HKSAR v. SINGH NARINDER

CACC563/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 563 OF 1998

(ON APPEAL FROM HCCC 201 OF 1997)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced one count of robbery. It alleged that he on 18th December 1996, at Far East Pacific Company, Flat 7B，Kai Wah Building, 68-70 Wellington Street, together with two other persons, robbed Datta Suresh of $500 in Hong Kong currency, two Hongkong Bank ETC cards and a typewriter.

2. It was the prosecution case that Datta Suresh was the victim of a robbery in his office on 18th December 1996. The identity of the applicant as the robber has several distinctly unusual features. The person to whom we will refer as the principal robber gained entrance to the office by a trick pretending that he was delivering some cassettes. Once inside he produced a pistol and demanded $65,000 suggesting that his demand was justified as it arose out of a driving accident which had involved the victim's wife. While the victim was being threatened, a Chinese male arrived.

3. It was the victim's evidence that the principal offender was in the office from about 7 o'clock until about 8 o'clock; that he was threatened during this time and that at one time the principal robber lifted his shirt enabling him to see that his body bore a large tattoo. ETC cards were taken and the victim was forced to reveal his PIN number. The Chinese male then left and later there was a telephone call which, it appeared, informed the principal robber that money had been withdrawn. The victim said that the principal robber spoke to him in Punjabi English but mostly in Indian. He later found that a typewriter and a vest were missing from the office.

4. That was on 18th December. The victim did not, however, make any report on that day to the police but shortly thereafter went to China. On 23rd or 24th, having returned from China, he found that $77,000 had been debited to his bank account and he cancelled the ETC card. On 27th December, there was a further call and further demands for money and threats were made and he then reported the matter to the police. After the police came into the matter there were further threatening calls and there were threats that the son of the victim would be kidnapped and during those telephone calls the caller revealed that he had an intimate knowledge of the victim's family. The victim came to suspect that his secretary was involved and on 6th January he searched her desk and found photos, in four of which, he said, the principal robber appeared. He photocopied these and returned them to the secretary's desk. These were not seen again but copies of them became Exh.6 at trial.

5. In due course the applicant was arrested and DPC 10855 who had carried the arrest said that he saw snake and dragon tattoo on the body of the applicant.

6. At trial the applicant gave no evidence.

7. The trial judge gave the following direction to the jury:

"...... this is a trial where the case against the defendant depends wholly or, to a very large extent, on the correctness of the identification of a person by reference to some photographs, which identification the defence alleges to be mistaken. And I must therefore warn you of the special need for caution before convicting the defendant in reliance on the evidence of identification, and members of the jury, that is because it is possible for an honest witness to make a mistaken identification. There have been wrongful convictions in the past as a result of such mistakes. An apparently convincing witness can be mistaken, so can a number of apparently convincing witnesses.

And what you must do, members of the jury, is to examine carefully, the circumstances in which the identification by Mr. Datta of the person in the photographs was made. How long did he have the person, who he says robbed him on 18 December 1966 under observation? At what distance? In what light? Did anything interfere with that observation?

According to his evidence Mr. Datta had never seen the person who robbed him before that night. Ask yourselves, members of the jury, whether there is any marked difference between the description given by Mr. Datta to the police when he was first seen by them and the man in the photographs which Mr. Datta gave to the police. And if there is any marked difference between that description and the man in the photographs and this defendant, ask yourself, members of the jury, those questions.

What Mr. Datta says to you is that the man in the photocopies of the photographs is the man who robbed him. He may be mistaken about that for the reasons which I have advanced to you. Alternatively, he may not be mistaken and you will decide that issue. But members of the jury, and again this is of most importance, it does not follow that this defendant and the man in the photographs is the same person. That, again, is a matter for you as judges of the facts to decide on the evidence before you.

In considering that and also in considering whether or not Mr. Datta might be mistaken in saying that the man who robbed him is the man in the photographs, you must bear in mind, members of the jury, the dangers and the difficulties of making an identification from photographs, and, of the fact that photographs may give different impressions of the same person. And you will know that from your own experience.

You must also bear in mind that when Mr. Datta first looked at these photographs it was some two and a half weeks after the robbery had taken place and, that he told you in evidence that the man in the white cap had similar features to many Indian and Pakistani people whom he met in the course of his business and social life.

Members of the jury, in this case you are being invited by the prosecution to conclude that the man in the white cap in the four photographs is this defendant and, in considering whether you can properly reach that conclusion so that you are sure that they are one and the same person, you must, for the reasons that I have just explained to you, exercise particular care and if you are not sure that they are one and the same person, you must find the defendant not guilty of the charge of robbery.."

8. The judge then went on to explain to the jury why no identification parade had been held as would usually be done where the issue was identification. He then said to the jury that they would be assisted in reaching their conclusion by the evidence given by Mr. Datta and by the evidence of the police officer. He referred to the fact that Mr. Datta had told the police shortly after the robbery and told the jury when giving evidence that the man who had robbed him at gunpoint had a large tattoo on his chest and stomach and that the arresting constable had, after arrest, seen that the defendant also had a large tattoo on his chest. He cautioned the jury that if they had any doubt, they must give the benefit of it to the applicant.

9. As we have said, this was an unusual case but the judge was fully aware of the unusual factors to which the jury had to turn their minds when considering the issue of identification.

10. There were two issues:

(1) were the jury satisfied to accept the evidence of the victim that the robber was the man in the photographs;

(2) could the jury be satisfied that the applicant was the man who appeared in the photographs.

11. The applicant in his initial grounds of appeal questions the propriety of the conviction upon the basis that there was no scientific evidence to convict him and that the evidence of identity was such that it could not conclusively prove that he was the man involved. He has today raised a number of other matters suggesting that there are differences between a Pakistani person and an Indian person and that the victim's evidence in this regard was unsatisfactory. He suggests that there were discrepancies between the statement the victim gave to the police and his evidence and that the victim tailored his evidence after he had heard the evidence given in the first trial in which the jury had disagreed. All of these were matters of fact which were essentially for the decision of the jury. They do not provide any valid ground of appeal.

12. We return to the real thrust of appeal which is that there was no satisfactory evidence for identification.

13. The two issues to which we have already referred were whether the jury had evidence before them upon which they could be satisfied that the man in the photographs was properly identified by the victim and, secondly, whether they could be satisfied that the man in the photographs was the applicant. Both of those issues were squarely left to the jury in the direction of the judge which, we are satisfied, was both comprehensive and fair. The jury when convicting clearly came to the conclusion that they could be satisfied as to both of those issues.

14. There is nothing in this application which in any way indicates that the conviction was either unsafe or unsatisfactory and the application is, therefore, dismissed.