R. v. HUI KIN FAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1289 OF 1994

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J U D G M E N T

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1. The appellant was convicted of indecent assault and was sentenced to two months' imprisonment.

2. The prosecution case is very much dependent on the evidence of identification of the victim and it is this :

3. At about 11:00 p.m. on 13th May 1994, the victim was returning to her home at Shek Yam Estate, Block 3, and as she entered the lift lobby, she saw a man wearing white garment with brown pattern and brown trousers walk across her path carrying something like a paper bag. She had a glimpse of 80% of this man's face for about 5 seconds. She went into the lift lobby and saw this man come back, went inside the lift and looked out. He did not hold anything. She saw this man again for about 2-3 seconds. Then her breast was grabbed by the man from behind her. She did not see his face when she was attacked. The man then fled. She raised the alarm and police arrived at about 11:02 p.m. She gave a description of this man to the police and said that he was wearing white garment with brown pattern and brown trousers. She then went with the police in a police car touring the area to locate the assailant. In the meantime, two officers patrolling near Block 12, Lei Muk Shu Estate which was 5 minutes drive by minibus away from Shek Yam Estate, received from the consol particulars about the assailant. They were told the assailant wore brown garment with white pattern and black trousers. This was not what the victim reported to the police. At 11:22 p.m., they saw the appellant wearing brown garment with white pattern and black trousers walking outside Block 12 and they stopped the appellant. The appellant was then holding a brown paper bag inside which was a book. While these two officers were questioning the appellant, the victim arrived with other police officers in the police car. She did not alight from the car. From inside the car and 30 feet away, she looked at the appellant. She was not able to see the appellant in full since the appellant was partly blocked by the officers who were questioning him. She never went near the appellant. The appellant was the first male person she saw wearing similar clothes and clothing played a part in her identification. She told the police that the appellant was the assailant but she was not sure of the facial appearance. Nevertheless the appellant was arrested and cautioned. Under caution, the appellant said that he was returning home after giving private tuition and the officer should tell the victim to recognise clearly.

4. At the police station, the appellant made a written statement in which he told the police he had not been to Shek Yam and he had an alibi and he named PW4 as his alibi witness.

5. On 24th May 1994 the victim attended an identification parade and picked out the appellant and in a subsequent statement told the police that during the street identification she was only 90 per cent sure that the appellant was the assailant but after the identification parade, she was 100% sure.

6. PW4 denied seeing the appellant on the day in question and mentioned he had not seen him for 2 years.

7. The appellant's defence was that he was not there and it was a mistaken identification. His evidence is that he had food with PW4 that night but he did not know why PW4 denied that except that PW4 might bore a grudge against him because he had accused PW4 of theft some years ago. His witness DW1 told the court that he was with the appellant on a minibus going towards Lei Muk Shu that night at around 11:00 p.m. and when he got off at Lei Muk Shu, the appellant was still on the bus.

8. The learned magistrate found the appellant was lying about his alibi and he rejected his evidence and the evidence of his alibi witness. After reminding himself of Lucas, he regarded the lie of the appellant capable of corroborating the evidence of identification and in fact found it corroborated such evidence. He accepted the identification as not mistaken and convicted the appellant.

9. In dealing with the issue of identification the learned magistrate recognised that the victim had told the police that she was not sure of the facial appearance and she was 90% sure at the time when she identified the appellant as the assailant in the street. Though she said she was 100% sure at the parade, the learned magistrate considered rightly that it was the first identification that was really important.

10. He said,

"These two matters, whilst demonstrating PW1 to be careful and objective, diminished the quality of the identification. Of course, one can positively and correctly identify a person without being sure of their facial appearance and PW1 did so. This was a qualification to what was at the time unqualified assertion that the defendant was the assailant. PW1 readily agreed that she had told the police that she was 90% sure that the defendant was the one who had attacked her and that this was the truth. What did she mean by it? She rejected the suggestion that she was mistaken in the identification so she could not have meant that. Did it merely reflect that she was not sure of his facial appearance whilst being sure that he was the man? Does the missing 10% only reflect what we all know to be the case, which is that it is always possible to be mistaken, especially when visual identification is in issue? Given the fleeting glance nature of the observation and these two matters, I resolved that it would not be safe to convict on this evidence of visual identification alone. It needed corroboration. I found it in the lie."

11. The first two grounds of appeal are the learned magistrate erred in convicting on flawed identification and misdirected himself in interpreting the expression the chance of 90% (of being sure) as being the same as being sure. There are other grounds of appeal but it was conceded at the hearing that if the appellant succeeded on these two grounds, the conviction could not be upheld and there would be no need to argue on the other grounds.

12. Mr. Laskey, for the appellant, submitted that the learned magistrate was wrong in accepting the identification as correct when the witness was not sure and in fact indicated she was only 90% sure of the facial appearance. He submitted that a witness could not be sure to a percentage. Either she was sure or she was not sure. He referred to R. v. Yip Moon Ting and another [1984] HKLR 443, where the Court of Appeal said,

"A witness is either sure or he is not. One cannot be 60 to 70% sure."

13. In another case, Yeung Kuen Chi and Another [1984] HKLR 447, the Court of Appeal in dealing with the standard of proof had this to say about "sure" and "certain" :

"...... Secondly, it is to be regretted that the judge suggested that it was not possible for the Crown to prove its case to a hundred percent certainty, for that it precisely what it did have to do. We are aware that it is common parlance in Hong Kong to talk of percentages of certainty. That may do little harm in social conversation, but it is wholly inappropriate in the legal context, for it usually involves a flat contradiction. Thus 80% certain is not certainty at all; nor is 99% certainty. And similarly with the use of the word 'sure'. A witness is either sure, or he is not. There is no half way house."

Thus, it is submitted that the learned magistrate should not speculate as to what the witness meant when she said she was 90% sure to firm up an identification which was otherwise insufficient. There was no special features about the assailant. The victim was simply not sure of her identification.

14. It was conceded by the Crown that if the victim was not sure of her identification, no measure of corroboration could cure it. It is only where there has been positive identification in a fleeting glance situation that other evidence may go to support the identification.

15. The victim admitted that clothing and build played a small part in her identification. Facial appearance thus was of vital importance to her when she made the identification. But she was not sure in this vital aspect of her identification. The learned magistrate himself found the visual identification unsafe to rely on to found a conviction. The appellant wore clothes which were different from but similar in colour to what she saw the assailant was wearing. Based on wrong information on the assailant's clothing the police intercepted the appellant. The appellant was the first man the victim saw in her effort to find the assailant and she identified the appellant from a distance. Whether the assailant was holding an envelope when he escaped was never explored. The court could not have been satisfied that there was no real possibility that the identification of the appellant as the assailant was mistaken. The conviction cannot be regarded as safe and satisfactory. The conviction is quashed and the sentence set aside.