R. v. CHENG KWAN

IN THE COURT OF APPEAL

1996, No. 175
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction.

2. The applicant faced one count of robbery in the High Court. After trial before Burrell J and a jury the applicant was convicted on 19 January 1996 on a unanimous verdict.

3. The victim of the robbery was a Miss Law. On 17 June 1995 she went to the Yick Cheong Building on King's Road, Quarry Bay, to visit her grandmother. It was about 3.20pm. She entered an empty lift and as she pressed the button for the 9/F a man entered the lift. She had noticed the man beforehand in the street because of the T-shirt he was wearing. The man then pressed the button for the 11/F, put on a pair of dark glasses and declared robbery. As the lift started to go up, he hit her in the eye, mouth and head. Her shoulder was also injured, possibly by the strap of her bag. The robber told her to remove her necklace, ring and bracelet. Whilst this was going on, the lift arrived at the 9/F and then the 11/F, the lift doors opening and closing each time. The lift then travelled further up and when it stopped at a higher floor and the doors opened there were two men waiting outside. One of them was a young man Mr Wong who went to Miss Law's assistance. He too was beaten by the robber who then ran down the staircase.

4. The sole issue before the jury was identity. Was the applicant the robber?

5. 20 days after the robbery, on 7 July 1995, an identity parade was held at the Shaukeiwan Police Station when both Miss Law and Mr Wong separately identified the applicant as the robber.

6. Counsel's submissions on behalf of the applicant focusses on three points:

(1) She submits that Miss Law's identification of the robber was unreliable. Miss Law only had a "fleeting glance"; the robber was wearing dark glasses inside the lift; his eyes were concealed. Miss Law had testified to the effect that when she looked at a person generally she looked at the eyes.

(2) Counsel also submits that Miss Law's testimony in court was unreliable. Miss Law had insisted in evidence that the persons in the identification parade line-up were not wearing sunglasses whereas in fact they were.

(3) Lastly, counsel submits that Mr Wong's identification of the robber was likewise unreliable. At the identification parade he had at first said that the robber was standing at position at No. 9, and then immediately corrected himself by saying:

"Sorry, it should be the other side, No. 1."

7. Counsel's submission is that with such intrinsic weaknesses in the evidence the case should have been withdrawn from the jury.

8. We cannot agree. The applicant had been separately identified at an identification parade by two witnesses less than three weeks after the robbery. The weaknesses of the identifications, as alleged by counsel, were for the jury to weigh.

9. The question then arises: Did the judge sufficiently direct the jury concerning those weaknesses?

10. As regards point (1), the judge specifically reminded the jury that as soon as the robber got into the lift, he put on sunglasses and they remained on until the robber escaped and Mr Wong lost sight of him as he ran down the staircase.

11. As to point (2), the judge could, perhaps, have put more emphasis upon Miss Law's erroneous recollection as to what had happened at the identification parade in July 1995 when she testified in court. What the judge said to the jury was this:

"Chief Inspector TO's evidence ... was that all the men on the parade did wear sunglasses. Miss Law had said that they had not. Mr WONG, in cross-examination, said that indeed he thought they all had been wearing sunglasses."

12. This gives the impression that there was a conflict of recollection between three witnesses whereas, in truth, Miss Law had simply been mistaken. Without a doubt, the men at the line-up were all wearing sunglasses. This, however, is a minor matter of emphasis and could not possibly render the verdict unsafe and unsatisfactory.

13. As to point (3) this was plainly a slip of the tongue on Mr Wong's part. The numbers 1 and 9 were at the extremities of the line-up. When Mr Wong made the mistake, he immediately corrected himself. There is no suggestion that anyone had prompted Mr Wong to say "Sorry, it should be the other side, No. 1".

14. In the course of the argument, a matter not raised in the grounds of appeal was ventilated: The question of "dock identification". At the end of her examination-in-chief Miss Law was asked by the prosecutor to look around the court and see if there was anyone in court she recognised. She pointed out the applicant, the only person in the dock apart from the uniformed Correctional Services officers, as the one who had robbed her in June 1995.

15. The judge, in his summing-up, made a passing reference to the dock identification by saying:

"She said she spotted him right away [at the identification parade] and recognised him, and the defendant in court was that man."

16. There was nothing improper in the prosecutor asking Miss Law whether she recognised the robber in court. It might even have appeared odd to the jury if that was not done. On the other hand, the evidential weight of the "dock identification" was virtually nil, since the applicant was the only accused person in the dock. All that can be said is that her purported recognition of the robber in court is consistent with the identification she had made in July last year.

17. In these circumstances, it would have been preferable if the judge had told the jury to ignore the dock identification, relying only upon such other evidence as there might have been on the issue of identity. Dock identifications have none of the safeguards of a properly conducted identification parade where, as far as practicable, the identity of the suspect is not highlighted.

18. None of the matters ventilated in the course of the hearing lead us to conclude that the jury's verdict is unsafe or unsatisfactory. The application is accordingly dismissed.