R. v. CHAN TSUN MAN

IN THE COURT OF APPEAL

No. 589 of 1995
(Criminal)

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J U D G M E N T

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Liu, J.A. (giving the judgment of the Court):

1. On 29th May 1994, a man intercepted a Filipino girl. It was said to her that she was suspected of overstaying in Hong Kong unlawfully. The girl was subsequently taken to her home in which a conversation was had not only with the girl, the victim, but also with her mother. That conversation took approximately half an hour. That conversation apparently did not resolve any problem. The man requested the girl to accompany him to go back to the police station because he had claimed to the mother and daughter that he was a policeman. The man did not bring the victim to a police station but instead to the staircase of another building. In the staircase, the victim was molested. She was also relieved of her pair of gold ear-rings and a gold necklace. The man left. The victim returned to her home and a report was made to the police.

2. Statements were thereafter given by mother and daughter to the police. At a later date, almost three months afterwards, mother and daughter were requested by the police to go to the station to make further statements. That they did. After concluding giving their further statements to the police, on the way home from the police station they spotted a man whom they claimed to be the person who molested the victim on 29th May. Mother and daughter were then accompanied by another person. The Applicant was kept under surveillance and a report was made by the victim to the police. The police came, and the Applicant was thereupon apprehended. The incidents which occurred on 29th May 1994 were not in dispute. At the trial, it was essentially a matter of identity.

3. The Applicant in his home-made application for leave to appeal against conviction sets out various grounds. He claims that he does not speak enough English to carry on a conversation with mother and daughter on the occasion in the charge. Therefore, it was a case of wrong identification. Moreover, he says that the lighting in the flat was dim and that the staircase was dark. It was very difficult for a positive identification to be made. He further sets out in his home-made application that mother and daughter were both emotional at the time of his apprehension, so much so that they attacked him upon his arrest, and that was not, so the Applicant says, conducive to a safe correct identification. Mother and daughter, so suggests the Applicant, could have talked about the incidents time and again, and when he was apprehended, their previous conversation might have encouraged them to identify the Applicant. It is therefore submitted that it was a sheer case of wrong identification.

4. The case against the Applicant is that he put up resistence at the time of his arrest. But the Applicant claims that he did not resist arrest and that in fact he was not even handcuffed when he was led away by the police to police station. That came out in the evidence of the mother and the daughter.

5. As for identification, the judge was conscious of the various difficulties including those set out in the application of the Applicant's. In particular, he warned himself that even the most honest witness has been known to have made a genuine mistake on identity. He took into consideration the lighting in the flat and the surrounding circumstances when the victim was led to the staircase. He also considered the possible effect of the emotions displayed by mother and daughter at the time of the Applicant's apprehension, as well as their likely prior conversation. The judge also did not overlook the standard of English of the Applicant.

6. He noted that mother and daughter had half-an-hour to talk to the man in the flat, and the victim had another half-an-hour face-to-face meeting in the staircase with the same man. Despite these possible shortcomings and a lapse of time of almost three months, the judge was satisfied that the identification made by mother and daughter was reliable, and he acted upon their identification evidence. There is no substance in the matters raised in the home-made application of the Applicant. The judge had dealt with identification properly before he reached his conclusion which cannot be faulted. The judge also found that police officer, PC45585, was assaulted by the Applicant in resisting arrest. The Applicant was rightly convicted of resisting lawful arrest. It follows from the positive identification accepted by the judge that the Applicant was guilty of theft, indecent assault as well as impersonating a police officer in the charges.

7. For the charges the Applicant faced, he was given 2 years for indecent assault, 3 months for theft, 3 months for impersonating a police officer, all sentences to run concurrently. The Applicant was given an extra month for resisting lawful arrest.

8. In his application for leave to appeal against sentence, the Applicant claims that the sentences are excessive. But it would appear that the Applicant focuses on the sentence of 2 years passed upon him for indecent assault. He has the audacity to say that fondling the breasts of the victim for only a few times is not an offence which should warrant a two-year sentence. There is absolutely no merit in his application for leave to appeal against sentence. We do not find any of the sentences passed by the trial judge manifestly excessive or wrong in principle. Both his applications for leave to appeal against sentence and for leave to appeal against conviction are dismissed. His convictions stand; so do his sentences.