THE QUEEN v. CHAN MAN SHING

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J U D G M E N T

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Penlington, J.A.:

1. This is an application for leave to appeal against conviction on a charge of robbery committed on the 24th April, 1988, at the Ka Lai Hairdressing Salon in Kowloon, and is in respect of only one of the four persons who were subsequently charged as a result.

2. The Crown's evidence consisted partly of the identification of this Applicant by a Mr. Kwong who was the proprietor of the salon. Mr. Kwong however said that he was not able to positively identify this Applicant as being one of the robbers. He said that the person he identified was similar in appearance and, in respect of that evidence although its admissibility as such was not challenged at the trial, the trial judge very fairly said to the jury that they should totally disregard it. Evidence of this quality, while not inadmissible, would not in itself be sufficient to found a conviction. We cannot, however, say that it is evidence which the jury should completely ignore. Here the trial judge was, if anything, over favourable to the Applicant in respect of his direction on that evidence.

3. The rest of the Crown's case was scientific evidence resulting from the examination of a pair of jeans containing a blood stain and a blue T-shirt which, according to the police evidence, was worn by the accused when he was arrested. The blood stain on the jeans did not come from the Applicant or any of the other co-accused but was the blood group of a person who was a casual worker in the salon and who was injured in the course of the robbery. The blood was an unusual type - only about 1.59% of people in Hong Kong have it - which still means, as Mr. Hagon points out, there would be something like 100,000 people in Hong Kong with that blood group.

4. There was also the blue T-shirt. Evidence was given by an expert, who not challenged as to his credentials, that the fibres on the T-shirt were consistent with other fibres found at the scene of the robbery. In itself this evidence again, if challenged, may not have been sufficient to found a conviction. There was no evidence as to how common this type of T-shirt or the fibre was and complaint is made here that there were no photographs produced in support of this scientific evidence. Reliance is placed on dicta of this Court, initially in R. v. CHAN Kam Tak, C.A. 204, 1987. This adopted the well-known decision of Davie v. Magistrates of Edinburgh, S.C. 34, 1953, which held that the jury should be afforded an opportunity for itself to see whether the scientific evidence was reliable. This matter again came before the Court in R. v. LEUNG Chi Yuen and others, Crim. App. 576/1987, where ballistic evidence was called but no photographs of the bullet marks were produced. There was nothing put before the jury which would enable them to test the accuracy of the evidence. There, however, the evidence was challenged and one of the grounds on which the appeal was allowed was that although so challenged as to its accuracy the judge did not direct the jury as to the lack of evidence on which they could test the scientific conclusions. That the expert witnesses gave "mere opinion" evidence.

5. Here the defence did not challenge the scientific evidence because the sole defence which was put forward was that the garments were not being worn by the Applicant when arrested and were planted on him by the police. Therefore the defence was not really interested in the scientific evidence because these garments had nothing whatever to do with the Applicant.

6. It is quite true that a judge sometimes cannot confine his summing-up to the particular line a defence has taken. Even when, for instance, provocation is not relied on, if the evidence could support such a defence the judge must direct the jury accordingly. Nevertheless these are adversarial proceedings and the judge should direct the jury bearing in mind the line the defence has taken.

7. As was said in R. v. Chan Kam Tak and in R. v.Leung Chi Yuen and others the jury should be furnished with as much assistance as possible in assessing the reliability of scientific evidence and it may well be that photographs taken through a microscope should have been produced. We assume howver that at the preliminary hearing before the trial commenced it was indicated that the scientific evidence would not be challenged as to its inherent accuracy but only on the basis that it was simply not relevant to the Applicant as he never wore the clothing. There is then little point in the preparation and calling of what can be complicated scientific evidence, the conclusions of which are not in dispute. This is one of the valuable ways the preliminary hearing can and should avoid the unnecessary preparation of evidence and the time taken in calling it.

8. It was clearly put to the jury that it was for them to decide whether they accepted the evidence as the circumstances of the Applicant's arrest what he was wearing and what conclusion they could come to. We do not consider that the judge has failed to put the evidence fully and adequately before the jury and the application for leave to appeal is therefore refused.