HKSAR v. WONG HO WAI

HCMA 475/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 475 OF 2003

(ON APPEAL FROM ESCC 2291 OF 2002)

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J U D G M E N T

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1. The Appellant was convicted in the Magistracy on one count of 'Possession of an Identity Card relating to Another Person' contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177 and was sentenced to a Community Service Order of 100 hours. He appeals against conviction only.

2. Three other charges, two of 'Claiming to be a Member of a Triad Society' on different dates and 'Assault occasioning Actual Bodily Harm' were dismissed.

Facts

3. The background to the case is distressingly common. There was an incident early in April 2002 between one group of youths which included the Appellant and another group which included the main prosecution witnesses in this case. Rather typically, it arose from someone's "staring" at someone. The Appellant, allegedly, claimed to be a member of the triad society on that occasion. In May 2002, the Appellant met the main prosecution witness (PW1) again and an altercation resulted which led to PW1's requiring hospital treatment. The next episode was in July 2002. PW1 and a friend were walking in Wanchai when they spotted the Appellant and his companions. PW1, summoned reinforcements by telephoning his friends, chased the Appellant and caught him. It was alleged that on being caught the Appellant produced a Hong Kong Identity Card belonging to another person.

4. There were three prosecution witnesses and Admitted Facts as evidence for the Prosecution. The Appellant did not give, or call any evidence.

5. At the close of the prosecution case the Magistrate ruled the Appellant had no case to answer on the two charges of 'Claiming to be a Member of a Triad Society' and dismissed them. At the end of the trial he dismissed the assault charge, but found Charge 1, relating to the Identity Card, had been proven.

Grounds of Appeal

6. The Amended Perfected Grounds of Appeal against Conviction were:

(1)	There was no evidence at all that the Identity Card was seized from the Appellant and the Magistrate erred in making such a finding;
(2)	The Magistrate had erred in finding the Identity Card was found on the Appellant because there was confusion about the three men who had been chased, relating to the colour of their hair. There was a direct contradiction by PW3 about the Appellant's hair colour, thereby suggesting that the one who gave the ID card was not the same person as the one arrested by the police. The Magistrate failed to consider whether PW1 and PW3 were referring to two different persons;
(3)	There was a material irregularity in the failure by the learned Magistrate to direct himself properly in his evaluation of the evidence of PW1, PW2 and PW3 generally and, in particular, as to the effect of the evidence of PW2 and PW3 on the evidence of PW1 and the Appellant's denial of possession and production of the ID card at the scene.

7. Counsel for the Appellant made detailed submissions in relation to Ground 2 but there was nothing of substance in the suggestion of mis-identification. That issue was dealt with, at length, at trial and the Magistrate was satisfied, despite the large number of "golden-haired boys" in the rather chaotic scenario, that the Appellant was the person who had been apprehended. The only ground of significance is whether the Magistrate was correct in finding that the Appellant had possessed and produced the identity card. The evidence on that matter was not very satisfactory.

8. Chan Wing-chin's (PW1) evidence was that after the Appellant was caught he took out an identity card - PW1 did not say why, or from whence Appellant took the card. There was no explanation why the Appellant should produce voluntarily an Identity Card, unasked, to youths he knew from previous unpleasant encounters. PW1 said that thereafter "my friend got the card".

9. This friend was referred to as "Kam Wing-kin" in the trial transcript, but as there appears on the witness list the name Tam Wing-kin, I treat the name as being transcribed incorrectly. PW1 identified Tam Wing-kin as the person to whom the Appellant gave the card and who handed the card to the police officer, PW3. Police arrived pursuant to a report, about 8 minutes after the Appellant was caught. Tam was never called as a witness.

10. In re-examination PW1 was asked if the Appellant's wallet and card were seized by police - he said he did not see. He denied defence counsel's suggestion that it was PW2, Yuen Yiu-wing, who had the card and who had taken it from his own pocket. PW1 made no mention of an unknown pedestrian helping him and PW2 capture the Appellant.

11. PW2, Yuen, said he saw an unknown passer-by catch the Appellant. The passer-by responded to calls for assistance made by PW1 and PW2 as they were chasing the Appellant. PW2 said he first saw the card when the passer-by gave it to him, but although he witnessed the capture of the Appellant at close quarters, he had not seen where the card originated. The passer-by left before the police arrived. PW2 made no mention of Tam Wing-kin. He did not say that he received the card from Tam.

12. PW3, the police officer, confirmed the Appellant's arrest. He had seen the Identity Card in the name of LO Bernard Yiu-seng and he handed it to the Duty Officer to deal with it. He confirmed that PW2, whose name he gave as Yuen Yiu-wing, gave him the card. PW3 made no reference to Tam. That was the only evidence about the possession and production of the Identity Card.

13. On 2 December 2002, when he gave his oral decision, the Magistrate dealt with the evidence briefly and incorporated those findings into his Statement of Findings. He stated:

"I do accept the evidence of PW1 and PW2 as to the Defendant's production of the card upon his apprehension by PW1's group assisted by the passer-by on 1 July. I am satisfied that the Defendant was in possession of the card at that time. There being no evidence of lawful authority or reasonable excuse, in that charge, it has been proven beyond the reasonable doubt and that the Defendant was convicted in respect of Charge 1."

14. It appears that there is an unresolved conflict in the evidence of PW1 and PW2 as to the production and chain of possession of the card. The prosecution's failure to call Tam as a witness left open the possibility, at least, that there was more than one card, or that the card had not come from the Appellant, or that the card had been "planted" on him.

15. It is particularly significant that PW1, despite witnessing the capture, did not mention in his evidence the passer-by, or the passer-by handing the card to PW2. He makes no mention of PW2, or of PW2 having the card. He says the card was given to Tam - there is nothing which shows where the card went to after Tam received it. There was no suggestion that Tam was the unknown passer-by.

16. The Magistrate was satisfied that as there was only one card it must have come from the person who was apprehended, but did not resolve the conflicting accounts of PW1 and PW2, which suggest the possibility of the card coming from someone other than the Appellant, either innocently, or, as suggested by defence counsel, as a plant.

17. In the circumstances I am not satisfied that this conviction is safe. I allow the appeal, quash the conviction and rescind the Community Service Order.