HKSAR v. ASIF AHFAQ MEHMOOD AND OTHERS

HCCC 138/2020

[2021] HKCFI 3643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 138 OF 2020

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RULING

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1.  This is a trial in which all three defendants face a single count of Robbery contrary to s10(1) & (2) of the Theft Ordinance, Cap 210. There is no issue as between the parties that a robbery occurred at the material time. The issue before the jury will be whether the defendants were a party to that robbery on a joint enterprise basis or whether they were participating in an agreement to wound the victim without more.

2.  This is an application by Mr Tracy, on behalf of D2 in the following terms[1]:

7.1  (a)  the proposed police officers’ evidence is opinion evidence and should be excluded;

       (b)   and goes purely to credit and is not relevant during the prosecution case.

7.2  The visual images are not of sufficient clarity to permit identification with the requisite certainty, or at all.

7.3  In any event, if CCTV evidence of identification of D2 (or D1 or D3) may indeed be put forward, it is a matter for the jury, not for the police officers.  The jury should make up their own minds uninfluenced by investigating officers’ own opinions.

7.5.1   At 1^st A.E. Bundle 0059-0082, items 3, 4, 5 have been withdrawn from the Admitted Facts but are still objected to.

7.5.2.  The tiny photographs are of no use for identification.

7.5.3   There is substantial written narrative which constitutes very obviously ‘out of court’ statements which are inadmissible hearsay.

7.5.4   There are markings of figures on photographs to which the same applies.

7.5.5   Experience shows this may be good briefing material for Fiat Counsel, but in such form it is wholly unfit for production in evidence.

3.  After the receipt of these submissions dated 11 November, the 3^rd Notice of Additional Evidence was served upon the defence, which addressed some of Mr Tracy’s concerns but he maintained the thrust of his application was that:

a.  the CCTV evidence should not go before the jury at all as an exercise of the Court’s discretion; and

b.  the police officers should not be allowed to give ‘recognition’ evidence.

4.  It may be that the Court’s ruling as to these two items trigger other matters which will need to be dealt with in future, but for now I intend to concentrate upon the admissibility of the CCTV evidence and to the manner in which the prosecution seek to rely upon it.

CCTV

5.  Mr Pannu and Mr Wong do not seek to exclude the CCTV recordings.  Mr Tracy persists in his application on the basis that they are of such poor quality that they should not be relied upon.  I can see no basis at all for excluding the CCTV evidence.  It is relevant.  It was properly obtained by the relevant officers and there is no issue as to its provenance.  It comes from several different CCTV cameras purporting to show D1, D2 and D3 with others and together, before, during and after the robbery.  The quality does vary.  Some shots are of much better quality than others but, save for one or two shots of groups in the distance, this does not render it inadmissible.  It goes to weight and that is a matter for the jury after careful direction.

6.  The true conundrum in this case is as to how it may be presented.  As presently advised, Mr Percy seeks to call individual officers to identify the CCTV reviewed and thereafter to identify persons seen within the CCTV on the basis of recognition.

Recognition

7.  The leading authority on identification is R v Turnbull [1977] QB 224, which should not need to be repeated herein.  It is the starting point for consideration of identification evidence.  Technology has moved on since Turnbull; it was over 40 years ago and there is a need to apply the principles enunciated therein to modern rules of evidence.  What we have in this trial, as in many others, are images of events caught upon CCTV as they occurred.  In essence, the jury stands in the shoes of the observer witness in Turnbull.  Although there are dicta[2] elsewhere to suggest that no Turnbull direction is necessary in such circumstances, this Court believes a safer approach is to bear in mind the guidelines in Turnbull as to place, time, quality etc. when considering the images in question and what directions, if any, to give after consultation with Counsel.  This, at least to some extent, addresses Mr Tracy’s complaint as to quality.

8.  With CCTV evidence or photographs, it is ultimately a matter for the jury whether they are sure that the person depicted is the person the prosecution say it is. What the prosecution wish to do in this case, is to pre‑empt that exercise when presenting the evidence to the jury by identifying who the police say did what and when.  The basis for this is two‑fold. First to ensure that the evidence can be understood in context as it is called and second, to prove association by identification.  To do that, it is proposed that officers will come to court to say they recognise D1 or D2 or D3 or, as in this case, some of APs 3-13.

9.  Mr Tracy seeks to rely upon HKSAR v Tagao Saudee Abad CACC 366/2015 to object to this course.  He says the period of time over which these officers dealt with the defendants and the lapse of time between that dealing and the perusal of the CCTV images is such that their identification of the defendants cannot be relied upon.  In Tagao, the Court of Appeal stated that where there is no other evidence, a CCTV recording is relevant only if it can be shown that the person in question is the appellant.  The evidential burden is a high one.  However, it also noted that where there is other direct evidence upon which the prosecution seek to rely and from which an inference may be drawn, then a CCTV recording may be relevant even where the person in question has only a ‘resemblance’ to the defendant.  This is because the recording allows for an inference to be drawn, that, for example A was in a certain location or, as in this case, A was with B or C.  In Tagao, the CCTV recording was the only evidence of the presence of the appellant and therefore it was either capable of proving his presence or it was not.  The analysis of the Court of Appeal therefore focused upon whether the image relied upon was of sufficient quality to be a tool from which the appellant could be identified without more.  In the event, the Court of Appeal took the view that the evidence of the police officer was of no weight on the basis that the period of time the officer dealt with the appellant was limited; the period which elapsed from then to viewing the CCTV was dated; the quality of the CCTV was of concern and the officer had not given evidence as to how and why he could recognise the appellant.  It is these findings of which Mr Tracy wishes to avail himself.

10.  But that is not the end of the matter, the Court of Appeal made a further declaratory statement[3], which I find to be of assistance in this case:

“When a jury has regard to video recordings or photos in a case where the prosecution has called recognition evidence, it is invited to do so for the purpose of determining the reliability of the recognition evidence. In so doing, it inevitably forms its own view on whether the defendant is or could be the person in the video or photo. After looking at the videos or photos and observing the defendant the jury may form the view that the image they see could be that of the defendant and then after hearing the recognition evidence they may become sure of that fact. Where there is no recognition evidence then the jury has to be sure of the fact simply from their own visual comparison of the video recording or photo with the appearance of the defendant.”

11.  Each case turns upon its own facts.  CCTV images are admissible[4] and it is entirely proper for the jury to draw their own conclusions from those images subject to any directions considered appropriate to the particular facts of the case.  What is at issue here is an extra intermediate step i.e. the means by which the prosecution identifies whom they say participated in this joint enterprise.  Not simply as an evidential scene setting exercise but also as proof of participation.  They seek to do that by calling the officers who dealt with them upon arrest and interview.

12.  Proof that a defendant is pictured in a video or photo is capable of being achieved in at least four ways[5]:

(i)  where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock (R v Dodson and Williams (1984) 79 Cr App R 220);

(ii)  where a witness knows the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he can give evidence of this (R v Fowden and White [1982] Crim LR 588, Kajala v Noble (1982) 75 Cr App R 149, R v Grimer [1982] Crim LR 674, R v Caldwell and Dixon (1993) 99 Cr App R 73, and R v Blenkinsop (1995) 1 Cr App R 7); and this may be so even if the photographic image is no longer available (Taylor v Chief Constable of Chester (1987) 84 Cr App R 191);

(iii)  where a witness who does not know the defendant spends substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based upon a comparison between those images and a reasonable contemporary photograph of the defendant, provided that the images and the photograph are available to the jury (Clare and Peach (1995) 2 Cr App R 333; R v Yaryare & Others [2020] 4 WLR 156);

(iv)  a suitably qualified expert with facial mapping skills can 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 the images and the photograph are available for the jury (R v Stockwell (1993) 97 Cr App R 260, R v Clarke [1995] 2 Cr App R 425 and R v Hookway [1999] Crim LR 750).

13.  The prosecution seek to rely upon step (ii).  They say that an arresting officer can be said to know a defendant sufficiently well to be able to recognise him within an image.  The ‘high water mark’ of that (as to the least time spent with the defendant) was R v Blenkinsop supra where the Sergeant spent a grand total of 3 minutes with the appellant and viewed evidence some two months later.

14.  Which witnesses does the prosecution seek to rely upon for this issue?  They are:

DPC  11781	D1
DPC  14150	D2
DPC  9684	AP3
WDPC  9974	AP4
DPC  11927	AP6
DPC  8954	D3
DPC  10525	AP5

DPC 11781

15.  DPC 11781 went to the HKIA on 13 August 2018, to collect D1, who was stopped when attempting to leave the country.  DPC 11781 travelled with him between HKIA and Tsim Sha Tsui Police Station, which was a journey of some 43 minutes, arriving at 1635 hours.  Between 1637 and 1648 hours he carried out a POL 153 procedure with D1[6] at which time the defendant explained to him that he had been born and educated in Hong Kong, could speak Punti, Urdu and could read English.  DPC 11781 then issued a POL 1123 between 1649 and 1653 hours.  At 1654 hours a body search was carried out by the officer, which took 4 minutes and after which he seized some exhibits.  D1 was returned to the custody of the Duty Officer (‘the DO’) at 1700 hours.  In all a period of 68 minutes.  DPC 11781 took him out from custody at 2020 hours for an interview, the whole procedure for which took 1 hour 15 minutes.  The officer then took an antecedent statement which lasted 22 minutes and a further 12 minutes was used for finger printing before returning to the report room.  That makes 177 minutes in total thus far.  At 2252 hours the same day, DPC 11781 took D1 for a home search returning D1 to the DO at 2340 hours, totalling 225 minutes’ contact time that day i.e. 3 hours 45 minutes on 13 August 2018 alone.  On 14 August 2018, DPC 11781 dealt with the defendant between 1154 and 1215 (21 minutes) and on 15 August he drew him out for a case reconstruction at 0854 hours and then returned D1 to the DO at 1041 hours (a period of 146 minutes).  At 1130 hours on 15 August 2018, D1 had a further interview, was issued a POL 153 and other documents by DPC 11781 and was arrested and cautioned.  He was then taken back to the report room at 1210 hours (40 minutes).  DPC 11781 was therefore with D1 on 15 August for a total of 3 hours and 6 minutes.  A total of 7 hours and 17 minutes in all.

16.  It was not until 15 January 2019 that DPC 11781 reviewed the CCTV footage of the case and recognised D1 as AP1. I do believe however that even at that juncture (as he may in court if required), DPC 11781 could have looked at the VRIs and then at the CCTV in order to refresh his memory as to the identification of D1, but he did not do so, presumably as he had no difficulty recognising him after dealing directly with him over three days.

17.  There is prima facie evidence to allow this witness to seek to recognise D1 within the CCTV evidence so long as the proper foundation is laid.

DPC 14150

18.  DPC 14150 was instructed to pick up D2 from the HKIA on 14 August 2018, which he did at 1632 hours and, along with other officers including DPC 11781, took him to Tsim Sha Tsui Police Station arriving at 1701 hours (approximately 29 minutes).  At 1702 hours D2 was processed by DPC 14150 until 1723 hours (21 minutes) when he was handed over to the DO.  At 2250 hours on 14 August he was taken out of the report room by DPC 14150 and taken for investigation and interview as well as a search of his home address. As a result, the officer was with him from 2250 hours on 14 August to 0312 hours on 15 August (4 hours 22 minutes).  He drew him out once more later on 15 August at 2253 hours for processing and charging and handed him back to the report room at 0016 hours on 16 August (1 hour 23 minutes).  A total of 6 hours 35 minutes over three days.

19.  On 17 January 2019 DPC 14150 viewed CCTV footage and recognised D2 in three shots attached to his witness statement.  Subject to establishing the criteria he set out for recognition in his witness statement, the prosecution may adduce this evidence to see to prove the identification of D2 and is not confined to these three shots so long as the proper ground work is established.

DPC 9684

20.  DPC 9684 arrested AP3 on 15 August 2018 at 0605 hours at his home address.  On arrest and caution he said, “For this incident I just acted as a lookout.  I am not certain about other things.”  A post record of arrest and caution was then made and a search of his address was carried out in his presence.  Between 0700 and 0735 hours he opted to wear a hood at which time he was taken to the DO. He was signed out at 0736 hours for further processing and taken to Tsim Sha Tsui Police Station and handed over to the DO at 0932 hours (1 hour 56 minutes). He was taken for VRI at 1454 hours the same day and then processed and handed back to the DO at 1645 hours (1 hour 51 minutes).  A total of 3 hours 47 minutes.

21.  DPC 9684 viewed CCTV footage on 15 January 2019 and identified AP3 as being in the attached photo shot.  This AP was wearing a distinctive white T-shirt.  Subject to the correct foundation being laid, DPC 9684 may be allowed to recognise AP3 in the CCTV footage to be placed before the jury.

WDPC 9974

22.  WDPC 9974 arrested and cautioned AP4 at 0605 hours on 15 August 2018 at his home address.  On arrest he admitted “I only snatched two suitcases.  I did not hit anyone.”  At 0839 hours AP4 was handed over to the DO in Tsim Sha Tsui Police Station (2 hours 34 minutes). He was drawn out again at 0856 hours for interview and returned at 1108 hours (2 hours 12 minutes).  He was drawn out again at 1316 hours on 15 August and processed, returning to the report room at 1334 hours (18 minutes).  He was taken out once more at 2228 hours on 15 August for further processing and returned at 2253 hours (25 minutes).  On 16 August at 1359 hours he was taken out by WDPC 9974 for interview and returned to the report room at 1525 hours (1 hour 26 minutes) but then he was taken out once more at 1543 hours for a reconstruction and returned at 1702 hours (1 hour 19 minutes). At 1756 hours he underwent a VRI and was handed over to the DO again at 1834 hours (38 minutes).  At 2013 hours he was charged and returned at 2020 hours (7 minutes). A total of 8 hours 59 minutes.

23.  WDPC 9974 also dealt with AP12.  She arrested and cautioned AP12 at 1226 hours on 13 September 2018.  AP12 stated “I was only in charge of finding the driver and robbing the money.  I did not hit anyone”.  He was taken to Yuen Long Police Station, processed and interviewed until 1532 hours when he was handed over to the report room (3 hours 6 minutes).  He was taken out by her at 2045 hours for house search and eventually taken to Tsim Sha Tsui Police Station and charged at 2316 hours and then returned to Yuen Long where he was handed over at 2356 hours to the DO (3 hours 11 minutes).  A total of 6 hours 17 minutes.

24.  WDPC 9974 viewed CCTV footage of both AP4 and AP12 on 16 January 2019.  She recognised both and outlined why.  Subject to the proper foundation being laid, WDPC 9974 may seek to identify AP4 and AP12 on the basis of recognition.

DPC 11927

25.  DPC 11927 arrested and cautioned AP6 at 1145 hours on 15 August 2018.  Upon arrest and caution he said “Fu Chai called me and asked me to beat someone up at Middle Road, that night, after which I would be given money.  I had no idea that it was actually a robbery.”  From 1146 to 1207 hours he wore a hood when taken to Tsim Sha Tsui Police Station.  From 1209 hours he was processed by DPC 11927 until 1355 hours (1 hour 46 minutes).  He was signed out again at 1650 hours that day for a house search and returned at 1835 hours, some of that period he was wearing a hood (1 hour 45 minutes).  He was signed out again at 2030 hours for processing until 2104 hours (34 minutes) and again from 2150 hours until 2221 hours (31 minutes).  On 16 August he was signed out at 1603 hours for interview and was returned at 1708 hours (1 hour 5 minutes).  A total of 5 hours 41 minutes.

26.  On 16 January 2018, DPC 11927 viewed CCTV footage and recognised AP6.  This evidence may be adduced subject to laying the evidential ground work.

DPC 8954

27.  DPC 8954 attended at the residence of D3 at 0820 hours on 15 August 2018 at which time D3 opened the door.  Enquiries were made of D3 to the effect:

Q: “At around 7:15pm on 8 August 2018, where were you at that time?”

A: “In Tsim Sha Tsui, Ah Sir.”

Q: “What were you doing in Tsim Sha Tsui at that time?”

A: “No answer.”

Q: (Repeated the Question)

A: “I just helped to act as a look out.”

Q: (Caution)

A: “I did not know it was a robbery.  I was responsible for beating someone and acting as a look out.  It has nothing to do with me.”

Upon arrest and caution he said “I got $6,000 from my friend just for helping to act as a lookout and beating someone, Ah Sir.”  A house search and post record was carried out and eventually D3 was taken to be processed at Kwun Tong Police Station at which time he was able to see his legal representative.  DPC 8954 left the station at midday as D3 claimed to be unwell.  He had been handling D3 for 3 hours and 40 minutes.  DPC 8954 next saw D3 in Tsim Sha Tsui Police Station at 1950 hours on 15 August for the purposes of signing the post record and antecedents and other processing.  He was handed back to the report room at 2123 hours (1 hour 33 minutes).  On 16 August 2018, at 1156 hours he was signed out once more for interview at which time he had legal representation.  He was handed over to the report room at 1256 hours (1 hour).  A total of 6 hours 13 minutes over two days.

28.  DPC 8954 viewed the CCTV footage on 16 January 2018 and recognised D3 as indicated.  Subject to laying the correct foundation, this officer may seek to identify D3 within any relevant footage.

DPC 10525

29.  DPC 10525 arrested and cautioned AP5 at 0605 hours at his home address.  He was taken to Kowloon City Police Station and processed by DPC 10525 and handed over to the DO at 0735 hours (1 hour 30 minutes).  He was signed out again at 0810 hours and then taken to Tsim Sha Tsui Police Station and eventually handed over to the DO at 1044 hours (2 hours 34 minutes).  He was signed out once more at 1305 hours for interview and returned at 1427 hours (1 hour 22 minutes).

30.  I do not have a witness statement as to whether this officer has viewed the CCTV footage and identifies AP6.

Conclusion

31.  This is not a fleeting glimpse case.  It is a case of old fashioned recognition.  It does not fall to be considered as opinion evidence.  Nor is it a case, as in Tagoa, in which the only evidence against the defendants is that of identification.  They accept presence.  They accept they played a role.  All three defendants were interviewed although that of D3 is not relied upon.  There is therefore police video evidence available of what the defendants looked like on the day of interview and no doubt there are photos taken for police processing purposes if necessary.  They do not accept they knew about the robbery.  Save for D3 against whom there is no VRI to be produced, they say they had dealings only with AP3.  They were recruited to assault someone and no more.  The prosecution seek to show communication with and presence with the other members of the joint enterprise in particular AP5 and AP6, both immediately before and immediately after these events.  They seek to infer knowledge and an agreement to be party to that joint enterprise from that evidence.  Subject to laying the foundation for such evidence, they may do so.  What weight is to be attached to it is entirely a matter for the jury.