THE QUEEN v. ZA WAI GIN

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1163 OF 1989

__________

BETWEEN

__________

_______________

J U D G M E N T

_______________

1. The appellant was jointly charged with ten others with taking part in an unlawful fight in a public place. He pleaded not guilty.

2. The evidence of the prosecution was given by two police constables who said that as members of a special duty squad in plain clothes, they were on patrol in the early hours of the 25th March 1989 in the vicinity of the junction of North View Road and Fort Street, North Point.

3. They said that whilst on patrol they witnessed a fight between two groups and intervened. PW1 said that he first saw one of the eleven defendants talking to a taxi driver and as a result of some manoeuvre by a van or the taxi that angry words were exchanged between the driver of the van and another person. Subsequently, five or six people (he was not sure how many) emerged from the van and began to punch and kick another defendant. The police party went to intercept but they were beaten to the scene by another group who swelled the participants in the altercation to 16 or 17. The police team announced their presence as police officers and tried to stop the altercation.

In his evidence-in-chief, the PW1 said this:

"When the 2nd group joined the fight there were about 15' away from us. They were exchanging blows and kicks. I was able to see their faces when I tried to subdue them. If I were to see them again I would be able to recognise them. (Witness points to all defendants),"

4. Eventually, the fight was broken up. He said that the lighting condition at that time was sufficient for him to see clearly. PW2 gave a similar account and said that the appellant was one of the group he as guarding after the fight had been broken up. He too said the lighting condition at that time was quite sufficient but in cross-examination he said that it was raining heavily at the time. PW2 said in his evidence-in-chief that he saw 16 to 17 persons but he could not recognise who hit whom and he went on to say that he was able to recognise many of them and he positively identified another defendant and then a general identification of all the other defendants in the dock apart from one of them, the 2nd defendant. The Appellant was the 3rd defendant at the trial.

5. After PW2 had given evidence, the hearing was adjourned to the next day. On resumption the defence applied for both prosecution witnesses to be recalled for further cross-examination because the defence had asked fox and been supplied with copies of their witness statements. The defence alleged that PW1 had said in his statement that it was raining heavily at the time and was dark and he was unable to see clearly how many people emerged from the van and that PW2 had said, for the same reasons, that he had been unable to see who had hit whom.

6. The prosecutor told the learned magistrate that there were no material discrepancies between the evidence of the witnesses and their previous statements and the learned magistrate refused the application.

7. The appellant gave evidence saying that he was in the van but was asleep when it arrived at the scene and so did not leave it with the other passengers. When he woke up, the driver and his fellow passengers were missing so he then alighted to find his friends. He then saw some pushing and heard a police officer shouting at them to stop. He himself was punched several times but he did not fight. He called a witness who gave evidence, the effect of which so far as the appellant was concerned, was that the appellant was punched at a stage after the police intervention.

8. In his reasons for finding that the appellant had taken part in the fight, the learned magistrate said:

"Findings of Fact relevant to D3.

1. The D3 was a passenger in the white van driven by D1.

2. When the van stopped at the junction of North View Road and Fort Street D3 as a passenger alighted from the van.

3.    Initially, D3 was part of the group that traded blows with D6.

5. That after D11 had punched the D5, D3 joined in a fight between his group and that comprising D6-D11 plus others.

Reasons for Findings of Fact.

D3 confirmed he was a passenger in the white van. The passengers in the van were seen by PW1 to alight from the van. By inference D3 must have been one of those persons. PW1 identified the persons from the van as the group that exchanged blows initially with D6 and then with a group of persons who came to support D6. Thus I was left in no reasonable doubt having accepted the prosecution evidence that D3 was one of the parties to the fight."

9. In his appeal against conviction, the appellant relies on 4 grounds, the first beings:-

"1. That there was no sufficient reliable evidence upon which the learned magistrate could properly conclude that the appellant took part in the fight as alleged."

10. In support of this ground, Mr. Alderdice who appears for the appellant in support of his appeal, refers to the evidence of identification of the appellant by PW1 and to the circumstances under which the identification was made.

11. The record indicates an identification of the appellant made as one of a grouts standing or sitting together in the dock. Mr. Alderdice submits that the identification is unsatisfactory in that no evidence was given as to any specific act or conduct on behalf of the appellant. He further submits that the finding of guilt is unsatisfactory in that although D4 was identified as having done a specific act of fighting in this incident, he was, nevertheless, found not guilty by the learned magistrate.

12. It does appear to me that the learned magistrate has misdirected himself by saying that by inference the appellant must have been one of the persons alighting form the van. He draws a conclusion which is not necessarily the only conclusion to be drawn from the evidence of both PW1 and the appellant. PW1 said that he was not sure how many people alighted from the van. If PW1 said that, although he was not sure how many people alighted from the van, he was sure that all the people who were in the van did alight at that particular time then the evidence would support the sure inference which the learned magistrate drew.

13. The appellant's evidence, however, was that, although he was in the van, he did not alight with the others. The learned magistrate does not say why he did not accept that evidence of the appellant even though it was not inconsistent with the version of PW1. It was not a necessary inference that the appellant must have been one of those whom PW1 saw alight from the van.

14. That inference played an important part in his conclusion that the identification by PW1 of the appellant as a participant was reliable and could be acted upon. This was the case where, it is submitted, the guidelines in Turnbull were just as applicable as they are in the OFT-QUOTED "FLEETING GLANCE" situation. It was an identification made in extremely difficult circumstances: it was a case in which the learned magistrate needed to be sure that there was no room for error in the identification. By relying on an inference wrongly drawn the magistrate has come to a conclusion as to the appellant's guilt which I find to be unsafe.

15. I allow the appeal and quash the conviction.