions concerning the weight of evidence given at trial and the judge's evaluation of it.

IN THE COURT OF APPEAL

1996, No. 240
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 11 March 1996 the applicant was convicted after trial of four offences by His Honour Judge Whaley in the District Court. The offences all took place on the same occasion and consisted of common assault, causing grievous bodily harm, causing criminal damage and theft. The applicant was sentenced to a total of 1 year's imprisonment and he now applies for leave to appeal against his convictions.

The facts

2. On 31 December 1994 Cheuk Sum (the victim in count 1) and his employee, Chan Yick-kam (the victim in count 2) had been hired to decorate a new flat in Kennedy Town. In the late afternoon about 6 men came in, some of them carrying lengths of pipe and hammers. Cheuk was punched to the floor and held down by one. Chan was assaulted with weapons, the furniture and fittings were systematically damaged and finally, Cheuk's mobile phone was stolen to prevent him reporting the matter to the police. The only indication as to motive was that one of the men said "You have come to my site to skim a living".

3. Both Cheuk and Chan gave evidence that the applicant was one of the gang who instructed the others what to do.

The issue

4. The only issue on appeal is whether the judge properly and fully evaluated the identification evidence from Cheuk and Chan, and the evidence of the applicant and his two alibi witnesses before finding - on the criminal standard of proof - that the applicant was guilty.

The applicant's case

5. We trust that we do no injustice to Mr Grossman QC's careful submissions for the applicant by summarising their main thrust. He contends that on a proper evaluation of all the evidence, the judge ought not to have found the applicant guilty. He relies upon the following general matters:

(i) That the circumstances in which the witnesses identified the applicant as one of the offenders were such that the judge ought not to have relied upon the identification.

Particular reference was made to the circumstances of the assaults together with the frightening and chaotic circumstances at the time. Mr Grossman also pointed to evidence from the applicant and another that he was known to the first victim, Cheuk, before the date of the offences. An assertion denied by Cheuk.

(ii) That the evidence of the two victims was in certain respects inconsistent with each other, internally inconsistent and inconsistent with statements made earlier to the police.

One of the main inconsistencies which applied to both witnesses, was that in their testimony they both identified the applicant as a person gesticulating and directing the attack. Neither witness had described such a member of the gang in earlier statements and both described the applicant as "the commander".

(iii) That the judge failed to give sufficient weight to the alibi evidence when it was given by men of good character and was sufficiently consistent to raise a real doubt about the prosecution case.

The approach of this Court

6. When considering an appeal of this nature this Court must ask itself three questions:

(1) Was it open to the judge to convict on the evidence before him?

(2) Did he approach the evidence of identification in accordance with the "Turnbull" guidelines?

(3) Before convicting did he properly and sufficiently consider and evaluate the evidence before him?

7. As to the first question counsel has not suggested that there was no evidence upon the judge could convict. Clearly there was evidence. The first witness, Cheuk, picked out the applicant in the street within two days of the offences and identified him to the police. The second witness, Chan, picked out the applicant on an identification parade which was held only ten days later.

8. Similarly the second question does not arise. The judge had the Turnbull principles in mind when assessing the identification evidence. He indicated:

"I have carefully considered all this evidence, particularly in relation to the quality of the evidence identifying the defendant. It is necessary to closely scrutinise such identification evidence when it is challenged, as in the present case. There is a special need for caution when considering such evidence and before convicting an accused in reliance on the correctness of such evidence. I have reminded myself that a mistaken witness can indeed be a convincing one and that a number of witnesses - two in the present case - can all be mistaken and all be convincing."

9. It is, however, strenuously submitted that the judge failed in his duty to properly consider and evaluate the evidence. Criticism is made by Mr Grossman of the quality of the identification evidence but no criticism was possible of the evidence of the identification parade upon which the second victim picked out the applicant. That evidence was admitted without criticism and at trial it was central to the main issue. The evidence that the first victim, Cheuk, picked out the applicant in the street within 48 hours of the offences and reported him to the police was also potentially persuasive. The suggestion that this witness had previously met the applicant and knew him was not accepted by the judge. Even if true, two questions would possibly arise. First, as to why the witness did not report the applicant to the police as one of the offenders immediately after the offence. Secondly, why the applicant did not suggest that he was known to the victim soon after the first confrontation. These, however, are not matters for this Court.

10. As to the circumstances under which the identifications were made, the judge fully considered these. He weighed the good lighting and the proximity, with the frightening and chaotic circumstances together with Cheuk's dizziness after he had been punched.

11. The judge set out the evidence in greater detail than is usually necessary. This no doubt was a recognition by him of the careful evaluation necessary in this case, not only because it was an identification case but also because of the inconsistencies and the fact that he was dealing with a defendant of good character. He also considered in detail the applicant's evidence and that of his alibi witnesses. Whereas he gave some weight to the demeanour of the second defence witness, Cheng, this was not the only reason for his decision not to rely upon his evidence. This is not a case in which the judge relied too heavily upon demeanour.

12. There was, therefore, a stark issue for the judge to resolve but such is the daily task of a judge. In doing it, he brings to bear not only his skill in applying the law but also his experience of judging the facts. For example, it is the common experience of judges that witnesses' evidence sometimes does not accord with their earlier statements and that witnesses who are subjected to sudden violence have varying recollections of the events. Such matters have to be carefully weighed before a decision is reached.

13. The judge demonstrated in his reasons that he considered the evidence of all the witnesses - including those for the applicant - and he specifically indicated that he had considered all the evidence in the round. Finally, he reached his conclusion as follows:

"All in all, I am satisfied beyond reasonable doubt that the evidence of PW1 and PW2 is reliable and correct evidence and that the defendant was indeed one of the group who rushed in and attacked them, as described and then proceeded to wilfully damage the furniture and fittings. It is clear that the defendant and the other attackers were acting in concert with each other and they were embarked upon a joint venture in doing what they did."

Conclusion

14. In substance, this Court is asked to substitute its own evaluation of the witnesses and the evidence from a careful reading of the transcript, for that of the judge who heard and saw the witnesses at trial. This is not an exercise that this Court can undertake unless it is shown that the judge in some way failed in his duty. We must ask, has the judge's evaluation been shown to be absent, irrelevant, lacking, careless or flawed in any substantial way? In spite of careful, well presented and attractive submissions by Mr Grossman QC, this has not been demonstrated.

15. On these grounds, the application is refused.