THE QUEEN v. HO KWOK MAN

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 526 OF 1985

------------------

------------------

----------------

JUDGMENT

----------------

Power, J. :

1. The applicant was found guilty on 11th December 1985 after trial by Tung, D.J. in Kowloon District Court of robbing TANG Yuen-ping of a necklace on 30th August 1985.  He now seeks leave to appeal against that conviction.  The facts of the matter were that at about 9:35 p.m. on Friday the 30th August Miss Tang and her friend Mr.  Tao were sitting on a grass patch on the hillside near the North Kowloon Magistracy.  At this time, according to their evidence, they were approached by a person, whom they later identified as the applicant, who produced a card and identified himself as a police officer.  He demanded to see their identity cards which they produced and, after he examined them, he returned back down the hill.

2. Approximately 15 minutes later, they say, he returned to where they were seated and again demanded to see their identity cards, and again, after examining them, gave them back.  The evidence was that he went up the hill but returned shortly afterwards and it was then that the robbery took place.  He grabbed Miss Tang by the neck and demanded money from her and, when no money was forthcoming, demanded her necklace which was given to him.  The two witnesses said that he left the scene going down the hill, that after following they lost sight of him but that, after reaching Castle Peak Road, they again saw him and reported the matter to a patrolling police officer who apprehended him.

3. The first ground argued was that the judge was wrong when he permitted Mr.  Tao to make a dock identification of the applicant and that he relied on this identification when reaching his verdict.  What must first be said is that this was not a dock identification of the kind to which reference was made by the Attorney General in the United Kingdom in his guidelines for cases in which identification is an issue.  The applicant had been identified positively at the scene.  There was no issue in this trial as to whether the person in the dock was the person who had been apprehended.  Had there been, the dock identification would have been objectionable.  The issue, as the trial judge was clearly aware, was whether Mr.  Tao had correctly identified the applicant at the time of his apprehension.  We are satisfied that the trial judge, when he referred to the identification by Mr.  Tao of the applicant in the dock, was doing no more than indicating, as he was entitled to, that the witness was consistent in his identification evidence.

4. The second ground was that the judge was wrong when he permitted evidence of a statement by Mr.  Tao to a police officer, made outside the presence and hearing of the applicant, identifying him as the robber.  It is correct that this statement was not admissible as evidence of the truth of its contents, but there is nothing in the reasons for verdict to suggest that the judge so regarded it.

5. Such evidence was admissible as part of the sequence of events and to explain the actions of the police officer to whom the statement was made in arresting the defendant.

6. In any event, immediately after the defendant's arrest, Mr.  Tao repeated his verbal identification of the defendant in the latter's presence and hearing.  The admissibility of that evidence was not challenged.

7. The third ground was that the judge, when reminding himself of the guidelines set out in R. v. Turnbull & Others [1976] 3 All E.R. 549, failed to remind himself that a honest witness may be a mistaken one.  We find no substance in this ground.  The trial judge expressly said that he reminded himself of "the guidelines in Turnbull's case".  The first, set out in the judgment of Lord Widgery, C.J., is that :-

" ……whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications.  In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken."

This was one of the guidelines which the trial judge specifically stated that he had in mind - that a convincing witness could be a mistaken one.  He was an experienced judge and we are satisfied that no weight should be given to the suggestion that, despite what he said, he might somehow have overlooked this first safeguard.

8. The fourth ground of appeal was that the judge failed to remind himself that the use of the word "weapon" by Mr. Tao when giving evidence about the robbery and its subsequent withdrawal should raise serious doubts as to his veracity and, in particular, should raise doubts as to the reasons which he advanced to the Court for not seeking help from person who were passing at the time of the robbery.  When dealing with a ground such as this, judges hearing appeals must keep in the forefront of their minds that the assessment of the credibility of witnesses is a matter very much for the trial judge who has seen the witnesses and heard them cross-examined.  Although the fact that a robbery had taken place was not an issue at the trial the credibility of this witness was, nonetheless, of vital importance as it was upon his evidence that the judge relied to establish the identity of the robber.  The judge was mindful, as he made clear in his Statement of Findings, of this feature of Mr. Tao's evidence.  Having taken in into consideration, he was left in no doubt as to the truthfulness of Mr Tao and the correctness of his evidence.  We do not consider that this ground raises anything that warrants interference with that finding.

9. In the fifth ground it was submitted that the trial judge, although he was not prepared to give much weight to the evidence of Miss Tang, was wrong in holding that he was nonetheless satisfied that she corroborated the evidence of Mr. Tao to a great extent.  It was urged that, as the only issue in the case was one of identity, the judge should not have allowed himself to be influenced in any way by the evidence of Miss Tang.  It was submitted that, given the view he took of her evidence, he should not have had any regard to it at all.

10. To understand the view we take of this matter one must look at the findings that were made by the judge and the sequence in which he made them.  Before dealing with the evidence of Miss Tang, he dealt with the evidence of Mr. Tao.  He said that he had "studied the guidelines in Turnbull's case because I am fully aware that this case is wholly hinged upon the evidence of identification".  He went on to say : "I believe in PW2, Mr. Tao.  I accept his evidence.  I give full weight to his evidence.  I am satisfied beyond reasonable doubt of his identification of the defendant as the robber at the material times and place." It was only after making this finding that he turned to consider the evidence of Miss Tang.  He found that she appeared to be a honest witness but did not consider that she was very mature.  He said that her evidence was consistent and corroborated the evidence of Mr. Tao to a great extent, but that he did not give too much weight to it.  He had clearly accepted the evidence of Mr. Tao before making any reference to that of Miss Tang.  We are satisfied that he was doing no more, when he said that the evidence of Miss Tang corroborated that of Mr. Tao, than saying that, while she was not a witness upon whom he was prepared to place any real reliance, her evidence, did as far as it went, bear out and support the evidence, which he had already accepted, that had been given by Mr. Tao.

11. We turn to ground six.  In this ground the complaint was that the trial judge had rejected the evidence of the applicant for reasons which were unsafe and unsatisfactory.  It was suggested that the reasons given by him for rejecting this evidence were illogical and unfair given his finding that the applicant had told "quite a consistent story".

12. There were three particular matters of complaint.  Objection was taken firstly to the observations as to the demeanour of the applicant made by the judge when dealing with his evidence in which he said that at the time the robbery was being committed he was at the podium of a restaurant thinking over his quarrels with his wife.  It was suggested that the judge, having observed that he had told a consistent story, should not then, had he been making a fair assessment, have had doubts for what, it was suggested, were flimsy reasons, as to whether he was really at the podium of the restaurant at that time.

13. Secondly objection was taken to the criticism by the judge of the evidence of the applicant in which he stated his attitude to the evidence of Mr. Tao and Miss Tang.  The applicant said in this regard that he "thought" that they might have made a wrong identification.  It was suggested that the emphasis which the judge gave to this piece of evidence, and it can be seen that he did emphasize it because he underlined the words "thought" and "might" in his notes was illogical and unfair.

14. It was also suggested that he did not take into account that the witness might be simply using a form of politeness when he used the terms he did and that he failed to consider that what the witness might have been trying to convey was that these witnesses were honest but mistaken.  Both the fairness of the impressions which the judge formed and the use to which he put those impressions is in question.

15. The judge, when setting out these matters, was giving, in a detailed way, his observations as to the demeanour of the applicant.  The validity of reasons for not believing a witness because of his demeanour can rarely be appreciated from a judge's written statement thereof.  Such observations, when detailed, being matters, as they must be, of impression, are easily criticised.  Indeed Courts often refrain from detailed analysis in this regard and simply state that "the demeanour of the witness was not impressive" or that "he was a less than convincing witness".

16. We are satisfied that these remarks can properly be taken as conveying no more than that the judge, although he was satisfied that the witness cold a consistent story was, having regard to his demeanour, not satisfied that it was a truthful one.

17. Thirdly objection was taken to an observation of the trial judge which was as follows :-

"On the whole he (the applicant) told quite a consistent story.  However I am aware that he had been in the police force for 5 years and had experience to give evidence in Courts."

It was suggested that this remark showed that, instead of giving the applicant the benefit of the doubt, the judge was prepared to act on the implication that be was an experienced liar.  We are unable to accede to this suggestion.  All the judge was doing was saying that the evidence of the applicant had to be assessed in the light of the fact that he was an experienced witness.  The judge was perfectly entitled to use this common sense approach which is of a kind to which the courts must have recourse when assessing the evidence of witnesses.

18. For the above reasons, we are satisfied that this application must be refused.