THE QUEEN v. KWAN CHO KIT

Headnote

Identification in dock for the first time - where the accused is already known to the witness.

Theft - information alleges theft of wallet and notebook - theft of notebook only proved - whether amendment of charge necessary - S. 27 of Magistrates Ordinance.

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 1151 OF 1988

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J U D G M E N T

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Hon. Yang, C.J.:

1. The appellant originally faced two charges, namely, assault occasioning actual bodily harm and robbery. Upon hearing evidence of the prosecution witnesses as well as that of the appellant, the magistrate acquitted him of assault occasioning actual bodily harm, and, on the robbery charge, convicted him of the alternative offence of theft under Sec. 32 of the Theft Ordinance.

2. The sole evidence on theft came from the victim who was a pupil in the same school as the appellant. The victim had mot the appellant before and heard his name mentioned many times. There was no identification parade but the victim identified the appellant in court as the culprit. The magistrate accepted the identification and found the appellant guilty.

3. The information against the appellant alleges that the appellant had stolen twenty dollars in cash as well as a telephone notebook from the victim. The magistrate found on the evidence that only the notebook was taken away from the victim.

4. Counsel for the appellant argues inter alia that the magistrate failed to warn himself of the risk of mistaken identity which was the appellant's main defence. It is further argued that no identification pared having been held, the magistrate ought to have followed the dictum of Roberts C.J. in The Queen v Yip Yuk-wang (1986) Magistracy Appeal No. 1130 (Crim.) and warned himself of the dangers inherent in the identification of an accused by a witness. The witness identified the accused for the first time in the dock. The witness was a restaurant owner and the accused his regular customer.

5. The judgment was followed by Wong, J. In The Queen v Luk Man-lung (1987) Magistracy Appeal No. 528 (Grim.). There it would seem that the accused was a stranger to the witness who identified him in court.

6. In another case, The Queen v Yick Tin-wai (1986) Magistracy Appeal No. 918.(Crim.), Roberts, C.J. quashed the conviction on the ground that the identification of the accused for the first time in court in the dock was unsafe. There again the accused was a total stranger to the victim of the robbery with which the accused was charged.

7. Whilst the facts of Luk Man-lung and Yick Tin-wai are distinguishable from the present case, it is impossible to distinguish Yip Yuk-wang. Common sense dictates the importance of a court warning itself of the danger of relying on an identification for the first time in the dock if the accused is a stranger or not well known to the witness. Where the accused is known to the witness, as in the present case such caution seems quite unnecessary. In my judgment, and with great respect to Roberts, C.J., his judgment in Yip Yuk-wang should not be followed.

8. In addition to this and other complaints on the manner in which the trial magistrate, treated the identification evidence, it is submitted on behalf of the appellant that in finding the appellant guilty of theft instead of robbery, and of stealing only part of the items specified in the information the magistrate ought to have complied with Sec. 27 of the Magistrates ordinance. In failing to do so, there was a material irregularity in the trial which could not be cured.

9. There is in my view no substance in this complaint. Sec. 32 of the Theft Ordinance permits a court to return an alternative verdict in certain types of cases, of which the present is one.

10. Counsel further argues that if an accused is charged with theft of say one thousand dollars and the evidence relates to only five hundred dollars, an amendment to the charge must be made, and Sec. 27 of the Magistrates Ordinance must be strictly followed. Failure to follow sec. 27 cannot be termed a mere technicality and the proviso cannot be applied: vide The Queen v Cheng Yiu-kong (1987) Magistracy Appeal No. 676 (Crim.) where the charge of wounding was reduced to common assault; Yeung Chin v The Queen (1976) Crim. App. No. 1043 where a charge of assault "in the company of persons not in custody" was altered by deleting the words in quotation.

11. I think the short answer to this issue is to be found in Lord Parker's judgment in Machent v Quinn (1970) 2 All E.R. 255. There the information alleged theft of specified articles valued at about 200 pounds, but justices found that goods to the value of 25 pounds only were stolen. There the learned Chief Justice said, "It has always been accepted that it is unnecessary that the prosecution should prove that all the articles mentioned in the information or indeed, in the case of an indictment, in the indictment, have been stolen. If proof is given that, the accused has stolen any one of those articles it is sufficient."

12. The appeal is dismissed.