HKSAR v. Amjad Pervez Kayani

HCMA 681/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 681 OF 2014

(ON APPEAL FROM TMCC 368 OF 2014)

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J U D G M E N T

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1.The appellant was convicted after trial by a deputy magistrate[1] of an offence of assault occasioning actual bodily harm and criminal damage. He was sentenced to 9 months and 4 months’ imprisonment respectively of which 2 months of the 4 months was to run consecutively to the 9 months resulting in a total term of 11 months’ imprisonment.

2.The appellant now appeals against his conviction and sentence.

Grounds of Appeal

3.Ms Mahinder Panesar counsel for the appellant appeals against the conviction on a number of grounds however the first and main ground that is pertinent in this appeal is that the magistrate erred in finding that the victim’s (PW1 at trial) identification of the appellant as one of the assailant’s was accurate, reliable and correct when there was no or no sufficient quality of identification evidence.

The facts

4.The victim named Ahmed a Pakistani male, was the sole victim of an assault that occurred in Pat Heung, Yuen Long.  His evidence was to the effect that he returned home late in the evening by taxi at about 11.45 pm on 21 November 2013.  He alighted from the taxi near a lamppost outside Tung Tak School.  Almost as soon as he got out of the taxi the appellant, and 4 other males, who were all Pakistani, approached him.  The appellant scolded him then hit his head 3 times with a glass beer bottle.  On the third occasion the bottle broke on his head.  Thereafter the 4 other males together with the appellant punched and kicked the victim.  One of them beat him with a wooden stick.  The beating lasted for about 1 to 1½ minutes.  At some time the appellant then used a chopper to bang on the rear windscreen of the taxi smashing the window. After that the 5 of them ran away.

5.The victim’s evidence was that the location was a bit dark, the lighting was not very bright but there was street lighting coming from the building in the surrounding area.  He said he could see the faces of the assailants 100%.

6.The victim said he did not know the appellant.  The first time he had spoken to him was once in May 2013 in Kam Tin, when he came to know that the appellant’s name was Amjad.  Prior to that meeting he had seen the appellant in the Kam Tin area.  At the encounter in May 2013, the appellant was with a couple of other men.  The appellant had asked the victim to work for him.  The work involved was to fight with somebody or do whatever he was asked to do by the appellant, upon doing so he would be paid.  The victim did not accept the offer. 

7.The next time the victim saw the appellant was on the evening of the assault 6 months later.  After the assault, on 27 November 2013, some 6 days later, the victim came across the appellant at the Jockey Club Betting Centre in Yuen Long and reported the case to the police.  He reported the appellant as the assailant that beat him and hit him with the glass bottle on 21 November 2013.

8.The defence case as put to the victim and in the appellant’s oral evidence at trial was that the appellant was not present at the scene when the assault took place.  The appellant had not met victim in May 2013 and that the victim had made a wrong identification of the appellant.

Issue at trial

9.It was made clear by counsel for the appellant[2] at the outset of the trial that the identity of the appellant was the major issue.  

Identification evidence

10.The identification evidence at trial was by and large to the following extent :-

Examination in chief of the victim[3]:

“Q. All right. After you got off the taxi, what happened?

A. From the front side, five persons came towards me.

Q. Did you know any of the five persons?

A. One, I only know one of them.

Q. How did you know him?

A. I met him before.

Q. About when?

A. It is ...

…

PUNJABI/URDU INTERPRETER: ‘May 2013’.

Q. Where did you meet him?

A. In Kam Tin.

Q. What happened at that time?

A. He came with a couple of guys and he asked me to work for him and, ‘I will pay you’.

Q. At that time, did you know his name?

A. No, I did not know the name, but I know it later.

Q. When did you first come to know his name?

A. When I was leaving from there and I gave them my telephone number, that was the time he told me his name.

Q. And what was his name then?

A. Abdel.

Q. Can you spell it?

A. No, I don’t know.

Q. Amjad, right?

(No audible answer)

Q. What did he ask you to do to earn money?

A.  ‘Whatever I ask you to do’, like to fight with somebody or whatever.”

Further in the victim’s evidence in chief [4]:

Q.  How was the lighting when they hit you?  How was the light?

A.  Not very bright, but could see the person.  There was a bulb in the street.

COURT:  ‘There was ...’ what?

PUNJABI/URDU INTERPRETER:  ‘Bulb’ – ‘Bulb light’.

Q.  Oh, you mean the lamppost, did you?

A.  I did not notice that, but there was a light in the street, some from the building ...

COURT:  Come from where?

A.  ... on the surrounding. 

Q.  ‘Comes from the building in the surrounding’?

PUNJABI/URDU INTERPRETER:  ‘In the surrounding’.

Q.  Can you see the faces of the attackers clearly?

A.  Hundred percent, yes.

Q.  Then what did you do?

A.  Called the police.

Q.  And you were sent to a hospital, right?

A.  Yes.

Q.  Do you see the one whom you knew, you name it Amjad, in this court now?

A.  Yes.

Q.  Can you point him out.

PUNJABI/URDU INTERPRETER:  Pointing at the ...

COURT:  Defendant identified in court.

MS YEUNG:  I must inform the court, the identity of the defendant is dispute.

PUNJABI/URDU INTERPRETER:  ‘Is in dispute’?

MS YEUNG:  Dispute.”

Cross-examination of the victim[5]:

“Q. Am I correct that, before the incident, you just met Amjad once?

A. Yes, once.

Q. In May 2013.

A. I met at that time, but I have seen him in Kam Tin, Yuen Long area.

Q. So, you just was at -- in May 2013, that is not the first time you met ...

Q. That is not the first time you see Amjad?

Q. In May 2013?

A. I have seen him even before, but the May 2013 was the first time we talked to each other.

Q. So, can I see -- so, before May 2013, you know who is Amjad?

A. Yes.

Q. You told -- you tell us that you ...

PUNJABI/URDU INTERPRETER: Sorry. I’m asking - sorry - the question.

A. I do not know him, I only know that this is the person, his name is Amjad.

…...

Q. You didn’t know him personally, but you know that that man is Amjad?

A. Yes.

Q. Before May 2013?

A.  Yes.”

11.Despite Ms Yeung pointing out the issue of identification in the victim’s examination in chief no further questions as to the quality of identification were asked of the victim by the prosecutor[6] save for those above.  Ms Yeung did not ask any further questions other than those mentioned above in cross examination. 

12.At the stage of closing submissions, from the transcript[7] of the dialogue between the magistrate, the prosecutor and the defence counsel it is apparent that the prosecutor had incorrectly believed that the defence did not take issue with the quality of identification[8].  Defence counsel again pointed out in crystal clear terms that the defence took issue with the quality of identification and that was the only issue of the defence.  The magistrate promptly recognised that the quality of identification was the most important issue.

Discussion

13.The sole issue in this case was whether this was one of a correct and accurate identification of the appellant by the victim. 

14.In the magistrates statement of findings in considering identification[9] he dealt with the identification evidence as follows:

“Para 21

I reminded myself the Turnbull guidelines. I warned myself the special need for caution before convicting D in reliance on the evidence of identification. A witness who is convinced in his own mind may as a result be a convincing witness, but may nevertheless be mistaken. Mistakes can also be made in the recognition of someone known to the witness, even of a close friend or relative. I have to examine carefully the circumstances in which the identification by PW1 was made. How long did PW1 have the person he said was D under observation? At what distance? In what light? Did anything interfere with the observation? Had PW1 ever seen the person he observed before? If so, how often? If only occasionally, had he any special reason for remembering him? How long was it between the original observation and the identification to the Police? Is there any marked difference between the description given by PW1 to the Police when D was first seen by him and the appearance of D?

Para 22

PW1 said it was a bit dark, though the lighting was not very bright but there was street light and also light coming from the buildings in the surroundings, he could see the faces of the assailants 100%. PW1 had the defendant under observation for 1 to 1 ½ minute during which the defendant not only hit him but also used the chopper to hit the rear windscreen of the taxi. The victim had seen the defendant in May the same year about 6 months ago, when the defendant spoke to him and asked him to work for the defendant. PW1 also said even before this May meeting he had seen the defendant in the Kam Tin area. PW1 then pointed the defendant out to the police on 27 November which is only 6 days after the incident.

Para 23

I have considered PW1’s evidence carefully and bearing in mind the Turnbull guidelines, I am sure PW1’s identification of the defendant was accurate and reliable.  I am satisfied beyond a reasonable doubt that PW1 had made a correct identification of the defendant.” 

15.Despite the appellant’s counsel making clear that identification was an issue early on in the trial particularly during the examination in chief of the victim there was a failure by the prosecution to follow the guidelines laid down in R v Turnbull[10] for laying the foundation for good quality of identification evidence.  The magistrate had erred in finding the quality of identification was sufficient and good. 

16.The identification by the victim was made in difficult conditions.  The evidence by the victim was that it was not very bright.  The victim was assaulted almost immediately upon getting off the taxi by the 5 assailants.  He said he could see the faces of the assailants 100%, no evidence was elicited as to how and in what circumstances he was able to do so.

17.Even though the victim had said he had seen the appellant before the first time he spoke to him at the meeting in May 2013, there was no evidence on how many times the victim had seen the appellant before or for how long and in what circumstances.  There was insufficient evidence to establish if this case was a case of recognition of the appellant.

18.Further there was no evidence as to how long and in what circumstances the victim had spoken with the appellant at the meeting in May 2013.  At the meeting present together with the appellant were other men.  It was not known for how long the victim observed the appellant at this meeting.  From the time of the meeting in May 2013 to the date of the assault there was a lapse of some six months since the victim had seen the appellant.  

19.Moreover there was no evidence of any description of the appellant given by the victim after the assault on 21 November or in his witness statement to the police. 

20.The unambiguous evidence was that almost as soon as the victim alighted from the taxi he was attacked suddenly by 5 assailants including the appellant. His evidence was that he was hit on the head by the appellant with a bottle 3 times, he was also assaulted with a wooden stick and with punches and kicks by all 5 of them.  The injury to the victim was at the top back of his head as depicted in the photograph at trial exhibited as P3.  There was no evidence as to where the appellant was in relation to the victim at the time he struck the victim with the bottle.  Given that the blow was to the back of the head, it is not improbable that the assailant may have either been behind the victim or on the side when the blows were made.  The position of the victim in relation to the attackers was unknown.

21.The location was a bit dark.  There was a lack of evidence of where the lighting was emanating from.  It was not disputed that the assault occurred near to a school.  There was no evidence as to what or even if there were other buildings near the scene.  Given that it was in the middle of the night was the light emanating from the school?  There was no pertinent evidence of where the light was emanating from and from how far away.

22.Most significantly there was a substantial absence of evidence from the victim as to how long the victim had the appellant under his observation at the scene either before, during or after the assault.  At what distance was the observation made? Did anything interfere with the observation? The victim had said he observed the faces of all 5 of the assailants and the assault lasted 1 to 1½ minutes.  It was not known how much of the 1 to 1½ minutes was made observing the appellant nor how it was that he was able to see the appellant smash the windscreen of the taxi. 

23.It was not established if the victim’s observation was impeded when he was assaulted by the 5 assailants.  The assaults were all over his body including his head.  Given the scale and extent of the assault, there was no evidence to show how the victim was able to observe the assailants.  Ms Panesar makes a compelling point, with those amounts of blows to the body and head it would be likely for the victim to be protecting himself either by covering or shielding his head and body with his hands or arms which may have impeded the victim’s observation of the appellant and other assailants.

24.The circumstances of the victim’s observation was glaringly lacking in detail.

25.In Turnbull Lord Widgery C J, delivering the judgment of the English Court of Appeal, noted that a number of appeals raised problems relating to evidence of visual identification in criminal cases.  Lord Widgery suggested ways by which trial judges in their summing-up could reduce the danger of miscarriages of justice in visual identification cases, including warning the jury of the special need for caution before convicting the accused, and directing the jury to examine closely the circumstances in which the identification by each witness came to be made.  In regard to stopping the case from being considered by the jury, the Lord Chief Justice said at pages 229H to 230A:

“When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. ….”

26.In the present case there was insufficient evidence given by the victim as to any good quality of identification evidence of the appellant.  This was an observation made in difficult conditions.  There was no other evidence which supported the correctness of the identification.  There was no fingerprint or DNA evidence to link the appellant with the chopper and an unbroken beer bottle seized at the scene. 

27.It was Ms Leung’s[11], counsel for the respondent, submissions in this appeal that because the victim was not cross-examined as to the circumstances of the victim’s identification of the appellant, the quality of the victim’s identification of the appellant was unchallenged.  Hence the learned deputy magistrate was entitled to accept the victim’s identification evidence and to find that the appellant was one of the attackers.

28.It is trite law that it is for the prosecution to prove its case beyond all reasonable doubt against the defendant.  The foundation for good quality of identification evidence is to be established by the prosecution.  The fact that the defence did not cross examine the victim on his poor identification evidence does not magically convert poor identification to good identification evidence.

29.The identification evidence against the appellant was deficient and unsatisfactory such that the magistrate should have acquitted the appellant at the no case to answer stage, even though it is to be noted, that no such application was made by the defence. 

30.As this appeal has been disposed of on the first ground of appeal, there is no need for me to deal with the other grounds of appeal. 

31.On all the evidence, the convictions on both charges are unsafe and unsatisfactory.  The convictions on both charges shall be quashed and the appeal against the convictions is allowed.

32.It follows the appellant’s sentences are set aside.

Ms Peggy Leung, SPP, of the Department of Justice, for the respondent

Ms Mahinder Panesar instructed by Jal N Karbhari & Co, assigned by DLA, for the appellant