HKSAR v. CHUNG CHI MAN

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 485 OF 1997

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REASONS FOR DECISION

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1. The appellant, CHUNG Chi-man, was charged in the court below of one count of criminal damage, contrary to Section 60(1) of the Crimes Ordinance. After trial he was found guilty and was fined $2,000.

2. The particulars of the charge was that on 8 February this year, he was alleged to have damaged five barrels containing peanut oil.

3. At the trial there was one prosecution witness and the ground of appeal of any substance pursued by the appellant at this hearing is that the learned magistrate had erred in failing to direct himself on the issue of identification as required by the Privy Council decision of Beckford v R (1993) 97 Cr Ap R 409. This case is binding on the courts of Hong Kong and the proportion of law applies to identification by recognition cases. In a case where the only issue is one of identification, the trial judge is under a duty to direct the jury, or in a case where a judge is sitting alone, to direct himself on the quality of the evidence, along the lines of Turnbull.

4. The present case on appeal falls into this category. In the oral reasons, given by the learned magistrate as transcribed in the appeal bundle, it appears that he had not directed himself on this point.

5. The evidence of the prosecution witness, PW1, was that the alley where the barrels were stored was lit by artificial lighting. In cross-examination it was the defendant's evidence that even with the lights turned on, the lighting was described as being "not very bright" (Chinese). Clearly the learned magistrate should have addressed himself to the quality of the identification, even though the first prosecution witness claimed that he had recognised the defendant. In failing to do so, the learned magistrate had fallen into error. The result is that the conviction is rendered unsafe and unsatisfactory.

6. The appeal is therefore allowed and the fine is set aside.