HKSAR v. Lam Lung Ying

HCMA000794/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 794 OF 1998

(On Appeal from STC 522 of 1998)

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Coram: Mr. Recorder L. Lok, S. C. in Court

Date of Hearing: 18 December 1998

Date of Delivery of Judgment: 24 December 1998

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J U D G M E N T

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1. The Appellant was convicted of the following charges after trial. First charge, assault occasioning and actual bodily harm contrary to section 39 of the Offences Against The Persons Ordinance (Cap. 212); second charge claiming to be a member of a triad society contrary to section 20(2) of the Societies Ordinance (Cap. 151).

2. The facts in so far as they were relevant to the finding of guilt are as follows. On 9th November 1997, at about 6:30 p.m., PW1 was about to leave the Woo Kai Sha pier in Ma On Shan with his friends including PW2 and PW3. A man in white T-shirt had slapped PW1 on his right face and punched him at his face near the nose. The assault was joined in by another person. After the assault, the man in white T-shirt claimed he belonged to Wo Shing Wo, a triad society and a notorious one for that matter in Hong Kong. The man in white T- shirt was a total stranger to the prosecution witnesses.

3. It is apparent that this is not a case of recognition but a case of identification. In the course of the trial, PW2 identified the Appellant as the man in white T-shirt. This he did on 22nd June 1998 by way of a dock identification. Cross-examination by the defence revealed that PW2 did not attend an identification parade on 4th January 1998. The key issue on this appeal is whether the convictions based on the dock identification are unsafe and unsatisfactory.

4. In R. v. Hoang Duc Hon [1997] HKLR D p. 12, at p. 14 Mortimer J.A. delivering the judgment of the Court of Appeal had this to say about the propriety of acting on the evidence of dock identification.

"This is not to say that in a proper case, a dock identification cannot be allowed. A dock identification is admissible in evidence. We sound a note of warning, however, because judges should not allow the dock identifications and prosecuting counsel should not seek to allow upon such if the identification is the first time that the witness is called upon to identify an accused person unless there is some very good reason. The obvious reason is that an accused has refused to attend an identification parade and that no other proper means of identification has been possible before trial, such as a group identification or a structured identification by means of photographs or some other recognised and proper procedure."

5. In the case now before me, PW2 had given a description of the appearance of the man in white T-shirt in his statement to the police. The description of the appearance had not been challenged by the defence in cross-examination. In court, PW2 explained the reason why he did not go to the identification parade on 4th January 1998 was because he was afraid of triad retaliation.

6. The learned magistrate made it very clear that he accepted that reason. Mr. Cheung, learned counsel for the Government, urged upon me that these are good reasons as adumbrated by Mortimer J.A. The fact still remains that PW2 and the Appellant were total strangers to each other, and PW2 was asked to identify the culprit some 6 months after the event. The Appellant did not refuse to be put on an identification parade. The fact that there was no identification parade could not be said to be brought about by the fault of the Appellant. At p. 14 of the same judgment, Mortimer J.A. went on to say:

"Normally, the only time that a dock identification is permitted is in a true recognition case where the accused is known well to the witness and has been described by him at the time or shortly after the offence and so at trial, he simply confirms that this is the person about whom he speaks."

This is obviously not the case here.

7. In these circumstances, I allow the appeal on this ground alone and do not find it necessary to deal with the other arguments that had been advanced by Mr. Boyton.

8. I allow the appeal. I quash the convictions and set aside the sentence.

Representation:

Mr. W. L. Cheung, S.G.C. for Director of Public Prosecutions for the Respondent.

Mr. David Boyton, instructed by Messrs. Miller Peart De Witt for the Appellant.