Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Hksar v Asif Ahfaq Mehmood And Others

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date25 November 2021
Neutral Citation[2021] HKCFI 3643
Year2021
Judgement NumberHCCC138/2020
Subject MatterCriminal Case
CourtCourt of First Instance (Hong Kong)
HCCC138B/2020 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

________________________

BETWEEN
HKSAR

and

ASIF AHFAQ MEHMOOD 1st Defendant
NABEEL 2nd Defendant
KWOK CHING-LOK 3rd Defendant

________________________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 22 November 2021

Date of Ruling: 25 November 2021

________________________

RULING

________________________

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7.5.1 At 1st A.E. Bundle 0059-0082, items 3, 4, 5 have been withdrawn from the Admitted Facts but are still objected to.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

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT