HKSAR v. CHUNG TIK HIN

HCMA829/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.829 OF 2006

(ON APPEAL FROM ESCC 1639 OF 2006)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of claiming to be a member of a triad society, contrary to s. 20(2) of the Societies Ordinance, Cap. 151; and one charge of common assault, contrary to common law and s. 40 of the Offences against the Person Ordinance, Cap. 212.  He was sentenced to the training centre.  He now appeals against his conviction.

Prosecution case

2. PW1, the victim, was on his way to school at the material time.  He was intercepted by the appellant and two other males.  During the conversation, the appellant claimed that he and his friend belong to “Hop To”.  It was not disputed that “Hop To” was an active triad society.  PW1 was asked to find out who at his school had assaulted his friend.

3. The victim was then taken to a park, and one of the males snatched and pocketed his mobile phone.  The victim then followed them to a shopping arcade at Marble Road where he was assaulted by the appellant and one of the males with fists and elbows on his head on the 1^st floor.  He suffered mild abrasions, bruises and swelling on upper and lower lips, abrasions wound on scalp and mild tenderness on right lower back.

4. After the appellant obtained from the victim his ID card number and was seen to have punched buttons on his own mobile phone, the group left.

5. About two weeks after that incident, PW1 saw the appellant walking on King’s Road.  A report was made to the police and the appellant was arrested.

Defence case

6. The appellant elected not to give evidence.

Grounds of appeal

Respondent’s reply

8. Counsel for the respondent submitted that the sole defence of the appellant at the trial was one of mistaken identity.  The magistrate had given herself the requisite Turnbull warning and had examined closely the circumstances under which PW1 put his assailant under observation and how he subsequently identified the appellant.  The respondent counsel submitted that the video from the surveillance camera not capturing the presence of the appellant in the shopping arcade as well as any lack of ID numbers in the appellant’s mobile phone may be due to all sorts of reasons.  It was also submitted that the magistrate was alive to issues relating to admission of dock identification and, having given herself requisite warning, she was entitled to make the findings as she did and at no time did the magistrate only rely on the necklace as well as the jeans worn by the appellant at the time of his arrest to satisfy herself of the quality of identification by the victim.

My judgment

9. The issue at the trial is one of identification.  The magistrate has correctly pointed out the following :

“The case against the appellant wholly or to a large extent relied on the correctness of Pang’s identification of the appellant.  I was aware of the special need for caution before convicting the appellant in reliance on the identification by Pang.  It is possible for an honest witness to be mistaken in identification.  I had examined carefully the circumstances in which the identification by Pang was made, including how long did he have the appellant under observation, at what distance, in what light, and did anything interfere with his observation, and how long it was between the original incident and the day of identification.  There was also no marked difference between the description given by Pang to the police and the appearance of the appellant on the day of interception.  I am satisfied that Pang’s identification of the appellant was within the Turnbull’s guidelines.

Further, in the witness statement that Pang gave on the day of the incident, his description of male A fits the appearance of the appellant, except as to which side his hair was parted.  In his witness statement, Pang had also described A’s necklace as ‘white and pink crystal pendant, octagonal.’  When intercepted, the appellant was wearing two necklaces, one was indeed a white and pink crystal pendant, and the other one was a six-sided crystal pendant.  The appellant was still wearing the same Levi jeans as on the material day.  I was satisfied that Pang’s identification of the appellant being A, was a true and correct identification.”

10. The magistrate looked carefully at the evidence of PW1, that he was in the company of the appellant from the time of the interception to the time he left the shopping arcade.  He had ample opportunity to see the face of the appellant at a close distance.  Fifteen days later PW1 had no difficulties in identifying the appellant by his face on the street.  It is clear that the magistrate did not find that the victim only identified the appellant by his necklace and jeans as submitted by the appellant today.

11. The issue of dock identification was fully canvassed at the trial.  Counsel for the appellant at the trial submitted that such should not be allowed on the basis that no formal ID parade had been held.  The magistrate was correct in relying on the case of HKSAR v. Lau Man Shing and another [2002] 2 HKLRD E11 where it was held that a dock identification is admissible where the witness has previously identified the defendant at the scene, even though no subsequent formal identification procedure was carried out.  (See also my own judgment in香港特別行政區訴何俊杰, HCMA175/2006.)  In the present case, the appellant was able to recognize the appellant from other pedestrians on a major and busy road some 15 days after the incident.  There was no need for any identification parade to be held before a dock identification was admissible.

12. The magistrate found :

“The evidence of the prosecution witnesses was clear and reasonable, and Pang was also detailed and unhesitant, and from their account and demeanour, I found them both to be truthful and reliable.  Any discrepancies in their evidence were minor, and did not go to any material issue.

I accepted Pang’s account to be the truth, and his medical report was consistent with his evidence of being assaulted, and how he was assaulted.”

13. It is clear that whilst the magistrate did not mention expressly that she had considered the discrepancy between PW1’s evidence as to the time he was in the shopping arcade and the actual time as captured in the video she was alive to that issue, such being submitted and emphasized by defence counsel in the closing submission.  She found such immaterial and did not affect the credibility of PW1.  In fact what the magistrate said in her Statement of Findings was that :

“Pang was not so good with time estimate, but that has no bearing on his ability to recall an event or recognize a person.”

14. There is ample evidence to convict.

15. There is no merit on this appeal and the appeal is dismissed.