CHEUNG WAI-TING v. THE QUEEN
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CACC000029/1972
IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 29 OF 1972
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| BETWEEN | ||
| CHEUNG Wai-ting | Appellant | |
| and | ||
| THE QUEEN | Respondent |
Coram: Leonard J. in Court.
Date of Judgment: 23rd February, 1972.
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JUDGMENT
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Leonard J.:
1. The appellant appeals from his conviction of robbery. The evidence of the complainant was to the effect that while he was in the public toilet at Block 8 Tung Tau Resettlement area 1st floor on the 11th November 1971 at 3.45 a.m. he was robbed by two persons, one of whom held a chopper. Ther other one whom he identified in court as the appellant, and described as wearing a white shirt, took the victim's wrist-watch. The victim was cross-examined as to the identification as follows:-
| "Q. | Did the 2 Police Constables and I arrive together at your house? | ||
| A. | You were left at ground floor while the two Police Constables knocked at the door. | ||
| Q. | Correct to say that you could not recognise me but from the wrist-watch I was wearing. You said that you could recognise the wrist-watch and from that wrist-watch you could recognise me. | ||
| A. | Yes." | ||
| ......................................................................................... | |||
| "Q. | How would it happen that you can't recognise me and can recognise wrist-watch from which of these were you able to recognise me?" |
The answer to this double question was evasive.
| A. | "When you took off my watch surely I would look at you." |
[It will be noted that in examination in chief this witness had said, "The other one told me to take off my wrist-watch and I did. The defendant was the one who took off my wrist-watch ......" This inconsistency passed unnoticed.]
| "Q. | How was it you could recognise my wrist-watch so clearly? | ||
| A. | When you placed your hand on my head I took a look at you and I saw your wrist-watch was golden." | ||
| Q. | Your worship is it possible that he can recognise me from a wrist-watch I was wearing? Is it only the wrist-watch that made you identify me? | ||
| A. | Yes, and the face." |
2. The appellant was arrested (having tried to run away on being challenged by, the police officer and after a tussle with him) one hour after the robbery, outside the very block in which it took place. The arresting officer took the extraordinary course of bringing the appellant in hand-cuffs to the house of the victim at about 5.00 a.m. to see if the victim could identify him. He denied that the victim had identified the appellant from the watch he was wearing but said that the victim looked at the watch to see if it was the one stolen from him. He swore that it was not an identification by means of the wrist-watch. There were thus sharp discrepancies between the two essential witnesses for the prosecution.
3. The appellant put up an uncovincing alibi in his defence. Notwithstanding the discrepancies between the evidence of the victim and the arresting officer, the absence of anything in nature of an identification parade and the allusions to recognition by means of the wrist-watch the learned magistrate stated that he was satisfied beyond reasonable doubt that the victim, P.W.l's identification of the appellant as his robber was nothing less than the turth. The learned magistrate does not appear to have considered the possibility of the victim having been honestly mistaken nor does he have appear to have adverted to the highly unusual action of the Constable in bringing the appellant for identification in hand-cuffs instead of arranging for a proper identification at a more suitable time and place.
4. Reluctant although I am to interfere with a dicision on a pure question of fact, since identification was the sole issue before the learned magistrate and since there was not a shred of evidence other than the place and manner in which he tried to evade his arrest, (themselves highly equivocal factors), to connect the appellant with the robbery, I consider that it would be unsafe to permit this verdict to stand. Too many such less vulnerable identifications have, in the past, proved to be false although honest. I, therefore, allowed this appeal.
| (P.F.X. Leonard) | |
| Puisne Judge |
23rd February, 1972
Representation:
Appellant in person.
E. Li for Respondent.