HKSAR v. Arif Aqib and Another

DCCC 510/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 510 OF 2015

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Reasons for Verdict

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1.The defendants face a joint charge of robbery. The robbery occurred on the evening of 21 February 2015 in Kwok Shui Road Park in Tsuen Wan.  The victim, described as PW1, was robbed of an iPhone by a gang of what he described as four South Asian males.  The victim was in fact a police officer.  He has identified both defendants as participating in the robbery. Both defendants challenge his identification of them. 

2.The issue at trial was whether PW1’s identification of either or both defendants can be relied upon.  There is no dispute that a robbery occurred. 

The prosecution case

3.PW1 gave evidence.  He is a police officer and he had finished dinner in Tsuen Wan and was on his way to the police traffic headquarters NTS, New Territories South, which is by the Kwok Shui Road Park.

4.He arrived there at around 10.30 pm.  He entered the park and sat down on a bench near the public toilet.  He talked on the phone until about 10.45 pm.  He saw four South Asian males at entrance B of Tai Wo Hau MTR station which abuts onto the park.  The males ran towards him. Then one of the males, later identified as the 1st defendant, swore at him when he, that is that male, was 3 to 4 metres away. 

5.PW1 then tried to escape, turned around and ran.  Whilst escaping, he felt a blow to his head, the back of his head. He turned and saw the 1st defendant again.  When all the males caught up with him, he was pulled to the ground. 

6.Whilst he was on the ground, his phone was taken from his left hand.  At the time it was taken, he was able to see that it was the 2nd defendant who took the phone as the phone was forced out of PW1’s hand by the 2nd defendant.  PW1 ran away again towards the roadway where he was again caught.  He says he was able to see all four males again at that stage.  Eventually the four males run away and PW1 contacted the police. 

7.PW1 subsequently made identification of the 1st and 2nd defendants at identification parades held on 3 March 2015.  The Chief Inspector of Police who conducted those parades gave evidence in respect of certain aspects of how they were conducted. 

8.The 1st defendant, on arrest, denied a robbery. The 2nd defendant remained silent.  There was a CCTV camera installed at Tai Wo Hau MTR station.  The camera is located at exit B and exit B is by Kwok Shui Road Park.  The CCTV captured D1 with other South Asian males at 2133 on 21 February 2015.  Further, it captured D1 and D2 with other South Asian males between 2246 and 2249 on the same day, that is 21 February 2015.

9.It was admitted that D1 was conversant with and capable of understanding Punti and that D2 had a clear record. 

10.The prosecution called PW2 who witnessed the incident but could not identify any of the South Asian males. 

The defence evidence

11.Neither defendant gave or called any evidence.  No adverse inference can be drawn from that decision.

12.The defence case was advanced by way of cross-examination and submission.  The 1st defendant submitted that PW1’s account of his observation was of insufficient length to permit a proper identification.  He had only looked at the man he said was D1 on three occasions, each time for only a short period of time, one to two seconds, in a location lit by dim street lighting.  He had been asked to conduct his identification of the 1st defendant at an identification parade some 10 days later.

13.His description had involved no special features, other than the ethic origin and height of the defendant.  In cross-examination, he had said that he was 90 to 100 per cent sure of his identification, also PW2’s evidence had described only one man dressed in white being involved. That man wore a white-coloured garment to the knee.  It can be seen from the CCTV capture that D1 wore a short-sleeved shirt that was not knee length.  PW2 had also said the South Asian males ran towards the public toilet rather than towards exit B of the MTR as described by PW1.

14.D1 also criticised the identification parade conducted, in that he had worn sports trousers whilst the other participants had worn jeans and he was the only person wearing a white long-sleeved top.  The 2nd defendant had said that the 1st prosecution witness’s identification of him was a fleeting glimpse.  PW1 had said he saw the 2nd defendant for one second; that was as the 2nd defendant took the iPhone from PW1’s left hand.  However, in his description, he had not said that the man number 2 wore glasses, as D2 did, and can be seen to be doing from the CCTV capture at about the same time.  He had described D2 as being fat when that is not a necessarily identifiable feature of him.  He said that D2 wore a dark jacket when his jacket had obvious white sleeves, as again can be seen from the CCTV capture, and finally, that the 2nd defendant’s identification had been hesitant in that PW1 took four minutes to identify him at the identification parade. 

15.PW1 gave evidence of a robbery.  There was unchallenged evidence of the theft of his iPhone which was accompanied by violence at the time of doing so.  I have no difficulty in finding as a fact that a robbery occurred. 

16.The issue to be determined is whether the 1st defendant or the 2nd defendant were any one of the four Asian males who participated in that robbery.  Naturally, the prosecution must prove their case against each defendant beyond reasonable doubt and the burden remaining on the prosecution at all times.

17.The case against each defendant is separate and must be considered separately.  The 2nd defendant has a clear record; this is also relevant when considering his propensity to commit an offence of this nature.  The prosecution case against each defendant wholly relies upon the evidence of identification. 

18.There is a special need for caution before convicting an accused in reliance upon the correctness of identification evidence.  An honest and mistaken witness can be a convincing one.  It is necessary to carefully examine the circumstances of the identification and that examination must be done independently as against each defendant. 

19.As far as the 1st defendant is concerned, PW1 firstly sees him when he says he swears at him from 3 to 4 metres away.  PW1 could see his face.  In examination-in-chief, he said he saw him for two to three seconds, one to two seconds in cross-examination.  This was at night time under street lighting.  His view was unobstructed.  PW1 ran away, he was hit with a hard object, he turned and saw D1.  They were half a metre apart.  He could see his face clearly for around one second.  The third time was when D1 threw a punch at him.  This was after all four men caught up with him and assaulted him.  On this occasion, D1 was about half a metre away when he threw the punch.  The lighting was clear, the street lighting was clear and PW1 could clearly see his, that is D1’s, face.  He observed D1’s face for one to two seconds on that occasion.

20.In cross-examination, PW1 agreed that on the first occasion, his view may have been for one or two seconds. Nevertheless, PW1 had good opportunities to view this man from a close location repeatedly.  Although it is night time, there is no reason to consider that the street lighting available was insufficient to make clear observation.  PW1 said it was sufficient.

21.PW1 was clear that the 1st defendant was the male who swore at him and later assaulted him.  He was able to repeat that identification in court.  I noted that in cross-examination, PW1 had said he was 90 to 100 percent sure of the identification.  He said he remembered number 1, that is D1’s, face in his mind.  He disputed the proposition that D1 was similar to a man and the proposition that he made a mistaken identification. 

22.I was referred to comments made in an appellate case of Yip Mun Tang and Another, that is CA 302/1984, that a witness is either sure or he is not and one cannot be a percentage of sure - in that case 60 to 70 percent - and it is said PW1’s reply as to be 90 to 100 percent sure allows for a similar conclusion to be drawn in respect of PW1, that he is not in fact sure. 

23.However, I consider the remarks in that case must surely only be pertinent to the evidence called in that case. 

I do not consider the remarks to have universal application. Witnesses make identification, then are cross-examined about degrees of certainty. When those questions are asked, the witness has been asked to objectively assess his own certainty and perhaps it is a trite observation that it is difficult to be certain of anything. But the witnesses has, as I said, been asked to given an objective assessment - assess themselves.

24.In this case, I must assess all the evidence.  The witnesses’ replies in cross-examination are one of the factors. I do not consider that one answer in cross-examination can effectively negate all the evidence of identification in the case.  It is just another piece of evidence.

25.In this case, the witness, even in cross-examination, allowed himself 100 per cent certainty as being within the spectrum of his degree of certainty.  I do not think the answer impugns the identification.  I note there was criticism of the description PW1 made of the 1st defendant as being insufficiently detailed to support later identification.  I find this not to be this case.  Descriptions are usually confined to obvious matters such as height, build and ethnic origin.  Save for getting an artist to reproduce the face, it is difficult to see what more could be done. 

26.I also noted criticism being made of the identification parade.  It was said the 1st defendant was dressed differently than the other participants.  He had a white long-sleeve shirt and sport trousers whilst others worn jeans.  I had the benefit of being able to see the CCTV recording of the identification parade.  I formed the opinion, having seen that, that such differences were not significant.  Everybody wore what are described as informal trousers, long trousers.  The 1st defendant’s trousers were not decisively different from the others.   He was not the only person in a light-coloured top.  I found there was no significant difference between D1 and any of the other participants in the parade. 

27.There was also the question of the second prosecution witness’s observations.  He saw a man in a white-coloured, long garment that he said went to the knee as being one of the males, the four South Asian males.  The CCTV recording of the 1st defendant at the time shows him wearing a white short-sleeved top.  However, I note the second prosecution witness described clothing but he was unable to make any identification of any person.  His first observation was from a bus window and then running to the aid of PW1.  His observations are not as detailed or as proximate as PW1’s observations.  I found they do not impugn what PW1 observed.  Whereas PW2 said the man escaped towards the public toilet, PW1 said he said he saw them go towards exit B of Tai Wo Hau MTR.  Again, I saw nothing in this; the two location are proximate and both observations may be correct.

28.Having considered all the evidence against the 1st defendant,  I found that the identification of the 1st defendant as being the number 1 man by PW1 is clear and reliable.  I find the matters raised in submission by the 1st defendant do not in any way impugn this conclusion.  The cumulative effect of PW1’s observations is to clearly and properly identify the 1st defendant as being the number 1 man.

29.I did consider the question of lighting but the lighting is sufficient to make a clear identification.  There are repetitive observations from a very short distance away.  There is support in the fact that the 1st defendant is seen on the CCTV camera at exit B both before and what would appear to be around the time of the attack on PW1.  This, in my view, supports the 1st defendant’s identification of him. 

30.Having taken all the evidence, I consider that the prosecution has proved beyond reasonable doubt that the 1st defendant was the participant number 1 in the robbery of PW1 and he will be convicted of that offence.

31.I now turn to the 2nd defendant.  Similarly, the evidence against the 2nd defendant comes solely from the first prosecution witness.  PW1 made only one observation of D2, this being when he turned his head to the left at the time when D2 is alleged to take the phone out of his left hand.  The observation by PW1 is from a close distance but lasts only one second.  This is the only observation made by PW1 of D2 which is capable of supporting an identification. 

32.In cross-examination, he said he saw the faces of all four men when he was hit at the bus stop - that is towards the end of the incident.  But he did not mention that he made any specific observation of the 2nd defendant at that time.  In cross-examination, he was also asked about how sure he could be about the identification.  He gave an 80 to 90 per cent percentage.  He also took four minutes to make the identification at the identification parade.  It was submitted that the identification really amounted to a fleeting glimpse and also that PW1’s description did not fully match the number 2 man who was described and identified as being D2.  The number 2 man was described as being fat.  I think D2 could neither be properly described as being fat or thin.  The 2nd defendant wears glasses; he was wearing them that evening.  He can be seen wearing the glasses on the CCTV capture at 10.45.  He wore a jacket with white sleeves.  This salient feature was not observed by PW1 even though, on his account, it must have been clearly presented to him. 

33.It is a fact that his observation of the 2nd defendant was limited to about one second.  His description of D2 is sparse and may be said to be inaccurate in places.  He may have missed the fact of the 2nd defendant wearing spectacles.  These perhaps may be the reasons why PW1 assessed his certainty of observation in the 80 to 90 per cent bracket, rather than 90 to 100 per cent bracket which would allow for complete certainty.

34.I consider that what can be said is his identification of the 2nd defendant could possibly be correct.  D2 was present nearby at about the time the incident unfolded.  However, the brevity of the observation combined with the lack of accuracy in description and the omission of the salient feature that the 2nd defendant wore glasses lead me to find that the 1st prosecution witness’s observation of the 2nd defendant cannot be relied upon to a criminal standard to the extent that a conviction must follow. 

35.In respect of the 2nd defendant, the prosecution have not reached the stage of proving the case against him beyond all reasonable doubt.  That being the case, the charge against him must be dismissed and a verdict of not guilty entered.