THE QUEEN v. LAU KI CHEONG

IN THE COURT OF APPEAL

1987, No. 354
(Criminal)

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JUDGMENT

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Yang, V-P.:

1. The Applicant was convicted of robbery by Judge Raily in the District Court and sentenced to an imprisonment for five years.

2. He now seeks leave to appeal against this conviction.

3. The sole issue that concerned the trial judge in the court below was one of identification. It is therefore to be expected that a judge in a situation as this would devote particular care to that issue and he should, if the evidence warranted it, bear in the forefront of his mind the guidelines laid down in the case of R. v. Turnbull[1].

4. The circumstances of the robbery were that the Applicant went up to the proprietor of a shop (PW2), asked for direction and later asked to use the telephone in the shop. Also, to the surprise of the employee in the shop (PW1), he snatched the employee's necklace, at the same time brandishing a knife.

5. Whilst it could be argued that as far as the employer (PW1) was concerned this Has not the Turnbull situation, we have no doubt in our minds on the evidence as disclosed in the transcript that as far as the employee, (PW2) was concerned, the Turnbull guidelines ought to have been observed. The judge in his very brief and cursory judgment did not deal with Turnbull¹. In one passage, he said that he found "a ring of truth in the events" that these two witnesses described, and he accepted their evidence as to what happened. It is precisely where a witness' identification has a ring of truth in it that very often where there was a fleeting glance situation that the Turnbull guidelines must necessarily be adopted. For a witness may sound truthful but be mistaken.

6. As we are minded to order a new trial in this case, we do not think it useful for us to deal with the other aspects of the appeal. In all the circumstances, we allow the application, treat the application as the hearing of the appeal, allow the appeal and set aside the conviction and order new trial.