The Queen v. Andrew Mcpearson Swann

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 220 OF 1987

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BETWEEN

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Coram : Hon. Garcia, J. in Court

Date of hearing : 1^st May 1987

Date of delivery of judgment : 1^ST May 1987

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J U D G M E N T

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1. The appellant was charged with 2 offences, one of indecent assault on a woman contrary to Section 122(1) of the Crimes Ordinance, Cap.200 and the other of assault occasioning actual bodily harm contrary to Section 39 of the Offences Against the Person Ordinance, Cap. 212.  He pleaded not guilty to both offences but was convicted after trial on the 24^th February 1987 and sentenced to imprisonment for 18 months’ on each charge, both sentences to be served concurrently.

2. The circumstances which gave rise to these charges occurred in the early hours of the morning of the 8^th February this year outside the Prince of Wales Building in H.M.S. Tamar.  The complainant was a Miss Ryan who worked as a bar maid at the Bull and Bear and on that morning finished work about 1.30 a.m.  After work, she left the Disco in Wanchai, arriving there about 2.30 a.m.  She left the Disco with tow other girls named Hazel and Pauline.  Pauline then left for the Island Café which was across the road from the Disco, whilst the complainant and Hazel walked along the road. They saw the appellant and a Mr. Johnson, who was a member of the Colstream Guards both sitting on some steps.  Both the complainant and Hazel knew Mr. Johnson, but had never met the appellant before.   The complainant and Hazel then had some idle chatter with both the appellant and Johnson, in the course of which the complainant expressed a desire of going to H.M.S. Tamar to meet her boy friend there, but before she could gain entry into the installation she would require a pass.  She said she had earlier intended to go there with a girl friend who had a Tamar pass, but the latter had by then left for home.  The complainant says that the place where they had this conversation was well illuminated by street lights and shop lights and she had a clear view of the persons she was talking to.  There was nothing which impeded her view of the persons who were there and at the time she was only about 3’ – 4’ away from the appellant.  The conversation lasted about 5 minutes and upon her saying that she wished to go to H.M.S. Tamar, the appellant told her that he had an identity card which would enable him to get into H.M.S. Tamar, and he would take her there if she provided the taxi fare.  She agreed, and also promised to pay his return fare to Wanchai, once she had got into H.M.S. Tamar.  Both she and the appellant then got into a taxi whilst Miss Lawley left in another taxi, Johnson remaining at the scene.  Both the appellant and the complainant got to the entrance of H.M.S. Tamar, the complainant crouching in the taxi to hide herself.  The taxi then went into Tamar after the appellant showed his identity card to the guard at the entrance.  Once inside, the taxi stopped outside the Prince of Wales Building, and after paying the fare, and telling the appellant that she was going to pay his return fare to Wanchai, she began to alight from the taxi. The appellant, however, insisted on alighting from the taxi together with her and declined her offer of the fare.  Both of them got out and the taxi drove off.  She began to go up the steps leading to the Prince of Wales Building, but the appellant, she says, followed her up and began to make crude and indecent suggestions to her.  When she was about 3 steps up the flight of stairs leading onto a flat area, some 6 to 7 feet away from a lamp-post, the appellant seized her and pushed her head down into a fountain, and when she struggled, he forced her down onto the ground and felt her breast and private parts above her clothing.  He then exposed himself, asking her to masturbate and fellate him and kept repeating that he wanted to have sex with her.  He also pressed his thumb on her throat and said he would kill her.  She screamed but this did not evoke any response from anybody.  The complainant said she was very frightened and asking the appellant if he wanted to be done for murder or rape received the reply that he did not care.  He then pulled off both her jumper and brassiere in one move.  She pleaded with him to get himself off her but the appellant kept repeating that he wanted to have sex with her.  To make her bid to escape from him, she asked the appellant if he would give her back her jumper as she did not want people who would be coming, to see her in a state of undress.  The appellant then got up to get her jumper, but in the meantime, she took off her shoes to make a run for it and upon his returning her the jumper, she put it on and he even asked her to put on her shoes.  After putting on her jumper, she asked for a “breather” and at that moment she ran down the steps towards the guard house.  He did chase after her, but only for a short distance, and when she reached the guard house to tell the guards what had occurred, she found that the appellant had disappeared from sight.  She was then accompanied back to the scene, and there she met a Mr. Green, and the latter says that she appeared distressed and frightened at that time.  She found that her hand-bag had been emptied of all its contents and strewn on the ground, but her purse was missing.  Moreover, she saw there a tuft of her hair which had been pulled out of her head during the struggle.  She says that she was so frightened at that time that she had not even realized that her hair had been pulled out of her head during the struggle.  She says that she was so frightened at that time that she had not even realized that her hair had been pulled out.  She then returned to the guard room where she was interviewed by a Mr. Greenaway, a special investigator of the Royal Military Police, and she made what was described by the learned Magistrate an entirely consistent recent complaint to Mr. Greenaway.  The latter in giving evidence said she was physically shaking and upset and was in some sort of a shock. At that time she showed him the bald patch on her head and some blood which was under her fingernail.  She was later examined by a doctor in the Accident and Emergency Department of Queen Mary Hospital later that morning, that is at 8.35 a.m. the following injuries were detected: An area of 3 cm diameter hair loss was seen over the right side of scalp, with pain and tenderness.  There was mild pain and tenderness behind the left ear.  Bruising was also seen over the right arm and right little finger.  An area of 1 cm abrasion was seen over the right elbow.  The patient also had neck discomfort, and she was given some drugs and discharged that morning.  She went for a further medical examination by a Dr. Innes of Drs. Anderson & Partners on the 9^th February, 1987, and the Doctor’s report reads, as follows:-

“She had a large bald patch, 5cm in diameter, over her right occiput and she had mild tenderness over the whole cervical spine and all movements of her head and neck were limited by pain.  She had a linear bruise on her right upper arm and several smaller nummular (coin-shaped) bruises on her left upper arm.  Nummular bruises are commonly caused by an assailant’s fingers when gripping forcibly.  There was also evidence of a friction burn in the left axilla consistent with clothes being removed forcibly.  She also had 1 sq. cm. Bruised area at the top of her right buttock.”

Looking at these two reports, the injuries are consistent with her having been forced to the ground and physically attacked.  There was no doubt that she had undergone a harrowing experience in the early hours of that morning.  The only issue which concerned the learned Magistrate was the identification by Miss Ryan of the appellant as her assailant.  She attended an identification parade on the 12^th February 1987 at Stanley Fort where she saw two batches of soldiers, one after the other.  At first she said she was unsure about two soldiers in the first batch but had not made any identification then.  However when she saw the second batch in the parade, she recognized the appellant instantly and said she was absolutely sure that she was absolutely sure that he was the person who had attacked her on the morning of 8^th February. The learned Magistrate reminded himself of the guidelines laid down in the Turnbull case, and after considering the circumstances under which the victim had seen her attacker and identified him as the appellant, her was of the opinion that her evidence of identification was of good quality and was convicting.  He had also reminded himself of the special need for caution in accepting such evidence and looked for independent evidence to corroborate the evidence identification by the victim.  He found this evidence in that of Miss Lawley and Mr. Johnson, and he accepted their evidence as strong corroboration of the complainant’s evidence of identification of the appellant as her attacker.

3. The appellant appeals against his conviction on general grounds and on the following grounds: (a) The learned Magistrate erred in relying upon Miss Hazel Lawley (PW2) as a witness whose evidence was corroborative of the identification of the applicant by the complainant and in particular in stating that he found support for that finding in the fact that that witness had “the distinct advantage that she recognized the defendant having seen him not only earlier that night ….” When that finding was specifically and directly in conflict with the evidence of the witness, “I had seen him there on previous nights but not that night.”  But the evidence given by Miss Lawley and which was referred to by Mr. Lunn appears in the first question which was asked of her in cross-examination “Q.  Before the 8^th February 1987 had you ever met Swann before?”  “A.  I had seen him before.  In Crossroads.  I had seen him there on previous nights but not that night.  I don’t know his name. I had seen him 2/3 times before.  Therefore when I saw him in the street that night, I recognized him.”   It is quite clear that the Magistrate did make a mistake in stating that the witness had seen the appellant earlier that evening.  However, her evidence that she saw the appellant that evening sitting on the steps and that she recognized him because she had seen him two to three times before, makes the mistake a minor one and does not detract from his finding that her evidence corroborated the complainant’s identification of the appellant.  (b)  That the learned Magistrate erred in allowing Miss Hazel Lawley to make in effect a dock identification of the applicant in all the circumstances of the case and in particular her evidence that she had never spoken to the applicant and had only seen him on two or three previous occasions.”  There is some ambiquity as to whether the witness had made a dock identification at the trial because the record does not show it.  All the record shows is that she mentioned  “defendant was also there” during part of the evidence she had given. Again at page 14, she says “the defendant” was with her.  “The defendant said he could get her in as he had an identity card, defendant said he could get her in” and she had no difficulty in recognizing the appellant at the trial.  Referring to her identification of the appellant, she based it firstly on her having seen the appellant on two to three previous occasions prior to the date of the incident, and seeing him on the date of the incident.  The identification on the latter occasion was held by the Magistrate to have been made under satisfactory conditions.  One of the witnesses for the defence, Miss Mclean said “the area round the steps is very well lit.  I have no difficulty in seeing what the defendant was wearing.  He was wearing white trousers and jacket and red tie.  The jacket was light grey or white.”  This brings me to one part of the Statement of Findings of the learned Magistrate, where he discusses the colour of the clothing worn by the appellant that evening.  In his evidence the appellant said he never changed his clothes once he left the barracks the precious evening, and was wearing the same suit all the time until he returned to the barracks.  In his statement to the Police, he mentioned that he was wearing a grey pair of trousers and when asked further, he said “ I was wearing the trousers I have on now which are light grey in colour together with a matching jacket, white shirt and tie.”  Certaining looking at the exhibit which had been produced here and also produced before the Magistrate, the trousers are by no means light grey, they are white in colour.  This also appears in the evidence of Miss Mclean.  She was shown the pair of trousers at the trial and she said: “I would not describe the trousers as light grey.  They are white.”  Three of the witnesses who had seen the appellant that morning, that is, the complainant, Miss Lawley and Mr. Johnson said that he wore dark trousers. In fact, the complainant said that he was wearing black trousers.  The Magistrate examined all the evidence and he came to the conclusion that he could not believe the evidence given by the appellant and his witnesses that he was in fact wearing a white suit that morning in question.

4. Complainant has also been made that insofar as Mr. Johnson’s evidence is concerned, he was perhaps not fully in possession of his senses at that time because of drink.  At no time had any allegation been made that Mr. Johnson was the worse for drink that morning then he made a mistaken identification, firstly, of the appellant who is good friend, and secondly, of wither the complainant of Miss Hazel Lawley at the scene.  The learned Magistrate has made a careful analysis of the evidence in his Statement of Findings and has in particular warned himself of the dangers of acting on the identification evidence of the appellant alone.  He came to the conclusion that he could accept the evidence of identification made by complainant and in y judgment the appellant was rightly convicted.  The appeal against both conviction is dismissed.

5. In his appeal against the overall sentence of 18 month’ imprisonment for both offences, the only matter which had not been advanced before the learned Magistrate was that the appellant was clearly drunk at that time.  This cannot be a mitigating factor or an excuse for what was a violent and brutal assault on a young woman and for the crude and degrading treatment he meted out to her.

6. The sentences are not manifestly excessive in the circumstances and his appeal against sentence is also dismissed.

Mr. Bruce for Crown

Mr. M. Lunn (Army Legal Aid) for Appelant