R. v. VU THI DUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 324 OF 1994

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D E C I S I O N

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1. The appellant pleaded guilty before a magistrate to an offence of escape from legal custody, contrary to Rule 41 of the Immigration (Vietnamese Migrants) (Detention Centre) Rules, 1992. She was sentenced to three months' imprisonment. She was also convicted after trial of the offence of escape from lawful authority, contrary to Common Law. For that offence, she was sentenced to six months' imprisonment, to be concurrent with the sentence on the other charge. She now appeals against the conviction for the offence of escape from lawful authority and against the sentences in respect of the two offences.

2. The Crown's case was that the appellant was a Vietnamese illegal immigrant who was an inmate of the Whitehead Detention Centre. Under the pretext of getting treatment in the Prince of Wales Hospital, she was taken from the Centre to the hospital. On the following day, she was found to be missing from the hospital. The Crown alleged that about two weeks later, two officers PW1 and PW2 who were patrolling in the Tai Kok Tsui area stopped a Vietnamese male and two Vietnamese females in the street. They asked these persons for the production of their identity cards. When the Vietnamese male and one of the two females produced their identity cards, PW1 looked at these documents and suspected that they were forgeries. The third Vietnamese could not produce any identity. Thereupon the officer and his colleague arrested these three Vietnamese persons who were then handcuffed, with the two females in one handcuff. They were then taken to a nearby police van which was parked some 10 metres away. When they arrived there, the Vietnamese male started to struggle and drew the attention of the two officers. The Vietnamese female who could not produce any identity card slipped away from the handcuff and fled. She managed to make good her escape. Approximately two months later, the appellant was stopped by another police officer in the street and when she could not produce any identity, she was arrested and brought back to the Mongkok Police Station. While she was there, the two officers who were involved in the incident at the Tai Kok Tsui area passed by the report room of the police station. They said they could recognise the appellant as the Vietnamese female who escaped earlier on. She was then charged with these two offences. As I said, she pleaded guilty to the charge of escape from legal authority but not guilty to the charge of escape from lawful authority. At the trial, the two officers gave evidence. The appellant elected not to call or give evidence.

3. When she first appeared before me, the appellant maintained her innocence in respect of the offence of which she was found guilty. She said that she was not the person seen, stopped and arrested by the two officers in the Tai Kok Tsui area on the first occasion. Having ascertained her intention to appeal against the conviction, I granted her leave to appeal out of time and called for the transcript which was duly prepared.

4. In his Statement of Finding, the learned magistrate quite rightly pointed out that this was a case of identification. Both officers testified as to what happened on that occasion in the Tai Kok Tsui area. However, only the first officer, PW1, made an identification in the dock whereas the second officer, PW2, did not do so, probably through an oversight. The learned magistrate said that this was not a situation of a fleeting glance, that the officers had observed the appellant for five minutes and that he was satisfied that the identification was correct and safe. He had also reminded himself that the officer might be an honest but mistaken witness. At the end, he was sure that the appellant was the person who had escaped from the officers' lawful custody.

5. In his evidence, PW1 did say that he had observed the appellant for about five minutes. However, it does appear that he was not observing her all the time during that period. There were, first of all, the three Vietnamese persons in front of him. So he was not merely watching the "escapee". He asked the three persons for production of their identity cards. He examined the documents. He then dealt with the male and asked his colleague PW2 to handle the two females. It would seem that during that five minutes, he would be looking at the three persons generally, then the cards, and then the male and the female who produced the documents. He was probably not concentrating his mind on the two females. He then accompanied the male to the police van while the other officer took charge of the two females. He had a struggle with the man while his colleague handled the other females and chased after them. It would seem therefore that of the five minutes, PW1 might not have been watching the female in question most of the time and might have just concentrated on the male and the cards. Hence, the time in which that third person was under observation was probably very brief.

6. When he gave evidence, PW1 said that he could identify the appellant for two reasons. First, he could remember her face and second, she had been arrested for failing to produce proof of identity and had no proof of identity when stopped. As the learned magistrate correctly pointed out, no weight should be attached to the second reason. When the officer was cross-examined and asked whether he could notice any particular features on the appellant's face, he said that there was a mark on the right hand side of her mouth. When the second officer PW2 was cross-examined and asked the same question, he answered : "No, simply her face, height, built and complexion". If there had indeed been a mark on the right side of the face, that would have been obvious to both officers. This inconsistency is, in my view, not without significance.

7. Then there is the further inconsistency with regard to the use of language when the three Vietnamese persons were questioned. According to PW1, he used both Cantonese and English. On the other hand, PW2 said that the first officer only used Cantonese.

8. Finally, it is also important to bear in mind that before the officer PW1 could recognise the appellant in the police station, he had only allegedly seen her once and that was about two months ago. It may or may not be easy to recognise one Vietnamese female from another after a lapse of two months and having her under observation for only a short time, although not necessarily a fleeting glance.

9. Bearing in mind all the circumstances of the case, including the occasion when the officer had the Vietnamese female under observation, the length of time he had watched her on that occasion, the lapse of time between the two incidents and the two inconsistencies in the evidence of the two officers, I would reluctantly come to the conclusion that the identification of the officers might not be that reliable. I am not at all sure that the conviction is safe and satisfactory. I would therefore give the benefit of any doubt to the appellant. The conviction on the charge of escape from lawful authority is therefore quashed and the sentence relating to that offence is set aside.

10. With regard to her appeal against the sentence of three months in connection with the offence of escape from legal custody, I would agree entirely with the learned magistrate that the sentence was appropriate in all the circumstances. He had duly given a discount to her for her plea and her mitigating circumstances. I do not think I should interfere with that sentence. The appeal is therefore dismissed.