HKSAR v. RIASAT ALI AND ANOTHER

CACC 345/2017

[2018] HKCA 682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 345 OF 2017

(ON APPEAL FROM DCCC NOS 321 AND 452 OF 2017 (CONSOLIDATED))

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J U D G M E N T

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1.  The applicants faced a joint charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. They were tried before Deputy Judge A Yim (“the judge”) in the District Court, and convicted on 11 October 2017.

2.  The judge sentenced the 1^st applicant to 33 months’ imprisonment and the 2^nd applicant to 30 months’ imprisonment, further ordering that each should compensate the owner of the victimised premises in the sum of $500.

3.  The 1^st applicant has applied for leave to appeal against both conviction and sentence, while the 2^nd applicant has applied for leave to appeal against sentence only, which is out of time, although no issue is taken on that matter.  The 1^st applicant is represented by Ms Chong and Ms Lam in relation to conviction only.  Both applicants act in person in relation to sentence.

The trial

4.  It was not disputed that a burglary of the store room at the roof top of No 905 Canton Road, Mong Kok, Kowloon had been committed by three persons at about 9:55 am on 12 February 2017, the process of which was captured by a CCTV camera installed at the scene.  It can be seen from the CCTV footage that the three burglars were South Asian men, two of whom, having prized open a window of the store room, climbed into the room and ransacked it for about 2‑3 minutes, whilst the third man remained outside the window throughout.

5.  The prosecution case was that the defendants were two of the men who had burgled the store room; whilst the defence contended that none of the men in the CCTV footage were the defendants.

6.  The only live issue at trial, therefore, was the identification of the applicants as the two men concerned.  It was an admitted fact that a fingerprint of the 2^nd applicant was lifted from the inner frame of the window in the store room.

7.  The only evidence against the 1^st applicant were the images of what was alleged to be him captured by the CCTV recordings.  The prosecution alleged that the first man entering the store room, a man of slim physique in a white top without a cap was the 1^st applicant.  As a result of an objection raised on behalf of the defence, no photograph taken following his arrest was produced at trial.

8.  The judge ruled a case to answer in respect of the evidence that the man in the white shirt with no cap was the 1^st applicant.  Notwithstanding that ruling, the 1^st applicant elected not to give evidence himself.  Instead, he called a friend, Ahmed Ishtiaq, as a defence witness to say that, after viewing the CCTV footage, the man in the white top in the CCTV recordings was not the 1^st applicant.  Mr Ishtiaq considered that the CCTV footage was clear, but that the sound track was not.  He gave evidence that when he first viewed the footage he suspected the man depicted was the 1^st applicant but, when he viewed it again, he was sure that it was not him.

9.  He said that the man in the white shirt without a cap shown in the CCTV recordings, although resembling the applicant, had certain differences, namely, (i) he looked younger; (ii) he appeared to be shorter; (iii) he had curly hair, whereas the 1^st applicant’s hair was straight; and (iv) he had a different pitch and accent.

Reasons for verdict (the 1^st applicant)

10.  The judge viewed the CCTV recordings, examined the still images obtained from them, and compared them with the applicant in the dock.  She considered the authority of HKSAR v Tagao Saudee Abad[1] and gave herself a full Turnbull warning when comparing the appearance of the 1^st applicant before her with the person shown in the CCTV recordings and the still images extracted from the recordings; further, she reminded herself of all the potential risks and dangers of mistaken identification in such circumstances, as described by the Court in Dodson & Williams[2].[3]

11.  The judge was able to observe the applicants throughout what was a 6‑day trial between 30 August and 29 September 2017, during which there were changes of court room, which allowed the judge to observe both applicants in courts of different size and sitting in a dock to the left and right of her position.  She had also had direct dialogue with the 1^st applicant on the occasion when his counsel was discharged on the second day of trial.  Accordingly, she had the opportunity to observe both applicants from different angles and viewpoints.  She also viewed the CCTV recordings repeatedly and at different speeds[4].

12.  So far as the evidence of Mr Ishtiaq was concerned, the judge rejected his evidence and gave a number of reasons for doing so.

13.  She noted from the judgment in A‑G’s Reference (No 2 of 2002)[5] that where the photographic image was sufficiently clear, the jury was entitled to compare it with the defendant sitting in the dock.  She made clear that she fully appreciated that resemblance in appearance was not sufficient to convict: the question was “are they the same person?”

14.  The judge referred to the case of Tagao as an example of where a judge had made a comparison but stressed the importance of the quality of the recording.  She commented that the CCTV footage in the present case was of high clarity and captured clearly the appearance and movement of the man concerned, including the close‑up of the face of the man in the white top and no cap.

15.  Upon comparison, the judge was sure that the burglar in the white top without a cap was the 1^st applicant: that the 1^st applicant was identical to the man depicted in the CCTV footage, except that he had his hair cut and had a slightly different skin tone consistent with suntan.

Reasons for sentence

16.  The 1^st applicant was 39 years of age and a construction worker, with 11 previous convictions since 2002, including one charge of robbery and 8 charges of theft.  He was discharged from prison in September 2017.  The 2^nd applicant was 26 years of age and unemployed.  He was an asylum seeker from India who had arrived in Hong Kong in March 2016.  He was a heroin abuser, with one previous conviction in May 2017 for possession of a dangerous drug.  He offered to compensate $1,000 to the victim for the damage caused.

17.  The applicants urged the judge to treat the store room as non‑domestic premises for sentencing purposes.  The judge considered that, although the store room was part of a domestic premises, it was on the roof top and separated from the living area.  Furthermore, there was no question of the owner being put in fear by the burglars.  Accordingly, she accepted that she should proceed on the basis that it was akin to a non‑domestic burglary.  In coming to this conclusion, she referred to the case of HKSAR v Suen Chi Wai[6].

18.  However, the judge considered that a significant degree of planning and premeditation had gone into the offence.  Three men had prized open the locked window of a store room, whose door was installed with double locks.  It could not be said to be an opportunistic theft and, although the intrusion was brief, the ransack was thorough.  No loss was suffered only because there were no valuables kept inside the storeroom.  For these factors, the judge increased the starting point by 3 months.

19.  The judge therefore sentenced the 1^st applicant to 33 months’ imprisonment.

20.  As for the 2^nd applicant, his sentence was enhanced by 2 months because he was an asylum seeker who had committed a serious offence.  The judge however reduced his sentence by 5 months for his clear record in respect of offences of dishonesty and his offer to compensate in full for the damage caused to the victim, estimated at $1,000.  The judge accordingly sentenced him to 30 months’ imprisonment.

21.  The applicants were ordered to compensate the owner of the premises in the sum of $1,000, with the sum to be shared equally.

Grounds of appeal against conviction

22.  The main ground of appeal against conviction on behalf of the 1^st applicant is essentially that it was unsafe for the judge to find, in the absence of supporting evidence, that the applicant was the man in the CCTV footage wearing a white top and no cap, by comparing the images with the man in the dock, since there were a number of inadequacies and deficiencies in the CCTV images.  It was further argued that because of these inadequacies and deficiencies, the warnings the judge did give herself were themselves inadequate and deficient.  A further ground of appeal is that the judge was wrong to have rejected the evidence of Mr Ishtiaq.

Ground of appeal against sentence

23.  The 1^st applicant has not averred any written grounds of appeal against sentence beyond saying that he is innocent.

24.  The 2^nd applicant submitted by way of a letter dated 21 March 2018 that (i) he wanted to plead guilty but he had to follow his lawyer’s advice; (ii) he has compensated the victim; (iii) he was a drug addict, who took drugs at the scene but did not steal; and (iv) he had no previous convictions for burglary.

Consideration

25.  The judge went to considerable lengths to explain why she was sure the man in the white top and no cap in the CCTV recordings was the 1^st applicant.  She was alive to the dangers of so finding, gave herself a full Turnbull warning and addressed all relevant authorities on the topic, both in England and Wales and in Hong Kong.  Having viewed the CCTV recordings myself in open court, they were clearly of very good visual quality and Ms Chong rightly conceded as much.  The judge was therefore plainly entitled to use them as the basis of her finding, as long as she bore fully in mind the dangers and disadvantages of making such a finding without supporting evidence.  As for the judge’s warnings to herself, based on the authorities of Turnbull and Dodson and Williams, I do not think it is reasonable to suggest that such warnings were deficient or incomplete.

26.  Ms Chong has listed what she maintains are the various inadequacies and deficiencies of the CCTV images and complains that the judge has not dealt with all of them in her judgment.  However, these were fully articulated in Ms Chong’s closing submissions to the judge and it is fanciful to suppose that the judge would not have had them in mind when asking herself the essential question whether she could be sure that the man depicted in the CCTV recordings was the 1^st applicant.

27.  As for the judge’s rejection of the evidence of Mr Ishtiaq, she had the advantage, which this Court does not have, of seeing and hearing the witness give evidence.  She did not accept his opinion for the various reasons she set out.  I see no reasonable grounds for arguing that she was wrong to reject his evidence.

28.  In my judgment, the 1^st applicant’s grounds of appeal against conviction are not reasonably arguable and leave to appeal against conviction is refused.

29.  As for the grounds of appeal against sentence of both applicants, they too are not reasonably arguable.  The sentences appear to be entirely correct and based on authority, with the judge giving valid reasons for arriving at the respective sentences she did.

30.  The 2^nd applicant today says that he has accepted his guilt and is now remorseful.  However, he was at pains to stress that he does not know the man sitting next to him in the dock today, which rather undermines his assertion of remorse.

31.  The applications for leave to appeal are accordingly refused.  Both applicants are duly advised that they have the right to renew their respective applications for leave to appeal to the Court of Appeal, but are also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending their appeals, if the Court of Appeal were to come to the view that there was no justification for the renewal of the particular application.