HKSAR v. CHOI YEE CHUNG

1997 NO. MA 532

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted of criminal intimidation. He now appealed against conviction.

2. The sole issue in the case against the appellant was identity.

3. The magistrate convicted the appellant based on the evidence of the victim PW1. PW1 was a shop attendant. She was in the shop on 27th May 1995 when a number of people were causing nuisance outside the door of the shop. She therefore called the police. These people left as a result. Later, two persons described by her as 10 odd year old children came into the shop and threatened her for having made the report to the police. They used words which PW1 understood to mean that they could use corrosive fluid on her. When the police came again, she reported the incident to the police. She then told the police where these two persons had gone to. She went outside the shop and pointed to the carpark as the direction in which the two persons had gone. The police officers went in that direction and found the appellant. They arrested the appellant. It should be noted that there was a time lapse of 30 minutes between the time when these two people were in the shop and the time the police went to the carpark and found the appellant there.

4. The evidence was that after the arrest, the appellant was never taken back to the shop for PW1 to identify nor was there an identification parade held. PW1 in court told the magistrate that she did not recognise the appellant. She could only say that one of the two persons who threatened her wore a jade ring. She did not see the face of these two men. It was also the prosecution evidence that when PW1 pointed to the carpark, she pointed to the back of two persons there. There was no evidence that she was able to identify them as those who went to her shop because of their built or the shape of their backs. It should also be noted that PW1 told the magistrate that she had not provided to the police particulars of the two men's clothing. When questioned by the magistrate, she agreed that she was not sure if the two men who had threatened her had gone to the carpark.

5. On the issue of identity, the magistrate in her findings said this :

"... Although Ms Tam had said in court that the two males were children of about 10 years old, on the material date when she pointed out the appellant to the police officers and described him by way of the clothes he was wearing, it was only about 10 minutes after the appellant had said those words to her. Thus, at the time that she identified the appellant, not only was her memory of the identity of the person fresh in her mind, but also she knew exactly where he had gone to, and she was able to direct the police officers to him. On this basis I accept Ms Tam had at the material time correctly identified the appellant to the police officers, and they had intercepted and arrested him. When Ms Tam pointed the two men to the police, there were no other males in the vicinity, so there is no possibility that the police intercepted the wrong men."

6. Ms Ng for the appellant submitted that the magistrate was wrong because the time gap between seeing the men in the shop and the appellant in the carpark was 30 minutes and there was no description of clothes given by PW1 to the police. She submitted that the evidence of identification was weak and the magistrate had not directed her mind on the guidelines in Turnbull.

7. Obviously PW1 was not sure where the culprits had gone to when they left the shop and she relied on her conclusion that probably they had gone to the carpark to point out the appellant. Because she had not seen his face and could not provide particulars of his clothes to the police, she could not have identified the appellant by his face or clothes. The conclusion of the magistrate that PW1 could not have been mistaken in her identification evidence was based on wrong premises.

8. Mr Liu for the Government fairly conceded that the evidence of identification is weak and flimsy and the conviction was unsafe and unsatisfactory.

9. The appeal is allowed. The conviction is quashed and the sentence set aside.