CHAN HO YIN ALIAS CHAN SHEUNG KUEN v. THE QUEEN

CACC001033/1980

IN THE SUPREME COURT
	Criminal Appeal
	1980 No. 1033

BETWEEN
	CHAN HO YIN Alias CHAN SHEUNG KUEN	Appellant
	and
	THE QUEEN	Respondent

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Coram: Liu, J. in Court.

Date of Judgment: 30th December, 1980

 

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JUDGMENT

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1. The owner found his car missing in the morning of the 20th July. Some six days thereafter, at about midnight, while he was out on his motor-cycle on a searching expedition for his missing vehicle, he came face to face with his car driven in the opposite lane by a person whom the owner testified to he the appellant.

2. The learned magistrate duly warned himself against the pitfalls highlighted in the case of Turnbull, and having so guided himself, he was satisfied with and accepted the identification evidence given by the car owner. I would return to his viva voce evidence in a moment or two.

3. In the Statement of Findings of the learned magistrate, as it was fairly conceded by counsel for the Crown, there appear a number of misinterpretations of the evidence led before the court. In two different paragraphs at page 11 of the record of appeal, it was taken as having been admitted by the appellant that a man, Leung had not come to the bar by eleven, at or about which time the appellant left with the waitress. The conclusions reached on that assumed admission were firstly that in the version given by the appellant, he must have himself driven the car to the bar thus corroborating the owner's evidence and secondly, that he had gone by himself to and was throughout alone in the bar. When one turns to the evidence of the appellant at page 6 of the Record of Appeal, it is tolerably clear that according to the appellant he and his friend LEUNG Yiu-ping had a drink together, after the drink, he was given a key on Leung's departure for Yuen Long, and after 11 p.m. Leung had not returned to the bar at Kam Tin. From the totality of the evidence of the appellant and the waitress, the version was that when Leung left between 11 to midnight, the key was given to the appellant and that when the appellant went for the car, he was alone with the waitress.

4. These misinterpretations of the evidence have given rise to difficulties. It was intimated by counsel for the Crown that but for these errors, the doctrine of recent possession would have been invoked. In view of this, the Crown was content to rest on the evidence of the owner alone. It was urged upon me that the learned magistrate had the opportunity of observing the demeanour of the owner who was found to be credible and accurate. It was argued that the owner's identification was well supported by his sighting of the driver and that he was equally reliable at the point of time when the appellant allegedly alighted for the bar at Kam Tin.

5. At page 12 of the record of appeal, the learned magistrate had this to say, when he came to consider the evidence of the bar waitress:

"The appellant also stated that it was earlier that night that Leung gave him the key to the car. She said the appellant got the key before the friend left the bar."

6. Turning to the evidence at page 6 of the record of appeal, the tenor of the evidence of the waitress does not seem to be in conflict with that given by the appellant who testified:

"When I was arrested it was 26th July, 1980, early that night LEUNG Yiu-ping gave me a key after we had wine. He said he was going to Yuen Long."

The words "early that night" do appear in the record, but on the totality of the evidence, there is no inconsistency.

7. At page 10 of the record, it was found that the owner had "a good look" at the appellant alighting from the car. There does not seem to be any direct evidence to warrant that conclusion. I have no wish to whittle down the finding of the learned magistrate by any fine distinction. However, the general tenor of the owner's identification evidence tends to suggest that his identification was primarily based on the attire of the driver at the material time.

8. Bearing in mind the stern denial from the appellant and the evidence from the bar waitress, I cannot say that without the assumed admission, the learned magistrate would necessarily have come to the same conclusion on the identification evidence. In the circumstances, and giving the benefit of doubt to the appellant I find the evidence as having fallen short of that required to satisfy the proof of guilt. I am left in the end with a lurking doubt as to the conclusion reached by way of verdict. For all these reasons, the appeal against conviction and sentence must be allowed. The conviction must therefore be quashed and the sentence set aside.

	(B. Liu)
	Judge of the High Court

 

Representation:

Appellant in person.

Mr. Pirtchard, counsel for the Respondent.