HKSAR v. Hung Wan Mui

HCMA 560/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 560 OF 2008

(ON APPEAL FROM KCCC 1659/2008)

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Before: Hon Beeson J in Court

Date of Hearing: 10 September 2008

Date of Judgment: 2 October 2008

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J U D G M E N T

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1.This Appellant was charged with two offences.  The 1^st offence was Aiding, Abetting, Counselling and Procuring Assault Occasioning Actual Bodily Harm contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance, Cap. 212 and section 89 of the Criminal Procedure Ordinance, Cap. 221.  The 2^nd offence was soliciting for an immoral purpose, contrary to section 147(1)(a) of the Crimes Ordinance, Cap. 200.

2.The Appellant was convicted of both charges by Mr D.I. Thomas, after trial in the Magistracy.  She was sentenced to 15 months’ imprisonment on the 1^st charge and to 4 months’ imprisonment on the 2^nd charge.  One month of the sentence on the 2^nd charge, was ordered to run consecutively and the balance concurrently with the sentence on charge 1, making a total of 16 months’ imprisonment.

3.The Appellant appealed against both conviction and sentence.

Brief facts

4.The prosecution alleged that the male victim (PW1) had been approached by a woman as he stood outside an amusement games centre in Yau Ma Tei at about 6.00 pm.  The woman offered him the services of young girls for sexual purposes.  PW1 rejected the offer, using foul language and returned to the amusement games centre to continue playing.

5.At about 8.00 pm, PW1 came outside again to smoke.  He saw the same woman leading six or seven men towards him.  One man asked the woman if the victim was “the one”.  The woman nodded and the men then assaulted PW1; the assault was described by the Magistrate as efficient and brutal.  One man told the victim not to insult his ‘lady boss’ and said that he would use violence on the victim should he see him again.  The woman and the men then walked away.  The victim reported the matter to the police and received treatment for his injuries, including the suturing of a wound on his forehead.

6.Two days later, the victim was near the same amusement games centre when he saw what he thought was the same woman, in the street.  He informed the police and later pointed out the woman to the police officers.  That woman was the Appellant.

7.The Appellant did not give evidence or call any witnesses.

8.The thrust of the defence at trial was that there had been a mistaken identification.  The Perfected Grounds of Appeal complained first, that the prosecution had failed to prove beyond a reasonable doubt that the Appellant was the person who solicited PW1 and aided, abetted, counselled or procured the assault.  Secondly, the evidence was insufficient to support an irresistible inference that the Appellant aided, abetted, counselled or procured the assault, and accordingly the evidence was insufficient to support the claim that she had solicited for an immoral purpose.  Further, as there had been no Identification Parade held by the police after the arrest of the Appellant, the identification was unfair.  The prosecution allegedly had failed to prove that PW1’s identification and/or recognition of the Appellant, 2 days after the incident, was reliable.

9.In all circumstances, the conviction was unsafe and unsatisfactory.

10.The evidence of identification was the crux of the case and recognised as such by the Magistrate.  PW1’s first contact with the woman took place about 6.00 pm in the street.  At that time it was almost dark, some of the shop lights were on and when the woman approached PW1 they were about one to two feet apart.  He first described the woman as being in her 30s, about five feet four to five feet five inches tall, with long, straight hair.

11.When PW1 refused the woman’s offer, and scolded her, she looked very unhappy and walked away.  PW1 estimated that their conversation had lasted about ten to twenty seconds.  He said he had had an unobstructed view of her face.

12.The prosecutor later asked PW1 to repeat his evidence about the woman’s appearance.  At that time, he described her as being in her 30s, of medium build and with long, golden, curly hair.  He said she was Chinese and spoke Punti.

13.The second encounter took place about 8.00 pm.  It was already dark, but the street lights were on and there was illumination from the lights from the shops nearby.  PW1 said he could see the woman’s face for several seconds as she approached with the group.  She was one shop’s distance away from him and there was no obstruction to his view.

14.The woman and the men approached the witness.  In answer to the question “Is this the one?”, the woman nodded her head to point out PW1 and the attack ensued.

15.PW1 estimated that he had seen the woman on the second occasion for “several seconds”; later in his examination in chief he said it was 2-3 seconds.  He could not see the woman’s face clearly, but he was sure that she was the same woman who had approached him on the first occasion, because he could recognise her long, golden, curly hair.

16.In cross-examination PW1 confirmed that he had never seen the woman before the first incident.  He agreed that it was sundown at the time of the first encounter, but he said that shop lights were on, as well as street lights, so even though it was dark, he could see silhouettes.

17.PW1 denied that there was insufficient light to see the woman adequately.  He confirmed that the police had asked if he could make a computer sketch of the woman, but he had said he could not.  He denied that that was because his impression of the woman was blurred, as he had told the police, but explained that it was because he had been assaulted; his emotion was “high” and he was in no condition to carry out such a task.

18.As for the identification 2 days later, PW1 said that it was only when the woman looked at him, that he was sure that it was the same woman and called the police.  He had looked at her for some time before doing so.

19.The Magistrate dealt with the question of the identification in his Statement of Findings (paragraphs 34-35), when he stated:

“It is right that PWI at first said that the woman in the first incident of soliciting had long, straight hair. Subsequently, he said that the woman’s hair was long, curly and gold in colour. It was also right to say that the witness placed much emphasis on the appearance of the woman’s hair. Furthermore, PWI mentioned that, in relation to the first incident, he could still see the ‘silhouettes’ of people even though it was getting dark. The witness had also said that he could not see the face of the woman clearly in the second incident. Bearing in mind that the two incidents occurred in the early evening and at night respectively and that PWI was dependent upon artificial light, it may be thought that the identification of the witness was insufficiently reliable to support a conviction. (emphasis supplied)

However, the case did not depend upon an identification made by the witness some considerable time after the event at an identity parade involving other women of similar appearance. The witness had a good opportunity to observe the woman in the first incident. Although the exchange between himself and the woman took place over some twenty to thirty seconds, during this period the witness was facing the woman directly. The attention of the witness was fully on the woman. In the context of the exchange between the two, the witness had had ample opportunity to observe the appearance of the woman. In the second incident, the witness had had the opportunity to see the woman approaching him with the various men who had subsequently assaulted him. The witness gave evidence that he had been able to see the face of the woman as she approached.”

20.Later, (paragraph 37), the Magistrate stated:

“I was satisfied so that I was sure beyond a reasonable doubt that the prosecution had proved that the observation, recognition and identification of the Appellant by PW1 was not only honest but was entirely reliable.”

21.The Magistrate realised that it might be thought that the identification was not sufficiently reliable and it is difficult to see how he could have been so confident, given the circumstances of the identification, that the woman arrested after PW1 had pointed her out, was the same woman who had solicited PW1 and been present at the assault.

22.The police did not see fit to have an Identification Parade which in the circumstances would have been sensible, given the nature of PW1’s encounters with the woman and also his reluctance to help in making a computer sketch.

23.The identification of the Appellant by PW1 was based on a very short encounter, albeit at close quarters, in natural light that by 6.00 pm had largely failed, and was being replaced by artificial lighting from street lights and shops.  The second encounter was even shorter, the woman’s face was seen for a few seconds as she approached, but the witness did not have a view of her face thereafter and it is reasonable to assume that on the second occasion his attention would have been more focused on the group of males.  Darkness had fallen and shop and street lights were on.

24.The basis of PW1’s identification, on each occasion, was the appearance of the woman’s hair, which was at first described by him as long and straight and then later changed to long, golden and curly.  The hair colour was the sole component of his identification and, in particular, it triggered the alleged recognition two days later.  The risk of PW1 being mistaken in his identification because of the unsatisfactory conditions was high.

25.The total time of his seeing the features of the woman during the first encounter although not quite a “fleeting glance”, was very short and had occurred in poor physical conditions.  In the second encounter PW1 had not seen the features of the woman very clearly at all, except for 2-3 seconds during her initial approach.  The assault on him ensured that he did not take any further notice of the woman, and later, when asked if he would assist with a computer sketch, he told the police that he had a blurred impression of the woman.

26.The Magistrate found PW1 was an honest and reliable witness, despite his criminal record which contained 4 convictions, including one for theft and one for giving false information to a pawnbroker.  He may well have been honest, but there was too much reliance by PW1 on the colour of the woman’s hair, rather than her facial features, to rule out the possibility of his being honest but mistaken in his identification.  That reliance, together with the other unsatisfactory aspects of the identification caused me to believe this conviction is unsafe.

27.Accordingly, I allow the appeal and I quash the conviction and the sentence.

Mr Richard Ma, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Shahmim Khan Khattak, instructed by Messrs Poon & Cheung, for the Appellant