THE QUEEN v. CHAN CHUN MAN

[Identification unsafe - blood as corroboration - section 65C of Criminal Procedure Ordinance.]

Judgment delivered on: 12 May 1986

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JUDGMENT

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Roberts, C.J. -

Preliminary

1. The applicant seeks leave to appeal against his conviction and sentence on four counts.

2. The first, second and fourth counts related to the same incident on 31st January, 1983 when, according to the Crown case a Mrs. MOK Yuen-ho ("Mrs. Mok") was the victim of robbery, indecent assault and wounding, with intent, in her home in Flat 307, Block O, Telford  Gardens, Kowloon.

3. On the last count, the defendant was convicted, of the robbery of CHEUNG Yuk-fong("Mrs. Cheung") on 28th April, 1983, in her home at Flat 1102, Block O, Telford Gardens, Kowloon.

4. For these offences the defendant was sentenced to 15 years' imprisonment on the first count, 4 years' on the second, 6 years' on the fourth and 8 years' on the fifth. The sentences on the second and fourth counts were ordered to run concurrently with that on the first count. The sentence on the fifth count was to begin ten years after the start of the sentence on the first count. The effect, therefore, was to impose upon the defendant a total of 18 years' imprisonment.

Summary of first incident

5. The Crown case in relation to the first three counts on which the defendant was convicted relied almost entirely upon the evidence of Mrs. Mok. According to her, on the 31st January, 1983, a man knocked on the door of her flat, announced that he lived at Flat 306, which is the next flat to the one in which she lived, and asked to borrow a mahjong board. She lent him the board and saw him standing outside Flat 306, though she did not see him enter it.

6. A few minutes' later, the man returned the mahjong board to her. When she opened the door, he pushed his way into her flat, threatening her, with a knife and demanding money. When she said her purse was in the bedroom he told her to fetch it. He then pushed her through into the bedroom, where she, produced a purse containing $700, which she gave to him.

7. The man blindfolded her, removed her clothing and pushed her onto the bed. He ejaculated onto her, after touching her body and told her to replace her clothing. After she did so, he put a rope round her neck and strangled her until she became unconscious. When she recovered her senses, the man had gone, and she made a report to the police.

8. These incidents took place from about 2.40 p.m onwards, in broad daylight. After being blindfolded, she had no further opportunity to observe her attacker.

9. Her clothing was taken by a police officer and was subsequently examined by a forensic pathologist who found traces of semen on the trousers which she had been wearing before and after the assault. The pathologist was able to group this semen as belonging to a person with Group A secretor blood which, he said, occurs in about 20% of the population and is the blood group of the defendant.

10. Although Mrs. Mok lodged a complaint with the police immediately after the incident, describing to them what had happened, for reasons which have not been explained the police made no enquiries at that time as to who lived in Flat 306.

11. It was only after there had been an identification of the defendant by Mrs. Cheung in January 1985, about two years after the attack on Mrs. Mok, that she was invited to attend an identification parade, at which she pointed out the defendant saying that "he looked like" the attacker.

The second incident

12. Mrs. Cheung was robbed an 28th April, 1983, when she returned to her flat, in the same block as, but on a different floor to, that of Mrs. Mok. It was 10 a.m. and her two young children were with her.

13. When she opened the metal grille and door to her flat, a man put his hand over her mouth and pointed "something like a knife" at her. He pushed her into the flat and told her not to make a noise. She said that she"could see him very clearly face to face". It was a good, sunny, bright day.

14. The man pointed a knife at the second daughter and demanded money. She gave him $400 from her handbag and handed it to him. He pushed her into the bedroom, tied her and placed a paper bag over her head. However, she was able to wriggle free and told him to leave, which he did. She immediately made a complaint to the police.

15. Mrs. Cheung gave evidence that she had seen the man, who had attacked her, in the vicinity of Telford Gardens, twice in November 1984 and a third time on 22nd December, 1984. On the last occasion, her husband followed a woman, who was with the defendant, back to Flat 306 in which the defendant on his own evidence and that of his sister, had been living with his sister since March 1983, a few weeks after the incident involving Mrs. Mok.

16. Mrs. Cheung reported to the police that the man whom she suspected lived in Flat 306. As a result of this information, the police arranged an identification parade on 11th January 1985 at which she identified the defendant.

17. Before this parade, Mrs. Cheung produced an identikit impression of her assailant, which was adduced in evidence and which the jury might well have concluded bore a remarkable resemblance to the defendant.

GROUNDS OF APPEAL

Corroboration

18. The judge correctly directed the jury that, in relation to Count 2 only, corroboration of Mrs. Mok's evidence should be sought.

19. It was, however, argued by the defence that he erred in telling the jury that if they found that the defendant was a Group A secretor, this was capable of amounting to corroboration of her evidence as to the identity of her attacker.

20. The judge approached the effect of the semen stains on the trousers in a cautious way, telling the jury that if they were sure that the trousers on which the semen was found did belong to Mrs. Mok and were being worn by her at the time of the incident, that was evidence which was, capable of confirming or strengthening the evidence of the complainant.

21. Forensic evidence of this nature is at least consistent with the defendant having been responsible for the assault. How far it can amount to corroboration is a matter of degree.

22. At one end of the scale long experience has shown that the presence of a fingerprint is virtually decisive of the presence of a person who is shown to have the same fingerprint.

23. On the other hand, the presence of blood of a group which is present in a substantial proportion of the population can clearly have little probative value.

24. Our attention was drawn to paternity cases in which weight has been given to the coincidence of blood in a member of a group embracing about 10% of the population.

25. We would not wish to lay down any proportion of the population above which evidence of corresponding blood groups can properly be said to be corroborative.

26. We think that the matter is best left to the good sense of the jury, provided that they are directed carefully to the effect that the presence of blood (or semen) of the same group as that of a defendant, while capable of amounting to corroboration, should be given very little weight, unless the grouping falls within a narrow sector of the population.

27. Corroboration is required by law only in relation to the count of indecent assault. The reality is that, if the jury was misdirected, on the count of indecent assaults, into regarding, as corroboration evidence which cannot properly be so regarded, such a misdirection would inevitably have had an effect on the jury's findings on those other counts which arose out of the same incident, although in law no corroboration was strictly required of her evidence about them.

28. We do not agree, therefore, that the judge was wrong to say that the presence of this blood was capable of confirming Mrs. Mok's evidence, but we think he should have warned the jury in clearer terms of the limited weight which they should have attached to this evidence.

Identification of trousers

29. It was submitted on behalf of the defendant that the judge should have directed the jury that there was no evidence on which they could properly find that the pyjamas-trousers (Ex. P.12) on which semen was found, had been worn by Mrs. Mok at the time of the assault upon her.

30. We accept that the chain of evidence was not as clearly established as it should have been. The prosecutor omitted to ask Mrs. Mok to identify the trousers which she was wearing at the time of the incident, though he did ask her to identify her underpants, on which no stains were found.

31. Mrs. Mok testified that the police took away the clothing which she had been wearing at the time of the incident. This was confirmed by P.C. 19369, who said that he took possession of her clothing, after her admission to hospital on 31st January, 1983.

32. This officer handed the clothing to the exhibits officer, D.C. 9413, who in due course handed it to the Government Chemist who identified semen as present on the trousers.

33. We think that, although to some extent it is a matter of inference, rather than a clear identification at each end of the chain, the Crown has established that the semen-stained trousers were those worn by Mrs. Mok when she was attacked.

Admissions under Section 65C

34. Near the end of the trial, after all other evidence had been concluded, both counsel tendered a statement of agreed facts under section 65C of the Criminal Procedure Ordinance. When questioned by the judge as to its intended effect, both counsel agreed that it was intended to represent the truth of what happened at the identification parade.

35. The relevant part of the statement stated that Mrs. Mok said, at the parade at which she identified the defendant "It looks like the second from the left".

36. In his summing-up, the judge directed the jury to consider whether or not, as she alleged in evidence she told the officer in charge of the parade that she was sure, which the officer had denied.

37. The defence argues that this was wrong, since the only version of what happened at the parade which the jury could properly consider was that contained in the admission under section 65C.

38. Section 65C provides that any admission tendered under that section in the proper manner shall be "conclusive evidence" of that evidence.

39. We think that the section must be strictly construed. If it is not, its value will be lost. It is likely to happen, from time to time, that evidence which contradicts, or is inconsistent with, the contents of an admission, is given during a trial. If this occurs, the admission must prevail, since it is conclusive.

40. It might have been arguable that Mrs. Cheung's evidence that she was sure of her identification, if accepted as true, was admissible to supplement her hesitant identification in the section 65C admission. But counsel clearly intended, in our opinion, that the admission should comprehend the whole of the parade.

41. We therefore think that the judge should have directed the jury to accept the weaker form of identification by Mrs. Mok.

Unsafeness of identification

42. We have indicated two aspects of the summing-up which were unsatisfactory. We would not have regarded them, by themselves, as sufficient to give us doubts as to the propriety of the conviction, if the quality of the identification of the defendant by Mrs. Mok had been satisfactory.

43. Indeed, the main argument in the defence submissions was directed to this issue, being based on a number of features, which must, it was said, raise a doubt as to whether the conviction was safe.

44. These features can be summarized as follows; a lapse of 2 years between the attack and the identifications; the uncertain manner in which Mrs. Mok picked the defendant at the identification parade; the relatively difficult circumstances in which she saw her assailant at the time of the attack on her; significant discrepancies between her descriptions of the offender in her pre-trial statements and at the trial with regard to the age, height, build and eyes of the defendant; the inherent unlikelihood of the defendant committing such offences against Mrs. Mok and thereafter living next door to her; the further unlikelihood that he could live next door to her for almost two years before she saw him; the possibility that she was identifying someone whom she had glimpsed from time to time during the previous two years, rather than the assailant.

Conclusion (first three counts)

45. No reasonable criticism can be made of the manner in which the judge directed the jury as to the dangers of identification and as to the various factors which should make them cautious before accepting Mrs. Mok's identification of the defendant.

46. But we have come to the conclusion, in conjunction with the matters in relation to which we think the summing-up can be fairly criticized, that this is one of those rare cases in which we are left, notwithstanding the jury's verdict, with a fear that there may have been a miscarriage of justice and we therefore quash the convictions on the first three counts on which the defendant was convicted.

The second incident

47. In relation to the fifth count, the assault on Mrs. Cheung, it was submitted that the misdirection in relation to the incident relating to Mrs. Mok might have affected the jury's view of the credibility of the defendant in relation to the offence concerning Mrs. Cheung.

48. We see no substance in this argument, since the judge directed the jury in the clearest possible terms, not only that they must consider the evidence on each count separately but also that there was no link whatever between the incidents of 29th January, 1983 and those of 28th April, 1983 concluding "When you are considering one incident, put the other incident quite out of your mind".

49. It was complained that the judge was wrong to suggest to the jury that Mrs. Cheung's identification was more likely to be accurate because she had seen the defendant on three occasions before she was called upon to attend an identification parade.

50. We see nothing wrong in such a comment. As a matter of common sense, her identification must have been strengthened by her earlier sightings of the defendant. In November she saw him twice; on the second occasion she was sure enough of his identity to make a report to the police.

51. In December 1984 she pointed him out to her husband near Telford Gardens; her husband, at her instigation, followed the woman who was seen with the defendant, to Flat 306, where the defendant admits he was living at that time. It would be unrealistic to attach no weight to that incident in assessing the worth of Mrs. Cheung's identification. So far as she is concerned, there was no hesitation in her identification of the defendant at the parade which was held soon afterwards.

52. We have no difficulty in concluding that there are no grounds on which we could properly interfere on the fifth count, as to which we feel no doubts as to the correctness of the jury's verdict.

Sentence

53. There remains the question of an appropriate sentence on the fifth count, which was concerned with a robbery committed in domestic premises in the middle of the day.

54. The defendant threatened Mrs. Cheung with a knife and made similar thereats against her children, who were with her at the time.

55. The tariff which was laid by this court in MO Kwong Sang in 1981 suggested that, where a robbery involves an invasion of private premises and physical violence, including the tying up of a victim, a sentence of seven years should be considered, after a plea of not guilty. This level was, it was suggested, to be increased if there were other aggravating factors. In this case, the threatening of Mrs. Cheung's children, with the terror which that involves, was an aggravating factor.

56. Thus, while the sentence of 8 years' imprisonment could be said to be somewhat on the high side, we do not regard it as so manifestly excessive that it would be proper for us to interfere with it.

57. Leave is granted to appeal against the convictions on Counts 1, 2 and 4. That appeal is allowed and those convictions are quashed.

58. The applications for leave to appeal against conviction and sentence on the fifth count are refused.