THE QUEEN v . HO KAM WING

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 861 OF 1989

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BETWEEN

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J U D G M E N T

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1. This is an appeal against a conviction for indecent assault and theft.

2. The Crown's case was that Miss Kwok, an 18 year old student, was returning home to Tai Ling House, Tai Yuen Estate in Tai Po shortly after midnight on 30th January, 1989. She entered a lift. She was alone. She pressed the button for the 17th floor. A man came in. He pressed button 20. He stood behind her and to her left. She observed him. The lift was very well lit.

3. When the lift reached the 8th floor, the man said 'robbery' and grabbed her neck from behind. When they reached the 17th floor he made her press the 'close button.' When they arrived at the 20th floor he dragged her, still from behind her, to a staircase which was dimly lit. He told her to take off her stockings and panties. She did so. He took and smelt them and put them in his pocket. He told her to give him her coat and brassiere and he would be off. She took off those items of clothing. Then he pushed her to a sitting position. He was still behind her. He stroked her breast and then her private parts. He pulled his trousers and underpants half way down. He made her masturbate him for a few minutes. Then he told her to put his penis in her south - she did not do so and then they heard a female voice. The man fled. She reported to the police that same day.

4. On 2nd February she identified a man iron a police file of photographs. The magistrate noted that the person depicted in the photograph bore a striking resemblance to the appellant, both full face and profile. It was not the appellant.

5. She testified that on three subsequent occasions, in the lift or in the lift lobby, she saw the man who had indecently assaulted her. The 1st time was on 5th February, the second sometime in March and the third occasion on a Sunday in April. She did not report the first two occasions but she did so after the third occasion.

6. On 22nd April the police took her to the 8th floor. She was asked to stand in the lift lobby and to tell them if she saw the man who had assaulted her. She did not see the man. The police then went knocking at the doors of the flats on that floor. After they had checked 4 or 5 flats they passed a flat with a wooden door which was open and an iron grille. She saw a man lying on a sofa. She took a closer look and recognized him as the one who had assaulted her. He was about 20 feet away and was lying down. She told the police that that man 'seemed' to be the one. The police asked him to come close for her to see clearly. He did so. She recognized him and said so. She identified the appellant in court.

7. The appellant testified that on the night in question he was at home asleep. His brother testified to the same effect. His employer gave him a good reference.

8. Mr. Plowman, for the appellant, referred to The Queen and TSANG Pak-ming (Magistracy Appeal No. 391 of 1988) where Duffy, J. said,

"I acknowledge that it is not encumbent on a magistrate to refer in his Findings to every piece of` evidence or to analyse tile reasons for every conclusion he reaches. However, I would suggest that in a case, such as this where the conviction rests subustantially, if not entirely, upon the evidence of one identifying witness, the magistrate should be seen to expressly consider all the factors which are relevant to the strengths and weaknesses of identification evidence, and to address his mind to any inconsistencies or improbabilities in that evidence."

9. Miss Kwok early in her evidence said: "The time I had in the lift to observe the male's face was about half a minute." She agreed she could only have looked at him from the ground floor to the 8th floor. Later she said it took the lift about half a minute to go from the ground floor to the 20th floor. If that last estimate is correct, it throws doubt on her estimate of the time during which she could see the man in tile lift.

10. The magistrate should have, with respect, mentioned that discrepancy and dealt with it, as it was only in the lift that the lighting conditions were good. The magistrate made no reference to the time factor.

11. The verdicts are unsafe and unsatisfactory and the appeals are allowed. The convictions are quashed and the sentences set aside.