HKSAR v. Chung Tin Yau and Others

HCMA 926/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 926 OF 2005

(ON APPEAL FROM NKCC 5890 of 2004)

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BETWEEN

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Before: Deputy High Court Judge Wright in Court

Date of Hearing: 16 December 2005

Date of Judgment: 16 December 2005

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J U D G M E N T

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Appeal against conviction

1.The three Appellants were convicted after trial in the magistracy of a single charge of unlawful assembly.  They appeal conviction:  the First Appellant also appeals sentence.

2.On 22 July 2004 a group of men burst into premises situate in Golden Computer Arcade, Sham Shui Po.  They set about the staff employed in the shop.  They pulled over display racks and damaged light fittings.  The group then departed.  It was the prosecution's case that the three Appellants were part of that group.  They denied being so.

3.As the Magistrate correctly identified, the sole issue was identification of the three Appellants.  This came from an off duty police officer who happened to be passing by.  Her attention was attracted by the commotion.  She saw five members of the group who had been in the shop departing.  She followed them.  She saw them get into a taxi.  She followed that taxi.  She saw them alight and four of them go into a building.  At no stage of these proceedings, according to her evidence, did she lose sight of the group of four.  She maintained her observation, noting to which floor the lifts travelled.  Colleagues arrived.  She went with those colleagues to an upper floor where she recognised the three Appellants by their faces, clothing and heights.  She pointed them out.  They were arrested.

4.The witness was cross-examined at length on behalf of the three Appellants.  The Magistrate found her to be an entirely honest and credible witness going on to remind himself that even such a witness may be mistaken: he was satisfied that she was not.  He accepted her evidence and relied upon it finding, as he plainly was entitled to do, that she had correctly identified the three Appellants as being amongst the group of men who had earlier entered the shop. 

5.The two staff members of the shop were unable to identify any of their assailants.  At one stage they accepted the proposition that the Appellants had not been amongst those who had participated in this event but, looked at in context, that was a conclusion which they drew based upon their inability to identify anyone at an identification parade.  The Magistrate was aware of this and, correctly, found it not to undermine the evidence of the off-duty police officer.

6.The taxi driver was also called as a witness.  The effect of his evidence overall was that he was unable to recall precisely how many persons had entered his taxi.

7.The First Appellant gave evidence.  He denied that the Appellants had entered the shop in question.  He accepted that they had been nearby at the time of the incident.  It was his evidence that they had been in the building just having a look around after having handed out advertising leaflets in the area.  They had been alarmed by the commotion and decided to leave.  They had indeed entered the taxi as described by the off-duty police officer and travelled to the building when they were subsequently apprehended.  He disputed, however, that five persons had entered the taxi maintaining only four had done so.  The magistrate, for cogent reasons which he set out in his statement of findings, rejected this version.

8.The Magistrate was well aware of the possibility of the off-duty police officer confusing innocent shoppers with the group of men she followed.  He rejected the suggestion that she had done so.

9.No sensible criticism can be made of the Magistrate's acceptance of the evidence of the off-duty police officer or of the conviction.  The appeal of each Appellant is dismissed.

Appeal against sentence.

10.The Magistrate called for a report on the First Appellant’s suitability for admission to Detention Centre.  He is 23 years of age.  He proved to be suitable.  He appeals the order committing him to Detention Centre. 

11.The Magistrate took the view, with which I concur, that a custodial sentence is the appropriate sentence for conduct of this nature notwithstanding the fact that the First Accused was of previous good character.  The Magistrate was properly concerned about rehabilitation and saw the Detention Centre regime and aftercare services as potentially of benefit to the First Appellant.

12.The sentence is entirely proper.  The appeal is dismissed.

Mr W S Cheung of Department of Justice, for the Respondent

1^st Appellant Chung Tin Yau, in person

2^nd Appellant Cheng Kai Ngai, in person

3^rd Appellant Lee Wai King, in person