NG HA v. R.

IN THE COURT OF APPEAL

1993, No. 112
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. The applicant who was indicted on one count of going equipped for stealing (count 1) and three counts of robbery (counts 2, 3 and 4). On arraignment he pleaded guilty to the first count. At the end of the case for the prosecution the applicant changed his pleas to guilty in respect of the 2nd and 3rd counts, and at the conclusion of the trial he was convicted on the 4th count. He now applies for leave to appeal against that conviction.

2. The robbery with which the contested count was concerned occurred on 14 March 1992 in a flat in Paterson Street, Causeway Bay. A Madam Yip whose flat it was had returned home at about 7.30pm with two female friends, a Madam Choi and a Madam Au, and a male friend, a Mr Yuen. Shortly after their arrival, a robber armed with a knife appeared from the kitchen. All four occupants were bound and gagged and their cash and valuables taken from them.

There was no dispute that the robbery had occurred in the manner described. The only issue was whether the applicant was the robber. The evidence as to this was given by Mr Yuen and Madam Choi.

3. At an identification parade held 40 days after the robbery Mr Yuen having viewed the parade and, having asked those on the parade to utter a sentence, identified the applicant as the robber. He testified that he had been able to make a visual identification of the applicant but that, in order to reinforce that identification sought confirmation by means of an auditory identification.

4. The circumstances under which Mr Yuen saw the robber were these. He had been returning from the toilet to the living room of the flat when he saw a robber pointing a knife at the three women. The room was brightly lit. Mr Yuen, who was facing the robber from a distance of about six feet, had a clear view of his face for about two to three minutes, during which time the robber demanded that the victims hand over their valuables. The robber then ordered one of the women to fetch a length of wire and to secure Mr Yuen's hands. When the robber became dissatisfied with the manner in which she was binding Mr Yuen, he himself carried out the operation and secured Mr Yuen hand and foot. The robber then bound the hands and feet of each of the women. During this time Mr Yuen was lying on a sofa observing the robber's facial reflection on the surface of a vase.

5. The robber then conducted a search of the premises after which he returned and gagged all four victims and dragged them one by one into the bedroom. This gave Mr Yuen several opportunities to look at the robber's face. On one occasion when the robber noticed that Mr Yuen was looking at him he struck him.

6. Madam Choi also attended an identification parade. After looking at the line-up she told the officer in charge of the parade that she could not identify the robber. However, after having left the parade room she told a police officer that she had in fact been able to identify the man standing at position nine as the robber but had been too frightened to tell the officer in charge of the parade. She said that she thought that she would have been asked to make an identification from behind a two-way mirror. In court she testified that she was certain that the man standing in position nine was the robber. In fact the applicant had been standing at position nine in the line-up.

7. In his statement to the police after the robbery Mr Yuen said that the robber had slightly protruding teeth. When asked in cross-examination whether he thought that that description fitted the applicant he replied that it did. It was, of course, for the jury, who had been able to study the applicant's facial characteristics during the course of the trial, to determine whether it could reasonably be said that his teeth were slightly protruding.

8. The applicant now contends that the description which Madam Yip, who did not attend an identification parade, had given to the police did not match his own description; that Mr Yuen had not had sufficient time to get a clear impression of the robber's features; and that at the identification parade Mr Yuen and Madam Choi had been tipped off by the police as to the position at which the applicant was standing on the line-up.

9. All these matters were fully canvassed at the trial. It was for the jury to decide whether the prosecution witnesses had given truthful and reliable evidence. Plainly, they rejected the allegation that Mr Yuen and Madam Choi had made their identifications of the applicant as the robber as a result of the conduct of the police in alerting them as to the position at which the applicant was standing in the line-up. They must also have been satisfied that the witnesses had had an adequate opportunity of seeing the robber and thus subsequently be able to accurately identify him.

10. A further point that was raised by the applicant during the course of his submission was that the judge had not informed him that he had the right to apply to have the jury discharged after he had pleaded guilty to two of the robberies at the conclusion of the Crown case. The applicant, however, was represented by counsel. Moreover, a plea of guilty by an accused person in the course of a contested trial does not entitle him, as a matter of course, to have the jury discharged from giving a verdict on any remaining count or counts in the indictment before them. Indeed, the jury were no doubt urged to conclude that the fact that the applicant was prepared to admit his guilt on all but one count on the indictment was a powerful indicator of his innocence on that remaining count. The application not having been made at the trial, it is too late to complain now.

11. As for the summing-up the judge carefully and fairly analysed the evidence and correctly directed the jury on the relevant law. We can find no justification for disturbing the conviction. The application is therefore refused.