Case Detail

DCCC 269/2020

[2023] HKDC 1710

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 269 OF 2020

________________________

	HKSAR
	v
	GURUNG Ashis (D1)
	HAIDER Ali (D2)

________________________

Before:

H.H. Judge G. Lam

Date:

27 December 2023

Present :	Mr. Dimitri Au Yeung, SPP (Ag.), of the Department of Justice, for HKSAR.
	Mr. William Allan instructed by M/s Mohnani & Associates, for D1 and D2.

Offences :	(1) Robbery（搶劫）
	(2) Attempted robbery（企圖搶劫）

DECISION ON COSTS

Both defendants were jointly charged with an offence of "Robbery" (Charge 1) and an offence of "Attempted robbery" (Charge 2). They pleaded not guilty to both charges.

2. There is no dispute that the 2 local Chinese victims in this case were robbed by 3 to 4 masked males with dark complexion. Both victims were unable to see the face of any robber. The only person who claimed to have seen the faces of the robbers was SO1[1] (PW3). He said in his evidence that he had seen the robbers' faces prior to the robbery when they had not yet put on their masks. SO1 witnessed the robbery and relayed the descriptions of the culprits to his colleagues standing by in the vicinity through radio. Based on the information they heard, AO1 (PW5) and AO2[2] (PW4), who did not witness the robbery, arrested D1 and D2 respectively shortly after the robbery at different locations near the crime scene. In short, the successful prosecution of D1 and D2 hinges upon the identification evidence coming from PW3.

3. Defence counsel Mr. Allan challenged the admissibility of 2 identification parades held on 27 June 2019[3] in which PW3 identified D1 and D2 as two of the robbers. The first one involved D1; whereas the second one, D2. Parties agreed to deal with this special issue by way of alternative procedure.

4. Written grounds of objection respectively dated 3 October 2023 and 18 November 2022 were submitted by Ms. Bina Sujanani (D1's former counsel) and Mr. William Allan. Ms. Sujanani was discharged by D1 on Day 3 of this trial (5 October 2023) when she was in the middle of her cross-examination of PW3. Mr. Allan formally took over D1's case on Day 5 (10 October 2023). He ended up representing both D1 and D2.

5. The trial of this case was originally fixed for 8 days from 3 to 12 October 2023. Due to the unforeseeable circumstances described above, the trial had to go part-heard with 5 days reserved. It resumed on 20 November 2023 and finished on 24 November 2023.

6. The evidence for the special issue ended in the morning on 24 November 2023. Counsel for both sides then made submissions on the special issue. I gave my ruling after lunch on the same day. I was not satisfied beyond reasonable doubt that the 2 identification parades held on 27 June 2019 involving D1 and D2 were fairly conducted. Therefore, I ruled that Exhibits PP30 and PP35 as well as their related documents were inadmissible. On 5 December 2023, I handed down the reasons for my ruling[4].

7. Right after I gave my ruling on the special issue on 24 November 2023, Mr. Au Yeung for the prosecution conceded that there was no case to answer for D1 and D2 on the general issue. I dismissed both charges accordingly. Mr. Allan immediately applied for costs on behalf of D1 and D2. Mr. Au Yeung objected on the basis that both defendants have brought suspicion upon themselves. Having considered their oral submissions, I now give my decision.

8. As I have indicated earlier, the successful prosecution of D1 and D2 hinges upon the identification evidence coming from PW3. Without the evidence of the 2 identification parades held on 27 June 2019, there is no evidence to prove that D1 and D2 were 2 of the robbers observed by PW3. At most the prosecution could prove is that they were present in the vicinity of the crime scene shortly after the robbery, which is hardly evidence of bringing suspicion upon themselves.

9. I have considered the contents of the respective video recorded interviews ("VRIs") of D1 and D2 (Exhibits P23B and P24B). At most they have admitted that they saw a robbery[5]. They both denied that they had anything to do with the robbery[6]. They have explained why they were present at the respective locations of their arrest. Mr. Au Yeung submitted that both defendants have admitted in their VRIs that they had run before they were arrested. Mr. Allan submitted that running away upon seeing a robbery is normal. I do not consider that in the present case, mere admission of having run prior to being arrested amounts to evidence of bringing suspicion upon oneself which can justifiably deny an application for costs.

10. Based on the reasons stated above, I grant the defence application for costs. D1 is entitled to his costs of this trial starting from Day 5 (10 October 2023); amount to be taxed, if not agreed. D2 is entitled to his costs of this trial; amount to be taxed, if not agreed.

	(G. Lam)
	District Judge

[1] PW3 was (and still is) a police officer tasked with surveillance duties whose identity cannot be revealed to the general public. He was thus given the code name SO1.

[2] Similar to PW3, the identities of PWs 4 and 5 cannot be revealed to the general public either. They were thus given the code names AO2 and AO1.

[3] Exhibits PP30 and PP35 together with their related documents.

[4] [2023] HKDC 1709.

[5] Exhibit P23C, counters 805 to 851; and Exhibit P24C, counters 1183 to 1222.

[6] Exhibit P23C, counters 793 to 804; and Exhibit P24C, counters 285 to 412, 1223 to 1228, and 1282 to 1287.

DCCC 269/2020

[2023] HKDC 1709

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 269 OF 2020

________________________

	HKSAR
	v
	GURUNG Ashis (D1)
	HAIDER Ali (D2)

________________________

Before:

H.H. Judge G. Lam

Date:

5 December 2023

Present :	Mr. Dimitri Au Yeung, SPP (Ag.), of the Department of Justice, for HKSAR.
	Mr. William Allan instructed by M/s Mohnani & Associates, for D1 and D2.

Offences :	(1) Robbery（搶劫）
	(2) Attempted robbery（企圖搶劫）

RULING ON SPECIAL ISSUE

Both defendants are jointly charged with an offence of "Robbery" (Charge 1) and an offence of "Attempted robbery" (Charge 2). They pleaded not guilty to both charges.

2. Defence counsel Mr. Allan challenged the admissibility of 2 identification parades held on 27 June 2019[1]. The first one involved D1, which took place from 1518 to 1547 hours; whereas the second one, D2, from 1555 to 1619 hours. Parties agreed to deal with this special issue by way of alternative procedure.

3. Written grounds of objection respectively dated 3 October 2023 and 18 November 2022 have been submitted by Ms. Bina Sujanani (D1's former counsel) and Mr. William Allan. Ms. Sujanani was discharged by D1 on the 3^rd day of this trial (5 October 2023) when she was in the middle of her cross-examination of SO1 (PW3). Mr. Allan formally took over D1's case on the 5^th day (10 October 2023). He ended up representing both D1 and D2.

4. The trial of this case was originally fixed for 8 days from 3 to 12 October 2023. Due to the unforeseeable circumstances described above, the trial had to go part-heard with 5 days reserved. It resumed on 20 November 2023 and finished on 24 November 2023.

5. The first witness for the special issue (PW6 Retired CIP Johnson) was called on the 9^th day of this trial (21 November 2023). Mr. Allan adopted the grounds of objection prepared by Ms. Sujanani.

6. The evidence for the special issue ended in the morning on 24 November 2023. Counsel for both sides then made oral submissions. I gave my ruling on the special issue after lunch on the same day. I now set out the reasons for my ruling.

7. In gist, Mr. Allan challenged the admissibility of both identification parades primarily on the basis of unfairness (i.e. the actors in each line-up were not of similar appearance and ethnicity as the suspect). Mr. Allan also raised the issue of voluntariness alleging that DSIP Chan (PW7) has unduly coerced D1's and D2's former solicitor (DW1 Mr. Chaudhry) into agreeing to participate in the 2 unfairly conducted identification parades.

8. The prosecution called 2 witnesses for the special issue (namely PW6, who was the OC Parade; and PW7, the then OC Case). Video footage of 2 identification parades conducted by a female Chief Inspector held on 26 June 2019 involving D1 and D2[2] were also produced during the cross-examination of PW7.

9. What took place in each identification parade was captured on video with audible sound of everyone's words. The footage of 4 identification parades involving D1 and D2 were played in court. Their contents are duly noted.

10. For the purpose of my ruling, the words "Nepalese" and "Pakistani" refer to ethnicity (or race) rather than nationality. It is common ground that D1 is Nepalese; whereas D2, Pakistani.

11. As shown in Exhibit P39, on 26 June 2019, before D1's identification parade began, in the presence of PW7 (the then OC Case), DW1 pointed out to the OC Parade (a female Chief Inspector) that at least 3 actors in the line-up were not Nepalese. She immediately made enquiries with the 3 actors and then sent them away. Without sufficient number of actors, the female Chief Inspector decided to cancel D1's identification parade. In his evidence, PW7 agreed that he knew why the female Chief Inspector cancelled D1's identification parade on 26 June 2019, because not all the actors in the line-up were Nepalese. He also agreed that he had borne in mind this actor issue when he arranged for D1's identification parade to be held on the following day.

12. According to DW1's evidence, who is a Pakistani, it was obvious to him that the actors in the line-up for D1's and D2's identification parades held on 27 June 2019 were not all Nepalese or Pakistani. He has explained in some details as to why he did not raise any objection under camera on the 2^nd day as he did on the previous day. I need not to go into that area for the purpose of my ruling.

13. PW7 said in his evidence that on 27 June 2019, he has verbally asked each actor his nationality[3] before he brought them into the parade room. He made sure that the actors in the line-up for D1 were all Nepalese; and for D2, all Pakistani.

14. Mr. Allan submitted that since the issue of actors' ethnicity was raised, setting aside the other elements of similar appearance (such as height, built, hair style and colour, clothing), the prosecution has the burden to prove beyond reasonable doubt that at least the actors in the line-up of each identification parade were of the same ethnicity as the suspect. Yet, the prosecution has failed to do so in the present case.

15. Without judging the credibility of his evidence, PW7 made no record of the nationality of each actor (though there is no such designated column in the standard issue Identification Parade Book[4]) on 27 June 2019, knowing that the same issue had caused the cancellation of D1's identification parade on the previous day. Furthermore, even if PW7 did ask each actor of his nationality, the answers he received are hearsay. To prove the ethnicity or nationality of the actors in each line-up, I am afraid the prosecution needs to call each actor to give evidence. Regrettably, I see no attempt by the prosecution to even trace the actors just to obtain a witness statement from them. Perhaps by taking a good quality still photograph of the line-up with the suspect could have been a quick fix for PW7 and saved the day for the prosecution. I accept that it is always easier said than done with the benefit of hindsight.

16. Page 2 of each Identification Parade Book contains a list of the actors with their personal particulars (name, ID Card number and address). Looking at their surnames[5], there is clearly a doubt that at least not all the actors in the line-up of D1's identification parade held on 27 June 2019 were Nepalese. In relation to D2's identification parade held on 27 June 2019, I have no reasons to doubt DW1's evidence that not all actors in the line-up were Pakistani.

17. I have viewed the video footage contained in Exhibits PP30 and PP35. The resolution of the images is not of high quality. The faces of the actors in each line-up are not clearly shown. I was unable to discern if the actors at least look similar to the suspect in terms of ethnicity, particularly in D1's identification parade. On the other hand, what I could see was dissimilar hair style and colour, clothing, height and built of the actors in D2's identification parade. Be that the oversight of PW6 or DW1, no measures were taken to overcome such dissimilarities (such as shower caps, blankets or asking the line-up to sit down). I do not for one moment suggest going so far out as what the female Chief Inspector did in Exhibit P40. In fact, I would seriously doubt the strength of such identification evidence (even if the suspect was identified). Furthermore, if the victim of a robbery claimed that all culprits wore face masks, I question how meaningful it would be to ask the victim to attend an identification parade.

18. Based on the reasons stated above, I am not satisfied beyond reasonable doubt that the 2 identification parades held on 27 June 2019 involving D1 and D2 were fairly conducted. Therefore, I rule that Exhibits PP30 and PP35 as well as their related documents are inadmissible.

	(G. Lam)
	District Judge

[1] Exhibits PP30 and PP35 together with their related documents.

[2] Exhibits P39 and P40.

[3] PW7 gave evidence in English and he used the word "nationality".

[4] See Exhibits PP29 and PP34.

[5] See p.2 of Exhibit PP29.

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