HKSAR v. ARIF AQIB

HCCC 402/2023

[2025] HKCFI 3967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 402 OF 2023

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BETWEEN

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REASONS FOR RULING

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The application

1.  This is an application by the 1^st Defendant (“D1”) to exclude the evidence of the identification parade of D1 held on 11 December 2017 on the ground that the parade should not have taken place in the first instance or, alternatively, the use of such evidence in the trial against D1 would be so unfair as to offend the principles of justice such as to justify the Court ruling it inadmissible.

2.  Upon hearing the submission of parties, on 30 May 2025 I ruled that the identification parade was admissible and refused D1’s application. I now give my reason.

Background

3.  Case pertained to an armed attack launched by a group of South Asian males on a group of 6 Pakistani males at the Ngau Tau Kok Road Playground at around 11pm on 13 November 2017. Subsequent police enquiry revealed the partial registration number of a dark saloon in the vicinity shortly before the attack occurred. The checking of different registration numbers based on this finding revealed that D1’s father, a Pakistani, was the registered owner of a black saloon VA 7336, and a fixed penalty ticket had been issued to D1 as driver of the said vehicle on 28 October 2017. As a result D1 was put on the stop list by the police. He was intercepted on his return to Hong Kong from Pakistan on 10 December 2017.

4.  In the identification parade held on 11 December 2017, D1 was positively identified by 2 members of the victim group, KHAWAJA Hassan Faraz (“PW1”) and SINGH Jaskarn Brar (“PW4”).

5.  Prior to the identification parade, none of the witnesses (including PW1 and PW4) had made any mention of seeing D1 or a dark coloured car in the vicinity of the attack. After PW1 had identified D1 in the parade, he gave a witness statement stating that D1 was the driver of a dark coloured private car which had passed by before the attack. After PW4 had identified D1 at the parade, he gave a witness statement stating that D1 was driver of a black vehicle but “there was nothing special about this black vehicle …I was drinking in the park without paying special attention to it and did not find anything wrong with it ”.

6.  Prior to the holding the identification parades, the police had conducted 2 video-recorded-interviews (“VRI”) with D1 in which he had made no admission of his involvement in the attack.

Submission of the 1^st Defendant

7.  Mr Neil Mitchell, counsel for D1, submitted that there was no proper foundation for holding the identification parade and hence the identification by PW1 and PW4 should not be relied upon.

8.  In the “Brief Facts” prepared for the purpose of the identification parade, it was stated: “The purpose of this ID is to see if WIT/VTM could recognize if any male culprits involved in the above incident is in the parade”. Mr Mitchell submitted that the Brief Facts made no reference to any dark saloon in the vicinity. The parade was held to identify the attackers but the police had no evidence that D1 was one of the attackers. It has never been part of prosecution case that D1 one of the alleged attacker, and there was nothing to put him at the scene of the attack from any of the witnesses as a person “involved in the above incident”.

9.  In England and Wales identity parades were being governed by the Police and Criminal Evidence Act 1984 (PACE) Code D (updated as of December 2023). In the introduction at paragraph 1.2 it states “identification by any eye witness arises when a witness who has seen the offender committing the crime and is given an opportunity to identify a person suspected of involvement in the offence in a video identification, identification parade or similar procedure”. There was no equivalent statutory provisions in Hong Kong.

10.  In the present case reference was made to paragraph 2 of the “Notice to Suspect” stated: “The purpose of an identification parade is to allow a witness to an alleged suspected offence the opportunity to pick out from a group, the person that he has seen before on a special occasion”.

11.  Mr Mitchell said the stated purpose was to identify the attackers. The description of the attackers given by the witnesses did not match D1. Further the police had nothing else to show D1 might have been an attacker. There was no evidence from any one of the witnesses of a dark saloon in the vicinity either before or at the time of the attack. From the CCTV images the identity of the driver to the dark saloon could not be shown. D1 had explained in his 1^st and 2^nd VRI that he had lent the car to Sing Fai or KK (the suspected mastermind of the attack) and had no idea whether it was at the scene of the attack. Before the parade there was nothing to place D1 at the scene as an attacker or otherwise.

12.  In the circumstances, Mr Mitchell submitted that the decision to put D1 on the parade appeared to have been an attempt to manufacture evidence against D1 as opposed to test the ability of any eye-witness to identify a person suspected of involvement. As such D1 should not had been put on the parade.

13.  Concern was also raised about the fact that police witness (DPC 5135) being tasked to collect the witnesses to Sau Mau Ping Police Station for the identification parade. This matter was not disclosed to the officer-in-charge of the parade. Mr Mitchell submitted that the involvement of DPC 5135 collecting the witnesses might create an impression that the witnesses might have been coached by him.

14.  Alternatively, Mr Mitchell said the parade also raised the issue of potential unfairness as D1 was unaware of the CCTV images or what the witnesses had told the police about the incident and the attackers. D1 had already denied his involvement in the attack. In the brief fact of the parade there was no mention of any dark private car or any witness who had seen such a car. The decision to hold the parade was not a fair one, and the use of the identification evidence at D1’s trial would be so unfair that it would offend the principles of justice. The evidence should be held inadmissible accordingly.

Submission of the prosecution

15.  Mr Mark Wei and Mr Schweitzer Wong, counsel-on-fiat for the prosecution, contended that there was a valid basis to put D1 on the identification parade which was properly conducted. There was no challenge as to the actual conduct of the parade. D1 was aware of his right to refuse to participate and he consented to participate in the parade out of his own free will. In the absence of allegation of procedural irregularity or impropriety, there was no merit in suggesting that the identification parade was unfair in any sense.

16.  Mr Wei pointed out that there was no authority to suggest that the holding of an identification parade would be appropriate only when a witness claimed he was able identify the perpetrator of crime.

17.  In this case there was a proper and valid basis for the witnesses (including PW1 and PW4) to be asked to attend the identification parade. They were present at the scene and they had witnessed the attack.

18.  It was submitted that the purpose of the identification parade as stated in the Brief Facts should not be narrowly construed as be confined to the actual attackers. The Brief Facts clearly stated “the purpose of this ID Parade is to see if WIT/VTM could recognize if any male culprits involved in the above incident is in the parade”. The witnesses were at liberty to identify anyone they claimed to be involved in the attack in any capacity, being the actual attackers or otherwise.

19.  Even though D1 had denied his presence in the vicinity of the crime and gave a purported account of how he lent the vehicle to Sing Fai or KK on the evening in his 1^st and 2^nd VRI, it was clear that the police had suspicion that D1 was connected or involved in the attack, hence putting him on the stop list. As such there was a valid basis for the police to put D1 on the identification parade.

20.  Mr Wei submitted that no unfairness whatsoever had been caused to D1 by holding the identification parade. There was nothing to justify the Court to rule the identification parade inadmissible, more so when D1 took part voluntarily and there was no complaint of procedural unfairness, impropriety or irregularity.

Consideration

21.  To put in a nutshell, it was Mr Mitchell’s contention that the police had no reason to hold the identification parade because they had no evidence whatsoever to place him in the vicinity of the attack or as one of the attackers, hence the parade was unfairly held because D1 should have never been put on the parade in the first place.

22.  At the time of D1’s arrest, the police had ascertained from the CCTV recording that a dark saloon with a partial registration number appeared in the vicinity of the scene shortly before the attack. Obviously the police found this car suspicious, otherwise they would not have continued to make enquiry about this car. Further investigation revealed that the registered owner of VA7336 was a Pakistani (D1’s father), and D1 appeared to be the user of this vehicle shortly before the attack in late October 2017. As a result D1 was put on the stop list, and he was intercepted upon his return to Hong Kong on 10 December 2017.

23.  There was nothing improper for the police to ask an eye witness who was present at the time of the crime to attend the parade with a view to identify the person involved in the crime. As to how a suspect was “involved” in a crime, it would be a matter that varies depending on the facts and circumstances of the particular case. For example, a person could be “involved in a crime” if he appeared at the scene of the crime immediately before or after it was committed. In the present case, when the police placed D1 on the identification parade as a suspect, police investigation was still ongoing and the police were still investigating whether D1 was involved as a attacker or not.

24.  Even though D1’s appearance did not match that of the attackers as described by the witnesses, as part of the ongoing investigation the police was entitled to let the eye witnesses view the suspect in a parade. If the suspect was identified as an attacker, no doubt the quality of the identification would be jealously scrutinized on cross examination if the witness had given an inconsistent description of the attacker before the parade. As such, the police was entitled to put D1 on the parade for the eye witnesses to identify.

25.  As a result of the parade, only 2 out of 5 witnesses (PW1 and PW4) positively identified D1 as the person involved in the incidence. They both identify D1 as the driver of a dark coloured vehicle which appeared in the vicinity of the crime immediately before the attack. The fact that neither PW1 nor PW4 had mentioned D1 or his dark saloon in their earlier statements was a matter that went to the quality of their identification, which was within the province of the jury as the tribunal of facts.

26.  The fact that an eye witness had made no mention about a certain suspect would not have prevented him from being a witness in the identification parade of a suspect. Likewise, a witness who had given a description different to that of a suspect should not be prevented from attending the identification parade of such a suspect.

Conclusion

27.  For the aforesaid reasons, I ruled that the evidence of the identification parade of D1 was admissible and it would not be unfair to have it adduced at D1’s trial.