HKSAR v. CHAN PING MAN

[ENGLISH TRANSLATION - 英譯本]

CACC 157/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 157 OF 2014

(ON APPEAL FROM DCCC NO 1141 OF 2013)

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JUDGMENT

Hon Chu JA (giving the judgment of the Court):

Introduction

1.  The applicant was convicted after trial by District Judge Gary Lam, (“the trial judge”) of two counts of robbery and two counts of theft.

2.  On 24 April 2014, the trial judge sentenced the applicant for each count of robbery to imprisonment of 5 years and 6 months, both terms were to run concurrently; and, for each count of theft to imprisonment of 1 year, both terms also to run concurrently, but 3 months out of each of these two terms were to run consecutively to the sentences of the two counts of robbery, making a total sentence of 6 years’ imprisonment.

3.  The applicant applied for leave to appeal against conviction.

4.  This was a case of robbery which took place on residential premises.  The victims were two sisters, Grace and Joyce.  The place where the crime was committed was their residence, a 3-storeyed villa in Kowloon Tong.

5.  The case occurred at about 4 am on 11 September 2013. At that time a male robber, armed with a knife, entered the victims’ home and robbed them of the properties referred to in the particulars of the two robbery charges, including the items belonged to Grace, namely 5 necklaces, 4 pendants, 20 Swiss Francs, one HSBC ATM card; and the items belonged to Joyce, namely HK$500, RMB¥10,000, Euro€100 and one HSBC ATM card.  The robber demanded that the two victims give him the PIN numbers of their bank accounts and subsequently withdrew $20,000 from each of their bank accounts, which sums were the properties involved in the two theft charges.

6.  The applicant was arrested on 19 October 2013.

7.  On 21 October 2013, Joyce identified the applicant from among the people who formed an identification parade as the robber who committed the robbery in her home.

8.  At the trial, the defence did not dispute that the two victims were robbed in their home by a robber and that the robber later stole their money from their bank accounts.  The issue raised by the defence was whether the applicant was the robber who perpetrated these crimes.  The crucial points in this case were whether the identification evidence of Joyce was admissible and whether her identification evidence was reliable so that the prosecution was able to prove that the applicant committed all the offences beyond reasonable doubt.

Evidence in thiscase

9.  The prosecution evidence in this case showed that at the material time Grace and Joyce were sleeping in their respective bedrooms on the second storey of the villa. Grace woke up and saw a man standing at the door of her room.  The man was wearing a cap, a breathing mask, black upper garment and a pair of trousers. His hands were in gloves.  He was 45 to 50 years old, holding an electric torch in his left hand and a chopper in his right hand.  This man said to Grace in pure Cantonese, “I am here for money.  Take out every valuable thing in your home.  I won’t hurt you”.  Grace gave him her ornaments.  She succumbed to his demand and surrendered 20 Swiss Francs and her ATM card to him, and also wrote down the PIN number of her bank account on a slip of paper and gave it to him.

10.  After that, as demanded by the man, Grace took him to the bedroom of Joyce.  She opened the door of the room, woke Joyce up and told her about the robbery.  The man said to Joyce, “ATM card, issued by the HSBC, can be used to withdraw $20,000”, and he added, “Don’t be afraid; I won’t hurt you people.”  Joyce said that she had to go upstairs to get the money.  Then the three of them went from Joyce’s bedroom to a room on the third storey.  Joyce surrendered some money in a foreign currency, some Renminbi and some Hong Kong money. Then the man told them to return to Joyce’s bedroom, and then he made a demand to Joyce for her ATM card. Joyce said that she had to go downstairs to fetch it.  Then the three persons left Joyce’s bedroom.  When Joyce picked up a handbag in the sitting room, Grace and the man were standing on the staircase.  Subsequently, they returned to Joyce’s bedroom.  Joyce surrendered to him an ATM card and a slip of paper on which she wrote the PIN number of her bank account.

11.  The man then told Grace and Joyce to go to bed to sleep.  He said that he would wait outside the room for his partner to withdraw the money and after that he would leave, but that they would not know when he left.  Grace and Joyce asked him to leave as soon as possible.  Joyce further said that she had to work in the morning and that she needed to sleep.  The man then took away the two sisters’ mobile phones.  He said that he would put them somewhere in the house and that they could look for them themselves after he left.

12.  Several minutes after the man went out of the bedroom, Joyce called him but there was no reply.  When they were sure that the robber had left, they called the police.

13.  On 21 October 2013, the police arranged for an identification parade to be held in a police station.  Detective Sergeant 10859 (PW3), before taking the applicant to the police station, obtained confirmation from him that he was willing to appear on the identification parade and that he did not require a lawyer to be present at the parade.  PW3 gave him a Notice To Suspect, which was a notice supplied to a suspect who was to attend an identification parade (exhibit P9).  The applicant indicated that he could read and after he read P9 for about two minutes, PW3 asked him whether he understood and was clear about its content.  The applicant answered, “Clear, understand” and signed on P9 to confirm that.

14.  The officer-in-charge of the parade was Chief Inspector Ng (PW4).  The whole process was video recorded.  The video recording (P4) was played at the trial.  The Identification Parade Book and its Chinese translation were produced as exhibits (P3 and P3A).  Before the identification procedure began, PW4 confirmed with the applicant that he did not require the presence of a lawyer and that he had read P9 and had received a copy of it.  The applicant told PW4 that he was clear about and understood its content and was willing to appear on the identification parade.

15.  When Joyce inspected the parade, she requested that each man on the parade be asked to say one sentence, “Don’t be afraid; I won’t hurt you people.”  PW4 asked her why she made this request. She replied that at the material time she had talked with the robber for a long time.  PW4 acceded to her request.  When it came to the applicant’s turn, Joyce asked him to say the sentence three times.  Subsequently, she reported to PW4 that she recognized that the applicant, who was standing at position 7, was the robber who robbed her and Grace that night.  When PW4 informed the applicant that he was identified, he said, “I have nothing to say.”

16.  At the trial, the applicant objected to the prosecution’s production of the evidence that Joyce picked him out from the identification parade.  The reasons he offered were that he provided his voice sample for identification by Joyce in circumstances under which he was unwilling to do so, and that to ask him to say that sentence was a violation of the right against self-incrimination and the right to remain silent.

17.  The trial judge adopted the alternative procedure in dealing with this issue.  The applicant elected to give evidence but did not call any witness.  The applicant’s evidence was that although he received P9 and signed on it, he did not read the content and did not know that he might be required to say something for the purpose of voice identification.  He said that although he was willing to take part in the identification parade, he was not willing to participate in the part involving voice identification.

18.  In relation to the general issue the applicant elected not to give evidence and he did not call any witness either.

Findings made by the trial judge

19.  In respect of the special issue, the trial judge found that both PW3 and PW4 were honest and credible and he accepted their evidence.  He found that although they did not read out the content of P9 to the applicant, they did issue a copy of P9 to the applicant and allowed him to read its content himself.  The trial judge rejected the applicant’s evidence.  He did not believe that he did not read P9 and was not aware of the rights enjoyed by a suspect who attended an identification parade.  The trial judge found that the applicant had read P9, that he was aware of its content and that he had learnt from paragraph 4(f) thereof[1] that in the course of the identification parade, he might be asked to speak for the purpose of hearing his voice.  The trial judge also rejected the applicant’s assertion that he was not willing to provide his voice sample for the purpose of identification.  The trial judge pointed out that even though the police did not expressly tell the applicant that he could refuse to comply with the request for the provision of his voice sample, judging from the fact that he had made request two times concerning the arrangements for the holding of the identification parade (namely: (1) to pull down the shower caps worn by members of the parade in order to cover their ears; and (2) to cover their left eyes), it could be seen that he knew that he had the right to challenge or make requests concerning the actual arrangements for the holding of the identification parade.  The trial judge found that if the applicant had not been willing to say anything to let the witness to identify his voice, he would surely have made it known and would have refused to do so.  However, when he was asked to speak, he did not object; and when he was informed that he was identified by Joyce, he did not make any protest.  The trial judge found that the applicant voluntarily took part in the identification parade procedure, including the uttering of the sentence in order that the witness could try to identify his voice.

20.  Furthermore, having considered paragraphs 31 and 35 of McFadden v H M Advocate [2009] HCJAC 78, the trial judge found that the sentence which the applicant was asked to say in the course of the identification parade did not constitute any form of confession, that the content of the sentence would not incriminate him, and that therefore there was no violation of the right against self-incrimination or the right to remain silent.

21.  The trial judge did not agree that because PW4, in the course of the identification parade, did not ascertain beforehand whether every member of the parade spoke with roughly the same accent and because most of the people failed to say the sentence in question accurately, the identification parade was conducted unfairly and the applicant suffered an injustice.  The trial judge considered that there was no reason for him to exercise his discretion to reject the evidence concerning the conduct and the result of the identification parade. He ruled that the evidence relating to that part and exhibits P3, P3A and P4 were admissible evidence.

22.  As for the general issue, the trial judge found that the only reasonable inference was that the robber who entered Grace and Joyce’s home to rob was also the culprit who subsequently used their ATM cards and their PIN numbers to withdraw $20,000 cash from each of their accounts.

23.  In respect of the issue as to whether the applicant was the robber, the trial judge pointed out that the only piece of evidence which was against the applicant was the result of Joyce’s inspecting the identification parade, and that therefore the factual issue concerning the credibility and reliability of the identification made by Joyce was the linchpin of this case.

24.  The trial judge reminded himself of the legal principles laid down in R v Turnbull [1976] 63 Cr App R 132, and of the dangers of solely relying on identification evidence to convict.  He also stated that when he considered evidence of identification by voice, he proceeded in accordance with the relevant direction given in a jury trial[2].

25.  The trial judge commented that the circumstances in which Joyce observed the face of the robber that night were less than satisfactory, because the robber was wearing a cap and a breathing mask, the lighting at the scene was insufficient and Joyce did not look closely at the face of the robber for a significant length of time.  However, at the same time he pointed out that in the course of the robbery, which lasted 25 to 30 minutes, Joyce kept on talking with the robber. At that time, the environment was quiet without any interfering noise, so that Joyce was able to hear clearly what the robber said.

26.  The trial judge analysed the evidence which underlay Joyce’s identifying the applicant as the robber.  He noticed that Joyce satisfied herself that four features, namely the height, build, right eye and voice of the applicant all matched those of the robber before she concluded that the applicant was the robber who robbed them in the house that night.  The trial judge also took into account Joyce’s evidence that she was a professional drama director and actor, that she had studied in a special course about voice, and that therefore she was accustomed to engage in various activities in a dark environment (such as the backstage) and was particularly sensitive to sounds, so much so that she was capable of analysing and distinguishing the vocalization, pronunciation, intonation and tone of different people. Moreover, because her job involved choosing different people to play different roles, she was used to recognizing and remembering the voices of strangers and their relevant special features.  The trial judge also mentioned that Joyce said in her evidence that in the course of the identification parade, when the applicant uttered the sentence specified by her, the spontaneous bodily reactions which she experienced (ie her body trembled and her heart thumped) strengthened her belief that the applicant was the robber who entered her house to rob.

27.  Having analysed and examined Joyce’s evidence, the trial judge was satisfied that the reasons she gave for being able to identify the applicant were sufficient, logical and reasonable.  Therefore, he found that the credibility and reliability of her identification evidence was beyond doubt and he accepted it entirely.  As a result, he held that the applicant was undoubtedly the robber who robbed the victims in their house and the culprit who stole the money from their bank accounts, and he convicted him of the four offences accordingly.

Grounds of appeal

28.  The applicant put forward two grounds of appeal as follows:

(1)     The prosecution violated the common law principle against self-incrimination and the defendant’s right to remain silent in that the evidence as to voice identification which took place during the identification parade was elicited without the consent of the applicant.  The trial judge committed an error of law in finding that such evidence was admissible.

(2)     The trial judge, while recognizing that the evidence concerning identification by appearance was unsatisfactory, relied on evidence of identification by voice and found that the identification evidence in the present case was sufficient to support a guilty verdict.  In doing so, he overlooked the fact that voice comprised only 55% of the totality of Joyce’s identification evidence, thusthe guilty verdict was not reached where there was no reasonable doubt,and the conviction was unsafe.

Ground of appeal (1)

29.  In support of ground of appeal (1), Mr Ma, counsel for the applicant, advanced two arguments.  His first argument was that the sentence (“Don’t be afraid, I won’t hurt you people.”) which the applicant was asked to say in the course of the identification parade, was one of the utterances which the robber uttered to the witness during the robbery.  To ask every member of the parade to say this sentence was to let the witness to make comparison to see if any person’s voice was similar to the robber’s.  According to him, this was tantamount to take a breath sample, a blood sample or a DNA sample from a suspect for the purpose of examining it to see whether it matched a sample collected at a scene of crime.  Mr Ma further said that there were stringent requirements under the law about how to collect intimate samples from a suspect, and that the consent of the suspect was required, otherwise it was necessary to obtain authorization from a high ranking police officer or a judicial officer before this step could be taken; but that at present in Hong Kong there was no legal provision which governed the procedure of taking voice samples from a suspect.  Mr Ma’s submission was that if a suspect was just asked to say some words or phrases which had no relevance to the case under investigation for a witness to hear his accent and intonation, then it might not constitute a confession; but that if, as what happened in the present case, a suspect was asked to say what a culprit involved in the case had said, then it was equivalent to a reconstruction of the crime, and that it necessarily constituted a confession.  For this reason, he asserted that to ask the applicant to say the words in question in order to collect his voice sample to let the witness to identify it without informing him that the identification parade included the voice identification part was a breach of the legal principle against self-incrimination and a violation of the right to remain silent.

30.  In our judgment, this argument was the result of overlooking the factual findings made by the trial judge and the nature of the identification parade held in the present case.  The trial judge made the following findings of fact in relation to the special issue: (1) The applicant had read exhibit P9 and was clear about and understood its content, including paragraph 4(f); (2) He therefore knew that during the identification parade he might be asked by a witness to speak for the purpose of hearing his voice; (3) The applicant clearly understood what rights he had in the course of the identification parade, including the right to give opinions and make requests about the relevant arrangements; and (4) When he was asked to speak in order to let Joyce hear his voice, he did not raise any objection, make any challenge or protest; nor did he complain in any way when he was informed of the result of the identification.  Therefore, the trial judge drew the conclusion that the applicant voluntarily took part in the identification parade, including the saying of certain words to let a witness hear his voice.

31.  The applicant’s ground of appeal made no reference to the above findings of fact (1) to (4) made by the trial judge.  Mr Ma’s submission did not address the conclusion drawn about the fact that the applicant voluntarily took part in the identification parade and voluntarily said those words to let the witness hear his voice.  Mr Ma obviously understood that these factual findings were made on the basis of the trial judge’s assessment and judgment of the trustworthiness of PW3, PW4 and the applicant as witnesses and the credibility of their evidence.  A well-established legal principle is that an appellate court should not lightly interfere with the assessment made by the trial judge in respect of the witnesses and the evidence and the findings of fact derived from such assessment.

32.  In view of the above-mentioned findings of fact made by the trial judge, Mr Ma’s submission that prior to the carrying out of the voice identification, the applicant had not been informed that there would be such an arrangement and he had not consented lacked factual support.

33.  In addition, the procedure in which the applicant took part was an identification parade, not a procedure which involved no visual identification but purely about voice identification.  Joyce asked members of the parade to say something to let her hear their voice. Essentially, such a request was no different from a request made by a witness when he asked members of the parade to show him a certain side of their faces or bodies, their hands, their legs or other parts of their bodies for him to make identification.  That which Joyce relied on to pick out the applicant was not the content of what he said, but the special features of his voice, including the volume, pronunciation, intonation and tone.  The applicant was only asked to provide a voice sample, not substantive information in relation to certain questions.  Such being the case, the evidence obtained was the applicant’s voice, not the content of what he said.  Mr Ma argued that to ask the applicant to say what the robber said during the commission of the crime was equivalent to reconstructing the crime and that it constituted a confession.  We consider that it was a wrong analogy.  The sentence said by the applicant during the identification parade was said at the request of Joyce. His saying the sentence was not equivalent to his admitting that the robber did say the sentence during the commission of the crime, and still less was it equivalent to his admitting that he did say the sentence to Joyce.  The content of the sentence would not constitute evidence adverse to the applicant.

34.  In McFadden v HM Advocate [2009] HCJAC 78, the two appellants were convicted of assault and of murder.  One of the appellants took part in an identification parade, during which two witnesses asked members of the parade to say something which other [sic] witnesses heard an assailant say at the material time.  Subsequently, both witnesses identified the appellant.  The appellant submitted that the trial judge should not have admitted evidence concerning the identification parade because: (1) There was no legal foundation for conducting voice identification during an identification parade and there was a lack of proper procedural safeguards; and (2) The practice of requesting a suspect to speak during an identification parade was a violation of the right to silence and the right not to incriminate oneself.  The High Court of Justiciary of Scotland dismissed the appellants’ appeal.  In relation to ground of appeal (1), the Court held that the practice of requesting members of an identification parade to say some words or phrases for voice identification during the parade was well established, and the possibility of such a request being made was referred to in the notice supplied to a suspect who took part in the identification parade, and that the European Court of Human Rights had held that the use of voice samples obtained during the course of an investigation of a crime was a legitimate means of identifying an individual.  As for ground of appeal (2), the Court held that the right to silence and the right not to incriminate oneself related to the right of a suspect not to be compelled to answer substantive questions concerning a crime, but that the taking of a voice sample did not focus on substantive content, but on the timbre of a voice, intonation, accent, pronunciation and other features sufficient to identify an individual who said certain words or phrases, that such procedure operated in the same way as making identification by relying on facial features, hair colour, build, fingerprints, and DNA taken from blood, hair or skin samples, and that the use of voice samples as evidence in a criminal trial did not contravene the right to silence or the right not to incriminate oneself [3].

35.  In our judgment, the analysis in McFadden v HM Advocate is also applicable to the present case.  As pointed out by Mr Tam, SC, acting for the respondent, voice is one of the factors by which a person can be identified.  All along, a witness who views an identification parade can ask members of the parade to say something for him to make voice identification, and this is a reasonable request.  It is expressly stated in paragraph 4(f) of the notice issued to a suspect who takes part in an identification parade that in the process he may be asked by a witness to speak for the purpose of hearing his voice.  The applicant read the notice, clearly understood its content and what rights he had, and after that he was willing to take part in the identification parade and was also willing to participate in the voice identification part which took place in the course of the identification parade.  In these circumstances, the applicant suffered no unfairness when he and other members of the parade were asked to say those words and there was no violation of his right to silence or his right against self-incrimination.

36.  The second argument advanced by Mr Ma was that the use of Joyce’s voice identification evidence was against procedural justice.  He submitted that most of the members of the identification parade could not utter the sentence specified by Joyce with complete accuracy.  On that day, the parade consisted of nine people, including the applicant.  Except actor number 2, everyone said, “Ngor Mm Wui Seung Hoi Nay Ge”（I won’t hurt you 我唔會傷害你嘅）, when he was supposed to say “Ngor Mm Wui Seung Hoi Nay Day Ge”（I won’t hurt you people 我唔會傷害你哋嘅）.  Apart from that, two actors pronounced the last character “嘅”（Ge）as “呀”（Ah）and “㗎”（Ga）respectively; and when the applicant said the sentence for the second time and the third time, he left out this character.  Mr Ma also complained that before the identification procedure began, PW4 failed to ensure that all members of the parade spoke with a similar accent, and that was unfair to the applicant.

37.  The trial judge had taken this submission into account when he gave his verdict. He remarked that the complaint about the inability of members of the parade to utter the sentence in question with complete accuracy was fault finding, and that although PW4 did not ascertain beforehand with what accent each person spoke, from his viewing the video recording, he noticed that every person spoke pure Cantonese and no unfairness was created against the applicant[4].

38.  As stated above, the focus of voice identification is on letting a witness hear the special features of the voices of members of the parade.  Mr Ma complained that PW4 did not deal with the problem that the applicant and the actors failed to accurately utter the specified sentence, but he did not point out in what way the special features of the voices of these people, and the accuracy and fairness of the witness’s voice identification was affected by these differences.  It is noteworthy that when the defence were cross-examining Joyce, it was put to her that the failure of the people to accurately utter the sentence she asked them to utter would render the voice identification inaccurate.  Joyce clearly voiced her disagreement with that proposition.  She explained in detail that she judged whether a person’s voice matched the voice of the robber by referring to the timbre, volume, tone, method of breathing, pronunciation, and the rising and falling rhythm as revealed in the utterance of that person (see 89K-S, 90J-Q and 91 H-J of the appeal bundle).  We are of the view that to say “Nay” (you你) instead of “Nay Day” (you people你哋), and to pronounce “Ge”（嘅）as “Ah”（呀）”, “Ga”（㗎）or leave it out altogether are only minor differences, which had no obvious or perceptible influence on the special features of the voice of any person, and had created no observable unfairness in the process of the identification parade, including the voice identification part.

39.  Regarding the complaint that PW4 did not ascertain beforehand whether members of the parade spoke with a similar accent, Mr Tam correctly pointed out that in the guidelines concerning the holding of an identification parade presently in force in Hong Kong, there was no arrangement or requirement specially designed to cater to the request made by a witness during the process for making voice identification. Generally speaking, the police officer in charge of the identification parade has the duty to ensure that there are no obvious differences among members of the parade.  Since a witness who comes to participate in the identification parade procedure mainly depends on visual identification, when choosing people to form the parade, it is mainly focused on their appearances and visible physical features.  We think that if it is to conduct a voice identification, the ideal way to proceed is of course to ensure that members of the identification parade speak with roughly the same accent.  However, this is dependent on whether the circumstances permit.  Ultimately, what the court has to consider is whether the trial will be rendered unfair if the relevant identification evidence is admitted, so that the court should exercise its discretion to exclude it.

40.  In the present case, when PW4 explained to Joyce the procedures and facilities for holding an identification parade, she asked whether she could request members of the parade to say something, but at that moment she was just enquiring whether she was allowed to do that; she did not specifically make such a request.  It was only when she was viewing the parade did she make up her mind that she would like to ask them to say something in order to hear their voices (see 87B-C of the appeal bundle).  In these circumstances, it is understandable that before the identification parade began PW4 did not check with what accent each member of the parade spoke.

41.  The evidence of both Grace and Joyce was that the robber spoke pure Cantonese.  In her evidence Joyce carefully and fully explained how she could be sure that the applicant’s voice matched the robber’s.  She pointed out that the robber spoke in a low and deep tone, that he spoke without enough breath, that he could not say a sentence in full without pausing, that his voice was not clear, that he spoke without much modulation and that the speed of his speech was low (58U to 59O of the appeal bundle).  She said that during the identification parade she still remembered clearly the robber’s voice (60G of the appeal bundle).  In giving his verdict the trial judge stated that every member of the parade spoke pure Cantonese and no problem related to accent arose.  The applicant did not appeal against this finding of fact.  Mr Ma did not challenge this finding in his submission, nor did he specify in what way the applicant actually suffered any unfairness as a result of PW4’s failure to ascertain beforehand with what accent each member of the parade spoke.

42.  Looking at all the relevant evidence, the fact that before the voice identification began PW4 did not take any step to ensure that members of the identification parade spoke with roughly the same accent did not result in any unfairness in the procedures of the identification parade or cause the applicant to suffer any actual unfairness.  The trial judge’s decision to admit this part of the identification parade evidence did not create any unfairness in the trial.

43.  Ground of appeal (1) of the applicant is not established.

Ground of appeal (2)

44.  In relation to ground of appeal (2) the gist of Mr Ma’s submission was that the trial judge did not fully follow the guidelines laid down in R v Turnbull about how to deal with identification evidence, that when he made his findings he failed to point out the weaknesses in Joyce’s observation and identification evidence of the robber’s height, build, right eye and voice, that his analysis of the evidence was cursory, and that therefore the conclusion he reached was unsafe.

45.  The focal point of the legal principles expounded in R v Turnbull is that when the case against a defendant depends wholly or substantially on the correctness of a witness’s identification of the defendant which the defendant alleges to be mistaken, then the judge should warn the jury of the need for caution before convicting the defendant in reliance on the identification evidence, because an honest and convincing witness could make a mistaken identification.  The judge should further direct the jury to examine closely the circumstances in which the identification was made and should remind the jury of any weaknesses in the identification evidence.  In a number of cases (for example: The Queen v Cheung Ping Kwong (unreported) CACC 149/1989; The Queen v Pham Van Hai (unreported) CACC 127/1990) the Court of Appeal held that it was not necessary for a District Judge, in making his findings, to give himself explicit directions about how to assess identification evidence in the terms of R v Turnbull, but that he should show that he had been mindful of the legal principles in R v Turnbull concerning the dangers inherent in relying on identification evidence.

46.  In this case, the trial judge said in paragraph 44 of the Reasons for Verdict:

“As regards how I should deal with the identification evidence, I bore in mind the legal principles laid down in Turnbull. I also reminded myself of the dangers inherent in relying solely on identification evidence. As far as the evidence of identification by voice is concerned, I proceeded according to the relevant direction given in a jury trial.”

47.  From paragraphs 40 to 43 the trial judge analysed Joyce’s evidence about her visual identification and voice identification.  He was aware that there were unsatisfactory areas in Joyce’s observation of the face of the robber, ie the robber was wearing a cap and a breathing mask; the lighting at the scene was insufficient and Joyce was not able to look at the robber’s face for a significant length of time.  On the other hand, he pointed out that at the material time the surrounding environment was quiet, in the course of the robbery the robber kept on talking with the victims, so Joyce could clearly hear the voice of the robber and notice its special features. The trial judge was also mindful of the fact that owing to the nature of her work and her training in a course about voice, Joyce was capable of seeing things in places where there was insufficient lighting and recognizing the special features of the voices of strangers.

48.  The trial judge did not spell out in the Reasons for Verdict the guidelines in R v Turnbull in the way in which a judge would direct the jury, but he did not need to do so.  The crucial consideration is whether he had in mind the legal principles contained in the Turnbull guidelines. It can be seen from the Reasons for Verdict that the trial judge took notice of the dangers inherent in relying on identification evidence to convict a defendant, and knew that he had to carefully consider the relevant evidence. Although he did not enumerate one by one the evidence about Joyce’s observation at the material time of the appearance of the robber and the special features of his voice when he spoke, he was clearly aware of the strengths and weaknesses in the evidence of visual identification and that of voice identification.  We do not agree with Mr Ma’s submission that the guilty verdict was unsafe because the trial judge did not fully follow the Turnbull guidelines.

49.  Mr Ma further submitted that there were defects in Joyce’s identification evidence, but that the trial judge did not consider them.  Joyce’s evidence was that she was sure that the applicant was the robber on the basis of four features: voice, right eye, height and build.  In respect of the feature of voice, Mr Ma submitted that PW4 did not check before the identification parade began what dialect the applicant and the actors spoke, and that the applicant and the actors (except number 2) could not accurately say the specified sentence, but the trial judge failed to seriously consider these defects. When we were dealing with ground of appeal (1), we already found that these complaints were not substantiated (see paragraph 36 to 42 above).  We are not going to repeat that.

50.  Another complaint raised by Mr Ma was that the trial judge admitted and used evidence about Joyce’s physical reactions to support her voice identification.  He said that in the absence of any support from any scientific or expert evidence, such approach was risky because there could be various reasons for a particular physical reaction.

51.  The evidence relevant to this submission originated from the explanation given by Joyce during her examination-in-chief about why she asked the applicant to repeat the specified sentence.  She said it was because even though when the applicant uttered the sentence the first time, she already found that his voice was the same as that of the robber kept in her memory, for the sake of caution and for the avoidance of any mistake due to nervousness, she asked him to repeat the sentence.  Joyce went on and said, “In addition, from the very moment I heard his voice again, I trembled all over and my heart pumped fast.  The reactions were the same as those I experienced when just now I heard his voice again.  I therefore asked him to say it the third time, for I wanted to be 100% sure.”  (61Q-R of the appeal bundle).  When Joyce was being cross-examined in respect of this part of her evidence, she said, “When I kept on asking [him] to say that, the feeling in my heart, that’s the pumping of my heart and the spontaneous reaction of my body, became intensified and stronger.  This could support, could reinforce me.  I mean even my body could spontaneously reflect that.  What I experienced at that moment really came from my emotional memory and sensory memory.  Yes, it was a kind of supporting...” (91M-O of the appeal bundle).

52.  In analysing Joyce’s evidence about how she could identify the applicant, the trial judge said, “Joyce considered that when the defendant uttered the sentence, the volume, tone and pronunciation matched those of the robber perfectly, and in addition, there were the spontaneous reactions which she experienced when she heard him say the sentence (her body trembled and her heart thumped), so she was sure that the defendant was the robber who appeared that night.” (paragraph 43 of the Reasons for Verdict)

53.  In her evidence Joyce mentioned that when she heard the applicant say the sentence requested by her, her body reacted spontaneously, ie her body trembled and her heartbeat accelerated.  That was her explanation as to why she asked the applicant to repeat the sentence.  She said that these spontaneously arisen emotional reactions reinforced her belief that the voice of the applicant matched that of the robber kept in her memory.  It was not her evidence that she relied on these spontaneous physical reactions to help her conduct the voice identification, and the trial judge in giving his verdict did not say that her spontaneous physical reactions formed part of the basis on which she identified the applicant.  We consider that this complaint from Mr Ma sprang from his misunderstanding of Joyce’s evidence and the trial judge’s reasons for verdict.

54.  As for his right eye, which was another identifying feature, the defects pointed out by Mr Ma were that at the material time Joyce had only stolen a glance at the eyes of the robber which lasted only a short moment of time, that she could only give a simple description of his right eye, that she did not notice whether the robber’s left eye had any special feature, and that she did not notice whether he was wearing spectacles.

55.  Joyce’s evidence was that in the course of the robbery, which lasted 25 to 30 minutes, she had looked at the face of the robber in a face-to-face position for about five seconds (55J of the appeal bundle), and that at the rest of the time she had seen the face of the robber four or five times, not in a face-to-face position, each time for about three seconds (55M, 56B-J, 57K-P and 58A-C of the appeal bundle).  She also mentioned one occasion on which she walked and got to a position in front of the robber, where she stole a glance at him at close range.  At that moment the lighting was quite good and she clearly saw the right eye of the robber (48B-J, 48R-T of the appeal bundle).  Her description of his right eye was that it was small and slender, like a piece of thread and expressionless, and that there was a bulging eye-bag (58G, 74H of the appeal bundle).  When being cross-examined, Joyce explained that she was looking for a chance to have a look at the robber.  When she saw his right eye at a short distance, she focused on his eye; because of that she did not pay attention to whether he was wearing spectacles, but she had about two seconds to look clearly and closely at his right eye (73A-R, 75M-V of the appeal bundle).

56.  In view of the circumstances in which the crime occurred and the fact that the robber was wearing a cap and a breathing mask, Joyce’s observation of the face of the robber must have been subject to certain limitations.  The trial judge in giving his verdict did not overlook this point.  He noticed that Joyce’s visual observation was not the most satisfactory type.  On the other hand, even though Joyce could see the robber’s right eye only when she stole a glance at him, the observation was done at a close distance when the lighting was quite good.  It was clear and close observation.  There was evidential basis for the trial judge to accept her identification evidence about the right eye. Moreover, Joyce observed that the robber’s right eye was small and slender, like a piece of thread.  She did not describe the eyelid, the white of the eye or the pupil.  There was nothing to be criticized.  We do not agree with Mr Ma’s criticism that her description of the robber’s right eye was too simple.

57.  Turning now to the height of the robber, which was also an identifying feature, Joyce gave evidence that the robber was taller than her by 4 cm.  Mr Ma complained that when Joyce gave evidence she forgot whether the actors on the identification parade were wearing shoes or not, and that the height of the heels might affect the height of the robber and the actors, and that therefore Joyce’s identifying the applicant as the robber by relying in his height was unreliable and might be mistaken, but that the trial judge did not consider this defect.

58.  We do not accept this submission.  First of all, when Joyce was asked during cross-examination about the shoes worn by the robber during the commission of the crime, she described them as dark colour shoes and “heelless”, and it was because he did not make any sound when he was walking (77A, M-O of the appeal bundle).  The defence did not put it to her that this observation was incorrect or unreliable.  Therefore, in the present case there was no evidence which showed that the shoes worn by the robber could affect Joyce’s observation of the height of the robber.  Secondly, although when Joyce gave evidence she forgot whether the actors on the parade were wearing shoes or not, in this case there was no evidence which showed that during the identification parade only the applicant was wearing shoes while the actors were not, nor was there evidence that the heels of the shoes the applicant wore were higher than those of the shoes worn by the actors so that Joyce’s judgement as to height during the identification parade was affected.

59.  Finally, we come to build, which was yet another identifying feature.  Joyce’s description was that the robber was of medium build and not muscular.  Mr Ma submitted that the thickness of the clothes worn by a person could impact on other people’s impression of his build.  However, Joyce’s evidence was that the robber was not wearing loose-fitting clothes, and that at the material time the weather was warm and somewhat hot (78M-Q, 79F-K of the appeal bundle).

60.  Mr Ma also submitted that Joyce said in her evidence that she noticed that when the applicant was standing in a line with other people, he deliberately put on the appearance that one of his shoulders was higher than the other one, but that PW4 did not see this.  He said the evidence of these two witnesses contradicted each other in this respect and it was questionable whether Joyce really saw that the applicant stood there with one of his shoulders higher than the other.  Mr Ma criticized the trial judge for his failure to address this discrepancy and defect and for his not giving the benefit of the doubt to the applicant.

61.  We must first point out that whether the applicant was standing with one shoulder higher than the other was a matter about his standing posture and did not have any necessary connection with Joyce’s use of his build as one of the identifying features.  Furthermore, although during cross-examination the defence did ask Joyce the question why her identification would not be affected by the fact that the applicant was standing with one of his shoulders higher than the other one, whereas the robber’s shoulders were not like this, it was not put to her that when she was viewing the parade, the applicant did not stand with one shoulder higher than the other, nor was it put to her that her observation in this respect was not accurate, or that her evidence was untrue.  The raising of this point by the applicant during the appeal was actually an attack on Joyce and the credibility of her evidence.  However, judging from the evidence of this case as a whole, the discrepancy between the evidence of Joyce and that of PW4 about the standing posture of the applicant when he was standing in a line with other people did not affect Joyce’s integrity as a witness, nor did it undermine the credibility and reliability of her identification evidence.  This is because standing posture was not one of the features she relied on for making the identification, and also because in her evidence there was clear and detailed description and explanation about the four identifying features which she relied on.  There was a sound evidential basis on which the trial judge could accept Joyce’s evidence, including her identification evidence, and rely on such evidence to reach the guilty verdict.  In conclusion, we do not agree that there were serious defects in Joyce’s identification evidence which the trial judge did not take into consideration so that the guilty verdict was rendered unsafe.

62.  Under ground of appeal (2) Mr Ma further submitted that Joyce identified the applicant by relying on four features, namely his voice, his right eye, his height and his build, that in her evidence she said the weight she assigned to them was respectively 55%, 20%, 12.5% and 12.5%, and that she concluded that the applicant was the robber only when all four features matched those of the robber.  According to Mr Ma, this showed that Joyce’s identification evidence was not entirely certain, so there was bound to be doubts when it was used as the basis of the conviction.

63.  We consider that this submission is wholly untenable. The circumstances in The Queen v Yip Moon Ting & Another [1984] HKLR 443, which Mr Ma prayed in aid, were utterly different from those of the present case.  In that case, when the witness was under cross-examination, he indicated that when he identified the second applicant of that case as one of the robbers, he was 60% to 70% sure; and in re-examination he further said he was not able to be 100% sure.  In view of this, the Court of Appeal remarked in the judgment (446B-C) that in making identification a witness was either sure or he was not, and could not be 60% to 70% sure.  In the present case, Joyce repeatedly said that she was totally sure that the applicant was the robber and that she had made no mistake about it.  The 55%, 20%, 12.5% and 12.5% only represented the respective weight she assigned to the four identifying features which she relied on in making the identification.  In The Queen v Sung Kwok Man & Another [1994] HKCLR 164, the Court of Appeal held that an identification could be founded on more than one human sense and that an identification made in this way could be more reliable than one which depended on one sense alone. In that case, during the course of an identification parade, one of the victims said that she was not sure whether the person who raped her was on the parade, she asked each member of the parade to say some words which one of her rapists said when she was forcibly taken away by them.  Having heard them utter these words, she identified the second applicant.  The Court of Appeal held that the trial judge had correctly admitted such identification evidence and that it was not necessary for the trial judge to give the jury a separate Turnbull direction in respect of the voice identification.

64.  The circumstances in the present case were similar to those in Sung Kwok Man.  Joyce similarly relied on more than one human sense in making identification.  Her evidence was that in making identification she mainly relied on voice, and for the rest she relied on visual observation. There was nothing wrong for Joyce to found her identification on this basis. Indeed, its accuracy and reliability could be higher than an identification founded on what was seen or what was heard alone.

65.  The applicant’s ground of appeal (2) is not established either.

Conclusion

66.  For the above reasons, we hold that the application for leave to appeal against conviction shall be dismissed.

Translated by the Judgment Translation Unit of the Judiciary and vettedby Mr. P. Y. Lo,Barrister-at-law.