THE QUEEN v. CHEUNG KWOK KUEN

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JUDGMENT

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Macdougall, J.A.:

1. The applicant who was indicted with 5 co-accused was convicted after trial before Hopkinson J. and a jury on 3 counts of wounding with intent to do grievous bodily harm. He now applies for leave to appeal against those convictions.

2. The evidence for the prosecution was that at about 5 p.m. on 21 August 1988 three youths, Chow Chi-shing, Lau wai-keung and Yan Tin-skiing were walking along a street in Sheung Shui when they saw a group of more than 10 young men approximately a car's length away hurriedly approaching them. Suddenly each of the approaching group drew out a knife and rushed to attack the three youths who, despite a desperate attempt to escape, sustained severe wounds.

3. The victim Lau, PW5, testified that he recognised five of the members of the attacking group and that one of them was the applicant. He was unable to recall how long it was that he had known the applicant prior to the attack. The victim Chow, PW3, testified that he recognised three members of the group and that the applicant, with whom he had previously been friendly and had known for a very long time, was one of them. Indeed it emerged during the course of cross-examination of this witness that the applicant's case was that Chow had known him since 1985 and that they had frequently gone cycling together.

4. Moreover, there was unchallenged evidence from the Chief Inspector who conducted the identification parades at which Lau and Chow identified the applicant as being one of their attackers, that the applicant, when asked at the conclusion of the parades whether he. wished to make any comment as to the manner in which they had been conducted, said "I have Known the two persons who identified me since my school days." This was the extent of the evidence against the applicant.

5. It was principally in relation to the identifications that Miss Sze, who appeared for the applicant both in this court and the court below, directed her submissions in arguing this appeal.

6. First, she submitted that the judge erred in rejecting an application made at the conclusion of the case for the prosecution that he withdraw the applicant's case from the jury and direct an acquittal on the ground that the quality of the identification evidence given by each of the two witnesses was too poor to justify it being left to the jury. This was based on the contention that the identifications were made after fleeting glances at the attackers and that there were other factors that generally weakened the testimony of these witnesses. In particular Miss Sze drew attention to a statement which Chow made to the police in hospital the day after the attack in which he was able to name only one of his attackers, one Wan San. When asked whether he recognised "any other people at that time" he replied "As to the other persons I did not see them clearly".

7. In cross-examination Chow claimed that he had lost a large quantity of blood and was in great pain when giving the statement and that although he saw the applicant at the time of the attack he did not know either his real name or his nickname and was therefore unable to identify him until he saw him at an identification parade.  He said that the police officer had possibly misunderstood him when he gave his statement at the hospital. Later in cross-examination he admitted that on the day on which he made the statement he knew the applicant as Cheung Chai. Finally, his most damaging admission was that he first realised that the applicant was involved in the attack when he saw him at the identification parade.

8. At one of the several identification parades that he attended he identified an actor as being the person who had chopped him. He told the officer in charge of the parade that the actor looked very similar to his attacker in features, physique and hairstyle. At a later identification parade he made a wrong identification of another attacker.

9. The witness Lau also gave a statement to the police on the day following the attack. However, unlike Chow, he named the applicant as one of his attackers. Subsequently he confirmed his recognition of the applicant by identifying him at an identification parade. He told the police the names of 6 of his attackers and identified all of them at various parades. Two of these 6 persons and 2 other persons he identified at other identification parades were not prosecuted. He made one wrong identification, but this was of an attacker whom he had not named and whom it was not suggested he had known previously.

10. Miss Sze laid stress on the fact that the judge had observed in his ruling that the quality of the identification evidence was not good and that he had repeatedly reiterated this view in his direction to the jury. She submitted that in the light of this assessment of the evidence he should have granted her application.

11. It is plain to us that when the judge described the evidence as poor he was referring only to the brief period of time available to the two witnesses within which to see their attackers. The quality of an identification does not hinge solely on the length of time available to a witness to see the person whom he identifies. If the lighting conditions are good and the identifiers and the person identified are in close proximity to each other, as was the case during the course of this attack, a brief view of the face of the person identified may be quite sufficient to ensure a reliable identification. The greater the number of identifiers usually the more reliable is the identification. If the identification is not that of a stranger but takes the form of a recognition of the attacker as a person with whom the victim is familiar, it is plainly of greater reliability. A fortiori where more than one witness is in that category.

12. Undoubtedly it is possible for there to be a mistaken recognition even of a friend or relative, or for there to be faulty identifications by a number of witnesses. But there is no inflexible overall rule that can be applied in every case. Circumstances vary infinitely from case to case and the judge must: decide on the basis of the particular circumstance or combination of circumstances in the case before him whether it would be proper to leave the issue of identification to the jury. Juries are not to be treated as being incapable of applying common sense and good judgment to such an issue. Provided that there is an identification of reasonable quality and the jury are properly directed as to the particular dangers that exist in acting on that identification we see no reason why they cannot competently and safely assess whether it is of sufficient reliability to justify a conviction.

13. On the basis of the evidence of Lau's recognition of the applicant we are of the opinion that the judge was justified in refusing the application to have the case withdrawn from the jury. Having made that ruling, however, it was incumbent on him to highlight to the jury anything that could reasonably be said to weaken that evidence, and to give proper directions as to Chow's testimony - a matter to which we shall return.

14. The second ground of appeal embraced a number of criticisims of the judge's directions to the jury in this connection, but there is only one that we consider to be of critical importance.

15. We are satisfied that in respect of Lau's testimony the judges general directions to the jury on the danger of relying on a fleeting glance identification were clear and correct and that he sufficiently drew their attention to the particular matters they should take into account in assessing the quality of that witness's recognition of the applicant as one of the attackers.

16. It is in relation to Chow's evidence however that we accept Miss Sze's submission that the judge's directions were seriously defective. Where very shortly after an attack on him by a group of youths, a witness tells the police that, apart from one named person, he was unable to see any of the other attackers clearly, and fails to name any one of them, an identification by him at an identity parade two months later of a person, as one of his attackers, when he had been on friendly terms with that person and had known him for several years, must be the subject of the gravest doubt. That doubt can only be intensified when the witness admits that it was not until he saw that person on the parade that he realised he was a member of the group that had attacked him.

17. This was a situation that called for a convincing explanation from the witness. It is possible, for instance, that a victim might refrain from naming an attacker in his initial statement to the police either because he fears that if he does so there will be a further attack on him or his family, or because that person was a former friend who, although being one of the group of attackers, had not personally attacked him. In the present case there was no such explanation. Instead the witness claimed in the course of cross-examination that when he gave the statement to the police he was in extreme pain and his mind was blank.

18. This however did not lie easily with the fact that he had been able to give the police a clear description of the incident and had named one of his attackers. Moreover, the doctor who was attending to him at the hospital testified that immediately before the statement was taken he checked his condition and was satisfied that he was fit to be interviewed. There was also the witness' highly implausible explanation that when he gave the statement to the police he did not mention the applicant because he was unaware of both his real name and his nickname.

19. We are of the opinion that the judge should have directed the attention of the jury to these manifest weaknesses in Chow's testimony and have told them that they should place no reliance on it, and that if they were to convict the applicant it could only be on the basis of Lau's identification.

20. In the event, however, the judge referred to none of these matters. On the contrary he drew the jury's attention to the fact that the statements were recorded the day after the witnesses had suffered "appalling injuries", and was critical of counsel's adverse comment to the jury as to Chow's inability at the time of giving his statement to the police to mention significant details of the attack that he was able to recall when testifying in court.

21. We are driven to the conclusion that the jury were left with an unbalanced and misleading assessment of the evidence of this witness. While therefore we are of the opinion that they would have been justified in convicting the applicant on Lau's evidence alone, we cannot be sure that they would have done so had they not been given such a misleading and unbalanced direction with regard to Chow's testimony.

22. Miss Sze advanced other grounds of appeal, but in view of the conclusion we have reached on this ground we do not find it necessary to say anything more than that we do not think that there is any substance in them.

23. Having concluded that the conviction is unsafe and unsatisfactory we grant the application and, treating it as the hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence.