HKSAR v. Lee Ho Kong

DCCC 69/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 69 OF 2014

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Reasons for Verdict[1]

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1.There are 2 defendants and 2 charges in this case. Charge 1 for burglary is a joint charge against both defendants. Charge 2 is against D1 only. D1 pleaded guilty to both charges on the first day of trial. D2 pleaded not guilty to charge 1. This Reasons for Verdict deals only with D2.

Summary of prosecution evidence

2.Most of the facts relied upon by the prosecution in proving their case were admitted by way of s.65C of the Criminal Procedure Ordinance, Cap.221 in exhibit P-7.

3.The burglary in charge 1 took place in a non-domestic premises situated at room 1207 of Hilder Centre, Sung Ping Street, To Kwa Wan. The burgled premises had been under renovation between July and December 2013.

4.On 16 November, at around 5pm, Mr. Lui finished his work at the premises for the day, locked up the wooden door with a combination lock, and was the last worker to leave the premises. Inside the premises were large amount of renovation raw materials.

5.On 18 November, at around 9:10am, Lui returned to the premises to find the lock had been pried open and the wooden door ajar. Mr. Lui immediately informed his contractor and reported the matter to the Police.

6.Upon checking, 7 bundles of brand new copper pipes still in their wrappings and some copper materials were found to be missing from the premises. They were worth about $2,500 and $500 respectively.

7.DPC 9897 was one of the Police officers who took part in the investigation of the case. He examined footages from 2 closed circuit television cameras installed in the area of the burgled premises on the same day.

8.The property security supervisor of Hilder Centre, Mr. Kwok, was called to give evidence as to the positioning of the various closed circuit television cameras inside the building. The images lifted from the closed circuit television system of Hilder (“the Hilder system”) are exhibited as P-2.

9.‘CAM 15’ of the Hilder system showed the entrance into the building. ‘CAM 14’ showed the path from the lobby to the guest lift. ‘CAM 2’ was inside one of the guest lifts going up to the offices. ‘CAM 3’ is the camera installed inside the goods lift.

10.‘頻道一’ is the camera at the loading podium after getting out of the goods lift, showing the rear entrance. ‘頻道十四’ is the camera outside the building, just outside the rear entrance. ‘頻道十’is the camera outside the building, on the right side of the carpark entrance facing the rear staircase.

11.Mr. Tso of Shing Yiu Jewellery Design Company Limited was called to explain the placement of closed circuit television cameras outside rooms 1203 and 1207. This is the closed circuit television system of Shing Yiu (“the Shing Yiu system”).

12.It is his evidence that ‘CAM 2’ in P-4 was placed at the bottom left corner of the rectangle representing room 1203-06 in sketch P-5, and ‘CAM 1’ in P-4 was placed at the bottom right corner outside room 1203-06.

13.Neither Mr. Kwok nor Mr. Tso was cross-examined.

14.From the closed circuit television footages, 3 males could be seen to have entered Hilder Centre between 7:17pm and 7:20pm (CAM15 of the Hilder system). They are then seen entering and exiting one of the guest lifts (CAM2 of the Hilder system).

15.The 3 males were then seen walking towards room 1207 and then loitering outside room 1207. Two of the males entered room 1207 and eventually came out of the room while pushing a trolley (CAM1 and CAM2 of the Shing Yiu system).

16.They were then seen entering and exiting the goods lift with the trolley with a box on it (CAM3 of the Hilder system). They continued to move along the loading podium and leaving the rear entrance with one of the men pushing the trolley (頻道一，十四，十 of the Hilder system).

17.Having watched all the closed circuit television footages, DPC 9897 used his iPhone to take a few photos of the screen of the closed circuit television monitor. One of them was showing the face of two of the suspected burglars. DPC 9897 printed out a copy of the images after returning to the Police station (exhibit P-8).

18.During his investigation on the day, DPC 9897 also visited the goods lift where one of the 2 closed circuit television images was captured and was able to compare and deduce that one of the suspects (WP3 in exhibit P-8) was slightly taller than himself.

19.7 days later on 25 November, while DPC 9897 was on leave, he was notified by colleagues that 2 suspects had been arrested. It is not disputed that one of them was D2.

20.DPC 9897 brought along the printed out images and went back to the Police station. There, he was able to compare D2 with the images that he had while D2 was inside the detention centre. The door of the detention centre had barriers but he was able to see D2 directly, whom he had ordered to stand in front of him. The detention centre had sufficient lighting and DPC 9897 took about 2 to 3 minutes to make the comparison.

21.DPC 9897 concluded that D2 was in fact WP3 in the closed circuit television image.

22.DPC 9897 then proceeded with the usual procedure in dealing with detained persons and took a few photographs of D2 (exhibit P-9), showing what D2 looked like as at 25 November.

Time difference between the closed circuit television systems

23.Although it is admitted facts that both the Hilder system and the Shing Yiu system were operating properly, I have noticed a time calibration difference between the 2 systems. I was able to ascertain that difference by comparing the images of the person pushing the trolley into the goods lift taken by the two systems. In the Hilder system, the time is stated as 20:25:02 [CAM 3, P-2], whereas in the Shing Yiu system image showing the same person entering the goods lift the time is stated as 20:20:01 [CAM2, P-4]. The deduction that can be made is that the Shing Yiu system states a time that is about 5 minutes behind the Hilder system.

Issues

24.There is essentially only one issue in this case, which is whether one of the persons seen entering and moving around near the burgled premises in Hilder Centre in the closed circuit television footages was D2.

25.If D2 was in fact one of those people, did he enter the burgled premises of room 1207 as a trespasser and did he together with the 2 other males steal therein 7 bundles of copper pipes and some copper materials.

The law regarding identification by way of images

26.The general principles in relation to use of visual aids for the purpose of identification are found in paragraphs 14-29 to 14-39 of Archbold Hong Kong 2014.

27.It is not disputed by the defence that the footages from the closed circuit television systems, in particular the clip taken from “CAM 3” which was installed inside the goods lift, is relevant and admissible evidence capable to be considered by the judge in his capacity as the tribunal of facts to decide on whether the person shown in the clip is in fact D2.

28.“The authorities concerning the use of images of offenders were reviewed in AG’s Reference No.2 of 2002 [2003] a Cr App R 321. The court identified at least four circumstances where a jury may be invited to conclude that a defendant committed the offence on the basis of an image taken from the scene of the crime:

(a) where the image is sufficiently clear to allow comparison with the defendant in the dock: R v Dodson and Williams (1984) 79 Cr App R 220;

(b) where the image is identified by a witness who knows the defendant sufficiently well to recognize him: R v Fowden and White [1982] Crim LR 588,

(c) where a witness, who did not know the defendant, had spent time viewing and analyzing the photographic images from the scene, thereby acquiring special knowledge that the jury did not have, he or she could give evidence of identification based on a comparison between those images and a reasonably contemporary photograph of the defendant, provided that the images and the contemporary photograph were available for the jury: R v Clarke and P [1995] 2 Cr App R 333.

(d) Where the witness was suitably qualified in facial mapping he could give opinion evidence of identification based on a comparison between images from the scene (whether expertly enhanced or not) and a reasonably contemporary photograph of the defendant, provided the images and the contemporary photograph were available to the jury: R v Stockwell (1993) 97 Cr App R 260, R v Clarke [1995] 2 Cr App R 425 and R v Hookway [1999] Crim LR 750.”

[Archbold Hong Kong 2014 paragraph 14-35]

29.AG’s Reference No. 2 of 2002 is in fact the case cited and relied upon by Mr. Fan for D2. It is Mr. Fan’s submission that, in applying circumstance (c), which is the only circumstance applicable in our present case, the evidence of Police officer DPC9897 is not sufficient to allow the court to conclude that the person shown in the closed circuit television footage was in fact D2.

30.It is the defendant’s submission that the Police officer did not ascertain the actual height of the person in the images and the height of D2 in order to make a proper comparison; that the Police officer was not able to point out any similarities between the person in the image and D2; that the Police officer did not spend enough time to make the comparison between the images and D2; and that the quality of the image lifted from the closed circuit television footages was not sufficiently clear and is distorted and could not have allowed the Police officer to make the positive identification.

31.On the legal issue of identification evidence by way of comparison of photographs, Ms. Ma for the prosecution referred firstly to the case of R v Dodson and Williams, supra.

32.In Dodson and Williams, two men were charged with attempted armed robbery of a building society. The prosecution relied on photographs taken by security cameras at scene to prove that the defendants were the perpetrators of the crime. On appeal against the admission of the photographs in evidence, the English Court of Appeal held that “the photographs were admissible in evidence because they were relevant to the issues as to (a) whether an offence was committed and (b) who committed it and there was no reason why the trial should have excluded such evidence.”

33.It is first of all Ms. Ma’s submission that closed circuit television footages should be dealt with the same way as photographs from security cameras. I find that this must be correct since closed circuit television footages are in fact, technically speaking, multiple individual images being played back at a rate fast enough to give the human brain the impression of movement.

34.It is Ms. Ma’s submission that since the District Judge is sitting alone and acting as both judge and jury, the duty of the judge as the jury is as considered in Dodson and Williams:

“In performing their duties juries could not be regarded as experts; they were merely being asked to confirm that the person shown in the photographs was the person they saw before them at the trial. Photographs of an alleged offender taken at other times were permissible aids. Provided that the jurors were firmly directed that in order to convict they must be certain that the person in the dock was the person in the photograph no injustice arose from allowing an alleged offender to be identified in the dock from that evidence.”

35.During the trial in Dodson and Williams, the Crown was given leave by the trial judge to put in the photographs taken by 2 security cameras installed inside the building society which took photographs at half-second intervals. The photographs showed what the men who attempted to rob looked like, what they were carrying and what they were wearing. At trial, the jury were provided with copies of the photos and were thus enabled during the 12 days of the trial to compare the men in the dock with the men in the photographs. The jury were also provided with photographs of Mr. Williams taken by Police on 6 June 1981 (1 month before the attempted robbery) and on 16 October (3 months after the attempted robbery) to compare with the defendants as they appeared in the dock and as they appeared in the photographs.

36.One of the grounds of appeal put forward by Dodson was that the photographs from the security cameras should not have been left to the jury. Williams advanced the same ground, plus the ground that the photographs taken by the Police on 6 June and 16 October 1981 should also not have been admitted and put in front of the jury.

37.The English Court of Appeal rejected both grounds, saying that they had no doubt that the photographs were relevant and admissible:

“Moreover, we reject the attempt here made to persuade this court to prevent a jury from looking at photographs taken by means of this technique, looking at a defendant in the dock and then to conclude if it be safe to do so that the man in the dock is the man shown in the photographs. Photographs of the same man taken at other times we regards as permissible aids in this process, bearing in mind that some offenders after the commission of crime by one device or another change their appearances.”

38.The Court of Appeal approved the summing up given by the recorder but did not seek to provide a formula or guidelines to base such directions upon. I include the relevant part of the recorder’s summing up as quoted by the Court of Appeal as follows:

“…you are considering the question involving the identification of the human face…You are making the identification in each case yourselves. You will bear in mind the dangers and difficulties of identification by one human being…of the features of another. Bear in mind that photographs may give different impressions of the same person. There are photographs that you may know really do not resemble the person that you know them to be of at all. You probably have all taken photographs that catch a characteristic, an attitude, a gesture, an expression absolutely right and you say: ‘There is old so and so. I have often seen him looking like that.’ It may not be a very good portrait of the man or the woman, but it catches something about the look of his or her face. Well, members of the jury, I cautioned you more than once at the outset of this case against jumping to conclusions, and you clearly have resisted that temptation, if temptation it ever was. You have the photographs of the two people who were undoubtedly in the bank…and your concern is with the man who had the handgun, said to be Williams, and the man who had no gun at all, said to be Dodson. You also have some descriptions of those together with the photographs, because they related to the two people in the bank, whoever they were, and I will remind you shortly of such evidence as there is about that.”

39.In the later case of R v James Downey [1995] 1 Cr App R 547, the English Court of Appeal held that in a case where the jury is asked to compare a still photograph of a man taken from a video film with the defendant in court, there is no invariable rule that the trial judge must give a specific direction to the jurors on how they should approach their task of deciding whether the man in the photograph was the defendant in the dock. The appropriate direction depended on the circumstances of each case, and when no special factor arose, the absence of a specific direction could not of itself amount to a misdirection.

40.In the case of R v Blenkinsop [1995] 1 Cr App R 7, as to the appropriate form of direction to the jury in a case where the jury’s task is to identify the defendant as the person shown in a photograph or video recording of the offender committing the offence, the Court of Appeal confirmed the authoritative guidance is as set out in Dodson and Williams. The Court identified one particular factor which the jury must take into account, being the question of whether the appearance of the defendant has changed, or not, since the visual recording was made, and in general terms this is something which should be brought to the jury’s attention.

41.The Court in Blenkinsop referred to the case of Downey and confirm that the Dodson and Williams guidelines do not have to be applied rigidly in every case. Evans L.J. proceeded to state the following:

“Nevertheless, the need for a careful and thorough direction whenever there is an identification issue is clearly established. The underlying requirement in our judgment is that the direction shall conform with Turnbull in a witness identification case and with the same principle as exemplified in Dodson and Williams in a case where the jury is invited to conclude that the person shown in a photograph or video recording was the defendant whom they have seen. There is also a general and invariable requirement that the jury shall be warned of the risk of mistaken identification, and of the need to exercise particular care in any identification which they make for themselves.”

42.Ms. Ma then referred me to two Hong Kong cases to show that the law in Dodson and Williams and Downey are good law and applicable in Hong Kong. The two Hong Kong cases are HKSAR v Lau Tat Keung, Milky, CACC 4/1999 and HKSAR v Ng Siu Kam, CACC 474/2009. Both indeed cited and applied the legal principles as stated in Dodson and Williams and Downey. There is no need for me to go into details of those two cases, nor did Ms. Ma during her submissions.

The identification

43.Ms. Ma for the prosecution and Mr. Fan for D2 both agreed that it is for the trial judge to put on the hat of the jury and make a factual decision as to whether the images of one of the persons in the closed circuit television footages was D2. The parties agree with above cited cases and legal principles applicable in this kind of situation.

44.They also both agreed that the trial judge can use the photos taken of D2 by DPC 9897 on 25 November to make the comparison. It is for the judge to find whether the person shown in the closed circuit television footages is in fact D2, or not.

45.In making the identification, I have reminded myself of the risk of mistaken identification. Even an honest and reasonable person can be mistaken when comparing images of a person to decide whether they are the same person. There is a need for me to exercise particular care when making the identification. I have also warned myself that the quality of the closed circuit television footages and even of the photos taken by DPC 9897 are not of very high definition and as such may hinder a proper identification.

46.Having directed myself as to the risk of identification by way of comparing the closed circuit television footages image with D2’s contemporaneous photos in P-9, I find that in fact D2 was the person in the closed circuit television footages who can be seen standing inside the goods lift in the image marked ‘2013-11-16 20:25:16’.

47.When making the identification, I have taken into account the lighting in the goods lift, the distance of D2 standing from the camera, the quality of the closed circuit television footage as well as the quality of the contemporaneous photos of D2 taken on 25 November. I find that the facial features and hairstyles are the same and I have no doubt that the two are images of the same person, which is D2.

48.I also find that the person walking in front and in the light coloured jacket at 19:20:24 as depicted in the Hilder system CAM 15 is D2.

Findings on the elements of the offence

49.Even if D2 can be identified as the person in the closed circuit television footage, the prosecution still has to prove beyond reasonable doubt that D2 had entered the premises as a trespasser.

50.It is admitted fact that the closed circuit television systems were working properly. According to the admitted facts, Mr. Lui had locked the wooden door by a combination lock at around 5pm on 16 November 2013.

51.The footages showed D2 entering Hilder Centre at 19:20:24 [Hilder system, CAM 15, P-2]. The footages then showed 3 males outside room 1207 at 19:20:25 [which would be 19:25:25 if calibrated against the Hilder system, CAM 2, P-4]. 2 of the men entered the wooden extension after loitering outside for some time. Although there is no direct footage showing the actual entry into the wooden extension outside room 1207, it can be seen that one of them pushed a trolley down the ramp outside the opened door of the wooden extension at 20:19:30 [Shing Yiu system, CAM 2, P-4], with another male coming out from the wooden extension and then closing the door after him. This male then took over a jacket that was being carried by the person who had been remaining outside room 1207 throughout. It is clear from the Shing Yiu footages in CAM 1 that none of them was in possession of such a trolley when they were walking outside the wooden extension of room 1207. Furthermore, the Hilder footages from CAM 15, 14, 1 and 2 also show that none of them were pushing any trolleys when entering Hilder Centre, nor when going into the guest lifts between 19:17:08 and 19:20:53.

52.After one of the males is captured by the Shing Yiu system pushing the trolley down the ramp outside the door of the wooden extension of room 1207 at 20:19:30 (which would be 20:24:30 if calibrated against the Hilder system), CAM 3 of the Hilder system captured the person pushing the trolley entered the goods lift at 20:25:02. The other 2 males followed.

53.The Hilder system then captured the 3 males inside the goods lift at 20:25:16 with the trolley. It clearly shows D2 looking towards the closed circuit television camera while holding the light coloured jacket that he was wearing when he entered Hilder Centre. By implication, D2 must also have been one of the 2 males who had entered the wooden extension of room 1207.

54.The 3 males then left the lift at 20:26:17 [CAM 3, P-2], moved on the goods podium with one of them pushing the trolley. Following the cameras, we see D2, the one holding the jacket on his right arm with a cigarette in his mouth, at the rear entrance of Hilder Centre and then the person pushing the trolley also came out, going one direction and then turning back to cross the road.

55.Having the aid of the closed circuit television footages, I find that the only irresistible inference that can be drawn about what had happened that day is that one man entered Hilder Centre to check out the situation first. D2 and another male then entered the building and joined up with the first man. The 3 of them then walked to room 1207. Two of the men gained entry into the wooden extension of room 1207 while the third one kept a lookout. D2 and the other male who entered the room then came out with the trolley together with the material on the trolley and then the 3 of them left together via the goods lift and exited Hilder Centre.

56.I find that the only irresistible inference is that D2 and the other male who entered room 1207 must have entered room 1207 as a trespasser since the room was under lock and none of the 3 men had any business to be there.

57.Given that D2 had entered together with another male the building after the first male had entered Hilder Centre and then had met up with him, given that the 3 of them then walked together to the area outside room 1207, given that the 3 of them remained outside room 1207 for one whole hour, given that the door of the wooden extension to room 1207 was at first closed and according to prosecution witness evidence locked, given that the door was then opened and D2 and the other male entered the room, given that one of the males pushed a trolley with things on it down the ramp directly leading away from the door of the wooden extension, given that D2 then came out of the room following the male before, given that the 3 males then entered the goods lift with the trolley in tow, given that the 3 males then left via the rear entrance of Hilder Centre at about the same time, I find that it is an irresistible inference that the 3 males were in the burglary together.

58.Given that the lost property particularized in the charge were the only property found to have been missing after the break in, given that what can be seen in the closed circuit television footages would support the inference that what was on the trolley were in fact the stolen copper pipes, I find that the only irresistible inference is that the property being stolen was in fact the 7 bundle of copper pipes and some copper materials.

59.I find that their action of pushing the trolley together with the things on it away showed that the 3 men had the intention to permanently deprive the owner of the property. I find that what they did was dishonest. I find it is an irresistible inference that they knew what they did would be regarded as dishonest by others. I find therefore that they had stolen from inside room 1207. I find that the property they stole were the 7 bundles of copper pipes and some copper materials that were stored inside room 1207 by the renovation workers.

60.I find the prosecution had proved beyond reasonable doubt all the elements of the offence and convict D2 of charge 1 accordingly.

Please refer to CACC202/2014 for the relevant appeal(s) to the Court of Appeal.