HKSAR v. Lo Ka Chun

DCCC 818/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 818 OF 2013

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Reasons for Verdict

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1.The defendant has pleaded not guilty to one count of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance.

2.The prosecution allege the defendant and three others wounded the victim, who was the owner and manager of a bar in Wan Chai, and the date was 5 February 2012.  They together unlawfully and maliciously wounded Mr Lau Sing, Ivan, with intent to do him grievous bodily harm.

3.The defendant and his friends arrived at this bar on the 25th floor of 256 Hennessy Road at about 4 am.  When the defendant and his friends were offered a second bottle of alcohol, they were not happy about the price, and demanded to see the manager.  Mr Lau approached the group of men, and an argument ensued.  The argument then became physical, and the victim was attacked by at least four men, including the defendant.  The prosecution say the defendant stabbed Mr Lau in the arm with a broken glass.  The group of attackers then fled the bar.

4.Mr Lau was treated in hospital for his injuries.  The glass wound was stitched up.

5.The issue in this case is whether or not the defendant is the man who wounded the man by glassing him.  Identification is in dispute.

6.The prosecution rely on CCTV footage of the whole incident and a subsequent identification parade held on 14 March 2013, where Mr Lau and a waitress identified the defendant as the man who glassed Mr Lau.

7.There was no admission by the defendant of the offence or that he was present that night.

The Prosecution Case

8.The prosecution rely on the victim, Mr Lau, PW4, and a staff member of the bar, Ms Leung Wan-yi, PW5, to give evidence of what happened at about 4.30 am that morning.

9.Ms Leung served a table of guests that arrived at about 4 am and sat at tables 5 and 6.  Exhibit P3 is a sketch that sets out the layout of the premises, including table numbers. 

10.When they arrived, they ordered a bottle of black label whiskey at $1,000.  After about half an hour, Ms Leung was told by her supervisor, Boey, to take over a bottle of vodka and collect $1,500 payment.

11.The men at tables 5 and 6 refused to pay or accept that they had ordered this vodka.  It transpired a female attached to their group had ordered it.  The men accepted this, but then said the bottle was too expensive.  Boey tried to placate them, but they became agitated and asked for the manager.

12.Ms Leung said that Mr Ivan Lau came over and there was an exchange between him and the group of men that became heated. She said it got very noisy and many men became agitated.  There was then pushing and shoving, and the group of men from tables 5 and 6 rushed at Ivan Lau.  In her words, “Then there was a fight”.  Most of the men from that table attacked Ivan Lau.

13.She described them initially all attacking him with fists, and the group did move around in that small area by the bar, table 7 and table 9.  She then said she heard the sound of glass breaking and saw a male brandishing above his head a broken glass.  He was aiming at and intended to stab Ivan Lau.  She described some people trying to break up the fight and mediate.  The man with the broken glass was held back initially, but he kept trying to rush towards Ivan Lau.  She said it was confusing, chaotic and frightening, but she saw him get close to Ivan Lau several times. He even brandished the glass close to his head.

14.Suddenly someone turned on the main lights of the bar, and the group of attackers and others left.  By then, Ivan Lau was leant against the bar near tables 9 and 11.  Someone threw a glass in his direction, but missed him.  Ms Leung approached Ivan to check on him, and not long after, a glass bottle was thrown by a male near table 1 and the exit of the bar.  She said she saw a male from tables 5 and 6 throw it towards Ivan and herself.  It missed them, but broke, and she was splashed all over by beer.

15.Even when this male threw it, there were others there trying to stop him.  She said the fighting left an impression on her, and specifically recalls and noticed the sound of glass breaking, then seeing a man brandishing and waving around a broken glass.  He was waving it around for a while, not just one or two seconds.

16.She was 4 to 5 feet from this male, and saw his face clearly.  She said he moved around, so she saw his whole face, not just one side of it.  She described the bar lounge lighting as dim, but the area near the bar and the fight was brighter due to bar lights and spotlights.

17.Ms Leung then, on 14 March 2013, attended an identification parade at the request of the police and identified the defendant as the man who brandished the glass and lunged at Ivan Lau repeatedly.  She identified him as the man that assaulted Ivan Lau.  It was her evidence that she had not seen the CCTV footage or any stills from the footage at any stage before the identification parade.  Her identification of the defendant was based on her memory alone.

18.After the identification parade, she was shown a still photograph taken from CCTV footage, and said a man called “WP1” - “Wanted Person 1” - was the defendant, and the man who attacked Ivan Lau.  The still photograph is Exhibit P2B, labelled “WP1”.  That exhibit consists of four pages of still photographs of four different men.

19.Mr Ivan Lau, PW4, the victim, gave evidence that the group of people sat at tables 6 and 7, argued with staff about the cost of a bottle of vodka, and asked for him.  He went over immediately.  He told the group they could return that bottle for a cheaper bottle.  The group swore at him and said he treated them as fools.  A quarrel ensued, then pushing and shoving.  He was the only target.

20.He was kicked, punched and assaulted by six or seven people.  As he was hit, he felt something stab his arm, and knew it was a broken glass.

21.He said the defendant was close to him to his left, and as he stabbed him, Mr Lau looked at him.  The assault continued despite this until lights came on and the group dispersed, leaving the bar.  He said the whole assault lasted about five minutes. 

22.He said the defendant came back after the group left and threw a glass bottle at him, but it missed him.  He threw it from about table 1 when he re-entered the lounge from the entrance.  The lights were all on, and he is sure the man that stabbed him with broken glass is the same man that re‑entered the lounge and threw a beer bottle.  In-chief, he described the man who stabbed him as having short black hair, no glasses, and wearing a black jacket.

23.PW4 describes being called to attend an identification parade in March 2013.  He was told a suspect had been arrested. He picked the defendant from a line of actors all wearing a shower cap and glasses.  He recognised the defendant fairly quickly as the man who stabbed him with broken glass.  He said he was very certain it was the defendant and he made the identification from his memory.

24.Mr Lau did watch the CCTV footage once between the incident and the identification parade.  He agreed that two days after the incident the police came to the bar to watch the CCTV footage.  The system had eight different cameras and was complicated to operate.  He had to operate it for the four officers who watched it.  They asked Mr Lau to set it to certain times for them to watch.  He said he did watch it with them, but not again.  He did tell police officers who attacked him whilst pointing at the screen.

25.After the identification parade, like PW5, Ms Leung, he was shown still photographs taken from CCTV footage, and said the photograph of WP1 of Exhibit P2B was the man who stabbed him; he was the man who he picked out of an identification parade and the defendant; all one and the same man.

26.The man in the CCTV he points out as the defendant and WP1 of the still photograph is wearing a white glossy jacket zipped up.  In-chief, Mr Lau referred to the man who glassed him as wearing a black jacket.  This discrepancy was dealt with in cross-examination.

27.PW1 was the officer in charge of the case, and took it over on the night of 7 February 2012.  He asked PW4, Mr Lau, to burn the relevant CCTV footage onto a disc for the police investigation. Exhibit P2 is the disc that contains the footage of all eight cameras.  He did make stills of four wanted persons.  He did show the victim and Ms Leung these stills in August 2013, when he took further statements from them.  PW1 is also the officer who took a statement from the victim on 8 February 2012.

28.PW1 gave evidence that he applied for a search warrant for the defendant on 8 February 2012.  He received information from a colleague about the defendant and applied for a warrant at Eastern Magistracy.  He said he did not need to execute the warrant because the occupants of the address had opened the door and told the police the defendant was not home at that time.  The occupants were the defendant’s family members.

29.Much was made of an entry on the first page of PW1’s investigation report, where four wanted persons are described. On the face of it, it seems the entry of these details was made at 1845 on 7 February.  This is the time he took over the case.  He explained these details were added in later, after he got the descriptions from witnesses in their statements.  This document was for police internal use, and the descriptions on the first page assist and aid their investigation.  His evidence was he would include the description of suspects involved on page 1 for ease of reference for all officers who had sight of this document.  There was no evidence he had the descriptions of any wanted persons before they were given by the victim and Ms Leung.

30.PW1 was sure before the identification parade of March 2013 he did not show the victim or Ms Leung any CCTV footage or still photos from the CCTV or any police file photograph of the defendant.  They confirmed this in their evidence.

31.PW2 was another officer, DPC3821, who took a Polaroid of the bar, Exhibit P4(1), after the incident was reported.  He also went to the hospital and took a statement from the victim at about 5.40 am in the waiting room.  The victim told him six persons attacked him with fists, kicks and glass bottles.

32.PW3 was Chief Inspector Lai Hau-kong, who officiated over the identification parade of March 2013.  He described the procedure involving two witnesses both identifying the defendant in a line-up. He said prior to the parade, the defendant chose to stand in position number 7.  The defendant asked for one actor to be excluded, all to wear shower caps and glasses.  One actor was required to swap an upper garment with the defendant.  PW3 agreed to all his requests.  This officer’s evidence was not contentious, and the identification parade book was exhibited as Exhibit P5.

33.Exhibit P1 is the Admitted Facts and agreed photographs taken, the sketch drawn, and the CCTV footage burnt onto a disc, Exhibit P2.  It also refers to the defendant leaving Hong Kong via the airport on 20 February 2012 and returning to Hong Kong on 24 January 2013.  He was arrested upon arrival.  Lastly, it refers to Mr Lau’s injuries sustained to his arm and the medical treatment he received.

34.The defendant elected not to give evidence, nor call any witnesses.  As I have said, there was no admission from the defendant that he was present at the bar that night, and the defence case was that there was a mistake in both Mr Lau and Ms Leung identifying the defendant as an attacker.  This is a case of mistaken identity.  Where the CCTV footage is concerned, the defence case is that the image of the man Mr Lau and Ms Leung allege is the defendant is not clear enough to be certain.

CCTV Footage

35.The CCTV footage in Exhibit P2 depicts the scene covered by eight cameras all in different locations in the bar. Mr Lau marked the cameras’ positions on Exhibit P3A.  The first camera, hereinafter referred to as “Camera 1”, is pointed at the reception area of the bar outside the lifts.  The area is well lit, and the camera is above the area, pointing downwards.  Camera 6 is located in one corner of the lounge near, and above, table 11.  It affords a view of tables 5 to 10 as well as the booth number 3 and part of the bar itself.  Camera 8 is located in the opposite corner to camera 6 near, and above, tables 5 and 6.  It points towards the bar itself and table 11.

36.In court during the course of PW1’s evidence we watched the footage of camera 1 and camera 8.  In the course of PW4’s evidence, the victim, we watched the footage of cameras 6 and 8.  Mr Lau pointed out the male in a white jacket as the defendant in court and identification parade.  He points out the defendant on the footage as the man who glassed him.

37.The prosecution relies on three sources of identification to prove it was the defendant who glassed the victim when he and others attacked him in his own bar at about 4.30 am.  The prosecution relies on the CCTV footage as depicting direct evidence of the defendant’s participation in the attack.

38.In final submissions, Ms Whitfort points out that although PW4, the victim, did not describe a man in a white jacket in his statement taken in the hospital, in it he does only give a general description of a group of six men.  Two days later, on 8 February, he gives his first detailed description of the four men he can describe, and says a man in a white jacket glassed him, and the same man in a white jacket came back after the attack stopped to throw a beer bottle at him.  PW4 points out this man in the white jacket in the CCTV footage played in court.

39.The prosecution also relies on the positive identification of the defendant by PW4 and PW5 in a police‑conducted identification parade.  The prosecution says it is reliable and without impropriety.  Where PW4, Mr Lau, is concerned, he did see the CCTV footage once on 7 February 2012.  He did not view it between 7 February 2012 and 14 March 2013.  The prosecution says there is no danger with PW4’s memory being contaminated by his viewing of the CCTV footage on 7 February.

40.The prosecution submits there is no displacement effect and referred the court to an authority, HKSAR v Yiu Ka Chun and Others CACC 47/2001, specifically to paragraph 29.  Obviously this only applies to PW4, the victim, not Ms Leung, PW5.  She had never viewed the CCTV footage, nor is there any evidence she had seen any still photographs from the footage before the identification parade.

41.The prosecution also relies on the witnesses’ identification of the defendant from still photographs.  That is, Exhibit P2A(1) and P2B(1), which is a copy.  This identification was made in August 2013, some months after the identification parade.

42.The defence submit this is a case that depends wholly on the witnesses identifying the defendant as an attacker.  The quality of that identification is in dispute, and the Turnbull guidelines apply here.  The defence point out the incident happened in a bar with not only limited lighting, but flashing strobe coloured lights.  The incident was chaotic, not prolonged, and involved multiple persons.  Observations must have been impeded.  The conditions were not ideal, and frankly difficult.

43.Moreover, the time lapse between that incident and the identification of the defendant at an identification parade was over 13 months.  These personalities were not known to each other. They were strangers to each other on the night of 5 February.

44.This being a case where the identification is the substantive issue, it is appropriate that the Turnbull warning be given.  I refer to the authority, R v Turnbull and Others [1977] QB 224, in particular pages 228 to 231:

“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need of such a warning, and should make some reference to the possibility that a mistaken witness can be a convincing one, and that a number of such witnesses can all be mistaken. Provided this is done in clear terms, the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made: how long did the witness have the accused under observation; at what distance; in what light; was the observation impeded in any way, for example, by passing traffic or a press of people; had the witness ever seen the accused before; how often; if only occasionally, had he any special reason for remembering the accused; how long elapsed between the original observation and the subsequent identification to the police? All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened. But the poorer the quality, the greater the danger.”

45.The defence do not agree that the man labelled “WP1” and pointed out in the CCTV footage as the defendant is the defendant.  The images are too blurred to be certain.  The defence submit the CCTV and the still photographs should be ignored, the quality being too poor to be relied upon.  The defence submit the identification parades were delayed by such an extent that it is not possible for PW4 and PW5 to remember an assailant so clearly.  Moreover, PW4, the victim, had viewed the CCTV on 7 February, and the displacement effect does apply here.  That is, PW4’s identification of the defendant is tainted by the displacement effect of the victim having already been tainted by exposure to the CCTV footage.

46.I was referred to an authority, Attorney‑General’s Reference No 2/2002 [2003] 1 Cr App R 21.

47.In final submissions, defence counsel also suggests that PW1 showed CCTV footage or stills from it, or the defendant’s police photo on file, to PW4 and PW5, which enabled them to describe him and later identify him.  Impropriety is suggested on the part of PW1 where those two witness statements are concerned.  The suggestion has not been substantiated, but suggested as possibilities that endanger the credibility of subsequent identification evidence.

48.The prosecution has the burden of proof to prove beyond reasonable doubt the defendant committed this offence with others jointly charged but not identified or arrested.  The defendant has nothing to prove.

49.The defendant, as I have said, elected not to give evidence, as is his right.  The failure of an accused to give evidence or call evidence is no evidence of his guilt.  It proves nothing one way or the other.  The consequence of doing so is to leave the prosecution case enjoying the advantage of not being undermined, contradicted, or explained by any testimony from the defence.

50.I repeat:  the only issue is identification.  The defence do not challenge the prosecution’s case that the victim was unlawfully and maliciously wounded by several persons with intent to do him grievous bodily harm.  The elements of the offence are not challenged except insofar as the defendant was not part of it and has been wrongly accused and identified.

51.Before I consider the evidence, the submissions and the Turnbull warning, I will turn first to the CCTV footage of Exhibit P2.  I watched it during the course of the trial and examined it after adjourning the trial for verdict.  Each frame can be viewed by clicking the fast-forward button.  The CCTV footage provides a direct view of the incident from at least two angles.  CCTV footage, if clear, can be treated as real evidence.

52.Chronologically, camera 1 captures the man called and labelled “WP1” and identified by the witnesses as an attacker first.  It faces the lifts and the reception area, as marked on the sketch, P3.  Obviously the stills of P2A(1) of WP1 are taken from camera 1.  WP1 and his friends wait here in this area to be shown to a table in the lounge after they arrive.

53.Between 3:53 am and 3:55:49 am, WP1 is seen clearly facing the camera.  His jacket is shiny white and zipped up.  He has short hair, but it is shorter on the sides than it is on the top.  A girl in a silver dress with some sort of headgear seems to be with WP1.  His features, face and clothing are discernible in the footage.  I do not agree it is a blurry image.

54.At 3:56:30 am, camera 6 captures WP1, the girl in the silver dress, and their group enter the frame.  At 3:45:42 to 58 seconds, WP1 is clearly visible.  At 3:59:24, WP1 sits down, facing the camera, nearest to the window at table 6.  At 4:06 am, WP1 gets up, walks around the table, before leaving the area and goes out of view.  At 4:08 am, camera 1 then captures the defendant entering the toilet by the reception. From camera 1 at 4:08:49, a second group of friends arrive at the reception.  They then go on to join WP1 and his friends inside the bar.  At 4:09:33, WP1 leaves the toilet, and as he walks past camera 1, his face, appearance and clothing can be seen clearly.  At 4:11 am, camera 6 then captures WP1 rejoin his friends.  At 4:12:19 am, WP1 sits again, facing camera 6, but this time between two people at tables 5 and 6.  At 4:25 am WP1 is still sat in the same position, and bar staff in black waistcoats are talking to those sat at his table.  At 4:28 am, WP1 is seen standing up and pointing at a staff member, who leaves the table area.  At 4:28:47 am, Mr Lau, the victim, is seen in the frame approaching the table 5 and 6 area.  He identified himself on the footage whilst giving evidence.

55.WP1 is then seen standing up and pointing in his direction.  WP1 then leaves his seat, comes around the table, and walks straight up to Mr Lau.  Clearly, people intervene and step between the two men.  At 4:29:40 am there is pushing and shoving.  At 4:30 am, the South-East Asian bouncer, in a light-coloured suit, stands in front of Mr Lau.  At 4:31:12 am, WP1 is seen standing next to table 5.  He picks up a glass, empties it of its contents, and walks towards Mr Lau.  He did not put the glass back down on the table.  WP1 acts aggressively towards Mr Lau, and the girl in the silver dress, as well as the bouncer in the light-coloured suit, is seen pushing WP1 away.  Other men stand between WP1 and Mr Lau.

56.At 4:31:52 am, WP1 rushes towards Mr Lau and there is much scuffling and movement in front of the bar.  At 4:32:20 am, the girl in the silver dress is clearly seen trying to pull WP1 away or back.  At 4:32:21, WP1 has his arm raised high above his head, bringing it down in the direction of Mr Lau.  An object can be seen in his hand.

57.At the same time, 4:32:21 am, someone grabs his raised arm to try and hinder him, but is unsuccessful.  Mr Lau, whilst watching the CCTV footage in court, says in evidence that this man with the raised arm is the defendant.  At 4:32:29 am, WP1 and Mr Lau are practically nose to nose.

58.I examined camera 8’s footage for the same period of time from 4.28 am onwards.  It shows a different angle, an opposite one to camera 6.  At 4:31:15 am, camera 8 captures WP1 take a glass off table 5 and 6 and walk to the bar area.  He is nearest the camera.  Not long after, one sees pushing and shoving.  People are seen holding and pulling WP1 back as if mediating or stopping him in his tracks.

59.At 4:31:57 am there is more scuffling and much movement.  At 4:32:11 am, the girl in the silver dress is seen holding WP1 back, by the bar.  At 4:32:13 am, WP1’s arm is raised high in a pose that suggests he is about to strike forward.  At 4:32:14 am, this raised arm is seen swinging downwards in the direction of the victim, Mr Lau.  WP1 is pulled back.  At 4:32:17 am, WP1’s arm is raised again, and once again he is pulled back.  At 4:32:19 am, WP1’s arm is raised again.  Now his back is to the camera.  At 4:32:21 am, one can clearly see an object in his raised hand.

60.At 4:32:32 am, a man in a white beanie hat previously seen at 3.53 am at the reception desk on camera 1, is bear‑hugging WP1 and pushing him away.  At 4:33:06 am, from camera 1’s footage, one can see WP1 being bundled into the lift by the reception by others.

61.From camera 1, a small table is seen in the footage, and on it is a glass bottle with white labels.  At 4:33:27 am, one can see WP1 leave the lift, go to the small table by the reception, stop, and turn his back to the camera.  At 4:33:33 am, WP1 touches or reaches out for something on this small table.  At 4:33:35 am, WP1 turns and walks back towards the bar lounge area, and one can clearly see that the bottle is no longer on that small table.

62.At 4:34:06 am, WP1 returns to the reception and gets back into the lift, which had been held open since he stepped out at 4:33:27 am.  The lift then closes.

63.Camera 8 captures WP1 re‑entering the bar lounge area at 4:33:46 am.  Someone approaches WP1, but WP1 points at him, and that man backs away.  At 4:33:47 am, the girl in the silver dress steps in front of WP1 and tries to push him backwards.  At 4:33:48 am, one can clearly see WP1 is holding a bottle in his hand.  At 4:33:49 am, one can see WP1 raise that hand, then throw the bottle in the direction of table 11 and the end of the bar.  Then people push him away, out of the frame.

64.Again, Mr Lau, whilst watching the footage in court, points to this WP1 and confirms this is the man he identified as the defendant.

65.Having watched the footage a number of times, I compared what I could see to the accounts given by Mr Lau and Ms Leung in evidence.  They are very similar to each other and the CCTV footage.  In any event, the defence do not challenge the course of events, just the identification evidence relied upon by the prosecution.

66.I have considered submissions by both counsel.  I have considered all the evidence of witnesses and the circumstances surrounding the offence.  I have warned myself of the special need for caution in this case. 

67.The case against the defendant depends wholly on the correctness of the identifications of him, which defence submit is mistaken.  To avoid the risk of any injustice, I warned myself of the special need of caution in considering the reliability of that identification evidence.

68.A witness who is convinced in his mind may, as a result, be a convincing witness, but he may nevertheless still be mistaken.  I must carefully examine the circumstances in which the identification by each witness was made.

69.The witnesses described the circumstances that night, and one can clearly see it for oneself on the CCTV footage.  The lounge is typically dimly lit to provide ambience.  PW5, Ms Leung, did describe the bar area itself as having more light, because there are spotlights behind the bar, and the bar itself is white, which reflects light.

70.Four-odd minutes where a verbal altercation became physical was chaotic and involved many persons, both attackers and mediators.  The conditions were not ideal for identification purposes.  In addition, there is a time gap of 13 months from the attack to the identification parade, a significant period of time that could affect memory.

71.I considered the fact that Mr Lau and Ms Leung did not know the group or the defendant.  This is not a situation where they recognised someone.  They were strangers to each other.

72.Both prosecution witnesses identified the defendant, but that does not necessarily mean the evidence carries more weight or is improved.  One cannot always assume honest witnesses are unlikely to make the same mistake as each other when identifying the same person, even in an identification parade carried out fairly and professionally.  One must still consider the quality of the evidence.  Poor identification evidence is not improved just because there is more than one witness.  I need to consider why each witness was sure the defendant glassed Mr Lau.

73.Mr Lau said he heard glass being broken, and when he was glassed in the arm, he naturally looked at who did it.  The defendant was to his left and close to him.  He recalls it was the defendant that had accused him of overcharging.  He recalls that the defendant came back into the bar after all the lights were turned on, and threw a bottle at him.

74.Ms Leung said she heard glass being broken, and then she saw a man brandishing a broken glass above his head.  He was several feet away.  This would obviously attract her attention, and she watched him.  She said it was not just for one or two seconds, but for some time.  He moved around, so she saw him from all angles.  The fighting left an impression on her.  She described it as the lighting being bright enough there to see him.

75.When asked if she was sure she identified the man who raised up high a broken glass, she answered, “As a human being, you cannot say I am 100 per cent sure of anything, but I am over 90 per cent.”

76.I believe her evidence that between 5 February 2012 and 14 March 2013, she did not view any CCTV footage or see any stills from the footage.  Mr Lau, on the other hand, did see the CCTV footage on 7 February when he viewed it with several police officers.  The defence submit this has affected his identification of 14 March 2013 of the defendant.  It is suggested his memory of the incident may be contaminated by this viewing.

77.I do not agree it is fatal to the subsequent formal identification of the defendant in March 2013.  I have warned myself of the possibility of Mr Lau’s memory being affected by the viewing of the CCTV.  I do believe he only viewed it once, and some 13 months before the identification parade.

78.The authority produced by the defence, Attorney‑General’s Reference No 2/2002, is not on point here.  That authority deals with an identification of a defendant by comparison with a film or photograph from the scene of the crime, and sets out under what four circumstances such evidence can be admissible.  It does not deal with a displacement effect scenario. Nevertheless, that authority is relevant to the usage of the CCTV footage in that the first such circumstance is where the photograph image was sufficiently clear the jury could compare it with the defendant sitting in the dock.

79.The conditions I identified earlier, where PW4 and PW5 had the opportunity to see the defendant, I have said were not ideal and can be described as difficult; it cannot be ignored.  If the only identification evidence was the identification of the defendant at an identification parade by PW4 and PW5, I would perhaps err on the side of caution, bearing in mind the possible dangers of a mistaken identity and the prosecution’s burden and standard of proof.

80.However, it is not the only identification evidence in this case.  The prosecution also rely on the CCTV footage.  I have dissected it myself.  I find the footage is clear and the images of people and their activities or movements mostly identifiable.  I can see for myself the man identified as WP1 and the defendant by PW4 and 5 in the footage.  I can see what he does whilst in the bar area.  I can see him holding a glass in his hand and brandishing it towards the victim on several occasions.

81.One cannot see the frame or image when the victim is glassed, nor see WP1 actually glass him.  However, the victim is sure the man who glassed him is the same man who returned after the group left the room and all the lights were turned on.  After he returned, he threw a glass bottle at the victim.

82.From the CCTV footage of camera 1 and camera 8, I find the man labelled “WP1” did re-enter the bar and throw a bottle of beer at Mr Lau.  One can see him clearly enough.

83.The question is whether WP1 of this CCTV footage is the defendant.  I have had the chance to observe the defendant in the dock over the course of a three-day trial.  I find the man in the dock is WP1 of the CCTV footage and WP1 of the still photographs.

84.I still warned myself of the danger of being mistaken.  I still warned myself that PW4 and 5 could be mistaken in such a melee as seen in the CCTV footage.  I am aware the CCTV footage is not clear all the time.

85.If the only identification evidence was the CCTV footage and the still photographs implicating the defendant, I would perhaps err on the side of caution.  However, with both CCTV footage of a man I and PW4 find to be the defendant in the dock and the identification of the defendant as the man who glassed the victim, by the victim and Ms Leung in an identification parade, I am sure the danger posed by observations made in difficult conditions is dissipated.

86.The identification evidence is reliable.

87.I also add that the fact the defendant left Hong Kong in February 2012 and returned in January 2013 is not evidence of flight or guilt.  I disregard this fact in coming to my findings.

88.Much was made of Mr Lau’s discrepancies in his evidence and statements.  He explained why his first statement made in hospital does not specifically describe any one person, just as a collective group.  He said the officer told him to briefly account for the incident, and that the police would take a more detailed statement from him later.

89.Three days later, he recounted what he could recall to PW1, who wrote down what he said in his first detailed statement.  He described four men that made a deep impression on him, hence WP1 to WP4.  Without a name, that is how wanted persons are normally described or labelled in witness statements.

90.He did describe WP1 as having brown hair to PW1, but agrees that WP1 of the still photographs had black hair.  He explained he thought both colours were similar, and WP1 was a Chinese male.  He agrees he described WP1 as having an ivory white jacket in his statement, but said in-chief the man who glassed him wore a black jacket.  He explained he had forgotten the colour of the jacket on the day he gave evidence in court.

91.He said several times what he recalls was the defendant’s face.  He said he was sure he identified the man who glassed him because he saw him face to face on 5 February, and the CCTV footage was an additional aid to tell the police who had hit him.  He did not rely on the CCTV to identify him.

92.I found there to be no material discrepancy in his evidence that was so serious I doubted his credibility.  I did not find there were any acts of impropriety on the part of PW1, DPC8847, that did unfairly ensure the victim picked out the defendant from a line-up or put words in the victim’s mouth when he described the man who glassed him.  The suggestions of impropriety were bare assertions that are unsubstantiated.

93.I accepted the evidence of all the prosecution witnesses.  PW4 and PW5 were good witnesses not shaken by cross‑examination.

94.I found the identification of the defendant from the CCTV footage in court, as well as the identification of the defendant from a line-up in an identification parade by two witnesses, safe and reliable.  I considered both forms of identification together dissipated the risk of a mistaken identification.

95.The man pointed out as “WP1” on the CCTV, who glassed the victim, is, in my observation, the defendant in the dock. That, coupled with PW4 and 5’s certainty that they identified the assailant in the parade, leads me to be sure beyond a reasonable doubt that the identification of the defendant is accurate, safe, and can be relied upon.  The prosecution can prove beyond reasonable doubt the defendant, with others, wounded the victim, Mr Lau, with intent to do him grievous bodily harm.

96.Accordingly, the defendant is convicted as charged.