HKSAR v. MOHAMMED NASER

HCMA 48/2020

[2020] HKCFI 1506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 48 OF 2020

(ON APPEAL FROM TMCC NO 1673 OF 2019)

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JUDGMENT

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Introduction

1.  The appellant was charged with two counts of Wounding contrary to section 19 of the Offences Against the Person Ordinance, Cap 212.  He was found guilty after trial before Kelly Shui, Magistrate, on 9 January 2020 and was sentenced to a term of imprisonment of 12 months on each charge, both sentences to be served concurrently with one another.  By his notices of appeal, dated 9 and 10 January 2020 respectively, the appellant appealed both his conviction and sentence.  By his letter of 2 June 2020, the appellant has abandoned his appeal against sentence.

The Prosecution Case

2.  The incident in question took place on 30 March 2019.  Three days earlier, on 27 March 2019, PW1, Hamza Shahbaz, was the subject of an assault by a person known as “Faizan”.  PW2, Felak Sher, is the older brother of PW1.  When he came to know about the assault, PW2 spoke with Faizan by phone.  He maintains that on 29 March 2019, the appellant then contacted him, also by phone, about the incident and they agreed by message to meet up with Faizan at 8.30 pm on 30 March 2019.  PW1 and PW2 knew the appellant because they had attended Mosque together on a daily basis as children.  PW2 had studied with the appellant for one to two years around 2012 to 2013 (when they were approximately 14 to 15 years old).  They had not met again since 2015.

3.  On 30 March 2019, the appellant met up with PW2 at Kam Sheung Road, Kam Tin, close to exit B of the MTR station.  Faizan was not with the appellant but between 10 and 15 others were.  PW2 was only able to identify six of this group.  They included the appellant, who was standing about one metre away for one to two minutes in normal street lighting at the beginning before the assault.  PW2 was with PW1 and two others including PW3, Ehsan Ullah, the subject of Charge Two.  At this point, the larger group of approximately 10 to 15 people attacked the group which included PW1, 2 and 3.  They used wooden sticks and metal clips (knuckle dusters?).  They attacked PW3, Eshan Ullah, first and, when he became unconscious, then moved on to attack PW2.  PW2 covered his head and knelt down during the attack.  All six of the named attackers joined in with the others.  The attack lasted two to three minutes.  PW2 suffered abrasions, lacerations and a fractured fibular.  PW3 was beaten unconscious and suffered multiple abrasions and lacerations to the head.

Defence Case

4.  As is his right, the appellant chose not to give or call evidence on his own behalf.  The defence case was that the appellant was not present and had no motive to attack PW2 or PW3.  As a result, cross‑examination was directed at seeking to undermine the credibility of the witnesses.  In particular it sought to object to and/or undermine the identification evidence.

The Grounds of Appeal

5.  The amended perfected grounds of appeal contain eight grounds.  They are summarised, as best I can, as follows:

Ground 1

The learned Magistrate erred in ignoring the result of a formal ID Parade and by substituting it with a first time dock identification.

Ground 2

PW2 may have identified the appellant by a photo rather than as a result of a recollection of the events.

Ground 3

The learned Magistrate erred by allowing into evidence a photograph which had not been taken at the time of the offence and further erred in performing a fact finding exercise of her own by drawing her own comparison of the likeness in the photograph with the likeness of the appellant before her.

Ground 4

The learned Magistrate wrongly allowed PW2 to rely upon digital evidence in the form of screen capture of a Whatsapp message adduced for the first time during re‑examination.  The learned Magistrate further erred in not allowing the appellant to challenge the admissibility of that evidence.

Ground 5

The learned Magistrate erred in allowing the prosecution to examine the witness upon the digital evidence and in refusing to allow further questions by the defence after the court had, of its own volition, examined the witness.

Ground 6

The Whatsapp messages should not have been admitted into evidence as they were not properly proved.

Ground 7

The learned Magistrate failed to take account of the fact that there was no evidence of the telephone number, SIM card number or service provider in respect of PW2’s phone.

Ground 8

The learned Magistrate, when considering his creditworthiness, failed to take into consideration the attempt by PW2 to pervert the course of justice when PW2 provided PW1 with a photograph (P7) of the appellant.

6.  Grounds 1 to 3 and 7 deal with various issues on the admissibility of a dock ID and the use of a photograph.  Grounds 4 to 6 deal with the issue of digital evidence.  Ground 8 stands alone.

Identification

7.  An identification parade was held on 20 June 2019.  I am informed that this was before the police were aware that PW2 knew the appellant.  During the identification parade the actors were required to wear shower caps, cover their bodies and wear face masks. I have no material before me which indicates why that had occurred.  PW1 was able to identify the appellant.  PW2 and PW3 were unable to identify the appellant.

8.  In respect of the positive identification made by PW1, issue was taken in trial with the fact that he had previously seen a photograph of the appellant prior to the identity parade, which had been provided by PW2 to the police and which PW2 had shown to PW1.  The magistrate did not rely upon this evidence.  Although PW1 should have been able to recognise the appellant as someone he had seen at Mosque over a number of years, the learned Magistrate took the view that his identification was undermined and did not rely upon it.  There is no need therefore to deal with the issue of whether that identification should have been excluded on the basis of having seen a photograph of someone the witness should have been able to recognise in any event.

9.  In respect of PW2, he gave evidence that he had known the appellant for several years as they had attended Mosque together on a daily basis.  As I understand it, there was no issue that they knew each other.  The issue was simply that the appellant was not present during the assault.  PW2 gave evidence that he saw the faces of all of the people who were attacking him and clearly saw the appellant attacking PW3.  Although he had been unable to identify the appellant at the identification parade, PW2 had, prior to trial, provided the name, telephone number and address of the appellant to the police as the telephone had been used to message him in order to set up the March 30 meeting during which the attack took place.  In addition, as he had not previously included the appellant in his caller log, he had asked who was calling him and the appellant had identified himself as Naser.  At this point, PW2 entered the number into his address book.  He had also provided the photograph P7, which included the appellant and a friend.  This photograph had been provided after PW2 had informed the police of the identity of the appellant and in support of who it was he alleged had attacked him.  As a real exhibit verifying the likeness of the appellant, it was correctly ruled admissible in the hands of PW2.  This was therefore clearly always going to be a case of recognition and not identification simpliciter.

The Law on Dock Identification

10.  The Attorney General v Lau Chi Tin HCMA 300/1988 is as good a place to start as any for the general principle that it is undesirable for a witness to be invited to identify a defendant for the first time when he is in the dock.  It should not be necessary to have to explain why that is so.  The possibility of a misidentification has been shown to be significant in far too many cases to mention.  This does not mean that it cannot be done but it should not be done as a matter of course and certainly not where the prejudicial effect outweighs the probative value.  In almost all cases the probative value of identifying someone standing in the dock of a criminal court, without more, is negligible. However, there will be cases where a dock identification is perfectly proper. The most obvious example is where there is no issue as to identification. Another, is where the defendant is well known to the witness such that the case falls properly into one of recognition, as it does here.  There are other exceptions to the general rule, not relevant here, which include circumstances such as a failure to hold an identification parade or other formal identification procedure, which can be laid squarely at the door of the defendant.

11.  The difficulty which arises in this case is the range of circumstances which amount to proper recognition.  Ms Alva seeks to rely upon The Queen v Hoang Duc Hoa and Others [1997] HKLRD 12, a decision of the Court of Appeal.  In that case, none of the victims immediately identified their assailants as people they recognised and no attempt had been made for formal identification thereafter.  The victims had been shown photographs by the police from which they were asked to identify their assailants.  There was no other supporting evidence upon which they could have been convicted.  Ms Alva, as others have done, relies upon a particular phrase in that case by Mortimer JA in which he says:

“No witness, at the time immediately after the offences when making a statement, said that he or she recognised any of the applicants. This was not a case where any of them said at the time ‘I know one or other of them’ and either described them or gave them a name. So this was not a recognition case.”

And later in the same judgment:

“Normally, the only time that a dock identification is permitted is a true recognition case where the accused is known well to the witness and has been described by him at the time or shortly after the offence and so at trial, he simply confirms that this is the person about whom he speaks.”

12.  It would be wrong to suggest that recognition can only come into play where a person has been described by a victim or where the victim has identified an assailant by name “at the time or shortly after the offence”.  The learned Judge did not seek to draw up an exhaustive list of conditions.  That is why he said “normally”.  A recognition scenario can come about in a considerable number of ways and common sense dictates how that may occur.  A witness may not know the name of a person but may have travelled on the MTR or bus with them at the same time every day for weeks, months or years.  They may not be able to say with any exactitude the height or hair colour of a defendant especially if that person is female, but may be able to say with conviction that they recognise their facial features or a distinctive accent.  Someone else may have talked regularly on a telephone and may recognise a voice rather than a face and the name which that voice answers to and the number they may be contacted upon.  Others have known each other as neighbours or as children but not seen each other for years.  Some have been work colleagues whilst others may have been lovers.  In many cases a witness does not describe the person who attacked him simply because it goes without saying that he knows him.  Whether or not any single case falls to be considered as a case of recognition will turn upon the facts and will be a matter of discretion for the judge.

13.  R v Cartwright (1914) 10 Cr App R 219 also assists should there remain any doubt that it was perfectly proper in this case for the learned Magistrate to allow a dock identification.  Lord Reading LCJ refers to “cumulative” evidence.  In that case, the issue of footprints in support of identification.  In this case, there is the evidence of the telephone number stored in PW2’s phone; the appellant stating his name; the message from the relevant phone; the fact the appellant turned up at the appointed time and the photograph provided by a friend and given to the police by PW2 as representing the appellant.  All of this evidence, if accepted by the learned Magistrate, could be prayed in aid by her to decide if this was indeed a case of recognition.  As against that, she clearly took into account the circumstances of the non‑identification at the parade on 20 June and decided nevertheless to allow the identification of the defendant in the dock.  It was most unfortunate that the identification parade had been held in the manner it was but, in the circumstances of this case, I do not find that the learned Magistrate acted incorrectly in allowing the dock identification.

The Use of Photographs

14.  The appellant complains under Grounds 2 and 3 that the photograph, P7, was relied upon in an improper manner by both PW2 and the learned Magistrate.  As to Ground 2, there is no evidence that PW2 required the photograph in order to identify his attacker.  Quite the opposite.  Having identified his attacker, he sought to corroborate that identification by providing the police with a photograph of Naser.  As to Ground 3, the appellant submits that the photograph of Naser should not have been used by the learned Magistrate to make a comparison between the appellant in the dock and the photograph.  Why not?  The photograph was real evidence and admissible in the hands of PW2.  This was a case of recognition. PW2 and the appellant had been at school together for some two years.  They had seen each other on a daily basis.  They clearly knew each other by sight.  The fact that four years had passed since they had seen each other would not automatically undermine the ability of PW2 to identify the appellant. Independent of the identification parade, PW2 obtained a photograph of the appellant and gave it to the police.  He is entitled to do that and the prosecution are entitled to rely upon it.  Why shouldn’t they?  What is objectionable in that course of action?  It would be objectionable if the police had given PW2 a photo and then said “Is this the man who attacked you?”, but that is clearly not the case here.

15.  It is misguided to suggest that a photograph, once admissible, cannot then be seen by the finder of fact and compared to the events in question; the locus in quo or the appellant himself?  What is its evidential value if it cannot be used by the finder of fact?  It is for that fact finder to attribute to it whatever weight they find proper in all the circumstances of the case including the time at which the photograph is said to have been taken.  In this case, the learned Magistrate satisfied herself that the photograph of the appellant relied upon by the witness at a time before trial as identifying his assailant, is indeed a likeness of the appellant. This ground of appeal was misconceived.

The Appellant’s Phone

16.  The appellant takes issue under Ground 7, with the fact that the learned Magistrate took no account of the fact that there was no proof before the court of the telephone number of the appellant, nor of the SIM card number or service provider which were relied upon by the prosecution as evidence in support of the identification of the appellant.  This point is without merit.  PW2 gave evidence of what he did and said or wrote in respect of the person he referred to as Naser, who was the same person who turned up on 30 March 2019 and whom PW2 knew to be the Naser with whom he attended Mosque.  Producing the phone itself along with its SIM card, a call record or Whatsapp messages, would only have served to corroborate that oral testimony and would have been inadmissible as a previous consistent statement if it had been admitted for that purpose.  It would not have fallen under any common law exception.  If the defence had wished to show there were no such messages or that any such messages were not to the appellant, then the defence could have applied to have the telephone interrogated.  They could have adduced evidence from the appellant’s phone record showing no such calls or messages.  Whilst they have no duty to raise a positive case of their own and are entitled to put the prosecution to strict proof of their case, they cannot complain about the lack of such evidence if it is prima facie inadmissible in the hands of the prosecution.  The learned Magistrate considered the admissible evidence which had been adduced before her in order to satisfy herself as the whether the prosecution had proved its case against the appellant beyond reasonable doubt.  She came to the conclusion that it had.

Digital Evidence

17.  Grounds 4 to 7 deal with digital evidence in the form of Whatsapp messages.  It appears that this was not adduced as part of the prosecution’s original case.  It came about as a result of an attack against the creditworthiness of PW2 by defence counsel.  In answer, PW2 sought to corroborate his testimony by reliance upon Whatsapp messages in response to the allegation by defence counsel that the appellant had never sent any such messages.  Counsel went on to suggest PW2 had made up the story and could have created the messages himself.  It is not a surprise that Ms Wong, on behalf of the prosecution, sought to establish the existence of the messages relied upon by PW2.  She was entitled to do so.  It went not only to credibility but also to the issue of identification.  There was a discussion about photoshots of the messages between prosecuting counsel and the bench, although this court cannot tell whether they had been adduced into evidence or whether they were part of the unused material.  As previously mentioned, they were prima facie previous consistent statements and hearsay.  As such, they would have been inadmissible in the hands of the prosecution to seek to rebut the attack as to character.  However, the defence had suggested recent fabrication and they therefore fell into an exception to that rule and were admissible in evidence if they could be properly proved.  How should that have been done?  This was not an exercise in adducing digital evidence without reference to a witness.  Sections 22 and 22A do not apply in this instance because the prosecution had the percipient witness who had given oral evidence of creating and receiving the messages.  He had given evidence from which an inference could be drawn that those messages were to and from someone referred to as Naser, at least so far as the witness understood.  They were not before the learned Magistrate as evidence of their truth, they were before the court to rebut the suggestion of recent fabrication.  In the circumstances of this case, R v M [2003] EWCA Crim 3067 applies by way of assistance.  In that case Lord Justice Kay rejected the argument that an email was inadmissible hearsay as secondary evidence which required authentication by means of an audit trail.  In that case, the witness had given oral evidence of what she saw on her computer screen; what she understood the content to mean and what she did in response.  Had she not been able to give such evidence, it may very well have been inadmissible without more, but her oral evidence changed its status.  In this case, the witness had given oral evidence of the messages he both sent and received.  He gave evidence of what he understood them to mean and what action he took as a result.  They included the telephone number he communicated with and the name being used by the person who was purporting to use that number.  All of that evidence went to an assessment of who PW2 believed he was dealing with and whether that same person appeared on the following night.  From the various proven facts and from the circumstantial evidence, the learned Magistrate was perfectly entitled to come to the conclusion that the person in question was the appellant.

18.  Under Ground 5, Ms Alva further complains that the learned Magistrate should not have allowed the prosecution to “have another go at examining in chief”when the prosecution sought to meet the allegation of recent fabrication, during which time the Court asked a number of questions and then failed to allow the defence to ask any further questions.  It is of course correct to say that the usual practice is for the Court to allow both parties to ask further questions of a witness if the Court has availed itself of the opportunity to resolve any misunderstanding of that witness’s evidence at the end of their examination by both parties.  That was not the case here.  From time to time the Court will ask questions of a witness during their testimony.  This may occur because counsel is struggling to obtain an answer; it may occur in order to bring the witness to heal when they are apparently refusing to answer counsel.  There can be a number of instances where the Court, with its experience, can interject to help smooth the proceedings.  Sometimes it is simply because Counsel has asked but not received an answer or because counsel, having not received an answer, moves on when the Court requires the issue to be addressed.

19.  On this occasion, Ms Alva had been the sole cause of the necessity to introduce the Whatsapp messages.  It was her cross‑examination and allegation of recent fabrication which led directly to the re‑examination by Ms Wong on the issue of the Whatsapp messages.  The Court made it clear that the messages were admissible on that basis.  It is clear from the transcript that the Court interjected during re‑examination to ask some questions in order to ensure that the messages were properly identified and to avoid the prosecution leading evidence.  In short, it resulted in the witness identifying a telephone number he said belonged to Naser.  At this stage Ms Alva submitted that she should be allowed to further cross‑examine the witness.  I can only assume she believed this was a course available to her because of the usual practice outlined above but, as I have said, that was not what had happened here.  The Court’s questions arose during, not after, the witness’s testimony.  In any event, Miss Alva asked and the learned Magistrate disabused her of that right by pointing out that this evidence had been adduced as a direct result of her cross‑examination.  Ms Alva would have had every opportunity to deal with it at that point when the witness had answered that he had such messages.  She had chosen not to do so.  She had missed her opportunity.  Ms Alva did attempt to take the matter further and no doubt, the learned Magistrate did not understand that counsel was seeking a right to ask further questions under the practice outlined above.  The magistrate’s natural instinct was in any event correct and Ms Alva had no such right in the circumstances as they arose here.

Perverting the Course of Justice

20.  This was a most unfortunate additional ground of appeal which should not have been included.  There was no evidence before the court that PW1 had been given the photograph of the appellant in order for him to pick him out at the identity parade when he would not otherwise have been able to do so.  The evidence before the court was to the effect that the photograph had been provided to the police in order to support PW2’s identification of the appellant as Naser.  Counsel should be careful when drafting grounds of appeal not to include allegations of a criminal offence without proper evidence to support it.  It is very easy to be caught up in a client’s case but Counsel is not simply the mouthpiece of their client and they should look at the grounds of appeal through a professional lens.

Conclusion

21.  The magistrate was clearly exercised by the issue of identification at a very early stage.  It was she who raised the issue with prosecuting counsel.  She foresaw the path the examination in chief was taking and sought to deal with the issue before it went too far.  She asked whether the prosecution intended to attempt a dock identification and was informed that the prosecution case relied upon recognition.  Ms Shui was alive to the fact that might be problematic given that the appellant had not been “recognised” by PW2 during the ID parade.  She was equally alive to the argument that it would not be proper for the police to seek to carry out an identification parade, which they knew was bound to fail and then seek to fall back upon a dock identification in Court, which almost never fails.  Nevertheless, she also took into account the other identification evidence of which there was an abundance.  Most importantly, she considered the photograph of the appellant which had been produced by the witness and provided to the police in support of his identification of the accused.  There can be no complaint about its production.  There was no suggestion that the photograph was not of the appellant.  The witness was entitled to produce it to the police of his own accord and thereafter identify what he had produced.  Equally, the learned Magistrate was entitled to look at the image thereon and to assess its likeness to the defendant.  Just as a jury would.  That being the case, I cannot find fault with the approach the learned Magistrate adopted in what turned out to be most unusual circumstances.  I endorse her own comments that the practice currently adopted in identity parades by the police of literally covering the actors from head to foot is to be deprecated and more effort should be made to find actors of similar appearance.  In this case, that could not have been a particularly difficult exercise and I am somewhat surprised by what occurred, as was the magistrate.

22.  This appeal will be dismissed.  There will be no order as to costs.