HKSAR v. CHENG YAU CHOI

IN THE COURT OF APPEAL OF THE HKSAR

1997, No. 95
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The applicant stood charged before His Honour Judge Gill in the District Court with two offences, one of blackmail and the other criminal damage.

2. The alleged offences arose in this way. On 5 July 1996, the applicant allegedly made an unwarranted demand of $3,000 from one Ho Wai-hong (Ho) with menaces at the premises of Fook Tat Motors Company, Ha Che Village, Pak Heung, Yuen Long. On the same day, the applicant allegedly damaged the glass top of a table which formed the subject-matter of the criminal damage charge. He was legally represented before the District Judge and pleaded not guilty. He gave and called no evidence. After trial, he was convicted and sentenced. He seeks leave to appeal against conviction.

3. The prosecution case is that Ho was an employee of the Fook Tat Motors Company and that on the charge date, in the office of the company which was a converted container, a man who called himself Ah Choi made an unwarranted demand in the charge. Ho told the court that similar demands had been made earlier in the year but not by the same man and that his usual lame excuse given was that his boss was away but that he would pass on the message to him on his return. Ho told the District Judge that he had not seen the man calling himself Ah Choi before 5 July 1996. The village elders were at one time consulted because when the demands were made, they were made as payment of watchmen fees. The village elders did not confirm the watchmen fees demanded. When the unwarranted demand was made by this man calling himself Ah Choi, Ho gave his usual lame excuse. Ah Choi turned aggressive. He threw a glass at the glass top of a table shattering it. The man, calling himself Ah Choi said to Ho: "You should be careful if it is your intention not to pay, that we are able to think of a way to ensure you could not go on with your business."

4. On the instructions of his employer, Ho made a report to the police. The applicant was apprehended and he was identified by Ho at an identification parade 5 days later.

5. Solicitor acting for the applicant (Solicitor) before the District Judge agreed as an admitted fact that after the applicant's arrest, at an identification parade held some 5 days after the event, he was "positively identified" by Ho as Ah Choi.

6. Solicitor did not even call upon the prosecution to establish the relevant circumstances surrounding or leading to Ho's admitted "positive identification".

7. Ho said in his evidence that six months after the event he might have difficulty at the trial to identify Ah Choi. Solicitor was apparently content with this possible memory defect, but he ought really to have at least put the applicant's case to Ho. Ho was not cross-examined at the trial. On the advice of his solicitor, the applicant elected not to give or call any evidence. The judge was left with Ho's unexplored veracity. Unaided by cross-examination, he concluded that Ho was a witness of the truth.

8. Counsel for the applicant criticizes Solicitor's conduct at the trial, to say the least, as being wholly inadequate. The applicant set out his complaints in an affirmation filed on the 15 April 1997. Solicitor filed his affirmation in response on 5 June 1997. We should not let the matter pass without this comment: in defence of the grave charges against him, it is almost impossible to understand how Solicitor could have allowed nine grammatical, punctuation and typing errors to remain in his affirmation uncorrected.

9. The admitted facts were as follows:

"Pursuant to Section 65C of the Criminal Procedure Ordinance, the following facts are admitted by Solicitor for defence and Counsel for Prosecution:

"1. The defendant was arrested by the police on 6 July 1996.

2. At an identification parade on 10 July 1996, Ho Wai-hong (PW1) positively identified the Defendant to be 'Ah Choi'. (emphasis supplied)

3. That 2 photographs exhibited as PP 1A & PP 1B accurately depicted respectively the office of Fook Tat Motors Company and the glass had broken by Ah Choi."

10. Solicitor signed these admissions; so did counsel for the prosecution. Solicitor did not and still does not seem to appreciate, from the tenor of his affirmation in response, the meaning of the word "positively". I wonder if one would need to be reminded what that word connotes. The Concise Oxford Dictionary defines it as "formally or explicitly stated, definite, unquestionable, convinced, confident in opinion, cocksure, absolute, not relative, downright, out-and-out".

11. Having taken a stance on what he understands to be the meaning of "positive" or "positively", in paragraph 3 of his affirmation, solicitor would seem to be perfectly conscious of the significance of that word. The second sentence in paragraph 3 of his affirmation reads: "Mr Cheng said defence was of mistaken identity. There is no positive defence and the Crown was therefore put to strict proof".

12. Solicitor denies his negligence. He still does not see the need for cross-examination of the officer, Chief Inspector Wong Wing-kee, who was responsible for the identification parade. Solicitor was expressly instructed by the applicant that he, the applicant, might have been mistaken for another villager who "had a similar look". Evidently, unexpected and/or unintentional shortfalls or prejudices in the conduct of the identification parade must be proper matters for cross-examination in a case of alleged erroneous recognition although the identification seemed to have been made at what would appear to be an uneventful identification parade. It is difficult to appreciate why the issue of mis-identification was not sought to be put to Ho in cross-examination. Solicitor has not responded to the applicant's claim that he, the applicant, was positively advised not to give evidence.

13. In the circumstances, it is really not necessary for this court to find facts except to note the matters common to all :

1. Solicitor advised the applicant to admit his identification at an identification parade as a positive identification;

2. Solicitor advised the applicant that the officer-in-charge of the identification parade needed not to be cross-examined;

3. The issue of misidentification was not put to Ho who was not even cross-examined; and

4. Solicitor advised the applicant not to give evidence.

14. On the unchallenged material, we are left with a disturbing feeling. We are unable to say that the applicant might not have suffered an injustice. For these reasons, we find the verdict unsafe and unsatisfactory. We allow his application and treat it as the appeal proper. We allow it. We quash his conviction and set aside his sentence.