HKSAR v. SINGH POPINDER AND OTHERS

HCCC 290/2019

[2021] HKCFI 2432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 290 OF 2019

________________________

________________________

________________________

RULING ON ADMISSIBILITY

________________________

Background

1.  D1, 2 and 4 are the alleged culprits, together with others, in two robberies that took place on 18 September 2018 at the pavilion of a playground in Yuen Long and on 26 September 2018 outside a house in Kam Tin.

2.  PW1 is the alleged victim in the 18 September 2018 robbery only.  It is his evidence that the incident lasted about 10 to 12 minutes and he could see the attackers very well.  Out of the six people who attacked and stole from him that day, he knew five of them from before, with D1, 2 and 4 among them.  He came to know them separately, the longest being Sunny (D1)  and Mangu (D4), both since 2014.

3.  In relation to Sunny (D1), PW1 first made his acquaintance in 2014 in CIC (Castle Peak Bay Immigration Center in Tuen Mun)  where they were both detained as asylum seekers.  They had met many times since making his acquaintance.  PW1 mentioned to the Police that Sunny had a tattoo on his neck, not sure which side, but Sunny had tried to erase it and so there were some green lines or something like that on it.

4.  In relation to Sabu (D2), PW1 met him around 2017, while they were sitting down and having beer in a shop.  They started to chat, asking each other about where they were from and how they were doing, etc.  After making D2’s acquaintance, PW1 had met him maybe 2 to 3 times on the street, bumping into each other in Yuen Long.

5.  In relation to Mangu (D4), PW1 first made his acquaintance in 2014 in CIC (Castle Peak Bay Immigration Center in Tuen Mun)  where they were both detained as asylum seekers.  Between 2014 and 2018, he might have seen Mangu 2 or 3 times, when they would greet each other in the street.  Mangu was a Facebook friend of PW1, as well as Sunny (D1).  PW1 might have added them as friends in 2016 or 2017.

6.  PW1 described his attackers in his 5 October 2018 statement.  PW1 said he felt that the Police was not doing anything to try to apprehend his attackers after he first reported the robbery and so he went on Facebook and found images of his attackers and captured them on his phone to show the Police on the day he made the statement.  The Police printed out 4 images which are attached to his statement.  PW1 thought, “Because I have already provided the names to the Police, I believe that if I could provide them the photos, they would be able to find them easily, because I knew them before.”

The admissibility complaints

7.  Photos of D1, 2 and 4 are three of the four photos printed out by the Police from PW1’s capture and they would form the basis of the main complaint of the identification parade evidence that the prosecution seek to produce at trial.

8.  At identification parades held later on, PW1 identified D1 Sunny, D2 Sabu and D4 Mangu as among the perpetrators in the 18 September 2018 robbery.  D2 was also identified by two other witnesses as one of the perpetrators of the 26 September 2018 robbery.  There were other identification parades but these are the ones that are being challenged for their admissibility.

9.  It is D1, 2 and 4’s case that the browsing for and saving of the Facebook images by PW1 resulted in the risk of what is known as the ‘displacement effect’ being present, that is to say, when PW1 positively identified D1, 2 and 4 at the subsequent identification parades, what PW1 was in fact identifying was the person he had seen in the Facebook photos, and not as the persons he claimed to have recognized at scene, whose images had been displaced by the images PW1 saw in the Facebook photos.  As such, the fact that PW1 had identified D1, D2 and D4 as involved in the criminal act in count 1 should be excluded.

10.  In relation to D2, his additional complaint is that the identification parades where D2 was identified were conducted with a lineup of only D2 and one other suspect without any actors.  D2 says that the Police had not informed D2 of his rights under such a ‘confrontational type’ identification, nor did they explained to him the procedure.

11.  Despite the fact that it was D2 who had chosen for the identification parades to be held that way, D2 says that the identification parades were as a result unfair and improperly conducted, and the fact that the witnesses had identified D2 as the person taking part in the alleged criminal acts in charges 1 and 3 should not be allowed into evidence.

12.  Furthermore, all 3 defendants referred to weaknesses in PW1’s identification evidence and suggest that under the legal principles propounded in R v Turnbull[1]as well as the case of Daley v R[2], the identification evidence is so weak that the evidence in relation to PW1’s identification of D1, 2 and 4 should not be left to the jury and should be excluded.

Discussion

13.  It is not in dispute that the legal principles concerning the viewing of Facebook images prior to identification parades as considered in the case of R v Phillips[3] are sound and persuasive.  Both the prosecution and the defendants rely on the principle that exclusion is possible but not automatic, and should depend on the individual circumstances of the case where there is suggestion that a witness might have viewed photos of suspects prior to attending an identification parade, or in other words, the risk of the displacement effect of the witness identifying the person in the lineup as the same person as seen in the Facebook image rather than the person who was present at scene.

14.  I find particularly helpful the following passage of the judgment at para 39:

“In our judgment the judge was right to admit… All three witnesses were present at the scene of the attack and all three witnesses identified Conner Phillips at the formal identification parades. The issue of whether they were identifying the person that they had seen in the Facebook photograph which they had been shown as opposed to the person that they had seen on the night was an issue for the jury, and there was available to the jury sufficient material on which they could make this critical judgment of fact. It would not have been right to prevent this relevant evidence being presented to the jury for their assessment. However, it then became essential to give proper directions to the jury.”

15.  There the court found that the directions given by the judge were sufficient and dismissed the appeal.

16.  In our present case, the 15 evidentiary matters pointed out by D1 in the closing submissions, and adopted by D2 and D4, being the flaws in PW1’s evidence which they say should force the court to withdraw the evidence on the basis of weak identification evidence, are all matters that go to the credibility and reliability of PW1.

17.  I find that the fundamental issue in these applications is whether the evidence of PW1 about how he had known D1, 2 and 4 from before and had occasionally met them on the street and said hello and hi to them is true and reliable.

18.  If it is, then there is sufficient evidence to be put before the jury for them to consider whether they would so believe.  It would be my duty to leave the matter to the jury’s decision.

19.  It is PW1’s evidence that he recognized 5 out of the 6 attackers at scene.  He just wanted to make sure the Police would do their job and it was in his attempt to assist the Police in apprehending his attackers that he then went on to Facebook, knowing exactly what he was looking for, in order to capture the images to show to the Police.

20.  Arguably, there was no photo identification by way of Facebook search, if PW1’s evidence is to be accepted as true.  He was merely relying on the images to illustrate to the Police what the people whom he knew and had met before looked like.

21.  There is of course the possibility that PW1 lied about knowing D1, 2 and 4 from before, or lied about how he did not need the photos to know their faces and was actually using the images he found on the internet to make the identification.  This would render his identification unreliable and possibly inadmissible.

22.  However, I find that PW1 is telling the truth about how he knew D1, 2 and 4 from before the attack, that he was able to immediately identify his attackers on 18 September 2018, that D1, 2 and 4 were among them, that he merely wanted to make sure the Police knew what they looked like and so he went on to the internet to download their images to show the Police, my finding must also be that PW1 was possibly basing his search of the images on his memory of the faces that he had already possessed at the time of the attack.

23.  On this factual basis, PW1’s identification evidence should properly be left to the jury for them to decide on whether the prosecution has proved to their satisfaction that PW1’s identifications of D1, 2 and 4 are correct.

24.  As to D2’s additional ground of complaint about the manner the identification parades were held, I refer to the following passage from Criminal Evidence in Hong Kong by Bruce and McCoy:

“Where the accused refuses to participate in an identification parade and the Police adopt an alternative method of identification such as confrontation, the accused cannot complain later that the procedure was unfair because he has brought the process on himself. The accused has or acquires no immunity from identification because he refuses to co-operate with the Police in this regard.” (See para [105]-[150].)

25.  In any event, there is no suggestion from D2 that the Police could not have arranged for a direct confrontation identification.  No material has been provided in support of D2’s assertion that the Police had not done enough to be fair to D2 when conducting the confrontational type identification.

26.  There is no specific mention of what matters the Police had failed to do when conducting the confrontational type identification parade.  There is no suggestion that the procedure followed by Mr Lothian, as evidenced in his ticking of the boxes in the various identification parade books, were wrong or insufficient for the purpose of D2 knowing that he had the right to choose to not take part in the identification parades even in the manner that he had chosen them to be conducted.

27.  At the end of the day, the requirement for the evidence of an identification parade to be admissible must be that it was conducted fairly.

28.  Having viewed how Mr Lothian had conducted the identification parade, and how D2 had reacted during the buildup to his choice of standing together with the other suspect without actors, I find that the parades were conducted fairly and there is sufficient ground for this evidence to be placed before the jury for their consideration.

29.  As such, I find that the prosecution has proved beyond reasonable doubt that the contested evidence should be placed before the jury for their consideration on the general issue.

Ruling

30.  For the reasons given above, I rule the identification parade evidence admissible.  To be more specific, as very helpfully set out by Mr Percy in his oral closing submissions, the following are to be admitted into evidence:

“In relation to D1: The 11 October 2018 identification parade where PW1 identified D1, with the corresponding identification parade book as P-45, master disc of the identification parade as P-46, working copy as P-46A, transcriptions as P-96 and their certified English translation as P-96A.

In relation to D2: the 11 October 2018 identification parade where PW1, 2 and 3 each identified D2,with the corresponding relevant identification parade books as exhibits P-44, P-43 and P-42 respectively. The master disks for the videos of the identification parades as P-47, working copy P-47A, transcriptions as P-95, and certified English translation as P-95A.

In relation to D4: The identification parade where PW1 identified D4, the 24 October 2018 identification parade with the corresponding identification parade book as exhibit P-68, master disk as P-52, working copy as P-52A, transcriptions as P-97, and the certified English translation as P-97A.”