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HCMA000747/1989
IN THE SUPREME COURT OF HONG KONG
APPELLATE JURISDICTION
MAGISTRACY APPEAL NO. 747 OF 1989
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BETWEEN
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THE QUEEN
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AND
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LEUNG KAM FAI
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Coram: Hon. Penlington, J.A. sitting as an additional High Court Judge
Date of hearing: 10 November 1989
Date of delivery of judgment: 10 November 1989
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J U D G M E N T
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Penlington, J.A.:
1. This was an appeal against conviction on a charge of indecency in public, the Crown's case below being that the Appellant exposed himself on the 6th October, 1989 to a woman at the Lam Tin Estate. The sole question was as to whether the woman's evidence as to identification was reliable and it was the ground of appeal that the trial Magistrate, Mr. J.M. Meredith, had failed to correctly applied the guidelines in R. v. turnbull 1976 3 A.E.R. 549. However at the hearing another ground was raised which was that, although requested, the defence solicitor at trial was not supplied with the prosecution withesses statement and was therefore not able to challenge the witness on any discrepancy as to her description of the man she saw and the actual appearance of the Appellant at the time of his arrest.
2. Mr. Loftus, who appeared for the Crown, very properly conceded that the statement should have been made available and felt that under all the circumstances he could not support the conviction. I therefore allowed the appeal, quashed the conviction and ordered that the Appellants have his costs here and before the Magistrate.
3. I should however add that no application was made before the Magistrate for an order that the statement be supplied as it should have been, nor was he informed that the statement had not been made available. No blame of any sort therefore attaches to the trial Magistrate in this matter.
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(R.G. Penlington)
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Justice of Appeal
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Representation:
Mr. Patrick Loftus C.C. for Crown
Mr. William Howard, Q.C. & Miss Evelyn Pau inst'd by Hastings & Co. for Appellant
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