THE QUEEN v. LAM CHI-FAI(D3)

IN THE COURT OF APPEAL

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JUDGMENT

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Li, V.-P.:

1. Between the 24th of November 1983 and the 12th of February 1984 D3, the applicant, was one of 6 young persons who split into groups using stolen cars to rob people who happened to be on a highway at night or early hours of the morning. The modus operandi was that, they used stolen cars, two of them. They intercepted motorists or, people going home and relieved them of their possessions.

2. In the event the applicant was a person who was convicted of 4 counts of robbery, namely count 9, count 11, count 12 and count 13. The evidence adduced by the prosecution proved beyond reasonable doubt that these robberies did occur and property set out in the various counts were taken away from the victims at the material time. The only issue at trial was whether the applicant was one of the participants. Basically the evidence against the applicant in this issue was that the victim in count 9 made a dock identification that the applicant was the person facing him holding a gun some 8 to 15 feet away from him in the course of that robbery.

3. The other evidence which covered the other counts including count 9 were the finding of some stolen properties in these counts of robberies and some of them were identified positively by the victims. With reference to count 9 the victim, Mr. HUNG Kwing-leung, made the dock identification. He identified a fur coat that was taken from him in the course of the robbery. With reference to count 11 there were two items stolen - a finger ring with Chinese character "Tang" and a Raymond Weil watch (Exh. P34) which were identified. The victim in count 12 identified a cotton-quilted jacket (Exh. P40) that was taken from him. The victim in count 13 identified his identity card and a Seiko watch (Exh. P43). These items were found in the applicant's bedroom in the premises after the police broke open the door in the absence of the applicant. In due course the applicant was brought in to witness the seizure of such properties.

4. In his defence the applicant set out an alibi as to his absence from the scene of these 4 robberies and said that he was somewhere away, though he could not remember where he was. He merely alleged in his evidence that he was not at the scene. As to the items found in his room he said that he left home on 18th of February 1984 at about 6 - 7 p.m. He said that at the time the lock to his room was out of order. The door was left unlocked. When he returned at 4 p.m. on the 19th of February, he was brought there by the police. Another co-accused who gave evidence corroborated that the lock was out of order.

5. As far as the Seiko watch was concerned the applicant admitted that he gave this Seiko watch to a hair-dresser. That watch incidentally was not found in the room but was recovered from the hair-dresser. The hair-dresser in his testimony said that the applicant gave it to him (the hair-dresser) and at the same time told him that it was his co-accused, D1, who gave him, the applicant, that watch. When D1 was cross-examined while giving evidence for another co-accused he said he could not remember giving the watch to the applicant nor could he remember ever having seen the watch before.

6. Such is the general picture that was put before the court by the prosecution as well as by the defence. In the event, the judge gave a fair summing-up and the jury convicted the applicant of all 4 counts.

7. It is contended before us that such conviction is unsafe and unsatisfactory due to 2 basic reasons. First of all, the dock identification. It is contended that the judge is wrong in not withdrawing the dock identification evidence from the jury. This is because the prejudice against the applicant far outweighed the probative value of such evidence. We observed that in the course of trial when the victim of the 9th count gave evidence he conceded that he could only vaguely recognise the face of the applicant. He said at page 84, just prior to his identifying the applicant in the dock, as follows:

"I am unable to recognize any of those behind me, grabbing my neck from behind, but I can vaguely remember the face of the one who was holding a gun in my direction right in front of me."

It was a dock identification 7 months after the occurrence of the robbery. He had a short moment to observe the face of the person. In a dock identification all he had to select were the 4 persons in the dock. We are not saying that in all circumstances there can never be a dock identification. But in the circumstances of the present case, having regard to the totality of the evidence we do feel that it would be safer to withdraw that evidence from the jury and we cannot help feeling that that might have influenced the jury to the prejudice of the applicant. For this reason we would grant leave to appeal against conviction of count 9, treat the application as the appeal. We allow the appeal and quash the conviction of count 9.

8. There remains a second point - the question of recent possession. The ground in support of the application is that recent possession is equally consistent with robbery as well as handling stolen goods. That being so, the trial judge should in all fairness withdraw the case of robbery from the jury and direct them that if they are satisfied that the applicant was in fact handling stolen goods then convict him of handling. In support of this argument, the case of Smythe, (1981) 72 Cr. App. R. 8, was cited before us in which the Court of Appeal said that it would be quite unsafe to infer positive proof of participation in a series of robberies from the mere fact of possession of articles traceable to those robberies at the time 3 months after the earliest robbery and 2 months after the latest. In Archbold the comments is as follows:

"However, the court stressed that it is a misconception to think that recent possession is a material consideration only in cases of handling. It was unnecessary to review the many authorities. 'Nearly every reported case is merely a decision of fact as an example of what is no more than a rule of evidence' ".

We feel that the comment in Archbold is correct. In the present case, the items stolen in respect of counts 11, 12 and 13 were all positively identified by the victims. It was open to the jury to find whether they were obtained in the course of the robbery or obtained by mere handling. The judge, in his direction to the jury, gave a very very fair and proper summing-up, leaving the whole issue open to the jury as he was entitled to do in the circumstances. Such count cannot be affected by the dock identification because in the course of his summing-up at aage 2 of the transcript, the judge said:

"Next, I must tell you that the case against each accused on each charge must be considered by you separately. It is not because you may find an accused person guilty of one particular charge that you must find his co-accused also guilty thereon. It is not because you may find one accused guilty of one particular charge that you must find him guilty of all or any of the other charges against him."

He further directed the jury that the dock identification only related to count 9. Therefore, counts 11, 12 and 13 could not have been affected by not withdrawing the dock identification evidence from the jury.

9. Returning to the question of recent possession, it was entirely a jury question. If learned counsel for the applicant is correct in saying that in such circumstances the judge must withdraw the issue of robbery from the jury, then no conviction could ever be obtained by simply evidence of recent possession of stolen properties which we do not consider to be the correct proposition of the law. We are not prepared to substitute our findings for the verdict of the jury unless there is good reason to do so. We find none in the present case. Accordingly, leave to appeal against conviction in respect of count 11, 12 and 13 is therefore refused.