HKSAR v. Lam King Man

HCMA1219/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1219 OF  2004

(On Appeal from ESCC 2852/2004)

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BETWEEN

Before:   Deputy High Court Judge Line, in Court

Dates of hearing:   10 March 2005 and 14 October 2005

Dates of judgment:   10 March 2005 and 14 October 2005

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J U D G M E N T

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1.The Appellant seeks to overturn his conviction for robbery.  No one suggests that a robbery did not take place or that its nature was not that basically described by the first two prosecution witnesses,  involving the victim being bullied and badgered over a 10 to 15 minute period in a well-lit public place.

2.The role ascribed to the Appellant was that of the young man who sat beside the victim, the first prosecution witness, wearing a distinctively-coloured top, who persistently sought to gain possession of the victim’s mobile telephone.

3.The first prosecution witness was unable to identify the Appellant.  However, the second prosecution witness was able to do so. The identification parade took place some 10 days after the event.  There had been an ample opportunity to take in the features of the young man who played the prominent role I have just described.  In the absence of something significant damaging the identification, one would expect conviction to follow.  The identifying witness was able to tell the court that “This happened before me in circumstances where I had a really good view over a long time, and I had a very good reason to take in the features of the person who was doing it.”   And common sense supports that, because there would be a good reason for her to take in the features of the major players in the incident.

4.Two matters were used to attack the identification.  Firstly, that the identifying witness, PW2, on the day after the robbery had identified four people in the street to police officers as being involved, but investigation by the police established that one of them could not have been so involved.  It is a timely reminder that honest witnesses can be mistaken.  But the fact of that misidentification does not, without more, raise a reasonable doubt in my mind as to the correctness of this identification.  There is no suggestion that the person misidentified was one of the two prominent people playing the major part in the robbery.  The facts surrounding the misidentification are not clear, but it is clear that different factors would have applied to it.  And common sense tells one that the circumstances of it were not going to be as favourable to later identification as they were in the case of the man playing the prominent role attributed to this Appellant.

5.The second attack on the identification was the fact that the magistrate could not be sure that the identifying witness had not been in the same report room as the Appellant at a police station on 2 March, two days after the event.  It was common ground that the meeting, if it occurred, was a chance one.  The Appellant did not testify to the meeting but his mother did.  She revealed - the mother - that the Appellant told her that PW2 seemed to be a witness in the robbery and that she understood from her son that he had contacted certain friends and they had confirmed the fact.

6.The magistrate found PW2 to be a truthful and honest witness and Mr Harris sensibly does not quarrel with that.  PW2 said that she had no recollection of seeing the Appellant in the report room, and if he had been there, she was certainly not aware of it and she heard no discussion in relation to robbery or anything else that attracted her to any particular person that evening.  The magistrate accepted this and found as a fact that it was so.

7.It was thus that on the face of it, the state of the evidence in this respect tended to link the Appellant with the robbery.  For how else, other than by being there, would he have realised that the lady in the report room had been a witness to it.  Doubtless, it was with this in mind that it was suggested to PW2 in cross-examination that the Appellant had indeed been present at the time and place of the robbery, but standing apart with a group who were spectators and who took no active part in it, the robbers having detached themselves from this group before the robbery.

8.The issue for the magistrate thus narrowed itself down from whether the identifying witness was able rightly to identify the Appellant from amongst all of those other young men in Hong Kong who bore a similar appearance, to whether she was able rightly to say what he was doing over the 10 to 15-minute period from amongst a group of less than 15 youths.  Mr Harris accepts that the highest it can really be put on behalf of the Appellant is that the identifying witness may have unconsciously taken in the features of the Appellant and, therefore, mistakenly identified him as the young man in the distinctive jacket.

9.Do minds unconsciously take in the features of a stranger who just happens to be in the same room, such that an imprint is left of sufficient force for it to ground an identification a week later, with the identifier being entirely unaware of it?  Supposing for a minute that they do, is it the case that this new, unconsciously acquired image may replace one that was consciously taken in, under circumstances that allowed for and prompted clear recording, and was deliberately recalled in order to make the identification?

10.I suggest that posing those two questions demonstrates that the point has insufficient force to diminish the weight of the identification evidence.  The point may have had more force in it if the witness had consciously seen the Appellant, or indeed his photograph, in the police station in circumstances that tended to suggest to the identifying witness that the Appellant was the robber in question, but the magistrate’s finding of fact put an end to that.  If it were otherwise, and minds did work in the way suggested, criminal courts would not be habitually acting on the evidence of identifying witnesses when the circumstances for the identification were good, as they may have unconsciously taken in another’s face and transposed it.

11.Experience tells us that whilst honest identifying witnesses may be mistaken, it is safe to rely on them if the tribunal of fact examines the circumstances of the identification and finds its quality to be good and reliable.    The magistrate carefully did just that in this case.  I undertake the same exercise on the same material.  I agree with her judgment.  And, in fact, this point would have been available if there had been no meeting in the report room, because the Appellant could just as easily have argued that there was an opportunity for the identifying witness to see the face of the Appellant at the scene, with, I might add, all the more incriminating features that would carry with it.  The argument would run that having unconsciously taken that image of his face in, it has been transposed in the way it was suggested may have happened in this case.

12.A further point was taken that the magistrate failed to consider the clear record of the Appellant, although she clearly did refer to it, and indicated that she took it into account in the proper way.  So, what Mr Harris really does is clothe his identification point with the extra force of the good character.  If he loses on the identification point there is nothing in his argument about the direction on character or the weight to be given to it.

13.It was also the case that his third ground of appeal pointed to discrepancies that existed in the evidence, most especially between the evidence of PW1 and PW2.  All I need say is that the magistrate was fully aware of those discrepancies and that she dealt with them with common sense in a practical way in her reasons.  The best discrepancy was a punch or a push.  Basically, the point by itself was never going to have sufficient force to damage the cogent identifying evidence and it was that evidence that formed the basis of the conviction.

14.Accordingly, I confirm the order made by the magistrate below and the appeal is dismissed.

15.The above part of this judgment was delivered orally on 10 March 2005.  Before those oral reasons were typed up and signed, the Appellant applied to me to raise a further argument.  The prosecution conceded that I still had jurisdiction.  I allowed it. 

16.The further argument was based on a claim that on the evening following the robbery, PW1 and PW2 had returned to the scene with police officers and that there a number of people had been pointed out as being present at a robbery and were arrested.  It was said that one of them was identified to be the person wearing the distinctively-coloured top. 

17.The matter was delayed to obtain the full transcript.  The full transcript reveals this:  PW1 said on the next evening, he pointed out three men and one girl to the police and that they were arrested; that one of those persons was the person in the distinctively-coloured top but that he had made a mistake in pointing out one of them as he came to realise that this person’s face merely resembled that of the person he sought to identify.  He admitted he had made a wrong identification.  He did not say, as he was never asked, which person he had misidentified.  He was asked how many people PW2 pointed out to the police.  His answer was:  “Well, if I remember correctly, she should have pointed out those few.”  He was asked if he heard anything about PW2 making a false identification and he replied that he had not. 

18.PW2 said in her evidence-in-chief that on the occasion in question, she was able to identify four people.  She said this did not include the person wearing the distinctively-coloured top.  In cross-examination, she said that she pointed out three people and was able specifically to say that one was a girl, one was “Gwai Chai” and one was the tall one with spectacles.  There was no claim by her to identifying the person in the distinctively-coloured top.  She denied any knowledge of making any mistaken identification herself. 

19.PW4, the detective senior inspector who was in charge of the case, gave evidence that one of the people pointed out on this occasion was called Leung King-bong but he had an alibi for the robbery which the police were able to check involving them looking at a CCTV tape which showed this person to be elsewhere at the time. 

20.He was asked if he knew which of the two witnesses had therefore apparently made a misidentification.  His answer was to say that he did not remember.  He was asked again and said, “That’s a female witness.”   It was then pointed out to him that he could therefore identify the witness who had apparently made the misidentification to which he responded by saying:  “Well, when you say ‘misidentification’, which incident are you talking about?”  The relevant misidentification was identified for him and he was asked again if he could tell who it was who had made that misidentification and his answer was:  “I cannot tell.” 

21.Given the evidence from the identifying witnesses themselves to the effect that PW1 admitted making a misidentification at this time and that PW2 knew nothing of such, all the evidence points to the mistake being made by PW1 and not PW2. 

22.On the transcript, I can find no evidence that the Appellant was not one of those arrested by the police on the next evening, although it is apparent from the way the case has been presented both here and below, that it was common ground that this was not so, and I will proceed on that basis. 

23.The new material reveals to me that a false point was made concerning the identification made by PW2 as the evidence did not suggest that she made any misidentification of another at any stage. 

24.This is the question:  does the claim by PW1 to the effect that the person with the distinctively-coloured top was there cast doubt on the identification made by PW2 of that person at the later identification parade?  And the answer to that question, in my judgment, is no. 

25.I say this as the evidence demonstrates to me that PW1’s admitted error related to his purported identification of the man in the distinctively-coloured top.  I remember he was not asked in respect of which person it was that he had made the error but PW2 was able to say in agreement with PW1 that the other two men then identified were “Gwai Chai” and the one with the spectacles.  So it is thus not the case that there is a competing positive identification of the man in the distinctively-coloured top.  The competition never amounted to more than a readily-acknowledged mistaken identification by another witness.  Given what I have already said about the quality of the identification made by PW2, which I judged safe to act on for reasons given last time, the new material raises no reasonable doubt in my mind. 

26.Accordingly, I do not alter my judgment in this case and the appeal remains dismissed. 

Mr W S Cheung, Deputy Principal Government Counsel, for the Respondent

Mr Graham Harris, instructed by the Legal Aid Department, for the Appellant