R. v. WONG CHI MAN

Criminal Appeal No. 632 of 1994

Headnote

Identification case. Principles in R v Turnbull and R v Galbraithconsidered. Daley v R [1993]4 All ER 86 P.C. per Lord Mustill 93H-95A followed.

Poor quality identification supported by flawed independent evidence. Case ought to have been withdrawn from jury.

IN THE COURT OF APPEAL

1994, No. 632
(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. This is an application for leave to appeal against conviction. The applicant was convicted on 1st December 1994 of a joint offence of robbery after trial before Deputy Judge Jones and a jury. He was sentenced to 7 years imprisonment consecutive to a sentence already being served.

The Facts

2. The offence took place on 6th August 1991. At about 3 pm in the afternoon two men rang the doorbell of a private apartment and forced their way in. The victims inside were brother and sister. The robbers threatened them with a chopper taken from the kitchen, tied them up and took away money, gold jewellery, a watch and a walkman. One of the robbers pleaded guilty and this applicant was tried alone.

3. The only issue at trial was whether this applicant was proved to be one of the robbers.

The Evidence

4. The evidence left to the jury for their consideration consisted of the identification of the applicant by Lam Hong-ming (the sister) who picked him out on an identification parade on 27th September 1991 supported by evidence that immediately after he had been picked out the applicant said "I did this robbery". Evidence of that admission was given by Woman Chief Inspector Cheung.

The Identification

5. The identification evidence was extremely weak and possibly flawed.

6. The weaknesses can be listed:

(1) The opportunity for identification was limited to several fleeting glimpses. The witness says she looked at the two robbers when they first walked in for one or two seconds. She glanced at the "thin" robber for one second before he went into the kitchen and then for about two seconds when he returned with the chopper. Finally, she saw him side view once when he was running past.

(2) Additionally, she recounted looking at one of them in the sitting room for one or two seconds. Later evidence, however, showed that this was not the applicant but the "fat" robber who tied up the witnesses.

(3) At the identification parade she picked out No. 8, the applicant. She said that this was because he had tied her up and she looked at him and he made an impression upon her. In this she was totally confused. The "fat" one did the tying up.

(4) The applicant was described by the police as "very tall". He is about 5'10". Both sister and brother described the robber as about 5'3-4", the same height as the brother. Neither witness remarked upon the robber as being tall.

(5) The brother did not identify the applicant.

7. The identification evidence was described by the judge in his summing-up as follows:

"It is a matter for you how you evaluate these weaknesses in the prosecution case, however in my opinion, which you do not have to accept, there are considerable weaknesses."

If this evidence has stood alone, there is little doubt that the judge would have withdrawn this case from the jury as was his duty. (See R v Turnbull (1976) 63 Cr.App.R. 132)

The Supporting Evidence

8. As he is enjoined in R v Turnbull the judge considered whether the identification evidence was supported by other evidence. The Crown sought to rely on an alleged admission made by the applicant on the identification parade immediately after he had been picked out. This was recorded by the supervising officer in the official record of the parade. But this remark came through an interpreter and for reasons which no longer matter, the judge ruled it inadmissible and directed the jury not to rely upon it. There is, indeed, some doubt whether the words said to have been used when making this admission were before the jury. The judge's summing-up, however, indicates that the jury were aware of the fact that an admission was said to have been made. Mr Sceats, who appeared below for the applicant, thinks that it was not put before the jury. By reason of what follows, it is not necessary to resolve the point.

9. However, WCI Cheung was also at the identification parade. She testified that immediately after the identification, the applicant said "I did this robbery". If accepted, this was not only support for the identification, but evidence for the jury's consideration of the applicant's guilt even if they were to reject the identification evidence.

10. The matter does not end there. The judge directed the jury that there were "serious dangers in relying on this evidence of WCI Cheung and you may wish to bear these dangers in mind". The reasons for the judge's misgivings about this evidence can be summarised:

(1) The witness was called to refute suggestions that the police had assisted the witness to identify the applicant.

(2) She did not give evidence in chief of the confession;

(3) This evidence was only given in re-examination. It followed that the prosecution were not in possession of any statement from the witness contemporaneous or otherwise which contained this evidence;

(4) The evidence was given well in excess of three years after the event;

(5) Although there was only one "confession" the Woman Chief Inspector's evidence of the words used was, it seems, not the same as those recorded contemporaneously by the supervising officer;

(6) The evidence was not tested in cross-examination. Mr Sceats did not apply to cross-examine on the basis that "the damage had been done". It is not clear whether the judge offered him the opportunity, but as the evidence was left to the jury it ought to have been tested; and

(7) Immediately after the identification parade the applicant made a complete denial of his involvement in the offence.

Nevertheless, the judge thought that he had to leave the case to the jury. He directed them "despite all this, the evidence is before you and I am unable to direct you to ignore it. It is a matter for you". But he continued,

"However, what I do say, and I say in the strongest possible terms, is that it would be extremely dangerous for you to rely on this evidence of Chief Inspector CHEUNG to support the evidence of Miss LAM's identification".

R v Turnbulland R v Galbraith

11. We have some sympathy for the judge. He was seeking to faithfully observe the principles in R v Turnbull in considering the poor quality of the identification evidence and at same time to follow the guidance in R v Galbraith 73 Cr.App.R. 124 C.A. per Lord Widgery CJ at 127:

"How then should the judge approach a submission of 'no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.

There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."

Although the judge considered the evidence of the admission from WCI Cheung to be "extremely dangerous" he left it to the jury because its weight depended upon credibility. In the result there was very poor quality identification evidence supported by evidence upon which it was "extremely dangerous" for the jury to act.

12. This possible incongruity between the principles in R v Turnbull, and those in R v Galbraith were considered in Daley v R [1993]4 All ER 86. See Lord Mustill (giving the opinion of the board) at 93H-95A. The conclusion is at 94G-J:

"A reading of the judgment in R v Galbraith as a whole shows that the practice which the court was primarily concerned to proscribe was one whereby a judge who considered the prosecution evidence as unworthy of credit would make sure that the jury did not have an opportunity to give effect to a different opinion. By following this practice the judge was doing something which, as Lord Widgery CJ had put it, was not his job. By contrast, in the kind of identification case dealt with by R v Turnbull the case is withdrawn from the jury not because the judge considers that the witness is lying, but because the evidence even if taken to be honest has a base which is so slender that it is unreliable and therefore not sufficient to found a conviction: and indeed, as R v Turnbull itself emphasised, the fact that an honest witness may be mistaken on identification is a particular source of risk. When assessing the 'quality' of the evidence, under the Turnbull doctrine, the jury is protected from acting upon the type of evidence which, even if believed, experience has shown to be a possible source of injustice. Reading the two cases in this way, their Lordships see no conflict between them."

We respectfully agree with this analysis recognising that the difficulties at first instance often lie not with the analysis but with the application.

Conclusion

13. Turning again to the instant case. It is clear both from the judge's remarks and from an objective examination that the evidence of WCI Cheung was inherently weak. If that evidence had stood alone, the judge would have stopped the case on the basis either that the jury could not properly convict upon it or that it was a genuine borderline case in which he ought to interfere.

14. Be that as it may, this evidence was never approached by the judge as independent evidence of guilt. The judge clearly thought it far too flawed. He approached the evidence at most as supportive of the identification.

15. This is therefore an identification case in which the principles in R v Turnbull must be applied. Once examined in this light, there is only one proper conclusion to this appeal. There was very poor quality identification evidence supported by evidence which the judge rightly thought to be inherently flawed. On this basis, the judge ought to have withdrawn the case from the jury to avoid the well-recognised risk of injustice.

16. On these grounds, which are probably unique, we give leave to appeal. We treat the application as the appeal. We allow the appeal and quash the conviction.