刑事檢控科各律師/高級律政 - Department of Justice

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34service. That cautionary tone reflects the soberingexperience of many past instances of mistakenidentification. It seems to me therefore that it is atleast desirable for magistrates dealing withidentification cases, and where it is appropriate to doso, to clearly indicate that they have had regard to theprinciples enunciated in R v Turnbull. Failure to doso, in appropriate cases, may well cause the appellatetribunal to doubt that the magistrate’s decisionfollowed a proper consideration of all relevantfactors.(4) In R v Domincan (1992) 60 A Crim R 169, the High Courtof Australia held that:a general warning of the dangers of identificationevidence had to be given whatever defence was beingrun at trial.(5) In HKSAR v Nguyen Lam Cr App 496/99, it was held thatwhere a magistrate did not expressly say that the court was awareof the dangers outlined in the Turnbull guidelines, it was then opento the appellate court to examine the evidence and its strength indetermining how to dispose of an appeal on the ground of a failureto give an express warning or to demonstrate awareness of theconcerns which underlined the guideline;(6) The magistrate should have warned himself of the risks ofmistaken identification. While it could be said that it was not afleeting glance situation but an observation under difficultcircumstances, nevertheless the magistrate, apart from saying thatit was not a fleeting glance situation, had failed to warn himselffurther on this matter. A mere general warning was insufficient;(7) At the time of the trial, a corroboration warning was stillnecessary. The magistrate in his oral reasons for verdict had failedto mention explicitly or implicitly that he had warned himself ofthe dangers of convicting on the uncorroborated testimony ofPW1. This defect was not cured until his Statement of Findingswhere he did so warn himself. It was correct that a magistrate didnot have to mention every thought process that went through hishead, and an experienced magistrate was deemed to have thenecessary relevant law in his mind. However, a corroborationwarning was important in this case, particularly when themagistrate had found no corroboration. He should have expressedin a few words that he had it in mind at the time when heconvicted the Appellant.Result - Appeal allowed.
35MA 60/2001Lugar-Mawson J(14.6.2001)*S Chan &G Lam#J McGowanSOWai-shingWhether mere presence at scene of crime gave rise to liabilitya question of fact/Magistrate asking leading questions/Test ofwhether Appellant had a fair trial/Determination of credibilitya function of magistrate and not appellate court- - - The Appellant (D3 at the trial) together with D1 and D2were convicted after trial on a single charge of robbery.The facts showed that the alleged victim was approached bythe Appellant, D1 and D2. The three of them accused the victimof damaging D2’s mobile phone and demanded compensation. D1and D2 attempted to take away the victim’s handbag by force.The Appellant was present for most of the time with the otherdefendants, but was seen by the victim to move away for a fewminutes during the course of the interchange between the victim,D1 and D2. Later, the victim led the three of them to a shoppingarcade where he worked in order to get more money, and he askedthe Appellant to follow him to his shop. On the way, he managedto escape and made a report to the police.On appeal, it was submitted, inter alia, that the magistrateerred in finding that the Appellant was guilty based on his merepresence. In the alternative, the magistrate failed to consideradequately, or at all, the Appellant’s absence from the scene of therobbery or the state of his knowledge as to the intentions andactions of the other two defendants. Besides, it was said that themagistrate descended into the arena by conducting theexamination-in-chief of the victim.Held :(1) Neither mere presence at the scene of a crime, nor a failureto prevent an offence, would generally give rise to liability.However, presence at the scene of a crime was capable ofconstituting encouragement: R v Jefferson [1994] 1 All ER 270, Rv Coney [1882] 8 QBD 534. If the accused was present inpursuance of a prior agreement with the principal, that wouldnormally amount to aiding and abetting. It was a question of factin every case;(2) It made no difference if the Appellant was away from thescene for a short while. It was clear from the transcript that themagistrate considered all the circumstances and formed the viewthat all three defendants were engaged in a joint enterprise. This
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Page 11 and 12: 11B. CRIMINAL APPEALS/AGAINST SENTE
Page 13 and 14: 13the snakehead and the intended il
Page 15 and 16: 15outlet in Worldwide House which h
Page 17 and 18: 17point. She reduced that term by o
Page 19 and 20: 19justified the judge in taking 24
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Page 27 and 28: 27distinguished marks or features (
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Page 39 and 40: 39(2) However, this was the first c
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刑事檢控科各律師/高級律政 - Department of Justice

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