HKSAR v. Riasat Ali and Another

DCCC 321 & 452/2017
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 321 & 452 OF 2017

-------------------------------------------

-------------------------------------------

--------------------------------------

REASONS FOR VERDICT

--------------------------------------

1.The defendants were jointly charged with one count of Burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210.

THE PROSECUTION CASE

2.Mr Tang Keng King is the occupier while his wife is the legal owner of the 6^th floor and the roof top of the building at No 905 Canton Road.  A storeroom installed with CCTV was erected by them on the roof top.  At all material time, the CCTV was functioning properly.

3.On 12 February 2017 at around 9:55 am, D1 and D2 prized open a window of the storeroom and climbed in.  They ransacked the storeroom for about 2-3 minutes.  Meanwhile another unknown male was outside near the said window offered them assistance during the course.

4.The acts of the three were captured by the CCTV.  The face of D1 was clearly visible on the CCTV footage.  Further, D2 left behind his fingerprint on the inner frame of the prize-opened window.

5.The three South Asian males captured committed the burglary together, each one of them was a party to the joint enterprise. Mr Tang reported there was no loss in this case.

THE DEFENCE CASE

D1

6.The male of slim physique in white top without cap captured in the CCTV was not D1.  An alibi notice was once served during the trial but D1 decided not to call his alibi witness but another witness to testify the one captured was not him. 

D2

7.None of the South Asian males wearing a cap captured in the CCTV was him.  The fingerprint lifted was left behind between December 2016 and February 2017 after he consumed dangerous drug on the roof.

ISSUE IN DISPUTE

8.The commission of the burglary was not in dispute.  Ms Chong representing D1 agreed that the burglary was committed together by the three males captured while Mr Tracy representing D2 had reservation that the one did not enter the storeroom was a party of the joint enterprise.  The CCTV footage was produced without objection.  The fingerprint evidence was produced by consent.

9.Though Mr Tracy had reservation that the burglary was committed by 3 people.  The only live issue is identification:-

(a) Was D1 the first male that entered the storeroom?

(b) Was D2 the second male that entered the storeroom or one of the two males wearing a cap captured?

FINDING

10.It is for the prosecution to prove D1 and D2’s guilt on each and every element of the charge beyond all reasonable doubt.  The defendants have no burden of proof whatsoever.   

11.D1 elected not to give evidence, this was his right and would have no adverse inference whatsoever.  Also, D1 did not proceed with his alibi evidence would not cause any adverse inference to his case.

12.D2 plead guilty during the trial and reversed his plea before admission of the fact would not cause any adverse inference to his case.  Likewise, D2 disclosed he was a drug abuser during his evidence was only to explain why his fingerprint was left behind on the window, this would not cause any adverse inference.

13.All the evidence should be considered as a whole in the light of the defence case and the defence submission.  The case of each defendant would be considered separately.  Where there is any reasonable doubt, the benefit should go to the defence. 

CCTV FOOTAGE

14.The Court of Appeal in HKSAR v Tagao Saudee Abad CACC 366/2015 confirmed 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 Court of Appeal went on to state that “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. …  In this situation some form of Turnbull direction may be necessary to at least alert the jury to the dangers of mistaken identification and commended the guidance provided in Dodson and Williams”.

15.The only evidence against D1 is the images captured by the CCTV.  At one stage I raised my concern that while I would be requested to compare the appearance of D1 with the appearance of the culprit captured in the CCTV footage, there seem to be no evidence of the appearance of D1 upon/after his arrest.  I raised my concern whether in the interests of D1, preservation in some form of his appearance would be required in additional to the description in my judgment in due course.  I invited parties’ assistance on the matter.  Counsel for D1 objected to the production of any photo taken after D1’s arrest and refused to have any photo taken during the trial.  The Fiat counsel submitted the photo taken after the arrest was not for investigation purpose but for administrative purpose and he did not seek to produce any photo of D1 in view of the objection raised by the defence.  I respect the decision of D1 and this would not cause any adverse influence.

16.It is noted that Ms Chong stated in her mid-way submission that it was unfair to D1 that there was no photo of his produced or taken during the trial by the prosecution.  Yet the defence did not seek to produce any photo of the D1 during the defence case.  The defence made similar submission in her closing speech.  I had however the benefit to observe the appearance of D1 during the trial between 30 August 2017 and 29 September 2017.

17.This being a case where the identification is the substantive issue, it is appropriate that the Turnbull warning be given.  I referred myself to the authority, R v Turnbull and Others [1977] QB 224, in particular pages 228 to 231:-

“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need of such a warning, and should make some reference to the possibility that a mistaken witness can be a convincing one, and that a number of such witnesses can all be mistaken. Provided this is done in clear terms, the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made: how long did the witness have the accused under observation; at what distance; in what light; was the observation impeded in any way, for example, by passing traffic or a press of people; had the witness ever seen the accused before; how often; if only occasionally, had he any special reason for remembering the accused; how long elapsed between the original observation and the subsequent identification to the police? All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened. But the poorer the quality, the greater the danger. 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. Quality is what matters in the end.”

18.In comparing the appearance of D1 with the male captured in the CCTV footage and the still photos (Exhibit P7) extracted from the footage, I bear in mind the Turnbull warning at all times.  Further after it was confirmed that no photos of D1 taken after the arrest and no other form of identification evidence would be produced, I was aware of and reminded myself to all the potential risks related to the comparison requested by the prosecution and the dangers of mistaken identification.  As it was observed by the UK Court of Appeal in the case of Dodson & Williams:-

“In performing this task juries cannot possibly in our judgment be regarded as acting as experts, as for instance they might be if they were invited to be judges of handwriting and fingerprints, in which specialities special training and expertise are demanded. They are 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.

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 evidence with the aid of what the jurors’ eyes tell them is a fact which they are sure exists.”

19.The man referred by the prosecution as D1 first appeared in the CCTV footage at 09:55:19 hours when he climbed up the low wall adjoining the storeroom and then entered the storeroom through the opened window at 09:55:36 hours.  This man ransacked the room until he left at 09:57:41 hours and went back to the roof top at 09:57:55 hours with the assistance of the man in white outside.  The man in white had put on a black jacket by that time.

20.The comparison exercise of the images captured in the CCTV footage and the defendants in the dock was a continuous process during the whole trial proceedings.  The trial was required to stand down and adjourn on a number of occasions because of various reasons mainly related to the change of representing counsel in the case of D1 before and during the trial and the late but subsequently aborted alibi notice of D1.  Time being because of the renovation schedule of my court room (Court 25), the case was required to move to three other court rooms (Court 24, Court 30 and Court 35) during the trial.  This arrangement allowed me to have the defendants before me in bigger and smaller court rooms with dock on either sides. 

21.Further after leave to discharge for representing D1 was granted to Mr Cahill on the second day of the trial, I had direct exchange with D1 as to how he wanted to proceed his case.  Focusing on the case of D1, during the whole trial proceedings I was able to observe D1 from different angles and directions and to view the CCTV footage repeatedly during the adjournment in normal and decreased speed.  The CCTV footage was played several times in court and allowed me sufficient opportunity to compare the appearance of D1 with that of the male captured.

22.DW Mr. Ahmed Ishtiaq was D1’s friend, he knew D1 since 2010 and they had once lived together for 2 to 2.5 years between 2010 and 2012.  After he moved out he still had regular contact with D1 and met each other around once a month.  He was invited to view the CCTV by D1’s lawyer and to testify that the burglar captured was not D1, he considered the footage was clear but the sound track was not.  DW gave evidence that he suspected the man captured was D1 when he first viewed the footage but when he viewed it again and over he was sure that was not D1.  He said the man captured looked younger and on his estimation D1 was taller than the man captured.  Further the man said “come inside” in a mild pitch and different accent.

23.When being asked what about on the CCTV that gave him the suspicious that he was D1, DW answered that the similarity of the two but many people looked alike and after viewed it again and over, he found that he was not D1.  He said D1’s hair style was different.  Further he said the hair of the man in CCTV was a little bit curly and when being asked how he would describe D1’s hair straight or curly, he said “according to my feeling his hair are straight” “to my opinion it is straight”, and upon confirmation by fiat counsel whether he did not find D1’s hair a little bit curly, instead of answering the question he said “he is sitting in front of you why don’t you see it yourself”.  But when being asked how would he describe his own hair straight or curly, he answered directly “curly”.  I had D1 in front of me, the hair of D1 was not straight as such but a little bit curly.  I considered and find DW was not an honest witness and gave no weight to his opinion about the dissimilarity between D1 and the man captured.

24.DW attempted to compare the voice of the man captured and D1.  However, according to DW the background of the sound track was very noisy and the quality was such that he could not work out the content of the conversation but he able to hear the man said “come inside” in Punjabi with a different accent of D1.  When being asked where the accent of the man in CCTV from, he said it seemed like Punjabi from Pakistan and Punjabi from India, and it was small different between two.  And he said the accent of D1was Pakistani Punjabi accent.  When being further asked for the difference with that from the CCTV, he said there was a little bit difference of the Punjabi language between Pakistan and India.  When it was put to him that it was difficult to tell the different in accent from the CCTV sound track, he did not give an answer.  Upon further clarification, he said though not 100% sure, it seemed that it was a Pakistani speaking Punjabi in the CCTV. 

25.At the end DW could not tell what was the accent in the CCTV and what was the different from the D1’s Pakistani Punjabi accent. Despite DW repeatedly said the accent, pitch and style of talking of the man in CCTV was different from D1, he was not able to be specific when being asked about the different between the two.  DW could only identify two words “come inside” with a few syllables said in Punjabi from the sound track, it was understandable as the quality of the sound track was not good enough for anyone to make a meaningful comparison.  But with the high clarity of the footage, I do not consider the quality of the sound track casted any doubt on the prosecution case.

26.During the trial Urdu interpreter was arranged to D1 and DW while Punjabi interpreter was arranged to D2 throughout.  No question was asked if DW communicated with D1 with Urdu or Punjabi.  It should be noted that DW’s evidence was not that D1 did not speak Punjabi but commenting his accent with that of the man captured.  According to DW’s evidence once inside the storeroom the man in white top spoke in Punjabi to the men outside, there must be a reason for him to communicate with the others in Punjabi.  According to the prosecution case D2 who spoke Punjabi was one of the remaining two burglars.  

27.In respect of D1, the CCTV footage is the only evidence linking him to the offence.  The prosecution submitted that the image of the man wearing a white top without a cap in the CCTV footage was sufficiently clear for it to be identified as that of D1 beyond reasonable doubt by me as the tribunal of fact. 

28.Both parties referred me toA-G’s Reference (No 2 of 2002)[2003] 1 Cr App R 21, by category (i) as stipulated by Lord Justice Rose,

“(i) where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock (R v Dodson and Williams [1984] 1 WLR 971)”

There is no dispute that the CCTV is admissible in the present case for comparison by me on the issue of identification. The question raised by Ms Chong being in the absence of other supporting evidence, can the jury base solely on the CCTV evidence to convict D1?

29.Ms Chong submitted that where dock identification was the only evidence of identification, the conviction was unsafe and referred me to a passage in Davies & Cody v R 919370 57 CLR 170, at 182:-

“… if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial.”

Further, evidence of resemblances in appearance, while admissible, was not sufficient to convict (R v Chan Man Shing[1989] 2 HKC 186; HKSAR v Lee Wan Kong [2012] 2 HKLRD 1171). Ms Chong submitted it was unsafe to convict the D1 solely upon the CCTV footage evidence.

30.Resemblance, in the sense of similarity, in appearance is not sufficient, the question is “are they the same person?”.

31.In the case of Tagao, the trial judge after viewing the CCTV footage and observing the appellant before him, concluded that the person in the footage was the appellant.  The Court of Appeal stated that “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 of identifying the defendant.”  In that case the Court of Appeal was in the conclusion that “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.  …  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.”  This case shows the importance of the quality of the recording.

32.The CCTV footage in the present case was of high clarity, the appearance and movement of the man were clearly captured by the CCTV.  Even the DW did not deny the good quality of the CCTV footage recording.  The relevant part of the recording was about 2 to 3 minutes but unlike classic case of fleeting glance, the footage could be re-played in normal and decreased speed and still images could be extracted.  The close up of the full face of the man in white top was clear. 

33.With the benefit to have the D1 in front of me during the whole trial proceedings and viewing the CCTV footage inside and outside court.  Upon comparison I am sure that the one in white top without cap was D1; comparing with the time he committed the burglary, the only difference being D1 had his hair cut now and slightly changed in skin tone consistent with suntan.  Otherwise D1 is identical to the time he committed the burglary as captured by the CCTV.  I do not consider the evidence of DW casted any doubt to the prosecution case.

FINGERPRINT

34.The D2’s right index fingerprint lift on the inner side of the window frame was consistent with one left behind by a right back-hand gripping on the frame of the window pane (Exhibit P3, P4 & P5).

35.Mr Tang gave evidence that the storeroom belonged to him, the CCTV was installed by him.  He went up every day to inspect the storeroom and enjoy the cool on the rooftop, the window prize-opened was locked from the inside when he last left it.  I considered and accept his evidence.

36.Mr Tracy submitted that nothing in Mr Tang’s evidence negated the possibility that the window was left open by his family members on occasions, as did the fact that on the last occasion when he checked on the window when he ensured that it was locked.  As meticulous as Mr Tang might have been about the security of the storeroom, he could only testify as to whether the window was left open by himself.  Further, common sense suggested that the window of the storeroom in the dry season might well have been left open for ventilation by some member of Tang’s family on occasion. 

37.Upon re-call by D2 on the third day of the trial, Mr Tang’s attention was drawn to the period between 12 December 2016 and 11 February 2017, he was asked if window was opened and whether some South Asian males went to the roof top during that period.  Mr Tang gave evidence that the window was never opened between that period, and something did happen, however, it had nothing to do with window.  There was no evidence that the Tang’s family would leave open a window for ventilation unattended, instead Mr Tang went up every day and within the period mentioned by Mr Tracy the window was never opened though he did notice something unrelated to window did happen on the roof.  

38.It is noted that despite there was no valuable item kept inside the storeroom, Mr Tang had 24 hours CCTV surveillance installed therein.  Mr Tang was a meticulous person.  The CCTV installed had a recording function with 7-days cycle, ie at any time Mr Tang could view the last 168 hours’ images recorded and he would be alerted by the surveillance system for any movement detected via his mobile phone as in the case on 12 February 2017.  I considered and accept Mr Tang’s evidence that the window was never opened during the period he was referred, and that “the things that happened on the roof he noticed had nothing to do with window”. 

39.D2 gave evidence that he came to Hong Kong from India in 2016.  He had a problem with dangerous drug and he started to take heroin 4-5 years ago and he continued to take heroin after he came to Hong Kong.  He bought heroin from a few drug peddlers.  He spent about $200 a day on heroin.  There was a drug dealer down the building at 905 Canton Road, after he bought heroin from that dealer he would go up to the roof in question to take the drug.  No attempt was made to clarify with Mr Tang as to the thing he noticed happened on the roof, thus one cannot rule out the possibility that the things happened on the roof noticed by him might be the things left behind by drug abusers. 

40.D2 gave evidence that he had gone up that roof about 5-6 times between December 2016 and 11 February 2017 to take drug alone or with friends.  He never been to the roof on the 12 February he was only there 5-6 days prior to that day.  On a few occasions, he saw the window in question was partly opened, and he might have touched the window under influence of drug.  He did not know D1 and met him for the first time in the lower court.  The male(s) captured by the CCTV was not him.

41.It was D2’s evidence that he was a bit high after taking drug, his mind was not clear and could not think clearly.  When being asked by the fiat counsel how he might have touched the window, he said after he took heroin against the low wall adjoining to the storeroom, he stood up and touch the window while getting up.  He was standing on the ground by the low wall when he touched the window.  He did not agree it was impossible for him to reach to the farther side of the window frame. 

42.The location of the storeroom on the roof and the relative position of the window in question could be found in the photo album Exhibit P9.  The capture in the CCTV footage shown that it was not easy to reach to the farther side of the window frame let alone to hold it with back-hand when one was standing on the ground by the low wall adjoining the storeroom.  D2 did not give positive evidence that he had touched the window frame.  It was D2’s evidence that he might have touched the frame of an opened window under the influence of drug, if so movement would have caused during the contact which allowed the fingerprint left in that particular position. 

43.According to Mr Tang any movement would have triggered the surveillance system installed by him and alerted him via his mobile phone, but it was Mr Tang’s evidence that window was never opened and anything he noticed on the roof before had nothing to do with window.  I considered and gave no weight to D2’s evidence that he has touched the window frame and left behind his finger print before 12 February 2017.  I considered and find the only irresistible inference is that the fingerprint was left behind by D2 during the commission of the burglary on 12 February 2017. 

44.The CCTV footage between 09:54:34 hours and 09:54:39 hours showed that the man in dark jacket and red T-shirt with cap needed to have his body closed to the storeroom and to have his body leaning out to reach the farther side of the window frame by his left hand.  And the same man chose to climb up the low wall when he made further attempt to open wide the window at 09:54:44 hours and stepped down again at 09:55:15 hours.

45.At 09:55:44 hours after the one in dark jacket and red T-shirt moved away from the window, another man in white with cap appeared outside the window, this man also push his body up and sat on the low wall at 09:55:57 hours to get close to the window and talked to D1 inside between 09:56:05 hours and 09:56:27 hours during which the man outside had his right hand moved inside the room.  After D1 inside gave hand gesture to ask someone to come in, the one in white stepped down and the one in dark jacket and red T-shirt appeared again at 09:56:28 hours. 

46.The one in dark jacket and red T-shirt started to climb up the low wall at 09:56:30 hours and moved to the window entered the storeroom at 09:56:59 hours. This man remained inside the storeroom ransacked the room together with D1, D1 left the storeroom at 09:57:28 hours and this man left at 09:57:56 hours. In the course this man squatted on the window sill for a couple of seconds and needed assistance from the man remained outside to return back to the rooftop at 09:58:17 hours.  I considered and find the three captured were clearly acting as a joint enterprise to burgle the storeroom with intention to steal therein.

47.D2 gave evidence that on all occasions when he was on the roof, he was there to take drugs and then his mind was not in a clear state.  However, it was his evidence that he was never on the roof during the commission of the burglary.  The behaviour of those with cap as captured by the CCTV was consistent with one having a clear mind.  I considered and reject any suggestion that D2 was under influence of drug and did not have intention to steal at the material of time.

48.I accepted Mr Tracy’s observation as to the obstruction caused by the cap, the lighting contrasts between the inside and outside of the storeroom, and no particular facial feature could be observed from the footage to enable a positive identification from the footage.  As Mr Tracy observed the only fact that could be clearly ascertained is that both was a male of medium height and build and of dark colouring.  And I am with the view that the appearance of those two males was equally similar and consistent with that of the D2.    

CONCLUSION

49.The first male entered the storeroom was clearly captured by the CCTV footage.  I considered and find DW was not an honest witness, I reject his evidence that the male was not D1.  After comparison the image of the male captured by the footage with the D1, I am sure and satisfied beyond all reasonable doubt that D1was the first one climbed inside the storeroom.

50.D2 who claimed that he might have touched the frame of an opened window after consumption of drug between December 2016 and February 2017, accepted that he did not have a clear mind under influence of drug.  Mr Tang who went up every day to check up the storeroom, did notice something happened on the roof top between 12 December 2016 and 11 February 2017 but said this had nothing to do with window, and the window was never opened during that period.  No weight was given to D2’s evidence and his evidence did not cast any doubt on the prosecution case.  I considered and find the only irresistible inference is that D2’s fingerprint was left during the commission of the burglary on 12 February 2017.

51.According to DW’s evidence, D1 who elected to speak Urdu during the trial proceedings spoke in Punjabi to those outside the storeroom.  It suggested that those outside the storeroom spoke Punjabi.  D2 elected to speak Punjabi during the trial proceedings.  The use of language during the commission of the crime was also consistent with the presence and involvement of D1 and D2 in the burglary.

52.The three captured clearly were acting as a joint enterprise, one of them stayed outside to offer assistance to those climbed inside the storeroom and moved back to the roof top.  As the glass pane was not transparent, the actions of those male behind the glass pane could not be seen.  The two males with cap did move their bodies close to the window at different stages, they could have gripped the frame with their right hands respectively.  It is not possible to draw any irresistible conclusion as to which one was D2.  It is, however, sufficient for the prosecution to prove D2 was a party to the joint enterprise, namely one of the three burglars captured by the footage, in particular, one of the two males wearing a cap.

53.I considered and find the prosecution has proved beyond all reasonable doubt that D1 and D2 together with another unknown male entered the storeroom as trespassers with intent to steal therein.  D1 and D2 are convicted accordingly.