HKSAR v. LO HO CHUNG

HCMA 1039/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1039 OF 2000

(ON APPEAL FROM FLC 1287/2000)

____________

____________

_______________

J U D G M E N T

_______________

Introduction

1. The Appellant was convicted after trial of one charge of Indecent Assault, contrary to section 122 (1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong, at the Fanling Magistracy. He was sentenced to 7 weeks imprisonment and he now appeals against conviction.

Brief facts

2. The prosecution case was that Ms Naemphonkrang (PW1) was a prostitute in a one-woman brothel in Tai Po at the material time. On the day in question, two beret-wearing police officers went up to the brothel to conduct an identity card check. PW1 had not seen either officer before. One of them was later identified by PW1 as the Appellant. PW1 passed her identity card to the Appellant who in turned passed it to his colleague. The Appellant told PW1 to go into the bedroom. The Appellant also went into the bedroom and closed the door. While they were alone inside the Appellant indecently assaulted PW1 by inserting his hand underneath her T-shirt and grabbing her breasts from above after PW1 refused to "do it" with him. Despite PW1's request to the Appellant not to do it he persisted for 2-3 minutes. The other officer also indecently assaulted PW1 at a later stage.

PW1 complained to her flatmate about having been indecently assaulted and she positively identified the Appellant at an identification parade five days after the incident.

Application for Fresh Evidence to be adduced

3. Mr. Philip Wong, counsel for the Appellant, applied for the witness statement of station sergeant Leung Kwok-ho dated 12/5/2000 covering the duty deployment on 7/5/2000 to be adduced. According to the "Perfected Perfected Grounds of Appeal Against Conviction", the deployment "showed that the Appellant was pairing with PC58473 performing patrolling duty in the Tai Po area" and that such fresh evidence "read together with transcript of the 2nd parade at P.122 of Appeal Bundle tend to show that PW1 was unable to identity the apparent 2nd suspect in the case, i.e. PC58473".

4. Mr. Wong frankly admitted that the said statement was already in the bundle of documents supplied to the Appellant prior to the trial. He said it was unfortunate that the Appellant's legal representative did not take up this matter at trial and he asked me to exercise my discretion to allow this evidence to be used.

5. There is no dispute that the proper test in relation to fresh evidence is that the new evidence sought to be adduced is of sufficient importance to the issues at hand ("the first limb"); and that the new evidence could not have been made available at trial with reasonable diligence ("the second limb"): see Ma Wai Fun alias Ma Luen Fong (No. 1) v. The Queen [1962] HKLR 54.

6. Mr. Wong in effect conceded that the Appellant had failed to satisfy the second limb. Was the fresh evidence of significant importance? PW1 in her evidence described two policemen in the incident. There was no evidence as to the identity of the second man. The fact that PW1 could not identify PC58473 (who, according to the station sergeant, was paired with the Appellant) during an Identification Parade is neither here nor there. Her evidence before the Court was that she was able to see the "first man" (whom she later identified as the Appellant) better but she could not remember the "second man". I see no reason to exercise my discretion to allow the fresh evidence to be adduced. The application is refused.

Grounds of Appeal

7. I now turn to the substantial grounds of appeal. Although Mr. Wong advanced 6 grounds of appeal, it boils down to two issues:

1. The Identification Parade evidence had been wrongly admitted as there had been flagrant disregard of paragraphs 24 to 26 of the Force Procedure Manual on Identification Procedures; and

2. The quality of the identification of the Appellant by PW1 was poor.

Identification Parade Evidence wrongly admitted?

8. Before considering this ground of appeal, it is convenient to examine what had taken place during the trial and how did the learned magistrate resolved the matter before him.

9. The admissibility of the Identification Parade was challenged and a voir dire was held. Only the Chief Inspector in charge of the Identification Parades was called to give evidence. At the end of the prosecution case the Appellant elected to remain silent. There were 4 Identification Parades held and only the Appellant was positively identified during the first parade. The Chief Inspector gave evidence of how he had explained the procedures, the brief facts of the case and the alternative methods such as non-consensual identification if anyone refused to take part in the Identification Parade to those present. He had also informed them that their second-in-charge (a Chief Inspector Sin) was also there to protect their interests, and that they could seek a lawyer to be present. When they were asked if they objected to taking part in the parade, they each answered "No Sir" in turn. To the question whether they require the presence of a lawyer, again they answered "No Sir" in turn. The Appellant, who was at the No. 4 position, was one of those who had answered "No Sir" to both questions.

10. According to the learned magistrate (addendum - on the voir dire at page 15 of the Appeal Bundle), the cross-examination of the Chief Inspector was mainly directed to the follow 4 areas:

1. there was "implied compulsion" to participate in the parade as the police officers were asked by their superior if they were willing and any member expressing unwillingness would bring suspicion to himself in the eyes of his colleagues;

2. their stating that they did not need the presence of a lawyer was triggered by a similar fear of attracting suspicion;

3. the Chief Inspector did not follow police internal procedures to obtain individual consent as opposed to consent en masse in front of other colleagues; and

4. the Appellants' appearance was singled out in terms of height and age.

11. The learned magistrate came to the conclusion that the Appellant had voluntarily participated in the parade. He declined to exercise his residual discretion to exclude the evidence. He was of the view that even done en masse and not individually the Chief Inspector had explained their rights to the participating officers. The learned magistrate viewed the relevant video tape and found " as a matter of fact that the difference was not glaring, and certainly not so obvious that there was unfairness that I should exercise a rarely exercised discretion to exclude the evidence" (p. 16 of the Appeal Bundle).

12. The learned magistrate also referred to an application to re-consider his ruling when all the officers involved in the Identification Parade were called to give evidence. These witnesses were asked to stand in line in the same position as in the parade. Having had the chance to view the participants "live" the learned magistrate has this to say (at p. 16 of the Appeal Bundle):

" In this parade the resemblance was, in one sense, greater than many because all persons were in uniform, and they were all wearing berets so that hair lengths or styles were irrelevant. The Defendant was certainly the tallest of the group, but he was only about 0.5" taller than No. 5, and 2" taller than No. 3. As to age and skin colour, I noted that they were slightly varied, but certainly no significance among the Defendant, No. 2, No. 3, No. 5 (who was 16 years older than the Defendant), No. 6 and No. 8. There was no major difference in their build. And they were all without spectacles at the time.

Accordingly as a matter of fact I found that there was no basis to say the parade was unfair to the Defendant in terms of its presentation to PW1 the Thai lady, or any unfairness which should trigger the rare exercise of my residual discretion to exclude the ID parade evidence."

13. Mr. Wong's submission was that the conduct of the Identification Parades in question, in particular the one in which the Appellant was positively identified by PW1 was in such flagrant breach of the applicable code of practice that such evidence should not have been admitted. It should be noted that the learned magistrate was not alerted to this particular allegation of breach although his attention was brought to the obtaining of consent en masse. For ease of reference I will set out the relevant code ("H.K. code"), i.e. paragraphs 24-26 of the Force Procedures Manual:

"24. The parade is to consist of at least eight persons (in addition to the Suspect) who should as far as possible resemble the Suspect in age, height, general appearance and position in life. If the Suspect has any distinguished marks or features (e.g. tattoos or visible scars), they should be covered or obscured in some way and the corresponding locations on the bodies of the actors should be similarly treated. Where the Suspect wears spectacles, a beard, moustache etc., all the actors should present similar features. One Suspect only will be included in a parade, unless there are two Suspects of roughly similar appearance, in which case they may be paraded together, but with at least twelve other persons. In no circumstance will more than two Suspects be included in one parade.

25. Members of a particular group such as the disciplined services or the military will normally be used as participants in a parade when the Suspect is himself a member of that particular group. Occasionally, more than one member of a group is a possible Suspect (e.g. an allegation against an unidentified officer which can only be narrowed down to a number of officers who were on duty at the time and place in question). In such circumstances, separate parades are to be held for each officer, unless there are two of similar appearance, when they may appear on the same parade with at least twelve other officers from another district or unit who could not possible (sic) have been involved in the circumstances leading t the allegation. Where members of the military or disciplined services in uniform form a parade, numerals or other identifying badges/features of the uniform will be removed or concealed.

26. When the Suspect is brought to the place where the parade is to be held, he is to be asked by the OC Parade whether he has any objections to the arrangements for the parade or to any of the other participant in it. Any objections will be recorded on the Pol. 279 and, where applicable, steps taken to remove the grounds of objection. The Suspect will be allowed to select his own position in the line and that position will be recorded clearly in writing on the Pol. 279. where there is more than one Witness, the OC Parade will tell the Suspect, after each Witness has left the room, that he can if he so wishes change his position in the line. In this respect, each position in the line need be clearly numbered, either by means of a numeral laid on the floor in front of each parade member or some other means." (Emphasis applied).

14. Mr. Wong's contention was that since arrangements were made for all members of the Tai Po Tactical Unit, which include the Appellant, to take part in Identification Parades, each and every one of them is a suspect. By having 8 other suspects to be viewed together with the Appellant at the parade, there were in fact 9 suspects altogether. There was no attempt to arrange for other members of the police force to be "actors" to ensure that the Identification Parade follows the guideline, which was a flagrant breach of the rules. The effect of such a breach was, according to Mr. Wong, that justice had not been seen to be done. Although the learned magistrate had considered the issue of consent en masse and the difference (or lack of it) among participants, since he was not alerted to this particular breach, he might have been under the impression that that was the best the police could have done and held that there was no unfairness in the circumstance.

15. Mr. Wong relied on the comments of the learned authors in Archbold, 2001 ed. Para.14-84 when dealing with the effect of breaches of Code D ("U.K. Code"), which, according to Mr. Wong, was in essence the same as the H.K. code:

"Although every case has to be determined on its own facts, it is submitted that whenever Code D is breached, the resolution of two preliminary issues should be of considerable assistance in determining the fundamental issue as to the fairness of the proceedings. First, did the breach occasion the mischief which the code was designed to prevent? If so, the identification may be flawed. Secondly, was the breach caused by a flagrant disregard of the code, or was the breach, or the cumulative effect of more than one breach, capable of engendering considerable suspicion that the identification procedure was unfair? If so, even if the breach of a particular provision did not lead to the mischief intended to be prevented, the evidence of identification might be so tainted with unfairness that it should not be admitted, as in R. v Gall and R. v. Finley..."

16. Mr. Wong relied on the English authority of R v Gall (1990) Cr. App. R. 64. In that case the police officer responsible for the investigation of the case against the defendant took part in the conduct of the Identification Parade, which was in breach of the U.K. Code. The Court of Appeal endorsed the view taken by the first trial judge, Judge Black, to exclude such evidence. Judge Black expressed his view that "a prisoner could well feel considerable suspicion of what might be going on if an investigating officer comes into the parade room, has a look at the parade, has the opportunity to talk to the witness, and then the witness is introduced into the parade" (at page 69 of the judgment). Mr. Wong submitted it is not enough that the police officer had exonerated his conduct, it was what the prisoner felt that was important. In other words, justice must be seen to be done.

17. Mr. Wong also relied on the authority of R v Finley [1993] Crim. L.R. 50 where the Court of Appeal held that the police had broken so many parts of the Code that it was difficult to believe it was mere inefficiency rather than deliberate flouting of the Code. Mr. Wong submitted the police in the present case similarly flouted the rules. In R v Finley (supra), the witnesses were kept in the same room before the parade and were not warned not to discuss the case. Although they said they had not discussed the case the Court of Appeal found that they were in a position where they could have done so.

18. In reply, Ms. Pang submitted that the UK Code was issued pursuant to the Police and Criminal Evidence Act whereas the H.K. Code was contained in the Force Procedure Manual and was not issued pursuant to any ordinance. There are no statutory rules as to the conduct of identification parades in Hong Kong. Ms. Pang further submitted that even in the U.K. context, "non-compliance with the Code is not decisive. It is again only a factor, may be a cogent factor, in the decision to admit or exclude evidence." (R v Popat [1998] 2 Cr. App. R. 208, Court of Appeal, at p.213). The mere non-compliance with the Force Procedure Manual on Parade Procedures is not an automatic basis to exclude the evidence of the identification parade. What is important is whether the parade was conducted fairly.

19. It should be pointed out that it was never Mr. Wong's contention that the mere non-compliance of the H.K. Code makes evidence of an Identification Parade inadmissible.

20. Having considered the submissions advances by both Mr. Wong and Ms. Pang, and having considered the evidence and the ruling of the learned magistrate, I am of the view that the evidence of the Identification Parade had not been wrongly admitted. The status of the H.K. Code is certainly not on a par with the U.K. Code, not having been issued pursuant to any statute. In any event, even if one were to accord the H.K. Code the same status as the U.K. ones, what the U.K. authorities demonstrate is that under certain circumstances the breach could be so serious that the identification evidence should be excluded. Each case must be decided on its own facts.

21. In my view, whether a breach or non-compliance with the H.K. Code warrants the evidence of an Identification Parade inadmissible depends on the nature of the breach and what had actually taken place during the particular parade. In the present case, it is clear that there was indeed a breach of the relevant H.K. Code though it is not apparent why such a breach occurred. The learned magistrate's attention was certainly not drawn to that aspect of the breach. One should not speculate as to what the learned magistrate might or might not have done if he had been made aware of such breach at the time of the trial. With respect to Mr. Wong's strong argument, I do not see that "the breach occasion the mischief which the Code was designed to prevent", to quote the words of the learned authors of Archbold. The officers' rights were fully explained to them and they were told that they could refuse to participate. The Appellant chose, which was his right, to remain silent so there was no evidence to suggest that he had participated in the parade involuntarily or that he felt compelled to take part. There was also positive evidence from another officer (i.e. PW10), who had taken part in the parade, that he (i.e. PW10) knew he could refuse to participate and that he had participated voluntarily (Appeal Bundle, p.16). The learned magistrate had carefully compared the appearances of various officers and came to the conclusion that there was no significant difference between the Appellant and the other participants of the parade.

Further, the mere fact that the rules had not been complied does not mean that there was a flagrant breach. As I have said, it is not apparent why the relevant H.K. Code had not been complied with. I do not see any grounds to rule that there had been a flagrant breach. In my judgment, having considered what had actually occurred during the Identification Parade and the evidence adduced during the trial, there was no unfairness or injustice to the Appellant, whether actual or perceived.

22. I find no merit on this ground of appeal.

Quality of PW1's identification of the Appellant

23. Mr. Wong submitted that the learned magistrate in applying the Turnbull guidelines for assessing the quality of the initial observation had failed to consider that PW1 made such observation under difficult conditions. It is not in dispute that the learned magistrate did give himself the "Turnbull Warning" (Appeal Bundle, p.12). On the evidence of PW1, the learned magistrate found that it was not a "fleeting glance" situation at all. The learned magistrate went into great details to describe under what circumstances PW1 was able to observe the face of this "first man" (Appeal Bundle, p.12 -13). The learned magistrate found the quality of PW1's view of the Appellant's face on the night in question was good and reliable. I see no reason to fault the learned magistrate's findings on this issue.

24. Originally the Perfected Perfected Grounds of Appeal also included a complaint that the learned magistrate had failed to consider sufficiently the fact that PW1 had failed to make any identification in the remaining three parades including PC58473 (on the basis of the "fresh evidence"). As I have ruled against the admission of the fresh evidence concerning PC58473 the fact that PW1 did not identify PC58473 is neither here nor there. In any event, there was no evidence as to who the "second man" was. This second man might or might not have been among the officers participating in the four parades. Further, PW1's evidence was that she could see the "first man" better but she could not remember the "second man" (Appeal Bundle p.259). Her failure to identify PC58473 had no bearing on her reliability.

Judgment

25. For the above reasons, the Appellant's appeal is dismissed.