The comment in the previous blog prompted me to write this one.
It may be imprecise to describe the identification issue in the previous blog arising from the appeal judgement as "identification". It is a mixture of recognition and sighting. The appeal judgement does not shed sufficient light on the actual reason for allowing the appeal. What I am doing is to second guess the merit of the case.
The victim (PW1) saw the appellant 4 times. The appellant was not a person sufficiently known to her. He was a total stranger to PW1. Yet the sightings were not fleeting glances. There were precise descriptions of age and clothings. In 3 of the 4 sightings, the appellant wore the same clothes and the closest of the encounter was 14 feet. PW1's descriptions of the appellant: wearing Polo tee, culotte shorts and bespectacled.
The dock identification should not be an issue in this case because it was like a quasi caught red-handed scenario. The court had to decide whether PW1, honest she might be, made mistake as to the recognition. The lack of ID parade after the arrest was reasonable because PW1 said there was no other person on the foot bridge apart from the person performing indecent act in the previous occasion. PW2, the woman police constable, arrested the appellant according to the pointing of PW1 and she said the appellant never left her sight and was the only person on the foot bridge. Therefore, the chain of arrest was unbroken. Whether PW1 witnessed the course of arrest is immaterial. What is in issue, I suppose if the court considered correctly, is whether PW1 recognised the wrong person at the scene in the first place. Without breaking the chain of evidence, the appellant was like caught red-handed. There should not be any need for an identification parade. If one was conducted, it would not be of further assistance to strengthen the prosecution case. The ultimate question remains whether PW1 made an honest mistake for wrongfully recognising the appellant as the culprit on their second encounter allegedly the offence took place. The reasoning in paragraph 11 of the appeal judgement was flawed because the court had ambiguously decided on the wrong issue. If the court allowed the appeal on the ground of unsafe recognition, I have no criticism of the decision. This particular paragraph led me to believe the court was not satisfied with the dock identification when no prior ID parade was held.
There is no hard and fast rule as to how to apply Turnbull. In HKSAR and AKHTER HOSSAIN alias 'Ah Tak' CACC 1/2007, the Court of Appeal adopted its earlier decision of R v Hoang Duc Hoa and Ors [1997] HKLRD 12 at 14, Mortimer JA, giving the judgment of the court said:
“… judges should not allow dock identifications and prosecuting counsel should not seek to rely upon such, if the identification is the first time that the witness is called upon to identify an accused person unless there is some very good reason. The obvious reason is that an accused has refused to attend an identification parade and that no other proper means of identification has been possible before trial, such as a group identification or a structured identification by means of photographs or some other recognised and proper procedure. Normally, the only time that a dock identification is permitted is in 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.” (Emphasis added.)
In the instant case, Her Ladyship did not clearly express whether allowing the appeal was due to the fact that she was not satisfied with the quality of PW1 recognition of the appellant. From the way she described how she agreed with the criticism of the counsel for the appellant, I can only conclude she just found fault with the dock identification. As I said earlier, she was faulted because it should not be an issue in the trial.
The second possible reason for allowing the appeal, as suggested by the comment in the previous blog, is neither here nor there. There was no clear correlation demonstrated whether the "seemingly" paralysed right hand(控方第二證人同意上訴人右手好像有癱瘓跡象) and limping of the appellant were incapacitated to the extent of being unable to perform the act seen by PW1. Even in the appeal judgement, the description was as vague as could be. The use of "好像" and "跡象" are tantament to a double uncertainty comment. How did this piece of uncertain fact conflict with what PW1 said? It further dampens the wisdom of the appeal judgement if there is any wisdom at all.
