HKSAR v. CHU TSZ LONG

HCMA 441/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 441 OF 2000

(ON APPEAL FROM ESCC 743 OF 2000)

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J U D G M E N T

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1. The defendant was convicted after trial of one charge of criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong and one charge of assault occasioning actual bodily harm, contrary to common law and punishable under section 39 of the Offence Against the Persons Ordinance, Cap. 212 of the Laws of Hong Kong. He appeals against his conviction.

2. The victim and principal witness in this case was PW1, a security officer in Causeway Bay Plaza Phase II. At 6:40 a.m. on 20 February 2000, PW1 was carrying a electrical signboard to the concourse on the ground floor of the plaza when he first saw the defendant. He placed it at the entrance. Then he saw the defendant fisted and kicked the signboard. He was about ten feet from the defendant. He went to stop the defendant and was hit by him in the eye. After that the defendant left. PW1 called for assistance from his supervisor. Together, they took a taxi to look for the defendant. He located him at the entrance to Cannon Street. The defendant appeared to be a little bit drunk. He was then handed over to the police.

3. Mr Boyton who represented the defendant at his trial also appeared before me at the appeal. He submitted that the trial magistrate was wrong to place reliance on PW1's observation on the defendant prior to the assault and thereby erroneously converting a fleeting glance observation to a long period of observation. The defendant and PW1 were total strangers to one another. PW1's notice of the assailant's presence prior to the assault was an unconscious one, which should not assist PW1 in his identification of his assailant. While the first encounter when PW1 was carrying the signboard upstairs to the ground floor was an uneventful one, the defendant's fisting and kicking the signboard must have attracted PW1's attention. The lighting condition was good. PW1 was about 10 feet away from him then. He was a security officer on duty. He had observed the defendant for some time and then went to stop him. The whole incident from the defendant's kicking of the signboard to the time when he left was about 10 minutes. PW1 had ample opportunity to observe the defendant under good lighting condition, at a distance of about 10 feet and for 10 minutes. He had his attention drawn to the defendant. Under the circumstances, the quality of his identification must be a good one. The magistrate is entitled to take into account PW1's observation of the defendant during those ten minutes.

4. Mr Boyton referred to the following evidence of PW1 recorded at page 21-D to J of the Appeals Bundle:

Q. At that time what was the lighting condition in that concourse?

A. It was on.

Q. ... during the whole course that the man hit the signboard and fist and kicked you, do you got the chance to look at his face?

A. Yes.

Q. ... from the time you saw him hit the signboard until the time he left after hitting you, how long does it last?

A. Around 10 minutes.

Q. And in this period you got the chance to look at his face, right?

A. Yes. While he hit me I saw him.

5. Mr Boyton submitted that the last answer above shows that PW1 only had the opportunity to look at the assailant's face when the assailant hit him. That certainly is one way to interpret the last answer of PW1 as recorded on paper. However, his evidence should not be looked at in isolation. It must be interpreted and understood in its entire context. Here, PW1 saw the defendant fisting and kicking the notice board after he had placed it at the entrance. It must have been a substantial part of those 10 minutes that PW1 had observed the defendant before he was hit in one of his eyes. For reasons as explained in the preceding paragraph, I do not think it proper to regard PW1's observation as one of a fleeting glance. PW1 had a good observation for adequate duration under good lighting condition. He then picked up the defendant within some 15 to 20 minutes later. That he was hit in the eye while he was face to face with the defendant was just one of the factors to be considered.

6. The trial magistrate was fully aware of the fact that the defendant was a total stranger to PW1 and that the prosecution case relied wholly on the correctness of the identification by PW1 and the need to exercise special caution before relying upon such evidence. He drew no adverse inference from the defendant's not calling any evidence. I am satisfied that the trial magistrate has duly considered the strength and weakness of PW1's identification and properly assessed the weight to be placed on PW1's identification. This is a finding of fact based on the consideration above and his observation of PW1's demeanour, which I shall not interfere. In the circumstances, the appeal against conviction must be dismissed.