HKSAR v. MARK, WING FU JOUIE

HCMA 315/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 315 OF 2006

(ON APPEAL FROM KTCC 7290/2005)

____________

____________

______________

J U D G M E N T

______________

1.  You were convicted, after trial, of a single charge of dropping two bags of rubbish from the corridor of the 22nd floor of a block in Choi Wan estate.  You were subsequently made the subject of a hospital order for a period of four months.  You filed a notice of appeal against the conviction and sentence but subsequently abandoned the appeal against sentence.

2.  Five grounds of appeal are advanced: the first four deal with evidential matters.  The fifth complains that the trial was unfair due to the fact that there was no jury present during the trial in Kwan Tong magistracy.  The offence is a summary offence which is triable, in law, by a magistrate sitting alone.  There is no merit in this ground of appeal.

3.  The prosecution evidence came from two witnesses.  The first was your neighbour.  She was lying on a sofa in her flat and could see out into the adjoining corridor through an open door.  You had been known to her, by sight, for almost 20 years.  She watched you bend down and pick up one of two bags of rubbish which had been placed next to a fire hose reel and throw it out of the building into the street below.  You repeated this action with the second bag of rubbish.  You then took the lift.

4.  Throughout this incident she had you under observation at all times in what appear to have been good lighting conditions.

5.  She went downstairs. She made a report to a security guard. She noticed that there were two bags of rubbish splattered on the ground floor.  Police were summoned.  She made a report to them.  You returned and she pointed you out to the police officer.

6.  She disagreed with cross-examination to the effect that she had only seen you from the rear and had mis-identified you.  She was asked in cross-examination to indicate how far away she had been from you at the time you were at the fire hose reel, the distance pointed out being approximately 20 feet.

7.  A police officer gave evidence and in doing so confirmed such parts of the first witness's evidence as related to his involvement.

8.  You then gave evidence which was effectively a simple denial that you had committed the offence.  You had been out, you said, to purchase two bottles of beer and were returning home when you were intercepted by the police officer.  In cross-examination you accepted that you had come across the first prosecution witness previously but you bore no grudge towards one another.  You said that you had not paid attention to whether there were bags of rubbish present when you had gone out.

9.  The magistrate gave himself what he described as a Turnbull direction.  This is not a matter where a fleeting glance was involved.  You had been known to the witness for a considerable number of years, the lighting was bright, the incident lasted some appreciable period and the distance between you was short.  However, the magistrate's approach erred in your favour and ensured that he gave particular consideration to the issue of identification and the possibility of honest mistake on the part of the witness.

10.  Having seen and heard the witnesses the magistrate accepted, as he was entirely justified in doing, the evidence of the prosecution witness and rejected yours.

11.  The first ground of appeal points out that the fact that photographs which had been taken of the scattered rubbish on the ground could not prove that it was you who had thrown the items out of the window.  That is correct but does not avail you.  The remaining three grounds relating to the evidence are speculatory and contain entirely unfounded allegations.

12.  There is no substance in this appeal.  It is dismissed and the conviction confirmed.