HKSAR v. Tang Chun Yu

HCMA 761/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 761 OF 2005

(ON APPEAL FROM TMCC 700076 OF 2005)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 16 November 2005

Date of Judgment: 16 November 2005

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J U D G M E N T

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1.This Appellant, a boy in his early teens, appeals against his conviction after trial before Joseph Yau, Esq. in the Magistrate’s Court at Tuen Mun on a charge of assault occasioning actual bodily harm, contrary to s.39 of the Offences Against the Person Ordinance, Chapter 212.

2.The first ground of appeal argued on his behalf concerns identification.  As to that, the circumstances are as follows.  The victim named in the charge, a boy in his late teens who gave evidence as PW1, gave evidence along the following lines.  At about 2:30 am on 1 April this year at a shopping centre in Tin Shui Wai, he was approached by a group of 10 to 20 persons.  One of them spoke to him, and then ordered him to go to a nearby garden.  There 6 to 7 members of the group, including the person who had spoken to him, assaulted him.  Eventually he reported the matter to the police.  At 9:45 pm on 19 April this year, he went with a party of police officers to the outside of a restaurant at the estate where he had been assaulted on 1 April.  There he saw, in a group of 8 to 9 boys and girls, a person whom he picked out as the assailant who had spoken to him on 1 April.  The person whom he so picked out is the Appellant.  No identification parade was held.

3.Rejecting the Appellant’s counsel’s objection to such a course, the Magistrate permitted PW1 to make a dock identification of the Appellant, which PW1 then did.

4.The Magistrate accepted PW1’s identification of the Appellant.  In his Statement of Findings, the Magistrate said this:

“16. The police chose to ask PW1 to view the group to identify the Appellant instead of holding a formal identification parade.  This was understandable and unavoidable because without any identification made by PW1 the police would not know who to arrest and who to put on an identification parade.  What the police did was in accordance with the law and had caused no unfairness or injustice to the Appellant.”

5.I accept that the police were justified in inviting PW1 to see if he could pick his assailants or anyone or more of them out of the group outside the restaurant.  And I accept that the police were justified in arresting the Appellant on the strength of his having been so picked out by PW1.  But I do not accept that the Appellant was not entitled to the protection of a formal identification parade thereafter.  For all we know from the evidence, the Appellant could have been the only person in the group outside the restaurant who bore even the slightest resemblance to the assailant who had spoken to PW1 or, indeed, was a person of his sex who was of anything like the same age, build and height.  There is nothing to suggest that the picking out outside the restaurant came anywhere close to the standards of a formal identification parade.  That picking out was good enough for an arrest, but it was not a proper substitute for a formal identification parade thereafter.  Nor was the dock identification a proper substitute for such a parade.

6.The dock identification was, in the circumstances, a material irregularity.  And the conviction is, on the issue of identity, unsafe and unsatisfactory.  There is no need to pronounce on the other grounds of appeal.  In fact, I did not call upon Mr Davies to address me on them because, even on the first ground alone, it was obvious that the appeal must succeed.  Accordingly the appeal is allowed and the Appellant’s conviction is quashed.

Mr Oliver H Davies, instructed by Messrs Francis Kong & Co, for the Appellant

Mr Harish Melwaney, SGC of Department of Justice, for the Respondent