THE QUEEN v. NG YUK MING

IN THE COURT OF APPEAL

1987, No. 96
(Criminal)

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J U D G M E N T

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Headnote: alibi : Judge's comments on non-mention at first opportunity : wrong

Silke, V.P.;

1.    This is the judgment of the Court.

2.    Ng Yuk Ming was charged with and tried for two offences of robbery in the District Court before His Honour Judge Leong.

3.    The first concerned a robbery on the 1^st November 1986 near the Shaukeiwan Fish Market where the victim lost a necklace, with two pendants, and $50 cash.

4.    The second was on the 16^th November 1986 at a rear lane of the Tung Keung Building also in Shaukeiwan where the victim lost a necklace and $600 cash.

5.    The evidence implicating the Applicant came solely from those victims and the issue was identification.

6.    Mr. Bernacchi has suggested, in the course of his submissions to us, that the robberies themselves should not have been described as “not in dispute” by the trial judge.  But no issue having been joined on them the trial judge was perfectly entitled to take the view he did and to concentrate on the real issues involved.

7.    In each of the robberies more than one man was involved.  The Applicant was arrested on the 18^th November and, at an identity parade held on the 19^th November, he was identified by both victims as a participant.

8.    Having heard the full evidence which included the evidence of the Applicant and of his alibi witnesses – for the defence was a denial coupled with evidence that he was elsewhere at the time the robberies were said to have taken place, - the trial judge mindful of the dangers of identification evidence, about which he fully warned himself, was not prepared to accept the identification of the victim on the first charge and acquitted the Applicant but he was prepared to accept the evidence of the victim on the second charge as being accurate.  He disbelieved the alibi evidence and convicted him.

9.    The Applicant now seeks leave to appeal against that conviction.

10.    Mr. Bernacchi has advanced ten grounds. Grounds 1, 2, and 3, the submissions on which have necessitated an exhaustive review of the evidence attacked the trial judge's acceptance of the identification by the victim in charge two, suggested that there were inconsistencies in that witness’ uncorroborated evidence and alleged there to have been evidence insufficient to ground a finding of guilt.  He seeks to combine those grounds, and the reasons advanced in support of them, with his remaining grounds so as to induce this Court to find the conviction as a whole unsafe and unsatisfactory.

11.    In the light of the view which we have formed on that which we considered to be the main ground of appeal, we do not think it necessary to deal, in any detail, with those other matters advanced by Mr. Bernacchi, save to say that, had they stood alone, they would not have caused us such anxiety as would have led us to find the conviction to be unsafe or unsatisfactory.

12.    The main ground we considered was Ground 5, as amended, which reads:

“The learned Trial Judge erred in law in considering that the Appellant should have mentioned his alibi at the first or an earlier opportunity when he had the right to remain silent and was so reminded by the Police Officer”.

13.    This has caused us concern and it is based on a passage at page 4 in the Reasons for Verdict which goes as follows:

“The defendant had not mentioned his queueing incident to the police after his arrest and he didn’t mention the joy ride until he was identified by the witnesses.  I would have thought that had he had a genuine alibi, he would have mentioned both incidents at the very first instant to the police immediately after his arrest, because if true that could have got him out of the situation.  His explanation as to why he didn’t do so does not convince me.

I find it difficult to accept the defendant's stories.  I don’t believe his story that he was at the places he mentioned in his evidence at the material time.  However, the fact that his evidence is not accepted does not mean that the prosecution has proved its case.  The burden always lies on the prosecution.  The fact that he lied about where he was does not prove that he was at the place of the robbery at the material time.  There are inconsistencies between the evidence of the defendant and D.W.2 Chan Fu Choi.  I don’t accept their evidence.  I find the two prosecution witnesses honest witnesses and I accept their evidence as true.”

14.    So, four reasons were advanced for disbelief of the alibi evidence:

(1)   there was no mention until after the Applicant was identified;

(2)   an expectation that if genuine, the Applicant would have mentioned the alibi at the very first instance;

(3)   a disbelief in the Applicant's explanation as to why he did not make such mention; and

(4)   the inconsistencies as between the Applicant and his alibi witness Chan Fu Choi.

15.    Factually and briefly, what had happened was this: on arrest on the 18^th November, the Applicant was given the usual caution and simply denied guilt.

16.    On the 19^th, after being identified and while still on the parade, the Applicant spoke to the officer in charge of that parade – and the record of the parade was produced in evidence at trial by agreement – he gave his story of a joy ride on the night of the 16^th November with some friends giving names and the telephone numbers of two of them. The story told then differed little, if at all, from the evidence of the same matter as given in Court.

17.    It is correct that he did not then mention the subsequently produced alibi for the 1^st of November – the offence upon which he was acquitted.

18.    The Applicant remained in custody.

19.    On the next day, the 10^th November 1986, Chan Fu Choi, following a request made by the police on the 19^th November, went to the police station.  There he made a statement which, to judge from the cross-examination upon it at the trial proper, differed in no material aspect from supported that of the Applicant.

20.    The Applicant had explained his non-mention of the joy ride to the cautioning officer as, first of all, “he did not remember it at that time”, secondly, “because when I was arrested it was all of a sudden”.

21.    To deal with one aspect: we have been unable to find any significant inconsistency as between the evidence of the Applicant and of his witness Chan Fu Choi.  Inconsistencies as presented to us on paper are not such as would allow a judge to find them of significance.  It may be, though the judge did say so, that the demeanour of the witnesses in the giving of their evidence had its effect.  But we do not know, nor do we know to what particular “inconsistencies” the trial judge was making reference.

22.    The propriety of comments such as the trial judge made as to non-mention at the first opportunity has surfaced in Naylor(1), Leckey(2), Davis(3), Lewis(4), and Cho Chak Bor(5).  This last adopted the line indicated in the previous English cases – and also repeated the advice of Humphreys J. who, in giving the judgment in Tune(6), in effect said it is safer to say nothing.  Davis⁽³⁾ which relied on Naylor⁽¹⁾, and which in turn was relied on in Cho Chak Bor⁽⁵⁾, set out the passage in Naylor⁽¹⁾ which was objected to.  The Recorder in Naylor⁽¹⁾ had said :

“Now you would imagine a purely innocent young man accused of housebreaking and having these words put to him ‘Do you wish to say anything?’ – Surely if he is an innocent man one would think he would give some explanation of where he was, and was he was doing at the particular time.”

23.    In those circumstances the Court in Naylor⁽¹⁾ quashed the conviction, having remarked :

“Now if those words are really to be construed in this sense, that, having heard them, an accused person remains silent at his peril and may find it a strong point against him at his trial that he did not say anything after being told he was not obliged to say anything, one can only think that this form of words is most unfortunate and misleading.  We think these words mean what they say and that an accused person is quite entitled to say: ‘I do not wish to say anything except that I am innocent.’”

24.    In our view, the passage impugned in Naylor⁽¹⁾ and cited in Davis⁽³⁾ is the equivalent of the words here.

25.    We are of the view that being both judge of fact and judge of law and his disbelief was based first on an error in law and then on an error in fact and law, he having drawn an adverse inference which he was not entitled to draw and further been factually in error on the issue of inconsistencies.  In the light of that, this conviction cannot stand.  This misdirection was a vital one.

26.    Mr Bruce asks us to apply the proviso. He has also asked us to consider, if we should be against him on that, the question of a re-trial.  Where the evidence, as her, is solely that of an identification which is not, to use the word used in Lewis⁽⁴⁾, “overwhelming” we do not consider that the application of the proviso would be appropriate.  For the same reason, nor do we consider a re-trial in all these circumstances – including the expence to the public and the public interest – to be an appropriate course.

27.    We give leave, treat the application as the hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence.

Brook Bernacchi, Esq., Q.C. & Miss Margaret Austin (Messrs. Kwan & Kwan) for Applicant.

A.A. Bruce, Esq. For Crown/Respondent.