1993, No. 436




Coram: Hon. Macdougall, V-P., Sears and Kaplan, JJ.

Date of hearing: 19 January 1994

Date of judgment: 19 January 1994




Kaplan. J.:

1. On 23rd July, 1993 the Applicant was convicted by Mr. Andree Wiltens sitting as a Deputy District Judge on one count of indecentassault upon a female.

2. On 6th August, 1993 he was sentenced to 3 years and 9 months’ imprisonment. He applies for leave to appeal against conviction andsentence.

3. The offence took place on the 22nd March 1992 at a flat in Tuen Mun. The victim was the wife of a police officer. On the eveningof the 21st of March, 1992 the police officer left for night duty at about 10.00 p.m. The victim then went to bed but at about 1.00a.m. she was awoken by a noise. She got up and found a man in the bathroom.

4. A struggle ensued with this man. The victim hit the man over the head with part of her husband’s barbells. The man hit back. Thestruggle continued during the course of which the man removed the victim’s trousers and pants. The victim offered money but the mansaid he wanted happiness. He took off his trousers and kissed her on the lips. He asked her to kiss his private parts but she refusedbut instead rubbed them with her hands. She said that he did not achieve an erection.

5. The man stayed in the flat for about 1 hour. They had a discussion about whether she would prosecute him. The man showed her an identitycard in the name of a person other than this Applicant.

6. At the beginning of this terrifying experience for this victim, the lights in flat were off but after the two struggles when theman asked the victim to write a letter, the victim went into another room and turned on the TV which remained on thereafter. Whilethe man was washing away the blood on his face, the bathroom light had been switched on by the victim. Later the victim turned onone of the lights in the living room and the victim said she had about 3 or 4 minutes to look at the man. As the man was leavinghe turned to ask a question and the victim had the chance to see his face for about a minute in the enhanced lighting of the corridor.

7. After the man left, the victim phoned to her husband and the police came. She was taken to a clinic for treatment and was hospitalizedfor 3 or 4 days.

8. On the 29th May, 1992, which was just over 2 months after the attack, the victim saw a group of men leaving a construction site nearto where she lives. She said that one of those men was her assailant. She saw the man go to a restaurant so she called her husbandand in due course the police came and arrested the Applicant. The victim was called and she identified the Applicant as her assailant.

9. The only issue at trial was identification. The Applicant elected not to give evidence and called no evidence. He was man of previousgood character. When tested with this matter, the Applicant said : “The girl misidentified me. I had not done that.”

10. There was no corroboration and the judge warned himself of the danger of convicting on the uncorroborated evidence of the victim.But having done so he was quite satisfied that she was a reliable, accurate and truthful witness. He considered the suggestion ofa mistake but rejected it. He concluded that he was safe to rely on evidence of identification. Mr. Mullick appeared for the Applicanton this appeal and raised 4 grounds of appeal.

11. The first ground of appeal was that in all the circumstances of this case the learned judge should have given himself a full Turnbull warning ([1976] 63 Cr. App. R 132.)

12. In our judgment, there is nothing in this ground of appeal. It is true that this case depended upon the identification of the Applicantby the victim. However, it is clear from the reasons for verdict that the judge considered very carefully the opportunities for identificationduring the course of the hour long ordeal suffered by the victim. He dealt with the question of the various forms of lighting inthe flat and it is clear that he did this in order to be able to test whether the victim would have been able to see the Applicantsufficiently well to be able to identify him on a subsequent occasion. The judge considered the evidence of the victim with somecare. It is clear that having considered the whole of the evidence the judge was very impressed with her as a witness. The judgecorrectly reminded himself that the only evidence against this Applicant came from the victim and he again reminded himself thatthe identification was some 2 months after the event. He considered specifically the question of an honest mistake due to the limitedopportunities to see the Applicant during the course of this ordeal. The judge was satisfied that there was ample opportunity forthe victim to see the Applicant and thus be able to recognise him subsequently. The judge quite properly analysed the quality ofthe evidence of identification although he did not specifically refer to the case of Turnbull nor did he use the form of words used in that judgment, nevertheless it is perfectly plain to us that this judge sitting alone wasperfectly well aware of the dangers inherent in identification cases and was properly analysing the evidence in order to see whetherit was safe to rely upon the evidence of the victim. [See s.80 of the District Court Ordinance] We are satisfied that there is nothing in this ground of appeal.

13. The second ground of appeal is that the judge erred in not warning himself of the danger of relying on a dock identification. Thevictim was asked to identify the Appellant in court. There is nothing is this ground of appeal as the victim identified the Applicantwhen she saw him coming out of the building site and repeated this to police officers when he was arrested at the restaurant. Allshe was saying in court was that the man in the dock was the same man that she had told the police had gone in the restaurant. Thiswas not a true case of a dock identification.

14. The third ground of appeal is that although the judge correctly warned himself of the danger of acting upon the uncorroborated evidenceof the victim as to the actual sexual assault, he did not direct himself as to the dangers of acting upon the uncorroborated evidenceof the victim regarding her identification of the Applicant. Mr. Mullick relied upon R. v. Baskerville [1916] 2 KB 658-667. It has to be emphasized that this was not a summing up to a jury. The judge was well aware that there was no corroboration. He waswell aware that the only real issue was identification. He properly directed himself as to the manner in which he should approachthe uncorroborated evidence of identification. It is clear that he gave this matter careful consideration. In those circumstances,we are satisfied that there is nothing in this ground of appeal.

15. The next ground of appeal is that the judge failed to direct himself on the evidential status of the Applicant’s previous good character.What the judge said was this :

“I am aware that the defendant has no previous convictions and that he has no signs of having been hit by the victim. I am also awarethat his first reaction was what an innocent man would have said. Despite these important factors, the evidence drives me to theconclusion that the protested innocence is a falsehood.”

16. Mr. Mullick submits that it was incumbent upon the trial judge to give both limbs of the direction in Vye [1993] 1 WLR 471. He points out that in Vye it was held that the direction should be given in respect of the first limb when the accused had not given evidence but had madeextra – judicial exculpatory statements. Further, Mr. Mullick relied upon the decision of this court in R. v. Lai Hon Man [1992] Cr. App. 421 judgment delivered 20 May 1993.

17. Reliance was placed by Mr. Mullick on a page appearing on pages 4 and 5 of the report where Sears, J. giving the judgment of thecourt said this :

“The second ground of appeal is that the Judge failed to give any direction on good character. The applicant led evidence that hewas a person aged 21, at trial, and had a clear record. Nowhere does the Judge mention this. It is incumbent on the Judge to givethe standard direction on good character. Since R. v. Berrada [1989] 91 Cr. App. R 131 it became common for trial judges in England to give a direction not only as to good character being relevant to credibility, wherea defendant has testified or made pre-trial answers or statements, but also as to the likelihood of his having committed the offence.However, many judges omitted the second limb of that Berrada direction. In R. v. Vye & Others [1993] 1 WLR 471 in English Court of Appeal has decided that both limbs – credibility and propensity – of the direction should be given.

It is not necessary for this court to come to a similar decision, but it is strongly advisable for the “second limb” direction tobe given for person of good character in cases where the propensity to commit a crime is obviously relevant, for example a 40 yearold man charged with theft or a sexual offence.”

18. In the present case we are yet again dealing with a judge sitting alone and not with a judge directing a jury. What we have to askourselves is whether in the light of what the judge said in this case we can be satisfied that the judge kept this matter in mind.

19. What the judge said was this :

“By way of agreed evidence the defendant has affirmatively established that he has no previous criminal convictions and that he hadat the time of his arrest no injuries or scars to correspond with the blows the victim inflicted on the culprit. Furthermore, whenhe was first taxed with this matter, the defendant replied : “the girl misidentified me, I have not done that.”…

“I am aware that the victim had no previous convictions and he had no signs of having been hit by the victim. I am also aware thathis first reaction was what an innocent man would have said. Despite these important factors, the evidence drives me to the conclusionthat the protested innocence is a falsehood.”

20. We do not think it incumbent upon judges sitting alone to incant a form of words which can be traced directly to the words used incases such as Vye or Berrada. [See R. v. Chan Wu-nam [1992] Criminal Appeal 274] The judge in this case clearly put into the balance the fact that this Applicant had a clear record andhe was aware that good character was an important factor for him to consider. We are quite satisfied that it is clear from his reasonsfor verdict that the judge was giving full weight to the good character of the Applicant in relation to both limbs of Vye. This ground of appeal is likewise rejected.

21. For all these reasons, therefore, we are satisfied there is nothing in any of the complaints made by this Applicant and this applicationfor leave to against conviction is dismissed. The appeal against sentence was not pursued.

(Neil Macdougall) (R.A.W. Sears) (Neil Kaplan)
Vice President
Justice of Appeal
Judge of the High Court Judge of the High Court


Mr. D.G. Saw, Senior Crown Counsel for the Crown.

Mr. John Mullick instructed by Kevin L.H. Kwong & Co. for the Applicant.