HKSAR v. Leung Wai Hong

CACC 383/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.383 OF 2003

(ON APPEAL FROM HCCC 356 of 2002)

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 BETWEEN

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Before:   Hon Stuart-Moore VP, Yeung JA and Pang J

Date of Hearing: 16 September 2004

Date of Judgment: 16 September 2004

Date of Handing Down Reasons for Judgment: 24 September 2004

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1.On 21 August 2003, the applicant, aged 34, was convicted of robbery following a trial before Gall J and a jury.  He was acquitted on a second count of forcibly taking a person with intent to procure a ransom for his liberation.  The applicant sought leave to appeal against his conviction for robbery.

2.At the conclusion of proceedings on 16 September 2004, we gave leave but treating the hearing as the appeal, we dismissed the appeal.  We now give our reasons for so doing.

3.The facts were a little unusual and the gravity of the crime was not reflected in the six-year sentence imposed for it.

4.On 5 November 2001, the alleged victim of the robbery (PW1) was returning with her five-year-old son from school.  However, she was confronted by four men on the doorstep of her home in Fairview Park, Yuen Long.  The men claimed to be police officers who were looking for PW1’s husband (PW3).  They were allowed into the house but on entry, they made their intentions clear.  One of the men took a chopper from the kitchen and threatened PW1 and her father-in-law (PW2).  They eventually tied up PW1, PW2 and their Filipino helper.  The culprits stayed in the house for about twenty minutes before leaving with PW1’s son, a watch and HK$6,800 in cash.

5.PW1 freed herself and called PW3.  In the course of travelling back to Fairview Park, PW3 received a ransom call from an unknown man.  Subsequent demand calls were received until about 2 pm on 7 November 2001.

6.PW1’s son was eventually found in a remote area at about 3 am on 7 November 2001.  No ransom was ever paid.

Identification evidence

7.The evidence called by the prosecution relating to the eventual identification of the applicant as one of those allegedly responsible for the robbery was crucial to the applicant’s conviction and is important in this application having regard to the first ground of appeal.  We are grateful to Mr Gavin Shiu, on the respondent’s behalf, for providing us with a comprehensive review of this evidence.

8.On 10 November 2001, an identikit composition procedure was carried out by Woman Detective Police Constable Lee Kin-ling (PW9).  Both PW1 and PW2 attended the procedure and an identikit image (exhibit P121) was produced.

9.A week later, on 17 November 2001, Detective Station Sergeant Lui Chi-hoi (PW5) went to the applicant’s address in Yuen Long.  Only the applicant’s wife was present.  PW5 identified himself as a police officer and told the applicant’s wife he wanted to obtain some recent photographs of the applicant to assist in the investigation of the robbery.  Three photographs, including one passport photograph (exhibit P53), were handed over to PW5.  In due course, the officer in charge of the case, Woman Detective Senior Inspector Kwong Yim-chun (PW4), received these photographs.  She passed them to Detective Police Constable Li Wing-keung (PW6), and instructed him to prepare an identification album.

10.A month later, on 17 December 2001, PW6 took the applicant’s photographs, together with a photograph of another suspect, to the Identification Bureau and arranged for pictures of actors to be taken in similar style to those of the applicant and the other suspect.  Only the passport photograph of the applicant was used from amongst the three photographs seized from his home.

11.PW6 later collected the photographs and took them to Police Constable Yik Yiu-wai (PW8), of the Criminal Records Bureau, for enlargement.  Later in December, PW6 compiled albums in respect of the applicant and the other suspect by placing their photographs alongside the pictures of eleven corresponding actors.  The sequence of numbering was randomly decided by PW6.

12.On 2 January 2002, almost two months after the robbery, a photo-identification procedure was held.  PW1, PW2, the Filipino helper and PW1’s son, attended as witnesses.  Chief Inspector Leung Wai-bun (PW10), who was unconnected with the investigation, was in charge.  PW10 explained the procedures and he was not even aware himself of who the suspects were in the photograph albums shown to the witnesses.

13.PW1 was the first witness to view the album and she positively identified the applicant.  The remaining witnesses were unable to make an identification.

14.On 10 August 2002, over seven months after his photograph had been identified by PW1, the applicant surrendered himself to the police.  A formal identification parade was arranged for the following day.  This was supervised by Superintendent Tony Deakin (PW11).  The applicant was legally represented.

15.At the parade, the applicant insisted on wearing spectacles.  He and the actors on the parade were supplied with the same type of spectacles.  As the applicant had at that time a shaven head, parade members wore shower caps to cover their hair.  As the applicant had some facial hair, masking tape was provided to cover this.  The same areas on the faces of other parade members were also covered with masking tape.  The applicant’s legal representative then selected the applicant’s position and the positions of some of the actors.

16.PW1 again positively identified the applicant, having requested that the spectacles should be removed from all those standing on the parade.

17.Under caution, the applicant said nothing, but requested another parade position.  The parade continued for the other three witnesses who had attended but they failed to identify anyone.

18.The applicant did not give evidence, but the defence was presented on the footing that PW1’s identification evidence was mistaken.

19.It is not without interest that, in these proceedings, the applicant’s appearance in court was of a man who did not wear spectacles and who had a full head of hair and was clean-shaven.

Grounds of appeal

20.Mr Cheng Huan, SC, on the applicant’s behalf, advanced three grounds of appeal. 

(1)     Identification

21.In summary, the first ground claimed that the out-of-court identification processes were more prejudicial than probative.  Furthermore, he alleged that the judge had failed to direct the jury adequately concerning the suggested prejudicial effect of the photo-identification and what was said to have been the lack of probative value arising from PW1’s identification of the applicant at the subsequent identification parade.

22.Mr Cheng conceded that the judge’s general directions to the jury about the dangers of relying on the evidence of identification were unimpeachable.  He complained, however, about the judge’s failure to inform the jury that PW1’s identification of the applicant at the identification parade could have resulted from PW1’s memory of the photograph she had earlier seen in the album during the photo-identification.  This is what is sometimes referred to as the “displacement” effect.  This is the description often given to the effect on a witness who has been shown a photograph which may have displaced the memory of the appearance of the suspect at the original sighting.  The closest the judge came to giving such a direction was as follows:

“Madam Tang (PW1) made two identifications, one a photographic identification on 2 January 2002, just short of two months after the events of 5 November 2001, and one an identification parade on 11 August 2002, just over nine months after the 5 November 2001.  Now, the first thing here is, the fact that she made two identifications, both of the same person, does not make her evidence doubly strong.  You cannot say two is double one.  To make an identification, she must have had an image of the man in her mind.  If she was honestly mistaken about that image, she could make a mistaken identification twice.  Therefore, the fact that she made two identifications does not make either identification any stronger.”  (Appeal bundle pp. 12-13)

23.In our view, Mr Cheng’s criticism had some force in that the direction that, if PW1 had been wrong once because of a mistake she had made in identifying the applicant’s photograph and may have repeated the same mistake by picking him out on the identification parade, this was not the same as a direction advising the jury to be cautious that the viewing of the photograph by PW1 had not displaced in her memory her recollection of the culprit she had originally seen.  Nevertheless, we are satisfied that although such a direction might have been appropriate, the summing up as a whole dealt with the topic of identification in a way which could hardly have been fairer to the applicant.  The omission was not in our opinion a material one.  Nevertheless, on this aspect of this ground, we gave leave.

24.Mr Cheng also directed our attention to a number of authorities from the English and Australian courts to illustrate that identification by photograph had presented problems in its wake.  However, as to this, Mr Shiu provided an eloquent and concise reply.  He listed the very strong features about PW1’s ability to identify with accuracy, together with the scrupulous adherence by the police to the rules related to both identification parades.  Mr Shiu pointed out that this case, unlike those to which Mr Cheng had referred, was not concerned with police “rogues’ gallery” photographs where difficulties often arise when a judge seeks to neutralise the prejudicial effect of the introduction of such evidence.  In this case, the applicant’s clear record was an admitted fact and the jury were made aware that the photograph, identified by PW1, had been obtained by the police from the applicant’s own home.

25.Mr Cheng accepted that the photographic identification of the applicant was both relevant and admissible but he complained that the judge had not sufficiently instructed the jury as to how to approach the seizure by the police of the applicant’s photograph.  Again, however, the answer is relatively straightforward.  When PW4, as officer in charge of the case, was describing how she had directed other officers to go to the applicant’s home to obtain photographs of him, the judge interrupted proceedings to inform the jury that they were not entitled “to speculate (about) what might have been known to the police or thought of or suspected or anything like that”.  The judge went on to say that this was not evidence against the applicant.  This was briefly recalled in the summing up where the judge said:

“…. Do not be concerned about the manner in which the photograph of the accused was obtained from his wife.  Now, even if procedures were not properly followed, there is no dispute that the photograph is of the accused, and that is all that need concern you.”  (Appeal bundle p. 14)

26.Although Mr Cheng submitted that the judge ought to have directed the jury that they “must not draw any adverse inference from the fact that the police did select a picture of the applicant for identification purposes”, we are satisfied that this was the plain implication behind what the jury had been told.  Indeed, it is sometimes best, in circumstances of this kind, for the judge to say as little as possible with a view to avoiding the subject being put too obviously in the spotlight.

27.Regarding directions of this sort, they should generally be discussed with counsel before the summing up in order that, if possible, an acceptable formula is reached.  In the present case, we do not know from the limited transcripts available to us whether a discussion of this sort took place.  What we do know is that highly experienced defence counsel who was then acting for the applicant was asked, at the conclusion of the summing up, if he had any matter to raise and he indicated that he did not.  This is hardly surprising in view of the very fair way that the topic of identification had been handled by the judge.

(2)     Admitted facts

28.Turning to the second ground of appeal, this alleged that the judge had effectively directed the jury that “they were entitled to make findings contrary to the admitted facts …. pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221”.  Mr Cheng accepted that this was not a ground, which standing alone, could result in a successful appeal.

29.Mr Cheng’s point, in summary, was that it was an important fact in the case that the applicant had a clear record.  This was an admitted fact.  He submitted, however, that the judge’s advice to the jury at the outset of the summing up that it was for the jury alone, as the judges of fact, to decide what evidence they accepted qualified the nature of this admitted, and highly significant, fact.  Shortly after saying this, the judge went on to direct the jury in these terms:

“…. The Admitted Facts, as you have already been told, have been agreed by counsel.  So, although the facts are for you, it would not make much sense for you to not find to be truthful what has been agreed by both counsel as being admitted as true.”  (Appeal bundle p. 2)

30.Mr Cheng argued that, in combination, these directions amounted to an invitation to the jury to disregard the admission if they felt inclined to do so.

31.Whilst it is most unfortunate that the standard direction was not given to the jury, to the effect that an admitted fact is “conclusive evidence of the fact admitted”, but for which this ground of appeal would never have been raised, it is plain that the misdirection, such as it may have been, was one which had no materiality in the particular circumstances.  It perhaps hardly needs to be said that a “good character” direction was later given to the jury which began with the phrase: “…. it is admitted that the accused is a man of good character”.  It was plain, in overall context, that there was no dispute whatever that the applicant had a clear record.

(3)     Reliability, not credibility

32.In the third and final ground, it was submitted that the judge had made the error of directing the jury that PW1’s credibility was in issue when in reality the sole issue was concerned with her reliability.  The direction which was criticised was in these terms:

“…. When you considered that identification parade, you must take into account the hats and black tapes worn by all on the parade, and you must consider whether the inability by Madam Tang (PW1) to now recall the number of pieces of tape on people’s faces affects her credibility.  Credibility is the value of her evidence.”  (Appeal bundle p. 15)

33.Mr Cheng correctly identified the sole material issue at trial to have been whether PW1 had accurately identified the applicant or, alternatively, may have made an honest mistake in doing so.

34.It seemed plain to us that the judge was intending to confine the word “credibility”, in the context of the passage about which this complaint was made, to the question of how many pieces of tape had been put on the faces of those who stood on the identification parade in the passage to which we have just referred.  Obviously, credibility has a different connotation to reliability.  Mr Cheng’s point, in short, was that PW1 could easily have been accepted as an honest, or credible, witness but this was not the issue the jury had to decide.  It was the accuracy, or reliability, of her evidence about which the jury had to be satisfied.  It was contended, therefore, that the effect of this direction was to shift the jury’s attention from the real issue of reliability to a non-issue of credibility.

35.The question we have had to consider is whether, in the overall context of the directions given by the judge, the jury was misdirected.

36.Firstly, it has to be said that the whole case was conducted by the defence on the basis of a mistaken identification.  Turning to this issue in the summing up, the judge, in giving what is usually referred to as a Turnbull direction, said:

“Now, this is a trial where the case against the accused depends, I would say, wholly on the correctness of the identifications of him by PW1, Madam Tang.  The defence, not proving anything but putting before you matters to consider where you may have doubts, says that that is a mistaken identification.  It has been the position of the defence all along by the manner in which they have conducted the cross-examination.  Their position is the accused was not there, he did not take part in these events, and that Madam Tang is mistaken in her identification.

I must warn you that there is a special need for caution before you convict an accused or this accused in reliance of the evidence of identification.  And that warning is particularly necessary where it is the only evidence which implicates an accused.  Now, the reason for that is that it is possible for an honest witness to make an honestly mistaken identification.  There have been wrongful convictions in the past as a result of these mistakes.  An apparently convincing witness can be mistaken.  In other cases – not in this because we only have the one – there have even been occasions where a number of apparently convincing witnesses have all been mistaken.  And as has been pointed out to you, we have all been in those circumstances where you have even perhaps touched someone on the shoulder and say, ‘Hello, So-and-so’ and he turns round or she turns round and it is not them at all, or you see somebody passing and you see their face and you think it is someone you know, but it is not.  You are honest in your mistake and you are honestly mistaken.  You need to take great care.”  (Appeal bundle pp. 9-10)

37.The judge then went on to set out in great detail the circumstances of the identification, following the guidelines in R v Turnbull and Ors [1976] 63 Cr App R 132 at 137, ending with the passage cited earlier that:

“If (PW1) was honestly mistaken about that (photographic) image, she could make a mistaken identification twice.  Therefore, the fact that she made two identifications does not make either identification any stronger.”  (Appeal bundle p. 13)

38.With the full context of the judge’s directions in mind, where no reference to “credibility” had been made before, the judge’s reference to it in the passage with which we are presently concerned was not, in our view, a matter of any real substance.  Furthermore, the judge continued by saying:

“…. She (PW1) said that she looked into the face of the first man when the incident occurred.  The faces on the parade were obscured to a degree by the tape.  You will have to consider to what extent that would have affected her overall ability to be sure the man she identified was the man she saw on 5 November 2001.”  (Appeal bundle pp. 15-16)

39.Again, at length and in detail, the judge went through the submissions of the defence reminding the jury of defence counsel’s suggestion that they could not “be sure upon all of that evidence that, although Madam Tang (PW1) is honest, she is honestly mistaken”  (appeal bundle p. 17).

40.No doubt, even confined to the issue of the number of pieces of tape stuck to the faces of those who stood on the identification parade, a better word for the judge to have used would have been “reliability” or “accuracy” rather than credibility.  However, in the context, it was, as we have indicated, a matter of no real consequence.

Conclusion

41.Having regard to the matter raised in ground 1, leave was granted but, for the reasons we have given and treating the hearing as the appeal, we dismissed the appeal.

Mr Gavin Shiu, SADPP, of the Department of Justice, for the Respondent.

Mr Cheng Huan, SC, leading Mr Lawrence Hui, instructed by Messrs Hagon Wai & Partners, for the Applicant.