HKSAR v. TANG KAM WING DANNY

CACC 294/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Rogers J.A. (delivering the judgment of the Court) :

1. This is an application for leave to appeal against conviction and sentence. The Applicant was convicted before H.H. Judge Line on the 29th May this year of two offences; the first was false imprisonment and the second was indecent assault.

2. The victim was a child of 9 years old, who had been playing with her brother and friends in a playground near Tsing Yi. It was said that a taxi had driven close to the playground and had come to a halt, the driver had got out of the taxi and used a pretext to talk to the children, asking where there was a nearby garage. The victim was induced to sit in the taxi whereupon it was driven off to a nearby spot where the taxi driver got out and the indecent assault took place. That consisted of the taxi driver touching the leg of the child victim.

3. Before us, the Appellant does not dispute that the victim was the victim of the two offences of false imprisonment and indecent assault but he alleges that there has been a wrong identification.

4. The first matter which the Judge referred to in his careful Reasons for Verdict was that there had been an identification parade within 2 days of the offence taking place. The Applicant had been a party but he had not been identified on that identification parade. Also, the clothes that apparently the Applicant and the victim had been wearing on the day of the offence had been taken but there had been no evidence adduced that there had been any clothing contact nor was there any other scientific evidence to show a link between the Applicant and the victim.

5. The evidence to link the Applicant with the offence came first of all from the brother of the victim. The brother had told the Court that he had noted the number of the taxi when it drove off with his younger sister inside. He had not written it down. He usually wore glasses but he was not wearing glasses presumably because he was playing on that occasion. Then having noted the number, he went back to his uncle's flat and wrote down the number which transpired to be the number of the taxi which the Applicant was driving on that day.

6. One matter which arose in the course of cross-examination of the brother was as to whether there were any markings on the side of the taxi. Whilst the cross-examination was taking place, the Judge below pointed out to Counsel for the Applicant that his questions were not clear if he was intending to elicit whether there were advertisements on the side of the taxi. That warning was only partially heeded. At the end of the cross-examination, the Judge was constrained to point out that from the questioning he did not know whether Counsel was challenging the boy's evidence. After some discussion between Court and Counsel as to the need for any further question, one further question was put in terms which were scarcely helpful. The Judge came to the conclusion that the matter as to whether there were advertisements on the taxi had not been properly put to the brother. However, the Judge went on to say that he considered that the brother had been in his words "as bright as a button" and that he was in no doubt as to the accuracy of the brother's recording of the taxi number.

7. The Applicant, before us, has urged upon us that there is no indication in the evidence to show that the brother had a good view of the number plate and he has stressed the absence of the brother's glasses. Both these matters were taken into account by the Judge in his Reasons and there is no basis whatever for criticising the Judge's acceptance of the brother's evidence.

8. The evidence against the Applicant however does not rest there. The Applicant gave a statement under caution. The voluntariness of that statement was challenged but only to a limited extent at the trial. The Applicant did not give evidence at the trial either to show that his statement was not voluntary or indeed on the main part of the case.

9. The Applicant points to 2 matters in particular in relation to the caution statement. The first is as to the position of the complainant in the taxi when the alleged assault took place. It appears from the statement in the video interview of the victim that she said that she was prone, which the Judge understood to mean lying face downwards. In the Applicant's statement under caution, he said that the complainant was face up. The Judge took that discrepancy into account in coming to his decision.

10. The other matter was the exact location as to where the assault took place and as to whether it took place on the road or at an oil depot. Little turns on the semantics as to exactly where the taxi stopped. Significant though is the fact that the Applicant himself took the police back to the location where the assault is alleged to have taken place.

11. The Applicant complained that the Judge had read the caution statement prior to its admission in evidence but given the manner in which evidence is adduced, it would have been impossible for the Judge to consider the admission in evidence or rejection of the caution statement without reading it. That objection has no merit whatever.

12. The Applicant complained that the Judge was prejudiced and he pointed to various places in the transcript where he says that the Judge used such words as "villain" and also where Counsel had been interrupted. The place in the transcript where the Judge had used the word "villain" was entirely innocuous because he was not referring to the Applicant, he was referring to the perpetrator of the crime which the Applicant admits took place.

13. As to the Judge's conduct of the trial, having considered the whole of the transcript, it can only be said that the Judge handled the trial in a careful and firm manner which was perfectly fair. As an example, both at the beginning and the end of the evidence, he took the Prosecution Counsel to task over the preparation of the case. He insisted of his own motion that the Defence Counsel should be given unused material which he discovered had not been produced. He stopped the last Prosecution Witness because the necessary preparation of that witness's in evidence had not been done. The passages to which the Applicant has drawn our attention to are merely matters where the Judge was seeking clarification and ensuring that the trial was efficiently and properly conducted without any waste of time.

14. There are no grounds for challenging the Judge's verdict in this case and the application is refused.

15. As to the appeal against sentence, that appeal is out of time and no sufficient reasons have been given to this Court to explain the reason for the lateness of that application. For those reasons, the application to appeal out of time is refused.