THE QUEEN v. TONG HEUNG YEE

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H E A D N O T E

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1. If a suspect refuses to participate in an identification parade it is legitimate for the police to arrange a confrontation for the purpose of seeing whether the potential witness would identify the suspect thereat. The resulting fact that an identification was made at a confrontation rather than at a parade does not of itself make a conviction unsafe or unsatisfactory provided that the trial judge's directions to the jury included a direction on the limitations of a confrontation as opposed to a parade.

2. Counsel cross-examining a witness on a statement should supply copies to the witness and the jury if, in the circumstances, it would be unfair to the witness not to do so or difficult for the tribunal to follow the cross-examination unless that was done. But it does not follow that it is necessary in each and every case that the statement be supplied to the witness and the jury.

3. There is no rule that the jury has to be told in so many words that it is for the Crown to disprove an alibi. It is sufficient if the nature of the general directions to the jury on the burden and standard of proof are such that it must have been clear to the jury that they had to acquit if they were left in a reasonable as to whether the alibi was true.

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J U D G M E N T

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Bokhary J. delivered the judgment of the Court :-

1. On February 28, 1989, following, a trial before Mr Justice Bewley and a jury, the applicant was convicted of two offences. On the 1st count, he was convicted of doing an act tending and intended to pervert the course of public justice, contrary to Common Law. On the 2nd count, he was convicted of wounding with intent, contrary to section 17 of the offences Against the Person Ordinance, Cap. 212. He now seeks leave to appeal against those convictions.

2. The case for the Crown, shortly stated, is as follows: In the early afternoon of September 17, 1988, a Detective Police Constable was - in a street in Wanchai questioning a man whom he suspected of having picked someone's pocket. While this questioning was going on, the applicant approached the constable and the suspected pickpocket whom he was questioning. With some encouragement from the suspected pickpocket, the applicant offered the constable a sum of money in cash with a view to persuading him to desist from the investigation which he was conducting. In other words, he tried to bribe the constable. The bribe was refused, whereupon the applicant threw a punch at the constable. The suspected pickpocket joined in this attack upon the constable. The constable was manhandled into a nearby shop. He was kicked and punched. He drew or attempted to draw his service revolver; but before he could put his revolver to any use, he received a blow on the head with a metal object, probably an iron bar, wielded by one of his attackers. Having received that blow, the constable lost consciousness. When he came to, he was covered in blood, and the attackers had gone. He was taken to hospital where he stayed for three days including the day of admission and day of discharge. His injuries included three deep cuts which needed suturing : one on his forehead; one on his right eyebrow; and one on his left eyebrow.

3. It was not seriously in dispute that the constable had undergone the experience which he said in the witness-box that he had undergone. What was in dispute - and hotly in dispute - at the trial was the question of identification. Mr Matthews, who presented the case to us on behalf of the applicant, described identification as the 'nub of the case'.

4. The incident, as we have indicated, took place on September 17, 1988.

5. On October 6, 1988, the constable picked out a photograph of the applicant which appeared at p.72 of the third of three books of photographs placed before him. He said that he was "80% certain" that the man in the photograph which he picked out was the man who had offered him money and then, together with the suspected pickpocket, attacked him.

6. On October 12, 1988, the constable identified the applicant in a direct confrontation which was arranged following the the applicant's refusal to participate in an identification parade for the purpose of seeing if the constable would pick him out.

7. The constable expressed himself at the confrontation as being "100% certain" of the accuracy of the identification which he made at that stage.

8. The Crown also called a Mr Yu, who saw the incident from inside a stationary public light bus. At an identification parade held on October 12, 1988, he picked out the applicant as someone who "looked like one of the persons involved in the fight". The learned Judge in his summing up said that Mr Yu's identification might amount to support for the identification by the constable.

9. At the forefront of his submissions before us, Mr Matthews contended that the learned Judge should have, withdrawn the case from the jury because the identification evidence was too unreliable to be placed before a jury. Coming straight to the point, we disagree.

10. What the case called for, however, was a very careful direction on the inherent dangers of identification evidence and the particular limitations of the evidence of identification in the present case. The learned Judge gave such a direction. Emphatically and repeatedly, he warned the jury of the dangers of identification evidence in general and of the limitations of the identification evidience in this case in particular.

11. A great number of points were taken before us. The bulk of them, quantitatively anyway, can be dismissed simply on the basis of what we have already said. Certain other points require further treatment. We do not take these necessarily in the order in which they were advanced by Mr Matthews.

12. Of these points the first which we chose to deal with arises from the fact of a confrontation having taken place. It is true that in this case the identification was made first by photographs and then by confrontation. We refer, of course, to the identification by the constable. Nobody would suggest that identification by photographs, followed by identification by confrontation is ideal. Clearly it is not; but in this case the applicant declined to attend an identification parade for the purpose of seeing whether or not the constable would pick him out. It is, said that when he was invited to take part in an identification parade the applicant was not informed that he could have a solicitor present thereat. We do not see what useful purpose the solicitor could have served at such a parade unless it is thought that, in the absence of a solicitor, the parade would be conducted improperly. We do not understand that to be suggested. The police approached this matter in a way in effect forced upon them by the choice made by the applicant. We do not critize the applicant for the choice which he made; but the consequence of that choice was identification by confrontation. We do not think that the fact that there was here a confrontation rather than a parade was any basis for doubting the safety or satisfactoriness of the conviction. The learned Judge had adequately directed the jury on the limitations of a confrontation as opposed to a parade.

13. The second specific point which we deal with arises out of the statement by the police constable that he was "80% certain" that the man in the photograph was the man who offered him money and later joined in the assault upon him. In this connection, Mr Matthews drew our attention to R. v. Yeung Kuen-chi [1984] HKLR 447. In that case this Court deprecated the use of percentages in directions to the jury on the standard of proof. That is a very different thing from saying that evidence by a witness that he was 80% certain in regard to an identification could not properly be put before the jury for what it was worth. In any event, the point is overtaken by the evidence of identification at the confrontation. This point is also without substance.

14. Thirdly, we come to this point : At the trial the, Crown and the defence were careful not to inform the jury that the books of photographs shown to the constable were shown to him by the police. It was felt - understandably in our view - by counsel on both sides that telling the jury that might lead them to believe that the books were those of persons who had been convicted of criminal offences, and so conclude that the applicant had a criminal record.

15. The learned Judge in his summing-up stated that the photographs were shown to the constable by the police. In so stating we do not think that he was telling the jury anything that they were not bound to assume anyway. That assumption might have led to speculation on their part of the sort feared by counsel. The learned Judge, having told the jury that the photographs were shown to the constable by the police, gave them a clear direction that they must not speculate as to why the police had in their possession a photograph of the applicant. On the whole, we are of the view that the applicant was at least as well protected by the way in which the learned Judge dealt with the matter as he would have been if the matter had been left in the way that counsel had devised. Indeed, we incline to the view that the learned Judge's approach gave the applicant better - protection. There is nothing in our judgment, in the complaint as to how the applicant came to be shown photographs.

16. The fourth specific point with which we deal has to do with statements made by witnesses. In cross-examining some of the witnesses on the evidence they gave in court, counsel for the defence put to them discrepancies between their statements to the police, and their evidence in court. For the purpose of this cross-examination, counsel wished to have the statements before the jury. The learned Judge declined to allow this course to be pursued. In so ruling, he said that he would deal with the discrepancies in his summing-up. Here, two complaints are made : First of all, it is said that the learned Judge should have allowed these statements to be placed before the jury. Secondly, it is said that he did not deal with the discrepancies adequately when he came to direct the jury.

17. As to the first complaint, counsel for the applicant has drawn our attention the decision of this Court in R. v. Yip Chi-keung (1988) HKLR 229. There this Court said that counsel cross-examining a witness on his statement should supply copies to the witness and the jury if, in the circumstances, it would be unfair to the witness not to do that or difficult for the tribunal to follow the cross-examination unless that was done. Nobody could or would quarrel with such a view. It does not follow, however, that it is necessary in each and every case that the statement be supplied to the witness and the jury. In this particular case, it did not seem to be necessary. The discrepancies were accepted by the witnesses; and, on the whole, we do not think that the cross-examination was such as could not properly be followed in the absence of the statements.

18. As to the second complaint, we have looked at the way in which the learned Judge dealt with discrepancies; and, in all the circumstances, we do not think that his approach can be faulted. This point does not cause us any anxiety.

19. Fifthly, it is said that the learned Judge entered the arena. He asked two questions of Mr Yu just before that witness left the witness-box. The questions and answers run thus :-

"Q. Just one matter. Did both of these men have big eyes?

A. Yes.

Q. I see. And that assisted you in your identification, at the parade?

A. That was one point, Sir. The fact is : I recongnised him as in general."

20. At one stage, Mr Matthews seemed to be suggesting that this notion of both men (namely, the suspected pickpocket and the assailant alleged by the Crown to be the applicant) having big eyes was a concept introduced into the case by the learned Judge without any foundation whatsoever. If that were so, then one could understand the suggestion that the learned Judge has stepped into the arena we do not say that we would ultimately have come to the conclusion that the learned Judge had done so. But the basis for making the submission would then have been one which could be appreciated. However, as was drawn to our attention by an intervenion by Mr Cross who appears for the Crown, it was, in fact, the case that the witness had eariler said that both men had big eyes. He did not put in that way, namely, "both man had big eyes". But at one stage he said the thin man had big eyes. And at another stage he said that the stout man had a big eyes. That being so, the learned Judge's questions were perfectly proper, questions by way of clarification.

21. The other respect in which it suggested the learned Judges had stepped into the arena was this : The constable had said that the stout assailant spoke with a "country" accent. A police officer who took a statement from the applicant said that the applicant spoke with such an accent.

22. The identification parade was conducted by a Chief Inspector. The Chief Inspector did not note down that the applicant had a country accent. The learned Judge, just before the Chief Inspector left the witness-box, questioned him. The questioning ran thus :-

"Q. Yes, but does it depend on your record or on your memory?

A. Depends on my, record.

Q. So he could have the strongest accent. If you didn't think it was relevant, you wouldn't have recorded it?

A. If he got a very strong accent, then I would certainly record it.

Q. You would?

A. I would."

23. When he came to direct the jury, the learned Judge did raise with the jury the possibility that the Chief Inspector had failed through inadvertence to record the fact that the applicant spoke with a country accent. And the , learned Judge asked the jury to consider the possibility that the Chief Inspector denied in the witness-box that the applicant spoke with a county accent in order to protect himself from criticism over such inadvertence.

24. If the question of a country accent formed any material part of the identification evidence as left to jury by the learned Judge in his summing-up, then the things which the learned Judge said might have presented us with some cause for concern. However, the question of a country accent was never put to the jury by the learned Judge in the summing-up as reliable evidence of identification. The learned Judge was, as we have indicated, only too well aware of how careful one had to be with identification evidence. He directed the jury to view with circumspection even evidence which was much stronger as evidence of identification than evidence of a country accent or anything of that kind. The point as to the learned judge entering the arena does not cause us any concern.

25. The final point which seemed to us to require specific mention has to do with an alibi. The applicant did not give evidence. But there was before the jury a statement of his which pointed to an alibi or a possible alibi. The Crown called some evidence to rebut, in anticipation, that alibi which, in the result, was never really put forward as no evidence in support of it was adduced. It is said on behalf of the applicant that the learned Judge should have directed the jury that it was incumbent upon the Crown to disprove the alibi. It is also contended that the learned Judge should have directed the jury that the evidence called by the Crown with a view to rebutting the alibi did not, in fact, rebut the alibi. When we talk about "the alibi" we refer, of course, to the alibi foreshadowed in the statement to which we have referred. We do not think that it was incumbent upon the learned Judge to give any of the directions suggested. The burden of proof was on the Crown; and that burden was to prove the case beyond reasonable doubt. The learned Judge made this perfectly clear to the jury in general directions against which no complaint can be, or has been, made. The jury could not have been left in any doubt as to where the burden lay and what it involved. This point does not cause us any concern.

26. With that I come to the end of this judgment. It must be clear from what I have already, said that it is our view that the application necessarily fails. It is dismissed