THE QUEEN v. LAM BONG CHI

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JUDGMENT

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LI, V.-P. :

1. The applicant is convicted after trial of attempted arson. The offence alleged was that on the 5th of January this year at the Wu King Estate in Tuen Mun he attempted to set fire to a goods vehicle No. CZ 6881.

2. The prosecution evidence was that at about 10.50 p.m. two police constables were on patrol in the vicinity. They saw the applicant squatting beside the above-mentioned goods vehicle acting in a suspicious manner. They approached him by way of a semi-circle to observe what he was doing. They saw that there was a kerosene can nearby, a mattress near the rear wheel of the goods vehicle and the applicant applied his lighter to the mattress. They shouted to him to stop, revealed their identity and told him not to move. The man then turned round when the constables were about 5 to 6 feet away from him. They were face to face with one another. He started to run away. He was chased to the direction of the Wu Pong House and made good his escape. The flame on the mattress was put out by one of the constables. The other who cased him lost sight of him and returned. A report was made to the nearby police unit. It so happened a patrol unit arrived so that the constables could describe the clothing and the facial features of this man to the sergeant in-charge. Later on, the police party made a visit to the home of the applicant at Wu Pong House.

3. It was alleged that the applicant opened the door and was asked to assist because the sergeant who had by then received a description of the man's features found the applicant's features in agreement with the description. He was asked what clothes he wore that evening. The applicant pointed to a chair where the clothes and some other items were retrieved.

4. The applicant was invited to go to the police station to assist their enquiry. On the way to the Neighbourhood Police Unit one of the constables who was handling the plastic bag containing the seized items smelt of kerosene. It was found that a few items of the clothings or seized articles smelt kerosene. He was then arrested, cautioned and taken to the Tuen Mun Police Station where he made a cautioned statement which was exculpatory.

5. Subsequent analysis of the articles seized found that his handkerchief, a cloth belt, a pair of slippers and one towel were stained with liquid having components very similar to kerosene. A few days later, the two constables who saw the applicant in the first instance attended an identification parade. They positively identified the applicant. Such was the gist of the prosecution evidence.

6. The defence evidence was that the applicant went out on the day in question and returned home around 10 p.m. He went out again shortly in order to have a snack. He saw two persons, acting in a suspicious manner, jumped over a bamboo fence. He wanted to go over and have a look. He fell into a drain. At that point he changed his mind. He returned home, arriving at about 10.30 p.m. Since then he never went out again. He said when the police arrived, it was about mid-night. It was his daughter who opened the door. He agreed that the articles of clothing seized belonged to him, but there was no kerosene whatsoever on them. He explained that when the clothing was seized the police had nothing in which to hold them and asked whether he had a plastic bag. He gave them one which he said belong to a friend who used to send his clothing for his wife to wash. This plastic bag used to contain such soiled clothing. He said his friend worked as mechanic and very often probably used kerosene. The implication was that if there were any kerosene on the clothings it came from the plastic bag onto his clothings.

7. He said he was invited to the Neighbourhood Police Unit. There he was seen by those two constables who purported to identify him later in the identification parade. He said he did tell Inspector Chiu, the inspector in-charge of the enquiry, that around 10 p.m. he saw those two constables who identified him. Generally, he denied that he ever set fire to the mattress which he had never seen before. In short, he was never in the vicinity.

8. Thus, the evidence against the applicant heavily depended on the quality of the identification by the two police constables.

9. In his Reasons for Verdict the judge having dealt with the other evidence about the kerosene, the clothings and the burning mattress said as follows:

"When the mattress was set on fire the 2 constables were then 2 meters from the defendant and when P.W.4 (i.e. one of the constables) shouted 'police officers, don't move', the defendant turned round and came face to face with the two constables. The 2 constables had a clear and full view of the defendant at that time. They described the defendant as a strong-built person, who had short hair and a moustache and this fitted the description of the defendant who did keep a moustache before although not now. They also took note of his facial appearance and they both succeeded in pointing out the defendant at the identification parade.

 

        They also described the clothes worn by the defendant at the scene - a red wind-cheater and a pair of blue jeans and these were recovered from the defendant's home which defendant had admitted to belong to him. "

10. The ground advanced by learned counsel in support of the application mainly based on the Turnbull⁽¹⁾ guideline. It was argued that the judge in his Reasons for Verdict failed to consider that there was a need for caution when the case depended on correctness of identification; that the judge failed to consider there could be an honest mistake on the part of the constables; that the judge failed to consider the need to examine closely the circumstances which the disputed identification by each witness to be made including the length of time, the lighting conditions, whether obser-vation was in any way impeded; and lastly the specific witnesses which had appeared in the identification evidence, in particular that one of the constables said that he had a glance of him and the other said that he had been briefed much earlier as to the description of the appellant.

11. The second ground was that there was something in the evidence of the chemist that the items seized from the suspect's home had traces of liquid resembling kerosene only.

12. In his Reasons for Verdict coupled with his notes of the proceedings the judge had in fact manifested himself to have the guideline of the Turnbull's case in mind. There was evidence in support of his finding that when the constables shouted at the applicant and when the applicant turned round they were roughly two meters away and they had a clear and full view of the applicant. They had seen the applicant face to face. Obviously there was nothing to impede the sight of the applicant at the time. They said that they had a glance at the applicant. The length of the time could be brief, but sufficient for them to observe the facial features of the applicant as well as his clothings in order to give an accurate description. The identification parade according to evidence is only a couple of days after the incident.

13. All that the judge did not spell out was to remind himself of the need for caution and that an honest witness could possibly make a mistake. However, both points were apparent in the overall evidence of the case. The judge must take into consideration of the applicant's own observation and own testimony. In answer to the question by the Court (apparently the judge had questioned the applicant quite closely in order to clarify the possibility of any mistake) the applicant had this to say:

"The handkerchief (P.17) belongs to me. It does not smell kerosene. It was kept inside the western-style trousers. I did say to Chief Inspector Chiu that I was there that night. I saw the two constables. The two police constables were the two police officers who picked me out of the parade. I saw them around 10 o'clock while I was on the way home. The two officers were walking there. We were face to face when I walked pass them. "

That was the evidence of the applicant. The judge had the evidence that at one time the constables and the applicant were face to face with one another. That encounter was sufficient to enable the applicant to recognize the two police officers. It is quite logical for the judge to accept that the reverse was also true when he had evidence that the two officers identified the applicant.

14. Even though the judge did not perform an incantation of all the guidelines that are listed in the Turnbull's case. ⁽¹⁾ He had them in mind. It is quite apparent. However, we feel that it might have been better had he say so in his Reasons for Verdict that he had them in mind.

15. We would say that had the notes of proceeding and his Reasons for Verdict not made it so evident that he had taken into account every requirement that was basic and listed in the Turnbull ⁽¹⁾ guideline for identification evidence the result might have been different. In this case we are satisfied that the judge kept all the requirements in mind. He was not required to list all the requirements in his Reasons for Verdict. There is a difference between a judgment given by a professional judge sitting alone from the summing-up of a judge sitting with a jury. When directing the jury the judge must tell the jury all the essential requirements that was given in the Turnbull's case⁽¹⁾. In this case he was sitting alone. We are satisfied that he had reminded himself and that he had all these requirements in mind before he said he was completely satisfied as to the guilt of the applicant.

16. As to the second point about the kerosene matter, it is matter of insignificance. The chemist obviously was of the opinion that the liquid found on the seized articles was not quite sufficient for him to say that they were kerosene but they were inflammable matters. The liquid had quite substantial portion of the components which are kerosene. For these reasons the application for leave to appeal against conviction is refused.

(1) (1977) Q.B. 224; (1976) 3 A.E.R. 549