HKSAR v. Chan Yiu Shing and Others

(Ruling 5)

HCCC 41/2016

[2018] HKCFI 309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

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RULING ON THE ADMISSIBILITY OF THE 2^nd DEFENDANT’S IDENTIFICATION EVIDENCE

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1.The 2^nd defendant objects to the evidence obtained in a photograph identification session on 5 January 2017. I am informed that the 2^nd defendant’s photographs were positively identified by 4 police officers.

2.Mr Douglas Kwok, for the 2^nd defendant, advances two grounds of objection. 

3.The first ground is that the photograph identification session is in breach of rule III(b) of Rules and Directions 1992.  He notes that the indictment against the 2^nd defendant was preferred against him on 29 January 2016 nearly a year before the photograph identification was conducted. He argues that according to the rule, the 2^nd defendant should not be questioned about the offence in such circumstances. 

4.It should be noted that rule III(b) essentially provides that only in exceptional circumstances that questions relating to the offence should be put to the defendant after he has been charged or informed that he may be prosecuted. 

5.Mr Jonathan Man, for the prosecution, in response to the first ground submits that the rule has no relevance in the admissibility of the 2^nd defendant’s photograph identification evidence.  He notes that firstly that the Rules are a guide in the conduct of investigations.  I note also that non-conformity of the rules does not necessarily render any evidence obtained as a result liable to exclusion.  It will very much depend upon the circumstances of the complaint, in particular the rule in question and the nature and result of any infraction of it. 

6.As Mr Man rightly points out, the Rules relate to questioning of suspects and taking of statements.  Rule III(b) governs the situation where a law enforcement officer intends to conduct further questioning of the suspect after the decision has been made to charge him. 

7.The 2^nd defendant was not present during the photograph identification sessions and obviously no questions relating to the offences had been put to him.  The rule is neither applicable nor breached. 

8.The second ground is that the 2^nd defendant’s right to silence and right to a fair trial will be infringed if the photograph identification evidence is allowed to be adduced by the prosecution.  I do not see any issue in relation to any infringement of the 2^nd defendant’s right to silence.  Nor do I see any issue in relation to any infringement of the 2^nd defendant’s right to a fair trial.  I am informed that the 2^nd defendant was invited to participate in an identification parade but as was his right he refused.  In such circumstances, the police are entitled to conduct other forms of identification in order to address this issue.  This includes carrying out a photograph identification session. 

9.Mr Kwok also argues that the prejudicial effect of the photograph identification evidence outweighs its probative value to such an extent that it will infringe his right to a fair trial.  I see no basis for objection to the obtaining of this evidence and reliance upon it at trial.  It obviously will be a question of weight to be assessed together with all the evidence presented at trial.  

10.For the foregoing reasons, the application is refused. 

Mr Jonathan Man, SADPP, and Mr Gary Leung, SPP of Department of Justice, for HKSAR

Mr Douglas Kwok, instructed JCC Cheung & Co., assigned by Director of Legal Aid, for the 2^nd defendant