HKSAR v. Arif Aqib

CACC 346/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 346 OF 2015

(ON APPEAL FROM DCCC NO. 510 OF 2015)

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J U D G M E N T
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1.On 9 September 2015, the applicant appeared before HH Judge Casewell (“the judge”) in the District Court and pleaded not guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210. The particulars were that the applicant together with three other males robbed a Mr Fong Yu-kuen Alex (“PW1”) of one iPhone at Kwok Shui Road Park, Tsuen Wan, New Territories. After trial, the applicant was convicted of the charge and was sentenced to be detained in a Detention Centre[1]. The applicant now seeks leave to appeal against his conviction.

The prosecution case

2.On 21 February 2015, at sometime after 10:30 pm, while PW1, an off-duty police constable, was on his way to the New Territories South Police Regional Headquarters, he received a telephone call from a friend on his iPhone. Accordingly, he sat down alone on a bench outside the public toilets at Kwok Shui Road Park (“the Park”) to finish his call.

3.While he was talking on his telephone, at about 10:45 pm, he saw four South-Asian males at the entrance B of Tai Wo Hau MTR station which abutted onto the Park.  The males suddenly ran towards PW1 and one of the males, who was later identified as the applicant (D1 at trial), swore at PW1 in Cantonese when he was about 3 to 4 metres away.

4.PW1 thus immediately turned to try and escape.  While running, PW1 felt a blow to the back of his head.  He saw the applicant when he turned around, after which all the males then caught up with him and pulled him to the ground.  PW1’s iPhone was forcefully removed from his left hand by another man.  PW1 again tried to make his escape but was caught.  At that moment, he was able to see the faces of all four males before they eventually fled.  Mr Tung Kam-yuen (“PW2”), a passer-by, witnessed the latter part of the attack and assisted PW1 in making a report to the police. However, PW2 was unable to make any identification.

5.PW1 was sent to Yan Chai Hospital for medical treatment.  Upon medical examination, he was found to have sustained the following injuries in the incident:-

(a) An abrasion over the left side of his forehead and left upper back;

(b) Mild swelling over the nasal bridge and left upper eyelid;

(c) Local scalp redness, a small scalp haematoma and local tenderness over the left occipito-parietal region; and

(d) Tenderness over the left side of the neck.

6.The prosecution case against the applicant relied heavily on PW1’s identification.  However, footage from a closed circuit television (CCTV) installed at Exit B of Tai Wo Hau MTR station was also admitted at trial: it captured the applicant, who wore a white short-sleeved shirt, with several other South-Asian males from about 9:33 pm on the day in question, as well as D1 with several other South-Asian males (including D2 at trial) lingering in the same vicinity from 10:46 pm to 10:49 pm on the same day.  It was an admitted fact that still photographs of the CCTV footage revealed the applicant at the times stated in the captions to the photographs.

7.An identification parade was subsequently held on 3 March 2015.  It was also an admitted fact that PW1 “positively identified D1 to be one of the culprits of his robbery case which happened on 21 February 2015”[2].  The witness confirmed his identification in evidence-in-chief[3]. PW2 was unable to identify either the applicant or D2.

8.It was further an admitted fact that the applicant was conversant with and capable of understanding Cantonese.

The defence case

9.The applicant elected not to testify and the defence case was advanced by way of cross-examination and submission.  PW1’s evidence of his observation on the material day was challenged by the defence as being an unsatisfactory identification because of the insufficient length of time in which PW1 had to observe the men in question.  It was said that PW1 had only looked at the man he said was the applicant on three occasions, each time for only one to two seconds, in difficult circumstances, in a location dimly lit by street lighting.

10.It was submitted on the applicant’s behalf at trial that PW1’s description of the applicant contained no special features other than the general features (such as ethnic origin and height) of the applicant, and there were discrepancies in the prosecution’s evidence.  PW1 had not included any description of the applicant’s clothing, whilst PW2 had described the applicant as wearing a knee-length white-coloured garment.  However, from the CCTV footage, the applicant was seen wearing a white short-sleeved shirt which was not knee-length.  PW2 had also said that the South-Asian males ran towards the public toilet rather than towards Exit B of Tai Wo Hau MTR station as described by PW1.

11.The applicant also complained about the conduct of the identification parade: he wore sports trousers whilst the other participants had worn jeans; and the applicant was the only person wearing a white long-sleeved top which made him stand out.

Reasons for verdict

12.The judge noted that the only issue that needed to be determined was whether the applicant was one of the four South-Asian males who participated in the robbery, which issue was to be determined by the correctness of PW1’s identification.  In his Reasons for Verdict, the judge recognised the need for caution before convicting someone in reliance upon the correctness of identification evidence, since honest but mistaken witnesses could be convincing.  Hence, it was necessary to examine the circumstances of the identification very carefully.

13.The judge considered the following evidence. When PW1 first saw the applicant, the latter was about 3 to 4 metres away swearing at him.  His view of the applicant was unobstructed for 2 to 3 seconds, or 1 to 2 seconds according to cross-examination.  It was night time and there was street lighting.  As PW1 ran away, he felt a blow, whereupon he turned around and saw the applicant.  At that time, he was half a metre away from the applicant and observed him for about 1 second.  Shortly thereafter, all four men caught up with PW1 and he was about half a metre away from the applicant when the latter threw a punch at him.  He could see the applicant’s face for 1 or 2 seconds on this occasion.  The judge considered that PW1 had repeated opportunities to view the applicant from a close distance in sufficient lighting.

14.In cross-examination, PW1 had been asked how sure he was when he identified the applicant.  He answered “90 to 100 per cent”[4].  Reliance was placed on this answer by the defence as suggesting that PW1 was not sure of his identification; and reference was made to appellate authority to the effect that “a witness is either sure or he is not.  One cannot be 60% to 70% sure”[5].  However, the judge considered that the Court’s remark was pertinent to the evidence called in that particular case and one had to assess all the evidence to determine the strength of the identification evidence.  He considered that PW1’s answer had not undermined the correctness of the identification.

15.Furthermore, the judge noted that descriptions by witnesses were usually confined to obvious matters such as height, build and ethnic origin; thus the criticism that the description given by PW1 was insufficiently detailed was unfounded.  As for the complaint that the applicant was dressed differently from the other participants at the identification parade, the judge viewed the CCTV recordings of the parade and formed the view that the differences were not significant: everyone was wearing informal trousers and had a light-coloured top.

16.The discrepancy between PW2’s description of the applicant’s clothing and that shown in the CCTV footage was also considered by the judge.  He noted that PW2 was unable to make an identification of any person, and his observations were not as detailed or as proximate as PW1’s observations.  Accordingly, the judge did not attach much weight to his evidence; certainly, it did not undermine the evidence of PW1.

17.Having considered all of the evidence, in particular the quality and sufficiency of the lighting for the purposes of identification, the rapid repetition of PW1’s opportunities to identify the applicant, the very short distances between PW1 and the applicant during those opportunities, and the support derived from the CCTV footage showing the applicant in the immediate vicinity at the material time, the judge was satisfied so that he was sure of the correctness of PW1’s identification of the applicant as one of his assailants involved in the robbery[6].

Grounds of appeal

18.In his initial ground of appeal, which were attached to his Notice of application for leave to appeal against conviction (Form XI), the applicant stated that:

(a) The judge depended heavily on the statement of PW1 but ignored the statement of PW2;

(b) There was no evidence, including that from the CCTV footage, to indicate that he had participated in a robbery.

The applicant has today in oral submissions further submitted that even if he was in the vicinity of the incident, he was not involved in it and did not, according to the CCTV footage, make any attempt to run away afterwards, which is consistent with him not being one of the culprits.

The respondent’s reply

19.Ms Catherine Ko, for the respondent, submits that the entire case, as the judge had explained, hinged on the correctness of the identification evidence.  In the present case, PW1 was in the better position to give such evidence because of his three close encounters with the applicant.  By contrast, PW2 was only able to observe the latter part of the attack for a brief moment, which explained his inability to make any identification. Hence, in convicting the applicant, the judge was entitled and correct to rely on the identification evidence of PW1, supported as it was by the CCTV footage.

20.She submits that the judge had properly considered the circumstances of the identification and highlighted its potential weaknesses; but, having done so, and having looked for and found supporting evidence of the correctness of the identification, he was entitled to find the quality of PW1’s identification evidence of the applicant clear and reliable.

Consideration

21.It is clear from the way the judge addressed and dealt with the various circumstances bearing on PW1’s identification of the applicant that he must have had in mind the general concerns about identification evidence expressed in R v Turnbull and others [1977] 1 QB 224.  It is, however, worth remembering that the Court in Turnbull was in fact dealing with three different cases in a consolidated appeal.  Having set out the principles which should govern judges and juries in cases which depend wholly or substantially on identification evidence, the Court said, at 229:

“When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal …”

However, the Court added:

“unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification…” (Emphasis supplied)

A little later, in explaining what might amount to supporting evidence, the Court said:

“In our judgment odd coincidences can, if unexplained, be supporting evidence.”

22.When the Court then proceeded to examine the facts in the three individual appeals before it, the Court found, at 234, that the quality of the identification in Turnbull’s case “could not be said to have been good”, but there was supporting evidence which clearly went “to support the correctness of [the officer’s] identification of Turnbull”.  The appeal was accordingly dismissed.

23.In the second appeal, concerning a man called Roberts, the Court found, at 236, that:

“…the quality of the identifications was not good, indeed there were notable weaknesses in it and there was no evidence capable of supporting the identifications made.” (Emphasis supplied)

The Court accordingly held the verdict to be unsafe and unsatisfactory and allowed Roberts’s appeal.

24.In the third appeal, involving a man called Whitby, the Court found, at 238:

“Clearly the quality of the identifications in this case was very poor.”

But it then immediately went on to ask:

“Was there any supporting evidence?”

Having then assessed each piece of potential supporting evidence, the Court concluded, at 239:

“In the result we think that the quality of the identification evidence in (Whitby’s) case was very poor and that there was no evidence of the nature to which we have referred put before the jury which could be said to support the correctness of the identifications.”

Whitby’s appeal was accordingly allowed.

25.Thus, it is clear that if there is a weakness in the identification evidence in a particular case, judges are enjoined to examine whether there is any supporting evidence capable of supporting the correctness of the identification.  The Court in Turnbull also said, at 230, that:

“The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.”

26.In the present case, the judge addressed the issue of PW1’s “90 to 100 per cent” certainty about his identification of the applicant but found that there was other evidence from CCTV footage placing the applicant, in the company of other South Asian males, shortly before and immediately after the attack on PW1.  The judge specifically referred to this evidence as supportive of PW1’s identification.  He found[7]:

“There is support in the fact that the 1^st 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 1^st defendant’s (sic) identification of him.”

[Clearly, the last sentence in the above quotation was a slip of the tongue and the judge meant to refer to PW1’s identification, not the 1^st defendant’s identification, of the applicant].

27.I do not at this stage accept that the judge’s finding in relation to PW1’s identification of the applicant as one of the robbers affords a reasonably arguable ground of appeal, particularly when the judge has obviously and carefully evaluated the circumstances of PW1’s identification, and when the applicant chose not to give evidence to explain the coincidence of his being in such close proximity to where the robbery took place, with other South-Asian males, at the material time.  As the Court in Turnbull said, at 230:

“…odd coincidences can, if unexplained, be supporting evidence.”

Conclusion

28.I can at this stage see no arguable ground of appeal against conviction and the application for leave must be refused.  The applicant is duly advised of his right to renew his application for leave to appeal against conviction to the Court of Appeal and the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Ms Catherine Ko SADPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] The applicant, as D1 in the trial, was convicted: D2 was acquitted.  The other two males were not arrested/arrested.

[2] Appeal Bundle, p 6, para 3

[3] Appeal Bundle, p 37S

[4] Appeal Bundle, p 44B

[5] R v Yip Moon Ting and Another (unrep., CACC 302/1984, 13 November 1984), at p 6

[6] As a side note, D2 was acquitted as the judge held that the observation made by PW1 against D2 was a fleeting glimpse.  PW1’s observation of D2 was limited to about one second; his description of D2 was sparse and can be said to be inaccurate in places; salient features of D2 were not picked up; and he put his certainty of identification of D2 at “80 to 90 per cent”

[7] Appeal Bundle, p 16T – 17B