HKSAR v. LAU MAN SHING

HCMA85/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.85 OF 2002

(ON APPEAL FROM WSCC 10199 OF 2001)

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J U D G M E N T

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1. After their trial before a magistrate sitting in the Western Magistracy, the 1st appellant, Lau Man Shing, and the 2nd appellant, Tang Chung Kwan, were convicted of the offence of assault occasioning actual bodily harm. Both were sentenced to perform 180 hours of community services and to pay compensation to the victim. This is their appeal against conviction.

2. The incident giving rise to the charge occurred on 16 November 2001 in Smithfield Road in Western District. The appellants were employees of the Centaline Property Agency Ltd. On the day in question a number of employees of the Centaline Property Agency Ltd, the appellants included, were engaged in promoting a property development in the vicinity called Cayman Rise. The victim of the assault, one Mr Ng who gave evidence as PW1 at the trial, was employed as a property agent by a rival property agency. Shortly after 11a.m. Mr Ng was assaulted by several men and was punched, kicked and knocked to the ground. The 2nd prosecution witness witnessed the attack on PW1 and was himself attacked by other Centaline employees. The attackers later dispersed. PW1 was taken to the hospital and treated. Later in the afternoon both PW1 and PW2 gave a statement to the police in which they both said they could not recognise their attackers. Shortly after 6p.m. the same evening, PW1 and PW2 were taken back to the scene by the police officers. PW1 was able to recognise both appellants as his attackers. PW2 was also able to recognise the appellants as the persons who attacked PW1.

3. PW3, a newspaper vendor, gave evidence that he witnessed the assaults in the morning from across the road. About half an hour after the attack he saw two of the assailants who had attacked PW1 again. The first man came over to his store and changed his shirt. He was described as the person who kicked the victim as he was lying on the ground. As this man was changing his shirt there was another person standing in front of his store. This second person had also taken part in the assault of the victim. Shortly after 6p.m. the same evening, he saw both men arrested by the police.

4. The trial in the court below turned on the issue of the correctness of identification of the appellants by the 1st and 2nd prosecution witnesses. It was common ground that subsequent to the arrest of both appellants, no formal identification parade was conducted by the police. At the trial, the 1st and 2nd prosecution witnesses were asked by the prosecution to identify the appellants. This was done over the objection of counsel for the defendants. The witnesses were allowed to confirm that the defendants in the docks were the assailants. The learned magistrate convicted the appellants on the basis that both prosecution witnesses had correctly identified both appellants as having taken part in the assault of PW1.

5. Counsel for the appellants, Mr Andrew Bruce, SC, who did not appear in the court below contended that the learned magistrate erred in law in allowing the court identifications by the 1st and 2nd prosecution witnesses. He submitted that the magistrate failed to inquire sufficiently into the nature and quality of the purported identifications of the appellants by PW1 and PW2 in the evening of the incident before allowing them to identify the appellants at the trial. Had he alerted himself to the inherent flaws of the street identifications, the magistrate would not have allowed the subsequent court identifications. There being no properly conducted formal identification parade, the court identification evidence should not have been admitted. Having done so, the evidence was nevertheless highly prejudicial to the defence and it rendered the convictions unsafe or unsatisfactorily.

6. Learned senior counsel relied on a frequently cited passage in R.v. Hamood (1987) 27 A Crim R 184 by King CJ :

"The courts have emphasised that the formal identification parade is the method of identification which should be used wherever that is practicable and have frequently drawn attention to the defects of other methods of identification. If it is not practicable to arrange an identification parade at a particular time, but the suspect indicates a willingness to participate in such a parade when it can be arranged, the police should generally refrain from arranging or permitting other forms of identification which might prejudice the formal identification parade. ... Such alternative forms of identification should not be resorted to, however except for substantial and defensible reasons."

7. In that case the appellant was convicted of rape. Shortly after the incident, the victim described her attacker to the police and acting on information received the police arrested the appellant at his home. The appellant agreed to take part in an identification parade but as it was late at night the only available comparable sample of men could only be found in the bar of a local hotel. The appellant was taken to the hotel whereupon he joined the crowd at the bar. The victim was able to identify the appellant.

8. One would have thought that in a similar situation in Hong Kong, the police conducting the investigation would have taken every step to conduct a formal identification parade in accordance with established procedures. Counsel for the appellant in Hamood unsuccessfully challenged the admissibility of the identification evidence. On appeal, the Court of Appeal, South Australia held that under the conditions of that case, the identification process was fair and fairly conducted. The trial judge had correctly exercised his discretion in admitting the identification evidence.

9. In the present case the circumstances of the purported identifications are very different from Hamood. Both prosecution witnesses were able to recognise the appellants separately as having taken part in the assaults following which both were arrested by the police. The identity of the appellants were also confirmed by PW3. That being the case, I would be inclined to think that the need for formal identification parades to be attended by the three prosecution witnesses who had previously identified the arrested persons could be dispensed with.

10. At this appeal learned senior counsel had fairly conceded that identification evidence in court per se is not inadmissible as a matter of law. The central issue at the trial, as quite correctly stated by the magistrate, was the quality of the identification evidence of the prosecution witnesses. Senior counsel sought to argue that because of the weakness in the identification evidence, they should never have formed the basis of admitting the court identification.

11. This argument has a number of inherent weaknesses. It was never disputed by the defence at the trial that the appellants were the persons arrested by the police in the early evening of 24 July. What is being described as "court identification" was not an attempt by the prosecution to invite the witnesses to identify the appellants for the first time. It is no more than evidence confirming that the appellants were the persons arrested by the police. I am unable to see any valid basis for objecting the admissibility of this evidence. The magistrate had acted quite properly in admitting the evidence in the way as he did. Learned senior counsel appeared to have based his argument on the erroneous conception that the magistrate should not have allowed questions be put to the prosecution witnesses as to whether the defendants sitting in the dock were in fact the persons arrested by the police. This is clearly not the case as this is not identification for the first time.

12. This, in my view, should dispose the appellants' only ground of appeal.

13. As to the quality of the identification, the learned magistrate's approach to the identification evidence was undertaken with extreme caution. He stated in his oral reasons that identification evidence is the key to the prosecution's case and reminded himself of the guidelines in Turnbull. He warned himself of the special need for caution before relying on the evidence of identification. He resolved all the apparent conflicts and discrepancies in the prosecution witnesses' testimony. On the issue of PW1 and PW2 having told the police in their respective statements that they could not recognise the assailants, the learned magistrate said in paragraph 29 :

"I do not find that the evidence that they said in their statements made during the afternoon that they could not recognise anyone else undermines their identification. They were unable to give descriptions but could recognise the faces when they saw them."

He went to say in paragraph 30 :

"Having applied all the appropriate cautions, I find these witnesses to be mutually supportive and I am sure that their identifications of these two defendants as participating in the attack on PW1, which undoubtedly took place, is reliable."

14. The learned magistrate had approached the evidence of identification with commendable care and caution and at the end of which he found the charge against both appellants proven. It cannot be said that their convictions were unsafe or unsatisfactory in any way.

15. For the reasons given, the appeal by both appellants against their convictions are dismissed.