HKSAR v. Tagao Saudee Abad

CACC 366/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 366 OF 2015

(ON APPEAL FROM DCCC 195 OF 2015)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.The appellant was tried in the District Court by Judge Casewell (“the judge”) on two charges of conspiracy. He was the third defendant on the charge sheet and in both charges he was alleged to have conspired with the other two defendants and with a person by the name of Abdelaziz Walid and with other persons unknown. In both charges the period of the conspiracy was between 10 July 2014 and 12 August 2014. The two charges were:

(a) conspiracy to make false instruments, namely false credit cards, contrary to sections 71, 159A and 159C of the Crimes Ordinance, Cap 200 (1^st charge), and

(b) conspiracy to use false instruments, namely the credit cards, which were, and which he and his co-conspirators knew or believed to be false, with the intention of inducing somebody to accept them as genuine, and because of so accepting them to do or not to do some act to his own or any other person’s prejudice, contrary to sections 73, 159A and 159C of the Crimes Ordinance (2^nd charge).

2.On 22 September 2015 the appellant was convicted after trial of these two charges and was sentenced on each charge to 3 years’ imprisonment with the two sentences ordered by the judge to be served concurrently.

3.On 22 October 2015 the appellant filed a Notice of Application for Leave to Appeal against conviction (Form XI).  On 14 September 2016 Lunn VP granted him leave to appeal.

4.At the hearing of the application we reserved our judgment which we said we would hand down at a later date.  This we now do.

The prosecution case

5.The appellant had been employed as a waiter at the “Play” Club in Central since 25 August 2011 and had been promoted to senior supervisor in March 2014.  His responsibilities included receiving payment from customers of the club in either cash or credit card form and passing the payments to the club cashier. 

6.D2 and Abdelaziz Walid, the unindicted co-conspirator particularized in the two charges, had both been employed as public relations assistant managers at “Play” Club but they had left their employment on 28 February 2014 and 12 August 2014 respectively.

7.The prosecution case was that the appellant and his co‑conspirators conspired to obtain genuine credit card details which they would then copy onto stolen credit cards.  They would then use the genuine stolen credit cards encoded with the genuine data of other cardholders to purchase items they could resell.

8.On 15 July 2014 a fraudulent credit card transaction took place at the Apple Store in Causeway Bay (“the Apple Store”).  The prosecution alleged that the credit card data encoded onto the magnetic strip on the back of the card that was used to effect this fraudulent transaction had been sent by the appellant from his mobile phone to D2’s mobile phone using the WhatsApp messaging application.

9.The CCTV recording of the inside of the Apple Store at the time this fraudulent credit card transaction was taking place was seized and produced as an exhibit.  In it there could be seen a rather dark-skinned person in a distinctive red T-shirt wandering somewhat aimlessly around the store.  A police officer, DPC 7907 Ting Ho Yin (PW2), the arresting and handling officer of the appellant, identified this person as the appellant.  The judge, after viewing the recording and observing the appellant before him, also concluded that the person in the CCTV recording was the appellant.

10.On 12 August 2014 at around 2:10 pm D1 purchased a notebook computer valued at HK$18,888 from Chung Yuen Electrical Company (“Chung Yuen”) at Times Square.  He used a genuine American Express card issued in Hong Kong to a cardholder by the name of OLIVER ARTHEY to pay for the computer.  This card became Exhibit P1. Unknown to the staff who processed this transaction, the electronic data encoded on the magnetic strip on the back of this card related to another cardholder.  D1 was to return after 4 pm to pick up the computer.

11.After leaving Chung Yuen D1 went to a “Fortress” shop in Causeway Bay.  There he attempted to use this same card to purchase another notebook computer valued at HK$15,288.00.  However, between the Chung Yuen transaction and the Fortress transaction the electronic data on the back of the card was changed and data relating to yet another cardholder was transferred onto the magnetic strip of P1.  D1 left P1 in the shop without concluding the transaction when the senior sales adviser became suspicious of the credit card. 

12.Later that day D1 was arrested at Chung Yuen for the offence of obtaining property by deception when he returned to the shop to collect the computer which he had purchased earlier. 

13.Subsequently, the police seized P1 from the Fortress shop and when this card was examined by a forensic scientist of the Hong Kong Government Laboratory it was discovered that the card body of P1 was genuine.  Later enquiries revealed that the cardholder of P1 had used it at the “Play” Club in or about March 2013 and had subsequently reported it lost to the American Express Card Centre.

14.D2 was also arrested on 12 August 2014.  According to the prosecution opening he was in the vicinity of the Chung Yuen shop and was identified after questioning by the police of D1. 

15.The next day D2’s residence was searched and amongst the items seized from his residence were two magnetic card readers with USB cable, Exhibits P21 and P22, and two notebook computers, Exhibits P20 and P23.  P21 was confirmed to be a device which reads data from magnetic cards to computers and writes data in computers to magnetic cards through a utility programme found in P20, whilst P22 was a magnetic card reader capable of reading and storing data from magnetic cards.  7 blank cards, each with a magnetic strip, were also seized from the premises as were two Visa cards, both of which had been tampered with, and one of which, Exhibit P16, belonged to the appellant.

16.The police seized D2’s phone and examined his WhatsApp account.  The police found the appellant’s telephone number stored in D2’s contact list and saw that some credit card data had been sent from the appellant’s phone number to D2’s phone.  The contents of the WhatsApp messages that were sent between D2’s phone and the appellant’s phone were extracted by a computer expert, who was PW4 at trial, from the WhatsApp account on the phone of D2.  The images of the messages between the two WhatsApp accounts from 15 July 2014 to 12 August 2014 were produced as evidence of the conspiracies (“the WhatsApp conversations”).

17.PW4, the prosecution’s computer expert, was cross-examined on the possibility of the appellant’s phone having been tampered with so that an unknown third party could have shared his WhatsApp account, using it to have conversations with D2 without the appellant knowing and without a record of these conversation being stored on the appellant’s phone.  PW4 expressed the opinion, based upon what appeared on the WhatsApp official website, that one WhatsApp account could not normally appear simultaneously on two devices.

18.In the course of being cross-examined, PW4 participated in a demonstration which involved the use of three android mobile phones.  The demonstration showed that one WhatsApp account could be installed on two devices so that when they had conversations with the third device, the third device would record all the conversations whereas the two devices with the same WhatsApp account would show only their own conversations with the third device.  PW4 was of the view that this was possible because the two devices were set up using “titanium backup software” which allows the installation of the same WhatsApp account on two phones. 

19.The appellant’s phone, Exhibit P96, was an iPhone, rather than an android phone, but PW4 said that this type of software could be installed on an iPhone provided that the phone was “jail broken”, by which he meant that the original IOS settings of the phone were changed.  He said that when he examined P96 it was not “jail broken” and it had no relevant software contained in it. 

20.It was the prosecution case that the evidence that the appellant was in the Apple Store at the same time that a fraudulent transaction was taking place there, had engaged in conspiratorial conversations with D2 via the WhatsApp messaging application and that his Visa card was found in D2’s residence, together with the other circumstantial evidence, provided compelling evidence to prove beyond reasonable doubt that the appellant was a participant in the alleged conspiracies.

The defence case

21.The appellant did not testify in his defence, but he did produce a letter establishing his good character.  To rebut the prosecution evidence he relied on the explanations he gave to the police when being interviewed under caution.  He did not deny that the two charged conspiracies existed and he did not deny that the WhatsApp conversations between his and D2’s phone evidenced the involvement of others in those conspiracies.  But he did deny that he was a party to these conversations and he did deny that he was the person in the Apple Store CCTV recording.  

22.The defence case at trial was that there was no evidence to show that the appellant was actually a participant in the relevant WhatsApp conversations, only that his phone and his WhatsApp account had been used in these conversations. 

23.In his cautioned interview the appellant claimed that Walid or another person had sent the WhatsApp messages when they had borrowed his phone. He said they knew the password to his phone and would use his phone to transmit WhatsApp messages and when they had finished they would delete the messages.  He also said that he had lost his Visa card, P16, but did not report its loss as a new card had already been mailed to him.

24.The defence submitted that the prosecution could not exclude the possibility of a third party using his phone and participating in the incriminating WhatsApp conversations without his knowledge and then deleting the messages to avoid detection.  Nor could the prosecution exclude the possibility that a third party had tampered with the appellant’s phone to create a shared account with another phone.  In this alternative scenario the relevant conversations may never have been present on the appellant’s phone. 

25.In respect of the appellant’s Visa card, P16, the defence argued that the possibility that D2 had stolen it could not be excluded. 

26.In respect of the Apple Store CCTV footage the defence position was that it could not provide reliable identification of the appellant’s presence at the Apple Store on 15 July 2014 and that the police officer, PW2, had wrongfully identified the person in the CCTV footage as the appellant. 

The judge’s Reasons for Verdict

27.The judge identified the factual issues at trial as being, (i) whether the appellant could be proved to have sent the messages purporting to be from him to D2’s WhatsApp, and (ii) whether he could be identified as being the person shown in the Apple Store CCTV on 15 July.  The legal issue was simply whether the appellant was a member of these two conspiracies, whose existence the defence did not dispute.

28.He noted that the prosecution case was largely established by admitted facts and uncontested evidence.  He further noted that the evidence relied upon by the prosecution was circumstantial evidence, and the inference to be drawn against the appellant must be the only irresistible inference.

29.The judge accepted that there were three questions he had to resolve and these were interrelated.  The first was whether the appellant was the author of the WhatsApp conversations, and if so whether those conversations supported the case that the appellant was a participant of the conspiracies.  The second was whether the identification of the appellant as being the person shown in the CCTV footage from the Apple Store when P1 was being used was reliable proof of the appellant’s presence there.  The third question was whether the finding of the appellant’s Visa card, P16, at D2’s premises provided probative evidence of the appellant’s involvement in the conspiracies.  He ultimately answered all three questions in the affirmative.

The 1^st question: The WhatsApp messages

30.The judge noted from the demonstration in court that it was possible that the appellant’s WhatsApp account could have been duplicated onto another phone if both phones had downloaded an application called titanium backup.  The demonstration proved that when this application is installed on two android phones then the same WhatsApp account can appear on both of them.  However, the judge said there was evidence that ruled out such a possibility having occurred in the present case. 

31.As to whether a third party had accessed the appellant’s phone and used his WhatsApp account, and after doing so deleted the messages sent, the judge noted:

(a) D2’s WhatsApp conversations were with a person called “Saudee”, which was part of the appellant’s name, at the appellant’s telephone number;

(b) in the conversations there are references by D2 to Walid in the third person and so it could not be Walid who was using the appellant’s phone to message D2; and

(c) the person messaging through the appellant’s phone used a Tagalog expression and the appellant was a Tagalog speaker. 

32.Of these matters the judge said:

“40. I consider these factors are compelling evidence to show in fact that the 3^rd defendant is a participant in the conversation exhibited in P91. However, this evidence does not stand alone. There are other matters that I consider with it.” (Emphasis added)

33.The “other matters” that the judge referred to as showing that the appellant was a participant in the WhatsApp conversations were twofold.  The first was that the initial WhatsApp conversation in the name of Saudee involved the despatch of encoded credit card data which was found on P1 and which was used firstly at the Apple Store at Causeway Bay at about 9:30 pm on 15 July 2014 and secondly on 12 August 2014.  The second of the “other matters” was the presence of the appellant in the Apple Store at about 9:30 pm on 15 July 2014 when the fraudulent transaction was taking place.  The judge said:

“41. The initial conversation involves the despatch by the WhatsApp application in the name of Saudee of an image containing encoded credit card data which was eventually found on the Olly Arthey card used on 15 July 2014 and also by the 1st defendant on 12 August 2014. The initial use was at the Apple Store in Causeway Bay at about 9:30 on 15 July 2014, where the 3rd defendant was identified as being recorded on the CCTV in that store. The identification was made by the second prosecution witness. However, as part of the court proceedings, the CCTV recording was played for his benefit and for the court’s benefit.”

The 2^nd question: The identification of the appellant in the CCTV footage

34.When describing the evidential value of the CCTV as proving the presence of the appellant in the Apple Store the judge said:

“42. Having seen the recording, I can say that the CCTV clearly shows the 3rd defendant is present. The 3rd defendant is distinctive in his appearance. Certainly the identification made by the second prosecution witness is a reliable identification. The image is clear enough and lasts for a sufficiently lengthy time for anyone seeing it and then seeing the 3rd defendant to be sure that the CCTV recording shows the 3rd defendant in that store at that time.

43. I am sure as a fact of the 3rd defendant’s presence in the Apple Store at the time when the Olly Arthey card has been used. This is again compelling evidence to show involvement in the conspiracy. It is in this case unexplained. It would be too much of a coincidence for the information to have been sent from a phone number purporting to be the defendant’s and then the defendant to appear when that information is being used on the forged card.

44. These two pieces of evidence, taken together - that is, the recording in P91 and the CCTV recording – are, I find, compelling evidence that Saudee, D3, sent the information using the Olly Arthey card, and that the 3^rd defendant is the person ‘Saudee’ referenced to in the 2^nd defendant’s phone contacts.  After all, it is his phone number.  The obvious conclusion would be it is his message.  There is no other evidence that points in any other direction or creates any reasonable doubt that the 3^rd defendant is in fact the author of those messages.”  [Italics added.]

The 3^rd question: Finding the appellant’s Visa card in D2’s premises

35.The judge found that the fact that the appellant’s card, P16, was in D2’s possession, and that the appellant had not reported its loss, was further evidence of the appellant’s involvement.  He said:

“46. In addition to this, the 3^rd defendant’s Visa card is with the 2^nd defendant, and there is evidence that the chip had been tampered with. The 3^rd defendant said the card had been lost and had not been reported as lost, as a new card had already been mailed to him.

47. However, I find the presence of the 3^rd defendant’s card is again evidence of the 3^rd defendant’s involvement with the 2^nd defendant and an involvement in those conspiracies.”

36.The judge found that the three pieces of evidence, namely the contents of the WhatsApp conversations, the presence of the appellant in the Apple Store and the appellant’s Visa card being found in D2’s premises, together provided an irresistible inference that the appellant was the author of the messages in the WhatsApp conversations; and that provided irresistible evidence of the appellant’s participation in the conspiracies.  He rejected in their entirety the explanations advanced by the appellant in his cautioned statement.

The Perfected Grounds of Appeal Against Conviction

37.There is one substantive ground of appeal, namely that the judge erred in relying on the CCTV footage in finding that the appellant was part of the conspiracies, because:

(a) the CCTV footage did not reliably show the appellant’s appearance; and

(b) even if the CCTV reliably showed his appearance, it did not provide conclusive evidence to show what the appellant was doing and who he was with at the material time.

38.Ms Manyi Tsang, counsel for the appellant, submitted that the CCTV footage was a vital piece of evidence which the judge repeatedly took into account in reaching his verdict.  The judge used the identification of the appellant as being present in the Apple Store as inter-related to the other issues he had to decide and specifically as being linked to the issue of whether the appellant was Saudee in the WhatsApp messages.  By relying on it to conclude that the appellant was in fact Saudee in the WhatsApp conversations he was able to go on to find that the appellant was part of the conspiracies.  She argued that without the identification evidence the prosecution was not able to link the appellant to the conversations and so without reliable evidence of identification, the conviction was not safe. 

39.Furthermore, in respect of PW2’s evidence, Ms Tsang noted that:

(a) PW2 had dealt with the appellant on 15 September 2014, 2 months after the CCTV footage was recorded, and gave evidence identifying him on the tape almost a year later, on 27 August 2015;

(b) PW2 did not give any evidence on the appearance of the appellant on 15 September 2014, nor did he compare his then appearance to his appearance during trial or on the CCTV footage; and

(c) PW2 did not explain why he could identify the man in the footage as the appellant.

40.Given these matters, Ms Tsang submitted that PW2’s evidence should not have been relied on by the judge.  Ms Tsang referred the court to the judgment of the Court of Appeal in HKSAR v Ng Siu Kam[1] and argued that the judge should have directed himself on the deficiencies apparent in the CCTV footage that went to its probative value as a means of identifying the appellant.  She argued it was incumbent upon him to identify which part of the footage was of adequate quality to make an identification and to have regard to the criticisms of the quality of the footage.  In this respect she noted that the angle of the footage meant that most of the images of the person said to be the appellant were of his profile, the images of his face were blurred and no still photos were produced from the CCTV footage.

41.Ms Tsang also took issue with the judge’s description of the appellant as being “distinctive in appearance”.  The judge did not explain what it was that he found distinctive about the appellant’s appearance and, Ms Tsang submitted, there is nothing particularly distinctive about the appearance of either the appellant or the person seen on the CCTV footage.  Furthermore, the face of the person on the CCTV footage is not clearly captured and cannot be used as a basis for identification.  There being no distinctive scar or tattoo on the person in the CCTV footage there was no basis for saying that that person is the appellant.

42.Finally, it was said that the prosecution presented its case and the trial was conducted on the basis of PW2’s evidence. The prosecutor did not invite the judge to form his own view from the footage as to whether the person in it is the appellant and then to act on that view in reaching his verdict. Consequently, neither counsel involved in the trial were aware the judge intended to form his own view of the footage and the first time they became aware he had done so was when he delivered his Reasons for Verdict.  In these circumstances, the defence were not afforded an opportunity to address the judge on whether he should adopt such a course and, if he should decide to do so, how he should direct himself.

The respondent’s submissions

43.Ms Irene Fan, Senior Public Prosecutor, submitted on behalf of the respondent that the Reasons for Verdict showed that the judge did not convict the appellant merely because he was present at the Apple Store at the material time. 

44.In respect of the identification, she submitted that even if the judge was not entitled to place as much weight as he did on the CCTV recordings, the man on the CCTV footage at least bore a certain resemblance to the appellant.  Ms Fan highlighted the following facts:

(a) the WhatsApp messages, which contained credit card data used in the transaction at the Apple Store on 15 July 2014, were sent by the appellant to D2;

(b) a person who bore some resemblance to the appellant was present in the Apple Store when the credit card was used; and

(c) the appellant’s Visa card was with D2 and the chip of the card had been tampered with.

45.She submitted that the cumulative effect of all this evidence was to provide compelling evidence that the appellant was involved in the conspiracies.  It was submitted that it would be too much of a coincidence for information to have been sent from a phone number purporting to be the appellant’s and then a person with a resemblance to the appellant appearing at the Apple Store when that information was being used on the fraudulent card. The only compelling and irresistible inference was that the appellant was involved in the conspiracy alleged.

46.The respondent submitted that the key issue was whether the appellant was the person Saudee who was engaging in WhatsApp conversations with D2.  The judge found that he was and in so finding relied on the content of the messages to find that Saudee could not be the person Walid and that Saudee was a Tagalog speaker.  Once that finding was made then the contents of the WhatsApp messages provided a sufficient evidential basis for the conviction.   

Discussion

47.There are two issues relevant to this appeal.  The first is whether the judge was entitled to place reliance on the evidence of the CCTV recording as proof that the appellant was in the Apple Store at the time the fraudulent credit card transaction was taking place.  The evidence that he was in the Apple Store came from PW2’s recognition evidence and from the judge’s own determination, after viewing the CCTV recording and observing the appellant before him, that the person whose image was captured by the Apple Store CCTV camera is the appellant. 

48.The second issue arises only if the judge was not entitled to place reliance on this evidence and is whether the judge’s improper reliance on this evidence is fatal to the safety of the conviction.  The second issue requires an analysis of the judges Reason’s for Verdict in order to assess the importance which he placed on this evidence and the role it played in his determination that the appellant was a participant in both conspiracies.

49.In dealing with the first issue it must be emphasized that it is not enough to say that the person may bear some resemblance to the appellant, as Ms Fan submitted, for the CCTV recording only has relevance if it can be shown that the person in it is the appellant.  The relevant fact is that the appellant is present in the Apple Store when the fraudulent transaction is taking place. Resemblance to the person in the CCTV might be relevant if the CCTV recording allowed of an inference, on its own or with other evidence, that the appellant was present in the shop.  But that is not the case here.  The CCTV recording was the only evidence of the appellant being present and, for reasons we set out below, we are of the view that the resemblance is not such that it can be safely inferred it must be the appellant.  The issue is a stark one; the CCTV footage can either prove the appellant was there or it cannot.

50.Once issues of relevance and authenticity in respect of the recording are resolved and the recording is ruled to be prima facie admissible then the issue becomes the weight to be attached to it for the purpose for which it is being produced.[2]  Here that purpose was to prove the presence of the appellant in the Apple Store at a particular time. 

51.When crime scene photographs or a video are being produced in order to prove that a defendant is pictured in the video or photos, and was therefore present at the crime scene, proof that the person in the photos or video is the defendant was said by the Court of Appeal of England and Wales in Attorney General’s Reference (No 2 of 2002) to be capable of being achieved in four ways. Rose LJ, in delivering the opinion of the court, said:

“In our judgment, on the authorities, there are, as it seems to us at least four circumstances in which, subject to this judicial discretion to exclude, evidence is admissible to show and, subject to appropriate directions in the summing-up, a jury can be invited to conclude that the defendant committed the offence on the basis of a photographic image from the scene of the crime:

(i) where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock (Dodson and Williams);

(ii) where a witness knows the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he can give evidence of this (Fowden and White, Kajala v Noble, Grimer, Caldwell and Dixon and Blenkinsop); and this may be so even if the photographic image is no longer available for the jury (Taylor v Chief Constable of Chester);

(iii) where a witness who does not know the defendant spends substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based on a comparison between those images and a reasonably contemporary photograph of the defendant, provided that the images and the photograph are available to the jury (Clare and Peach);

(iv) a suitably qualified expert with facial mapping skills can give opinion evidence of identification based on a comparison between images from the scene, (whether expertly enhanced or not) and a reasonably contemporary photograph of the defendant, provided the images and the photograph are available for the jury (R v Stockwell (1993) 97 Cr App R 260, R v Clarke [1995] 2 Cr App R 425 and R v Hookway [1999] Crim LR 750).”

52.The first and second methods of proof have been used in Hong Kong but we are not aware of any case where the third and fourth methods of proof have been considered by our appellate courts.

53.Where recognition evidence is relied on there will not usually be any admissibility issues other than relevance and authenticity of the tape.  Once these are satisfied the only issue will usually be the weight to be given to the evidence.  However, where jury comparison is the means of identification, then the recording or photo must be suitable, in terms of its clarity and what it shows of the person to be identified, of serving its purpose of being a tool for identifying the defendant.  If it is incapable of performing this role then an issue of admissibility may well arise because it may no longer be relevant evidence.

54.In the case of the appellant, the prosecution relied on the second method of proof above, by means of PW2, but uninvited, the judge, on his own initiative, made use of the first method of proof above.

55.PW2’s evidence of recognition arose from his previous association with the appellant as his arresting and handling officer.  But that association was relatively brief and rather dated.  It amounted to a few hours, perhaps 4-5, on a day almost a year previously.  There was no evidence that PW2 had encountered the appellant in the intervening period.  By no stretch of the imagination could PW2 be said to have had a close familiarity with the appellant.  That is not to say that this limited association could not be a sufficient basis for a recognition identification if the appellant was standing in front of him, as in a courtroom.  But it is a much more questionable foundation for a recognition identification where the opportunity to observe is far less ideal. 

56.In determining the weight to be given to PW2’s evidence it is necessary to have regard to both the quality of the CCTV recording as a visual opportunity to identify the red T-shirted person in it and the reasons why PW2 says he is able to identify this person as being the appellant.  On the question of the quality of the recording we are in as good a position as the judge to assess it and provide an answer. 

57.There is no doubt that the person in the red T-shirt is readily visible on the recording and, by virtue of his red T-shirt, easily distinguishable from other persons in the Apple Store.  But the question is whether it is possible to say who that person is?

58.Having carefully viewed that tape we are satisfied that it does not provide a sufficiently clear image of the face of the red T-shirted person to allow a facial recognition of this person as the appellant.  But, of course, there are other means by which a person may be identified and simply because the image of the person’s face is not clear does not mean that it becomes impossible to identify the person.  For example, it may be that a person’s clothing is particularly distinctive because of its colour, type, design, patterns or markings and it is proven that the defendant possesses such clothing.  It may be that the defendant possesses unusual bodily features, wears particular jewellery or walks with a special gait.  A witness who knows a defendant well may be able to point to features about him which make him readily recognizable to the witness.

59.It is now necessary to turn to PW2’s testimony and see how he explained the basis of his ability to recognise the appellant.  It was as follows:

“VIDEO PLAYBACK

Q. Having watched that exhibit, are you able to say whether you recognise anyone?

A. Recognise.

Q. Are you able to give any description of what you saw so that we can know who or what you're referring to?

A. In the video clip we are talking about 9.25 in the evening. I saw that the bottom right of the video screen that there was a person who was wearing a red short-sleeve T-shirt and a pair of blue jeans and a pair of shoes in light brown colour, short black hair, relatively fat built and with relatively tan skin colour. I recognised that this male was the defendant.

Q. Can we just perhaps look at that again at 21:25 and 11 seconds.

VIDEO PLAYBACK

Q. Do you recognise anyone there?

A. Recognise.

Q. Is that the person you're referring to, the defendant?

A. Correct.

Q. And does he make in fact three appearances in that clip of CCTV?

A. Here is here, once, and then later on, later on he walks away to the place at the top right of the screen and then he came back and he appeared for the second time. Later on he went back to the top right part of the screen and then he appeared again in the top right part.” (Emphasis added.)

60.Although this evidence was challenged by the defence the cross‑examination of PW2 was sparse indeed with no examination of the basis on which this identification was being made.  The only questions asked of PW2 were the following:

“Q. Officer, I put it to you that the person that you identified on the video just now, the man in the red shirt, was not the defendant, was not D3?

A. I disagree.

Q. I put to you that you are in fact mistaken?

A. I disagree.

Q. The person that you identified on the video was just a person who looked similar to the defendant?

A. I disagree.”

61.Given the limited and dated association with the appellant that is the basis of PW2’s recognition identification and given the quality of the CCTV recording, PW2’s unexplained assertion that he was able to recognize the person in the tape as the appellant could not carry any weight.  It did not provide the judge with any objective means by which he could assess its reliability. He was left with nothing more than a mere assertion by a police officer who, being the arresting officer, could hardly be described as an independent, objective observer.  In reality, PW2 was in no better position than the judge who had the opportunity to observe the appellant over the course of the trial.

62.Given:

(i) PW2’s very limited and dated association with the appellant that was the basis of his recognition evidence;

(ii) the bare, declaratory assertiveness of PW2’s purported recognition of the appellant; and

(iii) PW2’s lack of independence as a witness,

we are not persuaded that the judge could give any weight to his evidence.

63.However, as it turned out the judge did not rely solely on PW2’s evidence for the purpose of reaching his verdict.  In the present case it is not particularly clear whether the judge formed his own view on whether the appellant is the person in the CCTV recording in order to determine the reliability of PW2’s testimony or whether he formed this view in substitution for PW2’s testimony.  He would appear to be using his own view both to confirm PW2’s testimony as reliable and to supplement it.

64.That a tribunal of fact may perform its own identification exercise and reach a view on whether the defendant is the person in the video recording or photo is now settled law.  The source of the legal authority for this means of identification is the decision of Court of Appeal of England and Wales in R v Dodson & Williams[3] which was subsequently followed in R v Downey[4]and more recently in the Attorney General’s Reference (No 2 of 2002) case.  In Hong Kong the English decisions were followed in HKSAR v Lau Tat Keung Milky[5] and the Ng Siu Kam case referred to us by Ms Tsang.

65.When a jury has regard to video recordings or photos in a case where the prosecution has called recognition evidence, it is invited to do so for the purpose of determining the reliability of the recognition evidence.  In so doing it inevitably forms its own view on whether the defendant is or could be the person in the video or photo.  After looking at the videos or photos and observing the defendant the jury may form the view that the image they see could be that of the defendant and then after hearing the recognition evidence they may become sure of that fact.  Where there is no recognition evidence then the jury has to be sure of the fact simply from their own visual comparison of the video recording or photo with the appearance of the defendant.

66.The distinction between the two situations is important because it affects the directions that may have to be given to the jury.  In the former situation, where the jury is assessing the reliability of recognition evidence it may be that no full Turnbull[6] direction is necessary.  This was the situation in the Ng Siu Kam case where the Court of Appeal held:

“There was no additional requirement for any form of Turnbull warning.”[7]

67.However, we do not take that as an absolute statement of the legal position.  Whether a legal direction is necessary and the scope of that legal direction will ultimately depend on the factual circumstances of each case.

68.In the second situation some form of Turnbull direction may be necessary to at least alert the jury to the dangers of mistaken identification. It is not possible to lay down an immutable requirement to be applied in every case and we can do no better than to commend the guidance provided in Dodson and Williams by Watkins LJ at pages 228-229.  Watkins LJ described the task of the jury as being called upon “to do no more than the average person in domestic, social and other situations does from time to time, namely to say whether he is sure that a person shown in a photograph is the person he is then looking at or who he has seen recently.”  Watkins LJ then went on to say:

“It is, however, imperative that a jury is warned by a judge in summing-up of the perils of deciding whether by this means alone or with some form of supporting evidence a defendant has committed the crime alleged. According to the quality of photographs, change of appearance in a defendant and other considerations which may arise in a trial, the jury’s task may be rendered difficult or simple in bringing about a decision either in favour or against a defendant. So long as the jury having been brought face to face with these perils are firmly directed that to convict they must be sure that the man in the dock is the man in the photograph, we envisage no injustice arising from this manner of evaluating evidenc with the aid of what the jurors’ eyes tell them is a fact which they are sure exists.

What are the perils which the jury should be told to beware of? The recorder we think in the admirable passage of his summing-up we have quoted explained them more than adequately for the purpose of the present case.  We do not think the provision by us of a formula or series of guidelines upon which a direction by a judge upon this matter should always be based would be helpful.  Evidence of this kind is relatively novel.  What is of the utmost importance with regard to it, it seems to us, is that the quality of the photographs, the extent of the exposure of the facial features of the person photographed, evidence, or the absence of it, of a change in a defendant’s appearance and the opportunity a jury has to look at a defendant in the dock and over what period of time are factors, among other matters of relevance is this context in a particular case, which the jury must receive guidance upon from the judge when he directs them as to how they should approach the task of resolving this crucial issue.”        

69.In the present case, the tribunal of fact is a judicial officer who is required to provide reasons for his verdict.  In those Reasons for Verdict he is required to set out the important directions he gives himself on the law and the basis of any findings that he makes that are adverse to the defendant. Here, he made a finding that the person whose image is captured on the CCTV recording is the image of the appellant.  Yet, he made this finding on the basis of a CCTV recording with obvious deficiencies.  In this situation it was incumbent on him to explain why he was able to identify the appellant as the person in the video.  This he did not do.  What he did do was to place great emphasis on how distinctive the appellant was in his appearance.  However, he did not condescend to provide any detail of what was distinctive.  He did not say what it was that made the person identifiable as the appellant.  That he was obliged to do.

70.However, quite apart from this inadequacy in his Reasons for Verdict, there is the issue of the judge performing this fact finding exercise uninvited by the prosecutor and without the knowledge of defence counsel. 

71.This irregularity impacts on the fairness of the trial.  It deprived the appellant, through his counsel, of the opportunity to address the judge on an important piece of evidence on which the judge relied for the purpose of reaching his verdict.  The defence counsel was entitled to address the judge on the dangers of embarking on such an exercise and the risks of making a mistaken identification.  She was deprived of the opportunity of submitting to the judge on how he should approach his task and what directions of the kind referred to by Watkins LJ, he should give himself.

72.However, as we have said, we are satisfied that the CCTV footage does not allow of a facial identification of the appellant.  In the absence of other evidence, such as unique features of the appellant, whether such features are peculiarities of his person or peculiarities of his dress or his gait, it is not possible to conclude that the CCTV, by itself, allows of the identification of the appellant as being the person in the red T-shirt.

73.Having determined that the judge was wrong both to find PW2’s recognition evidence reliable and from his own viewing of the CCTV recording to find that it “clearly shows the 3^rd defendant in that store at that time”, it now becomes necessary to assess the impact of these errors on the safety of the conviction.

74.The key issue in the case was whether the appellant was a participant in the WhatsApp communications and once it was proven that he was, then it necessarily followed that the appellant was a member of the first conspiracy to make false instruments.  Ms Fan argues there was an abundance of evidence, apart from the possible presence of the appellant in the Apple Store when a fraudulent transaction with a credit card was taking place, to prove that he was Saudee in the WhatsApp messages. 

75.On this issue Ms Fan may well be right but that is not how the judge approached the matter.  He was not willing to find the appellant was Saudee without the support of other evidence. 

76.This other evidence was the content of the WhatsApp conversations, and the CCTV recording of the Apple Store.  Supported by these two pieces of evidence the judge had no difficulty in finding that the only and irresistible inference was that the appellant was the author of the messages. 

77.The judge’s finding that the first piece of evidence supported the inference that the appellant was the other party to the WhatsApp messages was a finding clearly available to him.  The conversations were with the appellant’s phone, with a person using his name and on occasion using his native language. Having rejected the exculpatory explanations of the appellant in his video record of interview there was no evidence of anyone else having access to the phone.  In these circumstances the content of the messages supported the inference that the appellant was the person sending and receiving them. 

78.However, the same cannot be said of the CCTV recording.

79.The judge may well have felt, and justifiably so, that, as important as the WhatsApp messages were, they could not, on their own, prove participation in the second conspiracy, the conspiracy to use false instruments.

80.Whatever may have been the thinking behind the judge’s reasoning we are left with verdicts which are inextricably dependent on an erroneous finding of fact.

81.Subject to the application of the proviso the appeal must be allowed and the convictions quashed.

The proviso

82.Section 83(1) of the Criminal Procedure Ordinance, Cap 221 allows the Court of Appeal to, “notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.”

83.In Yuen Kwai Choi v HKSAR[8] the Court of Final Appeal explained both the test for the application of the proviso and how, in applying that test, regard could be had to the view of the jury which tried the case.  At page 132G-J, paragraph 54 Chan PJ in giving a judgment with which the other members of the court agreed, said:

“54. The test for an application of the proviso was discussed by this Court in Launder v HKSAR [2002] 1 HKLRD 150, following Stirland v DPP [1944] AC 315 at p.321 and Customs and Excise Commissioners v Harz [1967] 1 AC 760 at pp.823-824. See also Stafford v DPP [1974] AC 878 at p.893G. It is: whether a hypothetical reasonable jury, properly directed, would inevitably have come to the same conclusion or would no doubt have convicted. Although the test anticipates the view of a hypothetical reasonable jury, the view of the jury which had tried the case must be a factor - albeit not conclusive - to be taken into account in considering what the view of the hypothetical reasonable jury would be. The fact that a particular jury only reached their verdict by a bare majority of 5 to 2 would indicate that two jurors had entertained some doubts about the guilt of the accused. See a similar remark in Launder v HKSAR [2002] 1 HKLRD 150 at p.164. In the present case, the majority verdict would mean that at least two jurors had considered that the appellant's defence might be true.”

84.As we have indicated Ms Fan argues that there was overwhelming evidence to prove the appellant was Saudee and this would certainly be a basis for finding that there is no miscarriage of justice in upholding the conviction.

85.This submission may well have merit in respect of the first conspiracy but even in respect of this charge there is a difficulty in that the finding that the appellant was Saudee is still dependent on other decisions the judge made.

86.They were that he could exclude the two possibilities advanced on behalf of the appellant of someone other than the appellant using his WhatsApp account.  As we have explained earlier in this judgment there were two limbs to this submission.  One was that the appellant’s WhatsApp account could have been installed on another phone.  This, we are satisfied, had no evidential foundation to it and it is no more than a hypothetical, wholly speculative possibility.  No reasonable jury, properly instructed, could find that to be an actual possibility.

87.The other limb was the possibility of Walid or an unknown 3^rd party using the appellant’s phone and accessing his WhatsApp account.  The judge excluded this possibility by rejecting in their entirety the exculpatory explanations of the appellant contained in his cautioned video record of interview.  Having rejected the appellant’s exculpatory statements in his record of interview there was simply no longer a factual basis for saying that other persons had access to the appellant’s phone. 

88.Notwithstanding that the judge gave very cogent and persuasive reasons for rejecting as implausible the appellant’s explanation that Walid or some other friend or colleague might have used his phone, is it possible for us to say that it is inevitable that a hypothetical reasonable jury would likewise reject these explanations advanced by the appellant in his record of interview?

89.In the circumstances of this particular case we have no doubt whatsoever that it is and that a hypothetical, reasonable jury properly instructed would find that the appellant was Saudee in the WhatsApp communication and was party to a conspiracy to make false instruments.  We apply the proviso and dismiss the appeal in so far as it relates to the first charge.  However, without proof that the appellant was present in the Apple Store when a fraudulent credit card transaction was taking place we are not persuaded that a jury would inevitably convict of the second charge.   

Conclusion

90.For these reasons we allow the appeal only to the extent of quashing the conviction for the second charge of conspiracy to use false instruments and dismiss the appeal in respect of the conviction for the first charge of conspiracy to make false instruments.

Ms Irene Fan SPP, of the Department of Justice, for the respondent

Ms Manyi Tsang, instructed by DLA, for the appellant  

[1] CACC 474/2009, unreported, 22 June 2011.

[2] See HKSAR v Lee Chi Fai & Ors [2003] 3 HKLRD 751 and HKSAR v Yeung Ka Ho (2013) 16 HKCFAR 609.

[3] [1984] 79 Cr App R 220

[4] [1995] 1 Cr App R 547

[5] [1999] 4 HKC 662

[6] See R v Turnbull [1977] QB 224

[7] HKSAR v Ng Siu Kam at paragraph 53.  It was also the situation in the Lau Tat Keung Milky case.

[8] (2003) 6 HKCFAR 113