HKSAR v. Ashrif Mehmood

CACC 314/2019

[2021] HKCA 703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 314 OF 2019

(ON APPEAL FROM HCCC NO 100 OF 2019)

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BETWEEN

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Before:  Hon Macrae VP, Pang & Zervos JJA in Court

Date of Hearing:  7 May 2021

Date of Judgment:  7 May 2021

Date of Reasons for Judgment:  14 May 2021

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REASONS FOR JUDGMENT

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Hon Pang JA (giving the Reasons for Judgment of the Court) :

Introduction

1.Following a trial before A Pang J (‘the judge’) and a jury, the appellant was convicted of one count of robbery (Count 1) and one count of wounding with intent (Count 2), and was sentenced to a total of 9 years and 9 months’ imprisonment.

2.The appellant sought leave to appeal against his convictions.  Attached to his Form XI was the case report prepared by his trial solicitor setting out the initial ground of appeal :

“ Given the questionable and dangerous quality of the identification evidence, being the only evidence produced tying the Defendant to the charges, the court erred in allowing the said identification to proceed to the jury.”

3.Before the single judge,[1] the same ground was confirmed to be the appellant’s only ground of appeal and taking the view that this ground involved a question of law which did not require leave, the single judge directed that the matter be set down before the Court of Appeal.

4.At the hearing of the appeal, we dismissed the appeal and said we would give reasons for our decision in due course.

The Prosecution Case

5.At about 10.30 pm on 13 October 2018, a Mr Mostofa, himself a Bangladeshi and the victim in this case (‘PW1’), was waiting for his girlfriend in Kik Yeung Road, Yuen Long when, at a distance of ten to 15 metres,[2] he could see an argument going on between one Bengali-speaking male and five to six others.  Because of the lighting of the row of “Nepalese shops” right outside of which this altercation took place,[3] PW1 was able to see and recognise all those who were involved, not least the side with more men whom he thought were Pakistani.  For two and a half years this group had hung around in the same area and patronised places which PW1 also patronised.  An example was the “Filipino discotheque” which they would all go to during the weekends.  They were not his friends but amongst this group was the appellant whose name PW1 knew was Ashrif.[4]

6.The argument with the Bengali-speaking male lasted for ten to 15 minutes, after which the appellant came up to PW1, pushed him around and demanded a “tax” of $5,000.  By this stage, PW1 could see the appellant clearly[5] and having refused to yield to his demand, was subject to a series of violent attacks by him and his associates.  They also pulled and tugged at the bag that PW1 was carrying.  Eventually PW1 lost consciousness and when he came to, the bag with all its contents was missing.  The prosecution case was that the group had taken it.

7.During a police sweep eight days after the attack (21 October 2018), PW1 spotted and identified the appellant as was one of his attackers.  He did not however mention what the appellant’s name was, nor did he tell the police where the appellant frequented.  It was in his third witness statement taken some three months after the incident (24 January 2019) that he named the appellant.  In his fourth and final statement (May 2019) he said he in fact recognised all his attackers.[6]

8.In cross-examination, it was put to PW1 that the appellant was not involved in the offence,[7] that he named the appellant only to strengthen his identification at the sweep, and that for some reason he had persisted to implicate the appellant knowing that it was untrue.[8]

The Defence Position

9.The appellant did not testify, nor did he call any witnesses.  Through counsel, it was nevertheless clear that his case was that PW1 was either mistaken or he was making a deliberate and false identification against the appellant, for some unknown reason.

The Genesis of the Present Appeal

10.At the end of the prosecution case, counsel for the defence[9] submitted that the case concerning both counts should be withdrawn from the jury.  She submitted that the prosecution case was hinged solely on PW1, ostensibly on a case of recognition, whereas his initial report to the police was that he did not know any of his attackers.  That was the first cause for concern.

11.Counsel further argued that once it was accepted that this was not a genuine case of recognition, the court should be even more cautious as to the circumstances in which PW1 made his identification.  Given the time of night, the suddenness of the situation and the chaos which ensued following the attack, she submitted that it was an identification made in “very difficult conditions.”

12.Returning finally to his change in case from non-recognition to recognition, counsel referred to the initial description which PW1 gave of his assailants and laid emphasis on how a mismatch it was with the appellant.  Her suggestion was that someone had worked PW1 up to pointing his finger away from the true culprits.

13.Whilst accepting that both the question of credibility and reliability of witnesses were matters for the jury, counsel submitted that the identification evidence of PW1 was of such a tenuous nature and was so inherently unreliable that no properly directed jury could have convicted on it.  Accordingly, the case ought to be withdrawn from the jury.

14.Having heard the prosecution who opposed the application, the judge ruled against the defence and stated as follows :[10]

“ Submissions were made before me by Ms Crebbin for the accused that there is no case to answer in respect of each of the two counts on the indictment. Mr Parry for the prosecution submitted otherwise. I have considered the submissions and have reviewed the evidence carefully. However, as there are authorities which stated that it is neither necessary, nor desirable, to give reasons for my ruling at this stage, all I’m going to say is simply this: having considered the evidence available and the submissions advanced, 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 of each of the two counts he faces and could properly reject or exclude as unreasonable all other possibilities.

In arriving at this conclusion, I have taken into account the established principle in the case of Turnbull that when the quality of the identification evidence is poor, the court should withdraw it from the jury, unless there is other evidence which goes to support the correctness of the identification.  The prosecution case here is one of recognition.  Of course, whether the evidence is accepted by the jury or not is a matter for them, but I do not find it to be of such a tenuous character that the case should be withdrawn from the jury.  See also page 1009 of Hong Kong Archbold 2019 edition, paragraph 14-4.  I therefore rule that there is a case to answer in respect of both the first and the second count on the indictment.”

The Appellant’s Submissions

15.Having been refused legal aid or any help from the Bar Free Legal Service and Hong Kong University Law Clinic, the appellant who acted in person indicated that he was content to leave the matter with the Court of Appeal.

The Respondent’s Position

16.Counsel for the respondent[11] opposed the appeal.  In her written submissions, she submitted that there were essentially two contentious issues at trial, namely, whether this case was a true case of recognition and whether the appellant was correctly identified.

17.In her submissions, the first issue turned plainly on the credibility and reliability of PW1, particularly in relation to his claim of long periods of regular past sighting of the appellant, but also as to why he delayed naming the appellant to the police. On those matters, counsel’s position was that there was undoubtedly enough evidence for a case of recognition to go before the jury.

18.As for the second issue, it was submitted that the quality of PW1’s identification was good (good lighting and sufficiently close observation to begin with, plus direct personal involvement and great physical proximity with the appellant during his own attack) and although it was not supported by any independent evidence, it should not be withdrawn from the jury.

19.Counsel concluded by pointing to the full incorporation of the Turnbull warning in the summing up and its setting out of aspects of PW1’s evidence which required careful consideration. It was argued that as a whole, the summing up was unassailable and that there was nothing in the trial that could affect the safety of the appellant’s convictions.

Our View

20.We have read the evidence and we have read the submissions of trial counsel.  We are in complete agreement with the judge’s ruling.  Both she and now the respondent was undoubtedly correct that at half-time, this was a case that ought to have gone to the jury.  In particular, we are assured of the correctness of this view by the rehearsal in the summing up of PW1’s explanation as to why he was at first reluctant to disclose the identities of his assailants.[12] This does not only show the judge’s care in summarising all the evidence in a balanced and open manner but working backwards, it informs the correctness of her earlier ruling that if believed, there was sufficient evidence from PW1 for a properly directed jury to convict on a case of recognition and correct on-site identification.

Disposal

21.There being nothing in the case which caused us any concern, we dismissed the appellant’s appeal.

The Appellant appeared in person

Ms Laura Ng, ADPP (Ag.) of Department of Justice, for the Respondent