HKSAR v. Thapa Manish and Another
Read the full judgment text of DCCC 611/2019 on BabelCite. This District Court judgment.
1. D1 pleads not guilty to wounding with intent (Charge 1). D2 pleads not guilty to common assault (Charge 2).
Cited by 3 cases
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DCCC 611/2019 [2021] HKDC 1187 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 611 OF 2019 -----------------------------------------
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----------------------------------------- REASONS FOR RULING ON IDENTIFICATION PARADE ----------------------------------------- Charge 1.D1 pleads not guilty to wounding with intent (Charge 1). D2 pleads not guilty to common assault (Charge 2). Prosecution case in brief 2.PW1 was a customer of a bar operated by D1 and D2. He went there with a wife on the occasion in question. There was a ruckus between them, resulting in PW1 being wounded by D1 and assaulted by D2. There was an eye-witness PW4. 3.The prosecution rely on D1’s and D2’s VRIs and their being identified by witnesses in the identification parade. D1 and D2 have no dispute that the identification parade was voluntary but object to the admissibility of the identification parade which they say the police had not fairly conducted. Prosecution case on admissibility of identification parade evidence 4.The prosecution seek to adduce the evidence of D1 and D2 being picked out by 2 witnesses (PW1 and an eye-witness PW4 respectively) in an identification parade (“the Parade”) held on 19/12/2018 conducted by OC Parade, who was CIP NIP (PW5). 5.D1 objects to the admissibility on the grounds that the Parade “was unfair because only 6 of the 14 actors on the parade, including D2, were ethnically Nepalese. All the others were Indians or Pakistanis who looked extremely different from persons of Nepalese Origin.”[1] 6.D2 objects to the admissibility on the grounds that the Parade “procedure was unfair because only 6 of the 14 actors at the parade, including D1 and D2, were ethnically Nepalese.”[2] 7.This court holds a hearing on this special issue. The prosecution calls the OC Parade (PW5), the OC Case (PW13), and the police officers assisting the two OCs. 8.The course of the Parade was recorded in the Parade Book (“the Parade Book”). D1 and D2 were first served and explained the Identification Parade Notice To Suspect, which they signed in acknowledgment. 9.It was followed by the Brief Facts for the Parade furnished by DIP NG (PW13), which stated as follows:
10.After the date of the aforesaid Brief Facts and before the Parade, on 12/12/2018 PW13 through his subordinate DPC 16906 (PW12), who was the Investigation Officer, sent a Confirmation of order for provision of actors[3] to Oscar Actors Centre for the Parade. Details of the description of the requested actors were as follows:
11.PW13 gives evidence that it was his decision to have one parade for both D1 and D2 together because the incident involved 2 assailants who attacked the victim at the same time, so it was not appropriate to have one parade for each suspect. 12.D1 was stated to be 165 cm whereas D2 was 173 cm according to PW4’s witness statement. PW13 therefore requested for 165 cm – 175 cm actors. 13.D1 was stated to be 21 years old and D2 25 years old according to the Brief Facts he wrote. PW13 therefore requested for 20 – 27 years old actors. 14.It was not PW13’s duty to view the actors at any juncture. It was the duty of OC Parade, now SP then CIP NIP (PW5) to do so. PW5 was not aware of the contents of the request for actors. He was to assess the suitability of the actors at the identification parade. 15.He began the procedure by serving a Notice to Suspect, POL 279A (Rev. 2016)(P34A), which explained the rights of the suspects in an identification parade, on D1 and D2. D1 and D2 signed in acknowledgment. Para. (3) provides as follows: … It should be pointed out to you that neither identification in Court nor identification under whatever other arrangements the police may make, may be as fair to you as a formal identification parade. You may request a formal identification parade rather than any other method of identification if you so prefer. 16.In his own wording to comply with para. 10 on p. 4 of the Parade Book, PW5 told D1 and D2 as follows:
17.After D1 and D2 excluded 2 actors, only 12 actors remained. He then instructed all to use a shower cap on the top, a facemask to cover the chin, and a facemask to cover the neck (apparently to conceal D1’s tattoo of a gladiator with stretched arms to the sides). Later, he asked all participants to be seated. These arrangements were made by himself without asking if D1 and D2 objected to them. 18.A police officer tied a facemask at the back of D1’s neck to cover the tattoo. This way of tying was different from all others who had the two strings of the facemask loop down from the ears. The difference would be visible at the side of the neck if the witness paid attention to it. Besides, as demonstrated by D1 standing before him in the course of his being cross-examined, a facemask of the type he used in the Parade, an ordinary clinical facemask, was not broad enough on the two sides to cover D1’s tattoo, leaving either of the gladiator’s hands exposed. It only took a small movement of his head after a few seconds to displace the facemask enough to expose more of the tattoo. It is put to him in cross-examination that he should have used a scarf to wrap around each participant’s neck to fully conceal the tattoo on the neck. He insists that the scarf was unnecessary. I think the facemask would expose a bit of D1’s tattoo but it was a tiny bit. 19.After the modifications, he said to D1 and D2:
20.At the first juncture, PW5 had told D1 and D2 that he needed only 12 actors to participate in the identification parade. In response to that, D1 and D2 excluded 2, leaving only 12 for the identification parade. At the second juncture, which was after the modifications to appearance was made to the actors, PW5 asked if D1 and D2 had any objection to any of the selected actors to take part in the later identification parade. 21.When viewing the footage in court, PW5 agrees that some of the remaining 12 actors had facial hairs and some had a shadow over their lips (which he regards not as moustache but some shadow cast there because of the lighting). D1 and D2 did not have facial hairs or such shadow over their lips. 22.The defence show him the photos of the remaining 12 actors. They were lodged with the Immigration Department when they applied for identity cards. He is to assess the facial features, discounting the hair on the top and the facial hairs, as these features can vary within a short time. He agrees that D1 and D2, ethnically Nepalese on record, looked like typical Nepalese. He says there were only 7 actors that looked like or look a bit like Nepalese[4]. I think this comparison is fraught with two problems. First, there is no way to tell if there was any change in the appearance of the actors, whether by accident or by artificial means between the dates of the photo and the Parade. Secondly, the two-dimensional image on photo can never measure up to the clarity and profile of the three-dimensional view in person. Therefore, I do not think the photos here can have any probative value. 23.PW12 DPC 16906 was the investigation officer of the case. On 23/10/2018, he went to the bar to investigate the case. Later on the same day, he handed over D1 at the Report Room to PW8 for VRI at Room 630. He saw D1 and D2. 24.Before the Parade, he had notified PW1 to wait at McDonald’s and PW4 to wait at Starbucks, both of Shun Tak Centre, Sheung Wan. He then walked them to the witnesses’ room of the Central Police Station. He stayed with them there until they were called in turn to view the Parade. 25.His acts were in breach of para. 20 in Chapter 46 of the Force Procedures Manual where it is stated as follows:
Defence case on admissibility of identification parade evidence 26.The defence submit no case to answer. I rule a case to answer. 27.D1’s evidence in court is that he took it from PW5 that he and D2 each could exclude only one actor. He knew 3 of the actors beforehand. One was Nepalese. One was Indian. The other one was Indian or Pakistani. He had wanted to exclude more as some actors bore no similarity to his appearance. He did not raise it with PW5 as he did not want to question the police. 28.D2’s evidence in court is that there were some actors who looked like Indian/Pakistani/Bangladeshi. Some had a moustache. He did not understand that he could exclude more than 2 actors. 29.There are no defence witnesses. My view on admissibility of identification parade evidence 30.The prosecution and the defence make written submissions. The defence also make oral submissions. Their oral submissions basically repeat their written submissions. 31.In summary, the defence criticize the Parade as follows:
(1) D1 and D2 had different appearances and should be put into separate parades 32.I consider para. 30 of the Manual. It provides as follows:
33.The camera was far, and at an elevation, from most participants in the Parade. The resolution of the footage was not high. It does not allow for a meticulous examination of the appearance of each defendant. The comparison has to be based on the APS photos of D1 and D2. 34.Para. 29 of the Manual provides as follows:
35.Despite the difference of 5 years on record, D1 looked the same age as D2, if not older. There was a difference of possibly 10 centimetres in height, but that was minimized by PW5 making them seated at the Parade. Neither of them has a prominent general appearance. There is no allegation based on different position in life. Resemblance is a matter of degree. As long as there is some resemblance in age, height, general appearance and position in life as far as possible among the participants, a parade can be held. (2) Most of the actors were not ethnically Nepalese 36.I think an ethnic identity on official record is not a safe guide to resemblance in appearance. People may not have a typical ethnic look. (3) All actors bore no resemblance to D1 and D2, some had a beard, a moustache, a prominent nose, sideburns, some had a different build and height, some were of a different age 37.At the stage of para. 10 of the Parade Book, PW5 asked D1 and D2 to pick out 2 actors they found not resembling them. He then proceeded with the modifications by a shower cap and two facemasks. The footage shows that some actors had a beard, a moustache, and/or sideburns. The beard, moustache and/or sideburns were visible, but not prominent. There were a few with bigger noses, but not prominent noses. Some were stouter or taller than the suspects, but not prominently so, and besides, minimized by the long-sleeved clothes and seated pose. I do not find the actors look different in age from D1 and D2. It is an exaggeration to say that all actors bore no resemblance to D1 and D2. (4) D1’s facemask had its strings tied at the back of his neck, whilst all others had the strings looped over the ears 38.It is not easily seen from the front. PW1 is not being asked whether he noticed that. PW4 says he did not pay any attention to that. (5) D1’s facemask did not fully cover the tattoo on his neck 39.When D1’s counsel cross-examines PW5, she asks D1 to do a demonstration of whether the facemask could fully cover the tattoo on his neck. I saw that it could. Another demonstration was done. This time D1 moved his head freely for a while. I saw that the facemask was slightly displaced on one side. A small part of the tattoo, namely the hand of the blue-coloured gladiator, was exposed. I repeat the above, that PW1 is not being asked whether he noticed that, and that PW4 says he did not pay any attention to that. (6) PW5 only allowed D1 and D2 to exclude two actors, although D1 and D2 had in their own mind intended to exclude more due to dissimilar appearance 40.PW5 asked D1 and D2 to exclude 2 actors from the 14 actors. Then he modified the remaining 12 by the shower cap and the facemasks. After that, he asked if D1 and D2 objected to any of the selected actors to take part in the Parade. D1 and D2 had no objection. 41.Para. 10 of the Parade Book stated that PW5 did ask D1 and D2 to select the 12 actors so soon. It was before the modifications. 42.Para. 30 of the Manual provides as follows:
43.The Manual allows “at least twelve other persons” whereas para. 10 of the Parade Book limited it to 12. Para. 10 allows less right to D1 and D2 than the Manual. 44.At the stage of para. 10 of the Parade Book and before the modifications, it could be confusing to D1 and D2 to be told that they should exclude 2, to make 12 remain at the Parade. D1 and D2 in their evidence in court say that, after the modifications, as recorded in para. 11 of the Parade Book, when PW5 asked them if they objected to any of the selected actors to take part in the Parade, they told PW5 that they had no objection. In their mind, they had actually wanted to exclude some more actors. 45.Despite PW5’s said limit of 2 actors to be excluded at para. 10 of the Parade Book, I am satisfied that at para. 11, PW5 had eventually asked them if they objected to any of the selected actors to take part in the Parade. It was a clumsy way to make a simple point, but I think his point, that they could exclude more actors from the remaining 12, was made out to D1 and D2 at that later juncture. (7) PW5 should have cancelled the Parade on his own initiative 46.If PW5 had cancelled the Parade on his own initiative, he could have been accused of depriving them of their right to have an identification parade in accordance with para. (3) of the Identification Parade Notice to Suspect. (8) PW1 and PW4 might have crossed path with the defendants and/or the actors just before the Parade 47.I note that PW1 was to wait at McDonald’s and PW4 at Starbucks in Shun Tak Centre. The actors were to wait at the Dog Park which was 10 metres away from the entrance of the Central Police Station. D1 and D2 were to wait at the Report Room. PW12 escorted PW1 and PW4 from Shun Tak Centre to the witnesses’ waiting room. When they passed the Report Room, the defendants and the actors were not there. I do not think there was any juncture that PW1 and PW4 had seen the defendants and/or the actors just before the Parade. (9) PW12 escorted PW1 and PW4 from Shun Tak Centre to the witnesses waiting room and stayed with them there, in breach of the Force Procedure Manual 48.PW12 notified PW1 and PW4 to meet up at the respective shops at Shun Tak Centre. He also escorted them all the way to the witnesses’ waiting room and stayed with them there. There is no suggestion that his presence or communication with PW1 and PW4 actually affected the Parade. However, his acts were in breach of para. 20 of the Manual, which provided that:
(10) PW4 was able to see 8 of the actors being different from D1 and D2 due to their ethnicity 49.While PW1 says that he could not distinguish the Nepalese or the Filipino at the Parade, PW4 says he could readily see a few Nepalese and the others were Indian/Pakistani. This difference in PW1’s and PW4’s perception as to ethnicity indicated that neither PW5 nor anyone could easily predict and satisfy a particular witness by applying his own standard of resemblance. PW5’s duty was to conduct a fair Parade as far as possible. I repeat para. 29 of the Manual, which provides as follows:
50.I am satisfied that he had achieved that at the Parade. All aspects considered 51.There was a breach by the investigation officer PW12 of para. 20 of the Manual by his notifying and escorting PW4 to the witnesses’ waiting room. He also stayed there with them until they were called in turn to view the Parade. PW1 was able to identify D1 whereas PW4 was able to identify D1 and D2 in the Parade. There is no suggestion of any communication between him and such witnesses. They actually say that they could recognize him, or them, as the case may be. They did not say that it was because PW12 had assisted them or hinting to them to facilitate their identification. I am satisfied that such breach had occasioned but it caused no actual prejudice to the defendants. 52.I think the degree of resemblance in appearance was acceptable. PW5 had also asked D1 and D2 if they objected to the 12 actors to take part in the Parade. D1 and D2 had no objection. 53.The Parade was conducted in a fair manner. I rule in such evidence.
[1] D1’s objections in writing dated 2021-8-2 [2] D2’s objections in writing dated 2021-8-2 [3] P43, or Court I/T’s English translation P43A [4] As per the Record of Actors Forming Parade on p. 2 of the Parade Book, he says in court that Actors 3, 4, 7, and 8 looked like Nepalese whereas Actors 11m 13, and 14 looked a bit like Nepalese though not ethnically Nepalese. |
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