HKSAR v. Ning Renzhong and Another

HCMA1151/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1151 OF 2005

(ON APPEAL FROM KCCC 2938 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 6 January 2006

Date of Judgment : 13 January 2006

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J U D G M E N T

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1.This is an appeal against conviction and sentence by both appellants, the 1^st appellant having been given leave by me to appeal his sentence out of time. 

2.The appellants were charged together with a co-defendant of conspiracy to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap.210 and sections 159A and 159C of the Crimes Ordinance, Cap.200.  They were convicted after trial and sentenced to 20 months’ imprisonment.

3.The prosecution case, which was accepted by the magistrate at trial, was that the appellants had agreed to commit some form of “street fraud” on the victim.  The facts supporting that conclusion were that the two appellants and their co-conspirator, who was the 1^st defendant (“D1”) at trial, had been seen by an undercover police officer (“PW3”) to enter the Marks & Spencer store on the 3/F of the Ocean Centre in Tsim Sha Tsui.  There they went up to the intended victim (“PW1”) who was in the shoe department of that store, trying on shoes.  D1 dropped a wallet on the floor behind PW1.  He then asked PW1 if she had dropped it.  She said she had not.  D1 opened the wallet and displayed the money inside; one of the appellants exclaimed at the amount of money.  There followed a conversation amongst the conspirators as to what to do with the contents of the wallet.  One of them suggested that it be shared amongst themselves, including PW1.

4.PW1 was an honest woman.  She said that “ things could not be done that way”.  She shouted out loudly to surrounding customers asking whether any of them had lost a wallet.  The 2^nd appellant told her to “stop talking and not be nosy”.  At this point D1 then, with the wallet, left the scene.  But he was brought back by other shoppers whilst claiming the wallet was his.  He also, for some reason, attempted to throw away a Peruvian currency $10,000 note.

5.The undercover officer PW3 had observed all this and had called for police reinforcements.

6.Following this the appellants and D1 left the immediate scene.  The arriving police reinforcements had been given their descriptions by PW3 and the appellants (and D1) were arrested on the basis of those descriptions after they left the store.

7.The appellants , who were unrepresented before me but represented at trial, rely on two basic grounds to support their appeals :

(1)	that the dock identification of them by PW1 at trial rendered their convictions unsafe; and
(2)	that the evidence was insufficient to enable the magistrate to properly infer that they had conspired to defraud PW1.

8.I will deal only with the 1^st ground concerning their appeals against conviction.  As will be seen that is sufficient to decide the appeals.

9.Mr Melwaney for the respondent informed me, very fairly, that the arrests of the appellants were made solely on the basis of descriptions of the appellants and D1 provided to the arresting police officers by PW3 over his radio.  In other words the appellants were not arrested at the immediate scene of the crime in view of either PW1 or PW3.

10.Following the arrests PW3 went to each point of arrest and identified each of the persons arrested.

11.So far as PW1 was concerned, there was no identification by her of the appellants until their trial, at which time she made a dock identification of them.  No identification parade had been held.

12.Throughout the trial the appellants had challenged their identification by PW1 and by PW3.  Although neither appellant nor D1 gave evidence, their cases were effectively that they had nothing to do with PW1 in the Marks & Spencer store, that they did not know each other, and that their arrests were simply a case of mistaken identity.

13.The magistrate in his written Findings of Fact said this :

“… The prosecution was put to strict proof and identity was challenged throughout.  There was no formal identification parade held and no effort whatsoever was made by the prosecution to explain this omission. In considering the evidence of identification I directed myself according to the case of R v Turnbull 63 Cr App R 132, CA as to identification of each defendant separately by each PW.  Having considered the circumstances (including the fact that PW1, the purported victim, lives in Beijing) and warned myself as to the inherent dangers of dock identification, I allowed the prosecution to adduce such evidence.”

14.With respect to the magistrate I do not think a warning as to the inherent dangers of a dock identification was sufficient in this case.  In R. v. Hoang Duc Hoa & Others (1997) 1 HKLRD 12 Mortimer JA having stated that a dock identification was admissible as evidence went on :

“… We sound a note of warning, however, because judges should not allow dock identifications and prosecuting counsel should not seek to rely upon such, if the identification is the first time that the witness is called upon to identify an accused person unless there is some very good reason.  The obvious reason is that an accused has refused to attend an identification parade and that no other proper means of identification has been possible before trial, such as a group identification or a structured identification by means of photographs or some other recognised and proper procedure.  Normally, the only time that a dock identification is permitted is in a true recognition case where the accused is known well to the witness and has been described by him at the time or shortly after the offence and so at trial, he simply confirms that this is the person about whom he speaks.”

15.In the present case PW1’s dock identification of the appellants, who were strangers to her, was made in the absence of any previous identification parade.  Her evidence was important, as identification was the fundamental factual issue.  No good reason existed for there having been no identification parade held.  As the magistrate said in his Statement of Findings no effort whatsoever had been made by the prosecution to explain this omission.

16.It may well be that there are often good reasons in a particular case for no identification parade to be held.  One such circumstance in additional to those mentioned in Hoang Duc Hoa (supra) is where an arrest is made at the scene of the offence in full view of the victim who is able to say that the person who committed the crime was the person who they saw arrested by police.

17.That, I am told by Mr Melwaney, was the reason no identification parade, for the purpose of PW1 making an identification, was held in the present case.  It was apparently thought that as the present appellants were arrested in the vicinity of or just outside the Marks & Spencer store, that the situation was analogous to an arrest being made at the scene of the offence in the view and presence of the victim.

18.But that was not so.  The persons PW1 had been dealing with and who were watched by PW3 were lost to the sight of both of them by the time any arrests were made.

19.There was no good reason not to hold an identification parade so far as PW1’s identification of the persons she had been dealing with was concerned.

20.A dock identification by PW1 at trial in those circumstances in my judgment renders the convictions unsafe in view of the fact that the defence of each of the appellants as presented during the trial was that they were wrongly arrested.

21.I might add that the fact that PW3, after his colleagues had arrested the present appellants, went to where the arrests were made and identified each appellant does not save the situation.  It may well be in those circumstances that this evidence was properly admissible as evidence of identification made by PW3 and that during trial a dock identification by PW3 could properly be made.  That is because when the arrests were made, from a purely investigative view point, it is understandable an immediate identification of those arrested had to take place to ensure within reasonable bounds that the wrong persons had not been arrested.  That consideration may well excuse the lack of an identification parade so far as PW3’s identification is concerned.  Obviously no parade was sensibly required after PW3 had identified the appellants at the scene of their arrest and accordingly it may well be that, some form of identification having been made by PW3 prior to trial, a dock identification was permissible.

22.But even if PW3’s identification of the appellants was properly admitted into evidence, it was wrongly supported by PW1’s dock identification in a way which in my view was unfair to the appellants where their primary defence was that they had been wrongly arrested.

23.In my judgment the rules of evidence, whether they be rules of practice or principle apply equally in a magistrates court as elsewhere.  That is certainly so when offences which are other than purely regulatory in nature are being dealt with.  In the present case evidence of PW1’s dock identification of the appellants was wrongly admitted thereby rendering the appellants’ convictions unsafe and their appeals are allowed on that basis.

24.I do not need therefore to go on and consider the appellants’ 2^nd ground of appeal concerning the drawing of an inference by the magistrate that the appellants had conspired to defraud PW1.

25.I do not think there is any point in ordering a re-trial.  The appellants have been in custody for eight months.  The identification evidence against them cannot be improved.

26.Accordingly, I order their convictions to be quashed.

27.I order also that the confiscation orders made in respect of the various amounts of cash found in their possession after their arrest be set aside and that those monies be returned to them. 

Mr Harish Melwaney, SGC of Department of Justice, for HKSAR

The 1^st Appellant, in person (D2)

The 2^nd Appellant, in person (D3)