HKSAR v. LEE CHIN WAH SIMSON AND OTHERS

HCMA 226/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 226 OF 2006

(ON APPEAL FROM KTCC 8357/2005)

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J U D G M E N T

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1.  The three Appellants were charged in the Magistrates’ Court with two separate counts of assault occasioning actual bodily harm.  They were convicted after trial and each was sentenced to an immediate term of 12 months imprisonment on each charge, to run concurrently.  They now appeal against their convictions and sentences.

2.  The facts, in brief, were that PW1 and PW2 were attacked by a group of men in the early hours of the morning after some argument.  Neither of these two victims were able to identify their assailants.  Evidence, however, was given by them that at the time there was a woman present who had tried to mediate unsuccessfully.

3.  The crux of the prosecution case came from the PW3, who was a security guard.  His evidence was that he saw a group of 6 to 7 men assaulting 2 males and a female.  He stated that he was about 4 to 5 feet behind that group and that the 2 males and the female did not retaliate.  He said he saw another group of 5 men come and assist the group in attacking the 2 men.  And that 2 men in the group of 5 were holding glass bottles and hitting the victims in the case.  Subsequently, he said he saw the group of assailants, including the female, leave the scene.  He followed them and at the same time he was in contact with the police.

4.  In examination-in-chief, he said that 7 or 8 of the men went inside the lift lobby of a building.  And he stated that when this group of 7 or 8 men went inside the lift lobby of the building, another 3 boarded a taxi.  He said that he observed these 3 men board the taxi and then he told the police, who then arrested the 3 men inside the taxi.  He said that two of the three males who boarded the taxi were the ones who had been holding the glass bottles.  He also said that the third male in the taxi had also taken part in assaulting the 2 males.  He said that he never lost sight of the 3 males who boarded the taxi and these 3 males who boarded the taxi were the 3 Appellants.  There was also evidence that there was blood on the hands of the Appellants.

5.  In cross-examination, PW3’s evidence was that even though the group on its way to the building, when they left the scene of the attack, had rounded two outside corners of a building.  However, PW3 claimed that he never lost sight of the group because he was a marathon runner.  It would appear from the transcript of his evidence that he kept at a similar distance as before, that is 4 to 5 feet behind, and at some stage, he crossed the road and was able to observe the arrest of the 3 Appellants from where he stood across the road.  He also conceded in cross-examination that initially when the group arrived at the entrance of the building, the whole group went inside the building, and that the 3 men who subsequently emerged from the building had gone as far as beyond the carpet area which one can see in photograph A (A-B page 47).  He said that these 3 males then came back out and boarded the taxi.  It can be seen from the photograph at page 47 that there was a trail of blood leading into the inside of the building to the lift.  Mr Boyton, on behalf of the Appellants, had submitted to the learned Magistrate that these 3 men must have gone as far as the lift, but the learned Magistrate’s finding was that she felt that the blood trail could have been left by other males in the group and not necessarily from these 3 Appellants.

6.  Unfortunately, we have no forensic evidence as to the blood both on the hands of the arrested persons or found on the floor of the lift lobby.  It was clear from the learned Magistrate’s findings that the identification of these 3 Appellants were from their clothing.  The learned Magistrate felt that the identification from their clothing was made more reliable by the fact that PW3 had never lost sight of the group he was following who had attacked the 2 prosecution witnesses.

7.  Therefore, the description of the clothing of the 3 Appellants was of the utmost importance.  According to PW3, he described the clothing of the 3 Appellants as such; that one was wearing a black top and light-coloured trousers, the other one was in a light brown top.  As to the trousers, “he didn’t know”.  And the third person was wearing a checked top and he was the one who did not hold any glass bottle and just used fists and kicks during the assault.

8.  My attention was directed to the photographs of the 3 Appellants taken after their arrest.  It is clear from these 3 photographs that, one was wearing a light beige top with dark trousers, the second was wearing a white T-shirt with jeans and the third person was wearing a black top and dark trousers, so clearly none of them were wearing a checked top.  The learned Magistrate considered this and decided that it was understandable for such a mistake to have been made because it was a chaotic situation, and most importantly, PW3 had followed them from the scene of the attack and never lost sight of them till they boarded the taxi.  So at the end of the day, she was satisfied that they were properly identified.  What concerns me is that of this group of people who had attacked the prosecution witnesses, 3 persons were picked out by PW3 as having been seen by him to have specifically attacked the victims.  The identification, however, was not a facial identification, but was of clothing.  It is unfortunate that PW3 had provided the description particularly of the third person wearing a checked top when such a third person was not found in the taxi.

9.  It is unsafe to rely on the fact that PW3 had followed the group from the scene and never lost sight of them because, having read the transcript, I am still not satisfied that PW3 would not have lost sight at least momentarily of some people in the group if he was following behind them at a distance of about 4 to 5 feet, because commonsense will show that one part of the group rounded the corner, that part of the group would be out of sight at least for a second or two.  It is unfortunate that this is not explored in the court below.  And added to that is the fact that the 3 persons who subsequently boarded the taxi, had entered the building together with the whole group, and then emerged from that building.  There is no evidence that these 3 persons were wearing clothes that were distinctive from the rest of the group and thus could easily be picked out from the rest of the group.

10.  So, in these circumstances, I am left, in fact, with the lurking doubt as to the reliability of such an identification.  I have no alternative in this case but to allow the appeal, because I find that the convictions are therefore in these circumstances unsafe and unsatisfactory.

11.  The appeal is allowed and the convictions against the 3 Appellants are to be quashed and their sentences set aside.