HKSAR v. TONG CHING HANG AND ANOTHER

HKSAR v. TONG CHING HANG AND ANOTHER

The appellate court held that the magistrate properly admitted and weighed the identification evidence (including the dock identification) and was entitled to conclude the victim had misremembered a name but not the face; therefore the convictions (or findings of participation) were safe and the appeals against conviction were not upheld. However, exercising sentencing and welfare discretion for the 1st appellant (a juvenile), the court substituted a Care and Protection Order under Cap.213 s34 and ordered placement under his mother's care and supervision to meet justice and welfare needs, with resulting dismissal/quashing of the conviction under the juvenile statute framework.

Citation
HKSAR v. TONG CHING HANG AND ANOTHER
Parties
Respondent: HKSAR; 1st Appellant: Tong Ching Hang; 2nd Appellant: Ip Ho Tong
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 September 2002
Case Number
HCMA498/2002
Procedural Posture
Magistracy Appeal (court of First Instance) / Judgment on Appeal (hearing Concluded 24 September 2002; Reasons Handed Down 3 October 2002)
Outcome
2nd appellant's appeal against conviction dismissed; 1st appellant's appeal against conviction abandoned; 1st appellant's appeal against sentence allowed in part — probation order replaced with a Care and Protection Order and the charges dismissed/quashed under juvenile provisions for the period ordered.
Legal Topics
Common Assault, Joint Enterprise Liability, Identification Evidence (dock Identification), Turnbull Guidelines, Propensity/good Character Directions (berrada), Probation Vs Care and Protection Order, Protection of Children and Juveniles Ordinance
Source Language
EN
Criminal Law Juvenile Law Evidence Sentencing Procedure Common Assault Joint Enterprise Liability Identification Evidence (dock Identification) +4 more

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Parties

HKSAR

Respondent

Tong Ching Hang

1st Appellant

Ip Ho Tong

2nd Appellant

Procedural Posture

Magistracy Appeal (court of First Instance) / Judgment on Appeal (hearing Concluded 24 September 2002; Reasons Handed Down 3 October 2002)

Legal Issues

  1. 1 Whether appellants participated in a joint enterprise to assault the victim
  2. 2 Whether magistrate erred in failing to give a credibility/good character direction in relation to an out of court exculpatory statement
  3. 3 Admissibility and weight of dock identification where assailant's name was mistakenly recorded

Ratio Decidendi

The appellate court held that the magistrate properly admitted and weighed the identification evidence (including the dock identification) and was entitled to conclude the victim had misremembered a name but not the face; therefore the convictions (or findings of participation) were safe and the appeals against conviction were not upheld. However, exercising sentencing and welfare discretion for the 1st appellant (a juvenile), the court substituted a Care and Protection Order under Cap.213 s34 and ordered placement under his mother's care and supervision to meet justice and welfare needs, with resulting dismissal/quashing of the conviction under the juvenile statute framework.

Court Disposition

2nd appellant's appeal against conviction dismissed; 1st appellant's appeal against conviction abandoned; 1st appellant's appeal against sentence allowed in part — probation order replaced with a Care and Protection Order and the charges dismissed/quashed under juvenile provisions for the period ordered.

Orders

  • 2nd appellant convictions on charges 1 and 2 upheld and appeals dismissed (24 September 2002)
  • 1st appellant committed to the care of his mother and placed under supervision of a Social Welfare officer for 12 months (order made 25 September 2002)