HKSAR v. TAM CHI HIM AND ANOTHER

HCMA 886/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 886 OF 2001

(ON APPEAL FROM KTCC 2933/2001)

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J U D G M E N T

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1. On 2 August 2001, the Appellants, Tam Chi Him (A1) and Sze Kam Lung (A2) were convicted after trial by Mr Lo Pui Yin, a Temporary Magistrate sitting at Kwun Tong Magistrates Court, of a joint charge of theft. They were each sentenced to six months imprisonment.

2. They now appeal their convictions, but not their sentences. Mr William Allan represents them.

Facts

3. The prosecution alleged that the Appellants and another man, who was not arrested, stole a 42 inch plasma TV screen belonging to the Mass Transit Railway Corporation from its position outside a store room at the Telford Plaza MTR station. A security TV camera recorded the course of the theft. The security videotape shows three men removing the screen and carrying it away.

4. Each Appellant's defence was that he had been misidentified.

Ground of appeal

5. The sole ground of appeal is that the Magistrate erred in relying on the evidence of identification of the Appellants from the videotape made by PW9, a man who claimed to know the Appellants and who had once been suspected of being one of the thieves. PW9 had viewed the security videotape on two occasions, once at Telford Gardens MTR station and in court at trial.

Discussion

6. The Magistrate said this of PW9's identification in his Reasons for Verdict:

"38. PW9 told the court that he had known the 2nd Defendant for three years and they saw each other frequently, sometimes once in two to three days time or two to three times a week. And he had known "Fei Lo" (whom he later identified as the 1st Defendant) for several months and they had met about eight to ten times for drinks, chats and joyrides, each time lasting for about two to three hours. He recognized the Defendants when P1 was played in the security room of Telford Plaza from their built, height and hair, and also the outlook of their faces. He also told the court that at the time he viewed the play back of P1 he was preoccupied with the connection between the Defendants and two vehicles that appeared to have aroused the interest of the police officers investigating the complaint of theft of the television set. He further told the court that he was not very sure of his identification."

7. Mr W L Kwok, for the Respondent, agreed that PW9's identification of the Appellants was uncertain and that the Magistrate was aware of this, as can been seen from his Reasons. Mr Kwok says, however, that the identification evidence did not rely solely on PW9; there was also the videotape itself and 10 photographs developed from images on the tape. The Magistrate viewed the tape in the course of trial and looked at the photographs. He said this about them:

"35. The pivotal issue in this case was that of identification. The evidence of identification consisted of the video recording in P1, the photographs developed from P1, namely P5, and the testimony of PW9; I had viewed in the course of the trial the videotape recording in P1 three times. I had also considered the contents of P5 and the testimony of PW9 in the course of considering my verdict.

36. Of the images of the 15 cameras recorded in P1, only the images of three of them were of use. They were cameras 13, 14 and 15. Viewing the images captured by these three cameras being played back in four frame format showed vividly the movement of persons within the field of sight of one camera and also from the field of one camera to another, since the images captured by the cameras were recorded at the same time, albeit with a time lapse of a few seconds between the recording of the image captured by one particular camera and the next recording of the image captured by the same camera. Thus, although one would not be able to see continuous movement in one particular frame (representing the images captured by one particular camera), one could see still images, being renewed at an interval of a few seconds and would be able to follow the movement of persons captured in the images, not only when the persons were within the field of sight of the camera, but also when the persons moved from the field of sight of one camera into the field of sight of another (particularly when the viewer was armed with sketches of the layout of the lower level of Telford Plaza Phase I marked with the location and direction of the CCTV cameras). I was able to do so during the three viewings I had of P1 with the help of the sketches P4 & P7.

37. In the consideration of my verdict, I took into account the quality of the images captured and recorded in P1, which was not as good as the quality of, for example, terrestrial television. However, the images captured and recorded in P1 were in colour and of sufficient sharpness and contrast to show the appearance and dress of persons."

8. I viewed the tape and the photographs at the hearing of the appeal. I have to say that I do not agree with the Magistrate's findings as to the sufficiency of their quality. The tape was disjointed, jerky and very unclear. The most one could say is that it showed three persons removing an object from a wall and carrying it away. It was impossible to see anything of their facial features. The photographs were as equally unsatisfactory as aids to identification.

9. The Magistrate was aware of the problems associated with identification evidence. He made reference to it in paragraph 41 of his Reasons where he spoke of the guidelines in R v Turnbull [1977] QB 224 being applicable in this case. The Turnbull guidelines had no application in this case; they are concerned with identification of strangers by persons who have had only a fleeting opportunity to observe their features, which was not the situation here. The Magistrate was, however, correct in reminding himself of the need for caution before accepting any identification evidence. I regret to say that after warning himself of that need, he ignored his own warning and convicted the Appellants on wholly unsatisfactory identification evidence.

Decision

10. This is one of those rare cases where an appellate court must step in to correct a patently incorrect finding of fact by a trial court. The Appellants' convictions cannot be supported and their appeals against sentence are allowed and their sentences set aside.

Costs

11. I award the Appellants their costs in this appeal and at trial, the costs are to be taxed if not agreed.