HKSAR v. KUNG WAI LUN

HCMA 1317/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1317 OF 2001

(ON APPEAL FROM WSCC 5482/2001)

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J U D G M E N T

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1. On 28 February I allowed the appellant's appeal against his conviction at Western Magistrates Court on 22 November last year of an offence of 'loitering causing concern', and I set aside the fine of $3,000.00 which had been imposed upon him.

2. These are my reasons.

3. The sole issue at trial was one of identification and, in his statement of findings, what the learned Magistrate said about that matter was as follows :-

"The defendant was a man of steady employment and had a clear record. I directed myself that it is relevant to the credibility of his evidence and his propensity to commit the offence charged. I also reminded myself that what PW1 had heard about the defendant is not relevant to this case, except whether it might affect her identification evidence and her truthfulness.

Having heard all the evidence, I was satisfied that PW1 is a truthful witness. She did not exaggerate her identification evidence. She told the court what she had heard about the defendant. She also agreed that she talked about this case with Miss Ma after this incident.

The main issue in this case is whether the defendant was the man PW1 saw in the female washroom. In assessing the evidence, I bore in mind the Turnbull guidelines. I took into account that the main piece of identification evidence is that PW1 looked at the face of the man through the mirror for one to two seconds.

Having considered the photos produced as to the layout of the washroom and also the light condition, I was satisfied that the observation was not under difficult condition. I agree that the duration of the observation was short but it was not a fleeting glance situation and there is no dispute that PW1 had seen the defendant before.

PW1 recognised the man as the defendant immediately, which led to the subsequent arrest of the defendant. The fact that there was no identification parade held subsequently does not assist the defence. I also considered that the prosecution did not lead any further evidence, e.g., clothing of the man in the washroom and also of the defendant when he was arrested.

The defendant was working at the reception area of the only other office on the same floor. There was opportunity for him to have access to the female washroom key, which a stranger did not have. I think it is supporting evidence that he was the man.

I was sure PW1 did not make a mistake in identifying the defendant as the man she saw in the washroom. On the other hand, I did not believe the defendant's evidence that he was not the man seen by PW1 in the washroom."

4. The underlining in the above passage is mine. It highlights the 2 issues before me during the hearing of this appeal.

5. The sole written ground of appeal relied upon by Mr Wong who appeared for the appellant was as follows :-

"1. The learned Magistrate was wrong to hold that "The Defendant was working at the reception area of the only other office on the same floor. There was opportunity for him to have access to the female washroom key which a stranger did not have" in that there was no evidence at the trial at all as to :-

(i) Where the female toilet key was kept and, by whom;

(ii) Whether the Appellant had access to this key;

(iii) and as to whether the key could have been duplicated or lost and therefore been in possession of someone who was not working on the same floor.

2. Because of ground I above, the learned Magistrate was wrong in finding that this was supporting evidence that the Appellant was the man.

3. In all the circumstances of the case, the conviction is unsafe and unsatisfactory."

6. The identification evidence was weak and this was clearly recognised by the Magistrate who looked for evidence in support of it. The identification evidence, in essence, was this. The lady concerned said that she recognised the defendant who worked in the premises because she had seen him on a number of occasions previously. On the day in question, at about 9:30 a.m., she said it was the defendant (whom she had seen earlier that morning in the corridor) who was standing in a lavatory cubicle and that she could see him in a mirror (which was about 10 feet away from her) whilst he was looking out in the direction of that same mirror. The lady said that she could see the man for 1-2 seconds, after which he pushed the door until it was nearly closed at which stage she could no longer see him, and he subsequently left. Some six hours later she pointed out the defendant (who was working in his office with other people) to the police through a glass door and said that he was the person she had seen in the lavatory that morning.

7. In the course of her evidence the lady concerned, whilst recounting what had happened, quite gratuitously said this :-

"actually its nor the first time and we felt we had to raise the matter up."

That plainly came as something of a revelation to the prosecutor who, perhaps wisely did not pursue it. Defence counsel clearly thought - and in my view rightly so - that he could not just let that evidence go without attempting to clarify it and he asked the lady what she meant by it. She replied saying :-

"According to what I was told by my colleagues ... previously the defendant had attempted to enter the female toilet"

and she proceeded to go into some detail about what she had been told about the defendant and how that had caused her to have a 'bad impression' concerning the defendant.

8. Putting it mildly that evidence was unfortunate. It should never have been led (albeit inadvertently) by the prosecutor. It perhaps demonstrates the importance of leading evidence carefully and not simply giving a witness the opportunity to say whatever he or she likes about an event as a result of a wide ranging but seemingly innocuous question.

9. In the event that evidence, which was plainly prima facie hearsay and inadmissible, was highly prejudicial to the defence albeit (as was recognised by the Magistrate) it might also have had a direct bearing upon the lady's identification of the defendant if that identification was based wholly or partially upon an assumption which, in turn, was founded upon what she had been told by others.

10. For that reason, or so it seems to me, the learned Magistrate was obliged in his statement of findings not merely to state that he recognised the problem but also to deal with it in a manner which clearly showed why, in his view, the lady's identification of the defendant was unaffected by it - and this he did not do. What he did do was to conclude that her evidence was truthful which was not the point. The point was whether her identification was reliable.

11. As regards the written ground of appeal, which I have recited, whilst I do not go so far as to accept Mr Wong's contention that the evidence upon which the Magistrate relied in support of the identification evidence was purely speculative I do agree with his submission that given its nature, it was anything but compelling and that it was not capable of supporting the identification. I reject Ms Chan's contention that in fact the Magistrate had not used the evidence for that purpose and that he had said "I think it is supporting evidence" as some sort of throw away line.

12. It was for these reasons that I concluded that the conviction of the appellant was unsafe and unsatisfactory and I allowed this appeal.