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DCCC 1063/2022
[2023] HKDC 1751
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 1063 OF 2022
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| Before: |
Deputy District Judge K Chan |
| Present: |
Mr Donald Richard D, Counsel-on-fiat, for HKSAR/Director of Public Prosecutions |
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Mr Allan William, instructed by Mohnani & Associates, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] Robbery（搶劫罪） |
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[2] False imprisonment（非法禁錮） |
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REASONS FOR VERDICT
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Background
1. The defendant has pleaded not guilty to one count of Robbery and one count of False Imprisonment. The alleged victim is the sole eye witness in this case. The defendant was not arrested until some days after the alleged crimes had taken place. They are complete strangers to each other. An identification parade was held eventually. It is the prosecution case that the alleged victim positively identified the defendant in the identification parade.
2. However, it has been drawn to my notice in the course of the alleged victim’s examination-in-chief that she did not positively identify the defendant. According to the video recording of the identification parade, the alleged victim told the Woman Chief Inspector in Chinese language that the man she identified from the parade was only 60% to 70% resembling the one who committed the crimes. Unfortunately, this was not recorded in the ID parade book so that Mr Donald, who appears for the prosecution and is not conversant with the Chinese language, did not know about this flaw in the evidence of identity.
Decision to offer no further evidence
3. Once Mr Donald has been alerted to the aforesaid problem in the evidence of identity, he sought instructions from the Department of Justice to offer no further evidence. It is a wholly comprehensible move as dock identification would not be allowed in these circumstances and there is no other evidence to prove the identity of the culprit (even if the alleged crimes actually occurred). The prosecution must fail.
Verdict
4. In these circumstances, I rule no case to answer and the charges are dismissed.
Order on costs
5. The defence has applied for costs. It is a case in which the prosecution case itself could not stand. It has not been advanced to me that the defendant brought suspicion upon himself. Neither is it a technical acquittal. Costs should follow the events.
6. I make the order that the prosecution should pay costs to the defendant, amount to be taxed if not agreed.
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( K Chan ) |
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Deputy District Judge |
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