HKSAR v. Ejegi Edwin Robort

HCMA 90/2018

[2018] HKCFI 2838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 90 OF 2018

(ON APPEAL FROM TMCC 2145 OF 2017)

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Before: Hon D’Almada Remedios J in Court

Date of Hearing: 19 November 2018

Date of Judgment: 28 December 2018

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J U D G M E N T

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1.The appellant was convicted by a magistrate[1] after trial of one count of Criminal Damage, contrary to section 60(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. He was found to have damaged a “RASONIC” 32 inches LCD television (“TV”) belonging to the Hong Kong Immigration Department on 24 June 2017 at Ward B of the sick bay at the Castle Peak Bay Immigration Centre in Tuen Mun (the Immigration Centre). He was sentenced to 7 days’ imprisonment.

2.The appellant now appeals against his conviction.

The issue at trial

3.The issue at trial was the correctness of the visual identification by an assistant immigration officer, Mr Yip Hong Fu (PW1).  The identification evidence was wholly dependent on PW1 that it was the appellant who had damaged the TV in Ward B.  

4.The prosecution case was that PW1 had correctly identified the appellant as the one who damaged the TV.  

5.The defence alleged that the identification of the appellant by PW1 was mistaken.  The defence case was that he did not damage the TV as he was not in ward B.  It was the defence case that although he was detained in the sick bay on the 4/F the same floor as Ward B, he was in the isolation ward.  It was another detainee in Ward B who damaged the TV and not him. 

The prosecution case

6.On the 4/F of the Immigration Centre is the Sick Bay.  The Sick Bay has one isolation ward and four normal wards, ward A, ward B, ward C and ward D where persons in detention will be held if relevant conditions are met. 

7.PW1 moved the TV into Ward B on the morning of 24 June 2017.  At about 3.40 pm the same day, whilst PW1 was on patrol, he heard a loud crash which sounded like it was coming from Ward B.  He then went to check Ward B.  It was from the corridor looking in, he saw the appellant, who was a detainee of Ward B, pick up the TV from the floor and throw it back onto the floor.  The appellant then proceeded to dismantle the LCD TV.  PW1 told the appellant to stop and then called for reinforcement.

8.PW1 stated that the time from hearing the first crash until demanding that the appellant stop was about 30 seconds.  He was around 20 metres from Ward B when he first heard the sound.  It took him 4-5 seconds to arrive at Ward B.  PW1 was about 6 metres away from the appellant when he saw him throw the TV.  He could see the appellant’s face clearly as there was abundant lighting.

9.Upon the arrival of reinforcement by PW1’s colleagues, the appellant and the broken TV were removed from Ward B. 

10.PW1 said that there were about 5 to 6 detainees in Ward B at the time and did not see anyone else touch the TV apart from the appellant.  The other detainees were from Nigeria, India and Pakistan. 

11.PW1 described the appellant as having relatively dark complexion who was tall and thin.  He had seen him previously when he was on duty at the Sick Bay and had seen him no less than 20 times previously. 

12.PW1 was unsure when the appellant was transferred to Ward B.  However, he remembered that the appellant was transferred to the Isolation Ward on 18 May 2018.  PW1 did not have any grudge against the appellant.

13.DPC 4075 (“PW2”) arrived at the Sick Bay at 4.43pm to investigate.  He arrested the appellant at 5.15 pm in the Isolation Ward.  The appellant remained silent under caution.  PW2 identified the appellant in Court.

14.DPC 12987 (“PW3”) arrived at the Sick Bay at 6.30pm.  He made enquires of the other detainees in Ward B at the material time.  They all said they were unclear as to what happened.  PW3 took photos.  He did not take fingerprints on the TV for examination as anyone in Ward B could have touched it.  PW3 confirmed that the appellant complained about an alleged assault by an immigration officer after caution. 

Defence Case

15.The defendant said he was transferred to the sick bay on the 4/F on the 4 May 2017.  It was his case he all along remained in the Isolation Ward, he was still there on 24 June 2017.  At no time was he in Ward B.  He never damaged the television.

16.On 24 June 2017 he did not meet a police officer and was not arrested or cautioned.   He met PW3 for the first time on 29 June 2017 for statement taking. The latter never accused him of damaging the television.  He complained to PW3 he had earlier been assaulted by immigration officers with pepper spray and he sought police intervention. 

Magistrate’s findings

17.The magistrate in her Statement of Findings, found that the prosecution had proved their case beyond reasonable doubt.  She highlighted that she is a professional judge and drew no adverse inference from the fact the appellant was in detention at the Immigration Centre.

18.The magistrate found PW1 to be honest and reliable who bore no grudge against the appellant and she found no reason as to why he would want to set up the appellant for the offence.  She found PW1 was able to recognise the appellant and that it was the appellant whom he saw in Ward B damage the TV on 24 June 2017. 

19.On the other hand, the magistrate found the appellant to be unreliable and unbelievable.  She found incredulous the appellant’s assertion that he was not arrested and cautioned on 24 June 2017.

Grounds of appeal

20.Counsel for the appellant, Mr Hanif Mughal advanced six grounds of appeal.   For the purposes of this appeal.  I shall not repeat the grounds but will use my own paraphrase.

Grounds 1, 2 and 4

21.I turn first to deal with grounds 1, 2 and 4 as they deal with the error made by the magistrate in accepting the correctness of PW1’s evidence in identifying the appellant and the magistrate’s lack of detail in her statement of findings as to the guidelines laid out in R v Turnbull (1977) Q.B.224 (“the Turnbull guidelines”).

22.Mr Mughal’s submissions were that although the magistrate was appreciative that this was a case where the Turnbull guidelines were applicable she did not state or explain in her statement of findings sufficiently or at all how she assessed and evaluated the relevant evidence in accordance with them.  There was no indication that the magistrate reminded herself of the potential risks and dangers of a mistaken or wrongful identification. 

Ground 3

23.Given the lack of any corroborative evidence of identification of the appellant being in Ward B, the magistrate erred in finding that the prosecution had proved the appellant was in Ward B at the material time.

Ground 5

24.The magistrate was wrong to accept PW1’s evidence as reliable despite the serious and substantial discrepancies in his evidence.

Ground 6

25.The general ground that the conviction of the appellant was both unsafe and unsatisfactory. 

Consideration

26.The principal issues on this appeal are if the magistrate applied the Turnbull guidelines appropriately and was the magistrate wrong in finding the identification evidence of PW1 reliable and correct. 

27.The identification of the appellant depended wholly on the correctness of his identification by PW1 of which the defence alleged was mistaken.  

28.The Turnbull guidelines set out factors to be considered when considering identification evidence.  These factors should be taken into consideration by either a judge or magistrate sitting alone or by the jury. They include the following:

(i) To avoid the risk of any injustice where in some cases defendants have been convicted on the basis of mistaken identification, there is a special need for caution before convicting a defendant in reliance on the evidence of identification,  

(ii) That it must be born in mind a witness who is convinced in his own mind may appear as a result to be a convincing witness, but may nevertheless be mistaken;

(iii) A judge or jury should be directed to examine closely the circumstances in which the identification by each witness came to be made, for example:

a)  How long did the witness have the accused under observation;

b)  At what distance;

c)  In what light;

d)  Was the observation impeded in any way, for example by passing traffic or a press of people;

e)  Had the witness seen the accused before,

f)  The frequency of previous encounters;

g)  The time that had lapsed since the previous encounter and

h)  Any material discrepancy between the description of the accused given to the police and his actual appearance.

29.In this case it is clear that the above factors of identification were alive to the magistrate as in her statement of findings at paragraph 2 headed “Main Issue” she set out the question “was defendant the culprit following Turnbull guidelines?” 

30.The magistrate however did not recite or set out the Turnbull guidelines but in the heading of “Analysis” in her statement of findings she set out her reasons for accepting PW1’s evidence and rejecting the appellant’s evidence.  She then went on to state she was satisfied that the LCD TV was damaged by the appellant as follows[2]:

“13. P1 (4-10) clearly showed the television designated for ward B was damaged. Though it has been removed by immigration officer before police arrival, Court was satisfied the fact remained it was damaged by defendant who threw it and further dismantled it. The fact that no detainee claimed to have witnessed or known anything about this matter was neither here nor there because it could simply mean they didn’t want to say anything for or against the defendant.”

31.It is trite law that a magistrate sitting alone must direct himself to the factors as laid down in Turnbull.  There is no set formula as to how this should be undertaken and to what detail must be involved. 

32.In HKSAR v Wan Yat Man [2015] 1 HKLRD 586 at para 35 Deputy Judge Albert Wong (as he then was) said:

“35. As long as the magistrate took into account relevant factors and made an appropriate assessment and evaluation, she does not need to recite the Turnbull guidelines one by one, however she was duty bound to set out in the statement of findings in what way she took into account the guidelines and how she carefully assessed and evaluated the relevant evidence.”

33.I accept that the magistrate unfortunately, did not set out clearly her assessment and evaluation of the evidence in her statement of findings but simply made a bold statement that she accepted PW1’s evidence and consequently his identification of the appellant. 

34.The central issue to be considered here is, was the magistrate in accepting PW1’s evidence carefully assessing and evaluating the identification evidence as laid down in Turnbull. 

35.PW1 was the officer working in the Sick Bay of the Immigration Centre. On 24 June 2017 he was on duty in the sick bay from 7.30 am to 4.20 pm that day. 

36.It is clear from the magistrate’s acceptance of PW1’s evidence that PW1’s identification of the appellant was one of recognition. 

37.When regard is had to the transcript it can be seen from the questions asked by the prosecutor and on occasion clarified by the magistrate, that the magistrate was aware of and was alive to the relevant factors as laid down in Turnbull in relation to the identification by PW1.  The answers to some of the questions posed and clarified were as follows:[3]

“Q So, have you seen this detainee before?

A. Yes. Yes.

Q. How often have you seen him?

A. Because he is mainly detained in sick bay, so I will see him whenever I am on duty in sick bay.

Q. So, about the observation at the time of the offence, is there anything blocking your view between you and the detainee?

A. Actually, there is (Punti) ...

MR HUI:  “A gate.”

PUNTI INTERPRETER: “... gate.” “... there is a gate.”

A. But there are bars with space in between.

Q. So can you or can you not see him clearly or see him through this gate?

A. Clear.

COURT: You said you will see him whenever you are on duty at sick bay.

A. As long as he is in the sick bay.

COURT: So, roughly how many times have you seen him before?

A. I do not remember.

PUNTI INTERPRETER:  Or “I did not count.”

COURT: So, how long has he been in sick bay as far as you know?

A. Well, over two to three months.

Q. So, ...

COURT: Now, in those two to three months, did you report on duty at sick bay every day or just on and off or what?

A. Well, on every morning when we report to duty on that day, we will be informed of where to be ...

PUNTI INTERPRETER: “Where we are going to be”.

A. ... on duty.

COURT: So you didn’t report on duty at the sick bay every day; is it correct?

A. That’s correct.

COURT: So, again, the question is how many times have you seen him before, roughly?

A. I think not less than 20 times.

Q. So, at the time you saw him dismantling the television, you are able to see his face -- are you able to see his face?

A. Yes.

Q. So, if you see this detainee again, are you able to recognise him?

A. Yes….

……….

At the end of the defendant’s cross-examination of PW1, all the following questions were asked by the magistrate:

[4]…BY COURT

Q.  Well, let me just ask you, when you first heard the big noise coming out from a ward, a certain ward, how would you describe that noise?

A.  Well, to describe?

Q.  Noise of what?  What kind of a noise is that?

A.  It’s like some item dropped on the floor.

Q.  So it’s a loud crash sound?

A.  Well, it’s like a big noise coming from kind of an item being dropped on the floor.

Q.  How big is big, actually?

A.  Because I was quite ...

PUNTI INTERPRETER:  “Actually quite”.

A.  ... far away from that spot but, still, I could hear a big noise.

Q.  Now, so, how far away were you from Ward B, actually?

A.  I think I was around 20 metres away.

Q.  So it was a crash -- big -- huge crash sound; would you agree?

A.  Yes, like crash, big crash.

Q.  Now, how many minutes did it take for you to walk from your position to Ward B?

A.  Four to five seconds.

……..

Now, ...(indistinct) the first loud sound, you heard it like four, five seconds before you arrived at Ward B?

A.  Right.

Q.  So explain to me and -- how come you on arrival at B you would see the detainee holding the TV and then throw it on the ground?

A.  At the time of my arrival at the scene, the TV was already on the floor and then I saw that the detainee picked up the TV from the floor and lifted it up and threw it on the floor again and then he tried to dismantle the TV.”

38.From the above exchange the magistrate was alive to the issue of PW1’s recognition of the appellant and was evaluating the time and the circumstances that PW1 had seen the appellant.  It is evident that not only had PW1 seen the appellant not less than 20 times previously but he had seen him whilst he was on duty in the past month whilst the appellant was detained in the Sick Bay.  The recognition of the appellant was clearly someone he knew and had seen on numerous occasions.  PW1 had seen the appellant during his approximate 8 hours of duty whilst on patrol in the Sick Bay.  

39.Further evidence of PW1’s identification of the appellant which the magistrate accepted was the following:

(i)  Whilst the appellant was dismantling the TV, PW1 was observing him for around 25 seconds (30 seconds minus 5 seconds, from time he heard the loud bang to time he reached Ward B);

(ii)  During the 25 seconds PW1 was able to see the appellant’s face clearly;

(iii)  PW1 was at a distance of about 6 meters away from the appellant during the observation;

(iv)  There was abundant lighting;

(v)  There was a gate between him and the appellant but it was not blocking his view;

(vi)  he could see clearly the appellant clearly through the gap between the bars on the gate (see in photos[5]);

(vii)  The other persons in Ward B were seated;

(viii)  No other person in Ward B was touching the TV at the time and

(ix)  His complexion was dark and he was quite tall and thin. 

40.Although there was an absence of the specific detail by the magistrate in her statement of findings in relation to the Turnbull guidelines, in this case, this lack is not fatal to the conviction.  Magistracy appeals are by way of rehearing.  An appellant court should objectively determine whether the magistrate’s finding cannot be reasonably explained or justified i.e. whether the finding was one that no reasonable magistrate could have reached.   

41.The magistrate explicitly mentioned in paragraph 2 of her statement of findings :

“Main Issue

2. Was defendant the culprit following Turnbull guidelines?” 

Although this regrettably, was a bare reference, bearing in mind that the magistrate is a professional judge she must have borne the guidelines at the forefront of her mind. 

42.The identification by PW1 was not of a fleeting glance encounter.  It was an observation not made in difficult circumstances of about 25 seconds. The lighting was abundant.  PW1 was able to see where clearly between the gaps of the bars of the gate which were from floor to ceiling (similar to a prison cell).  This gate was the partition between the ward and the corridor where PW1 was making his observation.  It was made at a close distance of about 6 metres.  PW1 was a trained officer on patrol duty who processed the observation of the appellant thoroughly. 

43.Having reviewed the evidence before me and I am satisfied and am so satisfied that the magistrate, was aware of the apparent dangers of PW1 being a convincing but nevertheless making a mistaken and incorrect identification of the appellant. 

44.In my view, the magistrate was fully entitled to have found that PW1 was a reliable witness and correctly identified the appellant. 

45.Grounds 1, 2 and 4 fail.

Ground 3

46.Mr Mughal submitted that the crux of the appellant’s case was that he was in the isolation ward all along and thus could not be in Ward B at the material time.  He further submitted that in view of the poor quality of identification there was a lack of corroborative evidence that the appellant was in Ward B at the material time in that the prosecution failed to adduce evidence of finger prints and immigration records which would assist in placing the appellant in Ward B. 

47.The appellant avers that fingerprint evidence on the TV would have been significant as it would have at least placed the appellant amongst those present in Ward B.  Further that internal records of the Castle Peak Immigration Centre would have shown whether the appellant was in Ward B or not. 

48.With regard to the complaint that a fingerprint examination should have been carried out, the absence of fingerprint evidence to prove the appellant’s guilt was neither here nor there.  The prosecution is not required to provide such evidence in a criminal case.  In the judgment of HKSAR v JASSEY FRANCIS JA AND OTHERS [2018] HKCA 369, the Court of Appeal held:

“42. I shall deal first with D2’s grounds of appeal against conviction. The absence of DNA and fingerprint evidence to show that a defendant has handled a vital exhibit is a neutral fact: see, for example, HKSAR v Law Wing Hong; HKSAR v Pham Thi Nga; HKSAR v Butt Ummar; HKSAR v Tsuchiya Koji; HKSAR v Dramane Mouhamed Saiti. The prosecution are not required to provide such evidence in a criminal case, and nor does the absence of such evidence in the normal course undermine a prosecution. The same may be said of CCTV evidence.”

49.The absence of the production of the internal records does not undermine the prosecution case either. 

50.In any event, the magistrate’s acceptance of PW1’s identification evidence of the appellant concluded that the appellant was in Ward B at the material time. 

51.This ground of appeal fails. 

Ground 5

52.The appellant submitted the magistrate was wrong in accepting PW1’s evidence as there were serious and substantial discrepancies and had given ambiguous and uncertain responses.  These matters are indicators which individually and collectively go to the reliability and accuracy of PW1’s powers of observation.

53.Mr Mughal relied on the following:

(a)  PW1 was uncertain as to how many detainees were in the room with the culprit at the time or what the detainees were doing;

(b)  PW1 was only able to say after witnessing the incident no less than 10 colleagues arrived and he was not sure which one of his colleagues moved the damaged TV out of Ward B;

(c)  PW1 was vague in his description of the appellant as “of quite dark complexion, quite tall and not fat but thin.”  Whilst this was contradicted by PW2’s description as being “not fat, not thin, strong.”

(d)  PW1 was unsure as to how many times he met the appellant before the incident until the magistrate continued asking him he simply gave the estimate that he thinks not less than 20 times and

(e)  PW1 was unsure as to when the appellant was moved to the sick bay and when he was transferred out of the Isolation Ward.

54.As to (a) and (b) above, PW1 was focusing on the appellant whilst he was damaging and pulling the TV to pieces, the fact that he was unsure as to the number of detainees in the room or what they were doing and how many colleagues arrived afterwards does not affect PW1’s reliability and accuracy, in the circumstances. 

55.As to (d) above although PW1 did fail at first to provide an exact number of how many times he met the appellant, he said he did not count, when asked he gave an estimated figure.  There is no inconsistency in PW1’s evidence.

56.The argument in (C) of the discrepancy in description were subjective views differing slightly these are not material. 

57.Turning to (e) above PW1 being unsure as to when the appellant was moved to the sick bay or was transferred out of the Isolation Ward has no bearing on the accuracy or reliability of PW1’s evidence. 

58.Ground 5 fails. 

Conclusion

59.There is nothing before me to suggest that the magistrate was plainly wrong.  I find that there are no merits in this appeal and find that the conviction is neither unsafe nor unsatisfactory.  The appeal against conviction is dismissed.

Mr Jones Tsui, SPP of the Department of Justice, for the respondent

Mr Hanif Mohamed Mughal, instructed by Messrs Morley Chow Seto, assigned by DLA, for the appellant