HKSAR v. KHAN MOHAMMAD

HCMA447/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.447 OF 2000

(ON APPEAL FROM ESCC NO.476 OF 2000)

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J U D G M E N T

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1. The appellant was charged with an offence of indecent assault. He denied the charge and was convicted after trial. The sentence imposed was six months' imprisonment. The appellant sought to appeal against both the conviction and sentence.

2. The appellant was represented by counsel at the trial. The main issue was identification. The prosecution's case turned on the evidence of a young girl who was 11 years old at the time of the offence. On 30 August 1999, the victim, Koo Ching Yan (PW2 in this case), went with her younger brother to a supermarket in her neighbourhood. While she was inside the supermarket trying to select a drink, a man came up to her, slipped his left hand down the front of her shorts and touched her private parts. She immediately looked at the man and then pushed him away. The man followed her while she went to get her brother. She therefore had the opportunity of observing him. Then she went to the counter to pay and she saw the man at the adjacent counter. She continued to look at the man's face even though she was scared. Afterwards, she called her mother and told her what had taken place. She was crying while speaking on the phone.

3. Subsequently, on 1 January 2000, the victim met the appellant in a street near the supermarket. She pointed out the appellant to her mother as the assailant. The appellant was eventually arrested by the police. The other witnesses had given evidence as to what happened after this encounter and identification.

4. As to the defence case, the appellant elected not to give evidence at the trial. However, the defence called DW1, Mr Fazal Hussein, to testify. He was not the appellant's natural father but he had been looking after him and treated him like a son. Essentially, he had provided alibi evidence for the appellant.

5. Having considered the evidence of the case, the learned magistrate convicted the appellant and sentenced him to six months' imprisonment. At the appeal, the appellant was unrepresented. He informed me that the Legal Aid Department had turned down his application for assistance. He was poor and did not know what to do. He protested that the case was a "false accusation" against him and he invited this court to reconsider the evidence. He further complained that the sentence of six months' imprisonment was excessive.

6. The learned magistrate had given a very detailed judgment at the end of the trial. In para.14 of his Statement of Findings, he had explained, in a succinct manner, the basis of the conviction :

"Issue etc

14. Thus the principal issue was identification. I adopt the reasons for my verdict given in court (Transcript, page 16E). They are fairly fully expressed and I will add only this: PW1 was not a guesser and was unwilling to make estimates, preferring to deal only in black and white. She was a careful witness, pausing to think where necessary and plainly seeking to ensure that she did not say anything that she did not know to be true. She was examined and cross-examined at some length and I was therefore able to assess her by observing her and listening to her and to the way in which she gave her answers. Whilst not placing too much emphasis on demeanour, I was able to conclude with certainty that this was not a reckless piece of guesswork by the girl as to the identity of her attacker; and neither was it a case of someone trapped into an allegation from which she felt she could not withdraw. She was not someone who was willing to subscribe carelessly to anything put to her. Essentially, it was a classic jury issue, a judgment about the witnesses and their evidence. I had no doubt about the appellant's guilt having assessed those witnesses with full regard to the proper principles of law."

7. On the face of it, this may appear to be a simple case, but there are many features that required cautious deliberation. Having read the oral judgment delivered on the very next day after hearing the submissions, I could only say that the learned magistrate had dealt with all the points that need to be considered in light of the evidence of this case. His analysis was fair and balanced.

8. The learned magistrate was keenly aware that the identification of the appellant took place some four months after the incident; he duly noted that there was no corroboration of the complainant's account and had carefully warned himself accordingly. He reminded himself that a mistaken identification could be made by an otherwise honest witness. In fact, he had given himself a full Turnbull warning.

9. The learned magistrate had made the following observations about the girl's evidence :

"In the end, I am bound to say that the prosecution case relies entirely upon PW2. The fact that she is an unsworn witness does not undermine her evidence in any way and neither does the fact that she has given evidence through the television link. Just because she is a young witness, still a child, does not of itself affect her credibility. Children are as entitled to be believed as any witness, though of course the court must be alive to the possibility of youthful misunderstanding or mistake and to the dangers of coaching. I can say that there is no question of coaching here. I am sure of that and neither is there any question of mistake arising simply out of her youth though it is a factor to be weighed when considering her reliability as an identifying witness. My assessment of PW2 is this: she was a lucid and coherent witness.

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A clear and understandable witness and she gave no hint of exaggeration or embellishment. There were no inherent improbabilities in what she said. She was balanced and objective and was clearly not displaying any malice towards the defendant. She attempted to be precise and did not try to guess at things that she did not know. She was not willing to make estimates or judgments as to time or distance and only when pressed did she attempt to do so. For her age, she showed considerable poise and maturity. I found her to be a cogent and compelling witness who was at all times truthful. However, these conclusions do not of themselves rule out mistake on identification, so it is necessary to examine the circumstances of her identification with care."

10. Having said that, the learned magistrate then embarked on a thorough analysis and assessment of the witnesses and their evidence. His evaluation led him to the rejection of the alibi evidence and acceptance of the testimony of the girl.

11. Having considered the learned magistrate's reasoning, I could find no ground to disturb his findings. The only comment I would make is that I am not sure whether it is entirely correct to compare such an identification in the street with an organized identification parade (page 47 of the Transcript). The two situations are quite different in nature.

12. Cases that turned on identification evidence required very careful consideration, particularly in a case where the identification was done four months afterwards. However, it was obvious that the learned magistrate had taken a very cautious approach in the assessment of the evidence. I would uphold the conviction in the circumstances.

13. As to the appeal on sentence, the learned magistrate pointed out in his oral reasons that :

" The fact is that she was young and she was vulnerable; and [the defendant], for whatever reason, took advantage of that, no doubt for your own sexual gratification. People such as PW2, the girl in question, are entitled to be protected by the courts from this sort of attack and the courts must treat it seriously when cases of it come before the courts."

He further stated in para.15 of his Statement of Findings that :

"Sentence

15. I adopt the reasons for sentence given in court (Transcript, page 27G) and add: a touching to the private parts of a young girl, inside at least her top clothing, by a mature adult motivated by his own sexual desires could only be met with a sentence of imprisonment. The mitigation of a plea was not available. The appellant's previous clear record was of marginal effect in a case such as this, mainly serving to keep the starting point down to 6 months. If the appellant had got a record for similar offences, the starting point would have been higher (Ng Chi-man [1999] HKC 632 @ 635, Power V.P.)."

14. I, again, have to agree with the learned magistrate's reasoning. The sentence of six months' imprisonment was neither manifestly excessive nor wrong in principle.

15. In the circumstances, I would dismiss both the appeal on conviction and sentence.