HKSAR v. Lam Fung

HCMA 581/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 581 OF 2005

(ON APPEAL FROM ESCC 5236/2004)

______________________

BETWEEN

______________________

Before : Deputy High Court Judge E Toh in Court

Date of Hearing : 17 March 2006

Date of Judgment : 17 March 2006

______________________

J U D G M E N T

______________________

1.The Appellant was convicted after trial of one charge of indecent assault.  He now appeals against his conviction.

2.The prosecution case alleges that in the early hours of the morning, the first prosecution witness was on her way home, when she was grabbed from behind by an assailant who proceeded to grab her breast.

3.The victim struggled fell to ground and when she was on the ground, she turned and saw the assailant’s face for about one or two seconds, face to face, before the assailant fled.

4.PW1 called the police and upon the arrival of the police, the police took her on a walk around the scene of the crime.  And it was during this walk that a by-stander had given some information to the police, and led the police into a building management office, where the police officer and PW1 viewed a surveillance tape, taken around the time of the attack, of people entering the building.  That building was located about 8 minutes walk from the place where the victim was attacked.

5.As the victim and the police officer were reviewing the tape of persons entering the building in the lift lobby.  The victim picked out the Appellant and said that he was the most similar in appearance to her attacker.  The victim had described her assailant to the police as wearing black dark clothing on top and he had longer hair, the front of the hair coming down to the eyebrows and he was wearing thick framed glasses and this glasses were not sun glasses but transparent glasses.

6.At the time, when the victim picked out the Defendant from the tape, the Defendant was not wearing glasses but he was wearing a dark top.  The police continued with their investigation and about two months later, the Appellant was arrested.  Police never found any thick framed glasses in the possession of the Appellant.  The Appellant was put on an identification parade and the victim attended the identification parade and having viewed the line up, she asked for a chair to sit down in front the line up and after about 7 minutes or so, she identified the Appellant as the person who had attacked her.

7.This appeal was first heard on 19 January 2006, but since the Appellant was appearing in person and because the point raised by him was very important in view of the fact that there may be have been a mistaken identification, this court decided for the sake of caution to call for transcript of the evidence of PW1 and that is why the appeal is only heard today.

8.It was clear from the transcript that counsel representing the Appellant had cross-examined the victim as to her identification.  Counsel focused his cross-examination not only on the description she gave the police at the time as to the height of the assailant as compared to the height of the Defendant, but also to the length of the hair and the fact that the Appellant was not wearing glasses at the time when he was seen on the tape.  The victim in the case, when she was giving evidence, explained why she said to the police, when she was watching the security tape, that the Defendant was nearest in appearance to her assailant and that was because, she said, at that time the Appellant was not wearing glasses and so she said that that was one of the reasons she took longer to make an identification at the identification parade.

9.She said she wanted a chair to be provided at the identification parade because it would give her a better position from which to identify because at the time she saw the assailant’s face, face to face in fact, she was on the ground.  It was therefore clear that Counsel had brought out the possible weaknesses in the identification for the victim to explain and as the ultimate decision of the learned Magistrate shows the learned Magistrate was well aware of what the defence said were weaknesses and at the end of the day despite that he believed the evidence of the victim in the case.

10.The Appellant had chosen to give evidence at his trial, he denied that he was ever in the vicinity or at the scene of the attack, but he admitted that he was the person on the CCTV tape which the victim had identified.  He did not really remember where he was on the 28 of September as it was a long time ago, and he denied that he had ever worn glasses.  That is the gist of the defence case.

11.The learned Magistrate, as I have said, at the end of the trial concluded that PW1 was an impressive witness.  The learned Magistrate also warned himself very properly of the guidelines set out in Turnbull and related cases.  And particularly he bore in mind that an honest and convincing witness, such as PW1, could nonetheless be mistaken in her identification.

12.But having carefully gone through and assessed the evidence of PW1, he came to the conclusion that she was not mistaken.  The learned Magistrate also was aware that the attacker of PW1 did wear glasses and that no glasses were found from the Defendant and the learned Magistrate correctly concluded, it is just an unresolved issue. 

13.The learned Magistrate did not believe the Appellant when he gave evidence nor the exculpatory account he gave in his cautioned statement, but he correctly warned himself that it was still for the prosecution to be prove its case.

14.The Appellant on appeal in person submitted several grounds.  He, originally, at the first hearing had submitted that he made no admission to the police when he was arrested, and that other indecent assault, had happened in the same area even after his arrest.  Those two points do not help his appeal.  He further submitted that it was wrong for the police to show his photo to the victim before the identification parade.  It is clear that the victim was not shown the Defendant’s photograph before the identification parade, what happen was the victim had seen a photograph of him when she was watching the surveillance tape on the day of the offence together with the police.  That is very different.   That was at the time when the police were investigating the case.

15.Mr Lam also further submitted today that he was the only one wearing black clothing at the identification parade.  Upon further questioning from myself, it is clear that Mr Lam was only alleging that on the day of the offence he was the only one wearing black clothing in the surveillance tape.

16.The learned Magistrate was aware of all the above as they were brought out by Counsel representing the Appellant at the trial.  He also said that the fact that the victim took a long time to identify him made the result of the identification dubious.  The victim had satisfactorily explained to the learned Magistrate why she took a little time to make her identification.

17.The other point raised by Mr Lam again is not helpful to his appeal because he made groundless assertion that the police had misled the victim to identifying him and that he was persecuted by the police after the offence.

18.I have read the transcript of the victim’s evidence in court.  And it is clear that PW1 was very sure of the identification of the Appellant as being her assailant. It was also clear that she was a careful witness.  When she was asked questions, she did explain why she gave her answers in a certain way.

19.So it was not surprising that the learned Magistrate in his conclusion said that she impressed him because her evidence was clear and considered.  And he was impressed by the fact that she was very careful at the identification parade to the extent that she even requested a chair to sit on in order not to make a wrong identification.

20.So having read the transcript for myself and having considered the points raised by the Appellant, particularly as the fact that there may have been a mistaken identification, I have come to the conclusion that the learned Magistrate was not wrong in making his conclusion of the guilt of the Appellant.  I can see no grounds to interfere with that conclusion.  So the appeal is dismissed.

Mr Jonathan Tak Ho Man, Senior Government Counsel of Department of Justice, for the Respondent

The Appellant, in person