Criminal Law — Defendant acquitted of common assault on the basis of questionable identification
On 3 May 2023, the Court ruled that the Prosecution had failed to prove beyond reasonable doubt that the Defendant in HKSAR v Lam Shan Ling Danny (WKCC 3356/2022) was the perpetrator in a common assault. Andrew Lau acted for the successful Defendant.
The case concerns an alleged assault arising out of a workplace dispute. The Defendant was charged with common assault against PW1, contrary to common law and punishable under section 40 of the Offences against the Person Ordinance (Cap. 212).
In late December 2021, PW1 was recruited as a part-time worker through Whatsapp. PW1 attended work once on 4 January 2022. A week later, i.e. 11 January 2022, PW1 received Whatsapp messages complaining about his performance at work. On the same day, PW1 went to the workplace.
Upon arrival, a lady was at the reception area. PW1 asked if the lady was the person who had been liaising with him via Whatsapp. The lady did not respond. PW1 continued to defend his work performance and informed the lady that he would stop working there. The lady told PW1 to leave as he was interrupting her work. PW1 took a photo of the lady, who was wearing a surgical mask.
As PW1 was leaving, he suddenly felt pain at the back of his head. PW1 turned around and saw the lady standing behind him. A CCTV captured the assault. The lady left the scene before the police officers arrived.
PW1 subsequently received a medical examination. Upon physical examination, no external scalp wound or swelling was found.
The Defendant was arrested about a month later. No identification parade was held ever since.
The Prosecution’s Case
With the Court’s leave, the Prosecution conducted dock identification in Court. PW1 identified the Defendant as the perpetrator in the common assault. Based on the CCTV footage and PW1’s injuries, the Prosecution argued that the Defendant had committed common assault against PW1.
The Defence’s Case
First, little weight (if any) should be accorded the dock identification considering the circumstances in which the identification came to be made:-
(1) On the material day, PW1 only observed the lady for about five minutes;
(2) Although PW1’s observation was in close range, the lady wore a surgical mask at all material times. This significantly impeded PW1’s observation;
(3) PW1 only met the lady for the first time on the material day. This was not a case of recognition, but mere identification;
(4)No identification parade was held. This was the first identification by PW1 in about 16 months.
Second, there were also discrepancies between PW1’s description of the lady and the Defendant’s actual appearance in Court.
Third, both the picture taken by PW1 and the CCTV footage failed to show any special features that could link the Defendant with the perpetrator.
The Court’s Findings
The learned Magistrate agreed with the Defence’s submissions and acquitted the Defendant of common assault on the basis of questionable identification.
Andrew Lau, instructed by Messrs. Ho Tse Wai & Partners, acted for the Defendant.
Andrew is a Charles Ching Scholar and a Patrick Yu Scholar. He has a broad civil practice, with experience in areas such as commercial disputes, company/insolvency, construction, equity/trusts, land, probate, family, personal injuries, and public law.
On the criminal side, Andrew recently secured the acquittal of a motorcyclist charged with dangerous driving in HKSAR v Cho Wai Hing (KCS 20689/2022), and successfully convinced the Court to find no case to answer for a bus driver charged with causing grievous bodily harm by dangerous driving in HKSAR v Ng Chun Ming (KCCC 2948/2021).
Andrew also handles criminal appeals, both in his own right and as a led junior.
This article was first published on 5 May 2023.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.