THE QUEEN v. YAU KIN SUN

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application for leave to appeal against conviction on a charge of robbery and a charge of possession of an offensive weapon in a public place. The evidence for the prosecution was that a man wearing a blue T-shirt snatched the necklace from a woman's neck. She and her mother-in-law who was accompanying her were unable to identify the features of the man, but both said that they could identify the man by the T-shirt, and a woman who was looking out of a neighbouring house also saw the man running away when the hue and cry was raised and said that he was wearing a blue T-shirt. The man was seen by a police officer. The victim spoke to the police officer and the police officer gave chase. The police officer saw the man take off his T-shirt and throw it away. He then lost sight of the man. The chase covered a considerable distance. Another police officer who was at some further distance away heard of the chase and saw a man wearing a blue T-shirt running away, take off the T-shirt and throw it away. The police officer stopped this man and arrested him. It was the Defendant.

2. The defence was that the Defendant had just come to a market at the place where this incident occurred, had walked through the market and was going out the other side when he was stopped by a police officer. He said that he was, in accordance with his custom when at work, wearing no shirt at all. He was asked by the police officer, he says, for his identity card, which was in a bag at his waist: he opened the bag to get out his identity card and at that moment remembered that he had with him a knife which he used in the course of his trade, but, seeing the knife, he took panic and ran away and was then arrested. Clearly there was a conflict as to whether this man had been running from the time he was first seen or whether he was, as he says, accosted when he was about his lawful business and only subsequently ran away.

3. The Defendant called two witnesses: one of them was his wife and one his employer. The wife was called to state that the Defendant did not own a blue T-shirt and the employer was called to say that the Defendant used a knife similar to the one which was found in his bag for the purposes of his business: the business was that of a goldfish hawker and the knife was said to be used for the purpose of cutting hose pipe, which was used, presumably, for filling and aerating goldfish tanks.

4. The judge set out the evidence at some length and the passage in his judgment which has been the subject of attack is as follows:

"I found his wife was totally out of character as a goldfish hawker's wife. She was an attractive well groomed and nourished female. Her hands well cared for and over anxious in evidence to get out the fact that defendant had no blue T-shirt. I did not believe her evidence, having observed her in the witness box. The gold fish merchant was a thoroughly unconvincing witness. Again over anxious to describe the defendant's normal appearance when working and to explain how P3 (i.e. the knife) would be used. I did not believe his evidence- having observed him in the witness box."

The judge fully appreciated where laid the burden of proof: he was satisfied beyond all reasonable doubt that the Appellant was guilty of this offence. However, it is submitted that in this passage the judge has indicated totally unsound reasons for disbelieving the evidence of these two witnesses, and it is then submitted that, that evidence having been led to support the story of the Defendant, if it was wrongly disbelieved then the Defendant's evidence may wrongly have been disbelieved, and, so long as there was a possibility that the Defendant might have been believed, the judge could not properly say beyond all reasonable doubt that the prosecution evidence was true. We need say no more then that we think there is some justification for this criticism. It may well be that the judge was not indicating here his reasons for disbelieving these witnesses but, if that be so,it is not at all obvious why he made the observations that he did: they would seem to be totally irrelevant. At least it can be said that the Defendant would never believe that he had had a fair hearing of his case. We therefore think we are obliged to set aside this conviction. However, the evidence was very strong and we think justice requires that we should order a re-trial on both counts.

26th September 1986