THE QUEEN v. YIP MOON-TING AND ANOTHER

Headnote

                Hostile witness. It is for the jury to consider the evidence of a hostile witness, subject to a proper warning from the judge, when necessary, as to the weight, if any, to be attached to it.

                Identification evidence: Impropriety of asking a witness as to the degree of sureness or certainty as to his identification.

IN THE COURT OF APPEAL

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JUDGMENT

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Barker, J. A. :

1. On the 25th November, 1983, a van loaded with approximately 6502 Seiko wrist watches worth over $700,000 was stopped by robbers.  The occupants of the van were held captive in the back of the van by a man holding a pistol like object.  The van was driven to a mountain side where the watches were removed to another vehicle, and the driver and his two assistants were left in the back of the van, one of them being bound; and the other two handcuffed, each to the other.

2. The lst Applicant (D1) and the 2nd Applicant (D3) were convicted of robbery and were each sentenced to 8 yeas' imprisonment.  The second Defendant was acquitted.

3. The prosecution's case against Dl depended to a great extent on the evidence of one YIP Kip-sun.  This witness had given a written statement to the police, but when he came to give evidence he resiled from it to such an extent that the trial judge ruled that he was to be treated as a hostile witness, and therefore the prosecution was at liberty to cross-examine him, an opportunity which was gratefully accepted.  Under such cross-examination, Yip's previous statement, inculpating Dl, was put to him and he agreed that it was correct.  Obviously, therefore, he had given contradictory evidence on oath.

4. It was sought, on behalf of Dl, to rely on Reg. v, Golder⁽¹⁾. In that case a witness had given a sworn deposition before the examining magistrate, inculpating the accused, but when she came to give evidence at the trial, she gave totally different evidence,exculpating the accused, a stance which she maintained. Lord Parker said at p. 1172 - 

"In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act."

5. In other words what was being said in Golder's case, and in the later case of Reg. v. Oliva⁽²⁾, when a witness gives evidence at the trial inconsistent with a previous statement, sworn or unsworn, the proper direction to a jury is that the witness's evidence should be totally disregarded.

6. The situation in Golder's and Oliva's cases was different from that in the present case.  There, the witnesses at the trial maintained their contradiction of their previous statements.   Here he did not.

7. In Reg. v. Pestano⁽³⁾ reported (surprisingly) only in 1981 Crim. L. R. 397, where a hostile witness in part admitted the truth of a deposition given by him in another (but relevant) case, which deposition was contrary to his evidence in the instant case, the Court of Appeal held that his evidence was for the jury to consider subject to a proper warning from the judge as to the weight, if any, to be attached to it.

8. Pestano's case followed a decision of the Australian High Court in Driscoll v. The Queen⁽⁴⁾. In that case, Barwick C. J. said at page 734 -

"The remarks of the Court of Criminal Appeal In R. v. Golder are not merely obiter, but, in my opinion, unwarranted in law when they say that a jury must be told that a person who is shown to have made a prior unsworn (sic) inconsistent statement should be regarded as unreliable in relation to the sworn evidence which has been given."

9. Gibbs J. at p. 740, after citing Lord Parker's dictum in Golder's case, said,

"The whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable.   In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. ......... In some cases the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. ...... It cannot be accepted that in cases where a witness has made a previous inconsistent statement, there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable."

10. We respectfully agree with these observation in Driscoll's case.  Provided, when necessary, the jury is warned of the dangers of accepting the hostile witness's evidence, it is a matter for the jury to assess what weight, if any, they give to it.

In the present case, the trial judge used such phrases, as regards Yip's evidence, as -

"But let me make it clear to you, his credibility has been seriously damaged, seriously impeached."

and,

"The basis on which the witness was cross-examined was discrepancy between his evidence and his statement and if one allows a witness to be impeached or discredited, then the amount of reliance you should put on his evidence after that is very limited indeed."

11. No warnings could have been more forthright or explicit.   In our judgment the direction of the judge was correct.  He was right to leave the matter, as he did to the jury, and to leave it to them to decide what weight they should give to Yip's evidence.   Clearly they came to the conclusion that, taking all things into consideration, it was reliable.  They were entitled so to conclude.

12. We add, for the sake of completeness, that there was some, albeit slight, circumstantial evidence, but it was conceded by the Crown that, if Yip's testimony had totally to be disregarded, such evidence was not sufficient to found a conviction.

13. We turn then to consider the case of the 2nd Applicant (D3). Here the case for the prosecution rested upon three grounds: -

and,

14. The complaint is made as to the evidence of identification. This, so the argument runs, is not a Turnbull situation, in which the identifier who has a fleeting glance avers that he is sure that the person identified is the accused. In the present base, Chiu, it is said, made no sure identification at all.

15. This argument is based on a number of answers given in chief, to the Court during the course of the cross-examination and in re-examination by Chiu.

16. In chief he was asked -

Q.	"Were you quite sure when you pointed this person out that he had in fact been involved in this robbery?"
A.	"Yes."

 

During the course of cross-examination the Court asked-

 

Q.	"You are being asked how sure were you at the parade the man at No. 4 was the man who had claimed to be a Customs man at the time of the robbery. Now that is simple enough. How sure were you?"
A.	"At the time when I identified him at least 60 to 70 % sure."

And in re-examination,

Q.	"When I asked you in examination in chief if you were sure you gave the matter some careful consideration and you said you were sure, didn't you?"
A.	"Yes, I was very sure and I had an impression of him but if you ask me to tell you 100% then I would not be able to do so."

17. The question by the Court was, to say the kindest of it, unfortunate.  A witness is either sure or he is not. One cannot be 60 to 70 % sure.  It is as bad as the error which so frequently creeps into summings up where Judges time and again direct a jury that the prosecution does not have to prove guilt with mathematical certainty - a direction which is patently confusing.

18. Were this evidence to stand unsupported, this Court would have no hesitation in accepting Mr. Alderdice's submission that it was insufficient to found a conviction.  But it does not.  It is supported by an oral confession - which in itself would be sufficient to uphold the conviction - and by the strong circumstantial evidence.

19. For the foregoing reasons, the applications for leave to appeal against conviction are refused.

(1)    (1960) 1 W. L. R. 1169 CA

(2)    (1965) 49 Cr. App. R. 298 at p. 311

(3)    (1981) Crim. L. R. 397

(4)    (1977) A. L. J. R. 731