HKSAR v. Akhter Hossain Alias 'Ah Tak'

CACC 1/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 1 OF 2007

(ON APPEAL FROM DCCC NO. 828 of 2006)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Suffiad J and Saunders J

Date of Hearing: 9 August 2007

Date of Judgment: 9 August 2007

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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):

Background

1.The applicant was tried in the District Court by Deputy Judge Mierczak on a charge of burglary at Room B, 7/F, 79 Ki Lung Street, Mongkok.  He was convicted on 7 December 2006 and sentenced to 3 years’ imprisonment.  The applicant now seeks leave to appeal against his conviction and sentence.

2.The facts were simple.  On 5 July 2006, the occupant of Room B (PW1), mistakenly left his door unlocked when he went out for most of the day.  He returned at about 11.00 pm to find his room in a mess.  His briefcase, which he kept under the bed, had been forced open and $20,700 in cash and his mobile telephone had been stolen from it.  PW1 then spoke to his landlady (PW2) and told her what had happened before reporting the matter to the police at about midnight.

3.On 8 July 2006, the applicant, who lived next to Room B in Room C, was seen at a playground by PW1 and the police were informed.  After the applicant had been arrested, he denied that he had stolen anything.

4.The evidence linking the applicant to the offence was given by PW2 who was elderly and suffered from poor eyesight.  She stated that a man she knew as ‘Ah Tak’ (apparently because she found it difficult to pronounce his real name), who had rented a room from her for a very long time in the past before moving away, had come back and rented a room for another month.  PW2 said that on 5 July 2006, at about 1 pm, Ah Tak asked her, speaking in Cantonese, for the key to the room next to his own.  She had no key for that room and she told him so.  However, later, when she was at the doorway to her own flat which was more or less opposite, she noticed that the light was on in Room B.  She went over to take a look and saw that the person she knew as Ah Tak had removed “two boxes” from under the bed.  She identified the briefcase (Exhibit P3), from which PW1’s money and mobile telephone were later found to have been stolen, as being similar to one of the boxes to which she had referred.

5.Ah Tak was with a second man who, like the applicant, was a Bengali.  PW2 asked Ah Tak how he had been able to get into Room B without a key.  He replied that the occupier had forgotten to close the door.  PW2 identified the applicant as the person she knew as Ah Tak when she was giving her evidence in the court below.

6.The applicant did not give evidence at trial.  However, an alibi witness, a distant relative of the applicant, Mr Khan, testified that the applicant had been in his company at a time which coincided with the events described by PW2.

Grounds of appeal

7.Two grounds of appeal were raised by Mr Pannu who also represented the applicant at trial.

(1)     Interruptions of cross-examination

8.In the 1^st ground, it was submitted that the judge:

“… unduly prevented the proper cross-examination by the defence counsel of PW2 on an area which was very vital to the case, namely, the lead-up to the spotting by PW2 of the two burglars in Room B and, by doing so, had not only short-circuited the examination but had hijacked it with the Trial Judge’s own views of the evidence.  By this interruption, the defence’s line of questionings were totally frustrated.”

9.We were taken by Mr Pannu to various parts of the transcript (between pages 37 and 43) for illustrations of what were said to amount to impermissible interruptions from the bench.

10.It is unnecessary to set out the judge’s interventions.  Suffice it to say, some of the illustrations upon which Mr Pannu relied related to confusion as to whether the time of the events PW2 had been describing had been checked on a clock and, if so, when and where this had occurred.  This confusion, however, plainly arose as a result of Mr Pannu’s failure to appreciate what it was that PW2, in a rather muddled way, had been trying to explain.  She had, she said, looked at a clock after she returned to her own flat from Room B but, because she had not looked at a clock in Room B, she did not know exactly when she had seen the two men in that room.  The judge pointed this out.  Mr Pannu then pursued the point about time (which was important to the defence of alibi) by putting to PW2 that she had “told the police it was 1 pm on 5 July” when Ah Tak had approached her.  This led the prosecutor to point out that in fact PW2 had said it was “around 1 pm” and Mr Pannu acknowledged the correction.

11.When the cross-examination continued, and PW2 began to answer questions before the questions had been completed, the judge very politely asked her to listen to what was being asked.  There came a stage when the judge took the view that Mr Pannu was, as he put it, “unnecessarily confusing the witness” which Mr Pannu denied and asked rhetorically: “Why would I be?”

12.The cross-examination then continued for some time before prosecuting counsel felt the need to interrupt with the comment:

“… we’ve been all over this umpteen times and I think this is getting very close to badgering this witness, who’s not a young person.  And my friend is going on and on and on.  He’s been at that before, in relation to whether it was before or after 1 o’ clock, and we’re repeating this for no sensible purpose whatsoever. …” (Appeal bundle p. 42)

The judge agreed and said that he would try to “short-circuit” the matter.

13.In our view, the judge was right to have agreed with counsel’s observation and, in a short series of non-leading and well-directed questions immediately thereafter, he was able to establish the exact sequence of events from PW2 without the confusion introduced by Mr Pannu.  Indeed, after this, in what appears to have been an acknowledgement that the matter needed no further clarification, Mr Pannu indicated that he had no more cross-examination although in these proceedings he has described his will as being “zapped”.  There is, however, no hint of this from the transcript.  The judge had acted with complete propriety and counsel made no complaint and, furthermore, had nothing about which to complain.

14.There was no merit in this ground.  The judge had done no more than was strictly necessary to clear up the ambiguities which had arisen.  Indeed, a failure to have intervened at the stages when he did so might well have left the judge open to the criticism that he had done nothing to prevent an elderly witness from becoming confused or overborne when it was the manner in which she was being questioned, coupled with the nature of the questions Mr Pannu was asking on this very simple issue, which had led to the confusion in the first place.

(2)     Dock identification

15.The 2^nd ground was concerned with the identification of the applicant by PW2.  Mr Pannu submitted that the judge had erred when allowing a dock identification to take place in court when there had been no prior identification of the applicant by PW2.  The judge had permitted the identification of Ah Tak to be made in court because he did not regard this as an ‘identification’ case in the true sense.  The witness was merely giving evidence of ‘recognition’ by confirming the identity of someone well known to her.

16.At trial, objection was taken by Mr Pannu to a dock identification on the basis that on several occasions during her evidence-in-chief PW2 had said words to the effect that she was not sure that Ah Tak was in court.  He had contended, therefore, that it would be unfair to allow PW2 to make a positive identification of Ah Tak having already indicated her uncertainty in this way.

17.In regard to her apparent uncertainty about Ah Tak’s identity, it is abundantly plain that this was because of PW2’s poor eyesight.  PW2 had said during her evidence-in-chief: “I can only see faintly with my eyes the opposite person, the male opposite, the one at the opposite side … I cannot see very clearly with my eyes”.  The judge noted that she was at that stage about twenty metres away from the dock.  In due course, she was permitted to go to the dock whereupon she was able to confirm that the applicant was the person she knew as Ah Tak.  At no stage had she indicated any difficulty in recognising the applicant.  Her only problem was her inability to see him properly given the distance between the witness box and the dock.

18.In these proceedings, Mr Pannu has emphasised several areas of confusion in PW2’s testimony which he submitted lent additional support to an argument that it was unfair to have permitted PW2 to identify the applicant in the courtroom.  These were all matters which went to the weight to be attached to PW2’s evidence, her reliability in general and the accuracy of her account that she had seen the applicant in PW1’s room.  The judge, from a reading of his Reasons for Verdict, plainly had these matters in mind.

19.We are satisfied that the judge was entitled, in the light of all the evidence given by PW2, to treat her testimony as amounting to ‘recognition’ by her of a person she knew well subject, of course, to the possibility that she had made an error.  In such circumstances, the procedure adopted of allowing PW2 to identify Ah Tak in court was entirely permissible.  In R v Hoang Duc Hoa and Ors [1997] HKLRD 12 at 14, Mortimer JA, giving the judgment of this court said:

“… 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.” (Emphasis added.)

20.The Reasons for Verdict reveal that the judge was well aware of the numerous criticisms of PW2’s evidence which Mr Pannu had raised at trial and has resurrected for the purposes of these proceedings.  Amongst other things, the judge said:

“37.   I found PW2 to be a most impressive witness, believable and honest. She is an elderly woman and I was cognizant of that and treated her evidence with caution, but the plain fact of the matter is she knows the defendant and knows him very, very well. There is absolutely no confusion by her with the other Bengalis living in the cubicles in the flat at all.

38.     She had known the defendant as Ah Tak for a very long time. He used to rent a place from her in the past and had then moved away, she says. The defendant had then returned and was renting Room C from her for about a month. She had had regular dealings with him. She was not confused as to this at all. To cap it off, there had been earlier conversations between her and the defendant about the keys to Room B, and subsequently PW2 had seen the defendant and another Bengali in the room of PW1 rifling through the contents of P3, from which subsequently money and a phone had been taken.

39.     There had been further conversations with the defendant at the time from a short distance away, she says the width of the witness box, as indicated by her, about 2 to 3 feet.

40.     Objection had been made with respect to the manner of dock identification, and it is true that there are inherent dangers in this which I am cognizant of, but here it is proper to permit such dock identification because it is a true recognition case where the defendant is well-known to the witness and has been described by her and so at the trial PW2 is simply confirming that the defendant is the person about whom she speaks.

41.     Further, it is true that three to four times in the witness box PW2 asked rhetorically, ‘Is that Ah Tak?’ I did allow PW2 to leave the witness box and approach the defendant in the dock to put herself at the distance she was when she had dealt with the person ‘Ah Tak’ on the material day and, for that matter, for a month before. She did so, that is some 2 to 3 feet away, and identified the ‘Ah Tak’ she speaks of as being the defendant. I do hold that the ‘Ah Tak’ she referred to throughout her evidence was indeed the defendant.

42.     I have given myself all the necessary warnings with respect to identification evidence under the circumstances and approached the question with extreme caution, which I must. I was of the view that the defendant has fairly and carefully been identified by PW2 and it is not possible it was anyone else she saw other than the defendant. PW2 is not mistaken.” (Appeal bundle p.11-12)

Conclusion

21.There are no grounds for finding that the verdict was unsafe or unsatisfactory.  On the contrary, there was clear evidence, which the judge had carefully weighed, of the applicant being caught in the act of burglary.  In addition, the judge gave cogent reasons for his rejection of the alibi evidence.

22.The application so far as it concerns conviction is dismissed.

Sentence

23.The applicant was not legally represented in his application concerning sentence.  He advanced no written grounds of appeal but we observe that it was suggested in mitigation that this offence was little different to a simple case of theft.  In our opinion, the judge, who had earlier made the observation that the applicant did not have a clear record, was right to disagree.  He said:

“5.     You did take the opportunity to enter the room when the occupant of that room had left and had stolen a not insubstantial sum, $20,700, plus a phone  … The higher courts have said that the starting point for a burglary of domestic premises, which this is, a starting point in the range of 3 years is not inappropriate and that can be increased if there are elements of aggravation present.

6.       Here I do not see any elements of aggravation that are present and I am of the view, taking everything into account, that 3 years is the proper starting point.  There is nothing put to me that would cause me to reduce that in any way.” (Appeal bundle p. 16)

24.The sentence was appropriate for this form of burglary.  This application, therefore, is dismissed.

Mr Kevin Zervos, SC, Ag DDPP, of the Department of Justice, for the Respondent.

Mr Peter Pannu, instructed by Director of Legal Aid, for the Applicant. (re: Conviction)

The Applicant, in person. (re: Sentence)