HKSAR v. LEUNG KWOK CHUNG

HCCC 252/2020

[2023] HKCFI 2881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 252 OF 2020

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BETWEEN

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REASONS FOR RULING ON VOIR DIRE

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Introduction

1.  The defence objected to the admissibility of the Photograph Identification Parade (Photo ID Parade) participated by a witness Lam Ka-chun (Lam) in which the defendant was positively identified by Lam from an album containing 14 photographs. I held a voir dire to determine the admissibility of such evidence. At the end of the voir dire I ruled the Photo ID Parade evidence admissible. I indicated I would give my reasons at a later stage. This I now do.

Admitted facts

2.  It was admitted that on 7 January 2011, Lam took part in the Photo ID Parade conducted by Superintendent of Police Chow Yat-ming (Chow). Chow was not connected with the investigation of the murder case in question. An album consisting of 14 photographs, one of which was a photograph of the defendant while the other 13 were photographs of actors, was shown to Lam. Lam picked out the photograph of the defendant.

Prosecution evidence

3.  The prosecution called two witnesses for the voir dire. PW1 was Chow and PW2 was the Officer in charge (OIC) of the case, Senior Inspector Cheung Tin-lok (Cheung).

4.  Cheung testified that he took over the case from Senior Inspector Leung Ka Wai, the original OIC of the case, in June 2010. Before the Photo ID Parade, Cheung was aware that during the investigation, a suspect nicknamed “Man Sun Chung” (Tattooed Chung) was mentioned by at least two witnesses, one of them being Lam. Lam only mentioned the nickname of Man Sun Chung and he did not give any description of this Man Sun Chung.

5.  Cheung said Man Sun Chung was believed to be Leung Kwok-chung as a result of police investigation, police record and the police knowledge of triad involvements in the Tai Kok Tsui area. Before Cheung became the OIC, the team responsible for the investigation was already looking for Man Sun Chung.

6.  The compilation of the 14 photographs, which were later shown to Lam, was done by Cheung’s team. A search was conducted by the Criminal Records Bureau at the request of the team, with both the name of Leung Kwok-chung and the nickname of Man Sun Chung, which, according to Cheung, was a usual procedure. A photograph of the defendant surfaced as a result and was numbered “photograph 8” in the album.

7.  Regarding the other 13 photographs, arrangements were made with a company to provide 13 actors. These actors were then photographed with a greyish background similar to that of photograph 8. After the photographs were developed, they were put into the same album and later shown to Lam during the Photo ID Parade.

8.  Both Chow and Cheung agreed that according to the rules, the appearance of actors and the suspect should be reasonably similar. Even though the defendant had facial hair above his lips and on his chin, and all the 13 actors were clean-shaven, both Chow and Cheung found that acceptable, pointing out that the defendant’s facial hair was only a feature of his, while other actors had different features such as dull drooping eyes, disheveled hair and so on. Both Chow and Cheung did not consider the arrangement to be unfair to the defendant.

9.  As to why the Photo ID Parade took place in January 2011 (almost two years after the killing of Tai Lung), Cheung explained that it was due to legal advice given by the Department of Justice (DoJ) shortly before the first trial involving some other defendants commenced in January 2011.

10.  Both Chow and Cheung understood that the witness Lam knew the suspect (defendant).

11.  According to both Chow and Cheung, the explanation of the procedure of the Photo ID Parade was conducted by Chow to Lam. Though Cheung was present, he did not take part or interfere with Lam when Lam looked at the photographs and picked out photograph 8, which took only about 35 seconds.

12.  When Cheung was asked to comment on Lam’s statement taken after the Photo ID Parade that “two police officers explained the procedure” to him at the Photo ID Parade, Cheung was certain it was Chow who had done the explanation. He believed that Lam, when faced with two police officers, had felt that both were giving him instructions, when in fact Cheung did not do so.

Defence case

13.  The defendant did not give evidence or call witnesses for the voir dire.

Grounds of objections by the defence

14.  Mr Richard Donald, together with Mr Richard Sham, advanced 5 grounds of objections, namely:

(a) No description of the suspect was given by the witness Lam;

(b) Police officer involved in the investigation of the case took part in the Photo ID Parade;

(c) The photographs were selected unfairly;

(d) The defendant’s photograph was selected from the Criminal Records Bureau; and

(e) There was a significant delay in conducting the Photo ID Parade.

My consideration of the various grounds

15.  In my view, some of the grounds could be disposed of swiftly.

Ground (b) – Police officer involved in the investigation of the case took part in the Photo ID Parade

16.  It was alleged that Cheung took part in the Photo ID Parade. On the evidence before me, I am satisfied that he did not take part in the Photo ID Parade. He was merely present in his capacity as the OIC of the case, as per the normal procedure. Chow, being the superintendent not involved in the investigation of the case was indeed the only person who had explained the procedure to Lam and conducted the Photo ID Parade.

17.  The authority relied upon by the defence, i.e. R v Gall [1]has no bearing on the present case. In the present case, Cheung did not take part in the Photo ID Parade. More importantly, the suspect (defendant) was not present at the parade as he was still at large.

18.  The observation by the Court of Appeal in Gall: “that a prisoner could well feel considerable suspicion of what might be going on if an investigating officer comes into the parade room, has a look at the parade, has the opportunity to talk to the witness, and then the witness is introduced into the parade…” simply did not apply here.

Ground (d) – defendant’s photo was selected from the Criminal Records Bureau

19.  It was a fact that the defendant’s photograph was taken from the Criminal Records Bureau. However, it is clear that when one looks at the photograph (photo no 8), it does not in any way show that the person shown therein was a criminal. Indeed, care had been taken by the police to ensure that the background of all the 13 photographs showing the actors bore a similar background. I am satisfied that no prejudice would be caused to the defendant if and when no evidence is led as to the origin of photo no. 8.

Ground (e) – significant delay

20.  It is unclear as to why the DoJ advised the police to conduct a Photo ID Parade only shortly before the first trial. Nevertheless, I did not see any unfairness to the defendant, whom as I said, was still at large.

21.  Having disposed of the three grounds, I will now turn to the remaining two grounds.

Ground (a) – no description was given by Lam of the suspect

22.  The defence placed considerable emphasis on the fact that Lam only supplied a nickname of the suspect, i.e. Man Sun Chung (Tattooed Chung) and did not provide any description of this Man Sun Chung. Without a description of what this person was like, there was no basis for the supervising officer to consider how to select the photographs of the 13 actors, the defence submitted.

23.  The defence relied heavily on Code D – Code of practice for the Identification of Person by Police Officers in the United Kingdom.

24.  The prosecution, represented by Mr Derek Lai, with Mr Dimitri Au-Yeung, submitted that Code D is not applicable in Hong Kong, citing in support, inter alia, the case of Ma Ho Fai v HKSAR [2].

25.  Mr Donald conceded that Code D is not applicable in Hong Kong. The defence nevertheless submitted that the principles stated therein should still be observed by this Court.

26.  The prosecution placed heavy reliance on Lam’s written statement and his testimony in the first trial and submitted that this was a clear case of recognition, and not a case of identifying a stranger by Lam. Prosecution submitted it is not necessary for Lam to give any description of the suspect.

27.  I accepted that this was a clear case of recognition by Lam of a person he has seen on numerous occasions over time. I did not find the lack of any description of the defendant cause any unfairness in the Photo ID Parade.

28.  This brings me to the last objection.

Ground (c) – the photographs were selected unfairly

29.  The real complaint by the defence was that the actors chosen were all clean-shaven, whereas the defendant stood out with his facial hair.

30.  Cheung testified that the company arranging for the actors had been asked to supply actors with facial hair but none was available.

31.  Having considered the fact that Lam knew the suspect and this was a clear case of recognition, as opposed to someone identifying a total stranger, I was of the view that supplying photographs of people with differences in their facial feature and / or hair style was not an unfair way to conduct a photograph identification.

Conclusion

32.  I found that none of the grounds of objection had been substantiated. I therefore ruled that the evidence of the Photo ID Parade was admissible in the trial.

33.  I also found that there were no grounds for me to exercise my discretion to exclude such admissible evidence.