HKSAR v. Yan Pan Yue

HCCC137/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO.137 OF 2004

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 1 March 2005

Date of Ruling : 1 March 2005

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R U L I N G

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1.The applicant applies, pursuant to section 16 of the Criminal Procedure Ordinance, for discharge from prosecution, having been indicted and committed for trial, pursuant to section 80C of the Magistrates Ordinance on one count of murder.  Section 16(1) of the Criminal Procedure Ordinance provides that :

“	(1)	Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap 227) or proceedings stand transferred to the court for trial under section 77A(6) of the District Court Ordinance (Cap 336), the accused may at any time-
		(a)	if the Secretary for Justice does not institute proceedings within the period specified in section 14(1)(a) or (aa), as the case may be, after the expiration of that period; or
		(b)	after the filing of the indictment and prior to his arraignment thereon,
	apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance (Cap 227) or, as the case may be, delivered to the Registrar under section 10A, as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge.”

2.The test to be applied in respect of an application pursuant to section 16 is the same as that to be adopted when a court is asked to rule in respect of a case to answer.  In Attorney General v. Phung Van Toan [1992] 1 HKCLR 56, the Court of Appeal held :

“At the time of this type of application no word of oral evidence has yet been heard.  A court faced with such an application is not enjoined to consider the quality of the evidence.  To do so would be to usurp the function of the jury.”

3.In R. v. Tin Sau Kwong [1996] 1 HKCLR 10, Leonard J discussing the differences between an application for discharge and a submission for no case to answer said this :

“…  In the latter situation the judge has been and heard the Crown witnesses, some of whom may have been thoroughly discredited by cross-examination, and he is aware of the true quality of the evidence.  In the former highly artificial situation, the judge can only assume that the paper evidence before him will be taken at its highest by the jury.”

And further :

“…  Whereas I disregard for the purpose of this application all statements which are plainly hearsay and inadmissible, I assume that simple statements of fact will be accepted as true.  I cannot speculate as to what the state of the evidence might be when tested by cross-examination.  If a defendant gives up his opportunity to test the evidence at a preliminary enquiry, he must accept the consequences.  Mr Huggins says that a defendant is not under any duty so to test the evidence and in that he is correct.  But a defendant has a right to test the evidence and cannot, having waived that right, ask the court to speculate as to what the result of testing it might have been.”

The case to answer test to be applied to the evidence is therefore restricted to the proposition : could a jury properly directed convict on it. 

4.On 6 October 2003, the deceased was shot to death in a public toilet in Sheung Shui.  The man who fired the shots left the toilet and crossed an open space outside both the toilet and the Circle K convenience store next to it.  He went to a fence from where he took a bicycle and hurried off, initially towards Block 3 Metropolis Plaza.  It was 6:40 a.m. or thereabouts and a clear sunny day.  

5.The case for the prosecution rests principally upon the evidence of two ladies.  Madam Yip Sau Hung who was working in the Circle K convenience store overlooking the open space where the attacker took his bicycle and cycled away and Madam Leung Wai Han who lived in a flat on the 5^th floor of Block 3 Metropolis Plaza.  

6.A further important piece of evidence in the depositions is the immigration records that showed the accused left Hong Kong for the Mainland with his wife at 10:40 p.m. on 5 October 2003.  Mr Arthur for the prosecution does not seek to argue that the two people who left Hong Kong were not the accused and his wife but argues that the border between Hong Kong and the Mainland is not so impermeable as to preclude the possibility that the accused returned illegally to Hong Kong that night without passing through Hong Kong immigration controls or the Mainland immigration controls.  

7.I have difficulty with the evidence of Madam Yip.  Clearly from the deposition she saw the man who did the shooting.  That I accept.

8.On 26 November 2003, Madam Yip attended an identification parade which included the accused.  She made no identification.  She remained in the police station for about an hour and did not say anything about her failure to identify. 

9.Later, Madam Yip was driven home after the identification parade by DPC 47251.  He asked her if she identified anybody during the conduct of the parade and her answer was : “failed to identify”.  He asked her why she failed to identify anyone and she answered that the atmosphere was not very good and she was nervous.  She said : “I dared not tell it even if I had identified any.”  The officer then asked her if she had identified anyone but dared not tell it.  She replied : “No. 1 and 2 did not look like (the man).  No. 3, 4, 5, 6, 7 and 9 were not.  The most like the one is No. 8”.  The officer asked why she did not say it at the parade and Madam Yip said that she was very frightened.  He asked her if she now identified No. 8.  She answered by saying : “No. 8 is the one who looked mostly like the male riding the bicycle”.

10.I accept the argument that Madam Yip was very frightened at the time of the incident and that fear may have persisted at the time of the identification parade.  I must however take into account that by the time she finished her conversation with DPC 47251, she had denied being able to make a positive identification at the parade.  In the conversation with DPC 47251, she did not claim to be able to identify the accused and only stated he was, of the parade members, the person most like the man that she had seen.  

11.This is no identification.  The claim of similarity was made in circumstances where Madam Yip was not in fear nor subject to the formality of the identification process.

12.Later, on 9 December 2003, Madam Yip made a statement to the police that the accused was the man she saw on the date of the event.  She said in the statement that at the parade on 26 November 2003, she recognized the man at position 8 as the man who left the scene of crime by cycling.  She said that owing to the fact that she had never attended an identification parade before and that the atmosphere was very solemn, she had been nervous.  She stated that she could at that time pick out the male standing at No. 8 but was unable to say it.  

13.The issue is not whether an identification is made after a parade, where no identification was made, is capable of being a credible identification — R. v. Creamer (1984) 80 Cr.App.R.248.  The issue is whether the positive identification claimed by Madam Yip on 9 December is so weakened by her statement to DPC 47251 so as to be of negligible value.  Even without the test of cross-examination, I hold that evidence of identification on its face to be so weak as to leave little value to the jury and I disregard it. 

14.Madam Leung made an identification of the accused at an identification parade on 19 November 2003.  Her statement is that on the morning of 6 October 2003, she rose to make breakfast.  It was about 6:40 a.m.   She heard a loud noise and thought it was a car crash.  She looked down from a bedroom window and saw a man looking up and walking from between two trees outside Circle K convenience store.  He was dragging a bicycle.  He looked up and she could see his face.  It seemed he was hurrying away.  He dragged the bicycle for a while and then mounted it and rode away.  What is the value of this identification?

15.The accused was not known to the witness.  It was a clear sunny morning and for what must have been a short period of time she had a clear and unobstructed view of the man.  She says she could see him for 10 seconds but I take that estimate with some reservation.  

16.From the survey plan, it is clear her observation was from a point some 40 metres or more away at a downward angle of 45° or thereabouts from the horizontal and, from her statements, through a closed window.

17.I have no hesitation in categorizing this as a fleeting glance as contemplated by R. v. Turnbull [1977] 1 QB 224, and I am mindful of the direction necessary to be given to the jury consequent upon that categorization.  Nonetheless, notwithstanding all the defects so well pointed out by Mr Marash for the accused, a properly directed jury could find, taking the evidence at its highest, that the evidence of Madam Leung constituted an effective identification albeit not as strong an identification as one where identification was closer and the witness had a longer view.  

18.What then would the jury have to consider?  On the one hand they have an identification which was not strong in nature but is one which they could hold to be true.  On the other hand within the case for the prosecution itself, they have evidence that the accused left Hong Kong on the night of 5 October 2003 and could only have committed the offence if he successfully illegally returned without passing through Hong Kong immigration or Chinese immigration, then successfully left again without passing through either of those immigration services. 

19.To convict, the jury would have to take all the facts of the identification by Madam Leung and the fact of the passage of the accused and his wife out of Hong Kong on 5 October and using all those facts conclude that the only reasonable inference to be drawn was that the accused was in Hong Kong and Madam Leung’s identification was true.

20.Given the nature of the necessary direction to be given the jury that they might only draw an inference adverse to the accused if it is the only reasonable inference to be drawn, I am of the view that the jury could not convict on the evidence disclosed by those depositions.

21.The application pursuant to section 16 is granted and the accused is discharged.

Mr Michael J.B. Arthur, SGC, and Mr Michael Wong, GC, of Department of Justice, for the Prosecution

Mr Daniel Marash, SC leading Mr Simon Yip, instructed by Messrs Lau, Pan & Co., for the Accused