HKSAR v. WONG CHI LONG

HCMA232/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.232 OF 2002

(ON APPEAL FROM ESCC 113 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction only.

2. The appellant, who was unrepresented before me but who was represented at trial, was convicted of an offence of going equipped for stealing contrary to section 27(1) of The Theft Ordinance, Cap.210.

3. The facts of the case as found by the magistrate were that the appellant was seen by an anti-burglary patrol police officer, PW4, arrive by bus at Moorsom Road in Jardine's Lookout and then walk off down a rear lane. A few minutes later, the appellant was subsequently seen by another police member of that patrol, PW5, in a nearby street, Boyce Road. Finally, a few minutes later again, PW1, another member of the anti-burglary patrol, saw the appellant in Wang Fung Terrace, another area of Jardine's Lookout as PW1 and another officer were performing an identity card check in respect of two passers-by. PW1 saw the appellant walk past and then hurry away.

4. PW1 finished dealing with the two persons identity checks and then went off in a police car to locate the appellant. He found him in the vicinity of No.2 Wang Fung Terrace. PW1 approached the appellant and, after checking his identity, asked him why he was there. The appellant said he was looking for friends but that he did not know where his friends lived.

5. PW1 searched the appellant and found inter alia in the appellant's rucksack a smaller bag containing a screwdriver, white gloves, a pencil torch, an aluminum spring clip and a piece of paper with addresses written on it including an address in Moorsom Drive, Jardine's Lookout.

6. The appellant was asked by PW1 what the screwdriver and gloves were for and he said he did not know. The appellant was then cautioned but remained silent. Subsequently, he was taken to Happy Valley Police Station and a post record (exhibit P12) was made of the course of the arrest including the appellant's response that he did not know what the screwdriver and gloves were for.

7. The appellant's case at trial which was rejected by the magistrate was that he had gone to the area to meet some fellow workers prior to commencing work illegally as a decoration worker on a construction site some 100 yards from where he was arrested, and that he possessed the various items in his rucksack for the purposes of his work there. He explained the piece of paper with various names and addresses on it, including the address in Moorsom Road as being "nothing special and that it was just something he did".

8. Mr Brook who appears for the respondent before me has brought certain arguable grounds of appeal to my attention given the fact that the appellant is unrepresented, and the respondent in those circumstances has a particular duty of fairness. The appellant adopts the grounds put forward by Mr Brook on his behalf together with his own general grounds of appeal.

9. I need to deal with only one of the grounds of appeal advanced by Mr Brook. He points out primarily that the magistrate may have been wrong to allow dock identifications of the appellant to be made in evidence by PW4 and PW5. PW4 and PW5 each gave evidence of seeing the appellant in Jardine's Lookout within a few minutes of each other prior to his arrest by PW1. No identification parade was subsequently held and both officers gave their evidence of identification of the appellant by way of a dock identification during the course of their evidence at trial.

10. As a general principle, a dock identification should not be permitted in circumstances where a formal identification parade could and should have been held. PW4 and PW5 were not the arresting officers, they saw the appellant only for a few seconds each at the scene and subsequently identified him only in the courtroom at trial. No reason was advanced as to why no identification parade was held so far as PW4 and PW5 were concerned and it seems to me that if their evidence in this regard was to be allowed such a parade should have been held or good reason given why no such parade was held so as to allow a dock identification to take place.

11. It may well be that dock identification evidence can properly be admitted as evidence in criminal trials after it is properly grounded. But where the first and only identification after the events of the incident giving rise to the trial is in the courtroom by way of a dock identification and there is no good reason why an identification parade, or some other form of identification such as a confrontation where a defendant refused to participate in an identification parade, was not held then a dock identification will normally not be allowed.

12. In the recent case of R.v. Hoang Duc Hoa & Others [1997] HKLRD 12, Mortimer JA said :

"This is not to say that in a proper case a dock identification cannot be allowed. A dock identification is admissible in evidence. We sound a note of warning, however, because judges should not allow dock identifications and prosecuting counsel should not seek to rely upon such, if the identification is the first time that the witness is called upon to identify an accused person unless there is some very good reason. The obvious reason is that an accused has refused to attend an identification parade and that no other proper means of identification has been possible before trial, such as a group identification of a structured identification by means of photographs or some other recognised and proper procedure. Normally, the only time that a dock identification is permitted is in a true recognition case where the accused is known well to the witness and has been described by him at the time or shortly after the offence and so at trial, he simply confirms that this is the person about whom he speaks."

That statement of principle was approved in the case of HKSAR v. Lai Pui Heung, CACC468/1999.

13. It seems to me that this must be a principle which applies generally to the criminal law. It was suggested before me that different principles may apply in the magistracy. In Barnes v. The Chief Constable of Durham [1997] 2 Cr App R 505, it was held that dock identifications in English Magistrates Courts were permissible and customary since they were necessary in order to deal with the problem of defendants, such as those charged with driving offences, who simply sat back and in the absence of identification evidence submitted that it had not been proven that they were the driver. Popplewell J said :

" To deal with that it has been customary ever since I can remember for a police officer or other witnesses to be asked, 'Do you see the driver in court,' and for him to identify the defendant. Absent such an identification an acquittal may well follow. If in every case where the defendant does not distinctly admit driving there has to be an identification parade, the whole process of justice in a magistrates' court would be severely impaired."

14. I must say that it seems to me to be most undesirable that different principles governing the admissibility of evidence, particularly an area of evidence so important as identification, should apply in a magistrates court to, say, the District Court or the Court of First Instance. The integrity of our system of law, in the principles which have evolved governing the admissibility of evidence as in other areas, is based on a coherent foundation of reason. To adopt different principles of evidence in the magistracy simply as a matter of expedience or convenience will, in the long run undermine that coherence to no good effect. If the prosecution in a criminal trial wish to adduce evidence of identification then they do so because they believe that evidence is relevant in proving the defendant's guilt. In those circumstances, it seems to me that the prosecution should comply with general evidential principles. It seems wrong that they should be excused such compliance for reasons of expedience.

15. In my view Barnes case may well be explicable on its own facts. The defendant in that case had apparently absconded after he had been charged and no identification parade could be held. That being so the facts of that case differed from the general criminal case. In any event, in the present case, I am satisfied that in the absence of some good reason dock identifications should not have been allowed from PW4 and PW5.

16. The magistrate apparently placed some weight upon the identification evidence of PW4 and PW5. In his Statement of Findings, so far as PW4's evidence was concerned, he said :

"I accepted his evidence and gave it full weight. I found that was the defendant who was seen by him disembarking from the bus at about 7.45 pm. and who eventually turned into a rear lane."

17. Further, the evidence of PW4 in this regard was thought significant by the magistrate also in that it threw light upon the address the appellant was carrying on a piece of paper in his rucksack. The magistrate said :

"This address was 11 Moorsom Drive, Moorsom Road, Jardine's Lookout, a location near to where he'd been seen walking. I considered the fact that he was walking about in this area and had turned into a rear lane."

In regard to the identification evidence of PW5, the magistrate similarly said that he gave it full weight.

18. It seems to me that the dock identifications of the appellant by PW4 and PW5 were given some considerable weight by the magistrate, not just in the sense that the appellant had been seen in the area of his arrest immediately beforehand, but also that these identifications of the appellant connected him with behaviour consistent with him "casing" the area and more significantly perhaps placing him in the vicinity of an address found in his rucksack and acting suspiciously in that vicinity.

19. In short the evidence of dock identifications of the appellant was given weight by the magistrate and was not properly admitted in evidence. For this reason the appeal against conviction must succeed and I do not need to deal with any other matter raised by or on behalf of the appellant.

20. The appeal is allowed and the conviction is quashed. The appellant has served the major part of his sentence and I do not order a re-trial.