HKSAR v. Lau Yip Cho & Another

HCMA000684/2003

HCMA684/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.684 OF 2003

(ON APPEAL FROM KCCC 6505 OF 2003)

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Coram: Hon Gall J in Court

Date of Hearing : 9 December 2003

Date of Judgment : 8 January 2004

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J U D G M E N T

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1.The appellants were convicted on 6 June 2003 each of one charge of selling liquor without a licence and were sentenced to a fine of $12,000 in respect of each charge. They now each appeal the conviction.

2.The facts alleged were that on 13 December 2002, a police operation was mounted in respect of a discotheque called the "348" Disco. The principal witness for the prosecution a police constable was provided with marked money. He attended the discotheque and upon arrival was given four drinks coupons by the counter staff for himself and for his colleagues, for these he paid $200. The party went up to the disco which was dark. There were four in the party. They sat at a round table near the bar. A waiter whom the principal witness PC 33530 later identified as the 2nd appellant was said to have approached them and told them that they could not buy alcohol with the drinks coupons but he offered to arrange alcohol for them at a cost of $210 for half a dozen cans or bottles of beer. The constable ordered half-a-dozen Budweiser beers and the 2nd appellant was said to have left the table and returned two minutes later. He asked for $35 for peanuts which was given to him by the officer in the form of a $100 marked banknote. He left the table again and returned for a third time one or two minutes later and gave $65 in change to the officer. He was said to have told the officer that the beer was on the way and then left.

3.Five minutes later, the officer said that the 1st appellant dressed in a black shirt and black trousers similar to the 2nd appellant approached the table with another man. The 2nd appellant had a torch which illuminated the other man's path to the table and that man carried six cans of Budweiser beer in a carrier bag and a receipt. The 1st appellant it was said shone his torch on the receipt and said to the officer "$210", the officer gave the other man three $100 marked banknotes and received $90 change.

4.The officer testified the 1st appellant took out six cans of beer from the carrier bag and placed them inside a plastic bucket which had ice in it and then left the table. There was no contact between the 1st appellant and the witness after that although the officer testified that during the period from when he had been served until the rest of the team entered the discotheque and the lights were put on and arrests were made he could still see the 1st and 2nd appellants inside the discotheque. This of course has to be viewed in the light of the fact that the appellants together with other waiters in the premises were all dressed in precisely the same clothing and that the lighting was low. The officer testified that the light at the table was dark consisted of one lit candle upon the table and flashing spotlights in the ceiling with yellow lights attached to the ceiling above the bar. The nearest flashing spotlight was about 25 feet away. He testified that when the 2nd appellant spoke to him, they were face-to-face and one foot apart. The first conversation he said lasted two minutes and he could see the 2nd appellant's face clearly, but that it was an ordinary Chinese face. The second conversation with the 2nd appellant he said lasted eight to ten seconds and the third one about five seconds. He said he looked at the 2nd appellant throughout these conversations and could see his face clearly.

5.In respect of the 1st appellant, he said that the 1st appellant stayed at the table for about one minute and he saw the 1st appellant face for about half of that time. The small torch being held by the 1st appellant he said, had a strong light and that when it was used to illuminate the receipt, he was two feet away from the witness. The identification of the 1st and 2nd appellants by the witness to a Station Sergeant came some 20 to 30 minutes after the first meeting with the 2nd appellant. At the time of identification all the lights in the discotheque were switched on.

6.The disco was about 70 per cent full and there were a number of waiters in black shirts and trousers which was effectively a uniform. Both the appellants were arrested. Nothing arose from the marked money and the whole of the evidence in respect of the two appellants was as I have outlined above.

7.The grounds of appeal argued by Mr Oderberg, for the 1st and 2nd appellants, were firstly that the trial Magistrate erred in law in finding the appellants had been adequately identified and he relied upon a passage in the reasons for verdict which reads as follows :

" My view was that the evidence of PW1, indeed the evidence of all the prosecution witnesses, was credible and it did appear to me to be given honestly."

8.Mr Oderberg argued that the words of the Magistrate were equivocal and not a proper finding and that the qualification indicated the Magistrate did not have the proper test in mind as to the value of the evidence of the witness.

9.The words complained of appeared in the oral reasons given in court which were incorporated in the written Statement of Findings made by the Magistrate in respect of this appeal. The passage complained of must be looked at in the context of a later passage in the same oral reasons where the Magistrate said :

"I am satisfied that PW1 was an honest and truthful witness and I am also satisfied that it is safe to rely upon his identification of the defendants."

10.From the second statement it is clear that the words "it did appear to me to be given honestly" were no more than a turn of phase by the Magistrate and the subsequent passage which puts the basis upon which the Magistrate viewed the evidence of the officer indicates that he had in mind the proper approach towards the evidence and a proper evaluation of the credibility of the witness.

11.The 2nd ground of appeal was that the Magistrate erred in law by failing to take into account adequately or at all that a policeman's power of observation and recall are not necessaryly better than anyone else's and that in the poor circumstances of identification of this case the best efforts of the witness may well have been flawed.

12.The passage relied upon by Mr Oderberg in the finding of the Magistrate was this :

" In my view, one important circumstance is this: this was not a casual glance at Mr A because PW1 was a police undercover agent on an operation to find out if alcohol was being sold at the discothèque. He, therefore, paid attention to those who served him, with a view to future identification. So, this was not a case of a casual glance."

13.Ms Shine for the respondent, referred me to a passage from Archbold, Criminal Pleading Evidence & Practice 2003 at 14-25, where the editors state :

" The Turnbull guidelines apply equally to police officers who are identifying witnesses: Reid v. R. [1990] A.C. 363, PC. Whilst all witnesses are subject to the same rules, the tribunal of fact, in assessing reliability, is entitled to take account of the reasons given for a positive identification, and a judge is entitled to draw the attention of the jury to any such reasons. An identifying witness who is involved in the criminal justice system is likely to have a greater appreciation of the importance of identification, and so look for some particular identifying feature. Honest police officers are likely to be more reliable than the general public, being trained and less likely to have their observations and recollections affected by the excitement of the situation. Provided that the usual warnings are given, the reasons scrutinized, and the integrity of the witness is not in doubt, the tribunal can give effect to what is only common sense."

14.I accept that statement. However, in this case there were no particular identifying features in respect of either of the appellants nor were there any factors of excitement or other matters which might have made the training of a policeman of greater value than the ordinary witness. It does not appear to me that the Magistrate attributes to the officer any greater degree of observation or ability to identify than a person who was not a police officer. The passage I have quoted above does no more than indicate the Magistrate was of the view that the officer was in the premises with a view to fixing the features of persons in his mind and that he therefore would have taken care in his observation of the two appellants, it not being a situation where a customer casually glanced at the person serving him.

15.I find that the Magistrate was not relying upon the witness being a police officer but was placing the evidence of the witness in the context of a deliberate attempt to recall the features of the appellants which, in my view, is a proper matter to be taken into account by the trial Magistrate. I am mindful of the argument that even when a person is trying to concentrate on the face of a person serving him in these circumstances, he is in no better position whether he be a police officer or otherwise. Mr. Oderberg also argued that even if the witness was intent on fixing the features of the faces in his memory those faces were unexceptional. The Magistrate referred to the features as being ordinary. Whether or not there were special features to the faces the Magistrate was entitled to take into account the fact the witness endeavoured to fix those features in his mind.

16.The third ground of appeal is that while properly referring to Turnbull's case, the Magistrate played it only lip service in the context of the circumstances including the poor lighting and the commonness of the attire of the staff of the premises. The Magistrate said this in his findings :

" The most crucial issue in this case was the identification by PW1 of the 1st and 2nd defendant. In considering the identification evidence, I have directed myself in accordance with the principles of the celebrated case of Turnbull and warned myself of the dangers of relying upon identification evidence. Experience has shown many times that honest witnesses, convinced that they are right, can be completely and utterly mistaken on the issue of identification."

And further :

" I agree with defence counsel that the conditions in which PW1 was served by the waiters in this discothèque were far from ideal for the purposes of correctly identifying those waiters. The discothèque was dark. The lighting within the vicinity of PW1's table appears to have been three-fold: firstly, a candle, a lit candle, on the table; secondly, yellow, small yellow lights placed on the ceiling above the nearby bar; and, thirdly, flashing disco spotlights from the ceiling above the dance floor.

I have taken those circumstances into account and I have also taken into account the circumstances that there were other staff similarly dressed as the 1st and 2nd defendants. Indeed, they appear to have been wearing what was effectively a staff uniform, a black staff uniform."

17.The Magistrate then went on to set out the periods of time which the witness had to view the appellants and the lapse of time between his viewing of the appellants and his identification of them to Station Sergeant Chan. In my view, the Magistrate had fully in his mind the matters set out in Turnbull which relate to all identification not just those of a fleeting glance nature. He considered all the factors of identification which he ought when considering whether he could rely on the evidence of the witness.

18.The fourth ground of appeal related to discrepancies in the prosecution evidence in respect of position of the 1st appellant when identified by the witness. There was a clear difference between the witness and the arresting officer's evidences to where the 1st appellant was when identified and arrested and this must go of course to the Magistrate's evaluation of the evidence of those witnesses. There was a further discrepancy as to whom the witness pointed out the identities of the appellants. This matter was dealt with, by the witness in his cross-examination. I accept there were contradictions and that the Magistrate did not fully deal with them. I do not consider, however, they go to the identification and whilst they might go to some degree to the credibility of the witnesses the Magistrate dealt directly with that credibility and was satisfied the witnesses were truthful and honest.

19.The fifth ground of appeal is that the Magistrate failed fully and fairly to factor into his decision the delay between the alleged sale of the alcohol and the identification of the appellants thereafter. The Magistrate had before him the evidence of the witnesses of some 20 to 30 minutes elapsed between the service by the waiters and the identification by the officer. The Magistrate clearly had this period of time in mind when he evaluated the effectiveness of the identification. I note from his findings :

" Another circumstance I have taken into account is that, within 20 to 30 minutes of PW1's encounters with Mr A and Mr B, he pointed out the 1st and 2nd defendants as being those persons. In the interim period, PW1 was still able to see them from time to time in the discothèque."

20.I am satisfied that he dealt properly and appropriately with that period of time and took it into account when reaching his decision.

21.In overall terms, Mr Oderberg's arguments are that the opportunity by the officer in the discotheque to observe the appellants was limited and made in very poor circumstances and a period of time elapsed between the observation and the identification and that in all circumstances the Magistrate did not give sufficient consideration to the dangers of relying upon that identification and in analyzing whether the identification was proper and correct.

22.I am satisfied from the Statement of Findings the Magistrate did approach the matter as he ought, that he had in mind fully the provisions of Turnbull and that he adhered to them. I am satisfied that the convictions in this case are safe and satisfactory and the appeal against conviction are dismissed.

Representation:

Ms Linda Shine, SGC of Department of Justice,for the Respondent/HKSAR

Mr Keith Oderberg, instructed by Messrs Jal N. Karbhari & Co.,for the 1st and 2nd Appellants