THE QUEEN v. CHEUNG CHUK-PING AND ANOTHER

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J U D G M E N T

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Silke, J. A. :

1. The two applicants were convicted, after trial, of robbery. The robbery took place at 1: 30 in the morning, on the 28th November 1983 at the Ground Floor, No. 5 Kwai Wa Lane in Central District.

2. Three men, who were masked and had knives, went into the premises which was the Ching kee Cooked Food Stall, near that which is called the Poor Men's Night Club and in turn near the Macau Ferry Pier. There were six persons on the premises and they had some of their personal belongings removed.

3. The 1st applicant, CHENG Chuk-ping, was arrested shortly afterwards at Bonham Strand. The 2nd applicant, WOO Chow-ming, was arrested some months later. Another person who took part in the robbery has not been apprehended.

4. The issue at trial was identification and the trial judge gave a full and complete warning on the Turnbull ⁽¹⁾ lines. The applicants now seek leave to appeal against their convictions.

5. There was evidence before the jury upon which the jury could find that the identification of the two applicants was a proper one.

6. The single point taken concisely and succinctly by Mr. Alderdice in the course of the appeal was this: that the learned trial judge misdirected the jury in answer to their two questions, asked after their retirement, as to the statements made to the police by Madam HO Fung-tsz, Madam HO Bee-nui and an "Uncle Kai" and in so doing invited them to speculate. The questions were:

7. It must be said at once that "Uncle Kai", whosoever he may be, was never a witness in the case and therefore there was no evidence from him at all. The two Madam Hos had given evidence and had given identification evidence. Madam HO Fung-tsz, to whom the Judge referred as the "intrepid Madam Ho", had in fact chased the 1st applicant up to Bonham Strand.

8. In reply to the questions the Judge gave a very lengthy direction to the jury. It is Mr. Alderdice's point that as a result of it the jury could have been under a misapprehension and were probably confused upon the matter. The misapprehension was that, having asked to know what was in the statements, being told by the Judge that they would only be aware of what was in the statements if those statements were inconsistent with evidence given at the trial and such evidence not being before them, they could have come to the conclusion that any statements made by the witnesses must have been consistent with the evidence they gave.

9. As I have said, in relation to "Uncle Kai", the jury's question does not really seem to arise at all, there being no evidence and therefore no statement.

10. Madam HO Bee-nui had been cross-examined out of a previous statement and this matter was before the jury. It would also appear that the statement itself was before the jury insofar as the Judge made reference to the fact that "We were shown the statement".

11. In the course of his general summing-up, that is before the re-direction, he had made reference to a statement made by Madam HO Fung-tsz and also to a statement made by a witness, Mr. LO Chi-hung, both of which varied somewhat from the evidence those two witnesses had given in Court in that they had not spoken of matters in those statements of which they did speak in Court.

12. We accept that criticism can be levied at the length of the re-direction of the trial judge. It would, we think, probably have been sufficient if he had told the jury that there was no such evidence before them and that they were obliged to come to their decision only upon the evidence which had been produced in Court. But we do not think that the criticisms of  Mr. Alderdice are justified in the sense that the directions would have confused or could have led the jury to the wrong conclusion on the credibility of the witnesses whom they themselves had heard.

13. On the whole of the evidence the jury were entitled to come to the conclusion they did. There is no complaint of any other portion of the summing-up. If there be error and we are not at all sure that there was, other than verbosity, we think there to have been no miscarriage of justice.

14. The applications for leave to appeal against convictions of both applicants are refused.

(1)    [1976] 63 Cri. App. R. 132