HKSAR v. HUI KIN FAI

HCMA 273/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 273 OF 2000

(ON APPEAL FROM SPCC 7944/1999)

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J U D G M E N T

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1. The appellant, Hui Kin Fai, was convicted after trial of one charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200 of the Laws of Hong Kong.

2. Particulars of the offence was that on 1st day of November 1999, at the junction of Tokwawan Road and Chi Kiang Street, Kowloon, in Hong Kong, he indecently assaulted another person, namely Wong Tze-ying.

3. The appellant appeals against his conviction.

Facts

4. The prosecution called 2 witnesses at the trial. The first prosecution witness PW1, Ms Wong, gave evidence that on the material day, she was with 2 colleagues at the junction of Tokwawan Road and Chi Kiang Street, on the way to Ma Tau Wai Road to catch a bus for Tsimshatsui. Whilst they were crossing Chi Kiang Street, she said she felt somebody pinch her left buttock. She said the pinch lasted a second or two. She did not look around to see who had pinched her, but she first looked left and then to her right. She said that she saw one person, whom she subsequently identified as the defendant to her left about "one person's space" away from her and when she looked to the right, there were 2 persons and they were about 5 feet away from her. PW1 said she did not look behind her after the pinching but she believed that there were not too many people behind her.

5. PW1 said she was very angry and informed one of her colleagues who was in front of her that she had been indecently assaulted. PW1 also said that she saw that the assailant was wearing a beige shirt and almond-coloured trousers. She said that the defendant walked past towards Lok Shan Road and she walked parallel to him on the opposite side of the road. She saw him enter a branch of the Belgian Bank. She and her colleagues waited outside the entrance and then her colleague used the mobile telephone to report to the police.

6. When the defendant came out of the bank, PW1 said her colleague spoke to him and asked him why he had indecently assaulted her. The defendant denied that he had done so whereupon her colleague then told the defendant that he had witnessed it. The defendant then apologised and said he did not intend to do it and asked them not to create so much trouble. PW1 said that the defendant wanted to leave and her colleague then grabbed hold of him whereupon the appellant resisted and ran down the road where a passer-by then stopped him. PW1 said she had never seen the defendant before and that she never lost sight of the appellant after the pinching until the time when he entered the Belgian Bank. And even when the appellant was inside the bank she had not lost sight of him as he was close to a machine displaying financial news near to the entrance. She said she saw the defendant's face, the first time shortly after she was pinched and she identified the appellant as that person.

7. The second prosecution witness PC9240 testified that when he arrived at the scene outside the Belgian Bank he cautioned the appellant and the appellant said to him "I did not intend to do it. Even though I touched her, it was accidental. I have a wife and son. Ah Sir, don't play the matter up. I can say sorry to the girl." These remarks were admitted by the appellant as voluntary.

8. On appeal, Mr Laskey who represented the appellant made note of the fact that the Chinese words that were used in fact was not "even though" it should be "even if". Be that as it may, it was not an issue on the appeal because the learned trial Magistrate had not used this evidence in any way as corroboration of PW1's evidence.

9. The appellant elected to give evidence at the trial. He testified that he had withdrawn from his bank a sum of $200,000 in cash and then he went to eat at a restaurant in Tokwawan Road. Briefly, his evidence was that when he was in the restaurant he had noticed the first prosecution witness and her 2 colleagues, who looked suspicious to him. He said that when he paid his bill at the restaurant, he took out his bundle of money from his trousers pocket. He then went to the Belgian Bank where he intended to buy some shares but upon seeing that the price had risen, he decided to wait until the price drop. He went outside and the 3 persons from the restaurant blocked his path whereupon one of the males of the group alleged that he had indecently assaulted the PW1. And the male told the appellant that if he wanted to settle the matter he knew what he must do. Making a movement with his fingers which meant that he wanted money. The appellant told them to call the police. They assaulted him and then very shortly after that, the police arrived. The appellant testified that he did not touch anybody on the street and he had not even crossed Chi Kiang Street.

10. The appellant also called a witness, the 2nd defence witness and he testified that at the material time, he was inside the restaurant where the appellant had been. He said he saw the appellant, whom he did not know at the time, go and pay his bill and he saw 3 persons next to him who appeared nervous and furtive. He said they followed the appellant without finishing their meal, so out of curiosity he followed them. He said he had never seen the appellant or the 3 persons before. He saw that they followed the appellant to the bank and subsequently intercepted the appellant when he came out. He saw there was a dispute and then a fight. The police then arrived at the scene and he left the scene. He said 2 months later when he was having tea, the appellant came to the restaurant and distributed leaflets to see if anyone had witnessed the incident. And it was at that time that he was asked to be the defendant's witness.

11. Four grounds were advanced on behalf of the appellant in this appeal:

(1) that the identification of the appellant by PW1 was manifestly unsatisfactory;

(2) the Magistrate had failed to give himself the Turnbull Direction on identification;

(3) the Magistrate had failed to address himself appropriately on the issue of corroboration and;

(4) that there was excessive interference by the learned trial Magistrate.

Identification

12. PW1's evidence was that as she was crossing the road, someone behind her had pinched her buttock. When she looked to the left, she saw the defendant who was at about an arm's length away from her, so he passed her and walked straight ahead. At that time, she said she was angry and she stopped on the pavement for a minute or a few tens of second to discuss the matter with her colleagues.

13. It is clear that at the time when the appellant walked passed her, she would only have had a fleeting glance of his profile. In fact, she did give evidence that she did not lose sight of the appellant because she was walking along the same road but on the opposite side of the road. So, although her glance of the defendant's face was fleeting at the time when he walked pass her after the pinching, she would have had an opportunity to observe his facial features when he was walking on the opposite side of the road.

14. The learned trial Magistrate in his Statement of Findings said that the identification of the appellant by PW1 was in no way a fleeting glimpse. He said that:

"She saw his face as he passed her by. She observed his clothing she never lost sight of him during the time she followed him. He was in her sight even when he was inside the bank as he was closed to the entrance. It was safe to rely on her identification of the appellant."

15. But in the learned trial Magistrate's oral reasons for verdict at p.42 of the bundle, he said this:

"She testified that she never lost sight of this person thereafter until he was stopped leaving the Belgian Bank. She identified the defendant as that person. I am satisfied that it is safe to rely on her identification of the defendant as being that person."

16. It is clear from the transcript that the learned trial Magistrate did not have in mind the Turnbull Directions when he was delivering his oral reasons for verdict. But by the time he came to write his Statement of Findings, the Turnbull Directions were indeed in his mind and that is why he mentioned in his Statement of Findings that he did not consider the identification to be one of a fleeting glimpse.

17. The learned trial Magistrate does not have to recite the principles in Turnbull's case to demonstrate that he is aware of them. But he must demonstrate that he is aware of the special need for care concerning identification evidence in accordance with the principles set out in R. v. Turnbull. This is especially so in a case of this nature where the main issue is one of identification. It is, perhaps, worth mentioning here the words of Duffy J in the case of R. v. Tsang Pak-ming, MA391/1988.

"The call in R. v. Turnbull for caution when considering identification evidence should not have mere lip service. That cautionary term reflects the showing experience of many past instances of mistaken identification. It seems to me therefore that it is at least desirable for a magistrate dealing with identification cases, and where it is appropriate to do so, to clearly indicate that they have had regard to the principles enunciated in R. v. Turnbull. Failure to do so, in appropriate cases, may well cause the appellate tribunal to doubt that the magistrate's decision followed a proper consideration of all relevant factors."

18. Miss Chan, appearing on behalf of the respondent, had submitted that the defence in this case was that PW1 and her colleagues had foamed him up and it was not the defence case that it was a mistaken identification and therefore it was not necessary for the learned trial Magistrate to give himself a warning.

19. I do not agree. In the case of R. v. Domican (1992) 60 A C Rim 169, the High Court of Australia held that:

"a general warning of the dangers of identification evidence had to be given whatever defence was being run at trial."

It was held in the case of HKSAR v. Nguyen Lam, TACC 496/99 that where a magistrate does not expressly say that the court is aware of the dangers outlined in the Turnbull guidelines, it is then open to the appellate court to examine the evidence and its strength in determining how to dispose of an appeal on the ground of a failure to give an express warning or to demonstrate awareness of the concerns which underline the guideline.

20. This was a case where PW1 had observed the profile of the assailant when he walked passed her and when he was walking along the opposite side of the road to her. One must not forget the fact that this case happened in the afternoon along Tokwawan Road and its environs, and one can take into account the fact that it was a busy area of Kowloon. It was unfortunate that defence counsel did not explore what obstruction there may have been to PW1's view of the appellant's face by traffic along the road and by other pedestrians.

21. Nevertheless, the learned trial Magistrate should have taken all that into account and warned himself of the Turnbull guidelines when assessing the evidence of PW1 on the identification.

22. It is crucial in a case of this nature that the learned trial Magistrate should warn himself of the risks of mistaken identification. While it can be said that this was not a fleeting glance situation but an observation under difficult circumstances situation, nevertheless the learned trial Magistrate apart from saying that it was not a fleeting glance situation had failed to warn himself further on this matter. By giving himself a mere general warning, it is insufficient, moreover, it was too late.

Corroboration

23. It is accepted by both counsel for the respondent and for the appellant that at the time of the trial in January 2000, a corroboration warning was necessary because section 4(b) of the Evidence Ordinance which abrogated the rule whereby a judge was obliged to warn of the danger of convicting on the uncorroborated testimony of a victim of a sexual offence did not come into force until June 2000.

24. The learned trial Magistrate in his oral reasons for verdict had failed to mention explicitly or implicitly that he had warned himself of the dangers of convicting on the uncorroborated testimony of PW1. This defect was not cured until his statement of findings where he did so warn himself. Whilst it is correct that a magistrate does not have to mention every thought process that went through his head and an experienced magistrate is deemed to have the necessary relevant law in his mind, nevertheless, a corroboration warning is important in this case, particularly, when the learned Magistrate had found no corroboration. He did not necessarily have to go through a recitation of the warning but just in a few words to express that he had it in mind at the time when he convicted the appellant.

25. It is so important in this case that it cannot be cured by his warning himself at the time when he wrote his Statement of Findings. It was too late.

Fourth Ground of Appeal

26. I do not see much merit in the fourth ground of appeal. It is a fine line that a magistrate has to tread between entering into the arena and seeing that justice is done for both parties before him. I find that, after reading through the questions by the learned Magistrate that he was asking those questions to clarify the matters before him. It is true that the questions were numerous and if one looks at the quantity of the questions only it would appear to be excessive. We must not forget that it is question of balance and having looked at the type of questions that was asked by the learned trial Magistrate, I do not agree that in this instance that he had actually descended into the arena, although he was close to it.

27. For the reasons stated above, I allow the appeal against conviction and I quash the conviction of the appellant. Costs to the appellant for the appeal, to be taxed, if not agreed.