THE QUEEN v. YU WAI-KEUNG

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. This is the judgment of the court.

2. On 4th February of this year Yu Wai-keung was found guilty of robbery by a jury in the High Court and, following that finding, convicted and sentenced to a term of imprisonment. He now seeks leave to appeal against such conviction. Mr. Alderdice, who appears on his behalf, relies on two matters which, he submits, render the conviction unsafe and unsatisfactory.

3. A young woman called Wong Shuk-fun complained that in the early hours of 31st July 1985 taro men, whom she identified as the applicant and a co-accused, broke into her room on 15th floor of an address in Nathan Road, Kowloon, and stole from her a gold ring, a pager, a wrist watch, a 'Dumont' ballpen and other items. The first accused gave contradictory evidence the burden of which was that Miss Wong had invented the robbery in anger at his refusal to repay debts incurred at a dance hall and, incidentally, that the applicant was not present at the material time in the material place.

4. The first line of attack on the summing-up is to the effect that the judge misled the jury as to the burden and standard of proof. There is no doubt that at the beginning and end the directions were impeccable. The judge said:

 

"It is for the Crown to prove guilt. The defendants don't have to prove a single thing. The defendants don't have to prove there was no robbery. They don't have to prove that they did not take part. They don't have to prove anything."

And then, going to the standard of proof.

 

"You may be thinking to yourselves to what degree does the guilt have to be proven and the answer is that it is really quite simple. Before you convict either defendant you must be satisfied beyond reasonable doubt that he is guilty, that is, you must be sure he is guilty."

The judge thought it incumbent upon him to elaborate on that direction and such elaboration, while in our view unhelpful, was in no way misleading. Finally in this regard the judge told the jury:

 

"If the guilt of any defendant is not proven beyond reasonable doubt it would be your duty and of course it would be your pleasure, I expect, to acquit him. On the other hand, if you are satisfied beyond reasonable doubt of the guilt of either defendant, then it would be your duty to convict him so.the law could take its course.

But Mr. Alderdice complains of a reference to the evidence given by the first defendant in the following terms:

 

"Of course unless you are sure that the first defendant's evidence is untrue you could not convict because unless you are sure that the defendant's evidence was untrue you could not be satisfied beyond reasonable doubt of guilt."

This was an unhappy way of telling the jury that if that defendant's evidence rendered them less than sure of the guilt of one or other or both of the accused they should acquit but one which did not vitiate the overall effect of the directions to which we have just alluded.

5. What has exercised our minds for some little while is a particular direction which the judge gave on the issue of identification. The young woman in question had apparently seen the man she claimed to be the applicant in her room for a very brief spell. The judge's relevant words were:

 

"She says she did see them for a matter of seconds and she says that on the night of the incident she thought the robber who she now tells you was the applicant looked about 5 ft 6 or 5 ft 7."

She said that she recognised the applicant in the course of this brief glimpse but was only able to identify him after she had identified the first defendant. Apparently the two were associated in her mind and because she was able to recognise the first defendant the identity of the man whom she had thought she knew was established to her satisfaction In this context the judge, who gave the jury stringent and careful warning of the difficulties and dangers involved in identification, gave the following direction:

 

"Then, of course, is the fact that she says she recognised two persons - is that fact that she says she recognised two persons, when that is taken together with the fact that the two persons she says she recognised are two persons who, in fact, are friends of each other - is that a matter that assists you in deciding whether each of the identifications is good.

 

         For example, supposing it was the case of a person saying they recognised A and B - and that A and B, as being at a certain incident, and A and B are in fact husband and wife, is the fact that a person says,§I recognised both of them and those people happened to be husband and wife, is that some better guarantee, of reliability of the identification than if a person says, " recognised A and I recognised B and in fact there is no connection between A and B. If the fact that a person says 'I recognise A and B and then those A and B happened to have a connection with each other, is that some assistance perhaps like - as to the identification perhaps being reliable.

 

        Of course, you will remember that she says it was seeing the 1st defendant  - that is what triggered off, "Ah! The other one who I couldn't place is Ah Wai" - that is the applicants

6. If the two had not been associated in the young woman's mind before she saw two persons enter her room this direction would have been unexceptionable. If she had not known of their association and it subsequently transpired that they were associated it may be the jury could properly have accepted that factor as strengthening the identification. But in the circumstances of this case the judge was apparently suggesting to the jury that this association, of which the young woman was already aware, was a factor that strengthened and supported the reliability of her identification of the applicant as one of the men in the room. This we regard as a misdirection which renders the conviction unsafe and unsatisfactory. In the circumstances we allow the application to appeal against conviction. We treat this as the hearing of the appeal. The conviction is quashed and the sentence set aside but, as is already accepted as inevitable, we further order that the applicant be retried on a fresh indictment.