HKSAR v. Mohammad Israr

CACC000456/2002

CACC456/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 456 OF 2002

(ON APPEAL FROM DCCC NO. 685 OF 2002)

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Coram: Hon Stuart-Moore VP, Stock JA and Jackson J in Court

Date of Hearing: 17 July 2003

Date of Handing Down Judgment: 8 August 2003

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J U D G M E N T

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Jackson J (giving the judgment of the Court) :

1.The applicant (then aged 21 years) was tried in the District Court before Deputy District Judge Mackintosh on a charge sheet alleging two offences, one of assault occasioning actual bodily harm (contrary to Common Law and punishable under section 39 of the Offences Against the Person Ordinance, Cap.212) and the other of wounding with intent contrary to section 17(a) of that same Ordinance.

2.On 26 August 2002, the applicant was convicted of the first of those offences but acquitted of the second. In respect of the offence of assault, he was sentenced to a term of 15 months' imprisonment. It is against both that conviction and sentence that he seeks leave to appeal.

3.On 24 January 2003 the applicant was granted bail, pending this application, by Yeung JA.

The prosecution case

4.The prosecution's case at trial, put shortly, was that on 18 December 2001, a schoolboy ("the complainant") believed that a schoolgirl friend of his was being addressed inappropriately by the applicant outside their school and this led to an altercation between the complainant and the applicant which involved some 'pushing and shoving'. Immediately thereafter, the complainant and the girl left the scene and made their way to the Olympic Mass Transit Railway Station followed by the applicant who had with him a mobile telephone.

5.When the complainant and the girl arrived at the station concourse there was suddenly a commotion when several youths, including the applicant, jumped over the turnstiles and attacked the complainant by punching him and kicking him. The applicant struck the complainant with a belt.

6.As a result of this assault the complainant suffered a number of injuries to his arms, to his face and to one of his legs. The police were called but the assailants had made off.

7.On 9 January 2002, the complainant was walking home from school when he was struck from behind with a blow to the head. He was then struck by a number of assailants (including the applicant) with hockey sticks and, as a result, he was knocked unconscious; he suffered serious injuries including lacerations to the head and a fractured arm; and he was treated in hospital over a period of some six days.

The defence case

8.The defence case in relation to the incident on 18 December was that, albeit there was an initial altercation between the defendant and the complainant, the defendant went home immediately thereafter and he took no part in any subsequent attack upon the complainant at the MTR station.

9.As to the incident on 9 January the defence case was that the defendant was not present.

The grounds of appeal against conviction

10.The settled amended grounds of appeal run to some seven pages of typescript. They are, with respect, somewhat convoluted and difficult to follow. However, after careful re-reading, what those grounds appear to amount to is as follows :

(1) The trial judge erred in concluding (a) that the complainant was an honest witness; (b) that there had been an assault as described by him on 18 December and (c) that the complainant had correctly identified the applicant as being one of his assailants on that occasion,

and

(2) there is a 'lurking doubt' concerning the guilt of the applicant.

11.Having made reference to such suggested 'lurking doubt', the amended grounds of appeal close as follows :

"... further or in the alternative the Judge's interventions during material stages meant that there were material irregularities during the course of proceedings."

In his written submissions Mr Pannu for the applicant (who also appeared in the court below) says that he now abandons that ground and in our judgment he is wise to do so because it is totally devoid of substance.

12.Before us, Mr Pannu has drawn our attention to several matters which he says call into question, among other things, the trial judge's assessment of the credibility of the complainant whose evidence was, of course, vital to the conviction of the applicant. Those matters include the evidence concerning the relationship between the complainant and the schoolgirl; the question whether or not the complainant told the police on 18 December that he did not wish to pursue a complaint; whether or not, when he identified the applicant at an identification parade on 27 March 2002, he had mentioned the incident on 18 December; and the fact that a closed circuit television (CCTV) surveillance film taken at the MTR station on 18 December (which was viewed by the police but was not seized and preserved by them) was not available at trial.

13.The trial judge was alert to each and every one of those issues and indeed to other issues of which Mr Pannu makes mention or complaint. He addressed them comprehensively in his Reasons for Verdict and he reached conclusions concerning them which he was perfectly entitled to reach. Save for one matter there is no purpose to be served in setting out those reasons and those conclusions here although we bear them in mind when considering the overall strength of the prosecution evidence.

14.That one matter relates to the CCTV film. In his amended grounds of appeal against conviction Mr Pannu says the following :

"The Judge failed to place sufficient weight to the fact that there was CCTV surveillance covering the scene in question but nothing was captured by the CCTV camera as viewed by PW3.

The learned Judge also took judicial notice of the presence of CCTV but erred in concluding (as there was no evidence of CCTV tapes) that despite the assault alleged to have lasted for 3 minutes, it is not surprising that the footage was not captured as the CCTV drew from various cameras and thereby not undermining the evidence of PW1.

The learned Judge failed to properly assess the prejudice the Appellant faced due to the failure by the police to seize the tape which showed the location of the incident and failed to assess the improbability of the incident not being recorded by the CCTV if the assault lasted for about 3 minutes despite the CCTV drawing from a few cameras."

15.In his written submission what Mr Pannu says about the CCTV film is as follows :

"With regards to the absence of the CCTV tape and the prejudice suffered by the applicant ... It is submitted that the failure to produce the tape had prejudiced the applicant's defence in that he could not have received a fair trial. Furthermore, the absence of any footage causes a 'lurking doubt' in the whole prosecution case, firstly, as to whether an assault had in fact taken place as portrayed by PW1 and, secondly, whether PW1's evidence could be relied upon."

16.At trial Mr Pannu made no complaint about the missing CCTV film until his closing speech when he said, in essence, that it had not been retained by the police or served on the defence and that it (or part of it) might well have tested the complainant's account of the incident and , in particular, that part of his account concerning the applicant.

17.Having been alerted to the matter in that way what the trial judge said in his Reasons for Verdict was this :

" PW3, the police officer, said in evidence that he went to the surveillance room of the station and looked at the tape covering the location and the approximate time. He did not see the incident on the tape, but he explained that the tape in question drew from a number of cameras in different parts of the station, and it jumped from one to the other; therefore, the scene was not continuously set on the location in question.

Given the short time of the attack, I am satisfied that the absence of any footage of it does not undermine PW1's identification. One should not forget that the attack undoubtedly took place. The issue is whether the defendant was involved."

18.During the course of argument before us, Mr Pannu was asked what steps he (or those instructing him) had taken prior to trial to ascertain the whereabouts of the CCTV film. Initially he replied that no steps had been taken and that the onus was entirely upon the prosecution to seize the film (regardless of its apparent lack of evidential value) and to disclose to the defence that that had been done. Mr Pannu, having taken further instructions, told us that in fact those instructing him had written to the MTR authorities after the applicant had been charged only to be told that such CCTV films were retained for no more than two weeks and that in consequence the film of the 18 December was no longer available.

19.Mr Pannu was also asked why, if he regarded the film as possibly being of crucial importance to the defence case and that its non-availability might adversely affect the fairness of his client's trial, he had not made an appropriate application to the trial judge and drawn to his attention those authorities which he cited to us. Mr Pannu, having accepted that it was open to him to do so at trial and that in hindsight that is perhaps what he should have done, accepted the criticism implicit in that question asked of him.

20.While much has been made in these proceedings about the non-availability of a CCTV tape (or tapes), we can well understand why Mr Pannu attached comparatively little significance to the absence of this evidence in the court below, confining such comments as he had to his final speech. Not only did the surveillance tape apparently not record any one place in the MTR because, as the judge expressed it, this was drawn "from a number of cameras in different parts of the station and it jumped from one to the other", it appears also not to have been directed at the place where the assault occurred.

21.PW3, the police officer who had viewed the surveillance tapes, gave evidence in chief about the complainant's visible injuries following the assault on 18 December 2002. He was not asked in chief about the tapes he had seen but he agreed, in answer to the two questions he was asked on this topic in cross-examination that he had gone to the MTR's Surveillance Recording Room to view some tapes and that these had not shown the assault.

22.This matter was then taken up in re-examination. There followed a dialogue in these terms :

"Q. Constable, did you know whether the tapes you watched cover the location of the alleged crime?

A. The shots of that tape would concentrate on certain locations and had jumped to another location from time to time.

Q. And did you know whether the tapes you watched covered the relevant location at the relevant time?

A. Can't see the time of the crime, but as to the location of the crime I could see it, but it jumped from one shot to another from time to time.

Q. My question was: did you know whether the tapes you watched covered the relevant place at the relevant time?

A. I don't quite follow your question.

Q. Well, you told us that the tapes jumped from one place to another.

A. Right.

Q. And did you know whether the tapes you watched actually covered the relevant place at the relevant time?

A. It did not cover the location and the time." (Appeal bundle p. 72)

23.It is apparent from PW3's answers, taken overall and despite the ambiguity of his initial answers, that the precise location where the assault had allegedly occurred was not shown on the tapes he had viewed. The defence, if they doubted the integrity of this evidence, would have been perfectly entitled to have sought the recall of the complainant to establish precisely where he was saying the assault had taken place. They would also have been able to initiate an enquiry as to the exact positioning of the relevant camera to see whether this might have recorded the event assuming it to have taken place at all.

24.Furthermore, with a view to establishing whether an alleged "three-minute" assault would necessarily have featured in the surveillance film, assuming that the location of the assault could be seen by the camera, enquiries could easily have been made to find out how long individual recordings lasted for each location at the MTR, before the recording would be likely to switch to another location, and also how many locations were captured by the surveillance film. None of these enquiries were made.

25.We can say, in fairness to Mr Pannu, that this is not surprising. There was strong evidence which satisfied the judge that an assault on the complainant had "undoubtedly" taken place. Indeed as the judge pointed out, the period of time occupied by the assault was a "guess" on the complainant's part and that "three minutes" was therefore only an approximation. The length of time occupied by the assault had an important bearing on the issue of identification, and it was that issue which was crucial to the judge's determination of the case. This was something which Mr Pannu was, from a tactical point of view, well able to anticipate when he made his closing submissions. Mr Pannu, when also addressing the topic of the absence of any recordings of the incident, merely said :

".... of course, your Honour, we don't have the benefit of the tape. The defence were never served with it, the police didn't keep it, and this is regrettable. Again, I'm not levelling any criticism against anybody. But, your Honour, we know through experience the snaps are fairly quick, and if he describes the assault for two to three minutes, as he enters the area he would have been captured with the defendant and people at least putting the defendant inside the lobby area, albeit if the snap record jumped to another area, at least we can all be comfortable that the defendant and the whole lot of people were right behind him: snap - we didn't see the assault; snap.

Of course, your Honour, you realise he describes the assault for two to three minutes, and one would expect the snap record would come back and would have captured some form of melee or some form of pushing and shoving. But we don't have that over here." (Appeal bundle p. 75)

26.As we have already said, the judge's comment about the absence of any record of the assault on the surveillance tape, and the way in which the tape recorded a number of locations inside the MTR without making a continuous record of any one location, was that :

"Given the short time of the attack, I am satisfied that the absence of any footage of it does not undermine PW1's identification."

27.The authorities to which Mr Pannu referred us were these :

HKSAR v. Cheung Wai [1998] 4 HKC 249,

HKSAR v. Lau Ngai Chu, CACC228/2001

and

R. v. Birmingham & Ors [1992] Crim LR 117.

28.The absence of the recordings in this trial was a far cry from the position which is found in any of the authorities to which our attention has been drawn in these proceedings.

29.In HKSAR v. Cheung Wai [1998] 4 HKC 249 where a security video had been destroyed three months after the alleged offence when no one had considered that it might have any significance, the defence wrote to the prosecution a week before trial requesting a copy of the tape. During the trial, no reference was made to the tape and the subject was only raised as an issue for the first time at the appeal. Dismissing the appeal, this court reiterated the test to be applied, when deciding whether there has been irreparable prejudice to the fair trial of an applicant when citing from R. v. Holgate (No. 1) [1996] 3 HKC 315 the following passage at 319E-F :

"An applicant must show on a balance of probabilities that his trial is so prejudiced by the matter of which he complains that it is beyond the power of the judge to preside over and hold a fair trial."

30.As we have indicated already, there was evidence before the court which, unchallenged as it was, established that the MTR tapes showed nothing of the fight at all. It would have been open to the defence to attempt to show, by reference to its location and duration, that if the fight took place it would have been bound to be recorded. They chose, perfectly understandably, not to adopt that course. The absence of the tape made no difference to this line of approach and caused no prejudice to the defence.

31.In Lau Ngai Chu's case the prosecution was in possession of the CCTV film had viewed it and regarded it as worthless and failed to disclose it, and it was only following upon conviction when an application for the disposal of exhibits was being made, that the defence became aware of its existence. This was material non-disclosure on the part of the prosecution which led to the quashing of the convictions.

32.In Birmingham's case a successful application was made at trial for a stay of the proceedings on the basis that the police had seized a CCTV film during their investigation and had viewed it but had failed to secure it and it disappeared prior to trial. Indeed, its existence was not revealed by police to the Crown Prosecution Service or to the defence even after specific requests had been made for the unused material. However, the matter which particularly distinguishes that case from the application with which we are presently concerned is that, following a site visit by the judge, it was plain that the camera from which the film had come viewed part of the scene where some of the relevant events had taken place.

33.We are left in no doubt that the applicant's trial was not, in the circumstances of this case, prejudiced by the absence of the tapes. This is not to say that the disposal of evidence as happened in this case is a matter of no consequence. Whether or not it is, will depend on the facts of the case and its development. Obviously, it would generally be desirable for such evidence to be retained and for the law enforcement authorities not to take upon themselves the decision as to its potential utility.

34.We propose to grant leave to appeal against conviction and, treating the application as the hearing of the appeal, we dismiss the appeal.

The grounds of appeal against sentence

35.The grounds of appeal against sentence read as follows :

"1. The learned Judge erred in principle in sentencing the Appellant on the basis of deterrence and retribution rather than on the basis of rehabilitation of the offender which the circumstance of the case warranted.

2. There is a sense of legitimate grievance or a feeling of injustice arising from the sentencing procedure in that the learned Judge adopted a course which indicated that he had reached a firm view of the sentence to be passed during the mitigation stage and an impression that for the convicted charge of AOABH the Appellant had been instead been sentenced on the evidence and injuries with regards to the acquitted charge of Wounding 19.

3. Further or in the alternative, the 15 months imprisonment was manifestly excessive in light of the nature of injuries suffered (reference to the Grounds of Appeal Against Conviction) and the special nature of the case that cannot be said on the upper end of the scale of criminality for offences of this kind and the fact that the Appellant had a clear record."

36.The second of those grounds should never have been put forward in those terms. Whilst Mr Pannu himself may profess to have a 'sense of grievance' it is, in our view, wholly misplaced. The transcript reveals that what was said during the 'mitigation stage' was no more and no less than the following :

"MR PANNU:	Your Honour, I wonder whether your Honour would wish to call for some background reports prior to any mitigation that I may advance, given the fact that he's got a clear record and the fact that he's just turned 21. Perhaps your Honour might wish to call for some PO, CSO or DC reports, or your Honour might wish to hear from me.
COURT:	Well, I think I'd better hear from you, Mr Pannu.
MR PANNU:	Yes.
COURT:	This is a matter which, prima facie, will result in a sentence of imprisonment.
MR PANNU:	Rules out?
COURT:	No, it will result in a sentence of imprisonment.
MR PANNU:	It will result. Your, your Honour, without further ado. Your Honour, I had the benefit of hearing a very proper verdict from your Honour, but firstly, I will really directly go to the injuries with regards to Charge 1. ...
	Your Honour, of course, the sentencing must again be reflected with regards to the gravity as the findings of facts has shown with regards to Charge 1, and no doubt your Honour would not be clouded by the fact perhaps that Charge 2 somehow could not be tied on to the defendant, and I've got no doubt your Honour won't do that. No, if the...
COURT:	I shall wholly ignore Charge 2.
...
MR PANNU:	...
	Your Honour, with regards to his sentencing, I went through a lot of authorities this morning. Your Honour, I couldn't assist this court because there has been a very wide ...
COURT:	Well, there's no guidelines on assault cases.
MR PANNU:	Yes. Yes, exactly.
COURT:	And every case depends on its own facts."

37.When sentencing the applicant the judge said to him, among other things, this :

"... on 18 December, you became involved in a confrontation with ... an 18 year old youth, outside the Sir Ellis Kadoorie School. That dispute related to a girl, .... I am not concerned with the rights and wrongs of that dispute. It is by no means the first time that young men have fallen out over a girl. There was some pushing and, I daresay, some foul language used before school friends [of the victim] mediated and he walked off with the girl towards the Olympic MTR Station.

That ought to have been an end to the matter, but it was not. You were not prepared to leave matters there, and you called a group of friends and organized an immediate revenge attack. There were 4 or 5 of you altogether. You went into the MTR station, you leaped over the barriers, bent on doing violence to [the victim], punishing him for the loss of face you had suffered near the school. He was beaten up and during the attack you used a belt to hit him.

It is not right to say no weapon was used; maybe no lethal weapon, but a belt and shod feet are weapons. He suffered specific injuries to his lip, his cheek, his arm and his legs, and I daresay he was otherwise bruised and tender. They were not serious injuries, but that is not the most important measure of the seriousness of the offence. It is the fact that this was a mob-handed attack which is the most important factor. Such situations involving young men can easily get out of hand, with very serious injuries following, and the public demands that such incidents of public violence, which must have been terrifying to passers-by, are firmly discouraged.

...

In dealing with you, I wholly ignore the other, much more serious charge of wounding with intent for which you have been acquitted on the evidence. ..."

38.We respectfully agree with those remarks and the judge's conclusion that the only appropriate sentence was one of an immediate term of imprisonment. Whilst the sentence of 15 months' imprisonment imposed upon the applicant may be regarded as being at the higher end of the scale for an offence of this nature committed by a first offender aged 21, we are not persuaded that it was manifestly excessive.

39.Accordingly, the application for leave to appeal against sentence is dismissed.

Representation:

Mr Vincent Wong, SGC of the Department of Justice, for the Respondent

Mr Peter Pannu, instructed by Messrs Francis Kong & Co., for the Applicant