HKSAR v. Wong Chi Kwan

CACC 340/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 340 OF 2005

(ON APPEAL FROM DCCC NO. 389 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Stock JA and Suffiad J

Date of Hearing: 28 February 2006

Date of Judgment: 28 February 2006

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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):

1.On 4 August 2005, the applicant, aged 34 with no previous convictions in Hong Kong, was convicted of robbery and sentenced to 5 years’ imprisonment, following a trial before Judge M Yuen in the District Court.  He now seeks leave to appeal against conviction.

2.The single substantive ground of appeal amounted to a complaint that the applicant had been unfairly identified at the identification parades held a day after his arrest.  In a case where the evidence of two identifying witnesses stood alone, the applicant had been permitted, while not legally represented, to appear on two identification parades wearing a jacket of the same colour allegedly worn by the taller of two robbers at the time of the offence.  The distinctive colour of this jacket stood out against the colours of the jackets worn by the other eight members of the parade who were mere actors.

3.The facts, in short, were that at about 9:10 pm on 21 March 2005 a robbery at knifepoint took place of a mother (PW1) and daughter (PW2) as they were sitting in a park in Hung Hom after walking their dog.  Two men carried this out.  The applicant was allegedly the “taller” of the two who held the knife and wore a khaki jacket while the “shorter” man stole PW1’s handbag and contents.  The applicant, who at the start of the trial pleaded guilty to an offence of unlawfully remaining in Hong Kong, was unable to produce an identity card when he was arrested a few minutes after the robbery wearing clothing which matched the taller man’s description.

4.The applicant gave evidence at trial stating that he had been the victim of mistaken identification.

5.We have been able to view the identification parade with the aid of still photographs taken of the line-up.  It is apparent that the applicant’s clothing stood out from the rest.  The point made by Ms Mary Sin, for the respondent, was that Detective Chief Inspector Chan (PW3), who conducted the identification parade, had done all in his power to ensure that fairness was achieved.  On the information provided to him, he would not, it was suggested, have been aware that the colour of the applicant’s clothing had been a significant factor in the description of the taller robber which was given to the police who investigated the crime.

6.However, the officer-in-charge of the case, Detective Senior Inspector Mok Man-kit (PW6), was also present at the parade and was well aware that the taller robber carrying the knife had been described as having worn a “dark, muddy-coloured or khaki-coloured jacket” (transcript page 130).  He agreed at trial (transcript page 133) that he had provided PW3 with the facts of the case and that he was aware (transcript page 134), from the arresting officer’s witness statement, that the applicant had been arrested because his clothing matched the description given of the suspect.  He had not, however, told PW3 about the considerable significance of the colour of the jacket so far as the two identifying witnesses were concerned.

7.It was suggested to PW6 at trial that he had deliberately failed to inform the officer-in-charge of the parade (PW3) about the coat, so that the identification of the applicant would be made easier for the victims.  PW6 replied simply that the witnesses, based upon statements made by them before the parade, “recognised the suspect basing on body build, height and face and the look, and not because of the jacket”.  Later, (transcript page 137) he asserted that the colour of the applicant’s jacket “would not make it easier for the witnesses to identify the defendant …”.

8.These answers given by PW6 do not sit well with the testimony given by PW1 and PW2.

9.PW1 described the taller robber, when giving her evidence-in-chief (transcript page 36), as someone having a “dark colour, brown khaki jacket – outer coat and seems to be also dark coloured trousers; also short hair …”.  In cross-examination (transcript page 44), PW1 agreed that the most distinguishing feature that she could remember about the two robbers was the colour of the taller man’s coat.

10.When PW2 was taken to her witness statement (transcript page 77) the description which she agreed she had provided was that the taller of the two robbers, who held the knife, was aged between 20 and 40, with short hair and thin build, “wearing some sort of mud-yellow colour jacket” which, at trial, she accepted meant “khaki”.  She also agreed (transcript page 78) that the jacket was the most distinctive feature about his appearance.

11.It seems to us that no one centrally involved in the investigation of this case could have been ignorant of the significance of the colour of the jacket being worn the taller robber.  Furthermore, as the Detective Chief Inspector (PW3) who conducted the identification parade was aware that a jacket had significance in the context of the crime which, in turn, had caused him to insist that all the actors on the parade should wear one, it seems somewhat remarkable that PW3 was not concerned by the fact that the applicant was left on the parade as the only person wearing a khaki jacket.

12.It would not have taken much imagination to realise that if the applicant was suspected of committing a robbery while dressed in a jacket, that the jacket he was wearing must have been the same as the one allegedly worn at the time of the offence.  In seeking to achieve a fair parade, PW3 ought to have realised that the purpose was to see if the witnesses could identify the suspect, not his jacket.  By putting him on the parade wearing a khaki jacket, his appearance markedly stood out from the others.

13.When asked whether it was the general practice to inform the suspect, who as we have said was not represented by a lawyer, of his right to exchange his clothing with an actor’s clothing, PW3 replied that this was his practice and that he would have done so.  However, nowhere in the police identification parade book, which we have observed had many unused blank pages available, has anything been noted which indicates that this was done.  When PW3 was asked about this, he merely said that he thought it was “because there is no [specific] place in this ID book for me to write that down and it’s also possible that at that time I did not write that down.  However, my usual practice is to tell the suspect about these rights” (transcript page 111).

14.In her Reasons for Verdict, the judge referred to PW6 by saying:

“15.   It is unfortunate that it skipped DSI Mok [PW6’s] attention that the witness had described their assailant to be wearing a khaki colour jacket and that the defendant was the only person in the parade having a khaki colour jacket.  The parade would have less chance of resulting in injustice should DSI Mok had the common sense of getting all actors to wear similar coloured tops.” (Appeal bundle p. 15)

15.With respect, we cannot accept that there was any basis for saying that the significance of the khaki jacket had been lost on PW6 but this approach has illustrated that the fundamental unfairness of the way in which the identification parade was conducted has, albeit inadvertently, been overlooked by the judge.

16.This was a case where the applicant, having been arrested within minutes of the robbery, made no admissions, was not found to be in possession of the knife, had nothing of an incriminating nature upon him, and he was not in the company of a shorter man or indeed anyone at all.  The identification of the applicant by PW1 and PW2 stood alone and for their identification of the applicant to have carried any weight, the parades needed to have been carried out in circumstances where scrupulous fairness had been exercised.

17.Plainly, bearing in mind the circumstances we have described, the prosecution had failed to establish that the identification parade was fairly conducted.  This evidence laid the foundation for the prosecution to be permitted to identify the applicant as the taller robber who held the knife.  Once that foundation had crumbled, the prosecution’s case should have been regarded as at an end.

18.In our opinion, the conviction cannot be regarded as safe or satisfactory.  Accordingly, we shall grant leave and, treating the hearing as the appeal, we allow the appeal and quash the conviction and sentence for robbery.

Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent.

Mr James Peter Chandler, instructed Messrs Paul Cheng & Co., assigned by Director of Legal Aid, for the Applicant. (re: conviction)