Case Detail

DCCC 611/2019

[2021] HKDC 1188

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 611 OF 2019

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	HKSAR
	v
	THAPA Manish	(“D1”)
	PUN Kishna	(“D2”)

-----------------------------------------

Before:

HH Judge E Yip

Date:

16^th September 2021(Reasons for ruling); (Ruling made on 24^th August 2021)

Present:	Ms ALVA Patricia E., Counsel on Fiat, for HKSAR
	Mr Mohnani Dheeraj Suresh, of M/s Mohnani & Associates, assigned by the Director of Legal Aid, for the 1^st defendant
	Ms Bharato S. Manek, of M/s B. Manek & Co, assigned by the Director of Legal Aid, for the 2^nd defendant

Offence:	[1] Wounding with intent (有意圖而傷人罪)
	[2] Common assault (普通襲擊罪)

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REASONS FOR RULING ON VIDEO-RECORDED INTERVIEWS AND NOTEBOOK ENTRIES

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Charge

1. D1 pleads not guilty to wounding with intent (Charge 1). D2 pleads not guilty to common assault (Charge 2).

Prosecution case in brief

2. PW1 was a customer of a wine bar on the ground level of Staunton Street, Central, Hong Kong (“the Bar”). D1 and D2 worked as the bartenders. PW1 and his wife PW2 went there for drinks on 20^th October 2018. There was a ruckus between them, resulting in PW1 being wounded by D1 and assaulted by D2. There was also an eye-witness PW4.

3. The prosecution rely on D1’s one and D2’s two VRIs, one notebook entry for each which recorded consent by the defendant and the exhibits seized, if any, in the house-search relating to the defendant.

Defence stance

4. D1 and D2 both allege that their female employer told them that she knew some people in the police, it was a small matter, the police were asking them to surrender at the police station to tell the police what had happened in the incident, he would have bail, and the case would finish shortly.

5. Before D2’s VRIs, in the presence of the police, the Nepali-English interpreter Mr. S told D2 that if he cooperated with the police, he would have bail.

6. Before D1’s VRI, in the presence of the police, Mr. S told D1 that as D2 had told the police everything in the VRI, that D2’s bail was being processed and would be able to go home, that it was D1’s turn to tell what happened that day; and that the quicker he told what had happened, the quicker his bail would be processed.

7. D1 alleges that during the interview he was in pain and discomfort because PW1 had injured his right eye area. This was obvious to the VRI-taker.

8. The VRIs and the notebook entries were therefore involuntarily made.

9. As the prosecution case develops, D1 and D2 take on an additional allegation, which is not mentioned in the grounds of objection, that before the VRIs and the house-search, the investigation team had told them in the team office that bail at $5,000 would be granted to them after the VRIs and their respective house-searches if they cooperated. D1 had only $70 cash on him according to the Prisoner Personal Property Receipt. They allowed D1 to use a team member’s cellphone to call D1’s mother to get the $5,000 and hand it to D1 during D1’s house-search. D1 got the money at the house-search. They arranged for D1 not to be searched by the report room team when back at the police station, so that the $5,000 kept by D1 would not be revealed. D1 paid up the bail money from his own pocket and was released.

10. D2 had only $156. They allowed D2 to use the report room telephone to call his aunt to get the money. During D2’s house-search, D2 learned from his mother that his aunt had gone to the police station with the $5,000. D2’s aunt later saw D2 at the report room and gave the bail money to D2. D2 paid up the bail money and was released.

Prosecution case on admissibility of VRIs and notebook entries

11. This Court adopts the alternative procedure.

12. PW7 PC 25594 was on duty at the Report Room when D1 and D2 showed up at 6:30 p.m. on 22^nd October 2018. He was not part of the investigation team. He had no idea of the case or the incident relating to D1 and D2. He looked up the case file from the computer and took instructions from his superior to arrest them for wounding. They were body-searched and taken into custody at the detention cell at the Report Room pending investigation. The Prisoner’s Personal Property Receipt recorded $70 cash with D1 and $156 cash with D2.

13. PW8 DPC12898, who conducted the VRIs, and PW11 Mr. S are the main witnesses. Other police officers in the same investigation team are called. In response to the additional allegation of pre-approved bail of $5,000, the prosecution call additional witnesses, including the duty officers team who worked at the Report Room.

14. Mr. S had no memory of what had happened, as the task he did on that occasion was nothing unusual. It had been his practice to interpret faithfully. He had not made any inducement of bail to anyone, including D1 or D2.

15. The investigation team officers deny pre-approved bail at $5,000 promised to D1 and D2 if D1 and D2 cooperated in the VRIs and the house-searches.

16. The duty officers team says that detainees brought out from the report room by the investigation team are body-searched only when they are being returned to the report room for custody. As regards a visitor seeing the detainee or any money being handed over to the detainee, there is usually a record.

Defence case

17. D1 submits no case to answer. Written submissions are made. D2 has no submissions. I rule a case to answer for both defendants.

18. D1 gives evidence. He had been employed as a bartender at the Bar for 1 year by the date of the incident. His supervisor was R -, the assistant manager. R -’s superior was B -. B - was under the boss, M -.

19. At 3 – 4 a.m. on 21^st October 2018, B - called him. She said she had given his identity and address to the police. She said M - told her she knew some police friends; the police told M - that it was a small case; instead of having the police come to him he had better go to the police; after that he could come out on bail; and he would not have much problem with the police.

20. Apart from B -, on the night of 21^st October 2021, D1’s father also told him that he had drinks with his uncle and a friend from U.K. at the Bar. They did not see D1 there. R - told him that the police were looking for him (D1) and that it was to his benefit if he went to the police station to tell the police what had happened.

21. D1 believed that if he surrendered to the police, next time the case would be finished. He did not know if M - actually had police friends. He was afraid that the police would come to his home. If he did not surrender himself to the police, he was afraid that it would affect his work, such as being paid less salary or even dismissed from work. He himself also wanted to go to the police station to resolve the matter. Although his right eye area was still in pain, on 22^nd October 2018 he surrendered himself at the Central Police Station with D2.

22. D1 was arrested for wounding by PW7 at the Report Room. He was detained in the detention cell at the Report Room.

23. Before the VRI, he and D2 were brought to a room occupied by the investigation team near the VRI room. PW6 DSSgt MA was there with 4 or 5 police officers. PW6 told him that they could have bail at $5,000 if they cooperated in the coming VRIs and the house-searches.

24. If he had been cautioned for the more serious offence of wounding contrary to section 17, he would not have answered questions in the VRI.

25. PW1 had assaulted him in the incident on 20^th October 2018. He was injured. He went with D2 to see a doctor, Dr. LEUNG -, of TY Health Care at 6 p.m. on 21^st October 2018. His medical report stated “mild tenderness and swelling with superficial abrasion over his right periorbital area”^{^[1]}. He had handed this medical report to a certain police officer before his VRI. The police officers called by the prosecution deny that they ever received this medical report.

26. D1 did not have $5,000 on him. On board the police vehicle on the way to the house-search, he was allowed to use a police officer’s cellphone to call his mother to tell her about the bail of $5,000. During the house-search, her mother gave him $5,000 in the presence of the police. He used the money to pay for his bail.

27. DW1 is R -. In the early hours on 21^st October 2018, the police came to the Bar to investigate. She did not know what was talked between M – and B – and the police. For her part, the police asked her to tell D1 and D2 to go to the police station or contact the police. B - told her that, from what she (B -) heard from M -, if D1 and D2 surrendered at the police station, their sentences would be lower.

28. DW2 is D1’s father. He ran a grocery shop. The working hours were 11 a.m. – 11 p.m. or 12 a.m. On the night of 21^st October 2018, he went for a drink with D1’s uncle and a friend at the Bar. As he did not see D1 there, he asked R - about D1. R - told him that an incident had happened, which was a small trouble, and that the police were looking for D1 and wanted D1 to go to the police station.

29. DW3 is D1’s mother. She lived with DW2 and D1. She helped D1 run the shop, which was in Yau Ma Tei, close to home and within walking distance. In the morning of 22^nd October 2018, D1 told her that he had asked D1 to go to the police station for a small matter. She did not ask him further. On the night of 23^rd October 2018, she received a call from a number she did not recognize. D1 was speaking on the other end. He needed $5,000 for the police and said he would come home after that. After 15 – 20 minutes, when the doorbell rang, she opened the door and saw D1 with some police officers. The party entered the living room. She asked D1 and the police what happened. No one replied. She gave him $5,000. The police said, “Thank you.” The party left. There was no house-search. In cross-examination, she denies that she did not pass any money to D1, that the police officers did not say, “Thanks you,” and that a house-search was actually conducted.

30. D2 gives evidence. He was a bartender employed by the Bar. M – was the boss. B – was the manager. R – (DW1) was the assistant manager. In the early hours on 21^st October 2018, B - called him. She said that the police had been told of his identity and home address, that he should surrender at the police station to tell the police what had happened, and that the police would release him. He was afraid that if he did not go to the police station, he might be dismissed by B -, and the police would come to his home to arrest him. Despite his body pain due to PW1’s assault, he surrendered himself at the Central Police Station on 22^nd October 2018 with D1. (His body pain is not mentioned in his grounds of objection as something affecting his VRI.)

31. PW1 assaulted him in the incident on 20^th October 2018. He was injured. He went with D2 to see a doctor, Dr. LEUNG -, of TY Health Care at 6 p.m. on 21^st October 2018. His medical report stated “tenderness over his neck and low back”^{^[2]}. He had handed this medical report to a certain police officer before his VRI. The police officers called by the prosecution deny that they have ever received this medical report.

32. DW4 is D2’s aunt. She lived with D2’s family comprising his father, mother, and brother. She worked in a hotpot kitchen with D2’s mother. The kitchen was near their home. At night on 22^nd October 2018, D2 called her and told her he would be kept in the police station overnight. He called her again the following day, at about 9 p.m. He said he needed $5,000 for bail. As she could not go out together with D2’s mother from the kitchen and D2’s mother did not understand that much, she took time-off from her employer to get the money and go to the police station. The money was D2’s mother’s money put aside for the rent.

33. During the house-search, she was not present. She was on the way to the police station. At the Report Room, she said she was D2’s aunt bringing money to D2. After waiting for an hour, two police officers brought out D2. D2 took the $5,000 from her. No police officers asked for her identification or asked her to sign anything.

34. In cross-examination, she denies that although D1 had made two phone calls to her on different occasions, the calls were not about bail money.

My findings

35. Only D1 puts in written submissions. All parties make oral submissions. If the events are arranged in sequence, D1’s written submissions shall bear the following headings: -

(1)What caused D1 and D2 to surrender at Central Police Station (paras. 10 – 12)
(2)Inducement of bail upon completion of procedure including VRI (paras. 13 – 21)
(3)When and where did D1 get $5,000 for bail (paras. 5 – 9)

36. In most aspects, the aforesaid are equally applicable to D2.

Submissions: (1) What caused D1 and D2 to surrender at Central Police Station (paras. 11 – 12)

37. In para. 11, D1’s counsel submits that it is plausible that the police officers have left a message, requesting the management staff to ask D1 and D2 to surrender at the police station as soon as possible. The police officers deny that they have left such a message. I believe the police officers. The police could go to their home addresses at any time to look for them instead of passively waiting for the management staff to contact D1 and D2. The police did not have to rely on the management staff.

38. On the one hand, I do not think that anyone, whether the police or the Bar staff, asking them to surrender at the police station, without more, can be regarded as a threat. In the police station, they could exercise their right of silence, like what D1 did in the early part of his VRI^{^[3]}. On the other hand, the promise of a lower sentence or it being a small matter that will finish shortly, if established, can be an inducement.

39. Although D2 in his VRI stated that his manager (supposedly DW1) had told him that there was a case filed against D1 and him and asked them to surrender to the police^{^[4]}, he did not state that DW1 had told him anything about a lower sentence or it being a small matter that would finish shortly. Besides, neither D1 nor D2 in court says that he had told the police at any stage that he came to the police station upon being promised a lower sentence or that it was a small matter that would finish shortly.

40. The incident of a customer seriously injured by a glass object just after coming out of the Bar was not a small matter from any perspective. DW1’s and DW2’s evidence is that DW1 told DW2 that it was a small trouble and that her company had talked to the police already. I would expect a caring father like DW2 to be very anxious to know what incident it was that involved the police going after his son and in what capacity. To the contrary, without being told or asking to be told of the slightest details, DW2 went on drinking socially. I reject their evidence here.

41. I do not believe that D1 and D2 had been promised a lower sentence or it being a small matter by DW1 or anyone. I am satisfied that their decision to surrender at the police station was entirely voluntary.

Submissions: (2) Inducement of bail upon completion of procedure including VRI (paras. 13 – 21)

42. In para. 13, D1 and D2 allege that before the VRIs and house-searches, PW6 DSSgt MA had induced them to cooperate by promising them bail at $5,000. Counsel relies on D1’s knowledge of a room on the same floor of the VRI room, in which the investigation team was at work as evidence of such allegation. As I see it, the sight of the investigation team entering or at work in a room does not necessarily imply D1 or D2 has been put inside to be induced.

43. In para. 14, counsel relies on Mr. S’s not having any memory of what happened when he interpreted for D1 and D2 as an indicator of inducing, on behalf of the police whether voluntarily or vicariously, them to cooperate in return for bail. I see nothing unusual for Mr. S not having any memory of what happened, as the task he did was nothing unusual. He says that it has been his practice to interpret faithfully. He has not ever made any inducement of bail to anyone in his career. I believe his evidence.

44. In para. 15, counsel queries why D1 (also applicable to D2) was not cautioned for wounding with intent contrary to section 17 when he surrendered at the police station. He was only cautioned for the lesser offence of wounding contrary to section 19. The police officers say that at that time the police were not yet sure whether it was a case of wounding with intent. I find it a reasonable stance at that stage as there were torn clothes, necklace and nametag seized at the scene, potentially a case of self-defence or disproportionate self-defence open to wounding without intent. I note that this matter is not mentioned in the grounds of objection. D1 now complains that if he had been cautioned for the more serious offence, he would not have answered questions in the VRI. First of all, I do not accept that the police have misled him in anyway. Secondly, if he had regarded it so important to know precisely which kind of wounding offence it was, so that he could decide whether to talk or not in the VRI, he would have asked the police to clarify. He would not have assumed without clarification that it was the lesser kind of wounding. Thirdly, he was properly cautioned before he answered questions in the VRI.

45. In para. 16, counsel submits that upon being asked, “Regarding this wounding case, is there anything you want to say?” at # 115, D1 replied, “No, I don’t have anything (to say),” at # 118^{^[5]}. The interviewing officer PW8 ought not to have asked any more questions.

46. I note that the next question from PW8 was “Well, now, I am going to continue to make enquiries of you into this wounding case”. D1’s answer was “Okay” at #126.

47. PW8 cautioned D1 again at #127. D1 replied “Okay” at #131.

48. PW8 then asked, “What is your occupation?” D1 replied “Bartender” at #136.

49. PW8 asked some questions about the nature and system of work. D1 answered without objection.

50. At # 225, PW8 asked about the working hours on 20/10/2018. D1 replied, “I started to work from 5:30,” at #228. Without PW8 saying or asking anything, D1 volunteered, “And then after the fighting happened, just like that, I don’t recall when I left,” at # 230.

51. PW8 asked, “Can you tell (us) about what fighting case was (it)?” at # 233. D1 replied that it was about the lost credit card. PW8 continued to ask about the people involved with the card. It was a subject-matter initiated by D1. PW8 followed it up with questions, to which D1 answered without objection.

52. At # 264, PW8 returned to the subject-matter of the fighting case D1 talked of before the card, “Can (you) further elaborate on what fighting case (it) was (and) what did (it) have to do with the white person?” D1 elaborated on where the people were.

53. At # 272, PW8 asked, “What happened?” D1 described how the white man came for the card. At # 277, PW8 asked, “And then?” D1 continued with how it developed into a fight upon PW8 asking him, “And then?”, “What next?” or to clarify the meaning of a word or phrase of his answer, from # 292 to # 452.

54. As I see it, PW8’s questions did not circumvent D1’s right to remain silent. They were fair and flowed naturally from D1’s answers. They were not tricky or oppressive.

55. In para. 17, counsel criticizes Mr. S for his “gentle/polite command/persuasion to tell”. He is said to be coaxing D1 into telling things. I find his manner and expression both appropriate as the interpreter. I do not agree with this criticism.

56. In para. 18, counsel submits that the police tricked D1 into talking by undercharging D1 with wounding contrary to section 19. Another trick is not to tell him that he was the suspect. As I have explained before, the reference to wounding simpliciter was an accurate and reasonable one. No doubt he knew he was the suspect, otherwise he would not have been arrested for wounding. There was no trickery. I do not see how it prejudiced D1 (or D2).

57. In para. 19, counsel submits that although no injuries can be seen on the APS photos of D1, D1’s medical report stated that at around 6:00 p.m. on 21^st October 2018, “there were mild tenderness and swelling with superficial abrasion over his right periorbital area.”^{^[6]} Counsel suggests that despite such injuries, which PW8 must have noticed, PW8 proceeded with the VRI. D1 says that he was actually in pain. I do not think the injuries could be seen by PW8. I believe that the police officers were not given his medical report. Actually, before asking about the case, PW8 asked him if he was physically fit to continue with the VRI. He replied that he was^{^[7]}. I believe his reply was truthful.

58. In para. 20, counsel submits that at # 109 and 127, PW8 said, “what you say will be … given in evidence.” Mr. S interpreted it as “[whatever you say] may be given in evidence” at # 111 and 129; Mr. S therefore misled D1 into thinking that there was a chance that whatever he said would not be given in evidence. I do not see how the phrase “may be given in evidence” could make D1 assume that whatever he said would not be used as evidence.

59. In para. 21, counsel submits that M - and B - were not called as witnesses to rebut the defence suggestion that no message to surrender was left by the police officers; the prosecution should call them; they would be cooperative as the incident might have repercussions regarding the Bar’s liquor licensing; and they had the motive to direct D1 and D2 to surrender to the police.

60. I do not see how the incident could affect the Bar’s liquor licensing. Counsel does not elaborate how, either. If the defence want to suggest a case based on their evidence, in order to discharge the evidential burden, it is for the defence to call them. It remains for the prosecution to discharge the persuasive burden to prove voluntariness and fairness of the VRIs and the notebook entries. The prosecution had their last-known contact information available to the defence. The defence did not call them.

Submissions (3): When and where did D1 get $5,000 for bail (paras. 5 – 9)

61. In para. 5, counsel refers to the general practice for an arrested person to be searched upon being placed in custody under the duty officer at the Report Room. D1 had only $70 (while D2 had only $156) according to the Prisoner Person Property List of 22^nd October 2018 at 2139 hours^{^[8]} when he was body-searched by the duty officers team and first detained at the Report Room. However, he was not searched by the duty officers team on 23^rd October 2018 upon returning to the police station after the house-search. There was no updating of, or change in, the Prisoner Person Property List. There was no record of anyone visiting D1 or passing any money to him at the Report Room before he personally paid up the $5,000 bail and got released from the police station. It supports the defence case of bail set at $5,000 before VRI and house-search then implemented by the police allowing him to take $5,000 from his mother DW3 during the house-search.

62. D1’s mother DW3 received the call from him about 15 – 20 minutes before he showed up at the door with the police. The house-search was at between 2318 and 2328 hours while his VRI had completed beforehand, at 2211 hours. She says no house-search was conducted. The defence in substance suggest that the house-search was a front to let him get bail money from home. I find her evidence implausible that, with his inculpatory VRI already completed, the police did not have to get D1 to cooperate anymore. There was no need to stage a house-search only to let D1 get the money from home. The natural course would be to let D1 call home from the police station to ask his family member to bring the bail money to the police station.

63. A shirt and a vest were recovered from D2’s house-search. There is no suggestion that money was passed to him during the house-search. DW4 brought $5,000 to the police station for his bail.

64. DW4, who is D2’s aunt, went to the Report Room of the Central Police Station on the night of 23^rd October 2018. She told the police officers that she was D2’s aunt and wanted to see D2. After waiting for an hour, D2 was brought out to see her. She gave $5,000 to D2. No one asked for her identification or asked her to sign anything. Neither her visit to D2 nor her passing money to D2 was recorded.

65. PW16 was WDPC 19077, she was the duty officer at the Central Police Station who processed D1’s and D2’s bail by receiving $5,000 each from them directly. Her own practice is to make a record of any visitor for detained persons or any money passed to detained persons. She expects the duty officers’ team to record this on the Detention Notes of the detained person. There is no record of anyone visiting or passing money to D1 and D2. She cannot explain why.

66. D1 says that the police did nothing in the house-search except to allow D1 to take $5,000 from DW3. His case is built upon the absence of police record of anyone visiting or handing over money to him, so that he must have got the money from his family during the house-search. As seen in the case of DW4, DW4 visited and passed money to D2 at the Report Room but the duty officers team has not made any record. Defence counsel do not suggest any collusion between the duty officers team and the investigation team. I think it possible that someone had brought money to D1 at the police station without being recorded. As said hereinbefore, I reject D1’s allegation that DW3 passed him the bail money during the house-search. The reason, I repeat here, is that D1 had already given an inculpatory VRI before the house-search, so that the investigation team did not have to get D1 to cooperate anymore. Instead of staging a house-search, they could simply let him call home from the police station to get a family member to bring the bail money to the police station.

67. I do not believe that the investigation team had told D1 and D2 before VRIs and their house-searches that they could have bail if they cooperated.

Conclusion

68. The grounds of objection are not made out. I rule D1’s and D2’s VRIs and the notebook entries admissible.

	( E Yip )
	District Judge

[1] D5

[2] D7

[3] #118

[4] # 461 – 477

[5] P19

[6] D5

[7] #37

[8] P50 for D1; P51 for D2

DCCC 611/2019

[2021] HKDC 1187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 611 OF 2019

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	HKSAR
	v
	THAPA Manish	(“D1”)
	PUN Kishna	(“D2”)

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Before:

HH Judge E Yip

Date:

16^th September 2021(Reasons for ruling); (Ruling made on 24^th August 2021)

Present:	Ms ALVA Patricia E., Counsel on Fiat, for HKSAR
	Mr Mohnani Dheeraj Suresh, of M/s Mohnani & Associates, assigned by the Director of Legal Aid, for the 1^st defendant
	Ms Bharato S. Manek, of M/s B. Manek & Co, assigned by the Director of Legal Aid, for the 2^nd defendant

Offence:	[1] Wounding with intent (有意圖而傷人罪)
	[2] Common assault (普通襲擊罪)

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REASONS FOR RULING ON IDENTIFICATION PARADE

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Charge

1. D1 pleads not guilty to wounding with intent (Charge 1). D2 pleads not guilty to common assault (Charge 2).

Prosecution case in brief

2. PW1 was a customer of a bar operated by D1 and D2. He went there with a wife on the occasion in question. There was a ruckus between them, resulting in PW1 being wounded by D1 and assaulted by D2. There was an eye-witness PW4.

3. The prosecution rely on D1’s and D2’s VRIs and their being identified by witnesses in the identification parade. D1 and D2 have no dispute that the identification parade was voluntary but object to the admissibility of the identification parade which they say the police had not fairly conducted.

Prosecution case on admissibility of identification parade evidence

4. The prosecution seek to adduce the evidence of D1 and D2 being picked out by 2 witnesses (PW1 and an eye-witness PW4 respectively) in an identification parade (“the Parade”) held on 19/12/2018 conducted by OC Parade, who was CIP NIP (PW5).

5. D1 objects to the admissibility on the grounds that the Parade “was unfair because only 6 of the 14 actors on the parade, including D2, were ethnically Nepalese. All the others were Indians or Pakistanis who looked extremely different from persons of Nepalese Origin.”^{^[1]}

6. D2 objects to the admissibility on the grounds that the Parade “procedure was unfair because only 6 of the 14 actors at the parade, including D1 and D2, were ethnically Nepalese.”^{^[2]}

7. This court holds a hearing on this special issue. The prosecution calls the OC Parade (PW5), the OC Case (PW13), and the police officers assisting the two OCs.

8. The course of the Parade was recorded in the Parade Book (“the Parade Book”). D1 and D2 were first served and explained the Identification Parade Notice To Suspect, which they signed in acknowledgment.

9. It was followed by the Brief Facts for the Parade furnished by DIP NG (PW13), which stated as follows:

Reference: C RN 18051854
Offences:    Wounding 19 – Wounding/Inflicting Grievous Bodily Harm
Time/Date: 2018-10-20, 2245 hrs
Location:    Outside Staunton’s Wine Bar & Café, 10 Staunton Street, Central
Witnesses: (1) [PW1 in our present case] Australian male / E - -, aged 32, HKID …
       (2) [PW4 in our present case] Chinese male / W - -, aged 31, HKID …
Suspects;    (1) [D1 in our present case] Nepalese male / THAPA Manish, aged 21, HKID …
    (2) [D2 in our present case] Nepalese male / PUN Kishna, aged 25, HKID …

1. At around 2245 hrs on 2018-10-20, Victim and his wife went to “above location” for entertainment. A dispute later ensued between them and two other males over payment issue. In the heat, one of the males used a glass to smash on Victim’s head while the other male punched Victim’s head multiple times. A passer-by witnessed the incident. Case was reported.
2. The purpose of this Identification Parade is to see if Witnesses could identify the assailants of the above incident.
[signature]
(NG - -) [PW13]
OC DATS CDIST
2018-12-07

10. After the date of the aforesaid Brief Facts and before the Parade, on 12/12/2018 PW13 through his subordinate DPC 16906 (PW12), who was the Investigation Officer, sent a Confirmation of order for provision of actors^{^[3]} to Oscar Actors Centre for the Parade. Details of the description of the requested actors were as follows:

Nepalese males, 20 – 27 years old, 165 – 175 cm, 60 – 70 kgs (14 people in total)

11. PW13 gives evidence that it was his decision to have one parade for both D1 and D2 together because the incident involved 2 assailants who attacked the victim at the same time, so it was not appropriate to have one parade for each suspect.

12. D1 was stated to be 165 cm whereas D2 was 173 cm according to PW4’s witness statement. PW13 therefore requested for 165 cm – 175 cm actors.

13. D1 was stated to be 21 years old and D2 25 years old according to the Brief Facts he wrote. PW13 therefore requested for 20 – 27 years old actors.

14. It was not PW13’s duty to view the actors at any juncture. It was the duty of OC Parade, now SP then CIP NIP (PW5) to do so. PW5 was not aware of the contents of the request for actors. He was to assess the suitability of the actors at the identification parade.

15. He began the procedure by serving a Notice to Suspect, POL 279A (Rev. 2016)(P34A), which explained the rights of the suspects in an identification parade, on D1 and D2. D1 and D2 signed in acknowledgment. Para. (3) provides as follows:

… It should be pointed out to you that neither identification in Court nor identification under whatever other arrangements the police may make, may be as fair to you as a formal identification parade. You may request a formal identification parade rather than any other method of identification if you so prefer.

16. In his own wording to comply with para. 10 on p. 4 of the Parade Book, PW5 told D1 and D2 as follows:

You can see 14 actors here. Later, for the later identification parade, I need only 12. You can discuss, both of you, to pick up 2 actors you don’t want them to participate in the identification parade based on their appearance or their body build. You can discuss among yourselves. Of course I will make some modifications later to cover some characteristics like, maybe I’ll ask them to wear a shower cap, something like that. (P60 @ 15:07:15 – 15:08:20)

17. After D1 and D2 excluded 2 actors, only 12 actors remained. He then instructed all to use a shower cap on the top, a facemask to cover the chin, and a facemask to cover the neck (apparently to conceal D1’s tattoo of a gladiator with stretched arms to the sides). Later, he asked all participants to be seated. These arrangements were made by himself without asking if D1 and D2 objected to them.

18. A police officer tied a facemask at the back of D1’s neck to cover the tattoo. This way of tying was different from all others who had the two strings of the facemask loop down from the ears. The difference would be visible at the side of the neck if the witness paid attention to it. Besides, as demonstrated by D1 standing before him in the course of his being cross-examined, a facemask of the type he used in the Parade, an ordinary clinical facemask, was not broad enough on the two sides to cover D1’s tattoo, leaving either of the gladiator’s hands exposed. It only took a small movement of his head after a few seconds to displace the facemask enough to expose more of the tattoo. It is put to him in cross-examination that he should have used a scarf to wrap around each participant’s neck to fully conceal the tattoo on the neck. He insists that the scarf was unnecessary. I think the facemask would expose a bit of D1’s tattoo but it was a tiny bit.

19. After the modifications, he said to D1 and D2:

Now I want to ask you: ‘Do you have any objection to any of the selected actors to take part in the later identification parade?’ (P60 @ 15:16:20 – 15:16:27) (my emphasis)

20. At the first juncture, PW5 had told D1 and D2 that he needed only 12 actors to participate in the identification parade. In response to that, D1 and D2 excluded 2, leaving only 12 for the identification parade. At the second juncture, which was after the modifications to appearance was made to the actors, PW5 asked if D1 and D2 had any objection to any of the selected actors to take part in the later identification parade.

21. When viewing the footage in court, PW5 agrees that some of the remaining 12 actors had facial hairs and some had a shadow over their lips (which he regards not as moustache but some shadow cast there because of the lighting). D1 and D2 did not have facial hairs or such shadow over their lips.

22. The defence show him the photos of the remaining 12 actors. They were lodged with the Immigration Department when they applied for identity cards. He is to assess the facial features, discounting the hair on the top and the facial hairs, as these features can vary within a short time. He agrees that D1 and D2, ethnically Nepalese on record, looked like typical Nepalese. He says there were only 7 actors that looked like or look a bit like Nepalese^{^[4]}. I think this comparison is fraught with two problems. First, there is no way to tell if there was any change in the appearance of the actors, whether by accident or by artificial means between the dates of the photo and the Parade. Secondly, the two-dimensional image on photo can never measure up to the clarity and profile of the three-dimensional view in person. Therefore, I do not think the photos here can have any probative value.

23. PW12 DPC 16906 was the investigation officer of the case. On 23/10/2018, he went to the bar to investigate the case. Later on the same day, he handed over D1 at the Report Room to PW8 for VRI at Room 630. He saw D1 and D2.

24. Before the Parade, he had notified PW1 to wait at McDonald’s and PW4 to wait at Starbucks, both of Shun Tak Centre, Sheung Wan. He then walked them to the witnesses’ room of the Central Police Station. He stayed with them there until they were called in turn to view the Parade.

25. His acts were in breach of para. 20 in Chapter 46 of the Force Procedures Manual where it is stated as follows:

The officer … specifically detailed to investigate the case should not be sent to notify or escort a witness to attend the parade and should not communicate with them before the parade is held. Arrangements are to be made to ensure that witnesses will be met in a location that cannot be seen by the suspects, and escorted to the waiting room by the designated officer. An OC Case should take appropriate steps to ensure that a witness attending an identification parade is not kept waiting unnecessarily.

Defence case on admissibility of identification parade evidence

26. The defence submit no case to answer. I rule a case to answer.

27. D1’s evidence in court is that he took it from PW5 that he and D2 each could exclude only one actor. He knew 3 of the actors beforehand. One was Nepalese. One was Indian. The other one was Indian or Pakistani. He had wanted to exclude more as some actors bore no similarity to his appearance. He did not raise it with PW5 as he did not want to question the police.

28. D2’s evidence in court is that there were some actors who looked like Indian/Pakistani/Bangladeshi. Some had a moustache. He did not understand that he could exclude more than 2 actors.

29. There are no defence witnesses.

My view on admissibility of identification parade evidence

30. The prosecution and the defence make written submissions. The defence also make oral submissions. Their oral submissions basically repeat their written submissions.

31. In summary, the defence criticize the Parade as follows:

(1)   D1 and D2 had in their own mind intended to exclude more due to dissimilar appearance;
(2)   Most of the actors were not ethnically Nepalese;
(3)   All actors bore no resemblance to D1 and D2, some had a beard, a moustache, a prominent nose, sideburns, some had a different build and height, some were of a different age;
(4)   D1’s facemask had its strings tied at the back of his neck, whilst all others had the strings looped over the ears;
(5)   D1’s facemask did not fully cover the tattoo on his neck;
(6)   PW5 only allowed D1 and D2 to exclude two actors, although D1 and D2 had in their own mind intended to exclude more due to dissimilar appearance;
(7)   PW5 should have cancelled the Parade on his own initiative;
(8)   PW1 and PW4 might have seen the defendants and/or the actors just before the Parade;
(9)   PW12 escorted PW1 and PW4 from Shun Tak Centre to the witnesses’ waiting room and stayed with them there, in breach of the Force Procedures Manual – Chapter 46 (“the Manual”);
(10)   PW4 was able to see 8 of the actors being different from D1 and D2 due to their ethnicity.

(1) D1 and D2 had different appearances and should be put into separate parades

32. I consider para. 30 of the Manual. It provides as follows:

One suspect only will be included in a parade, unless there are two suspects of roughly similar appearance, in which case they may be paraded together, but with at least twelve other persons. In no circumstances will more than two suspects be included in one parade.

33. The camera was far, and at an elevation, from most participants in the Parade. The resolution of the footage was not high. It does not allow for a meticulous examination of the appearance of each defendant. The comparison has to be based on the APS photos of D1 and D2.

34. Para. 29 of the Manual provides as follows:

The parade is to consist of … persons who should as far as possible resemble the suspect in age, height, general appearance and position in life.

35. Despite the difference of 5 years on record, D1 looked the same age as D2, if not older. There was a difference of possibly 10 centimetres in height, but that was minimized by PW5 making them seated at the Parade. Neither of them has a prominent general appearance. There is no allegation based on different position in life. Resemblance is a matter of degree. As long as there is some resemblance in age, height, general appearance and position in life as far as possible among the participants, a parade can be held.

(2) Most of the actors were not ethnically Nepalese

36. I think an ethnic identity on official record is not a safe guide to resemblance in appearance. People may not have a typical ethnic look.

(3) All actors bore no resemblance to D1 and D2, some had a beard, a moustache, a prominent nose, sideburns, some had a different build and height, some were of a different age

37. At the stage of para. 10 of the Parade Book, PW5 asked D1 and D2 to pick out 2 actors they found not resembling them. He then proceeded with the modifications by a shower cap and two facemasks. The footage shows that some actors had a beard, a moustache, and/or sideburns. The beard, moustache and/or sideburns were visible, but not prominent. There were a few with bigger noses, but not prominent noses. Some were stouter or taller than the suspects, but not prominently so, and besides, minimized by the long-sleeved clothes and seated pose. I do not find the actors look different in age from D1 and D2. It is an exaggeration to say that all actors bore no resemblance to D1 and D2.

(4) D1’s facemask had its strings tied at the back of his neck, whilst all others had the strings looped over the ears

38. It is not easily seen from the front. PW1 is not being asked whether he noticed that. PW4 says he did not pay any attention to that.

(5) D1’s facemask did not fully cover the tattoo on his neck

39. When D1’s counsel cross-examines PW5, she asks D1 to do a demonstration of whether the facemask could fully cover the tattoo on his neck. I saw that it could. Another demonstration was done. This time D1 moved his head freely for a while. I saw that the facemask was slightly displaced on one side. A small part of the tattoo, namely the hand of the blue-coloured gladiator, was exposed. I repeat the above, that PW1 is not being asked whether he noticed that, and that PW4 says he did not pay any attention to that.

(6) PW5 only allowed D1 and D2 to exclude two actors, although D1 and D2 had in their own mind intended to exclude more due to dissimilar appearance

40. PW5 asked D1 and D2 to exclude 2 actors from the 14 actors. Then he modified the remaining 12 by the shower cap and the facemasks. After that, he asked if D1 and D2 objected to any of the selected actors to take part in the Parade. D1 and D2 had no objection.

41. Para. 10 of the Parade Book stated that PW5 did ask D1 and D2 to select the 12 actors so soon. It was before the modifications.

42. Para. 30 of the Manual provides as follows:

One suspect only will be included in a parade, unless there are two suspects of roughly similar appearance, in which case they may be paraded together, but with at least twelve other persons. In no circumstances will more than two suspects be included in one parade. (my emphasis)

43. The Manual allows “at least twelve other persons” whereas para. 10 of the Parade Book limited it to 12. Para. 10 allows less right to D1 and D2 than the Manual.

44. At the stage of para. 10 of the Parade Book and before the modifications, it could be confusing to D1 and D2 to be told that they should exclude 2, to make 12 remain at the Parade. D1 and D2 in their evidence in court say that, after the modifications, as recorded in para. 11 of the Parade Book, when PW5 asked them if they objected to any of the selected actors to take part in the Parade, they told PW5 that they had no objection. In their mind, they had actually wanted to exclude some more actors.

45. Despite PW5’s said limit of 2 actors to be excluded at para. 10 of the Parade Book, I am satisfied that at para. 11, PW5 had eventually asked them if they objected to any of the selected actors to take part in the Parade. It was a clumsy way to make a simple point, but I think his point, that they could exclude more actors from the remaining 12, was made out to D1 and D2 at that later juncture.

(7) PW5 should have cancelled the Parade on his own initiative

46. If PW5 had cancelled the Parade on his own initiative, he could have been accused of depriving them of their right to have an identification parade in accordance with para. (3) of the Identification Parade Notice to Suspect.

(8) PW1 and PW4 might have crossed path with the defendants and/or the actors just before the Parade

47. I note that PW1 was to wait at McDonald’s and PW4 at Starbucks in Shun Tak Centre. The actors were to wait at the Dog Park which was 10 metres away from the entrance of the Central Police Station. D1 and D2 were to wait at the Report Room. PW12 escorted PW1 and PW4 from Shun Tak Centre to the witnesses’ waiting room. When they passed the Report Room, the defendants and the actors were not there. I do not think there was any juncture that PW1 and PW4 had seen the defendants and/or the actors just before the Parade.

(9) PW12 escorted PW1 and PW4 from Shun Tak Centre to the witnesses waiting room and stayed with them there, in breach of the Force Procedure Manual

48. PW12 notified PW1 and PW4 to meet up at the respective shops at Shun Tak Centre. He also escorted them all the way to the witnesses’ waiting room and stayed with them there. There is no suggestion that his presence or communication with PW1 and PW4 actually affected the Parade. However, his acts were in breach of para. 20 of the Manual, which provided that:

The officer … specifically detailed to investigate the case should not be sent to notify or escort a witness to attend the parade and should not communicate with them before the parade is held… (my emphasis)

(10) PW4 was able to see 8 of the actors being different from D1 and D2 due to their ethnicity

49. While PW1 says that he could not distinguish the Nepalese or the Filipino at the Parade, PW4 says he could readily see a few Nepalese and the others were Indian/Pakistani. This difference in PW1’s and PW4’s perception as to ethnicity indicated that neither PW5 nor anyone could easily predict and satisfy a particular witness by applying his own standard of resemblance. PW5’s duty was to conduct a fair Parade as far as possible. I repeat para. 29 of the Manual, which provides as follows:

The parade is to consist of … persons who should as far as possible resemble the suspect in age, height, general appearance and position in life.

50. I am satisfied that he had achieved that at the Parade.

All aspects considered

51. There was a breach by the investigation officer PW12 of para. 20 of the Manual by his notifying and escorting PW4 to the witnesses’ waiting room. He also stayed there with them until they were called in turn to view the Parade. PW1 was able to identify D1 whereas PW4 was able to identify D1 and D2 in the Parade. There is no suggestion of any communication between him and such witnesses. They actually say that they could recognize him, or them, as the case may be. They did not say that it was because PW12 had assisted them or hinting to them to facilitate their identification. I am satisfied that such breach had occasioned but it caused no actual prejudice to the defendants.

52. I think the degree of resemblance in appearance was acceptable. PW5 had also asked D1 and D2 if they objected to the 12 actors to take part in the Parade. D1 and D2 had no objection.

53. The Parade was conducted in a fair manner. I rule in such evidence.

	( E Yip )
	District Judge

[1] D1’s objections in writing dated 2021-8-2

[2] D2’s objections in writing dated 2021-8-2

[3] P43, or Court I/T’s English translation P43A

[4] As per the Record of Actors Forming Parade on p. 2 of the Parade Book, he says in court that Actors 3, 4, 7, and 8 looked like Nepalese whereas Actors 11m 13, and 14 looked a bit like Nepalese though not ethnically Nepalese.

HKSAR v. THAPA MANISH AND ANOTHER

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