HKSAR v. CHENG KA KEUNG

HCMA 277/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 277 OF 2006

(ON APPEAL FROM KTCC NO. 5085 OF 2005)

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J U D G M E N T

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1.  The Appellant was originally tried on two counts of Indecency in a public place and these were contrary to section 148(1) of the Crimes Ordinance, Cap 200.

2.  At the conclusion of the prosecution case, the learned Magistrate dismissed Count 1 as he found that the Appellant had no case to answer on that.  After hearing all the evidence in the case including the Appellant’s evidence, the learned Magistrate convicted the Appellant of Count 2.  The Appellant now appeal against his conviction.

3.  The evidence in the trial mainly comes from PW1.  Her evidence was, in brief, that she had seen a male expose his penis to her on 5 May 2005, which was the subject matter of Charge 1.  She had at that time given him one glance, and her description was that she thought that that person was a secondary school student because of the clothes that he was wearing and she gave evidence about how she told her sister about this and she also gave evidence that after 5 May, she saw that male again 2-3 times a week.  And it was not until a day between 17 and 19 of May, that she saw that person expose himself again.  On this second occasion, when she first saw this person, his flies were closed, but when she looked at him again, his flies had been undone and his penis was exposed.  She gave an account about her observation of this person prior to the second occasion and she said that at that time of the second charge, she recognised him as the person who had been at the bus stop previously and whom she had noticed.  She said that she did not report the matter to the police immediately and when she saw that same male again on 25 May, she was scared because she thought he might be waiting for her, so she decided that the next time she saw that male again, she would report to the police.  On 1 June when she saw the male, she reported to the police and the defendant was arrested on 1 June.  She attended an identification parade on 23 June and identified the Appellant.

4.  It is true that in cross-examination she said that it was the same person who had exposed himself on 5 May and also on the second occasion.  She agreed that the Appellant did not look like a student and the learned Magistrate, at the conclusion of the prosecution case, found that the Appellant had no case to answer on two grounds.  On the first ground, it was that on 1 May, it was the first time that PW1 had seen the person who had exposed his penis and it was also clear to the learned Magistrate that on that occasion she merely had a glance at the male’s face and on top of that she was also shocked by what she saw and so therefore it was unlikely that she would have had a good view of the male.  And there were also discrepancies between PW1’s description of the flasher as being a student and the fact that the Appellant is 31 years old.

5.  The second ground the learned Magistrate found which caused her to dismiss the first charge against the Appellant was the fact that on the first occasion the prosecution witness did not see the person handling his penis so the learned Magistrate considered that there may be a possibility that that person had just forgotten to do up his zip.  So the learned Magistrate therefore dismissed the first charge against the Appellant.

6.  However, the learned Magistrate at the conclusion of the case, upon accepting the evidence of the witnesses, decided that the evidence in relation to Count 2 was very different.  She was impressed by the fact that after the first occasion the witness was on the look out for the male and before the second offence, she had seen the same person there on several occasions had observed him from a distance and on that second occasion when she first looked he had his zip done up but on the second time when she looked the zip was undone and his penis was exposed.  So the learned Magistrate considered that the identification evidence in this second charge was quite different from the first.  The observation of the PW1 was made on more than one occasion prior to the second offence, so at the end of the day, the learned Magistrate considered that the prosecution witnesses were truthful, honest and reliable and that she was satisfied beyond the reasonable doubt that PW1 had correctly identified the Appellant.

7.  The learned Magistrate also considered the evidence of the Appellant and in her judgment his evidence in no way affected her assessment of the prosecution evidence.  And thus, she convicted the Appellant.

8.  Identification is, of course, an important issue in this case, and the learned Magistrate had recognised that because she was mindful of the directions in the R v Turnbull¹ and she said that she had very carefully considered the issue of identification because it is well known that people had been wrongly identified in the past.  So this was a matter which was completely alive in her mind at the time when she was assessing the evidence.

9. On appeal, the Appellant was represented by Ms Koo.  The main ground of appeal is, of course, that the identification by PW1 was unsafe.  The main point upon which Ms Koo relies on is the fact that PW1 had said in cross-examination that the person who exposed himself on the second occasion was the same person who exposed himself on the first occasion and that PW1 had described the first flasher as a student.  So, therefore Ms Koo said the identification on the second occasion is fraught with danger because it is clear that the Appellant is not a student.  But upon reading the evidence of PW1, it is clear that on the first occasion, PW1’s main point on the identification of the first flasher as a student was because of the clothes he was wearing on that first occasion.  She gave the description about how his clothes were similar to a student and there was some logo on his shirt that gave her the impression that he was a student and that he had a backpack.

10.  It is clear that subsequent to occasion of the first charge, PW1 was very alert in trying to see whether the flasher would be back again, she made observation of that same bus stop, she had seen the Appellant several times at the bus stop prior to the second offence.  On those previous occasions, he had not exposed himself and on this last occasion when he did expose himself, she recognised him, but she kept him under observation and she became scared that he was waiting for her so she then reported to the police.

11.  So clearly as Ms Lam submitted, this was not the ordinary type of identification, it is more a recognition.  Of course, as I said to Ms Koo that what could have assisted her would be that the Appellant had used that bus stop on other occasions and there is a possibility perhaps that she may have seen him previously at this bus stop and identified him wrongly.  But all this was before the learned Magistrate, the learned Magistrate had a chance to observe the various witnesses giving evidence and she also heard the Appellant’s evidence that it was not him who was the flasher.  He had a regular job and he appeared at the bus stop merely to use the public transport.  He said that because of his work he sometimes was not at that bus stop.  So all this was before the learned Magistrate.  However, the end of the day the learned Magistrate considered that she did not believe the Appellant’s evidence.

12.  Ms Koo made a complaint that the learned Magistrate should have given a reason why she did not believe the Appellant.  This was a case where it is really a one to one situation.  It is for the learned Magistrate to consider the evidence of the various witnesses whether the evidence made sense, her observation of them when they were giving evidence to conclude who she believed.  So it is clear from a reading of the learned Magistrate’s Statement of Findings where she gave the reasons why she did not believe the Appellant.

13.  Ms Koo complained, also, about the photograph that was shown to the Appellant when he was giving evidence and it was produced and marked as exhibit D4.  It was alleged by the prosecutor when the photograph was shown to the Appellant that he was wearing the same outfit as shown in the photograph because the photograph was taken on the day of his arrest which the Appellant denied.  The Appellant thought that it was taken may be on the day of his identification parade.  Noting of relevance or importance was placed on this photograph at the end of the day by the learned Magistrate.  The photograph was referred to by Mr Spicer who was acting on behalf of the Appellant at the time of the trial.  The learned Magistrate made the observation that the Appellant had paused for a considerable moment before answering the question about the photograph.  Ms Koo alleged that this is an indication that the learned Magistrate must have considered it against the Appellant.  But it is clear from a reading of the transcript that this arose merely in a discussion between the Bench and counsel for the Appellant and at that stage, when Mr Spicer submitted that the pause could have been a result of the fact that this was the first time the Appellant had seen the photograph.  It is clear from the transcript the learned Magistrate accepted that and it is clear that she placed no relevance or importance on the photograph because she never referred to it again.

14.  It is clear from the learned Magistrate’s Statement of Findings that she was satisfied with the identification of the Appellant by PW1.  The learned Magistrate had explained under what circumstances she found that PW1’s identification was reliable.

15.  I have read the evidence of PW1 and I have read the oral reason for verdicts and the Statement of Findings, it is clear that PW1 was saying that on the first occasion her observation of the flasher was only on one occasion and for a very short time.  So the learned Magistrate was correct not to rely on that.  However, as Ms Lam pointed out, on the second occasion when the flasher again flashed himself, by that time the witness had ample opportunities to observe this person, and, therefore, the identification subsequently when she called the police was accurate.  On top of that, there was no issue on the lighting.  At the time of offence it was night but according to the witness the lighting was sufficient.  It was clear the witness said she looked at the face and body of the Appellant and recognised him.  So all this made her identification much more clearer than on the first occasion.

16.  I have considered all the grounds put forward by Ms Koo and I consider that there is no merit in this appeal.  Ms Koo made an allegation about the incompetence of counsel but she did not pursue that in this appeal.  As far as the identification is concerned the learned Magistrate had correctly identified the issues and come to a conclusion which I cannot say is, in anyway, unsafe or unsatisfactory, so the appeal is dismissed.

1. [1977] QB 224