HKSAR v. LUK CHIU KI

HCMA 1033/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1033 OF 2003

(ON APPEAL FROM ESCC 1607/2003)

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J U D G M E N T

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1. The Appellant in his case appeals against his conviction. He was convicted after trial of one charge of theft. The evidence at the trial was given by a total of five witnesses. It is the prosecution's case that on the 6th April 2003 at about 4:30 pm, the staff of a company called Access Technology in Room 1007 of Windsor House had become aware of the fact that the property, listed in the charge, had been stolen so they subsequently watched the security video and saw the theft and also had a good picture of the person who allegedly stole the goods.

2. Then they replayed the tape a number of times and on the 26th April, 20 days later, the Defendant arrived at the shop and he was invited into the company to view the same tape. The staff of company said that initially the Appellant admitted that the person in the video was him when shown the initial portion of the tape, but when the whole tape was played to him, including the scene of the theft, the Appellant then denied that it was him.

3. The learned Magistrate at the end of the day did not rely at all on any of the prosecution witnesses' identification because she thought, rightly, that the identification by the witnesses were unsafe. Although she found the witnesses to be truthful and honest.

4. At the end of her statement of findings, the learned Magistrate then said:

"I had the opportunity of observing the video on a number of occasions, of seeing the still photographs from the video and of having the opportunity of observing the Appellant for a substantial period of time during the trial. The court is small in size and the Appellant, as a result, was close to the bench. The Appellant was facially and physically identical to the thief who was shown in the security video. I noted that the Appellant was carrying a black male clutch bag, which was similar to the one shown in the video, when he was intercepted."

5. The learned Magistrate then went on to observe that the record of interview of the Appellant was vague and waffling and therefore she did not appear to have relied on that. She also noted the fact that none of the stolen property was found anywhere at the Appellant's premises.

6. At the end of the day, the learned Magistrate then decided that the thief shown in the security video was the Appellant and therefore convicted the Appellant.

7. Mr Yu, representing the Appellant on the appeal, complained that the learned Magistrate had failed to warn himself of identification evidence before conviction. Mr Yu did cite a number of cases and these cases deal with identification by witnesses and the duty of the judge do give the necessary term of warning.

8. In this case the learned Magistrate did not rely on any identification evidence by the witnesses but on her own identification made in court when she compared the image in the video and the image on the photograph to the Defendant in the dock.

9. Let me say that there is nothing improper here. It is right for the learned Magistrate sitting as a jury to make this comparison between the photograph and the video image against the facial features of the dependant. In a trial by jury, the jury would be entitled to do the same. But paragraph 14 41 of Archbold Hong Kong 2004 said this "photographs taken by video camera are also admissible and the jury should not be prevented from looking at the Defendant in the dock, and then to conclude, if it was safe to do so that the man in the dock was the man in the photograph. But, in doing so, it is imperative for the judge to warn the jury of the perils of deciding whether by this means alone or with some form of supporting evidence that the Defendant had committed the crime alleged." The editors of Archbold also referred to HKSAR v. Lau Tak-keung, [1999] 4 HKC 662. I have no doubt that this is the law in this case.

10. The learned Magistrate, sitting at a jury, in this case should have warned herself either expressly or impliedly of the dangers in this kind of identification. Had the learned Magistrate said that she had warned herself and at the end of the day still felt that the image in the video and the photograph was the Defendant then there can be no complaint.

11. But upon a reading of the learned Magistrate's statement of findings, I cannot find anywhere that she was alive to the issue that she had to warn herself of the dangers before she made the sort of the identification whether expressly or implicitly. And therefore in this case, because that was not done, I feel that the conviction is unsafe and unsatisfactory.

12. And in this case because the only evidence that the learned Magistrate relied upon to convict the Appellant was her own identification from the photograph and video. I cannot allow the conviction to stand, so the appeal is allowed and the conviction of the Appellant is quashed.

13. If the fine has been paid, the fine will be returned to him.

14. The cost of the appeal will be to the Appellant, to be taxed, if not agreed.