Kong Kin Ming v. The Queen
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CACC000898/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 898 OF 1974 -----------------
Coram: Briggs, C.J. Date of Judgment: 21st November, 1974. ----------------- JUDGMENT ----------------- 1. The appellant was found guilty of the offence of defilement of a girl of between the ages of 13 and 16 years. The victim was defiled by a person in a certain apartment on the 21st April, 1974. At about the same time two other persons possessed her in circumstances which amounted to rape. They have been convicted of the offence of defilement and are now serving sentences of imprisonment. At the time of the incidents the victim was not a virgin. Indeed, she may be described as a girl of no character. The appellant in this case was sentenced to nine months' imprisonment but appeals against his conviction only. 2. The whole case depended upon the identification of the appellant by the victim. The victim identified the appellant at an identification parade which was held in the normal manner. She was then asked whether she identified anyone else as being concerned in the incident and she picked out a man who, it turned out, was not concerned in the incident at all. In court, the victim was asked whether she recognized her assailant in court and she picked out a man who again had nothing to do with the case. The court was then cleared and again the victim was unable to identify the appellant. Later she did identify him. It appears from the record that at that time the victim was very frightened and was in a very agitated state. I was told that the defence had arranged for persons to be dressed in clothes similar to those worn by the appellant at the identification parade to be present in court at the trial, and from the record it appears that there were such persons in the court at the time. I was further told that this was done with the concurrence of counsel who appeared for the appellant in the court below. If this is true, such conduct was very wrong. It amounts, in effect, to an attempt to confuse a witness called for the prosecution, thus assisting the conduct of the defence. 3. I do not, in this case, attach importance to what happened to the attempts of the victim to identify the appellant in court. What does matter is what happened at the identification parade. In view of the character and evidence of the victim very positive evidence of identification is necessary since there is virtually no other evidence against the appellant other than that of the victim herself. Since she made a mistake and identified another man as being the person involved in the incident I do not think it would be safe to allow this conviction to stand. The appeal is allowed.
.Representation: P. Woo (H.M. So & Co.) for Appellant. Turner, c.c. for Crown/Respondent. |