THE QUEEN v. CHOI YAU FUK

Headnote

Similar fact evidence, where there are 3 charges and the evidence on each is put forwards as probative of guilt on the other two, if a judge still has doubts about one charge and acquits he must not then still consider the evidence on that charge in relation to the other two. Here evidence still strong and proviso applied. (P.7-10)

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J U D G M E N T

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Penlington, J. A.:

1. This is the judgment of the Court.

2. This is an application for leave to appeal against convictions in the Tsuen Wan District Court before His Honour Judge Tune on charges of false imprisonment and indecent assault.

3. There were originally six counts before the Court. Counts 4 and 6 related to the same occasion on the 12th May 1987 in relation to the same young girl, but each related to a slightly different place within Block 6 of the Kwai Chung Estate, New Territories, where indecent assaults took place.

4. There was also a count of common assault which the judge dismissed, as he did the 4th and 6th counts. The dismissal of those later counts gives rise to one of the grounds of appeal argued before us.

5. The gravamen of the grounds of appeal advanced by leading counsel, Mr, Sedgwick for the applicant is that firstly the judge has not taken into account the guidelines laid down in the well known case of R. v. Turnbull^(l) when considering the evidence of identification from the victims in each case. It is emphasised that all the victims were young girls who must have been terrified by the events hick undoubtedly did take place, the question of identity being the only one in issue.

6. While the solicitor who appeared for the applicant at the trial did not rely on had lighting conditions, nevertheless there was come evidence that it was not always good. In one case the events tool, place over a short period of time and taking the factors set out in Turnhull^(l) into account, Mr submitted that the evidence of identification was not such that the judge should have found, as he did, that be could place reliance on it. It is then necessary to look at the evidence on each count.

7. The 1st count relates to an incident on the l9th May 1986 in Block 27 of the Estate. The complainant, then aged 14, related how she had been followed by a man when she was returning to her home in that Block at 8.30 p.m. This man eventually came up to her on the 4th floor and asked about an alleged assault earlier that evening on his young sister. She said the lighting was bright and they were face to face during, this conversation. She was then pulled down to the 1st floor by the man and into a toilet which was lit. There she was threatened all her clothing removed and she was indecently assaulted. The assailant then offered her some money, which she refused, and left the toilet The victim left a little while after, returned home and told her sister what had happened. A complaint was immediately made to the Police. While the victim gave a description of the man she was not then asked to prepare an "identikit" drawing, of him.

8. The complainant said in evidence that some months after the incident she save the assailant on about 10 occasions in Kwai Chung Estate and reported these instances to her sister, but not to the Police. However on the 3rd June 1987 she rows again interviewed by the Police, related these instances of seeing , the man and, with the assistance of a Police artist, prepared a sketch of him. This was admitted as an exbibit, as was a recent photo of the applicant and the trial judge was of the opinion that they were similar. It is not clear why the sketch was not compared with the applicant himself but no point is taken of that. Finally at an identification Parade, at which the applicant's solicitor as Present, the victim identified the applicant as the man who assaulted her in may the previous year. She also identified him in Court.

9. It is submitted that, while the identikit sketch was admissible no reliance should have been placed on it in view of the time lapse of over a year between its composition and the offence. Reliance is placed on R. v. CooK⁽²⁾. While the Court of Appeal there held that the sketch was admissible and was not hearsay, at p.781 Watkins L.J. said -

We regard the Production of the sketch or photofit by a Police officer making a graphic representation of a witness's memory as another form of the camera at work, albeit imperfectly and not produced contemporaneously with the material incident but soon or fairly soon afterwards."

Here it is argued that the sketch was not so prepared.

10. It was also submitted that the trial judge had not taken into account the fact that none of the clothing, seized from the applicant at the time of his arrest was identified by the victim. This, coupled with the gap of over a year between the offence and the identification made by the victim at the parade was such that the identification evidence, coming from a girl who was only 14 at the time was such as to make the evidence unreliable.

11. We do not agree with those submissions. While in Cook⁽²⁾ the court was considering a case where the sketch was made very soon after the incident the consider that a long delay, even as in this case, one of over a year, is most relevant to the weight to he attached to be it. However that was clearly borne in mind by the trial judge in his very careful and detailed reasons for verdict. He relied on it only to reinforce the positive identifiction at the parade. In view of the lapse of time we also do not regard as significant the failure of the witness to recognise any of the clothing seized from the applicant.

12. Charge 2 relates to an incident on the 22nd May 1987. A young girl then aged 11 was returning hone from school in Block 42 of the Kwai Chung Estate when she saw a man in front of her mho seemed to be looking for someone. She passed him but suddenly the pan gabbed her from behind and dragged her to the 4th floor toilet. There were fluorescent lights in the toilet which were on. She was made to stand with her back to the wall and was facing the man, she said about 2 feet away. He then spoke to her, using foul language and touched her private part over her trousers.  He then used some more foul languge and left the toilet. The girl then ran home, told her mother what happened and eventually a report was made to the police she gave a description of the man giving his age as about 20 and also attended an identification parade held on the 11th June 1997 some 3 weeks after the incident. She asked each person or the Parade to speak and when they had done so she said she recognised the applicant as the man who had assaulted her .

13. This evidence is attackeg on the basis that the judge did not warn himself of the dangers of voice identification and that the witness had described the man as about 20 years of age whereas the applicant is 36. Again however we are satisfied that these were matters which were fully in the mind of the judge and he was satisfied as to the reliability of the identification.  We were referred to a report prepared by a committee, the Bryden Committee, in Scotland, which considered that voice identification alone should not be sufficient in itself to found a conviction. Even if that is correct, and were is no other authority cited to support that view, here the witness did say she recognised the applicant on the parade before asking them to speak. She admitted that she did not say so at the time. Again the judge took these factors into account but found the witness to be most impressive and he was satisfied that her identification was reliable.

14. The 3rd charge concerned another girl, then aged 14, who was on her way home in Block 9 of the Kwai Chung, Estate at 8:30 p.m. on the 21st February 1986, She noticed she was being followed by a man. At the 3rd floor of Block 9 this man came up to her. They had a conversation. He asked her if she bad seen people fighting. She became frightened and ran away but was followed, held by her collar and pulled back to a spot outside a toilet. He tried to pull her into the toilet which was under repair but at that stage a young man came past and the girl as released. She ran home and reported the matter to the Police. At an identification parade held on the 11th June 1987 she identified the applicant as the man who attacked her and she also recognised him in Court. The young man gave evidence confirming the incident but made no identification.

15. Again this evidence is attacked, as it was at the trial, as that of a young girl who must have been very frightened an that the identification was made some 16 months after the incident. The Judge was however also impressed with the cuality of her evidence, even taking into account those factors, and said he had no doubt it was reliable.

16. That the judge was fully was are of the caution required when considering identification evidence of this sort is clearly shown when he found he had a doubt about the evidence given in support of counts 4, 5 and 6. In respect of counts 4 and 6 it came from a girl aged only 11 on the 12th May 1987 when she was accosted at Block 5 of the Kwai Chung Estate by a man who asked if she had ever hit his young sister. She was then taken to a landing on the stairs and indecently assaulted. She also identified the applicant on the 21st June and maintained in evidence that she had not made a mistake. However in cross-examination it was put to her had she identified the man "because he had the physical characteristics of the man who assaulted her but was not actually the man; is that fair?" She replied "it is Fair", That, with respect; was a double question and should not have been allowed but it did cause the Judge to have a doubt and he dismissed counts 4 and 6.

17. We have fully considered the identification evidence given in support of each of the charges, as did the trial judge, in the light of the guidelines laid down in Turnbull⁽¹⁾. We see no reason to differ with his view that it was, in each case, reliable.

18. The other main ground of appeal is that the trial judge has sought support for his finding that it was the applicant who committed these offences from the "similar fact" background of each of the counts, in particular counts 1, 3, 4 and 6. In relation to the 1st and 3rd there were undoubtedly similar facts. The encounter between the man and the victim in each case began with a conversation in which the man asked the victim whether she had witnessed a fight. There was a pushing of the victim into a toilet. The offences all took place in the Kwai Chung, Estate. In each case the victim was a girl of 13 or 14 years of age and the offences took place within a reasonably short time, one in February and one in May 1986.

19. The leading authorities on the question of how evidence in relation to one charge may be considered as supporting another count are R. v. Boardman⁽³⁾ and R. v. Kilbourne⁽⁴⁾. In Boardman⁽³⁾ Lord wilberforce said at p.444:

"The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force.  This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience, and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly he asked to judge whether the right conclusion is than all are true, so that each story is supported by the other(s).

There were similar dicta from Lord Salmon at p.462. He said that tare test eras is the evidence capable of tenting to persuade a reasonable jury of the accused's guilt on some ground other than his bad character and disposition to commit the sort of crime with whick he is chared" These dicte were considered in R. v. Hance and Herron⁽⁵⁾. Lord ... (illegible) L.C.J. said at p. 121:

"    It seems to us that one must be careful not to attach too much importance to Lord Salmon's vivid phrase 'uniquely or strikingly similar.' The gist of what is being said both by Lord Cross and by Lord Salmon is that evidence is admissible as similar fact evidence if, but only if, it goes beyond showing a tendency to commit crimes of this kind and is positively probative in regard to the crime now charged. That, we think, is the test which we have to apply on the question of the correctness or otherwise of the admission of the similar fact evidence in this case."

The phrase "strikingly similar" was further considered in R. v. Scarrott⁽⁶⁾. At p.1022 Scarman. L.J. said -

"    We therefore have to consider in this appeal whether the evidence sought to be adduced by the Crown does reveal similarities which may be describe as striking or, as we prefer to put it, which may be described as giving to the evidence positive probative value. We must bear in mind that our decision must proceed not upon an attempt to categorise the law under a vivid or unforgettable label, but upon the basis of seeking out the substance of the law and seeing whether, the law being in substance what it is, the evidence sought to be adduced possesses the necessary degree of Probative value. At the end of the day it appears to us that what has to be determined is whether the similar fact evidence sought to be adduced possesses, logically considered, a probative value sufficiently positive to assist the court to determine whether or not the offence charged against the accused was committed by him."

The trial judge was referred to several other decisions such as R. v. Clarke⁽⁷⁾ where it was held that there should have been severance of counts relating indecency with the defendant's step-son and setp daughter as there was no sufficient similarity.

20. Based on those principles we are satisfied that here the trial judge could, in his iscretion, decide as he did that there was sufficient similarity between the facts of charges 1 and 3 to find that the evidence on each was Probative of the other. There could of coarse be no question of prejudice, this not being a trial before a jury.

21. What does however cause us some concern is that in relation to the 4th and 6th counts, where the District Jude acquitted the applicant, the judge appears to have ruled that he could consider such similar fact in relation to counts 1 and 3. No doubt he should have stated when he dismissed the 4th and 6th counts that he did not then consider the evidence on those counts in relation to the 1st and 3rd.

22. In relation to charges 4 and 6 the judge was entitled to consider the evidence in relation to counts 1 and 3, on the similar fact principle. However when he decided that even with that evidence he had a doubt as to the guilt of the applicant on counts 4 and 6 he could not then consider the evidence of identity on those counts when reaching a decision on counts 1 and 3. This may have required a certain amount of mental agility and, if it was a Jury trial, would have called for a very careful direction.

23. However quite clearly from the judge very careful. reasons for verdict in relation to the chares on which he was convicted he was quite satisfied that the evidence of identification on its on as sufficient to justify the conviction. He was also entitled to consider the similar fact evidence in relation to charges 1 and 3. That he may have considered the similar fact evidence in relation to the 4th and 6th charges was a material irregularity but we are also satisfied that there was ample other evidence which was accepted by the judge as reliarable and no injustice has occurred. He have no hesitation in applying the proviso.

24. For these reasons the application for leave to anneal is refused.

(1) [1977] Q.B. 224

(2) [1987] 2 W.L.R. 775

(3) [1975] A.C. 421

(4) [1973] A.C. 729

(5) 1976 62 Cr.App.R. 118

(6) 1978 Q.B. 1016

(7) 1978 67 Cr.App.Rep.398