HKSAR v. CHEUNG WEN PO PHILIP

HCMA 58/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 58 OF 2016

(ON APPEAL FROM ESCC 3783 OF 2015)

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J U D G M E N T

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1.  The appellant, a 49-year-old man of good character, who was unrepresented in the court below and before me, was found guilty after trial of one count of theft contrary to section 9 of the Theft Ordinance, Cap 210 and one count of common assault contrary to section 40 of the Offences Against the Person Ordinance, Cap 212. The magistrate, Mr Chu Chung-keung, sentenced him to eight months imprisonment on Count One and seven days consecutively upon Count Two. The appellant now seeks to appeal both conviction and sentence.

Prosecution case

2.  PW1 was out with four friends on the night of 9-10 October 2015.  From 10:30 p.m. on 9 October, she had been with her friends drinking in the Varga Lounge on the ground floor of No 36 Staunton Street in Central, Hong Kong.  It is a small bar with limited frontage but stretches back from the entrance by some distance.  The lighting was dim but not dark.  The bar was packed.  At approximately 2:00 a.m. on 10 October, PW1, a regular in the Varga Lounge, had left her handbag on a stool adjacent to the entrance from the street and had gone to buy drinks at the bar.  PW2, a friend of PW1, was sitting at the second table in from the entrance and was chatting with friends when she noticed a man come into the bar and sit down on a stool near to the first table.  The man opened PW1’s handbag and took out a wallet and started to leave the lounge at which point she shouted “thief” and grabbed the man pulling him back into the centre of the lounge by the back of his T shirt.  PW1 had heard PW2 shout “thief” from where she was at the bar, which was some 4 metres away.  She turned around and saw PW2 approach and grab hold of the man at the entrance to the bar.  She saw the man drop both her Blackberry and her wallet.  As he was trying to get away, PW1 cut off his exit by going to the glass entrance door and by standing on the outside of the glass door in the street.  PW2 did not keep hold of the thief.  Once she had dragged him to the bar area he went out of sight and she returned to her table.  Both PWs seemed to think the man had gone upstairs but neither saw him go or return from upstairs.  The man returned to the main bar area approximately five minutes later.  When he returned, PW2 told him not to go away at which point he became agitated and pushed her forcibly once on her shoulder although she did not fall over.

The procedure on appeal

3.  An appeal under section 113 of the Magistrates Ordinance, Cap 227 is by way of rehearing of the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power so to do (section 118(1)(b)).  It allows the judge on appeal to make whatever order the judge thinks just (section 119(1)(d)).

4.  On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standard: HKSAR v Ip Chin Kei & Others, HCMA 301/2011.  It follows that the appellate court is also required to ensure that all proper safeguards were put in place as to the admissibility of such evidence as was relied upon by the court below.

5.  This court is entitled and indeed bound to come to its own conclusion about the evidence.  Per James J in Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661:

“It is not incumbent upon the appellant to show that such conclusion was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the rehearing there is a reasonable doubt of guilt, the appeal must be upheld.”

It follows that the same approach should be applied to the test under R v Galbraith [1981] 1 WLR 1039 at the end of the prosecution case.

6.  Because this is a rehearing upon the evidence as it was before the magistrate and is not a retrial, there are practical constraints placed upon the court in the exercise of its duties in making findings of fact and determinations in respect of the credibility of witnesses: HKSAR v Ip Chin Kei & Others supra.  So far as the facts are concerned this court recognises that it does not have the advantage of having received evidence at first hand which the magistrate enjoyed.  The same applies to the opportunity to see and hear the witnesses.  To offset that constraint the court is entitled to have regard to the magistrate’s Statement of Findings to ascertain what determinations the magistrate made as to the credibility of witnesses and the reasons given for such determinations.  It also follows that this court should be able to look to the Statement of Findings to seek, if possible, to explain any anomaly as to issues of admissibility and procedure.

7.  The evidence in this case rested upon two witnesses of fact and necessarily involved an assessment of their credibility.  This court should be slow to reverse the finding of the magistrate as to the credibility of a witness unless satisfied that his conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.  Expanding upon that point, in HKSAR v Fok James Alistair [2015] 4 HKC 247, Zervos J said:

“In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, whether the finding was one that no reasonable magistrate could have reached.”

8.  The appellant was unrepresented before this court and below.  There was clearly a duty placed upon the trial magistrate to protect the interests of an unrepresented defendant and to give him such assistance as was necessary for the proper conduct of his defence: Szeto Ming v R [1978] HKLR 61.  Whilst the magistrate’s duty is not the same as that of defence counsel and it is not his responsibility to take over conduct of the defence: HKSAR v Yu Chi On, HCMA 140/1999, it is important that an unrepresented defendant is given an opportunity to agree or make representations upon all points of law and procedure appertaining to the case at hand.  Given the defendant’s lack of experience or knowledge of such rules, it is incumbent upon the magistrate to ensure that these are explained to him and that he is in a position to make informed decisions.  For this reason it is important that the magistrate identifies the relevant issues at an early stage.  In this case the issue of identification was paramount.

Identification evidence

9.  Identification was in issue.  Although the appellant accepted that he was present in the bar that evening, he did not accept that he was the person who stole a wallet or Blackberry.  Nor did he accept that he assaulted PW2, if she was assaulted.  It was clear on the evidence that whoever was apprehended by PW2 was with her for just a few minutes in a dimly lit crowded bar at 2:00 a.m. in the morning and that he had his back to her for some part of that time.  He had then left the immediate scene and was said to have returned some 5 minutes later.  For some reason not alluded to in the Statement of Findings, the magistrate allowed 3 dock identifications to take place without any explanation given to or agreement obtained from the appellant.  No identification parade took place before trial. It is a well-established principle of practice and law that a witness should not be asked to identify the defendant for the first time in court: R v Hunter (1969) Crim LR 262; R v Howick (1970) Crim LR 403; The Queen v Hoang Duc Hoa & Others [1997] HKLRD 12. Whilst in practice a judge retains the discretion to permit a dock identification, the exercise of that discretion should be sparingly deployed e.g. where the failure to adopt the normal identification procedures available to the police have not been activated because of the default of the defendant, either because he had refused to attend an identity parade or confrontation or because identity was not in issue.  That was not the case here.  Where a defendant is unrepresented even more care should be taken before this exceptional step is taken.  Where a dock identification does take place the court should remind itself of the dangers of relying upon such evidence and of the disadvantage to the accused of not being able to take part in an identification parade.  The carrying out of three dock identifications was a material irregularity.  The fact that only one was successful simply gives less weight to the other evidence of the non-identifying witnesses in the circumstances of this case.

10.  In any event, alarm bells should have been ringing because both PW1 and PW2 actually identified the dock officer as the accused.  No doubt this was because he was the only person in the dock (albeit in uniform) and the appellant was presumably sitting in counsel’s row as he was representing himself.  Matters got worse from there.  Firstly, PW1 described the accused as “clearly a mainlander”, in his early to mid 40’s, 5’7”, of medium build with “some hair but short, very short hair ... he had a little bit of hair but it was very, very short”.  PW2 described the man as very short maybe 163-5cm and skinny with not much hair and a “normal Chinese looking man”.  Both said they were not 100% sure if they could identify the man again after three months but both went on to identify the dock officer.  They also both recalled he wore a T-shirt but could recall nothing else about his dress.  The dock officer was referred to by the magistrate as bald.  He did not describe him further.  The appellant however is 49 years old (and looks older), of medium build and height with an abundant amount of naturally dark hair.  He looks like a professional man, which he is.  If that had not been enough to give rise to a question over the advisability of allowing a dock identification or of the weight to be given to the other identification evidence, neither witness realised that the person cross-examining them at length was the appellant.  Far from it, they referred to the thief in the third person when answering his questions, a point which never occurred to the magistrate.

11.  PW3, the arresting officer, was also asked to carry out a dock identification.  Not surprisingly, he identified the appellant in court.  There was no independent evidence given by the officer of the description of the appellant or his HKID number, name or address and the appellant was not asked to waive ID as an issue.  Even so, the identification by the officer only goes to whom he had arrested and not to who had carried out the crime.  Both PW1 and PW2 had said they had pointed the appellant out to the officer but both PW1 and PW2 had said that he was surrounded by customers at the time.  There was no evidence to suggest that the officer had arrested the person who had been pointed out to him in the bar and then confirmed his identification with the PWs to ensure that he had the right man.  No identification parade was carried out.

12.  The magistrate was alive to the issue of identification because on one occasion he sought to confirm with PW2 that the person who had apparently returned from upstairs was the same person she had seen carry out the theft earlier. He mentioned in his Statement of Findings at paragraphs 6 and 22, that PW2 had memorized his facial appearance:

“6. ...She kept an eye on the man. She memorized his facial appearance...”

“22. ...PW2 said that she could memorize the facial appearance of the appellant before the appellant went upstairs...”

That is not correct and that was not her evidence (see paragraph 14 below).  No attempt was made to establish properly the circumstances of the recognition of the appellant other than the state of lighting in the bar which the witnesses had accepted was dim and whether the witness’ view was unobstructed.  As to the latter point, both witnesses said they had an unobstructed view yet they accepted the bar was packed and PW1 was standing outside on the street with a glass door and frontage in between her and PW2 who was some four metres away inside a dimly lit bar.  This was most definitely a fleeting glimpse case.  The magistrate found this to be so when at paragraph 21 of his Statement of Findings he said “...the course of stealing must be confined to a short period of time” which he gave as an explanation for why PW2 had only seen a wallet and not a wallet and Blackberry stolen.  The magistrate should have given himself the appropriate warning under R v Turnbull [1977] QB 224 if there had been admissible identification evidence, which, if there was any, was very limited.

13.  Without the dock identifications the remaining evidence was of limited scope and should have been set against the background of other inconsistencies between the evidence of PW1 and PW2 which cast reasonable doubt upon the identification by PW1 and PW2 of the appellant as the thief:

(i) The only person to see the thief take a wallet was PW2.

(ii) She was seated three feet away but others were also seated between her and the thief.

(iii) She said she had an unobstructed view of what the thief did yet the handbag from which the thief was supposed to have taken the wallet was on a stool on the far side of a table.  It was therefore beyond her line of vision of those sitting in between her and the thief and below the intervening table height.

(iv) The handbag, wallet and Blackberry were not adduced into evidence.  There were photographs of the wallet and Blackberry.

(v) She did not see the thief take the Blackberry out of the handbag despite being some three feet away and saying she had a clear and unobstructed view.

(vi) She did not see the Blackberry in the thief’s hands at any time nor did she give evidence of the wallet (or the Blackberry) falling to the floor despite, by now, being right next to him.

(vii) PW1 gave evidence that the thief had both PW1’s wallet and Blackberry in his hands and dropped them when apprehended by PW2.  At this stage PW1 was some four metres away in a packed bar.

(viii) PW1 had then gone outside to shut the door and to ring the police.  She was also monitoring people coming in and out but had said that she had a clear and consistent view of PW2 and the thief (who stood furthest away from her of the two).

(ix) PW2 had pulled the thief back into the lounge but he had then gone to the back of the lounge or upstairs.  She had lost sight of the thief and had gone back to her seat at the front of the bar and she had not seen him for five minutes.

(x) On the other hand PW1 said that PW2 had pulled the thief into the lounge and then remained in defensive “basketball” pose with her arms wide stopping the thief from getting around her and leaving by the front glass door.

(xi) PW2 said she had been pushed once by the thief when he became agitated because she would not let him leave the bar but PW1 said she saw the thief push PW2 at least twice.

14.  Whilst it might be possible that the person who returned to the main bar area was the appellant, no one except the magistrate put their minds to whether the man who returned was the same man who was the thief and that was dealt with by only one question:

“Q: ...what made you say it was the same man who picked up the wallet?

 A: Because it was within 5 minutes and I saw his face.”

However this evidence was not noted by the magistrate in the context of her other evidence when she said on more than one occasion that she may have difficulty recognizing him because the thief was “just a normal looking Chinese man”.

15.  In dealing with the evidence of the two prosecution witnesses, the magistrate said the following:

“15. The court considered that the evidence of the prosecution witnesses was clear. They did not evade during cross examination. They were not shaken during cross examination. The court accepted this evidence and the court considered all the prosecution witnesses told the truth.”

16.  This is hardly the test where witnesses are being cross-examined by an unrepresented litigant.  He is unlikely to have the forensic skill of counsel to undermine or finesse evidence.  The overwhelming issue was in fact that neither witness realised that the person cross examining them was the appellant even though he made no attempt to hide the fact.  It also misses the point that in cases of mistaken identity, a witness can appear to be telling the truth and believe they are telling the truth but yet be mistaken as to the identity of the person about whom they are speaking.  This was the raison d’être underlying Lord Devlin’s Committee on Evidence of Identification in 1976 which ultimately led to R v Turnbull [1977] QB 224.  Accordingly the magistrate should have warned himself:

“[W]henever the case against an accused depends wholly or substantially upon the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.

...

When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, ... [t]he judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.”

17.  This was a case which should not have proceeded beyond half time.

18.  The magistrate also said:

“23. The court had also considered whether PW1 and PW2 were affected by alcoholic drinks and had mistaken the facts of the case. Considering what they described about the incident, they had quick and reasonable response to the matter. The court is satisfied that they were sober during the incident.”

19.  There was no evidence as to the sobriety of the witnesses save for the fact that they had been in the bar drinking since 10:30 p.m. on 9 October and the incident occurred at 2:00 a.m. on 10 October at a time when PW1 said she had gone up to the bar to buy drinks.  This finding was not open to the magistrate.

Conclusion

20.  This was not a case in which dock identifications should have been allowed by any of the witnesses.  There was limited admissible identification evidence of the person who was the thief and no evidence to connect that person to the appellant.  This case should have failed at half time.

21.  Even if the identifications had been admissible, this was a fleeting glimpse case.  The magistrate did not remind himself of that fact or of the danger of convicting in such circumstances in accordance with the Turnbull guidelines.  There was evidence which should have alerted the magistrate to the weaknesses of the identifications as the appellant’s appearance did not fit the descriptions given by the witnesses; there was an incorrect identification of the dock officer and neither of the witnesses thought the person cross-examining them was the thief.

22.  The identification by the officer was wholly unacceptable.  I can think of no circumstances where an arresting officer should be allowed to make such an identification unless identification was not in issue.

23.  Accordingly I allow this appeal and quash the conviction and set aside the sentence with costs of the appeal and the court below to the appellant to be taxed if not agreed.