HKSAR v. CHOI WAI KWONG

CACC 137/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 137OF 2006

(ON APPEAL FROM HCCC NO. 273 of 2005)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background and facts

1.  On 24 March 2006, following a trial before Deputy Judge D Pang, the applicant was convicted of robbery and sentenced to 8 years’ imprisonment.  He now seeks leave to appeal against conviction.

2.  The count alleged that the applicant:

“… on the 18^th day of December, 2001 inside Room 903, San Diego Hotel, Nos. 169-189, Woosung Street, Yaumatei, Kowloon, in Hong Kong, together with Wong Kam, Ng Kwok-ho and a person unknown, robbed Lam Shun-man of one watch, one ring, one mobile phone, one Hang Seng Bank Master Card, one Hang Seng Bank Bank-in-One Account Card, one Hang Seng Bank Smart Account Card and cash $20,000 Hong Kong currency.”

3.  For the purposes of this application, little needs to be said about the basic circumstances of the robbery.  They were, in any event, straightforward.  On 18 December 2001, Lam Shun-man (PW1) received a telephone call from someone called Wong Kam (Mr Wong), who he had known for some time, and was asked to go to Room 903 at the San Diego Hotel in Yaumatei.  He went there straightaway, arriving at about 8:30 p.m., and was immediately set upon by three men wearing baseball caps after Mr Wong had opened the door.  He was punched and kicked before a large knife was placed close to his neck and the property referred to in the robbery count was taken from him.  Mr Wong said to PW1 at one stage (adopting the translation we have been given of his words): “I surely picked on you.  I can’t go back this time.”  This made PW1 think that he might be killed and he began to put up some resistance.  However, this was met by further kicking and punching from his attackers and a chop motion with the knife above his head which PW1 was able to fend off with his hand.  PW1 was then stabbed in the back with a screwdriver over ten times and he was warned that he would be killed if he tried to resist.  He was also told to reveal the PIN numbers for his credit cards.  After that, Mr Wong went out of the room leaving PW1 in the custody of the other three men who tied him up and covered him with a sheet.  At one point, one of the men checked PW1’s neck to see if he was wearing a necklace.  As he did so, the man said (again, adopting the translation we have been given): “Surely picked on you.”  A little while later, the telephone rang and one of the men said that it was alright for them to leave.  They did so and PW1 eventually untied himself and reported what had happened.

4.  The applicant’s involvement was suspected after two cigarette ends were found in the hotel room where the robbery had occurred.  One of these contained a DNA sample with a random match probability, after a comparison with the applicant’s DNA had been made, of 1 in 33.5 billion amongst the local Chinese population.

5.  The applicant was arrested on 1 March 2005, over three years later.  When confronted with the allegation that he had been involved in a robbery on 18 December 2001 at Room 903 in the San Diego Hotel where a cigarette with his DNA on it had been found, he stated:

“… I can recall that on December 8^th 2001, Ng Kwok-ho asked me to go to the said San Diego Hotel to find him.  I went there and saw him. He asked me to lend him several hundred dollars.  After sitting for a while and smoking a cigarette I left.” (Appeal bundle p. 27)

6.  The applicant did not testify at his trial so that there is no explanation for the applicant’s reference to 8 December 2001 when the date to which the police had referred was 18 December 2001. 

7.  A formal identification parade was held on 14 March 2005.  PW1 attended and, through one-way glass enabling him to see the suspect without being seen by the suspect, he picked out the applicant as one of the robbers.  Specifically, PW1 alleged that the applicant’s role had involved dragging him towards the bed, placing a knife by his neck, making the chopping motion with the knife near his scalp and later checking to see if he was wearing a necklace.  At trial, this robber was referred to as “Mr A”.  PW1 picked this man out on the parade standing at position ‘3’ and, although he did not by any means make this identification immediately he came to view the parade line-up, he said that he had recognised the applicant immediately he had viewed the parade.

Grounds of appeal

8.  Two grounds of appeal were advanced.  The first of these related to the conduct of the identification parade and the other to an alleged omission on the part of the judge when directing the jury after they had returned from their deliberations with a question.

9.  We shall now deal with each point raised.

(1)     The identification parade

10.  Mr Beel, on the applicant’s behalf, submitted in his 1^st ground that the judge should have withdrawn the evidence of identification from the jury because:

“… The foundation for the prosecution’s case against the appellant rested on identification evidence given by a witness 3 years and 3 months after the incident in question.  The manner and conduct of the identification parade raised serious misgivings as to the propriety of the identification and the fairness in which the parade had been conducted.”

11.  Mr Beel also represented the applicant at trial.  There, a voir dire was held to determine the admissibility of the identification evidence.  Two witnesses, the officer in charge of the identification parade, Chief Inspector Kwok Pak-chung (PW7) and Detective Senior Inspector Hung Ling-wai (PW8), who was the officer in charge of the case, were called.  After the judge had permitted the prosecution to adduce evidence of the identification, the same two witnesses were again called during the trial itself.

12.  Seven points have been raised by Mr Beel about the way the identification parade was conducted which, he submitted, represented such a departure from accepted procedures that the result has been “significant unfairness” to the applicant.  We can take each of these points quite shortly.

13.  The first related to the applicant’s hair on the day of his attendance at the identification parade.  It was noted that he had blond highlights.  PW7, in an attempt to make all of those standing on the parade look similar, took the necessary steps to obtain hair dye for those without blond highlights.  After their hair had been sprayed, the applicant, who had no legal representative at that stage, objected to two of the men chosen for the parade.  This left eight others with whom the applicant had no objection.

14.  Mr Beel’s point was that as all the robbers had worn baseball caps during the robbery, hair colour had never been an issue.  He submitted, therefore, that it would have been fairer if PW7 had opted for the use of shower caps to cover the heads of those on the parade because it was likely that the spray-on hair dye would have differed in its appearance from dye applied in a hair salon.  Whether or not this is so, PW1 had said, when explaining why he had not immediately asked the person at position ‘3’ (the applicant) to step forward, “the persons there [on the parade] looked similar.  I needed to compare them.  I want to make sure it’s No.3.”

15.  On any view, it is plain that PW7 was anxious to make the parade as fair as possible and it is clear that in this regard he succeeded having regard to PW1’s evidence that all the men were similar in appearance.

16.  The next criticism was that from the brief facts read to PW1 by PW7, it was clear that DNA found at the robbery scene had resulted in a suspect appearing on the parade.  This, Mr Beel suggested, might have put some added pressure on PW1 to make an identification because it must have been obvious to him that one of the robbers was amongst those standing on the parade.  All that we need to say in this regard is that if PW1 was labouring under the impression that he should make an identification come what may, which seems unlikely in view of the obvious care he exercised while attending the parade, he was informed at the same time that besides the suspect there were eight people on the parade who could not have been at the scene and that “the person or persons [he] saw on that day may not be here.”  In our view, the information provided to PW1 had been fairly balanced and no unfairness was caused to the applicant in the way suggested by Mr Beel.

17.  The third criticism carried with it a degree of merit in that a technical breach in procedure was revealed when PW7, in charge of the parade, asked PW8, in charge of the case, to call in the victim, PW1.  Chapter 46 of the Police Force Procedures Manual provides that the officer in charge of a case may be present at the parade but should not take part in the proceedings.  Furthermore, it is specifically stated in the Identification Parade Book: “Do not ask the OC case to call in the witness.”

18.  It is not easy to see why PW7 did not arrange for someone else to bring PW1 into the parade room as it led to the suggestion at trial, which has in turn given rise to the fourth criticism made by Mr Beel about the parade, that when PW8 knocked three times on the door to let PW1 into the parade room, this may have been a deliberate attempt to provide a hint to PW1 as to which position was occupied by the applicant on the parade.  Alternatively, Mr Beel suggested that the three knocks may have registered subconsciously with PW1.

19.  The breach in procedure and the three knocks on the door were matters which were fully ventilated at trial, as was a fourth criticism that the intercom system had not been utilised, and we do not consider that anything arises from these criticisms which should cause us to interfere with the exercise of the judge’s discretion to admit the evidence of identification.  Importantly, it was confirmed in these proceedings that when PW8 opened the door for PW1 to come into the parade room, there had been no opportunity for PW8 to communicate by word of mouth with PW1.  The suggestion that three knocks on the door may have been an influence on PW1 to identify the man standing at ‘3’ on the parade was far-fetched.

20.  The last three points of criticism were closely related.  Mr Beel alleged that:

“(v)    PW1 requested the actor standing at number 7 to come forward.  PW8 failed to record down a required and essential question to be put to PW1 prior to asking the actor to move, and failed to obtain an answer from PW1.

(vi)     PW1 had never given any indication that he could remember specific words said by the unknown suspects.  There had been no prior notice that voice identification was also an issue.  The appellant was given contradictory instructions as to his rights in relation to whether he was obliged to speak during the parade.

(vii)    Due to the failure of (v) it was unclear on what basis the appellant had been identified.”

21.  Again, these points had some technical merit.  The relevant paragraph in the Police Force Procedures Manual states:

“36.   Sometimes a witness may request to see the members of the parade either wearing hats or with headwear removed.  There is no objection to such a request.  However, if a witness wishes to hear any parade member speak, adopt a specified posture or see the member move, the witness will be first asked whether or not he can identify any person(s) on parade on the basis of the appearance only. The reply will be recorded.  When the request is to hear members of the parade speak, the witness should be reminded that the participants on the parade were chosen on the basis of physical appearance only.  Members of the parade may then be asked to comply with the witness’ request.  Full details of the incident, including the stages at which any identification is made, will be recorded.”

22.  PW7’s evidence was that he had followed the procedure laid down although he had not recorded the fact that he had done so in the Identification Parade Book.  This, in itself, was a contradictory reply as Mr Beel was able to demonstrate by simple reference to paragraph 36 in the Police Force Procedures Manual.  Mr Beel showed that a number of matters which ought to have been recorded by PW7 had not been written down by him.  In the result, he submitted that it was not possible to ascertain with any certainty whether PW1’s identification of the applicant was based on voice recognition as the applicant, as well as two others on the parade, had been asked at PW1’s request to say the words: “Surely picked on you”.  PW7 had not only failed to make a written record of asking PW1 whether he could identify anyone on the parade on the basis of appearance only but he had not apparently received any reply from PW1 to his enquiry.

23.  The judge’s summary of PW1’s evidence about this aspect of the proceedings at the identification parade was as follows:

“Going now to the ID parade that [PW1] did eventually attend. That took place on March 14th 2005. [PW1] repeated that he was sure about No. 3 even before hearing his voice. He nevertheless asked him to come forward and say that thing because he had to reconstruct what happened in his mind, and also because he did not want to wrong anyone innocent. When pressed, however, he conceded that he was at first only ‘pretty sure’ and it was hearing No. 3 speak that really confirmed his identification. Either way, [PW1] insisted that he recognised Number 3 at first glance. That is why he asked the chief inspector in charge to ask him to come forward, after viewing the whole line-up. As regards whether the inspector had asked if he could make any identification based on appearance alone, at this point or any subsequent stage, [PW1’s] answer was ‘I can’t recall. Probably not.’

According to him, writing down ‘No. 3’ on that piece of paper, Exhibit 8, before leaving was the first time he indicated making a positive identification to anyone during the whole proceeding. In any event, it was then put to [PW1] - and [PW1] conceded - that the parade did not proceed exactly as he had indicated, in that he had asked No. 7 and No. 1 as the first persons to come forward, and No. 5 to conclude. But why -- if you were pretty sure that it was No.3? ‘Well, I was, but the people there all looked similar so I had to compare their appearances to make sure.’ That was [PW1’s] explanation.” (Appeal bundle p. 12)

24.  The matters which Mr Beel has raised in this ground were pursued at trial and we are satisfied that the judge was entitled to have exercised his discretion in the prosecution’s favour when admitting this evidence.

25.  However, for the reasons covered under the 2^nd ground of appeal it seems from a question which the jury posed during their deliberations that they had decided to place little, if any, reliance on the evidence of identification.  Having regard to the way the judge answered their question, we propose to proceed on the basis that the identification was not in any event the evidence relied upon by the jury to convict.  This leaves open, therefore, the question whether there remained sufficient evidence in the case for the jury safely to convict having put identification to one side.

(2)     The jury’s question

26.  In the 2^nd ground of appeal, Mr Beel submitted that the judge “failed to give a further direction to the jury as to the burden and standard of proof following a question by the jury as to whether they should acquit if they had doubts about the identification evidence”.

27.  The jury’s question came after they had been deliberating for more than five hours.  Their question was:

“We have doubts about whether the victim could make a correct identification at the ID parade.  Should the benefit be given to the defendant if we have such doubts[?]”

28.  This was described by Mr Beel as a “fundamental and simple question” which illustrated a confusion on the jury’s part about the burden and standard of proof.  However, at trial, following a discussion about the way the question should be answered, it was agreed by Mr Beel and by counsel for the prosecution that a simple ‘yes’ should be the answer provided to the jury.  When the jury returned, the jury’s question was read out again by the judge and they were told that the answer to it was ‘yes’.  Strictly speaking, the answer was a correct one but, with respect, the jury’s question was not subjected to the degree of analysis it perhaps deserved.

29.  In this regard, Mr Beel’s ground of appeal is somewhat misleading which may be the result of a possible misinterpretation of what lay behind the jury’s question.  The jury had not, as Mr Beel had expressed it, asked the question “as to whether they should acquit if they doubted the identification”.  Instead, they had asked if the benefit should be given to the applicant if they had doubts about the identification parade.  Whilst it is possible that Mr Beel’s interpretation of the question is what one or more jurors had in mind, it is more likely, in the light of their eventual verdict, that the jury were really concerned with whether the remaining evidence of DNA could stand alone as a sufficient foundation on which to convict.  In this sense, the agreed formula of a one-word answer to their question was not a complete answer because the jury may have been viewing the case, as they were entitled to do, not so much as an ‘identification’ case with DNA supporting evidence but as a ‘DNA’ case with no reliable support from any other source.

30.  Mr Beel was the first to agree that the judge’s response to the jury’s question was, in hindsight, not the most helpful.  At the very least, he submitted, a reminder should have been given as to the burden and standard of proof.  We can see that this might well have been done but having regard to the nature of the jury’s question and the answer given to it we do not consider that this would have materially affected the position.  More to the point, the judge might have indicated that the jury should put aside the identification evidence if they were unsure about it and concentrate on what was left.  Indeed, this is apparently what the jury must have done, relying upon the DNA evidence for their ultimate verdict.  In these circumstances, the question which we have had to address is whether it was open to the jury to convict on the DNA evidence alone.

31.  The evidence in regard to DNA had come from a number of sources.  The most graphic illustration of where the cigarette end bearing traces of the applicant’s DNA upon it was found is to be seen from the album of photographs (Exhibit P6).  In photographs 9 and 10 of this exhibit, an unobstructed view of the cigarette end is presented.  The cigarette end is to be seen lying on the floor, just in front of a bedside table, as if it had been stubbed out on the carpet.  This cigarette end was labelled ‘7’ and the other one found in the room, which was also on the carpet but some distance away, was labelled ‘6’.  The judge dealt in some depth with the finding of these items and the defence cross-examination about the order in which they came to be labelled during his summing up.

32.  The judge then turned to the evidence given about the cleaning procedures at the hotel, saying:

“… Miss Fung, she was the receptionist from San Diego Hotel. She had had the job since 1998. Her duties included arranging for staff to clean a room after a client had checked out. This applied to daily as well as hourly rental, both of which the hotel provided, now as was 2001. In other words, when Wong Kam took over the room at 7.47 on the night in question - see paragraph 1 of the Admitted Facts - it should have been cleaned.

Miss Fung conceded, however, that what she said was the normal procedure. It was quite possible due to the quick turnover, especially in hourly rental, that a room was not thoroughly cleaned before [being] handed over to the next customer. At the end of the day, it depended on whether the cleaner was lazy. But it is difficult for any cleaner, however lazy, to have left items 6 and 7, the cigarette butts, as they are shown in the photographs. Why? Because they were such big pieces of rubbish.”  (Appeal bundle p. 23)

33.  In relation to DNA, the judge summarised in some detail the effect of the scientific evidence which came, as he expressed it, to this:

“In this case, Miss Li [the chemist at the Government Laboratory] did manage to find a DNA sample from Item 7, the cigarette butt allegedly found by the bedside. It could only have come from one donor, she said. The random match probability for it is 33.5 billion. What that means is if we were to find another person from the local Chinese population, who is neither the sample donor nor anyone related to him, to have the same DNA type, the probability would be one in 33.5 billion.” (Appeal bundle p. 24)

34.  The judge also posed a number of helpful questions which the jury would need to ask in themselves in regard to the DNA evidence.  He said this:

“… Are you sure that Item 7, the cigarette butt, was not already in Room 903 before Room 903 was rented out to Wong Kam? That must be the most important question. Are you sure that Item 7, the cigarette but[t], was not already in Room 903 before Room 903 was rented out to Wong Kam?

If your answer is negative - that is, you are not sure - that is the end of the matter. The smoker of that cigarette may have been in the room days earlier and had nothing to do with the incident. If, however, your answer is positive, you should ask yourself the next question, i.e., whether you are sure that there was no cross-contamination affecting Item 7, both when it was collected and when it was in the Government Laboratory. If your answer to that is negative, then again that is the end of it. You would not know where the DNA on it came from.

Conversely, that is, if you are sure that no contamination occurred, you are then entitled to see whether you are sure about Miss Li’s findings. If the answer is ‘no’, stop there. Click ‘exit’. If ‘yes’, go a step further and ask yourself this: are you sure that it was the defendant who left the cigarette butt? If your answer to that is again ‘yes’, you may find this evidence pinpointing the defendant’s presence in Room 903 after Wong Kam took it at 7.47. Mr Lam, of course, arrived at 8.30 if you believe him.” (Appeal bundle p. 26)

35.  The applicant did not, as we have indicated, give evidence.  However, his answer to the police that he had been to a room in the hotel on 8 December, ten days before the robbery, leaving open the suggestion that he had left behind a cigarette end from that visit, was in our opinion, on the evidence before the jury, deserving of no weight being given to it at all.  It is quite clear that the jury was entitled to consider the notion that the applicant’s cigarette end had remained on the floor for that length of time as being so unlikely as to be a possibility not worthy of any credence.

36.  We are satisfied, as the jury obviously found, that the DNA evidence was a sufficient basis, given the evidence that PW1 arrived in Room 903 less than 45 minutes after it had been occupied by Mr Wong, for the safe conviction of the applicant.

37.  We shall give leave, but treating the hearing as the appeal, we dismiss the appeal.