HKSAR v. Woo Yu Hang

HCMA376/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 376 OF 2007

(ON APPEAL FROM FLCC 3104 OF 2006)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 10 January 2008

Date of Judgment : 10 January 2008

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J U D G M E N T

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1.The appeal is allowed, the order for refusing costs is reversed and the appellant is awarded his costs for the trial and for the appeal, which are to be taxed if not agreed.

2.The reason for allowing the appeal is firstly that there was no evidence at the trial to prove that the appellant was the person who had been arrested by PW4, a police officer, at the scene apart from the fact that the police officer, who was never called to give evidence, said in his statement that the person he arrested happened to have the same name as the appellant.  PW3 was the only person who was called to give evidence at the trial.  He had apparently identified the person arrested by the police at the scene as one of the assailants, but he admitted in cross-examination that he might have made a mistake about that identification and, at the trial, he was never asked by the prosecutor to attempt a dock identification.

3.I think the Director of Public Prosecution should re-assess the ability of the counsel concerned to conduct prosecutions in future.  My view is that instead of just calling one witness he should have called at least the arresting officer to prove that the appellant was the person arrested by him at the scene. 

4.The state of the evidence as it was adduced before the magistrate, in my view, should have led the magistrate to rule that there was no case to answer.

Mr Stewart Hau, SGC of Department of Justice, for HKSAR

Mr Philip Wong, instructed by Messrs Li, Wong & Lam, for the Appellant