Case Document

100%Judiciary

CACC 345/2017

[2019] HKCA 312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 345 OF 2017

(ON APPEAL FROM DCCC NOS 321 AND 452 OF 2017 (CONSOLIDATED)

________________________

BETWEEN
	HKSAR	Respondent
	and
	RIASAT‑ALI (D1)	Applicant

________________________

Before: Hon McWalters, Pang JJA and M Poon J in Court

Date of Hearing: 6 March 2019

Date of Judgment: 6 March 2019

Date of Handing Down Reasons for Judgment: 21 March 2019

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon M Poon J (giving the reasons for judgment of the court):

1.The applicant was convicted of one count of burglary (jointly charged with another defendant), contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 by Deputy Judge A Yim (“the judge”) in the District Court, and was sentenced to 33 months’ imprisonment. It was also ordered that the applicant pay compensation of HK$500.00 to the owner of the victimised premises. The applicant’s application for leave to appeal against conviction and sentence before the Single Judge was dismissed on 5 October 2018. He filed a Form XIII to renew his application for leave to appeal against conviction and appeared in person before us. We refused leave and dismissed the appeal. We indicated that we would hand down our reasons in due course. That we do now.

The prosecution case

2.A burglary of the store room at the roof top of No 905 Canton Road, Mongkok, Kowloon was committed at about 9:55 am on 12 February 2017. A CCTV camera installed inside the store room captured the course of the burglary. It showed that two of three South Asia men climbed through a window which was prized open. They ransacked the room for about 2‑3 minutes, whilst the third man remained outside the window throughout.

3.The prosecution case was that the applicant was the first man who entered the store room as captured by the CCTV recordings as a man of slim physique in a white top without a cap.

The defence case

4.The applicant elected not to give evidence but called a friend, Ahmed Ishtiaq, as a defence witness. Mr Ishtiaq considered that the CCTV footage was clear, but that the sound track was not. He testified that his first impression was that he suspected the man depicted was the applicant but, when he viewed it again, he concluded that was only someone who resembled the applicant. He remarked that the person captured looked younger, shorter, and had curly hair, with a pitch and accent different from that of the applicant. He was sure that was not the applicant.

The reasons for verdict

5.The judge pointed out the only live issue in the case of the applicant was identification: “was D1 the first male that entered the storeroom?” She viewed the CCTV recordings, examined the still images obtained from them and compared them with the applicant in the dock. She had direct exchanges with the applicant[1] . She found that the CCTV footage to be of high clarity which enabled her to do the comparison[2] . She reminded herself the potential risks of such comparison and mistaken identity[3] and stressed that “resemblance, in the sense of similarity, in appearance is not sufficient”[4] .

6.The judge assessed the evidence of Mr Ishtiaq and found that he was not an honest witness[5] . She gave a number of reasons for rejecting his evidence[6] .

7.Upon comparison, the judge was sure that the burglar in the white top without a cap was the applicant, although the applicant had his hair cut and had a slightly different skin tone consistent with suntan.

Grounds of appeal against conviction

8.The applicant, acting in person, reiterated that the burglar as depicted in the CCTV was not him and that he could have an identical twin. It was further submitted that in the absence of supportive evidence such as DNA and fingerprint evidence, it was unsafe for the judge to convict him on the basis of lookalikes. He said that after conviction his co‑accused told him that it was another person with whom he committed the burglary.

Respondent’s submission

9.Ms Lo, for the respondent, submitted that the judge gave herself a full Turnbull warning when comparing the appearance of the applicant in court against that of the burglar in the CCTV footage. She applied the appropriate legal principles and convicted the applicant on the basis that she was sure that the applicant was the burglar in the white top without a cap in the CCTV footage. Ms Lo submitted that the conviction was neither unsafe nor unsatisfactory.

Consideration

10.This is not a case of dock identification where a witness or witnesses were asked to identify a defendant from the dock for the first time after the incident. Nor is this a case where evidence of identification of an accused person is given by a witness whose previous knowledge has not made him familiar with the appearance of the accused but has been shown the accused alone as a suspect. Rather, this is a case where a tribunal of fact is asked to perform its own identification exercise and reach a view on whether the applicant is the person in the CCTV footage[7] .

11.Before the tribunal of fact is entitled to do such a comparison, the CCTV footage or photographic image has to be sufficiently clear: A‑G’s Reference (No 2 of 2002)^{^[8]}.

12.The judge found that:

“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.”[9]

13.Having viewed the CCTV footage in court, we agree that it was of high quality which entitled the judge to make comparison with the appearance of the applicant. The judge was able to observe the applicant throughout a 6‑day trial period between 30 August and 29 September 2017[10] . She said:

“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.”

14.The judge also had direct dialogue with the applicant on the second day of trial when his counsel was discharged. Accordingly, she had the opportunity to observe the applicant from different angles and viewpoints. She also viewed the CCTV recordings repeatedly and at different speeds^{^[11]}.

15.The judge considered the case of HKSAR v Tagao Saudee Abad[12] . We quote the following passage which is relevant to the present appeal:

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

66. The distinction between the two situations is important because it affects the directions that may have to be given to the jury. In the former situation, where the jury is assessing the reliability of recognition evidence it may be that no full Turnbull direction is necessary. . . .

68. In the second situation some form of Turnbull direction may be necessary to at least alert the jury to the dangers of mistaken identification. . . . ”

16.In the present case the judge gave herself a full Turnbull warning when comparing the appearance of the applicant before her with the person shown in the CCTV recordings and the still images extracted from the recordings. She was alive to the requirements laid down in the court in Dodson & Williams[13] ^&[14] . Although it is not possible to lay down an immutable requirement to be applied in every case, see Tagao Saudee Abdad, supra, we are satisfied that the judge’s warnings to herself, based on the authorities of Turnbull and Dodson & Williams, are adequate for the purpose of the present case.

17.The judge had the advantage of seeing and hearing Mr Ishtiaq’s evidence. She set out in considerable details her reasons for rejecting his evidence. We would not venture to disturb this assessment of his credibility.

18.So far as the judge has given herself the necessary warning and demonstrated that she has borne in mind those perils that she should be aware of whilst performing the comparison exercise, the lack of DNA of fingerprint evidence does not render the conviction unsafe.

19.In light of the foregoing, we refused the renewal application for leave to appeal against conviction and dismissed the applicant’s appeal against conviction.

Loss of time

20.In the Single Judge judgment of Macrae VP, the applicant was informed of the court’s power to order loss of time. He was further reminded of it in the Form XII (Notice of Order of the Single Judge) and the Form XIII (Notice of renewal of Application after Refusal by the Single Judge).

21.The applicant was invited to address us on whether loss of time should be ordered. He admitted to have wasted the court’s time but said that he was in a difficult situation as there was no one to take care of his family. He asked for leniency.

22.The application for leave to appeal against conviction was totally devoid of merits. Although in the Single Judge judgment Macrae VP had given detailed reasons explaining the lack of merit in his application and warned him against the risk of a loss of time order being made against him should he renew his application, the applicant still insisted in making this application. We found this an appropriate case to make a loss of time order under section 83W(1).

23.We therefore ordered a loss of time of 8 weeks.