HKSAR v. Hung Kin Hung

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1147 OF 1997

_______________

________________

________________

J U D G M E N T

________________

1. The Appellant was convicted in the Magistracy of one charge of Assault with Intent to Rob and after trial was convicted; he appeals now against that conviction. The grounds of appeal were first that the Magistrate failed to direct herself on the matter of identification and secondly that the Magistrate failed to consider sufficiently or properly the quality of the evidence of PW1, who was the victim of the assault.

2. Those issues have been argued before me today. It appears from the transcript of the trial that no issue was really made of the identification at the trial by the defence counsel who represented the Appellant. The defence appeared to be based on the suggestion that the victim had misconstrued an approach that was made to her by the Appellant in the street. The victim saw a man approach her at a distance of about 31 feet. She watched his approach for a period of 10 seconds during which he was face to face with her. Later, he grabbed her neck in an armlock, at which point she was side by side with him. A struggle ensued and although, according to the victim, this lasted for 2 or 3 minutes, it is very likely that it was a shorter period. The victim immediately reported the matter and, soon after, was driven in a police vehicle around the area. In a very short time, she identified the man who was being questioned by other officers in the street.

3. I am satisfied that the Magistrate while not recording in detail in her findings that she gave herself a full and obvious Turnbull direction, nevertheless had before her the elements relating to the identification and considered them properly. There is no substance in the first ground of appeal.

4. I am satisfied also having read the Statement of Findings and the transcript of the trial that the Magistrate did assess properly the quality of the evidence of the victim in this case and again, I do not consider the second ground has been substantiated. This appeal is dismissed.