R v. HOANG DUC HOA AND OTHERS

IN THE COURT OF APPEAL

1995, No. 667
(Criminal)

-------------------------------------

----------------------

J U D G M E N T

----------------------

Mortimer, J.A. (giving the judgment of the Court) :

1. On 6 October 1995 the applicants were convicted of three offences of wounding with intent by His Honour Judge Lung in the District Court. Each was sentenced to a total of 3 years imprisonment. Each now seeks leave to appeal against his conviction.

The offences

2. The offences took place at about 2 o'clock in the morning on 5 November 1994. A large group of about 16 inmates at Chi Ma Wan Detention Centre attacked five other inmates with clubs and iron bars. These applicants were found to have been guilty of attacking three of those other inmates. The attacks resulted in serious injuries - lacerations, bruising and swelling - one of the victims spent 40 days in hospital.

At trial

3. This was purely an identification case. Although the applicants were said to have made confessions shortly after the offences had been committed, these were either not adduced in evidence or were ruled inadmissible. The offences took place in a refugee camp so that there were family witnesses present. The victims, as well as the witnesses, may have been familiar with the appearance of some of the accused because of their presence in the camp.

The question for this Court

4. The only question for this Court is whether these convictions are safe and satisfactory because the judge allowed dock identifications of these applicants by the witnesses.

The dock identifications

5. The circumstances in which the dock identifications were allowed can be briefly summarised. In each case the dock identification was the first identification that the witness had made. Nine months had elapsed from the date of offence. It follows that no identification parades had been held, no group identification had been made and no other structured identification procedure had been undertaken. The offences took place in the early hours of the morning, in artificial light and undoubtedly, the events were very confused with a large number of people involved. Then, the witnesses, or most of them, had been shown photographs for them to identify persons involved. It is not known whether they were shown photographs of any of these applicants, but it should be mentioned that by the time the photographs were shown, these applicants had already been arrested for the offences - a matter to which we will return in a moment.

6. The next point is this. No witness, at the time immediately after the offences when making a statement, said that he or she recognised any of the applicants. This was not a case where any of them said at the time "I know one or other of them" and either described them or gave them a name. So this was not a recognition case. Associated with that point there is another danger because those witnesses may have been familiar with the appearance of some of the applicants who were living in the same camp.

7. Those were the circumstances in which the dock identifications were permitted. To this, one must add that there was no other evidence, circumstantial or otherwise, which could have justified a conviction against any one of the applicants. That is agreed between both counsel and it is clear from an examination of the record of the trial.

The photographs

8. We return for one moment to the photographs. Lest it be thought that there is something wrong in showing photographs to victims or witnesses, let it be said that photographs, of course, can be shown after an offence has been taken place. But it is important that the person who is showing the photographs should do so in a proper manner. If the identity of any person to be charged is known, unless it is intended to hold a structured identification by means of the photographs, no photograph of any person held for the offence should be shown to a witness. Of course, in the course of investigations, in order to find or identify the persons responsible for an offence, witnesses may be shown photographs as part of the investigation. It is important, therefore, that those who show photographs to witnesses should first determine whether the purpose is to provide evidence in the case, or whether it is to further the investigation.

Conclusion

9. In this case, for the reasons we have set out, the circumstances in which the witnesses identified the applicants in the dock was one which ought not to have been allowed and the result is that these convictions are unsafe and unsatisfactory.

Dock identification generally

10. 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 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.

Determination

11. For the reasons which we have endeavoured to set out, we give leave for each of these applicants to appeal against his conviction. We treat the hearing of the applications as the appeal. In each case, the appeal is allowed and the conviction is quashed.