The Queen v. Cheong Yuk-man

HCMA000832/1985

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Kempster, J.A. (sitting as an additional High Court Judge)

Date of Hearing: 8th October 1985

Date of Judgment: 8th October 1985

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JUDGMENT

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1. On 10th July of this year CHEONG Yuk-man was convicted of indecently exposing himself at the podium of the 2nd floor of Alexandra House, Central, on 21st June. He was so convicted following a plea of not guilty and after hearing evidence. He appeals against that conviction. As the Magistrate very properly said in his Statement of Findings this appeal concerns the quality of the identification evidence. There was no identification parade and the appellant was identified by the complaint, a young woman, in the dock. She claimed to have seen him twice, if not thrice, before - once when the incident complained of occurred, then subsequently in or about the same area when there was no question of indecency, and thirdly at the police station when a young man was wearing similar to those of the man who had exposed himself on the 21st of June.

2. The strong positive evidence which the complainant gave was to the effect that the man she identified as the appellant had said to her three times "Help me."  He called out to her while she was leaving the area and "I turned to look at him. I saw his face. Nothing blocked my view. He asked me to help him three times."

3. In re-examination the Court Prosecutor was allowed to attempt to improve upon this evidence by asking the complainant a series of leading questions which, while wholly improper, would normally not be of great significance since the case was heard before a professional judge. The rules abort leading questions are calculated to ensure that juries are not misled. The following questions were asked and answered:

"Q.  When the boy asked for help 3 times, you looked at his face?

A.    Yes.

Q.    Face to face?

A.    Yes.

Q.   So 3 times he asked you - all 3 requests you stared in his face?

A.    Yes. I could see him clearly.

Q.  And he the same boy saw on 27th June (i.e. after arrest)?

A.    Yes."

One would have expected the learned Magistrate to exclude this evidence when assessing the reliability of the complainant's identification of the appellant; which really was the key issue. No one has suggested that the complainant was making-up a story. But in his Statement of Findings the Magistrate described what she said about the clothing, what the complainant said in chief and in cross-examination and then when re-examined. He emphasises that she said "he asked for help 3 times - and I looked at his face each time" by underlining those words. According the conclusion that he relied on what she assented to in re-examination when forming his view of her reliability in the context of identification is inescapable.

4. Further, when we come to "verdict" the Magistrate says:

"I found the appellant guilty beyond reasonable doubt of the offence charged...."

And then "Reasons". There are three set out. The first is "I believed the victim's evidence - that she told the truth". I can accept that this must mean " I accept that her evidence as to identification is completely reliable". Then he says "I did not hear from the appellant". That as a matter of fact was incontestable. Insofar, however, as it is a reason for the verdict it is wholly unacceptable. Next I did not believe the alibi evidence put forward by one of the defendant's witness."  Probably this is all a mater of unhappy phraseology. The Magistrate may well have meant to say I believed the complainant's evidence because there was no evidence to the contrary from the appellant and I did not believe what was said by his witness." But all in I am unable to find the conviction here safe and therefore allow the appeal, quash the conviction and order that the matter be heard afresh by another Magistrate.

Representation:

Miss Selina Lau (Alfred Lau & Co.) for appellant

Mr. J. Abbott for D.P.P.