HKSAR v. Cheung Yan Kin Richard

HCMA001128/1998

HCMA 1128/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1128 OF 1998

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Coram : Deputy Judge W. Wong in Court

Date of Hearing : 28 July 1999

Date of Judgment : 28 July 1999

Date of Handing Down Reasons for Decision : 6 August 1999

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J U D G M E N T

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1. The Appellant was charged with and convicted on one count of Indecency in public contrary to S. 148(1) of the Crimes Ordinance (Cap. 200).

2. The prosecution called 3 witnesses.

3. PW1, a female, lived at Room 02 on the 24th Floor of Tsui Ching House, Hang Tsui Estate, Chaiwan. On 9th August 1998 in the lift lobby on the 24th floor, she saw a naked man about 4' away from her. She could see clearly. That man's head was covered with a piece of grey cloth, wore spectacles, a bit fat. She shouted out "indecent assault". Then there was the sound of opening of an iron grille, the man who exposed himself then ran downstairs.

4. The man who opened the iron grille was PW2. He lived at Room 05 on 24th Floor. He gave chase and saw a man without clothes going downstairs 2 to 3 floors below him. As he reached the 17th floor, he heard sound from the smoke prevention door. PW2 then went out to the 17th floor and saw the Appellant putting on a pair of cream coloured shorts up to between his waist and knees. Then came a guard and they all went to the ground floor lobby. On the ground floor, PW1 pointed to the Appellant and said it was the Appellant who had just indecently assaulted her.

5. PW3, a police officer then arrested and cautioned the Appellant. The Appellant in reply to the Caution said he was going downstairs to buy newspaper. PW3 said the Appellant had his clothes, slippers and wore spectacles. PW3 also said PW1 told him the man who expose himself wrapped his face with a piece of clothes.

6. The Appellant gave evidence and called a doctor who examined him on 25th September 1998 and found no black spot below the Appellant's buttock.

7. For reasons hereinafter set out, I do not intend to deal with the Appellant's evidence.

8. In the description of the man who indecently exposed himself in front of her, PW1 said the only item the culprit had on his body was a grey cloth covering his head (Page 15 G-K). He was completely naked with no other item of clothing. At page 16 K-L, she said the culprit was bare foot and that the culprit had a large number of black spots below his buttock (Page 24 G-H).

9. Her evidence in no way matched the description by PW2 of the Appellant. PW2 said the Appellant wore cream coloured shorts (Page 30 A-B) and was found to be holding a green T-shirt and wore a pair of blue plastic slippers (Page 30 J).

10. PW1's description that the man who indecently exposed himself had a large number of black spots also did not match the finding of the doctor who examined the Appellant.

11. The learned Magistrate in his Statement of Finding at Page 79 last paragraph said that he had carefully observed all prosecution witnesses and had carefully considered their evidence. He came to the conclusion all of them were honest and reliable witnesses. Although PW1's evidence and her statement to police had some discrepancies, apart from whether the man who had exposed himself had used a piece of cloth to cover his head or face, the other discrepancies were minor and did not affect his assessment that she was honest and reliable.

12. The learned Magistrate at last 2 paragraphs of Page 80 set out in detail why he found PW1 had and could clearly see the man who exposed himself. He found that there was sufficient light for her to observe that man for a period of time.

13. With respect, I do not that the discrepancies were minor. The learned Magistrate had failed to reconcile or deal with the completely different attire of the man who exposed himself and the Appellant as found by PW2. What PW1 saw was someone apart from a piece of cloth on his head; completely naked while PW2 said the Appellant had a cream coloured shorts, T-shirt in his hand and a pair of slippers. This was supported by PW3's evidence.

14. The learned Magistrate although accepted that there were no black spots in the Appellant's buttock, he tried at Page 82 to justify his finding by saying that the Appellant was hairy and it was easy for someone to form the impression that there were black spots. With respect his finding on this is flawed because it was not what PW1 said. Black spot in the buttock region must be an unusual feature in the identification evidence which if true supports PW1's identification evidence. This is not the case. The learned Magistrate had already found as a fact that there was sufficient light and time for PW1 to observe that man. It is therefore unsafe to conclude that PW1 had identified the Appellant as the man who exposed himself.

15. In view of the completely different description, it was not open to the learned Magistrate to say that those were minor discrepancies. The prosecution witnesses might all be honest witnesses as the learned Magistrate had found but was the Appellant the man who exposed himself before PW1. On the evidence before the learned Magistrate there must be doubts.

16. For reasons above, it is unsafe to convict. The appeal is therefore allowed and the sentence set aside.

Representation:

Mr. Simon Tam, S.G.C. of D.P.P. for the Respondent.

Mr. Alan Hoo, S.C. lending Ms. Connise Chan instructed by Messrs. Fred Kam & Co. for the Appellant.