HKSAR v. GURUNG ASHIS AND ANOTHER

DCCC 269/2020

[2023] HKDC 1709

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 269 OF 2020

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RULING ON SPECIAL ISSUE

Both defendants are jointly charged with an offence of "Robbery" (Charge 1) and an offence of "Attempted robbery" (Charge 2). They pleaded not guilty to both charges.

2.  Defence counsel Mr. Allan challenged the admissibility of 2 identification parades held on 27 June 2019[1]. The first one involved D1, which took place from 1518 to 1547 hours; whereas the second one, D2, from 1555 to 1619 hours.  Parties agreed to deal with this special issue by way of alternative procedure.

3.  Written grounds of objection respectively dated 3 October 2023 and 18 November 2022 have been submitted by Ms. Bina Sujanani (D1's former counsel) and Mr. William Allan. Ms. Sujanani was discharged by D1 on the 3^rd day of this trial (5 October 2023) when she was in the middle of her cross-examination of SO1 (PW3).  Mr. Allan formally took over D1's case on the 5^th day (10 October 2023).  He ended up representing both D1 and D2.

4.  The trial of this case was originally fixed for 8 days from 3 to 12 October 2023.  Due to the unforeseeable circumstances described above, the trial had to go part-heard with 5 days reserved.  It resumed on 20 November 2023 and finished on 24 November 2023.

5.  The first witness for the special issue (PW6 Retired CIP Johnson) was called on the 9^th day of this trial (21 November 2023).  Mr. Allan adopted the grounds of objection prepared by Ms. Sujanani.

6.  The evidence for the special issue ended in the morning on 24 November 2023. Counsel for both sides then made oral submissions.  I gave my ruling on the special issue after lunch on the same day.  I now set out the reasons for my ruling.

7.  In gist, Mr. Allan challenged the admissibility of both identification parades primarily on the basis of unfairness (i.e. the actors in each line-up were not of similar appearance and ethnicity as the suspect).  Mr. Allan also raised the issue of voluntariness alleging that DSIP Chan (PW7) has unduly coerced D1's and D2's former solicitor (DW1 Mr. Chaudhry) into agreeing to participate in the 2 unfairly conducted identification parades.

8.  The prosecution called 2 witnesses for the special issue (namely PW6, who was the OC Parade; and PW7, the then OC Case).  Video footage of 2 identification parades conducted by a female Chief Inspector held on 26 June 2019 involving D1 and D2[2] were also produced during the cross-examination of PW7.

9.  What took place in each identification parade was captured on video with audible sound of everyone's words.  The footage of 4 identification parades involving D1 and D2 were played in court.  Their contents are duly noted.

10.  For the purpose of my ruling, the words "Nepalese" and "Pakistani" refer to ethnicity (or race) rather than nationality.  It is common ground that D1 is Nepalese; whereas D2, Pakistani.

11.  As shown in Exhibit P39, on 26 June 2019, before D1's identification parade began, in the presence of PW7 (the then OC Case), DW1 pointed out to the OC Parade (a female Chief Inspector) that at least 3 actors in the line-up were not Nepalese.  She immediately made enquiries with the 3 actors and then sent them away.  Without sufficient number of actors, the female Chief Inspector decided to cancel D1's identification parade.  In his evidence, PW7 agreed that he knew why the female Chief Inspector cancelled D1's identification parade on 26 June 2019, because not all the actors in the line-up were Nepalese.  He also agreed that he had borne in mind this actor issue when he arranged for D1's identification parade to be held on the following day.

12.  According to DW1's evidence, who is a Pakistani, it was obvious to him that the actors in the line-up for D1's and D2's identification parades held on 27 June 2019 were not all Nepalese or Pakistani.  He has explained in some details as to why he did not raise any objection under camera on the 2^nd day as he did on the previous day.  I need not to go into that area for the purpose of my ruling.

13.  PW7 said in his evidence that on 27 June 2019, he has verbally asked each actor his nationality[3] before he brought them into the parade room.  He made sure that the actors in the line-up for D1 were all Nepalese; and for D2, all Pakistani.

14.  Mr. Allan submitted that since the issue of actors' ethnicity was raised, setting aside the other elements of similar appearance (such as height, built, hair style and colour, clothing), the prosecution has the burden to prove beyond reasonable doubt that at least the actors in the line-up of each identification parade were of the same ethnicity as the suspect.  Yet, the prosecution has failed to do so in the present case.

15.  Without judging the credibility of his evidence, PW7 made no record of the nationality of each actor (though there is no such designated column in the standard issue Identification Parade Book[4]) on 27 June 2019, knowing that the same issue had caused the cancellation of D1's identification parade on the previous day.  Furthermore, even if PW7 did ask each actor of his nationality, the answers he received are hearsay.  To prove the ethnicity or nationality of the actors in each line-up, I am afraid the prosecution needs to call each actor to give evidence.  Regrettably, I see no attempt by the prosecution to even trace the actors just to obtain a witness statement from them.  Perhaps by taking a good quality still photograph of the line-up with the suspect could have been a quick fix for PW7 and saved the day for the prosecution.  I accept that it is always easier said than done with the benefit of hindsight.

16.  Page 2 of each Identification Parade Book contains a list of the actors with their personal particulars (name, ID Card number and address).  Looking at their surnames[5], there is clearly a doubt that at least not all the actors in the line-up of D1's identification parade held on 27 June 2019 were Nepalese.  In relation to D2's identification parade held on 27 June 2019, I have no reasons to doubt DW1's evidence that not all actors in the line-up were Pakistani.

17.  I have viewed the video footage contained in Exhibits PP30 and PP35.  The resolution of the images is not of high quality.  The faces of the actors in each line-up are not clearly shown.  I was unable to discern if the actors at least look similar to the suspect in terms of ethnicity, particularly in D1's identification parade.  On the other hand, what I could see was dissimilar hair style and colour, clothing, height and built of the actors in D2's identification parade.  Be that the oversight of PW6 or DW1, no measures were taken to overcome such dissimilarities (such as shower caps, blankets or asking the line-up to sit down).  I do not for one moment suggest going so far out as what the female Chief Inspector did in Exhibit P40.  In fact, I would seriously doubt the strength of such identification evidence (even if the suspect was identified).  Furthermore, if the victim of a robbery claimed that all culprits wore face masks, I question how meaningful it would be to ask the victim to attend an identification parade.

18.  Based on the reasons stated above, I am not satisfied beyond reasonable doubt that the 2 identification parades held on 27 June 2019 involving D1 and D2 were fairly conducted.  Therefore, I rule that Exhibits PP30 and PP35 as well as their related documents are inadmissible.