HKSAR v. Ali Mumtaz

DCCC 464/2020

[2021] HKDC 458

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 464 OF 2020

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Reasons for Verdict

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1.The 1st defendant faces a single charge of burglary and it is alleged he committed, or as part of a joint enterprise, burglary with the 2nd defendant on a building site in Ho Man Tin, the construction site of the Open University in Ho Man Tin.

2.The prosecution case was that initially two men were seen outside the construction site via the CCTV camera by the 1st prosecution witness.  One was seen to be on a bicycle.  1st prosecution witness was later to say this man was apprehended on a similar bicycle near a traffic light some distance from the construction site. 

3.It was believed that the two men seen earlier had entered the site.  One man, the 2nd defendant, was later apprehended near some copper wiring inside the site. 

4.The 2nd prosecution witness looked for the other man.  He saw what he said was another man leaving the site by the scaffolding.  It was the prosecution case that this man was seen to get onto a bike parked by the site to make off on the bike.  The 2nd prosecution witness gave chase and stopped this man near the traffic light.  This man who was apprehended is the 1st defendant.  That appears to be on the evidence of the prosecution case taken at its highest.  There is no actual evidence that the defendant ever entered the site. 

5.The summary is what I would describe the best possible interpretation of the evidence of the prosecution.  The evidence itself was given in a confused, inconsistent and contradictory manner by the witnesses.  The witnesses were not dishonest or lying.  Their method of delivery allowed for vagueness and uncertainty. 

6.PW1 initially said he saw two persons outside the site.  It is 1 o’clock in the morning.  He is relying on street lighting and he is looking through a CCTV camera.  He said one wore blue jeans and a grey-coloured shirt.  No evidence was ever given by the witness if the CCTV camera was a coloured or black and white version.  This is significant as the victim later saw the defendant and his recollection as to colours may stem from this later observation, not for what he saw on the CCTV camera.  In any event, he was looking through a CCTV camera at a night time scene.  However, no recordings were ever brought to court of the CCTV recording and maybe they were not available. 

7.However, it is a significant omission from the evidence that I was not able to assess whether his colour observation of clothing were primary observations or secondary.  He did say he could not see the man ethnicity.  The man that PW1 initially had seen vanished.

8.Later, the man was caught by the traffic light.  He was in blue jeans and a grey shirt.  This man was on a bike which PW1 said was of the same type of bike that he had seen earlier on the camera. 

9.PW2, the witness whose observation was primarily relied on, was on the bridge.  He initially said he saw two people trying to come up.  One was Nepali.  He later said and not much later that the man he caught was climbing down, not up.  This question was asked:  “First time you saw the second male, what was he doing?”  The answer was “As soon as he heard voices, he tried to climb down.  He was near the ground on the scaffolding 70 feet away.  He went down and tried to get away on a bike.”  He described this man as small, clean shaven, thin hair.  He could not describe his clothing. 

10.He ran down and said he caught him, the man, at the red light traffic light which is outside on the road outside the construction site some distance away.  He said he did not clearly see the bike at the time.  He was looking at the person. 

11.PW2 has later described his observation of the man as just the blink of an eye.  PW2 agreed that he had lost sight of the man when he went down the escalator to chase him but also whilst crossing the road. 

12.In cross-examination, the following question was put:  “You didn’t see him come down the scaffolding and get on the bike.”  His answer to this was “I agree”.  That would appear to contradict what he had said earlier.  Question:  “Apart from the Nepalese man, did another climb up the scaffolding?”  He said, “Yes”.  “He was not the man on the bike?” The answer to that was somewhat enigmatic, he would say “I would say no”. 

13.It is clear from this that for an identification of the defendant as the man on the scaffold and later apprehended on

the bike that only the 2nd prosecution witness could provide the only reliable evidence of this and I do note he described his observation as being in the blink of an eye. He later said it was a few seconds. Clearly, this is a textbook description of what is described as a fleeting glimpse in R v Turnbull where a special need for caution is required by the court in assessing the validity and value of such evidence.

14.PW1, from his evidence, could not say the man he saw had entered the building site.  He was outside the site with another man was what he said.  His connection of the defendant with the CCTV observation has to rely entirely on the colour of the clothing and the type of bike.  This, I find, is inherently unreliable given the way in which he made the observation and the lack of specificity in the observation and the fact that the observation and primary observation was made by way of CCTV camera.  Clearly, the colour of clothing and type of bike cannot be relayed to the court or identified to a criminal standard.  At best, it can be said that the person PW1 saw and the person who was apprehended may be the same.  It is possible but not certain. 

15.PW2’s observation was from a distance at night in a poorly lit area.  He said it was some 70 feet and his observation of the man was, at best, a fleeting glimpse at the time of his initial observation.  PW2 said he did not see the man get on a bike.  He said his observation was continuous but later said it was broken when he went down the escalator. 

16.Again, my assessment of PW2’s evidence in this case that his evidence of identification of the defendant as being this man does not realistically reach the criminal standard.  PW1 and 2’s evidence taken together amounts to suspicion and possibility but not criminal certainty. 

17.For this reason, the charge against the 1st defendant will be dismissed.