HKSAR v. USMAN SAQIB

HCCC 378/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 378 OF 2013

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R U L I N G

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1. This is the prosecution’s application to allow Ms Sun Li Li to make a dock identification.

2. The circumstances of the application arose this way.  Ms Sun was giving evidence shortly before lunch on Wednesday 18 June 2014.  When it was time for the lunch break, and in the absence of the jury, Ms Sun looked at the defendant in the dock and said words to the effect that she recognized the defendant as he had worked for her before.  

3. With the consent of the defence, a witness statement covering just this aspect (ie the identification) was taken from Ms Sun by the police, in the presence of Mr Parry, the prosecutor.  To cut a long story short, the first statement from Ms Sun was not detailed enough and a second statement was needed.  The police officers who were present when Ms Sun viewed the closed-circuit television clips (“CCTV clips”) on 18 December 2012 also provided statement. 

4. I conducted a voir dire to determine this issue. 

Evidence of Ms Sun

5. Ms Sun said that about 2-3 months before the day of the robbery, she saw the defendant sitting on the sofa in the reception.  She looked at him twice and then went back to her office to work.  After a considerable time, she came out of her office and she saw the defendant still sitting there.  She then made enquiries from her accounts staff why the defendant was there waiting, and looking at the defendant at the same time.  She remembered she had looked at the defendant for about 3 minutes.  She found out the reason for the defendant being there was that payment for the goods had not been made so delivery could not be effected.  She said such occurrence, ie a delivery worker waiting in the reception, occurred only 2-3 times. 

6. After this first encounter, Ms Sun said she saw the defendant again 2-3 times inside the lift of the building.  She did not really look at the defendant in particular on those occasions. 

7. Then on the day of the robbery, Ms Sun said she saw the defendant standing on the road on the right side of the entrance of Harbour Centre (as seen from the Exhibit P17 Photo No A52) when she was crossing Hok Cheung Street to go back to her office.  The defendant was about 5 metres ahead of her when she saw him.  She glanced at him once or twice and thought to herself “Why is it that this person is here again?” 

8. The next time Ms Sun saw the defendant was last week, when she came to give evidence in Court.  She said she knew the suspect was here.  When she saw the defendant she could tell she knew him, so she took out her glasses to see better as she was afraid that she might be mistaken. 

9. She was adamant that the defendant was the same person she had seen before. 

10. Ms Sun testified that since she dealt with a lot of South Asian and Middle Eastern customers and delivery workers, she was good at recognising people of those races.  

Evidence of the closed-circuit television viewing

11. There is no dispute that Ms Sun was brought down by Detective Senior Inspector of Police Yuen (“DSIP Yuen”) to the basement of Harbour Centre to view the CCTV clips.  All the five police officers present except the most senior officer Chief Inspector of Police Mark Johnson testified that Ms Sun did say something, although no one could recall what she had said exactly.  

12. DSIP Yuen said that Ms Sun did not make any comment to him specifically. 

13. Ms Sun’s evidence was that when she viewed the CCTV clips in slow motion, although the picture was unclear, from the face and build of a person running, she thought that person looked familiar to her and she told one or two police officers words to the effect “It seems that I have seen him before.” Ms Sun could not recall the exact words she used, but the gist was “That person looked familiar to me.  I can't remember who he is, he might be someone who had come to my office before.”  She did not say to the police she had seen that man earlier on the same day around 2 pm.  

14. She was unable to describe who the police officer(s) she spoke to was/were as she did not pay attention to the police officers.  She was upset and nervous at the time. 

15. DSIP Yuen confirmed that if Ms Sun had told him words to the effect that person(s) on the CCTV clips looked familiar to her, a record would have been made as that was important.  He agreed that if Ms Sun had been able to recognise anyone, that would have been very helpful to the investigation. 

16. As to the reasons why DSIP Yuen made a decision not to ask Ms Sun to attend an Identification Parade after the defendant was apprehended in February 2013, they are as follows:

(1) DSIP Yuen did not agree (with the defence’s suggestion) that casual delivery workers in the vicinity might have been involved in the robbery;

(2) the background of the defendant was such that “one would not think there was any business link between him and the proprietor”;

(3) the defendant claimed to be jobless and had to report to the Immigration Department;

(4) Ms Sun would not have any dealings with delivery workers; and

(5) she was not present on the street when the robbery took place. 

Submissions

17. Mr Parry for the prosecution pointed out specifically that it was never the intention of the prosecution to rely on any identification evidence from Ms Sun.  Ms Sun’s identification of the defendant on 18 June 2014 came as a complete surprise to him.  

18. After referring to the case law and the evidence during the voir dire, Mr Parry submitted that the evidence indicates that DSIP Yuen was not aware of Ms Sun’s assertion to the police on the day of the robbery that she found that someone looked familiar.  DSIP Yuen had therefore not acted upon her words.  DSIP Yuen also gave reasons why he did not ask Ms Sun to attend an identification parade.  In short, the police cannot be criticised for not holding an identification parade as no one expected Ms Sun to make such an identification. 

19. Mr Parry also referred to the evidence of Ms Sun regarding the circumstances of the occasions when she claimed to have seen the defendant.  

20. Mr Parry submitted that her evidence was probative and a dock identification should be allowed or admitted into evidence. 

21. Mr Hemmings, on the other hand, submitted that a dock identification should not be allowed or be admitted into evidence.  He referred to the Devlin Report in 1976 and the case of R v Turnbull (1976) 63 Cr App R 132 to highlight the danger of visual identification evidence.  

22. Turning to the evidence of this case during the voir dire, Mr Hemmings highlighted the discrepancies between Ms Sun’s statements and her evidence in court.  He submitted that Ms Sun had a tendency to exaggerate and her credibility is in question.  

23. Mr Hemmings submitted that Ms Sun’s claim of seeing the defendant on the date of the robbery was unreliable.  He also pointed out the inherent implausibility of her evidence.  

24. In short, Mr Hemmings submitted that the probative value of Ms Sun’s identification evidence, if any, is minimal but the prejudicial effect on the defendant outweighs such probative value.  It would also have been difficult for the defendant now to find witnesses of alibi.  

25. I will make it clear here that as Ms Sun was not cross-examined on those statements she had made even though I have seen them, I will not rely on them in my decision but will only consider her evidence in court. 

The law

26. The law on dock identification is clear.

27. In The Queen v Hoang Duc Hoa & Others [1997] HKLRD 12, Mortimer JA, giving judgment of the Court, said (at para 10):

“…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 or 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.”

My decision

28. Is there some very good reason to allow a dock identification in this case?  I accept that both the prosecution and the defence were taken by surprise in this matter. 

29. Ms Sun was clearly asked to view the CCTV clips to see if she could identify anyone.  If she had voiced out her belief or suspicion that one or more of the persons appeared on the CCTV clips was familiar to her, it does not make sense why the police, particularly DSIP Yuen who was in charge of the investigation, would have ignored it and did not make a record of it.  Ms Sun might well have such a belief or suspicion but I am satisfied she had not voiced it. 

30. DSIP Yuen gave many reasons why Ms Sun was not asked to attend an identification parade after the defendant’s arrest, one of them was that from his investigation, the defendant could not have been a delivery worker who had business with Ms Sun.  This investigation was of course unknown to Ms Sun. 

31. As Ms Sun was not an eye-witness to the robbery and she did not indicate she recognise anyone after viewing the CCTV clips, one can understand why DSIP Yuen did not arrange for her to view an identification parade after the defendant’s arrest – apart from the other reasons given by him. 

32. Though I find it was no fault on the part of the police when no identification parade was held much closer to the time of the robbery, it remains a fact that a dock identification deprives the defendant the opportunity of participating in a proper identification parade.  

33. I also have to assess the quality of the identification evidence.  Ms Sun allegedly saw the defendant for the first time 2-3 months before the robbery.  The only reason why she had noticed him was because he had sat on the sofa waiting for goods for a considerable period of time, which was not a usual occurrence, having happened only two to three times.  She then claimed that she saw the defendant again 2-3 more times in the lift but on those occasions she did not pay attention to him.  The last time she saw him before the court hearing was the day of the robbery, when she saw him outside Harbour Centre on the road.  On that occasion she gave him a glance or two. 

34. There was no good reason for Ms Sun to remember this person at all, even if this person did sit on her sofa for a long time.  Visual identification of a stranger has its inherent danger.  One may be very honest and convinced about the correctness of the identification and yet such an identification was incorrect.  Whether it was indeed the defendant Ms Sun saw on the first occasion, and whether she again saw the same person 2-3 times in the lift, and again on 18 December 2012 is by no means certain or reliable.  

35. What particularly concerns me is that clearly Ms Sun had never said anything about the possibility of recognising anyone to the police prior to the trial.  She came along to give evidence and she clearly said that she expected to see a suspect here and she looked at the suspect.  It was then that she recognised the defendant and also recalled that she had seen him outside the Harbour Centre on the day of the robbery.  Bearing in mind that this “recognition” took place 18 months after the robbery, and that the defendant was the only South Asian male sitting in the dock, such an identification is, in my view, very prejudicial to the defendant. 

36. Balancing the probative value and the prejudicial effect of this piece of evidence, particularly when Ms Sun was not an eye-witness to the robbery and her evidence could, at most, be to the effect that the defendant was someone who had been to her office once and had appeared in the vicinity of her office at Harbour Centre; and the fact that the police had eliminated the defendant as possibly a delivery worker connected with Ms Sun’s business, I am satisfied that the prejudicial effect far outweighs the probative value. 

37. Furthermore, reliance would have to be made by Ms Sun, should she be allowed to make the dock identification, to the images on the CCTV clips, which the prosecution had categorically informed the jury that the prosecution would not rely on for identification purposes. 

38. For these reasons, I exercise my discretion and do not allow the prosecution to adduce evidence of a dock identification by Ms Sun.