HKSAR v. Mudannayakalage Chaminda Pushpa Kumara and Another

CACC249/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 249 OF 2008

(ON APPEAL FROM DCCC 70 OF 2008)

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BETWEEN

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Before : Hon Tang VP, Hartmann JA and McMahon J in Court

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JUDGMENT AND REASONS FOR JUDGMENT

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McMahon J (giving the judgment of the Court) :

1.The applicant and appellant (D1 and D2 respectively), both Sri Lankan males, were convicted after a trial in the District Court before Deputy Judge Glass of a joint offence of robbery. They were each sentenced to 4 years and 6 months’ imprisonment.

2.At the hearing before us on 10 December 2009, D1 sought leave to appeal his conviction. D2, having been granted leave by a single judge, appealed his conviction. So far as D1 was concerned, we reserved judgment on his application. We allowed D2’s appeal, quashed his conviction and, setting aside his sentence, substituted a conviction for handling stolen goods and imposed a sentence which allowed his immediate release and we now give our reasons for doing so.

3.The prosecution case at trial was that the victim (PW1), a taxi driver, had on the night of the offence parked his vehicle in Sau Fu Street in Yuen Long some time before 3 a.m. nearby a minibus parking station and had then walked to a nearby 7‑11 store to buy some refreshments.

4.On his way back to his taxi he was intercepted by a dark‑skinned person with waist length hair (D1), who, in a somewhat oblique way, asked him for money. D1 then walked back with PW1 just past his taxi to nearby a group of parked minibuses. There D1 made a call on his mobile phone and a second dark‑skinned person with shoulder length hair (D2) appeared. D1 and D2 then told PW1 to give them money and when he refused they commenced to assault him. He put up a struggle but was hit with a stool and overpowered. His waist-bag containing his wallet, mobile phone and takings was snatched from him. Both D1 and D2 then left the immediate vicinity of the offence.

5.During the struggle PW2 had observed these events from her flat window overlooking the minibus parking area and had telephoned the police. In any event a patrolling constable (PW11) and his partner arrived at the scene of the robbery a short time before the police alerted by PW2’s telephone call arrived. When PW11 walked past the minibus parking area, he heard noises and went towards the minibuses to investigate. When he got there he saw D1 running out from the minibuses and intercepted him. He then heard groans coming from amongst the minibuses and, with D1 in his custody, went to investigate and found PW1. When PW1 saw D1 he immediately said that D1 was the person who had hit him.

6.PW1 then arrested and cautioned D1 in English and D1, who was not proficient in that language, remained silent. PW11 searched D1 and found a document of identity in the name of an individual who was with D2 when D2 was subsequently intercepted and arrested by other police officers some hours later. On D2’s person at the time of his arrest were items taken from PW1 at the time of the robbery, being PW1’s mobile telephone and small denomination Hong Kong and Renminbi bank notes.

7.Subsequently on 24 December, four days after his arrest, D2, against his wishes, was a participant in a confrontation identification with PW1 arranged by the police. The reason given for not holding a full identification parade was that the police could not find sufficient Sri Lankan actors.

8.Both D1 and D2 gave evidence. Their cases were that they had been arrested simply because they had been mistaken for the real robbers and that they had had nothing to do with the robbery. D2’s case was that the items said to have been found in his possession were not, and that the police had fabricated that evidence.

9.The grounds of appeal for both D1 and D2 therefore revolve around the evidence of identification. The specific grounds advanced on behalf of D1 by Mr Ross of counsel are :

(1)  That the judge erred by not considering that the reliability of PW1’s identification of D1 at the scene may have been undermined by the fact that D1 was in the custody of a uniformed police officer when PW1 identified him; and

(2)  that the dock identification of D1 at trial by PW1 and his identification of PW1 by photographs at trial were inadmissible as evidence and/or were wrongly relied upon by the trial judge as independent proof of identification.

10.The grounds advanced by Mr McGowan of counsel on behalf of D2 are (in summary form) :

(1)  That the judge was wrong to :

(a)  admit evidence of the confrontation identification of D2 by PW1;

(b)  allow a dock identification;

(c)  regard the identification even if properly admitted as being of any weight;

(d)  regard the identification of D2 by PW1 from photographs in court as probative evidence; and

(e)  to find that there was sufficient supporting evidence for PW1’s identification of D2 as one of the two robbers so as to render it reliable.

(2)  That the judge was wrong to accept PW1 as a credible identifying witness given the inconsistencies in his evidence.

(3)  That the judge was wrong to find there had been a telephone conversation between D1 and D2 immediately prior to the robbery.

D1

Ground 1

11.The judge accepted both PW1 and PW11 (D1’s arresting officer) as being witnesses of truth. The evidence of PW11 was that he had intercepted D1 as D1 was attempting to leave the immediate vicinity of the scene of the attack upon PW1. He had then, after hearing PW1 groaning, brought D1 with him the few feet to where PW1 was and, without prompting, PW1 had said that D1 was the one who had hit him.

12.Mr Ross does not say that this evidence of identification by way of a confrontation was inadmissible, and indeed he cannot. It is a very common occurrence that suspects are apprehended by police officers immediately after an offence where the victim of the offence then sees and observes the suspect (sometimes already in police custody) and identifies him as the offender. There is then no point in principle or in common sense for there to be a subsequent formal identification parade and a judge would not, without good reason, exercise his discretion to rule such evidence of confrontational identification inadmissible.

13.Mr Ross simply argues that in the particular circumstances of this case, where the attack upon PW1 involved two South Asian attackers (with other South Asians of similar age and appearance in the background), there was a real risk that PW1 might simply have assumed that, because D1 was brought into his presence in the custody of PW11, a uniformed police officer, D1 was one of the two attackers when he was not.

14.Mr Ross advances a preliminary argument in regard to this first ground. He points out that PW1’s evidence as to what happened prior to, and at the time of, his identification of D1 differed from that of PW11. PW1 said in evidence that D1, after the attack, had hidden behind a nearby minibus and had then sat in his plain view and had subsequently been apprehended there by the two uniformed police who had come to the scene. In cross-examination he said D1 had, before he was apprehended by the police, “crawled” out from behind the minibus and they had been face to face. He also agreed that in his witness statement, he had not mentioned that D1 after the attack had run off to hide behind a minibus. He also said that he had not seen D1 run off after the attack but had only heard D1’s footsteps.

15.PW11’s evidence was to the effect he had, shortly after arriving at the scene in response to noises he had heard, first seen D1 running out from between some minibuses in the car park and had apprehended him there. This location was (from the photographs produced) very close to where he subsequently found PW1. He had then, still hearing moaning noises, taken D1 to the source of the sound and found PW1 who had, spontaneously and without prompting, identified D1 as the person who had hit him. There were therefore some apparent discrepancies between PW1’s evidence and that of PW11.

16.Mr Ross argues that these discrepancies undermined the credibility of PW1 and so also reduced the weight of his identification of D1. The judge dealt with the inconsistencies between the evidence of PW1 and PW11 in this way :

“… I also found that PW1 was in great pain and bleeding and moaning after the first male fled and I did not believe that he would have paid much attention to this first male leaving the scene and after he had gone until he saw him again in front of him when the police brought him to him.  I also found that what PW1 now had in mind, when giving this part of his evidence, was the period when he had seen the first male sitting near him in handcuffs whilst he was waiting for an ambulance.  I found he now wrongly believed that this male had returned to that position before the police arrived and I kept in mind, when assessing his evidence, that he had tried to justify this wrong belief in his evidence.  I, therefore, gave this inconsistency considerable weight, together with the other inconsistencies in his evidence, as it also contradicted PW11, but found in conclusion at the end of the evidence that it did not cause me to doubt the accuracy of his evidence about the robbery and his identification of D1, as I found his evidence of the robbery was supported by his injuries, the broken stool nearby, the money on the ground, the recovery of his telephone and money about two hours later and by PW11’s evidence, and by his statement that he had cried out in pain shortly before the uniformed police officers arrived.”

17.It seems to us that the judge was entitled to arrive at that resolution of the inconsistencies between the evidence of the two witnesses. PW1 had been struck to the ground by a blow to the head with a wooden stool as the final action in a struggle with the two robbers, who had also punched and kicked him and stolen his wallet. He was bleeding from the head and said his vision had “blurred”. The most important inconsistency relied upon by Mr Ross was PW1’s evidence which suggested that D1 had come out of hiding from behind the minibus and sat looking at PW1 until he was apprehended by PW11 and his partner in that position and handcuffed. It is fair to say that PW1’s evidence in that regard was less than perfectly clear, but the judge accepted that that was the thrust of PW1’s evidence and that it was inconsistent with the evidence of PW11. His resolution of that inconsistency was one of common sense, and focused on the reality that a person who had just been stunned and clubbed to the ground with a folding stool would perhaps have some confusion in his mind as to the order and timing of events in the very immediate aftermath.

18.In any case what was important was not how D1 had been brought back to the presence of PW1 but PW1’s identification of him when the confrontation occurred.

19.Mr Ross also complains that the judge read into PW1’s evidence more than it contained, in that he referred to PW1 and D1 being in each others presence whilst PW1 was waiting for the ambulance. With respect that complaint, on the evidence before the judge, is not material. Both PW1 and D1 were in each others presence for at least several minutes after the apprehension of D1. An ambulance had been called (PW1’s head was bleeding) and the judge no doubt was aware of the evidence of PW13, a uniformed constable who arrived at the scene with other Emergency Unit officers a few minutes after D1’s arrest, and who said he was in the presence of PW1, PW11, D1 and an officer guarding D1, (PW11’s partner). On his evidence PW1 and D1 were waiting together prior to PW1 being driven away in the ambulance.

20.We accept however there was no evidence that D1 was sitting while in PW1’s presence and the judge was wrong in his recollection of the evidence in that regard. Nevertheless in our view, that does not materially reduce the validity of the judge’s resolution of the inconsistencies as set out in the above passage taken from his Reasons for Verdict.

21.That brings us to the main argument advanced under this ground. Mr Ross complains the judge did not consider whether the fact D1 was brought into PW1’s presence by a uniformed officer may have caused PW1 to mistakenly identify D1 as one of the robbers.

22.The judge had said this :

“247. I, therefore, considered carefully whether PW1 had been able to properly identify the two males in the circumstances that I set out above, given the inconsistencies that had arisen in his evidence.  Also, when making this decision, I reminded myself of the Turnbull Guidelines on Identification, in particular to exercise great care before convicting an accused based on identification and to carefully review all the circumstances of the identification and to remind myself that an honest witness could be a mistaken witness, and that a number of honest witnesses could also be mistaken.

248.  After having done so, I found that I was satisfied beyond reasonable doubt that PW1 had identified the first male correctly when he was presented to him by PW11, and I was satisfied beyond reasonable doubt that there was no mistake in his identification and that there had been no mix-up of males because of their different racial colours and features.  I found this was not just a fleeting glance situation, but it was one where PW1 had seen the male’s face clearly over a sufficient period of time before the assault began to have created a clear impression of this male’s face by the time D2 came on to the scene, and I found he was clearly able to see that this same first male had participated in the attack and hit him with a stool as he was already very familiar with his face and features by this time.”

23.It is true that the judge did not expressly refer to the possibility that PW1 may have identified D1 because D1 was in the custody of a police officer at the time of identification, but in our judgment there was no need for him to do so. It must have been quite apparent to the judge that D1 had been brought into PW1’s presence whilst in the custody of PW11 and no doubt that was a matter he took into account. It may well be that if the trial had been before a jury a direction that the jury should consider whether the identification could have been triggered by the fact that D1 was in police custody would have been required : see R v Foley [1997] EWCA Crim. 3278 where the failure to expressly direct the jury on that aspect was one of the reasons the appellants’ conviction was set aside. But in circumstances where a professional judge, sitting alone, decides the question of identification we do not believe the same danger or requirement exists : see for example HKSAR v Kong Ting Shan, CACC510/2005 at para. 28. This was plainly a matter the judge was aware of and while it may have been desirable to give it brief express mention the failure to do so does not fatally undermine the judge’s conclusions in this regard. It is clear from his reference to R v Turnbull (1977) Q.B. 224 that the judge was aware of the need to take into account all the circumstances, including the weaknesses of the identification evidence.

24.We might add that confrontation identification of this sort, where the victim of an offence identifies the offender only minutes after the offence and in the environment of the offence, where the appearance and clothing of the offender has not significantly changed and the recollection of the identifier has not faded, is not usually subject to the same criticisms as is confrontation identification conducted days or weeks after the event at a formal meeting between the victim and the suspect in custody.

25.In the present case PW1 had had an opportunity of viewing D1 since he was first accosted by D1 in the vicinity of the 7‑11 store; during the walk back to the scene of the robbery; during the robbery and then immediately after the robbery when PW11 returned D1 to PW1’s presence. D1’s appearance was unique. His hair was unusually long, being down to his waist. His clothing was distinctive. He was first seen by PW11 and apprehended very nearby where PW1 had been robbed. According to PW11’s evidence he saw D1 coming out from between two minibuses and at that location, as can be seen from the exhibited photographs, were coins scattered on the ground which clearly came to be there as a result of the robbery.

26.PW2’s evidence, in the description she gave of one of the persons attacking PW1 having waist length hair, supported PW1’s identification of D1. Additionally, at the time of his arrest, D1 was in possession of an Immigration Department document of identity in the name of one of the individuals who was with D2 (who had PW1’s mobile phone and cash) at the time D2 was arrested. That evidence connected D1, albeit indirectly, with PW1’s stolen property.

27.We do not think there was anything unsafe in the identification of D1.

Ground 2

28.Mr Ross complained further about the dock identification of D1 by PW1 at trial and the identification of D1 from photographs shown to PW1 at trial.

29.The two matters were interconnected and came about in this way. The prosecutor at the end of PW1’s evidence-in-chief, after having dealt with the events of the robbery itself and with PW1’s identification of D1 after the police apprehended him, wished to proceed to have D1 identified in court by PW1. There followed some confusion upon defence counsel indicating there was an objection to this, though the basis for that objection was not clearly stated. The judge refused to allow any dock identification until there had been a more thorough questioning by the prosecutor of PW1 concerning matters relevant to the weight to be attached to PW1’s identification of D1 at the scene in accordance with the principles of Turnbull.

30.That further questioning concluded with PW1’s identification of D1 when D1 had been brought back into PW1’s presence :

“Q.  Yes.  And how did you recognise him?  I’ll put that another way: why were you able to recognise him?

A.  Earlier on he grabbed me – how could I not recognise him?

Q.  Right.  Was it his face you recognised, his clothing or his build or all three things?

A.  I recognised his face.

Q.  Face.  Was the clothing he was wearing the same as the man who’d attacked you?

A.  Yes, the same.

Q.  Was his hair the same?

A.  Yes.

Q.  Yes.  Although he was sitting down, was his build the same?

A.  Yes, the same.

Q.  Did you go closer to him to make sure you were correct when you saw him in the custody of the police?

A.  No.

…

Q.  So the 6 to 7 feet was your nearest point to him?

A.  Yes.

Q.  Did you have any doubt whatsoever?

A.  No.”

31.Following that PW1 was shown photographs of four South Asian men taken shortly after they were arrested that evening (including D1 and D2). PW1 identified D1 from those photographs. That procedure was relevant because at the time of the offence D1 had unusually long hair and wore a distinctive red white and blue striped T‑shirt. At the time of trial those attributes had no doubt been changed, and the photographs were relevant as to D1’s appearance at the time of the incident. The photograph of D1 clearly shows the distinctive T-shirt he wore (though his hair was tucked into his T-shirt for some reason). Those photographs were already in evidence by agreement and were relevant to D1’s appearance on the night of the robbery, and there could be no objection in principle to them being shown to PW1.

32.Following that a dock identification of D1 took place. There generally can be no sensible criticism of a dock identification being made by a witness during his testimony after evidence of an earlier identification has been given by that witness, whether at a formal identification parade or in some other proper manner such as, in this case, by way of confrontation.

33.Mr Ross however argues that in the circumstances of the present case, the judge should have exercised his discretion to exclude the evidence of the dock identification and the photographs as being more prejudicial than probative. Nothing material was advanced before us as to why this was so, and in our view the evidence was not more prejudicial than probative. There was nothing to suggest the judge gave this evidence more weight than it deserved, as Mr Ross complains. This second ground must also fail. D1’s application is dismissed.

D2

34.It is unnecessary for us to deal with D2’s grounds in detail or individually. It is sufficient to say that his conviction for robbery on the evidence of identification before the judge could not be sustained.

35.That evidence comprised confrontational identification evidence from PW1 (which, as will be seen, in our view should have been excluded), supported by other circumstantial evidence. That other evidence was, in brief, that D2 was also a young South Asian male; that he had shoulder length hair and a dark upper garment as described by PW1 and PW2 (although he wore his hair as a ponytail and PW2 had in her witness statement described the second attacker as having “short” hair); that his alibi presented to the court both by himself in evidence as well as by a witness called on his behalf was false, that he had lied in his evidence and that he possessed PW1’s mobile telephone at the time of his arrest together with Hong Kong currency and Renminbi in similar denominations as those described by PW1 as having been taken from him; and that he had resisted his arrest.

36.In our view the circumstantial evidence, even if properly used as supporting evidence, was insufficient by itself to sustain the conviction for robbery. That is because it went no further than establishing D2 had handled stolen goods. We might add that we have some concern that the judge took into account as evidence against D2 his disbelief of D2’s evidence that he had not possessed PW1’s Nokia mobile phone or the small denomination banknotes which the police said they found upon him at the time of his arrest. That, if a lie, was better regarded as not an independent lie but simply part of the issue to be decided.

37.To return to the point however, if as seems clear to us the circumstantial evidence was by itself insufficient to sustain a conviction for the robbery as opposed to the lesser offence of handling then, if the evidence of confrontational identification should have been excluded or was of no weight, the robbery conviction cannot stand.

38.The evidence of confrontational identification of D2 by PW1 came about in this way : about two hours after the robbery of PW1, D2 was intercepted by police while with a group of other Sri Lankan males in a street in Yuen Long several hundred yards from where the robbery had occurred. He was searched and PW1’s mobile phone and small denominational currency similar to the currency taken from PW1 was found in his possession. He was subsequently arrested and cautioned. He said in his defence that the mobile telephone and the banknotes had not been found in his possession by the police; that they had fabricated this evidence and that he had not been involved in the robbery of PW1.

39.It was decided an identification parade was to be held and on 20 December, the day of D2’s arrest, PW5, the officer in charge of the case, had instructed that Sri Lankan actors be obtained for the parade. On 21 December D2’s case was adjourned in Tuen Mun Magistracy to allow a formal identification parade to take place. That parade was scheduled for 24 December. Prior to that date an acting company was thought to be able to provide Sri Lankan actors for the parade (after a number of companies had been unsuccessfully approached). But subsequently it was discovered that the actors or a number of them, were not allowed to work in Hong Kong. They were therefore not used.

40.So on 24 December PW5 instructed PW4, the officer in charge of the parade, to proceed by way of confrontation. When PW4 was instructing PW1 as to what would occur during the confrontation, he candidly informed PW1 that, as the procedure was unfair to D2, PW1 had to be sure of his identification. Later PW4, when he explained the procedure of the confrontation to D2, also very fairly told D2 that he thought the procedure was unfair but that D2 could raise an objection to it at the trial. PW3 was the Singhalese interpreter who was present during the confrontation. His evidence was that D2 had complained to him that the procedure was unfair.

41.Generally this evidence was accepted by the judge except that the judge concluded that certain of the police witnesses were unreliable, notably PW5, in that PW5 realised on 23 December or earlier that there could be a problem with the Sri Lankan actors rather than on 24 December as he had said. The judge accepted that PW4 had suggested to PW5 that the parade be delayed until more actors could be found, and that if necessary another court adjournment be sought for that purpose.

42.PW5 said that he assumed that no further Sri Lankan actors could be obtained and so, when told that those who had been obtained were unsuitable, had reported that to his chief inspector and it had been decided to proceed by way of confrontation. He said later he thought of using South Asian actors of other nationalities but by that time the confrontation had already taken place.

43.We can see no good reason why it was necessary or desirable to hold a confrontation identification rather than a formal parade. D2 was willing to participate in a formal parade. A further adjournment could have been sought in the magistracy so as to give the police an opportunity to recruit other actors, whether Sri Lankan or South Asian. We cannot envisage such an application being refused once the circumstances had been explained to the court. There had been only one previous adjournment of the case for the purpose of obtaining a Singhalese interpreter.

44.Further, when the confrontation took place it exhibited all the attributes that render such identifications undesirable. D2 was the obvious suspect. He had plainly already been arrested by the police in respect of the offence. He, apart from the translators, was the only civilian. He apart from one of the translators was the only South Asian. The confrontation was held four days after the event in a room in Yuen Long Police Station and D2 was surrounded in that formal environment by many police officers.

45.It cannot be that in a cosmopolitan city such as Hong Kong a confrontational identification was required because of the absence of South Asian actors. That, in this case, could not amount to a good reason for proceeding in that way. In our view, from the evidence before the judge and from the judge’s findings, the real reason was simply one of convenience.

46.While, strictly speaking, the evidence was nevertheless admissible there was in this case good reason for the judge to exercise his discretion to rule the evidence inadmissible. The confrontational identification was unnecessary, unfair to D2 (and was against his wishes) and was, as the judge found, of little probative value.

47.Following a voire dire however the judge allowed the evidence to be adduced but in his Reasons for Verdict said this :

“249.  However, in relation to the second male, whilst I accepted he had seen his face clearly and that the information he reported of the second male was quite detailed and that it was, to some extent, supported by PW2’s evidence, I found that, given his short period of observation of the second male, who was a complete stranger to him before the attack again, and the very short period of time of attack before the second male fled, and of his having to defend himself during the attack and the fact that all three parties were moving around during the attack, that I had concern that PW1 had correctly identified the second male in his identification.  I was, therefore, concerned that PW1 might have made a mistake in the later identification of D2 because he sat with him in front of him in the confrontation for some time and he may have unknowingly convinced himself in his mind that D2 was, in fact, the second male when he had seen D2, who I found was very similar in all respects to the male he had seen attack him.

250.  I therefore found that PW1’s evidence was not sufficient alone, or even with the benefit of PW2’s evidence, to prove beyond reasonable doubt that D2 was the second male.  I, therefore, looked at the rest of the evidence to see if it led me to draw an irresistible inference upon D2’s identification.”

The judge then concluded from the circumstantial evidence that PW1’s confrontational identification of D2 was sufficiently supported by that evidence so as to be reliable.

48.As we have said that other evidence was, primarily, that D2 was found in possession of PW1’s mobile phone and the small denomination currency which the judge viewed as that which a taxi driver would have in his wallet or waist-bag. The judge also relied on D2’s flight from the police (all of the group he was with fled when they saw the police) and his telling of lies to disassociate himself from the offence. But as we have said these aspects of the evidence were as consistent with D2 having merely handled the stolen items as with him having been one of the robbers. They could not safely support the flawed identification. The conviction for robbery in our view was unsafe and had to be set aside.

49.Mr McGowan accepted that, on the otherwise unchallenged findings of the judge, D2 was plainly guilty of the alternative offence of handling stolen goods, and it is quite clear from the findings of the judge that he must have been satisfied of the facts establishing that offence.

50.Accordingly, at the conclusion of the hearing, we allowed the application, treated the hearing of the application as the appeal, allowed the appeal, set aide D2’s conviction for robbery and substituted for it, pursuant to Section 83A(1) and (2) of the Criminal Procedure Ordinance, a conviction for handling stolen goods. We set aside the sentence imposed for the robbery offence and for the handling offence imposed a sentence which enabled D2’s immediate release.

Ms Anna Y.K. Lai, SPP of the Department of Justice, for the Respondent

Mr Phillip Ross, instructed by Messrs Lo, Wong & Tsui, assigned by Director of Legal Aid, for the 1^st Applicant

Mr James McGowan, instructed by Messrs Peter K.H. Wong & Co., assigned by Director of Legal Aid, for the 2^nd Applicant