THE QUEEN v. LI KAU

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JUDGMENT

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Silke, J.A.:

1. The applicant was convicted of the offence of robbery. The robbery took place on 4th October 1981 and it was of a nightclub hostess returning in the early hours of the morning to her home. The applicant was jointly charged with a second defendant on the charge sheet. The second named defendant had faced trial on the 16th April 1982; on the 19th April he changed his plea to guilty. The applicant had failed to appear for trial at the same time as the second defendant.

2. Mr. Westbrook, who appears at this hearing on behalf of the applicant, has advanced argument in relation to that which he submits is the unsatisfactory nature of the identification by the girl of this applicant as being one of the robbers. There was evidence before the trial judge in addition to the identification, that of the finding of the necklace of the girl taken in the robbery a very short time afterwards in the house of the applicant.

3. The applicant had given an explanation for that and the trial judge had disbelieved. At trial the girl was cross-examined out of a statement which she had given in the early hours of the morning almost immediately after the robbery. We have seen that statement and there are portions of it which were not put to her in cross-examination, an omission which seems somewhat surprising. They were therefore not drawn to the attention of the trial judge. There may well be an explanation for this but in that statement she had mentioned one culprit, not two. Had this been drawn to the Judge's attention, it might be that he would have taken a different view of her identification evidence and of the explanation given by the defendant. We cannot say. I will not comment further on the evidence because we think it proper that there should be a retrial.

4. We grant the application for leave to appeal, treat the hearing as the hearing of the appeal, allow the appeal, quash the conviction and direct a retrial on a fresh indictment.