HKSAR v. Yamin

CACC 360/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 360 OF 2016

(ON APPEAL FROM HCCC 330 OF 2016)

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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 applicant was tried on an Indictment containing a single count of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212. He pleaded not guilty but on 8 November 2016, after a trial before High Court Judge Anthea Pang J (“the judge”)and a jury, he was convicted by a majority verdict of 6 to 1. The next day he was sentenced by the judge to 8 years and 3 months’ imprisonment.

2.On 25 November 2016 the applicant filed a Notice of Application for Leave to Appeal against conviction and sentence (Form XI).  At the hearing of his application we reserved our judgment which we said we would hand down at a later date.  This we now do.

The trial

The prosecution case

3.The trial was of an historical offence that occurred some 18 years previously.  The central issue was the identification of the applicant as being one of three persons who, acting in concert, intentionally wounded the victim PW1.

4.The prosecution case was that in the evening of 27 November 1997, PW1 and PW2, who was then PW1’s girlfriend, were walking in the area near Chung King Mansions.  They were approached by three Pakistani men one of whom was alleged to be the applicant.  PW1, PW2 and the three Pakistani men then entered Mirador Mansion.  At trial, both PW1 and PW2 testified that of these three men they were able to recognize the applicant as a person known as “Lucky” and another man as a person known as “Jimmy”.  They did not know the third man.

5.When the two groups were about to walk upstairs in Mirador Mansion to, according to PW2, find a place to sit down and talk, two of the Pakistani men started to quarrel with PW1 whilst PW2 and the applicant were talking from about 20 feet away.  PW2 saw that one of the Pakistani men was holding a black plastic bag and a sheathed knife.  When the men were pushing each other, the man whom PW1 and PW2 did not know, held out the knife, still in its sheath, and pointed it at PW1.  PW2 saw PW1 run away but afterwards he returned with two friends.  The two groups then engaged in a brief fight in the lift lobby.  The applicant ran over to join in the fight and he was holding a leather belt.

6.Later, PW1’s two friends left the scene.  Shortly after they had done so the three Pakistani men resumed their attack on PW1.  In one of the assaults, a belt buckle, which was being used as a weapon, hit PW1’s head, causing him to bend over.  PW2 testified that the applicant and Jimmy then pushed and pinned PW1 to the ground and the unknown man used the knife to slash PW1’s right arm and stab him on his torso between his waist and ribs.  When PW2 tried to move forward to PW1, the unknown man pointed the knife at PW2 and told her not to move.  The three Pakistani men then left the scene.

7.In respect of their claim to be able to identify the applicant, PW1 and PW2 both said that they had seen the applicant about nine to ten times around the Chung King Mansions area.  According to PW2, the applicant was always with his friends and he seemed to be the leader of the group.  However, she admitted she had never been formally introduced to the applicant and had not previously engaged him in conversation.

8.However, on 7 January 2016, both PW1 and PW2 had positively identified the applicant in a police identification parade consisting of the applicant and eight other persons.  All participants in the parade were seated with blankets covering their bodies and facemasks concealing the lower part of their faces.  The prosecution case rested entirely upon the identification evidence of PW1 and PW2.

The defence case

9.The applicant did not give evidence at trial.  The defence case that was put forward by the applicant’s counsel, Mr Trevor Beel, who also appeared for the applicant on this application, was that PW1 and PW2 had mistakenly identified the applicant and that their identification of him was neither credible nor reliable. 

10.It was alternatively put forward that even if the jury were sure of the identification evidence, there was a doubt as to whether the applicant had been a part of the joint enterprise to cause PW1 serious bodily harm.  This alternative case relied upon the evidence of PW4, an independent eye witness who operated a shop in Mirador Mansion.  PW4 contradicted the evidence of PW2 that the applicant pinned PW1 onto the ground whilst he was being attacked by the unknown male with the knife.  PW4’s evidence was that because of the chaotic nature of what was happening he was unable to see the faces of the people involved.  However, he testified that while he was inside his shop, he saw the victim was sitting on the ground and the man without the belt then took out a knife and slashed the right thigh and the victim’s right hand.

The No Case to Answer Submission

11.At the end of the prosecution case the defence made a submission that the applicant had no case to answer.  Mr Beel submitted that due to the long lapse of time since the incident, the identification evidence was fundamentally unreliable and it was not about the issue of whether the witness was honest or not.  Hence, the case, being premised on a ‘questionable’ identification, should be withdrawn from the jury.

12.In her ruling in response to this submission the judge said[1]:

“Having considered the evidence available and the submissions advanced by both parties and having reminded myself that the main, if not the only, contention here is one of identification, I find that putting the prosecution case at its highest, a reasonable jury, properly directed, could, on one possible view of the evidence, properly conclude that the accused is guilty as charged and could properly reject or exclude as unreasonable all other possibilities.

In other words, the strength of the prosecution’s identification evidence in this case depends on an assessment of the evidence of the witnesses, and that is a matter falling squarely within the jury’s province.  I therefore rule that there is a case to answer in respect of the count laid against the accused.”

The mitigation

13.The applicant was 40 years old at the time of sentence, but he was 21 years old at the time of the offence.  At the time of sentence, he was married with three teenage children.  The applicant was educated up to primary 5 in Pakistan and prior to his arrest, he carried out various manual labour work.

14.Mr Beel mitigated on behalf of the applicant and asked the court to place emphasis on the rehabilitation of the applicant rather than on the element of deterrence.  He said the applicant had, in the past two decades, rehabilitated himself.  He further submitted that the wounding was an act which was out of the applicant’s character.

The judge’s Reasons for Sentence

15.The judge said that the verdict of the jury meant that the evidence of PW2 must have been accepted and from this it followed that the applicant was part of a three man joint enterprise to assault PW1.  Within this joint enterprise the role of the applicant was, together with one other, to pin PW1 down whilst the applicant stabbed and slashed him with a knife.  

16.The judge considered the attack a brutal one. It was done by a group of three against a lone victim in a public place.  She noted that PW1 did not have any weapon with him, and that the attack was unprovoked as it was the applicant’s group of three who approached PW1 and PW2.  The judge said even if the applicant did not know of the intended use of the knife beforehand and only joined in the knife attack when the knife was actually produced, it was clear on the evidence that the applicant’s group was seeking PW1 out on the day in question and they were all prepared to assault PW1. Furthermore, the stabbing took place when PW1 was pinned on the ground. 

17.The stab in the abdomen resulted in the lung being lacerated and PW1 suffering a penetrating wound to the liver.  The judge noted that PW1 suffered serious bodily harm, with the main nerve of his right arm being damaged, and up till the day of sentence PW1’s right hand movement was still restricted.

18.The judge regarded all of these matters as aggravating factors in the case.  She considered that whoever took part in such a vicious joint enterprise should receive a heavy sentence to reflect the community’s abhorrence of the use of great violence.  In this respect she noted that there is no tariff for the offence of wounding with intent, for the facts of each case vary greatly.

19.The judge said that even though the applicant was not the one who stabbed PW1, he was nevertheless a willing participant in the joint enterprise and he played his part in it.  His culpability was no different from the person who did the actual stabbing.  The judge had been informed that the other two members of the joint enterprise had been previously apprehended and, after pleading guilty, had been sentenced to 5 years 6 months’ imprisonment from a starting point of 8 years 3 months’ imprisonment.  The judge then said:

“… having considered the facts of the case and the aggravating factors mentioned above, I too am going to adopt a starting point of 8 years and 3 months.”

20.The judge then addressed the matters advanced in mitigation saying:

“Further, I do not consider anything, including his clear record, that has been urged upon me on his behalf in mitigation should warrant a reduction in sentence in a serious offence of this nature. Neither do I accept that the court should put the rehabilitation of this accused over the element of deterrence in this case. After all, the accused was aged 21 at the time of the offence and he is now aged 40.

21.Thereupon, the judge sentenced the applicant to 8 years and 3 months’ imprisonment.  

The grounds of appeal against conviction

22.Mr Beel put forward two grounds of appeal, namely:

(a)   the judge failed to properly evaluate and consider the evidence given by PW1 and PW2 and erred in law in her consideration of the ‘no case’ submissions made by the defence in that she applied the law as set out in R v Galbraith[2] rather than the principles expounded in R v Turnbull[3] when determining the submission; and

(b)   the judge erred in law in failing to properly direct the jury that they must disregard any suggestion that the assailant who attacked PW1 was called “Lucky” and that Lucky’s real name was Yamin.  The hearsay built upon hearsay was not probative but highly prejudicial to the applicant especially as the prosecution case was built solely upon identification.

23.In his written submissions, Mr Beel submitted that the judge should have relied on the principles set out in Turnbull, and should have withdrawn the case from the jury at the end of the prosecution case as the identification evidence was poor.  The judge had wrongly decided that the strength of the identification depended on an assessment of the evidence of the witnesses which was a matter for the jury.  Had the judge not erred by applying the Galbraith principles she would have withdrawn the case from the jury and directed them to return a verdict of not guilty.  In support of his submission that there was a difference in the approach taken to determining a no case submission when it was based upon the poor quality of identification evidence, Mr Beel relied on the decision of the Privy Council in Daley v The Queen[4]whereany apparent difference between the Galbraith principles and the Turnbull principles was discussed. 

24.Mr Beel submitted there had been no contact between PW1 and PW2 in the interim between the incident and the identification parade and that this was an inter-racial identification.  He suggested that the identification may have only been an identification of someone who appeared similar, based on an 18-year old memory of what that person looked like. Alternatively, the identification might have been false in the sense that PW1 and PW2 had used or been assisted by social media to see the applicant’s face before the identification parade.[5]

25.The reasons given immediately after the parade by PW1 and PW2 for making the identification were remarkably similar: “recognized his face, shape of his face”.  However, the reasons given in court for being able to identify the applicant were by reference to features that were not included in the statements taken after the incident.  Hence, the description of features in court might well have been based on having looked at the applicant in the dock.

26.Mr Beel submitted that all these matters showed that the evidence of PW1 and PW2 contained a number of factors that called into question the correctness of the identification and the judge should have withdrawn the case from the jury.

27.Regarding Ground 2, Mr Beel submitted that the prosecution had, in their closing submissions, relied upon the fact that one of the attackers was called Lucky and that the applicant was Lucky.  However, both PW1 and PW2 had never had a conversation with this person and they only believed that his name was Lucky as they had been told by their own friends, not by the person himself.  There was no evidence as to whether this person ever acknowledged that this was his name.  Accordingly, the name given was hearsay. 

28.It was further compounded by PW2 stating that she had been told after the incident that Lucky’s real name was Yamin.  PW2 had said that on the evening after the incident, PW2 called PW1’s friends and was told that Lucky’s other name was Yamin.  PW2 said she had been told by many people that Lucky was Yamin.[6] This was particularly prejudicial to the applicant and it called for a strong direction by the judge to the jury.

29.Although the judge told the jury that there was no evidence that Lucky’s real name was Yamin as PW2 had only been told by her friends and had no personal knowledge of the real name of Lucky; the jury might have only taken this as a mere comment or view on the evidence held by the judge and thereby might have disregarded the judge’s view, since the judge told the jury that if they did not agree with his view of the evidence they could reject it.

30.Mr Beel submitted that the judge should have made it clear to the jury that as a matter of law they must disregard any reference to the fact that the attacker was called Lucky or that Lucky’s real name was Yamin. 

The grounds of appeal against sentence

31.Regarding sentence, Mr Beel put forward only one ground of appeal, namely, that in all circumstances the sentence is manifestly excessive and/or wrong in principle in that the judge, by holding that the element of rehabilitation should not be placed above deterrence, had failed to give proper consideration and weight to the applicant’s rehabilitation from the time of the offence to the time of the conviction.

32.Mr Beel submitted that the judge failed to give proper credit to the fact that the applicant had led an unblemished life, indicating that the incident was an isolated act committed when the applicant was much younger and that, given his life since the offence, was conduct which was out of character.  He argued that courts have previously taken into account persons who have from the date of the offence to the time of conviction turned over a new leaf and led a useful law abiding life and in this respect referred the court to the decision of the Court of Appeal of England and Wales in R v Meyers[7].

33.Mr Beel further submitted that the judge regarded deterrence as a key element in the case, yet it was obvious that personal deterrence was not relevant to the applicant as he had been law abiding during the period since the offence and is therefore unlikely to re-offend.  As to general deterrence, Mr Beel submitted that this was influenced by the prevalence of the offence, but this offence took place in 1997 and so it was unclear as to how the aspect of general deterrence applied at the time of sentencing.  Hence, the applicant’s sentence was manifestly excessive and/or wrong in principle.

The respondent’s submissions on conviction

34.Ms Peggy Lo, Senior Public Prosecutor, for the respondent, submitted that when coming to a decision as to whether the identification evidence passed the Turnbull threshold or the Galbraith case to answer threshold inevitably the judge would inevitably be involved in assessing the quality of the evidence. Whilst it is the judge’s role to assess the quality of the evidence, the respondent submitted that it would be inconceivable to consider that the law requires the judge to adopt a different set of parameters or standards in cases involving identification.  The test as to whether certain evidence should be left for the consideration of the jury should be the same, whether the evidence involved is identification evidence or evidence led in the prosecution case in general.

35.Ms Lo also relied on the judgment of the Privy Council in Daley v The Queen[8] where she said the Privy Council discussed and resolved what was asserted to be an apparent conflict between Turnbull and Galbraith.  Lord Mustill in delivering the judgment of their Lordships said, at 129D – G:

“A reading of the judgment in Reg v Galbraith [1981] 1 WLR 1039 as a whole shows that the practice which the court was primarily concerned to proscribe was one whereby a judge who considered the prosecution evidence as unworthy of credit would make sure that the jury did not have an opportunity to give effect to a different opinion…By contrast, in the kind of identification case dealt with by Reg v Turnbull the case is withdrawn from the jury not because the judge considers that the witness is lying, but because the evidence even if taken to be honest has a base which is so slender that it is unreliable and therefore not sufficient to found a conviction: …When assessing the ‘quality’ of the evidence, under the Turnbull doctrine, the jury is protected from acting upon the type of evidence which, even if believed, experience has shown to be a possible source of injustice. Reading the two cases in this way, their Lordships see no conflict between them.”

36.Ms Lo submitted that the evidence of identification of PW1 and PW2, as well as the criticisms raised in relation thereto in the applicant’s submissions, were matters that were for the consideration of the jury as the credibility and reliability of the evidence were matters for them to resolve.  Indeed, the applicant said, in paragraphs 50 and 51 of his written submissions, that “the identification of course may have indeed been correct or it may have only been an identification of someone who appeared similar…” and “alternatively the identification may have been false” puts the matter squarely within the province of the jury.  Hence, Ms Lo submitted that the judge did not fall into error in rejecting the defence’s ‘no case’ submissions. 

37.Furthermore, the judge had followed the Turnbull guidelines by (i) warning the jury of the special need for caution before relying on identification evidence[9]; (ii) directing the jury to examine closely the circumstances in which the identification was made[10]; and (iii) going through with the jury the evidence relating to identification[11].  The respondent submitted that the judge had given the jury appropriate and proper directions as to the approach to the identification evidence.  With such comprehensive directions being given, the jury would have been left in no doubt that they should approach the identification evidence with caution.  The jury’s conclusion should not be lightly overturned.

38.Regarding Ground 2, the respondent submitted that the reference to one of the assailants as “Lucky” was no more than a tag or label put on a person.  The prosecution did not seek to prove that the person described was indeed called “Lucky” or “Yamin”, hence, these references did not infringe the hearsay rule.

39.The respondent further submitted that any possibility that the jury might equate the applicant to the assailant by reference to PW2’s evidence that she was told Lucky’s real name was Yamin was effectively dispelled by the judge by the strong and repeated directions he gave the jury on this issue.

The respondent’s submissions against sentence

40.The respondent submitted that whilst the applicant’s mitigation was premised upon the fact that the applicant had maintained a clear record throughout the years, no further information was given nor any factors urged upon the judge to show that the applicant had rehabilitated himself and how he had been rehabilitated.  It was submitted that it is understandable in the circumstances that the judge did not regard the mitigation as warranting any reduction in sentence or any overriding consideration over deterrence.

41.Ms Lo submitted that the judge had rightly considered those aggravating factors in the case and correctly took deterrence as a significant consideration for sentencing of this brutal, cold-blooded unprovoked attack in a public place by a group of men on a lone unarmed victim.  Since the applicant’s criminality was equated with that of the other two assailants, the judge cannot be criticized to have taken the same starting point for sentence as the other two, maintaining fairness and parity amongst those who were equally culpable.

Discussion: The appeal against conviction

42.Before addressing the first ground of appeal it is well to remind ourselves of what was actually said in Turnbull.  Lord Widgery CJ first spoke of the directions that should be given by trial judges in order to reduce the danger of miscarriages of justice.  As no complaint is made about the adequacy of the judge’s directions or that they were not in some way Turnbull compliant, we shall not refer to what Lord Widgery CJ said on this issue.  What he did say that is relevant, was as follows:

“ Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

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.

In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution.

…

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 unless there is other evidence which goes to support the correctness of the identification.”  

43.Was the evidence of identification of PW1 and PW2 so poor, in the sense described by Lord Widgery CJ, that the judge was obliged to withdraw the case from the jury?  To answer this question it is necessary to briefly refer to what PW1 and PW2 had to say. 

44.PW1’s evidence of identification, can be summarised as follows:

(a)   PW1 had seen a person called Lucky in Chung King Mansions 9 or 10 times over a period of 5 or 6 months prior to the incident.  Other than saying ‘hello’, PW1 did not talk with Lucky.[12]

(b)   PW1 was not introduced to Lucky and only understood that his name was Lucky as he heard one of his friends call him by that name.  At the time Lucky was with a group of friends.[13]

(c)   On the evening in question, PW1 and PW2 came into contact with Lucky and two other men that he had seen before but whose names he did not know.[14]

(d)   PW1 recalled that one of the two men was called Jimmy.  He had seen Jimmy with Lucky as they used to be together. 

(e)   Before the attack he knew Lucky and Lucky was one of the people who had attacked him.[15] 

(f)   The last time PW1 had seen Lucky prior to the incident was just a few days before and he had seen Lucky from about 20 feet away.  He confirmed that he had never had a conversation with Lucky.[16]

(g)   PW1 estimated that the closest he had been to Lucky was about 2 metres when they passed by each other in a coffee shop.[17]

(h)   PW1 excused the vague description for Lucky given in the statement he made on 6 December 1997 as being due to the fact that he had not yet recovered.[18]

(i)   PW1 accepted that he had not referred to any memorable feature of Lucky in his statements to the police, and he merely stated that Lucky was 20 – 25 years old, 5 foot 7 – 8 inches with a thin build and white complexion.  Furthermore, the statement was taken in a rush and he did not think about Lucky’s other features. 

(j)   PW1 said he knew Lucky’s eyes well, though this was something that he had never put in any of his statements and had only mentioned it for the first time in court.[19]

(k)   PW1 mentioned other memorable features, namely, that Lucky has a longer nose that stood out a little. However, this was not mentioned before the trial.  PW1 was asked whether he had ever noticed a scar on Lucky’s upper lip and he replied that he had never been in close proximity to him and had not noticed.[20]

(l)   PW1 said he recognized the face and the shape of the face, making no mention of the eyes or nose.  PW1 felt that the applicant looked similar and was the same person.[21]

(m)   PW1 said he did not know about Lucky’s hair, past or present and had no memory of it.[22]

(n)   The identification was based on the applicant’s facial features, in particular his long thin face, his forehead and eyes.  None of these features were previously mentioned by PW1 in his statements.[23]

(o)   PW1 accepted that on 8 April 1998, he was unable to identify Lucky from 12 photographs that included the ID photograph of the applicant.[24]

45.PW2’s identification evidence can be summarised as follows:

(a)   She met Lucky in the middle of 1997 and was told by PW1’s friends that his name was Lucky.  PW2 met Lucky more than 10 times but the latter was always with a group of people.  PW2 had never spoken to Lucky and on each occasion, she had been about 7 feet away from him.  At the times PW2 met Lucky, she had a clear view of his face.[25]

(b)   At the time of the incident, PW2 engaged the applicant in conversation.  The first conversation lasted for 3 to 4 minutes and they continued talking as they walked into Mirador Mansions.  The second conversation lasted 2 to 3 minutes.[26]

(c)   She had picked out the applicant as the person whom she had known as Lucky because of his eyebrows, deep eyelids and deep sunken eyes.[27]

(d)   PW2 had not mentioned to the police at the time of the incident anything in relation to Lucky’s eyebrows, deep eyelids and sunken eyes.[28]

(e)   In her statement given on 27 November 1997, PW2 described Lucky as being 25 – 27 years of age, 5 foot 9 inches, slim build with moustache, black curly hair with blond dyed hair.  She said she did not mention the details in regard to his eyes, because she thought those other details given were sufficient.[29]

(f)   However, in the statement that she gave after having identified the applicant, PW2 stated that she had recognized Lucky as she recognized his face, shape of his face and body build.  As to why she had not mentioned in her statement after the identification parade the memorable feature of Lucky’s eyes, PW2 simply said that she did not see the point in telling all these details to the police.  When pressed about why she had never mentioned this detail, PW2 claimed that she had in fact told the police but they had not put it in the statement.[30]

46.The reality of the identification evidence of PW1 and PW2 is that it was recognition evidence and not evidence of a purported identification by persons who had no prior experience of the applicant.  Nor was this recognition evidence weak or poor in any way.  There had been a number of previous occasions, some 9-10 occasions, where PW1 and PW2 had experience of the applicantand these experiences had been where the two of them were in reasonably close proximity to each other.  Through these experiences they acquired a well-grounded familiarity with the applicant.  Thus, on the evidence of PW1 and PW2, if that evidence was accepted, there was no basis for saying that they lacked experience of the applicant that would be a foundation for being able to recognise him. 

47.As to the encounter with the applicanton the evening when the assault took place, it was not a fleeting encounter in poor lighting conditions.  PW1’s and PW2’s encounter with the applicantlasted a period of time on the day in question and PW2 was actually walking in company with the applicant and engaged in conversation with him for many minutes prior to the assault. 

48.Thus, the identification by PW1 and PW2 was of a person who was not a stranger to them, in circumstances where they had a lengthy, and not fleeting, opportunity to observe the applicant, and there was nothing in relation to the sighting which hindered or limited, or impacted in any way adversely on, PW1’s and PW2’s ability to see clearly the persons present.

49.Although Mr Beel sought to discredit the identification evidence he did so firstly on the basis that it was not recognition evidence as PW1 and PW2 had never seen the applicant previously; there had, in fact, not been 9‑10 prior encounters.[31]  Secondly, Mr Beel sought to show that it was of such poor quality that the jury should not be allowed to act on it.

50.In determining the no case to answer submission the judge had to consider whether the circumstances surrounding the purported identification and the passage of the intervening years had so affected the memory and recollection of PW1 and PW2 that the quality of their identification evidence had become weakened to the extent that it was now so poor that she should withdraw the case from the jury.

51.In answering this question the judge was obliged to take the prosecution case at its highest and this meant, in respect of the circumstances surrounding the identification evidence, that she was obliged to assume that the jury would accept the claim of PW1 and PW2 that they had encountered the applicant on 9-10 prior occasions in circumstances where they could see him clearly.  From this it can be reasonably inferred that they acquired a certain experiential familiarity with the applicantwhich, as we have said, would have formed the foundation for their asserted ability to recognise him.

52.Furthermore, both PW1 and PW2 were in close proximity to the applicantfor some time on the night of the attack in circumstances where neither was hindered in their ability to see those present.  Indeed, PW2 was in conversation with the applicantfor many minutes before the attack.

53.Finally, both PW1 and PW2 identified the applicant as one of the assailants at police identification parades that took place on 7 January 2016.  These were separate parades consisting of nine persons in which, at the request of the applicant’s lawyers, all the persons in the parades were seated, covered with blankets and wearing face masks.  Notwithstanding these extraordinary efforts, which had the effect of hindering an identification of the applicant, both PW1 and PW2 readily identified him.  The odds of them both picking the same person, out of nine, in these unusual circumstances, cannot be attributed to coincidence and adds to the quality of their identification evidence.

54.In respect of the asserted poor quality of the identification evidence Mr Beel made much of a failure by PW1 and PW2 to mention distinctive features of the applicant in their earlier police statements or mentioning or failing to mention such features in their identification parade statements and contrasting what they said in those various statements with what they said in court.  An example of this line of cross-examination in the following excerpt from the transcript contains very telling answers from PW2:

“Q. Then you gave a description of how you recognised the person you identified.

A. Yes.

Q. Again, you have an opportunity, did you not, to put in the fact of the reason why you could remember him was his eyes, his eyebrows, his deep sunken eyes, etc. All right? And what you said was that you recognised his face, shape of his face, and body build.

A. I could only tell you that I felt that he was very thin, although on that day, the line-up was having the upper part of body covered, I could still recognise the shoulders of that person. I could only tell you that I recognise him.

Q. Yes. You say you saw his body build, but all the people lined up were covered with a blanket up to their shoulders.

A. Yes. I could only tell you that once I entered the room, I saw him and I recognised him right away. I don’t know about the opportunity of telling the police what features I recognised him. I could only tell you that I recognise him.

Q. So you are saying that soon as you went into the room, you saw him?

A. I entered the room.  I walked in front of him, and then I recognised him.”

55.When a person identifies a stranger he or she may well do so by reference to a distinguishing feature.  But when a person recognises someone with whom they are acquainted, and whose features are familiar to them, it may not be by reference to a particular distinguishing feature but simply to their features generally, because he or she knows that person.  For example, Mr Beel repeatedly questioned PW1 about the applicant’s features which prompted PW1 to identify him.  He asked about the applicant’s eyes, nose, hair and finally his ears which then prompted the following, perhaps exasperated, response from PW1:

“Q. You didn’t recognise him by his ears?

A. I recognise him through his facial features, whatever covers the facial features, I recognised him by then …

Q. Could you just answer the question. It’s a simple question.

A. About the ear, I don’t know that much.”

56.Similarly, in respect of PW2 where, after Mr Beel had played back to her the video record of the identification parade, she responded to his questions as follows:

“Q. Now, you’ve just seen the parade.

A. Yes.

Q. So you agree now that you didn’t recognise him by his body build.

A. I agree.

Q. Right. And it was his eyes that drew you to making the identification.

A. The part of his eyes.

Q. Would it be fair to say that, at best, it was just a resemblance? That his eyes resembled the person that you had seen nearly two decades ago?

A. I don’t know how to put it, but as long as I saw him, I recognise him.

Q. From his eyes?

A. When I saw him, I recognised him.

Q. Yes, but predominantly, as you have said, it was the eyes that you remembered.

A. You may put it this way.”[32]

57.Given the state of the evidence at the end of the prosecution case we are satisfied that the quality of the identification evidence came nowhere near the poor level needed to trigger an intervention by the judge on Turnbull principles.  Indeed, in the language of Turnbull, the quality of this identification can be described as good. 

58.We turn now to the complaint that in determining the no case to answer submission the judge erred by not applying the Turnbull principles.  The judge prefaced her ruling on the no case to answer submission by saying:

“As there are authorities which state that it is neither necessary nor desirable to give reasons for my ruling at this stage, what I am going to say is simply this.”

59.She then went on to rule there was a case to answer, expressing herself in the language of Galbraith.  As the submission was one of no case to answer the judge had to rule that there was a case to answer and to so rule in terms of Galbraith.  Indeed, it is settled law that a judge has to rule on whether there is a case to answer even if no submission is made.  So a Galbraith ruling would have to have been made by the judge as her final determination of the application that was made to her. 

60.Mr Beel’s criticism really amounts to no more than that in determining that there was a case to answer the judge should have discussed the quality of identification evidence, in terms of what was said in Turnbull, and then reached a conclusion on whether she should withdraw the case from the jury.  The error that is asserted is not so much what the judge ultimately said, as she was in law obliged to say what she said, but by what she did not say. 

61.However, given that the judge deliberately, and quite properly, abbreviated her reasons for her ruling we are not willing to say that it follows from what she did not say that she must have failed to appreciate the submission that was being made to her or that she erred by not having regard to Turnbull principles.  In any event, as we have demonstrated, it matters not, as on Turnbull principles this was manifestly not a case of poor quality identification evidence.  Rather, it was the opposite; it was good quality recognition evidence.

62.In respect of Ground 2 we agree with Ms Lo.  The name “Lucky” played no role in the identification by both PW1 and PW2 of the applicant as being one of the assailants.  It just happened to be the name by which they knew this person.  This is not a case where the witnesses relied on the applicant’s name as the reason or one of the reasons they identified him.  PW1 and PW2 identified the applicant as one of the assailants because they were able to recognize him. 

63.For example, when PW1 was cross-examined by Mr Beel whether someone told him whilst he was in hospital that one of his assailants was called Lucky, PW1 answered:

“I don’t know, at the time I was in the hospital, whether somebody told me about that or not. But before the attack, I already know Lucky, and I know that Lucky was the one – one of them attacking me.”

64.As to how PW2 came to know that Lucky was Yamin, she explained as follows in cross-examination:

“Q. Who told you that his name was Yamin?

A. Tara’s[33] friends who told us that that one was Lucky, but after the event, some of his friends -- he was actually called Yamin.

Q. Unless you were told before you gave the statement, on 27 November, it was after the incident, and in between the time of the incident finishing and the time you gave a statement, this information was passed to you.

COURT: Pause there. Let me have the question again.

MR BEEL: I’ll put it clearer, if I may, my Lady.

Q. After Tara had been injured -- had been stabbed, to the time that you gave a statement, friends of Tara had given you this information.

A. Because I made several phone calls at the management office, I told his friends that something happened. And then I said one of them was Lucky, the other was Jimmy, and the third one, I don’t know his name. Then they told me that the real name of that Lucky was Yamin.

COURT: Pause there, first. ‘Because I made several phone calls in the management office’ When? Mr Beel, I am not sure. When did you make those phone calls?

A. When I was waiting for the police to come to take a statement to me, I made some phone calls.

COURT: On 27 November 1997.

A. Yes, because at that time I was arranged to wait at the management office.”[34]

65.Of course this was hearsay and so the judge directed the jury to ignore it as follows:

“… you would of course also recall Gigi telling you that she, herself, did not know the real name of Lucky. So even if you accept Gigi’s evidence, the fact that her friends had told her that Lucky’s real name was Yamin is not evidence that Yamin is indeed Lucky’s real name. So bear this in mind. Because Gigi herself has told you that she had no personal knowledge of the real name of Lucky. She just heard it from her friends.”[35]

“Now, the real name of Lucky. Limbu said he did not know the real name of Lucky. Gigi said the same, but she told you that someone had told her that Lucky was called ‘Yamin’. I have already told you that what Gigi heard from her friends is not evidence that Lucky’s real name is indeed Yamin. I have told you that, so bear that in mind.”[36]

“… this admitted facts [the second set of admitted facts] is also no evidence to prove that Lucky is indeed or actually called Yamin or Khan.”[37]

“… the police record is not proof that Lucky is actually called Yamin or is actually called Khan.”[38]

66.The judge had earlier directed the jury that they could only act on the evidence and had explained to them what was, and what was not, evidence. By directing the jury that what PW2, Gigi, heard as to Lucky’s real name being Yamin, was not evidence, the jury could have been in no doubt that they could not act on this aspect of PW2’s testimony. 

67.But, ultimately, this ground of appeal has no substance for the simple reason that, as we have said, it is abundantly clear from PW2’s evidence that she identified the applicant because she recognized him and not because of his name, whether it be his nickname Lucky or his real name Yamin.

Discussion: The appeal against sentence

68.Mr Beel does not take issue with the starting point adopted by the judge.  His only complaint is that the judge “failed to give proper consideration and weight to the Appellant’s rehabilitation from the time of the offence to the time of the conviction.”  In support of his ground of appeal, Mr Beel submitted that since the offence the applicant had led an unblemished life which demonstrated that this offence was more in the nature of an isolated youthful indiscretion that was quite contrary to the applicant’s present character.  Because the applicant was a different person now, there was no need for a sentence that was based on personal deterrence and in seeking a rehabilitative sentence he relied on the decision of the English Court of Appeal in R v Meyers.[39] 

69.The Meyers case involved an appellant who had pleaded guilty to offences of robbery and kidnapping.  Whilst on remand for these offences he had escaped custody and remained at large for a period of 8 years. The court described the change in his character that took place in this time as follows:

“During that time we are satisfied that his character changed. From being a person who appeared to have embarked on an entirely criminal lifestyle, he turned from that and led what appears to have been a wholly honest and industrious life … So far as we are aware, his life since his escape in 1986 has been entirely blameless. We are further told that during that time he has experienced a religious conversion, has recently been baptized and takes an active part in religious life.”

70.The appellant even elicited favourable comments from his prison officers.  The Court of Appeal said:

“We should observe also that his conduct in prison since his recent sentence is described as ‘exemplary’ and prison officers who have seen him recently and who knew him in his former life prior to 1986 tell us that he is a different character from the one they knew.”

71.Describing the case of this appellant as “an extraordinary one” the court determined that exceptional circumstances justified a significant reduction in the sentences imposed.  In so saying the English Court of Appeal was not laying down any new sentencing principle.  Courts have always been willing to depart from a sentencing norm or a usual sentencing practice when a defendant’s circumstances were so extraordinary or exceptional as to justify it.

72.Meyers was a violent and lawless person who seemed intent on a life as a career criminal.  His change of character was both dramatic and well proven.  The adjectives “extraordinary” and “exceptional” were well justified in describing his personal circumstances.

73.The applicant, however, cannot show such a dramatic turnaround in his life.  Little is known about his former life, the life he led over the last 20 years and his current life for nothing has been placed before us.  It is simply said that in the last 20 years he has not come to the attention of law enforcement and has not been convicted of any criminal offence.  What we do know is that he was detected by the police when he became the victim of a knife attack in which, according to Mr Beel “he had been slashed with a 12 inch knife leaving a 6 inch wound running down his back.”

74.One cannot, of course, draw any conclusions from this other than to note that it resonates more with the life he may have led when he attacked PW1 in 1997 rather than with the religious life of Mr Meyers when he came before the English Court of Appeal.

75.We do not find any favourable comparison with the circumstances of the Meyers case and we cannot find anything in what we have been told of this applicant which would suggest a character change or moral conversion of anything like the scale experienced by Meyers.

76.On the information given to the judge there is no basis for not giving full weight to the element of deterrence in determining the appropriate sentence for the applicant.  We do not accept that the life the applicant has led whilst at large constitutes the kind of exceptional circumstances which would justify imposing upon the applicant a sentence that was more rehabilitative in character.  There being no dispute with the judge’s starting point, which was the starting point adopted for the other participants in this joint enterprise, there is no justification for interfering with the applicant’s sentence.  

Conclusion

77.For these reasons we refuse the application for leave to appeal against conviction and the application for leave to appeal against sentence.

Ms Peggy Lo SPP, of the Department of Justice, for the respondent

Mr Trevor Beel, instructed by Mohnani & Associates, assigned by DLA, for the applicant