HKSAR v. OKAFOR CHRISTIAN

CACC 20/2021

[2025] HKCA 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 20 OF 2021

(ON APPEAL FROM HCCC NO 198 OF 2019)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  The applicant (D2 at trial)  and Christine Chrilline (D1 at trial)  were jointly charged with trafficking in a dangerous drug, namely 720 grammes of a crystalline solid containing 720 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance (Cap 134). After a trial before Deputy High Court Judge Douglas Yau (as Douglas Yau J then was)  (the judge)  and a jury, D1 was acquitted while the applicant was convicted of the trafficking offence. On 6 January 2021, the judge sentenced the applicant to 22 years and 2 days’ imprisonment.

2.  On 1 February 2021, the applicant filed a notice for leave to appeal against his conviction.  Mr James McGowan, who represented the applicant at trial, filed Perfected Grounds of Appeal against Conviction dated 6 August 2021, setting out five grounds.  He supplemented those grounds by filing an Amended Perfected Grounds of Appeal against Conviction dated 12 October 2021 with two additional grounds.  At the leave hearing on 3 December 2021, Mr McGowan appeared on behalf of the applicant and leave was refused on the seven grounds of appeal by the Single Judge[1].

3.  By notice dated 8 December 2021, the applicant applied to renew his application for leave to appeal against his conviction. In a letter dated 11 August 2022, Mr McGowan informed the court that the applicant wished to renew Grounds 2, 3, 5, 6 and 7 of the Amended Perfected Grounds of Appeal.  In a subsequent letter dated 26 August 2022, Mr McGowan informed the court that on further consideration Ground 4 would also be renewed.

4.  We will refer to the grounds of appeal in their original order.  Ground 1 is no longer pursued.  Ground 2 complains that the CCTV images and “screenshot” photographs of a man walking with D1 were of such poor quality they should not have been used to convict the applicant.  Ground 3 avers that given the overall evidence in the case, the jury should have been directed in accordance with Specimen Direction 108, II A (an example of CCTV identification plus photographs, available to the jury).  Ground 4 avers that in the circumstances of the trial, the judge’s directions on inferences were insufficient.  Ground 5 complains that as the jury had not reached a verdict by 8:00 pm on 5 January 2021, having been “tied” at 4 to 3 since about 4:00 pm, they should either have been discharged or informed, without the option of sitting longer, that they must retire for the night and resume their deliberations in the morning.  Ground 6 avers that the jury should, in the circumstances, have been informed that it was permissible for them to “fail to agree”.  Ground 7 alleges that, in the circumstances, the applicant’s conviction was unsafe and unsatisfactory.

5.  At the initial hearing of the renewal application on 26 September 2023, Mr McGowan had not referred to any relevant case authorities regarding the issue raised under Ground 3 of the necessity for an identification direction to the jury in respect of photographic images that were alleged by the prosecution to be of the applicant.  The Court referred counsel to various authorities and directed that they address the relevant principles in supplemental written submissions.  The hearing was refixed in consultation with counsel’s diary to 5 September 2024.

The prosecution case

6.  On 7 June 2018, an airmail parcel arrived in Hong Kong from Mexico.  According to the Waybill attached to the parcel, it was addressed to “Alpha Sesay, Flat A1, 6/F Mirador Mansion, 56-64 Nathan Road, Tsim Sha Tsui, Kowloon, Hong Kong, telephone number +852 52319040.”  Customs officers examined the parcel and found inside a number of household and personal items, including three boxes, each containing a metal thermos flask with the dangerous drugs concealed in the base of the flasks.  There was also a delivery note inside the parcel, setting out the same particulars as those on the Waybill.[2]  The applicant’s mobile telephone number was written on a piece of paper stuck on the parcel, although neither he nor D1 was named as its recipient.[3] 

7.  Customs officers repacked the parcel and mounted a controlled delivery operation.  In the afternoon of 9 June 2018, a SpeedPost Notification Card was delivered to the name and address on the parcel, instructing that the parcel could be collected at the Tsim Sha Tsui Post Office (the Post Office).

8.  Shortly after midday on 11 June 2018, D1 went to the Post Office to collect the parcel.  She was served by a Customs officer, posing as a postal worker.  She told him that she was collecting the parcel for a friend.  She produced an application for a Hong Kong Permanent Identification Card and a photocopy of a passport in the name of “Sesay Alpha”.  She signed a copy of the Waybill and was given the parcel at about 12:38 pm.  As she left the Post Office, she was intercepted by Customs officers, who arrested and cautioned her.[4] She described a black man who had given her the Speedpost Notification Card and had accompanied her to the Post Office.  Customs officers searched the vicinity of the Post Office for anyone who fitted D1’s description of the man but were unsuccessful.

9.  A team of Customs officers were dispatched to the address on the Waybill of the parcel, Mirador Mansion, where the applicant was seen queueing at the ground floor lift lobby.[5]  A Customs officer (CO1666)  took a photograph of him to show his colleagues (Exhibit P72).[6]  As the Customs officers were about to intercept the applicant, he left the queue and ran into a staircase. He was pursued, and after a chase through the building and out onto Nathan Road, he was caught and arrested.[7] During the chase, CO1666 saw the applicant discard an LG mobile telephone.[8]  A subsequent examination of the LG telephone revealed that a call had been made to D1’s telephone number, 66139338 (although not answered), when she had been in the Post Office for some 10 minutes.  In addition to the LG telephone, CO1666 found in the applicant’s possession three other mobile telephones, one Nokia telephone and two Samsung telephones, and two separate SIM cards.[9]  The number of the Nokia telephone matched the telephone number written on the Waybill of the parcel.[10]

10.  The CCTV recordings from a shop on Minden Row, Tsim Sha Tsui, were agreed and produced by way of an admitted fact (Exhibit P73).[11] They showed that at about 12:35 pm on 11 June 2018, a woman and a black man were seen walking in the direction of the Post Office.  It was not in dispute that the woman was D1.[12]  It was the prosecution case that the CCTV footage depicted D1 and the applicant walking together as the two persons were similar in appearance and dress with D1 and the applicant when each was arrested.  The prosecution referred to the attributes of the black man in the CCTV footage and submitted that when comparing that person with the man in the photograph taken by CO1666 (Exhibit P72), it could be inferred that they were the same person.[13]  The applicant also produced copies of newspaper photographs of D1 and the applicant (Exhibits D2-2F and 2G)  taken after they had been arrested to show that the man in the CCTV footage was not the applicant, but the prosecution submitted they were the same person as they were similar in appearance and dress.

11.  It was the prosecution case that based on the CCTV footage and the timing and the circumstances of the relevant events (the telephone call by the applicant to D1 when she was in the Post Office; the applicant’s presence at Mirador Mansion; the applicant fleeing when confronted by Customs officers; the discarding of the LG telephone; and the possession of the Nokia telephone, which bore the same number on the Waybill), the applicant arranged and controlled the collection of the parcel with the intention of taking possession of it, knowing that it contained dangerous drugs.[14] 

The defence case

12.  Neither the applicant nor D1 gave evidence. D1’s defence was that she had no knowledge of the presence of the drugs in the parcel.  The applicant’s defence was that he did not know D1 and had nothing to do with the parcel.[15] He submitted that the CCTV footage and the screenshot photographs were of poor quality and no meaningful identification or comparison could be made.[16]  He challenged the prosecution evidence that the Nokia telephone was found in his possession and that he discarded the LG telephone.[17] 

The applicant’s submissions

13.  We will address the grounds of appeal in the following manner.  Whilst Ground 1 is not pursued, it is appropriate to briefly discuss this ground as it has some relevance to the grounds dealing with the issue of the identification of the applicant.  Grounds 2 and 3 will be dealt with together as they concern the state of the evidence and the judge’s directions to the jury in respect of the CCTV footage and the photographs. Ground 4 concerns the judge’s directions on inferential reasoning.  Grounds 5 and 6 will be dealt with together as they concern issues in respect of the duration of the jury’s deliberations.  Ground 7 alleges that the conviction was unsafe and unsatisfactory, which stands or falls on the previous grounds of appeal.

Ground 1

14.  The Customs officers took D1 to confront the applicant, whom she later identified in his absence as the man who gave her the mail collection card and the copy of the passport.  In addressing the identification of the applicant by D1, the judge reminded the jury that “where identification involves recognition”, mistakes are sometimes made, even by close friends and relatives, and that this was a matter that should be taken into consideration.[18] He also told the jury in emphatic terms throughout his summing-up that the confrontation identification by D1 was only relevant to her case and could not be used as evidence against the applicant. 

15.  As pointed out by the respondent, the applicant and D1 were separately represented by counsel, and the applicant made no application for a separate trial or to exclude the confrontation evidence or the CCTV evidence.  The respondent also points out that despite the fact that the confrontation identification was only admissible against D1 and was inadmissible against the applicant, Mr McGowan extensively cross-examined the Customs officers regarding the circumstances of the confrontation.

16.  In the circumstances, given that the judge fairly and comprehensively dealt with this issue, it is understandable why the complaint about the confrontation identification was not pursued.

Grounds 2 and 3

17.  Mr McGowan submits that the CCTV footage and the photographs of the man walking with D1 were of poor quality and should have been withdrawn from the jury. 

18.  Although Mr McGowan notes that the judge gave the “usual Turnbull warning” to the jury that mistakes in recognition of others are sometimes made and that they should consider this when deciding whether D1 had correctly identified the applicant, he argues that this direction would have been “at the very least confusing” to the jury because it was given in the context that D1’s identification evidence was only admissible against D1 and could not be taken into account in the case against the applicant.  He further argues that the jury should at least have been directed in accordance with the specimen direction that deals with identification by visual images, namely Specimen Direction 108, II A, which is a sample direction to be given where CCTV identification plus photographs are relied upon.[19]

19.  The respondent submits that the jury was not asked to compare the face of the black man in the CCTV footage with the face of the applicant in court.[20] Instead, the jury was asked to compare four attributes of the man seen in CCTV footage (Exhibit P73)  with the photographs of the applicant: the one taken by CO1666 at the lift lobby of Mirador Mansion (Exhibit P72)[21]; and the two produced by the applicant, a landscape photograph photocopy and a photograph from the Apple Daily newspaper (Exhibits D2-2F and 2G respectively)[22].  The four attributes that the jury were asked to compare of the man in the CCTV footage with the photographs of the applicant were his skin colour; the cap he was wearing; the upper garment he was wearing; and his build.

20.  The prosecution invited the jury to assess the man in the CCTV footage with photographs of the applicant.  In particular, they were asked to draw the inference, by comparing the man in the photographs with the man in the CCTV footage, that the applicant was the person captured in the CCTV footage walking alongside D1 before she collected the parcel.[23]

21.  The judge reminded the jury of the defence case at the beginning of his summing-up:[24]

“In relation to the 2^nd defendant, the defence put forward on behalf of the 2^nd defendant by Mr McGowan, is that he had nothing to do with the parcel. He knows nothing about the parcel and that he had no knowledge of the presence of the drugs inside the parcel and he did not know the woman who went to collect the parcel. It is his case and also what he had told the Customs officers when he had the opportunity.

It is suggested by Mr McGowan, on behalf of the 2^nd defendant, that there are gaps in the evidence, that the LG phone and the Nokia phone were never in his possession and that he had never thrown the LG phone down while chased along Nathan Road. Mr McGowan also suggested that the quality of the CCTV footage is so low that it is impossible for you, the jury, to make a proper comparison and to find that the upper garment, the hat or the cap, the skin colour and the build of the person in the footage was the same as D2, as shown in the defence exhibit photos as well as the photo of D2 taken by Customs officer 1666 at the lift lobby of Mirador Mansion.” (Emphasis added)

22.  When specifically addressing the issue of the man in the CCTV footage, the judge directed the jury not to compare the face of the man in the CCTV footage with that of the applicant sitting in court, as that was not what the prosecution sought to do.  He reiterated what the prosecution asked them to do, namely, assess the evidence on whether the black man seen in the CCTV footage was the applicant:

“… The prosecution say that the jury can, first of all, draw the inference that D2 is the black man seen in the CCTV footage walking next to the woman. They say, first of all, you can draw the inference that, or you can find that D2 is the black man seen in the CCTV footage walking next to the woman, okay.

The prosecution do not ask the jury to compare the face you see of the black man in the CCTV with the face of D2 in court. The prosecution do not ask the jury to compare the faces, the face in the CCTV, if you can see it, and the face of D2 in court. They are not asking you to do it. They are not asking you to do that and I, as the judge, I am directing you specifically to not do that. You are not allowed to compare the face of the person in the CCTV, the face, with the face of D2 in court. You are not allowed to do it and you are not to do it, okay.

Instead, the prosecution ask the jury to look at four things, skin colour, the hat or the cap or whatever you want to call that, the hat, the cap, skin colour, the hat, the upper garment and the build of the man in the CCTV and compare these four attributes with the person shown in the photo taken by 1666 at the lift lobby of Mirador Mansion, that is in P72 photo, and also with the person shown in the photo from the lift lobby of Mirador Mansion this time produced by D2 through Mr McGowan. Remember it is a landscape photo photocopy and then D2 is the person on the right-hand side with the cap and then they talked about the tummy with the witnesses, yes? That is the photo.

So the prosecution is asking the jury to look at the skin colour, the hat, the upper garment, the build of the man in the CCTV and compare these four attributes with the person shown in the photo taken by CO1666, the photo of D2 produced by D2 as well as the photo from Apple Daily, also produced by D2 in evidence. The prosecution say that, having made the comparisons, they say that the only reasonable inference must be that the black man in the CCTV at 12.33.34 counter was D2 and they say that the woman arrested for collecting the parcel was the same woman who was walking next to D2 in the CCTV. They refer to the clothing of the woman as well.”[25]

…

“So what the prosecution is asking you to do is, first of all, make a finding that D2 is the man in the CCTV based on some facts, the attributes, the skin colour, the hat, upper garment and the build of the man on the CCTV, compare it to the photographs produced by the defendant and CO1666 and find that it was D2 in the CCTV.”[26] (Emphasis added)

23.  Having addressed the jury on the prosecution case on the issue of the applicant’s identification in the CCTV footage, the judge then summarised for the jury the defence case:

“Again, it is Admitted Fact that D2 was later seen waiting at the ground floor lift lobby of Mirador Mansion by Custom officers and it is not disputed that D2 was the person who was arrested by Custom officers on 11 June 2018. Although counsel for D2, Mr McGowan, did raise matters concerning the manner of the arrest but the actual fact that it was D2 who was arrested on that day who is seen in the Apple Daily photo that is not in dispute. The identity is not in dispute.”[27]

  …

“Mr McGowan also talks about how you are not able to rely on the CCTV footage to find that the black man seen in the footage was in fact D2. He pointed out that the person in the footage appeared to look different to the image of D2 in Defence Exhibit D2, Exhibit 2, photo A is the CCTV capture, photo G is the lift lobby of Mirador Mansion, with a bigger tummy. That is the photo he was talking about.

Mr McGowan points to the two T-shirts the defence produced to suggest that the upper garment worn by D2 that day, as seen in photo F the Apple Daily photo, he said it is likely to be commonly found. It is a t-shirt commonly found. Mr McGowan also points out that the cap, the hat that D2 was seen wearing, both in the photo taken by 1666 and in the big tummy photo of D2 taken in the lift lobby of Mirador Mansion, Mr McGowan said the hat has not been produced in evidence. We do not actually have the hat. We only have the image of D2 wearing a hat.

The case of D2 in relation to the person seen in the CCTV footage is that, Mr McGowan says, the prosecution cannot prove to the jury so that you are sure that the black man in the CCTV footage was D2. That is Mr McGowan’s submissions.”[28] (Emphasis added)

24.  Mr McGowan, in his closing address to the jury, extensively discussed the prosecution case that the man in the CCTV footage was the applicant.  He said:

“But if you go to D2, the same collection of photographs I’ve just invited you to look at, you can see a large photograph at A taken from the same CCTV clip. You can see the time on it. And you can see -- you can’t see all that much of the man, but you can see he’s wearing a cap with something written across the front, some sort of logo or message. Where would you -- is there a photograph of the defendant’s cap that is seized? It’s on his prisoner property list, his cap. Is there a photograph of that cap been provided to you to help you decide that this man in the photograph is the defendant because the same cap was taken and held as part of the defendant’s property? No, there isn’t such a photograph produced.

The defendant, as we heard from the inspector and indeed from the second set of Admitted Facts, was in custody until 21 June 2018 when he was granted bail. Where’s a photograph of the defendant wearing the shirt that he was caught in? The prosecution haven’t presented that. They’re relying on this ‘lap sap’ photograph which isn’t at all clear.

Now, I accept that colours change and -- not just with lighting, but with aspects and so on. But you have, and you will have, Exhibit D1, two other purple and black striped T-shirts. How common or how rare is the T-shirt that you can see something of the man wearing in this photograph before you can use it properly to make a definite identification of the defendant? Again, there’s no evidence from the prosecution case other than this photograph. What has been produced by the defence are the two other photographs in this bundle at F and G. And I’ll come back to those later when I invite you to look again at photograph D2, D2A and the prosecution examples of it.

And yet, members of the jury, despite the lack of the proof of the defendant’s cap, the prosecution are inviting you to find that what we can see in that photograph is what the defendant was wearing and therefore the 2^nd defendant on that day. [29]

…

… The only photograph you have been given is the very poor one of Mr Okafor’s back standing in the lift queue taken by CO1666.

Right, so that’s the state of that. Now you’re being asked to make an identification using the photographs and the CCTV. Now, his Lordship, I’m sure, will give you directions about the dangers of making identification evidence. It’s very easy to make mistakes, it’s very easy perhaps to make assumptions. There are safeguards which exist, which have been referred to perhaps almost in the shorthand between myself and some of the prosecution witnesses. Identity parades where people of similar appearance are lined up, the suspect is in that parade -- on that parade if he wishes to participate, and the person, the witness, looks at a choice to make the selection, and even that doesn’t always work. There are even then wrongful identifications.

But you’re not being asked to do something like that, you’re being asked to look, as I’ve said, at this picture and the CCTVs, and to conclude that the person, the man walking with Ms Chrilline, is Mr Okafor. Now, she admits that it’s her, and indeed perhaps if you look at the dress she’s wearing and you look at the photograph again the defence have provided - she’s at the rear of this, at the airport - it must be, I’d suggest in the circumstances, Ms Chrilline. But the defendant, the 2^nd defendant doesn’t admit that. He admits that he was in Mirador Mansions, he’s never denied that, and indeed there’s a picture of him here.

Now, that may not be very helpful either, but I would suggest that it shows that the defendant, as I think one of the witnesses who undoubtedly agreed, he was tubby and had a tummy on him, whereas if you look at the photograph that you’re being invited to make comparisons with - and I fully accept that that is not perhaps the ideal angle, that’s not the 2^nd defendant’s fault - doesn’t that shows somebody who is much taller or taller? Certainly taller than Ms Chrilline, but she’s not a very large lady. But is also thinner than Mr Okafor was and is. And for a more comparative picture, you’ve also got the one which is at F, and you can see. And again I’d suggest that is a different shaped man than the one in Minden Row.

What can you actually see in the Minden Row shots? Somebody, a black man in some sort of striped top. Is the prominent colour blue? Is it purple? What sort of shirt is it? What sort of shade of shirt is it? And it seems to change as the light changes. You’ve got, as I’ve said, Exhibits D1 and D2. Have a look at that. How can you be sure that the shirt is the same as the one we can see in the arrest photos? The arrest photos have a pair of -- I’m not be sure what the fashionable expression is, but the striped tears created deliberately in them, are those visible in the other photographs? Were they described by the 1^st defendant when describing the man she spent some time with that morning? No. There is no indication, I’d suggest in these photographs, really of what the lower garments were, the colour, length, and indeed again Ms Chrilline doesn’t provide any help with that.” [30]

25.  As is apparent from Mr McGowan’s closing address, he submitted to the jury that the applicant was not the man in the CCTV footage because of certain differences between them.  He submitted that the man in the CCTV footage was taller; thinner (noting that the applicant was “tubby” with a “tummy”); different in shape; and wearing a different shirt (questioning the colour and striped tears of the shirt). 

26.  We should point out that the CCTV footage[31] and the photographs of the applicant produced by the prosecution[32] and the defence[33] were adduced into evidence by agreement or without objection.  There was no challenge to the authenticity of these images, although the defence argued that they were of poor quality.[34]  Photographs and video recordings taken at the scene of a crime can be direct evidence of the participation of persons that may be involved and are admissible as real evidence. 

27.  In the present case, the jury were invited to make an assessment of the evidence regarding the man in the CCTV footage.  The prosecution and defence discussed and analysed the evidence concerning the identification of the man in the CCTV footage, putting their respective cases to the jury.  Like all other evidence, it was a matter for the jury to assess and weigh, which required them to make a comparison between the images of the applicant in the photographs with the man in the CCTV footage.  The judge had reminded the jury of their responsibility to judge the evidence and decide the relevant facts of the case.  Emphasising that it was for them to decide what evidence they should or should not accept, and that they should form their own judgement about the witnesses and which evidence was credible and reliable and which was not.  He also suggested that they may wish to take into account the arguments in the speeches from counsel, but they were not bound to accept them.[35] 

28.  The issue before the jury on this aspect of the prosecution case was whether the black man accompanying D1 in the CCTV footage was the applicant.  The jury were not asked to make a dock identification in the sense that they were to make a comparison between the person in the CCTV footage and the applicant in the dock.  They were specifically instructed not to do so.  Instead, the jury were asked to consider the evidence before them of the CCTV footage and the photographs of the applicant.

29.  It is noteworthy that the prosecution case against the applicant was strongly supported by other evidence that, if accepted by the jury, was capable of implicating the applicant as the man who arranged D1 to collect the parcel.  Customs officers testified that the applicant threw away a LG telephone when they gave chase after him, which, according to the telephone records was used to make a call at 12:50:33 hours to the telephone found on D1.  This was at a time when D1 was already inside the post office in the process of collecting the parcel.  The prosecution also noted that 15 minutes earlier, at 12:35:33 hours, the applicant was seen in the CCTV footage walking alongside D1.  Having reminded the jury of this evidence, the judge went on to say:[36]  

“You see that was what they are asking you, first of all, to draw the inference that the man in the CCTV footage at 12.35.33 was D2 by drawing inferences based on other facts. Then they say that if you are able to draw the inference, if you are able to find the man in the CCTV footage was D2, then they point to the fact that at 12.35.33 D2 was seen walking next to the woman who later collected the parcel.

  Also, the prosecution point to the fact that D2 deliberately threw away the LG phone, the LG phone which was used to call a woman collecting the parcel.  They say that throwing away shows that he knew it was used.  And the prosecution point to the fact that a phone number was written, a phone number written on the piece of paper stuck on the parcel, we’ve seen that photograph, on the piece of paper stuck on the parcel matches the phone number registered to the SIM card of the Nokia phone found from D2’s pocket after his arrest.”

30.  In his initial written submissions, Mr McGowan, in support of his arguments regarding the identification evidence of the applicant, merely referred to pages 14 to 19 of Specimen Direction 108: Identification, Specimen Directions in Jury Trials, 2020 Revision, without citing any authority or addressing the legal principles relevant to this issue. 

31.  As stated in Phipson on Evidence, Twentieth Edition, at Chapter 15-02:

“When a person’s identity is in issue it may be proved or disproved presumptively by similarity or dissimilarity of personal characteristics, e.g. age, height, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history.”

32.  There are a myriad of circumstances where identification evidence may be relevant and adduced into evidence.  The legal principles regarding identification evidence are mainly directed at the quality and veracity of the identification.  The question of what appropriate direction to give, if required, when addressing identification evidence is fact specific. 

33.  The fundamental principles concerning identification evidence are set out in R v Turnbull [37] and apply to the usual case when a witness gives evidence identifying the defendant as the person who has committed or is involved in the crime alleged against him.  In such a case, the specimen direction on identification suggests that the standard direction applies, but it also notes that a direction should be tailored to the case with reference to the circumstances that may affect the accuracy of the identification.[38]  The jury should be warned of the special need for caution before convicting the defendant in reliance on the identification evidence.  They should be told that this special caution is necessary because of the possibility that a witness may be mistaken in his or her identification of the person accused of a crime.  They should be further told that experience has shown that such mistaken identification can happen and that there is a risk of innocent people being convicted on the basis of mistaken identification.  It should be pointed out that an honest witness who is convinced in his or her own mind may, as a result, be a convincing witness, but he or she may nevertheless be mistaken.  In the circumstances, the jury are directed that they must be especially cautious when considering this evidence and that they can only rely on the identification evidence if they are sure it is accurate.  To this end, they should carefully consider the circumstances in which the witness observed the person he or she says was the defendant and whether the circumstances may have affected the reliability of the identification. 

34.  In Attorney General’s Reference (No 2 of 2002) [39], Rose LJ stated that there were at least four circumstances in which, subject to judicial discretion to exclude and subject to appropriate directions, the jury may be invited to conclude that the defendant committed the offence on the basis of a photographic image from the scene of the crime:

(1)  Where the photographic image was sufficiently clear, the jury could compare it with the defendant sitting in the dock: R v Dodson and Williams [40].

(2)  Where a witness knew the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he or she could give evidence of this: R v Fowden and White [41], Kajala v Noble [42], R v Grimer [43], R v Caldwell and Dixon [44] and R v Blenkinsop [45]; and this might be so even if the photographic image was no longer available for the jury: Taylor v Chief Constable of Chester [46].

(3)  Where a witness, who did not know the defendant, had spent time viewing and analysing the photographic images from the scene, thereby acquiring special knowledge that the jury did not have, he or she could give evidence of identification based on a comparison between those images and a reasonably contemporary photograph of the defendant, provided that the images and the contemporary photograph were available for the jury: R v Clarke and Peach [47].

(4)  Where the witness was suitably qualified in facial mapping he could give opinion evidence of identification based on a comparison between images from the scene (whether expertly enhanced or not)  and a reasonably contemporary photograph of the defendant, provided both were available to the jury: R v Stockwell [48], R v Clarke [49] and R v Hookway [50].

35.  In Dodson and Williams, two men were involved in an attempted armed robbery at a building society.  There were no available witnesses who knew the defendant.  There were photographs available to be placed before the jury taken from security cameras.  The case demonstrates that it is permissible for the prosecution to place before a jury photographs taken by a security camera and then invite the jury to conclude that the offender shown in the photograph is the defendant in the dock. Watkins LJ said that a jury, in performing such task, were not acting as experts, but were doing no more than the average person “in domestic social and other situations” does from time to time, “namely to say whether he is sure that a person shown in a photograph is the person he is then looking at or who he has seen recently.”[51] He added that it is imperative that they should be warned of the perils of deciding, whether by this means alone, or with some form of supporting evidence, that a defendant has committed the crime alleged.  He said no particular form of words or formula was required provided they were warned of the dangers and difficulties in making an identification from photographs, and the fact that photographs may give different impressions of the same person.

36.  In R v Downey [52], the Court of Appeal referred to the remarks of Watkins LJ but explained there was no invariable rule that, when a jury had to consider whether the person shown a photograph was the defendant, they had to be given a specific direction on the dangers of relying on such evidence.  The Court held that the appropriate direction depended on the circumstances of each case and, when no special factor arose, the absence of a specific direction could not by itself amount to a misdirection. 

37.  In Blenkinsop, the Court of Appeal referred to a general and invariable requirement that the jury should be warned of the risk of mistaken identification and of the need to exercise particular care in any identification which they make themselves, which was cited with approval by the Court of Appeal in R v Ali [53].

38.  In R v Shanmugarajah [54], the Court of Appeal considered the conflict between the judgments in Downey and Blenkinsop and held that the approach and analysis in Downey was correct.  The appellant in that case, had been one of a group of men who had been involved in an attack on a woman.  There was no witness identification of the appellant, but the jury were invited to compare him with a person shown in a still photograph taken from a CCTV recording of the incident.  On appeal, it was complained that the judge had failed to give a direction as to the dangers of identification evidence, and had failed to direct the jury that they should not compare the CCTV still photograph with the appellant if they found that the quality of the image was poor.  The Court dismissed the appeal on the basis that there was no invariable or inflexible rule that a jury had to be expressly warned in every case of the risk that they might make a mistaken identification, and whether a warning was required depended on the facts of the case.  The Court noted that this was not a Turnbull situation.  The question was whether there were any factors which required a particular kind of warning and whether the judge’s directions to the jury had fallen short of those required.[55]  The judge had directed the jury very carefully as to how they should approach the image they were being asked to compare with the appellant, warning them that they should bear very much in mind its quality and clarity.  While the judge did not explicitly direct the jury as to the need for caution, that was the effect of what he said. 

39.  As seen from our review of several key authorities on the issue of identification evidence, the approach or directions that should be given when dealing with identification evidence will depend upon the particular facts and circumstances of the case.  However, we wish to stress the importance of an appropriate warning where evidence of visual identification is given, particularly where the case against the accused depends wholly or substantially on the correctness of that evidence.  Specimen Direction 108 deals with the range of situations where identification evidence needs to be appropriately and carefully addressed.

40.  We considered the New Zealand case of Matara v R [56] to be a useful reference because of the similar circumstances between that case and this one.  In that case, Matara was convicted after trial of stealing a car and robbing an antique shop together with Tamala and Eruera, who pleaded guilty to the charge.  The issue at trial was whether Matara was the third offender.  The prosecution case was that the three robbers arrived at the antique shop with the stolen car at about 10:00 am.  Matara, a person of stocky build, had a balaclava covering his head, and Tamala armed with knives, got out of the stolen car and of the shop, while Eruera was responsible for driving the stolen car.  Tamala accidentally stabbed himself when leaving the shop, as a result of which they later went to a hospital.  The evidence against Matara was purely circumstantial.  It comprised evidence of text messages, cellphone tower data tracking the location of cellphones at particular times, CCTV footage from the shop, the evidence of a witness seeing the offenders leave the shop, undisputed CCTV footage from the hospital shortly after the robbery, the fact that the Matara did not appear for a scheduled appearance at a court hearing at 10:00 am on the day of the robbery but did appear shortly before the lunch adjournment, and CCTV from a hotel later in the day of the robbery, in which the Matara was shown carrying a bag similar in appearance to that described by the witness referred to earlier.

41.  The New Zealand Court of Appeal rejected the ground of appeal that the trial judge had failed to give adequate directions to the jury about its use of the CCTV footage from the antique shop, and, in particular, failed to caution them of the dangers of making their own identification based on resemblance to Matara, from comparing the poor quality CCTV footage of a man wearing a balaclava with photographs of Matara taken at the time of arrest, and his appearance in court.  It was held that the requested cautionary direction was not necessary as the CCTV footage from the antique shop was not used as direct visual identification evidence, but as evidence of the third offender’s build, which was one of the many strands of circumstantial evidence relied upon by the prosecution:

“[19] We are not persuaded that the Judge erred in not giving the jury a ‘resemblance evidence’ warning. We do not consider that such a warning was required. First, this was not a case where a witness has given ‘resemblance evidence’, as was the case in Turaki.[57] Secondly, this was not a case where the CCTV evidence was the sole basis on which the jury could find that Mr Matara was the third robber, as was the case in Nikolovski.[58]

[20] As was evident from the Crown’s opening and closing addresses, the Crown case did not turn on identifying Mr Matara from the CCTV from the antique shop. Rather, the Crown case was made up of a number of strands of circumstantial evidence and the CCTV coverage from the shop was but one piece in a jigsaw puzzle (as the prosecutor put it).

[21] The Crown did not suggest that Mr Matara could be identified from the CCTV footage from the shop; the prosecutor said it was ‘not definitive proof of itself of who that third person was because, of course, the face is covered’. The prosecutor suggested to the jury that the CCTV evidence gave ‘clues’ as to who the third offender was (in particular as to that offender’s build)  which the jury might find ‘compelling’.

[22] Had the CCTV coverage from the shop been the only identification evidence, then a cautionary direction may well have been required. However, it was not. There were many threads of circumstantial evidence from which the jury could reasonably conclude that Mr Matara was the third offender.”

42.  In the Addendum of the judgment of the Scottish High Court of Justiciary in Gubinas v HM Advocate [59], endorsed the reasoning expressed in Shanmugarajah and Matara.

43.  In similar circumstances in this case, the judge emphasised with the jury the defence case that the quality of the CCTV footage was poor, setting out the defence criticisms of any comparison between the man in the CCTV footage and the applicant.  However, this case is different in that the jury were not being asked to make an identification between the man in the CCTV footage and the applicant in the dock but of photographs of the applicant instead.  The jury were invited to evaluate the evidence on whether the man in the CCTV footage was the applicant.  They had before them evidence that had been produced by both the prosecution and the defence, depicting photographs of the applicant, in order to compare the photographs of the applicant with the man depicted in the CCTV footage.  The parties had made lengthy submissions to the jury on whether or not they could identify the applicant as the man in the CCTV footage.  The jury were asked to do no more than what they were instructed to do, that is to evaluate the evidence.  The parties had put their respective positions, and it was for the jury to consider the evidence and make a determination.  In light of the issues raised by the parties about this evidence and the submissions that they made to the jury, there can be no question but that the jury would have evaluated this evidence with care. 

44.  We have no doubt that when the judge warned the jury about mistakes being made when identifying someone through recognition, even by someone who was close or familiar with the person, the jury would have treated this as a general instruction, which they would have applied when assessing the evidence of the case.  We disagree with Mr McGowan’s submission that the jury would have been confused by this instruction because it was made in the context of D1’s identification of the applicant. 

45.  In our view, the jury would have clearly understood that they had to exercise care in considering the identification evidence, having been reminded by the judge of the defence submissions on the clarity and quality of the evidence.  We consider that the requirements of the specimen direction[60] had been conveyed to the jury where the exercise is not a comparison with the applicant in court but with photographs of him instead.  This was supplemented by the judge’s directions to the jury on assessing the evidence, circumstantial evidence, inferential reasoning, and the burden and standard of proof.

46.  The judge had carefully put before the jury all the relevant evidence and issues that they needed to consider in the course of their deliberations regarding the identity of the man in the CCTV footage.  The extent to which this was a case involving identification was based on circumstantial evidence, which was quite persuasive.  The applicant’s clothing, physical features and build as depicted in the photographs, corresponded with the man in the CCTV footage. 

47.  It needs to be appreciated that the case against the applicant did not rely solely on the CCTV footage but also consisted of the following matters:

(1)  On 11 June 2018, the applicant was observed waiting at the ground floor lift lobby of Mirador Mansion, the building address of the parcel.[61]

(2)  When confronted by Customs officers the applicant fled the scene and threw away a LG telephone.[62]

(3)  The LG telephone was used to make a call at 12:50:33 hours to D1, who at this time was inside the Post Office in the process of collecting the parcel.[63]

(4)  A piece of paper stuck on the parcel had the telephone number of the registered SIM card of the Nokia telephone retrieved from the applicant’s pocket upon his arrest.[64]

(5)  At 12:35:33 hours, 15 minutes before the LG telephone call, the applicant was seen on CCTV footage walking alongside D1 (when compared with photographs of the applicant taken at approximately the same time).[65]

48.  The prosecution invited the jury to draw the irresistible inference from the above circumstantial evidence that the applicant knew there were drugs in the parcel and arranged D1 to collect the parcel.[66]  We consider that there was a compelling case against the applicant based on this evidence, particularly the evidence relating to the LG and Nokia telephones which linked the applicant to the parcel and D1, and that the points raised in these grounds did not undermine the safety of the conviction.

Ground 4

49.  Ground 4 complains that the judge’s directions on inferences were insufficient and failed to provide the jury with an example of drawing an inference, despite the jury asking what “reasonable” meant in the context of a “reasonable inference”.[67]  The judge gave a faultless direction on inferential reasoning, which was in accordance with the specimen direction.[68]  He told them in clear terms that they could only draw an inference against the applicant if it was the only reasonable inference they could draw on the facts they found proved.  He repeated this instruction when the jury asked a question as to what is regarded as a reasonable inference.[69] 

50.  Mr McGowan relies on the authority of Nguyen Ahn Nga v HKSAR[70] but, with respect, it is not apposite.  That case turned on the reaction and non-reaction of the appellant to being asked if the check-in suitcase belonged to her.  The judge, while giving the jury directions on circumstantial evidence and the drawing of inferences, did not specifically refer to evidence of the appellant’s reaction or the opposing arguments.

51.  Contrary to Mr McGowan’s submission, the judge in the present case, in giving the standard specimen direction on inferences, did so in the context of the evidence.  The judge drew to the jury’s attention that it was the prosecution’s case that from the primary facts referred to, they could draw the only reasonable inference that the applicant was in legal possession of the parcel and he knew there were dangerous drugs inside.[71]  On the other hand, he also referred to Mr McGowan’s submissions and said this: ^[72]

“… If the prosecution cannot prove to the jury so that you are sure that D2 did in fact throw or drop the LG phone and that they cannot prove that he did have the Nokia phone in his pocket, Mr McGowan says then the prosecution’s case against D2 must collapse since this circumstantial evidence that they seek to rely on to ask you to draw the only reasonable inference that he had control and custody over the parcel and that he knew there was some kind of drugs they will not exist anymore and the prosecution’s case must collapse against D2. That is Mr McGowan’s submissions.”

52.  During the jury’s deliberations, the jury asked a question as to “what is regarded as a ‘reasonable inference’”.  After a lengthy discussion between the judge and counsel,[73] the judge gave the classic direction on inferential reasoning, emphasising with them: ^[74]

“… so if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference; that is to say you must not draw the inference that goes against the defendant.”

53.  Having told the jury that there was no direct evidence to prove that the applicant had knowledge of the dangerous drugs,[75] the judge summarised the prosecution evidence and the circumstantial case against the applicant, by which the prosecution invited the jury to draw inferences against the applicant, and the defence’s submissions advocating that such inferences could not be drawn from the evidence.  The judge also directed the jury in terms of Specimen Direction 21.3 of the Specimen Directions in Jury Trials[76], which he later repeated to them[77]. 

54.  In light of the jury’s subsequent questions about inferences, the judge substantially repeated his earlier directions.[78]  Specifically on the meaning of “reasonable” which emerged from his earlier directions that “if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour … in law you must not, you are not allowed to draw the inference against the defendant”[79], the judge told the jury that[80]:

“There is no special legal direction from me on what is regarded as reasonable. What is reasonable is a matter of fact and as such is entirely within the realm of the jury, the judges of facts ... You are the one to decide (or say)  what is or is not reasonable.”

55.  Whilst prosecuting counsel suggested to the judge to give an example to the jury of drawing an inference,[81] it was not necessary in the circumstances given that the judge had provided a full explanation as to the concept of inferential reasoning and the jury did not come back with any further question on this issue. 

56.  This ground of appeal is not sustainable.

Grounds 5 and 6

57.  Grounds 5and 6complain that the jury were put under “time pressure” to complete their deliberations in order to avoid sequestration overnight.  It is submitted that the judge should have asked the jury whether they were close to reaching a verdict before telling them to retire overnight.  Moreover, the jury ought to have been told that should they be unable to reach a verdict which the court could receive, they must say so.

58.  In addressing these grounds, it is appropriate to consider a chronology of the jury’s deliberations:

(a)  The jury was sent out at 10:30 am on 5 January 2021;

(b)  At 4:38 pm, the jury sent a note informing the court of a split in the verdict regarding the applicant.  A discussion with counsel was held in the absence of the jury between 4:38 pm and 4:42 pm during which Mr McGowan suggested that the jury be asked whether, if they were given any more time, they would be in a position to reach a verdict.  The judge agreed.[82]  The jury was brought back into court and directed accordingly and sent out again at  4:46 pm[83];

(c)  The court reconvened in the absence of the jury at 6:13 pm to deal with further questions sent in by the jury, one of which was on the topic of inferences[84] during which the judge and counsel had another discussion[85].  The jury was once again brought back into court at 6:36 pm and directed accordingly.[86]  The jury left the court for further deliberation at 6:52 pm;

(d)  At 8:17 pm the judge made the observation that the jury had only been deliberating for an hour or so after their questions were answered and he was minded to give them more time rather than to ask if they were still at an impasse.[87] Mr McGowan contended that the time had come for the jury to stop deliberating although he was inclined towards seeking a discharge;[88]

(e)  At 8:23 pm, the jury returned and the judge suggested to them to “retire for the night and continue tomorrow at 9.30”[89] and he asked the foreman “is it okay?”[90].  The following exchange immediately took place:[91]

“FOREMAN: Actually, we just need a little bit more time to finish our discussion and provide a verdict.

COURT: I see. I see. This is again not unusual. Sometimes the jury would tell the judge at around 8 or even 8.30 that ‘We need a little bit more time to finish it.’ Again, there is no pressure on you. No time pressure on you. And if it is your view that you just need a little bit more time, say half-an-hour, would that be sufficient or?

UNIDENTIFIED JUROR: 45 -- no, make it 9.

COURT: I see. Again, there’s no time limit, there’s no deadline, okay.

FOREMAN: Yes.

COURT: But I understand what you’re saying. Sometimes you just need to -- you want to continue with the discussion rather than break it up since it’s fresh in your mind and that you are in the middle of discussion. So let me quickly -- because I have to ask counsel for their view as well.

Sorry, Mr Wright, do you have anything to say on that?

MR WRIGHT: Well, my Lord, I’m a great one for listening to the jury, so if they think they might be able to resolve the matter by 9, then I’m happy with that.

COURT: Okay. Okay. But Mr McGowan, you may want to speak to me in the absence of the jury or?

MR McGOWAN: My Lord, if the jury think they have -- can make their decision by 9 o’clock, perhaps they should be allowed to carry on and do so.

COURT: Thank you for your view. Mr Chan?

MR CHAN: My Lord, I defer to the view of the jury.

COURT:  Okay, thank you.  So please continue deliberation. Again, no time limit, no time pressure and -- but by 9 o’clock, I will -- in any event, I will ask you to come back because I will have to stop you because you have been having a long day and I will have to ask you to stop deliberation, okay.  Thank you.”

(f)  At 9:03 pm,[92] the jury returned their verdicts.  They found by a unanimous verdict D1 not guilty, and by a majority verdict D2, the applicant, guilty.

59.  From the chronology and what took place, there was no undue or improper pressure on the jury by the judge to deliver a verdict. After the judge explained the position to the jury, the jury requested more time. 

60.  HKSAR v Amarasinghalage [93] is a case which turned on its own facts where, upon the judge’s direction that the jury were to remain in the court building overnight and resume their deliberations the following morning, some of the jurors evinced their despair and dissatisfaction.  On the next morning, when the court resumed, the judge continued to ask the jury to further deliberate without informing them that should they be unable to reach a verdict, they must say so.  It was in those circumstances that the Court of Appeal held:

“54. We are satisfied that, if the Judge was of the view that, having given the jury the direction that they were to cease their deliberations and resume them the following morning it was too late to make the enquiry of them noted earlier, it was necessary that the jury be told the following morning, before they retired to consider their verdicts that, if they were unable to reach verdicts which the Court could receive, they ‘must say so.’ …”

61.  In the present case, after the jury questions were answered, they had slightly over an hour to deliberate, and the judge rightly acceded to their request for a little more time.  The occasion did not warrant the specimen direction on a split decision.[94]  Nor was it considered necessary by the parties.

62.  As evidenced by the following concluding remarks by the judge in his summing-up, the jury were properly instructed as to what did or did not constitute a verdict:[95]

“You should strive to reach a unanimous verdict. That is a verdict upon which you are all agreed, whether guilty or not guilty in relation to each defendant. If, however, you are unable to do so I am entitled in law to accept from you a verdict upon which at least five of you are agreed. In other words, a verdict of six/one or five/two is still a legally acceptable verdict.

A verdict of four/three, either way, does not constitute a verdict and if that position arises, inform the court by a written note of the fact of that split but not the numbers in favour of and against a particular verdict, and I will direct you further.  So just write four/three.  Do not write four guilty, three not guilty, or four not guilty, three guilty.  Do not write that.  Just write four/three and I will understand, okay.”

63.  The two grounds of appeal are devoid of merit.

Ground 7

64.  This ground complains that the conviction was unsafe and unsatisfactory.  There was no further submission, and as the previous grounds of appeal had no merit, this ground also fails.

Conclusion

65.  For the reasons we have given, we refuse the applicant’s renewal application for leave to appeal against conviction and dismiss his appeal.