THE QUEEN v. POON LEE-KEUNG

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. On 24th March 1986 at Kowloon District Court, before Judge Sanders, Poon Lee-keung was convicted of robbery and sentenced to a term of imprisonment. The evidence for the Crown, which was uncontradicted as the applicant elected not to go into the witness-box, was to the following effect.

2. Constable Chan Ho-chung entered the lift at the premises where he lives on the Lai Kok Estate, Shamshuipo, at about noon on 22nd January 1984 together with three men and three women. One of the men blocked the lift door with his foot and announced that everyone was to be robbed. He was brandishing a one-foot-long beef knife. The two men already in the lift then proceeded to search the three women and the police officer. Their valuables, cash and ornaments were taken. The constable was robbed of $580 in cash and a 'Dupont' ball-pen. The robbers observed his warrant card and questioned him. According to his account of events he had the opportunity of observing the faces and build of the robbers.

3. Well, nothing happened for some 21 months. Early in the morning of 10th November 1985 constable Chan, who was patrolling in Mongkok, stopped and searched a man whom he suspected of being about unlawful business. On this man he found a 'Dupont' ball-pen, which is in front of us and obviously a mass-produced article, and purported to identify it as the one which had been stolen from him on 22nd January 1984: an extraordinary coincidence. The man was asked how he obtained the pen and said that it had been given to him by the applicant. So the constable went off to the applicant's address with some colleagues, doubtless expecting to meet one of the robbers. The applicant came to the door of his home and the constable immediately recognised him as such and arrested him.

4. The only issue at trial was the question of identity and in the "Reasons for Verdict, which from its terms appears to have been included in the record after the conviction pursuant to section 80 of the District Court Ordinance, it is apparent that a number of doubts arose as to the safety of the identification which resulted from the confrontation which took place on 10th November 1985. The judge said in terms that the constable did not attend an identification parade after the arrest of the applicant and from his notes of evidence it appears that he was told by counsel then appearing for the Crown that no such parade had been held. But we are told today by the applicant, and it is confirmed by Mr. McCoy on behalf of the Crown, that on 16th November 1985, an identification parade had taken place at the police station; that the three women who had been robbed in the lift came to it and that they were unable to identify the applicant. This is critical evidence as to which, for some reason, the judge was misinformed.

5. In the context of a case depending on identification the judge properly warned himself of the special need for caution but discounted the difference between the description of the robber in question given near the time of the robbery by constable Chan in a statement and the applicant's actual appearance. The judge must have been very near the borderline when determining that he was satisfied with the identification which had taken place though, from the use of his expression "not a fleeting glance case", we are able to infer that he had the guidance given in R v Turnbull ⁽¹⁾ in mind. Of course this court does not expect the same degree of detail in the explanation of the dangers of identification evidence when a judge is directing himself as when he is summing-up to a jury.

6. In the circumstances now disclosed we have no hesitation in saying that this conviction is unsafe and unsatisfactory. The application for leave to appeal against it will be granted. We treat this as the hearing of the appeal, quash the conviction and set aside the sentence. Poon can go free.

7. We mention as a postscript that this applicant was refused legal aid on the merits.

(1)    (1976) 63 Cr. App. R 132