HKSAR v. NGUYEN LAM

CACC 496/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 496 OF 1999

(ON APPEAL FROM DCCC 682 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 10 September 1999, the Applicant was convicted of burglary and sentenced to eighteen months' imprisonment, following a trial in the District Court before Judge Muttrie. The Applicant now seeks leave to appeal against conviction.

2. The case was wholly dependent upon PW1 having correctly identified the Applicant as an intruder who she had caught in the act of ransacking desk drawers in a room used at the Tung Chau Street temporary market as a rest and changing room. At about 12.05 p.m. on 17 July 1999, PW1, who was employed as a cleaner with Urban Services Department, had gone out of this room leaving the door ajar. When she returned, she saw a man at the desk who immediately rushed out. PW1 alerted two foremen in the office next door. One of these was PW2 who testified that, as he stepped out of his office, PW1 was pointing to the Applicant who was walking away quickly onto a loading platform. PW3 gave similar evidence. The two foremen then arrested the Applicant. The Applicant was searched and was found not to have stolen anything. When asked what he was doing in the pump room, the Applicant replied simply: "Nothing".

3. The Applicant's case was that he was passing through the market on his way to the park when someone ran and turned. He then heard PW1 shout "theft" and, when PW2 and PW3 came out of their office, he found himself being apprehended. He denied ever having been in the pump room and described the man he had seen running away as wearing very similar clothing to the clothing which he himself was wearing that day.

4. In his principal grounds of appeal, the Applicant stated that there were many passers-by at the scene, that PW1 could not recognise his face in so short a time, that the witnesses were unable to be sure that it was the Applicant who was the culprit, that he had no tools for burglary on him, and that the judge had not given him a chance to present his defence.

5. Dealing with the last point made by the Applicant first, it is apparent from the Reasons for Verdict that the defence had been fully presented and that the judge had understood the Applicant's case. Indeed, the evidence fell within such a narrow compass that it is hard to imagine that the defence which had been put forward could have been more simple. There is nothing in this point.

6. Equally straightforward is the Applicant's point that he possessed no tools for burglary. He would have needed none because the door to the premises he allegedly entered was open. Burglary, in the present circumstances, involved the entry of premises as a trespasser with the intention to steal. If the prosecution could establish that the Applicant had so entered, that was sufficient for their purposes to raise an irresistible inference that he was there to steal.

7. The remaining grounds of appeal can be dealt with together. As we have already stated, the case rested wholly on PW1's evidence that she had seen the Applicant at the desk while he was ransacking it and had pointed him out to PW2 and PW3 who then made a citizens' arrest of him. Could she have been mistaken? PW2 and PW3 were unable to assist as they were only alerted to what had happened after the Applicant had allegedly run away.

8. Nowhere in the Reasons for Verdict did the judge make any reference to R v Turnbull and others, (1977) 1 QB 224. Plainly, as the prosecution wholly relied upon the correctness of PW1's identification which the defence had alleged was mistakenly made, the judge should have warned himself about the special need for caution before convicting the Applicant and have warned himself as to the reasons.

9. Having said this, a professional judge sitting in the District Court will be expected to know the law in this respect. There is, of course, no requirement for a judge to refer to Turnbull by name provided it is clear from the context of the Reasons for Verdict that all caution has in fact been exercised by the judge and that the evidence about the circumstances in which the identification was made have been closely examined by him. As the judgment in Turnbull at page 231C sets out:

"A failure to follow the guidelines is likely to result in a conviction being quashed and will do so if in the judgment of this court on all the evidence the verdict is either unsafe or unsatisfactory".

10. Turning now to the Reasons for Verdict, the judge assessed the evidence at page 7 in the following way:

"PW1 was an excellent witness. She gave her evidence clearly and well. She appeared to be a very sensible person. She was unshaken in cross-examination. It was put to her that a different man, similarly dressed, had been in the pump room. She would not accept that and she was quite clear that she had seen the defendant face to face and never lost sight of him.

The defendant mentioned that she had said, 'Just like' in her evidence-in-chief. This may at first glance suggest that there was some doubt about the identification. It appears that this was said when she was asked to approach the dock and take a close look at the defendant's T-shirt. She said it was similar but tighter on him than before. There was quite obviously no doubt in her mind about her identification of the defendant.

I have to ask myself whether the defendant's account of the incident could reasonably be true. There is no doubt that the defendant was apprehended on the loading platform. It is not clear whether that loading platform was an old pedestrian thoroughfare, but in the normal case one would not expect it to be. There is evidence from all the prosecution witnesses that there was no one about in that area but the defendant. That there should have been another similarly dressed man in that area immediately before the arrest is unlikely in any event.

Having heard PW1 and the defendant, I have no doubt that there was no such man, the only man present was the defendant.

I find that PW1 saw the defendant in the pump room going through the desk drawers. She kept him in sight until the other witnesses apprehended him. There is only one possible inference from his actions which is, that he was looking for something to steal and had entered the pump room, where he had no right to be, with the intent to steal."

11. Mr Cheung Wai-sun has, on behalf of the Respondent, very responsibly accepted that the judge did not appear to have warned himself about the special need for caution in the circumstances which pertained here. It could be said that this was perhaps because the circumstances were so overwhelmingly indicative of the Applicant being the guilty culprit, that the judge overlooked this direction to himself. This resulted from the judge being satisfied that there was no one else with whom the Applicant could have been confused at the scene of the crime. He had, after all, been seen to run from the office to the place where he was arrested without ever leaving PW1's sight.

12. Having regard to the judge's omission to direct himself as to the special need for caution or to have used words to this effect, we have had to ask ourselves in the particular circumstances of this case whether this amounted to a material irregularity. We are satisfied, having regard to the judge's acceptance of PW1's evidence that the Applicant had been in her view up to the time he was arrested, that this was not a material irregularity. The case was utterly overwhelming against the Applicant. Indeed, before us today the Applicant appears to accept that is so because, when called upon to say whether was anything further he wished to add to his written grounds of appeal, he said, amongst other things: "I admit to attempting to steal but not to burglary". When he was asked why he had not admitted the lesser offence in the court below instead of denying responsibility, he said that he had not thought about it at that time.

13. We propose in this case to give leave and, treating the hearing as the appeal, we dismiss the appeal.