THE QUEEN v. CHOY WAH KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1104 OF 1991

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BETWEEN

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J U D G M E N T

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1. On the 29th October 1991, the appellant was convicted of common assault, contrary to Common Law and Section 40 of the Offences Against the Person Ordinance, Cap. 212. The particulars of the charge alleged that he "on the 1st day of March, 1991 at Room 711, Pak Tung House, Tung Tau Estate, Kowloon, in Hong Kong, together with three unknown males, not in custody, did assault male NG Ming-ching."

2. It was the prosecution case that the alleged victim, Ng Ming-ching (PW1) was at the material time an interior decoration worker. At about 2 p.m. on the 28th February 1991 while he was conducting decoration work at Room 711, Pak Tung House, Tung Tau Estate, six unknown males knocked on the door of the room and approached him. One of the males who claimed himself to be "Ah Chat" told PW1 to stop work. Ah Chat also told PW1 to give some of the work to them to do. But PW1 said that he was not in a position to give out the work as he was not the tenant of the room. Then PW1 left the room as ordered by Ah Chat. At about 12:15 p.m. on the 1st March 1991, when PW1 was working at the same room, three males knocked on the door of the room. PW1 opened the door and saw that one of the males was an associate of Ah Chat who had come to see him working on the previous day. Upon entering the room, the three males assaulted the chest of PW1 with fists and scolded PWl that he had been told before not to continue with his decoration work. Then PW1 tried to walk out of the room but he was intercepted by the three males who again "Fisted and kicked the back and chest of PWl for ten odd times." After the males had stopped assaulting PW1 they told PW1 to leave the room at once. They pushed PWl out of the room and escorted him out of the building. Later, on the 1st March 1991, PWl reported the matter to the police. As a result of police enquiries, the appellant whose nickname was "Ah Chat" was arrested by DPC1474 on the 6th September 1991. Also on that same day, PW2 took a cautioned statement from the appellant who admitted that he had told PWl not to work at the room in question on 28th February 1991. As PW1 did not comply with his order, he led and instructed three males to assault PW1 on 1st March 1991 at the same room. During the assault, he had been staying outside the room.

3. The appellant had pleaded not guilty at the trial. PW1 was the only witness to give evidence on the events on 28th February and 1st March 1991, but two police officers also gave evidence in respect of the cautioned statement. The magistrate, for this purpose, adopted the alternative procedure and permitted the appellant to give evidence before the close of the Crown case. The appellant did so but the magistrate admitted the statement in evidence. The prosecution then closed its case.

4. The appellant having elected to remain silent and call no witnesses, the magistrate convicted him and sentenced him to 9 months' imprisonment and ordered him to pay compensation of $3,000 to the victim.

5. The grounds of appeal are:

"(1) That there was a material irregularity of the trial of the appellant in that the learned magistrate failed to consider and exercise her discretion to disallow PW1, Ng Ming-ching, identifying the appellant for the first time in the dock as having threatened him on 28th February 1991.

(2) That the learned magistrate failed to adequately warn herself of the dangers of relying on the dock identification of the appellant by PW1.

(3) That the verdict of guilty is unsafe and unsatisfactory because the learned magistrate failed to consider and resolve in her Statement of Findings certain major discrepancies in the evidence as follows:-

(i) PW2 Cheung Kam-chuen DPC5603 testified PW3 was present with him at the interview when he took the appellant's cautioned statement but PW3 CHAN Chun-keung DPC22672 testified he was outside the room when the statement was taken during the interview. The learned magistrate failed to consider this discrepancy in ruling the appellant's cautioned statement admissible, finding PW and PW3's evidence clear and consistent and further failed to consider that shorly after the alleged making of the said statement, the appellant made two further statements denying the offence.

(ii) PW1's evidence as to the appellant's presence at the incident on 28th February 1991 was inconsistent and unsatisfactory."

6. Mr Marash who appeared for the appellant at the appeal drew my attention to the fact that the victim, Ng Ming-thing (PW1) identified the appellant for the first time when he was in the dock on the 28th October 1991. That is exactly nine months after the incident. Furthermore, he identified the appellant out of five persons who were present at the incident. Mr Marash complained that the learned magistrate found that the appellant was identified but stated this was never challenged. He submitted that the maigstrate misunderstood the appellant's defence because identification was clearly in issue and further who had said what on the 28th February and 1st March was also in issue. The transcript and statement of findings indicate that the learned magistrate gave no thought to the exericse of her discretion to permit a dock identification in such dangerous circumstances.

7. For this contention, he relied on R. v. Cartright (1914) 10 Cr App R 219 at p.221 when in the case where the identification took place fifteen days after the event, the Court of Appeal held that it is definitely better if an identification parade is held where identification is in issue.

8. Mr Marash also relied upon R. v Howick [1970] Crim LR 403 where it was stated that it is usually unfair to ask a witness to make an identification for the first time in court because it is easy for the witness to point to the defendant in the dock. Another case was R. v. Caird & Ors referred to in Archbold para. 14-64 where it is noted that a dock identification ought normally to be deprecated. Another authority is A.G. v. LAU Chi-tin & Ors [1989] 2 HKLR 15 where although the appeal was dismissed, the judge dealt with the authorities in some detail. It was held that although it is undesirable for a witness to be invited to identify a defendant for the first time when he was in the dock, dock identifications are legally admissible though the court has a general discretion to refuse to admit the evidence if its prejudicial effect would outweigh its probative value. Mr Marash submits that the magistrate failed to consider and exericse her discretion to prevent the dock identification which, on the instant facts, was more prejudicial than probative.

9. So far as ground 2 is concerned, Mr Marash submits that the only warning the learned magistrate gave herself was in these words in her Statement of Findings on the general issue:-

"As to the general issue, the victim had identified the Defendant, and this was never challenged. However, before I accepted this identification, I was mindful of the risks inherent in relying upon such identification evidence. The victim was clear and logical when giving evidence. Having seen and heard him give evidence, I have absolutely no doubt that he was telling the truth."

10. Mr Marash submitted that the magistrate did not adequately consider all the necessary factors including the time between the incident and the identification, that an honest witness can be mistaken and the inconsistencies in the victim's evidence and between the evidence given at trial and the victim's pre-trial statements to the police.

11. In my judgment, there was a fundamental flaw in this case in that the magistrate was clearly of the opinion that identification was not in issue. In fact, it was in issue because not only did the appellant's legal representative at the trial cross-examine PW1 about his identification, but he also, at the close of his cross-examination, directly put it to the victim that it was not the appellant who gave him the card on 28th February, neither did the appellant tell him not to work there. In my judgment, this mistaken belief by the magistrate vitiates the conviction. Quite apart from that the magistrate described the victim as "clear and logical when giving evidence". An examination of the record of his evidence, however, reveals quite the contrary. This is borne out by the extract from his evidence as follows:-

"That morning some men came in and told me not to work.

I did not know them before.

They asked me to give them my card and told me not to work.

I asked them to give me a card and I asked them how to communicate with them and I was given a card. They said the site belong to them and I could not do my work there.

After giving me a card, they told me that he was Brother 7.

He told me to stop work and I stopped work and left. They stayed in the premises until I left and then they left.

They stayed there 20 to 25 minutes.

Of the 5 people, apart from Brother 7, I can recognise an ther as well.

The person in Court, wearing tie and glasses, he gave me a card.

Defendant identified.

Defendant said, "I am 7. Call me Brother 7."

He was the Brother 7 I referred to just now.

Court : Who is "they"?

"They" asked me to give them my card and not to work.

They were Brother 7. Defendant is "they".

The person who told me to stop working there was also Brother 7.

It was 7 who told me the site belonged to them, and I could not work there."

12. The appellant succeeded in satisfying me that the conviction should be set aside on both grounds I and 2.

13. So far as ground 3 is concerned, the magistrate did not, in her Statement of Findings deal with the apparent inconsistency between the evidence of PW2 and PW3. On the contrary she found PW2 and PW3's evidence clear and consistent.

14. It became apparent during the cross-examination of the appellant that on the same day that he had allegedly made the cautioned statement, he had made two other cautioned statements in which he denied any involvement. It was the case of the appellant that he was assaulted by a number of police officers, altogether there were four or five. PW2, on the other hand, testified that only he and PW3 were present with the appellant in the interview room, but PW3 on the other hand testified he was outside the room when the statement was taken.

15. For these reasons, I allowed the appeal and set aside the conviction.