Tong Choy Yuen v. The Queen

CACC000573/1983

BETWEEN

Coram: Jones J.

Date: 14th July, 1983.

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JUDGMENT

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1. On the 22nd November 1982 the appellant was convicted at the Causeway Bay Magistrary of a charge of indecent assault on a woman contrary to Section 122 of the Crimes Ordinance. He was conditionally discharged in his own recognizance of $500 to be of good behaviour for twelve months.

2. The appellant appeals against his conviction.

3. The victim a Chinese lady of 19 years of age testified that shortly after 5 p.m. on the 6th October 1982, she was ascending the steps to her home on the 4th floor at 479 Lockhart Road when a man overtook her. She did not see the man's face at this stage but described him to be about 18 years of age, 5 feet 7 inches tall, thin, with a short hair cut and that he wore a light blue T-shirt. The man turned round, rushed towards the victim and touched her right breast with the palm of his hand, She saw the man's face and identified him to be the appellant whom she said lived on the 2nd floor. She said the man was not wearing glasses. However, the appellant testified that he is near sighted and has worn glasses for five years. When he was identified by the victim the appellant was not wearing his glasses. The victim chased the man into the street but he escaped. A complaint was made by the victim to her brother and the incident was later reported to the Police.

4. A blue T-shirt produced as an exhibit was found by the Police at the premises on the 2nd floor of 479 Lockhart Road where the appellant was arrested.

5. Similar fact evidence relating to another incident of indecent assault by the same man in May 1982 was admitted at the trial. This incident was alleged to have happened on the same staircase in similar circumstances Objection to the. admissibility of this evidence was made by Miss Toh who appeared for the appellant.

6. In R. v. Scarrott ⁽¹⁾ Scarman L.J. (as he then was) at page 129 said:

"Positive probative value is what the law requires, if similar fact evidence is to be admissible. Such probative value is not provided by the mere repetition of similar facts; there has to be some feature or features in the evidence sought to be adduced which provides a link - an underlying link as it has been called in some of the cases. The existence of such a link is not to be inferred from mere similarity of facts which are themselves so common place that they can provide no sure ground for saying that they point to the. commission by the Accused of the offence under consideration."

7. The earlier incident was similar, but was not in my opinion unique or strikingly similar. Further the prejudicial effect of this evidence particularly as it was alleged to have occurred over four months before greatly out weighed its probative value. Accordingly this evidence should have been excluded.

8. Although the victim said that she had seen the appellant three times it is clear that on each occasion it was for a matter of seconds.

9. In fact on the second occasion, she conceded that she was not sure whether the person she saw going into the flat on the 2nd floor was the appellant. The learned magistrate bore in mind the special need for caution before relying on the identification evidence of the victim having regard to the guidelines set out in R. V. Turnbull and others ⁽²⁾ Both instances for observation when a positive identification was made depended upon a brief glimpse. Although the blue T-shirt was capable of supporting the identification evidence, blue T-shirts are so common in Hong Kong that it would be dangerous to rely upon such evidence to support the evidence of identification.

10. Alibi evidence was given by three witnesses on behalf of the appellant but the learned magistrate did not give much weight to their testimony as they were busily engaged in redecoration work in the flat at the time implying that they would not necessarily have noticed the appellant leave the premises. Nevertheless, DW2 said that she was squatting by the flat entrance at the material time which was not challenged in cross-examination. Her evidence accordingly supported the appellant's alibi.

11. This case is a classic example of a fleeting glance encounter. There was the obvious danger that the victim although honest as found by the learned magistrate was mistaken in her identification of the appellant. In the absence of good supporting evidence, I am of the opinion that the conviction was unsafe and unsatisfactory. As a result, the appeal will be allowed the conviction quashed, and the sentence set aside.

(1)    (1977) 65 Cr.App.R. 125

(2)    (1976) 3 All E.R. 549

Representation:

Miss Esther Toh (D.L.A.) for Appellant.

Mr. McClelland (Legal Department) for Crown/Respondent.