THE ATTORNEY GENERAL v. LAU CHI-TIN AND OTHERS

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J U D G M E N T

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1. The Attorney General appeals by way of case stated against the decision of the Magistrate, Mr. H.C. Ho, not to permit a complainant to make a dock identification of defendants whom he knew and had already identified, without first having to give satisfactory descriptions of their appearance.

Preliminary

2. On 15th November 1987 the 3 respondents were jointly tried on five separate charges of blackmailing the victim, Leung Kam-hung, for protection money, contrary to section 23 of the Theft Ordinance, Cap. 210.

3. Leung is the proprietor of a metalware factory at Shek Wu Tong Village in the New Territories, and all the alleged offences took place at his premises. The first two charges - A and B - are in respect of two separate incidents on 11th September 1987 when $1,000 was demanded as a monthly protection fee. The second two charges - C and D - are in respect of two separate incidents on 14th September when $1,000 was again demanded as a monthly protection fee. The fifth charge, E, is in respect of the final incident on 16th September when $750 was demanded as a monthly protection fee.

4. On 15th September, the day before the final incident, Leung had reported the case to the police. On the 16th, he told them to come, and they arrived while the respondents were still at his premises. Leung told the police that they were the 3 persons, and the police arrested them and took them to the police station.

The Trial

5. On the day of the trial, when the Prosecutor asked Leung and his nephew to make dock identifications of the respondents from the witness-box, their counsel objected quoting pages 1010 and 1011 of Archbold (42nd Ed.) which deal with "'First time' identifications in Court". The Magistrate then required Leung and the other witness to describe the 3 blackmailers, before proceeding to make dock identifications.

6. After the descriptions were given, the Magistrate decided they were scanty and fitted too many people, and he disallowed any dock identifications.

7. Submissions of no case were upheld in respect of 2 of the respondents, and the remaining respondent was found not guilty after electing not to give evidence.

The Review

8. On 27th November an application for a review was granted to the prosecution, and on 18th December the review was heard. Crown counsel argued that identification was never in issue, and that the respondents were caught red-handed. But Mr. Mathews for the respondents submitted that, no identification parade having been held, identification was at issue.

9. On 12th January 1988 the Magistrate ruled that nothing had been said to persuade him to reverse his previous decision, and he therefore confirmed it.

The Case Stated

10. Accordingly the Attorney General now appeals against that decision by way of case stated. The Magistrate signed the following case, and it was subsequently amended by annexing the minutes of proceedings under Section 109 of the Magistrates Ordinance, Cap. 227

Case

1. There were two prosecution witnesses:-

PW1 LEUNG Ping-chiu, the victim's nephew (the nephew).

PW2 LEUNG Kam-hung (the victim).

2. The victim was the proprietor of two metalware factories, one located at 89 Shek Wu Tong Village, and the other at Tin Sum Village, Kam Tin, Pat Heung, Yuen Long, New Territories.

3. The nephew assisted the victim in his two said metalware factories.

4. At about 3.30 p.m. on 9.9.1987 while the nephew was working at the Tin Sum factory, three men arrived there. One of them asked to see the boss to have a talk. One of them introduced himself to the nephew as "Hak Chai".

5. The 3 men eventually left, after having been told by the nephew that the boss would be at the Shek Wu Tong factory whose address the nephew told them.

6. At about 3.30 p.m. on 11.9.1987 the victim and the nephew were working at the Shek Wu Tong factory. The same three men arrived at the factory, looking for the boss. The nephew introduced them to the victim. The victim talked to them. They made unwarranted demanded for money. They demanded "protection fee" of $1,000 per month.

7. They left telling the victim they would return later that night.

8. They returned after 6.00 p.m. and the same unwarranted demands were made.

9. At 2.30 p.m. on 14.9.1987 the same three men arrived and made the same unwarranted demanded for "protection fee".

10. They left but returned ten minutes later with three other men, altogether 6 persons. One of them, claiming to be "Hak Chai", said they were there to collect "protection fee". "Hak Chai" told the victim to think the matter over and not report it to the police. The victim told the Court that "Hak Chai" went to the Tai Sum factory once previously.

11. The following day (15.9.1987) the victim reported the incidents to the police.

12. On the 16.9.1987 at 5.50 p.m. the 3 men who made the original demands of the victim at the Shek Wu Tong factory arrived and continued to make the same, or similar, unwarranted demands for money.

13. 4 plain-clothed policemen then arrived (as a result of the victim's information) and arrested the three men on the premises. They were taken away to the police station charged and duly appeared before the Court on 18.11.1987 for trial.

14. The above was the unchallenged evidence of the prosecution.

15. It was agreed by the defence that the three respondents were arrested at the Shek Wu Tong factory in the manner described above.

16. The nephew saw and spoke with three blackmailers on at least three of the five occasions.

17. The victim saw and spoke with allegedly the same three blackmailers on four of the five occasions.

18. The five occasions were each of some considerable duration. No identity parade had been held.

19. The 2 prosecution witnesses were asked by the prosecution to make dock identifications. Defence counsel objected, quoting authorities. I therefore asked the witnesses to give descriptions of the 3 blackmailers first before proceeding to identify in court.

20. In response to my request, the nephew had this to say, "They were about 20 years old. One of them had a short and small build, two of them medium build. The short one wore a white T-shirt on that day. The others are not certain. I don't remember the details of them. One of them identified himself to me. He claimed to be Hak Chai".

21. The victim's description is even more scanty than that of the nephew. The victim described just one, but not the other two, of the blackmailers. The victim had this to say, "5 feet 1 inch. Appeared to me to be 5 feet 1 to 2 inches tall. I am 5 feet 5 inches tall. He is a bit shorter About 20 years old. Normal build^. I asked for his name. He said he was Ah Chi".

22. It was held in R. v. Hunter (1969) Crim. L.R. 262, C.A., that the method of identification for the first time in Court, there being no identification parade, should be avoided if possible. The identifying witness should be expected to take careful note of the defendant's appearance.

23. It was held in R. v. Howick (1970) Crim. L.R. 403, C.A., it would usually be unfair to ask a witness to make an identification for the first time in court because it is so easy for the witness to point to the defendant in the dock.

24. It was held in R. v. Caird and others (1970) 54 Cr. App. R. 499 that it was within the court's discretion to allow or disallow a dock identification.

25. I think identification in court is unsatisfactory because the situation of the accused in the dock makes it almost impossible for the witness to fail to identify the accused and because there is no means of checking the accuracy of the identification.

26. Dock identification in the present case having been objected to by the defence, there being no identity parade beforehand, I had taken the precaution to check the accuracy of any court identification by asking both witnesses to describe the three blackmailers one by one before proceeding to identify. Both witnesses had had considerable conversation with the blackmailers, face to face, on different occasions and therefore had had ample opportunity to observe them very closely. Yet, their descriptions of the blackmailers were scanty and fitted a great number of people. We all know very many people are about 20 years old, small, medium or normal build and measure 5 feet 1 or 2 inches in height.

27. As the distinctive appearances of the blackmailers had not been given by either one of the two prosecution witnesses, I disallowed a dock identification.

28. At the close of the prosecution case defence counsel submitted that the identification evidence (by description) was unsatisfactory as no identity parade had been held by the police. I acceded to this submission and found no case to answer against the second and third respondents.

29. I found a case to answer against the first respondent because there was evidence that one of the blackmailers was referred to as "Ah Chi" and this could have been this repsondent. He did not give evidence and I acquitted him for lack of proper identification evidence.

30. In acquitting I indicated that the police should have held a formal identity parade.

31. The question of law arising for the opinion of this Court is :-

(A) Was I justified in law in asking the prosecution witnesses to give a description of the blackmailers first before they proceeded to make an identification in court, no identity parade having been previously held?

(B) If the answer to (A) is in the affirmative, did either one or both of the prosecution witnesses in the circumstances give sufficient description of the blackmailers to justify them proceeding to make an identification in court?"

11. The questions are drafted with reference to whether the witnesses should have been asked to describe the blackmailers before identifying them in court and whether their descriptions were sufficient. But the real question at issue was whether the Magistrate was right not to allow dock identifications in this case.

"First time" identifications in Court

12. It is of course correct that the practice of inviting a witness to identify a defendant for the first time, when he is in the dock, is undesirable and should be avoided - R. v. Cartwright⁽¹⁾ and Archbold (42nd Edn.) para 14-6.

13. This is because it is like asking a leading question, and it is usually unfair because it is so easy for the witnesses to point to the defendant in the dock - R v Howick⁽²⁾.

14. Dock identifications are legally admissible – R v Watson⁽³⁾.  The power to exclude them lies in the exercise of the court's general discretion to refuse to admit evidence if its prejudicial effect would outweigh its probative value⁽⁴⁾.

15. In this respect the learned Magistrate is in error when he says says at para. 24 of the case stated -

"It was held in R v Caird (1970 54 C.A.R. 499 that it is within the court's discretion to allow or disallow a dock identification."

There is nothing to that effect either in the Criminal Appeal Report or in the parallel report in the Criminal Law Review - viz [1970] Cr.L.R. 656. It is true that Archhold says in connexion with that case that it is

"… within the judge's discretion to allow it (i.e. a court-room identification) in appropriate circumstances" (42nd Ed) para 14-6

But I cannot see the source for this comment, unless it is reported in the Times for 20th August 1970, which is missing from the Supreme Court Library.

16. A court does not have an unfettered discretion to allow or disallow dock identifications, as it thinks fit, and it was not open to the Magistrate to disallow a dock identification in this case simply because he himself feels that identification in court is unsatisfactory (para 25 of the Case Stated).

Prior Identification Parades

17. In R v Cartwright(1) the Lord Chief Justice stated that it would have been "infinitely better", if an identification parade had been held. In England the holding of parades is now governed by the Code of Practice for the Identification of Persons, Code D, under the Police and Criminal Evidence Act 1984. Once a witness has picked out a suspect at a parade he is permitted to identify the suspect in the dock.

18. Following the publication of the Report of Lord Devlin's Committee on Evidence of Identification in Criminal Cases⁽⁵⁾, the Attorney-General of England issued guidelines in cases where identification appeared to be at issue. These are set out in Archhold (42nd Ed.) para 14-1, and paragraph 3 reads -

"… Crown counsel at any subsequent trial will not invite a witness as to identify, who has not previously identified the accused at an identification parade, to make a dock identification, unless the witness's attendance at a parade was unnecessary or impracticable or there are exceptional circumstances."

19. These exceptions reflect existing law, and thus first time identifications in court have been upheld where a defendant has refused to take part in an identification parade⁽⁶⁾ or where a defendant was of unusual appearance⁽⁷⁾ or where an identification parade was impracticable⁽⁴⁾.

20. Further an identification parade is not necessary, where the witness already knows the defendant or is familiar with his appearance.

Where the Witness Knows Defendant

21. Where the witness already knows the defendant, identification of the defendant becomes more a question of recognition.

22. In cases where the degree of familiarity is slight, it would be necessary to hold an identification parade. But where the witness knows him well it would obviously be pointless. Thus Lord Devlin's Committee says -

"A witness who claims to have had a fleeting glimpse of a close relative may, of course, be mistaken, but it is not a claim that could be he tested by a parade"⁽⁵⁾

This seems to have been the position in R v Turnbull⁽⁸⁾, where the principal witness had known Turnbull "for some time". Similarly in Arthurs v A.G. for Northern Ireland⁽⁹⁾ Lord Mooris of Borth-y-Gest said at p. 169 -

"The circumstances of individual cases will, however, greatly differ. Thus there may be cases in which a witness can say that at a certain place and time he saw and clearly recognised the accused person. If the accused person was someone who was well known to him or at least was well known to him by sight and if the conditions at the relevant time were such that there was nothing to impede or to prevent recognition or to make recognition difficult, then a jury would mainly have to consider whether the witness was both truthful and dependable. In the present case the police constable knew the accused well. There was no dispute as to that."

In both cases no prior identification parade seems to have been held.

23. Mr. Bruce submits that this was a similar case. For the 3 blackmailers had come to the victim's premises on 5 separate occasions and each of these were "of some considerable duration" (para 18 of the Case Stated). Moreover the victim Leung saw and spoke with them on four of the five occasions and his nephew saw and spoke with them on at least three of the five occasions (paras 17 and 16 of the Case Stated).

24. Further the learned Magistrate in his decision on the Review noted -

"Both witnesses had had considerable conversation with the blackmailers, face to face, on different occasions and therefore had had ample opportunity to observe them very closely".

25. So Mr. Bruce submits that, as the witnesses had become familiar with the blackmailers and got to know them quite well, they should have been permitted to make dock identifications in court. He says that in such circumstances a prior identification parade was not only not necessary; but that it would have been improper. For the witnesses would be bound to have pointed out the defendants.

26. This must be correct.

The Magistrate's "Test"

27. Mr. Bruce also argues that the Magistarte was in error at para 26 of the Case Stated, when he says -

"26. Dock identification in the present case having been objected to by the defence, there being no identity parade beforehand, I had taken the precaution to check the accuracy of any court identification by asking both witnesses to describe the three blackmailers one by one before proceeding to identify."

28. Mr. Bruce says that there is no authority for holding such a test. Moreover he says that, with the defendants sitting in the dock in full view of the witness, it was silly to ask the witness to give a description of them, because he only had to look over and observe their appearance. So all the objections to a dock identification would apply to such a test, and it would be comparatively easy for an educated witness to describe the men sitting in the dock.

29. It is true that the witnesses' descriptions of the defendants did not satisfy the Magistrate, because they would have fitted a lot of other people as well (para 26 of the Case Stated).

30. But unless a person has unusual characteristics, it may be difficult to describe him in a way that distinguishes him from other people. For there will always be plenty of other people of the same age, build, or height or with similar facial features, and of course all Chinese people have the same coloured hair. Moreover witnesses who are uneducated or of little education may have trouble in expressing themselves accurately. So it is not surprising that the witnesses in this case were not able to give distinctive descriptions of the blackmailers to the satisfaction of the Magistrate.

31. Mr. Mathews, who supports the Magistrate's decision, submits that the evidence of both witnesses was confusing and contradictary, and that it was not right to let them make dock identifications, until a proper foundation had been laid that they knew the blackmailers. So he says the Magistate was quite correct to require this test as a necessary precondition.

32. It is true that the nephew contradicted himself as to whether he had seen the 3 blackmailers earlier on 9th September. He also said that one blackmailer claimed to be Hak Chai, whereas his uncle the victim said that one of the blackmailers said his name was Ah Chi.

33. So Mr. Mathews argues that it was not clear which people came to the victim's premises on the last occasion and whether they were the same as on previous occasions. He also queried whether the 3 people who were present at the victim's premises when the police came were the people who had blackmailed him earlier.

34. The witnesses could have been cross-examined on these points first. Moreover the Magistrate could have decided to disallow a dock identification, if he really thought that, although the evidence was legally admissible, its prejudicial effect would outweight its probative value. Further if he did allow dock identifications to be made by the witnesses, it was still open to the learned Magistrate to decide at the end of the trial what weight, if any, to attach to their evidence.

35. But, as the witnesses claimed to have seen the blackmailers on previous occasions, and seeing that the victim told the police who came to his premises that the respondents were the three persons, I think the learned Magistrate was in error (a) in indicating that the police should have held a formal identification parade (see para 30 of the Case Stated), and (b) in not allowing the witness to identify the respondents in the dock.

36. Moreover I consider he was also in error to require the witnesses to describe the blackmailers first, as a precondition of dock identifications. For it is unfair to uneducated witnesses to expect them to give satisfactory descriptions. Conversely, if they were able to do so, it would no doubt be said they were only describing the men whom they could see in the dock.

Other Identifications

37. The relevant passage in Archhold deals with "first time" identification in court - 42nd Edn., para 14-6. Subsequent identifications are quite different and they are normally permitted, without the necessity of holding a prior identification parade.

38. Thus objection is not usually made to a dock identification where -

(1)    the witness has already picked out the defendant at a confrontation, if the defendant has refused to take part in an identification parade - R v Thorne⁽¹⁰⁾

(2)    the witness has already picked out the defendant's photograph from an album of photographs - George Wong v R ⁽¹¹⁾; R v Seiga⁽¹²⁾

(3)     the witness has identified the defendant very soon after the commission of the offence - R v Christie⁽¹³⁾.

39. If objection is made in these circumstances, the Court can of course disallow the evidence under the general discretion to exclude admissible evidence, if its prejudicial effect would outweigh its probative value - as was envisaged in R v Christie⁽¹³⁾

Previous Identifications

40. As for (3) above, Mr. Bruce relies on R. v. Christie⁽¹³⁾, which I drew to counsel's attention at the start of the argument.

41. That is the leading case on the admissibility of accusations made in the presence of a defendant - viz. that such a statement is not evidence against him, save in so far as he accepts the statement so as to make it in effect his own.

   But the case is also important on the question of the identification of a defendant immediately after the commisson of an offence.

42. The facts were that an indecent assault was committed by a man on a small boy in a field near his home. The boy returned home in distress and told his mother what had happened. She took him straight back to the field where Christie was working. As they went up to Christie, the boy said -

43. "That is the man, mum".

A policeman who was present heard this and asked the boy "Which man?", whereupon the boy went right up and touched Christie's sleeve saying "That is the old man, mum".

44. At Christie's trial, the boy testified what had been done to him and identified Christie as the person who had done it. No objection was taken to his dock identification nor was he cross-examined. But he did not give evidence of his previous identification of Christie in the field, nor did he mention his previous statement in the presence of Christie.

45. It was held that his evidence was admissible in reference to the demeanour of Christie; and also as part of the act of identification. But on the latter issue, the majority considered that, since the boy never gave evidence of his previous identification of Christie, the evidence by his mother and the policeman about what he did and said in the field was inadmissible under the old "best evidence" rule.

46. Nevertheless the following passage from Lord Haldane L.C.'s speech is particularly relevant -

"The only point on which I desire to guard myself is the admissibility of the statement in question as evidence of identification. For the boy gave evidence at the trial, and if his evidence was required for the identification of the prisoner that evidence ought, in my opinion, to have been his direct evidence in the witness-box and not evidence of what he said elsewhere. On this point I share the doubt which I understand is to be expressed by my noble and learned friend Lord Moulton. Had the boy, after he had identified the accused in the dock, been asked if he had identified the accused in the field as the man who assaulted him, and answered affirmatively, then that fact might also have been proved by the policeman and the mother who saw the identification. Its relevancy is to shew that the boy was able to identify at the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or a mistake. But beyond the mere fact of such identifi-cation the examination ought not to have proceeded."

47. It was not necessary for the boy to repeat his identification of Christie in the field, because no objection was made in respect of his dock identification.

48. But it is quite clear from Lord Haldane's speech that his dock identification was regarded as reliable, because it would have been confirmed by his earlier out of court identification.

49. Mr. Mathews has pointed out that this passage is obiter, and he is of course strictly correct.

50. But it is very strong obiter, and it shows that, where a witness has made an out of court identification on some previous occasion, he is permitted to make a dock identification.

51. Mr. Mathews makes the further point that in Christie's case no objection was taken by the Defence to the boy's dock identification of Christie, whereas he (Mr. Mathews) did object to the victim's identification of the respondents in the present case. But the facts in Christie's case and in this case are very similar. Christie's counsel never took the point either at the trial or on appeal, and none of the judges on appeal suggested that objection should have been made. So I think it follows that Mr. Mathews' objection should not have been allowed, unless in view of the special circumstances of this case the learned Magistrate had decided to exercise his general discretion to exclude it - which he did not do.

52. In Christie's case, the boy said in the field soon after the offence "That is the man, mum" and was later allowed to make a dock identification.

53. In this case, the victim testified that, when the police came to his premises while the respondents were still there -

    "I told the police officers that they were the three persons".

54. As Mr. Bruce says, this must mean that the three he identified were the three who had come and blackmailed him on the 5 previous occasions.

55. To borrow Lord Haldane's words, Leung's identification of the respondents immediately after the offence shows that he was able to identify them at the time, and that excluded the idea that a dock identification by him would be an afterthought or a mistake.

The Questions

56. This was not a first time identification of the respondents. So it would have been both safe and lawful to have allowed a dock identification in these circumstances, and the Magistrate should not have upheld Mr. Mathews' objection or insisted on requiring the witnesses to describe the blackmailers before allowing them to make dock identifications.

57. Accordingly the answer to question A is No, and question B does not therefore arise.

Conclusion

58. In these circumstances I allow this appeal. I remit the case under section 119(1)(d) of the Magistrates Ordinance and order that the trial be heard de novo by another magistrate.

59. If the victim gives evidence again that he identified the 3 respondents to the arresting police officer and that is confirmed by the officer, that will be a sufficient foundation to allow a dock identification, unless there are special circumstances jusitfying the exercise of the Magistrate's general discretion.

60. I would conclude by observing that, if the victim is permitted to make a dock identification, at the end of the case it is for the Magistrate to decide what weight, if any, is to be attached to the victim's evidence.

(1) [1914] 10 CAR 219

(2) [1970] Cr. L.R. 403

(3) (1817) 2 Stark NP 116, 128

(4) R v Horsham Justices (1982) 74 C.A.R. 291

(5) Cmd 338 (1976)

(6) R V John [1973] Cr. L.R. 113

(7) R v Hunter [1970] Cr. L.R. 413

(8) [1976] C.A.R. 132, 140

(9) [1971] 55 C.A.R. 161 (H.L.)

(10) [1981] Cr. L.R. 702

(11) Cr. App. 356/85

(12) [1961] 45 C.A.R. 220

(13) [1914] AC 545