HKSAR v. LEUNG CHI SHING

1997, NO. MA 416

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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REASONS FOR DECISION

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1. These are my reasons for allowing the appeal on the Appellant's conviction.

2. The Appellant who appeared in the court below as the 2nd Defendant was jointly charged with three others on three counts of Assault Occasioning Actual Bodily Harm. At the conclusion of the trial, the learned magistrate found the Appellant guilty on all three charges. His co-defendants were acquitted.

3. The incident took place in the evening of 14 December 1996 at the shopping arcade of the Wing Lee Building in Kimberly Road in Kowloon. Prior to the attack there had been a dispute between two groups of hawkers over the positioning of their mobile stalls in the vicinity of Nathan Road at the junction of Peking Road. At the close of business that same evening, while the victims were returning to the shopping arcade where they store their goods, the Appellant was alleged to have led a group of about 10 men and attacked the victims.

4. The three co-defendants in this case were acquitted and the reasons given by the learned magistrate were that he was not sure whether the prosecution witnesses had correctly identified the named co-defendants. As for the case against the Appellant, this was what he said at page 6 of his Statement of Findings :

" There was not doubt whatsoever that all 3 victims (PWs 1, 3 and 4) were brutally assaulted in the evening in question by a group of men in the shopping arcade. I had no reasonable doubt that they were telling the truth when they say that it was D2, a familiar figure to all three of them, led the group of men into the shopping arcade and assaulted them. I convicted D2 accordingly."

5. There is only one ground of appeal pursued by Mr Grounds at this hearing and it is that the learned magistrate erred in law in failing to warn himself properly on the evidence of identification against the Appellant.

6. This is a case where the entire prosecution turns on the correctness of the identification of the Appellant by the victims who gave evidence as PW1, 3 and 4. The attack took place within a short span of time and amid chaos and confusion. The learned magistrate approached the evidence on the basis that this is a case of "recognition" of the Appellant by PW1 as he accepted that he had known the Appellant for some 8 months prior to the attack. The other two victims were also familiar with the Appellant. It is submitted by Mr Grounds that the learned magistrate, when considering the evidence of familiarity of the witnesses with the Appellant, had failed to have proper regard to the authorities in this area of the law and had thereby fallen into error in not giving himself the requisite warning on the identification evidence.

7. Counsel for the Appellant relied on the Privy Council case of Beckford and Ors. v. R. 97 Cr.Ap.Rep. 413. The Appellants in that case were charged with and convicted of murder. The prosecution case against them was that only one person witnessed the killing and his evidence was that he recognized the appellants, all of whom were known to him for considerable periods of time. At the trial, the main issue was the credibility of the witness who made the identification. The judge at the trial directed the jury that the identification evidence was critical and concentrated on the demeanor of the witness and whether his evidence was true or false. The judge, however, gave no general warning about the dangers of mistaken identification along Turnbull lines. The point taken on appeal was that a general warning along Turnbull lines were required in recognition cases, as well as those involving the identification of a stranger. This warning was nonetheless required even if the sole or main thrust of the defence was directed to the credibility of the witness who made the identification, that is, whether the evidence was true or false, as distinct from accurate or mistaken.

8. In allowing the appeal, Lord Lowry delivered the judgement of the Board and at p.415 he said :

" The need to give the general warning even in recognition cases where the main challenge is to the truthfulness of the witness should be obvious. The first question for the jury is whether the witness is honest. If the answer to that question is yes, the next question is the same as that which must be asked concerning every honest witness who purports to make an identification, namely is he right or could he be mistaken?"

Further down on the same page, his Lordship continued:

"... Their Lordships, however, having regard to their conclusion upon the judge's failure to give a general warning, and also because they wish to emphasize that such a failure will nearly always by itself be enough to invalidate a conviction which is substantially based on identification evidence..."

It is perhaps noteworthy that the witness in that case had known one of the appellants since birth and another appellant for over a year at the time of the killing.

9. Beckford is binding on our courts and it was applied in Tran Duc Cuong v. R. Criminal Appeal No.424 of 1993. It was an appeal against a conviction of murder. By a majority, the Court of Appeal dismissed the appeal. Their Lordships were however of the unanimous view that even in cases where a witness is well acquainted with the defendant, the warning on identification should be given save in exceptional circumstances.

10. According to the Statement of Findings, it was the weakness of the evidence against the co-defendants that resulted in their acquittal as the learned magistrate was not sure that they were correctly identified. Having dealt with the case against the co-defendants, however, nowhere in his Statement of Findings did the learned magistrate warn himself of the evidence of identification and considered the intrinsic weakness of such evidence in respect of the Appellant. This, in the light of the above authorities, must have been an error in law and the result of which had rendered the conviction of the Appellant unsafe and unsatisfactory.

11. For the reasons given, this appeal is allowed. The convictions are quashed and the sentences are set aside.