HKSAR v. ALE MAGAR KRISHPOO AND ANOTHER

DCCC 515/2024 & 702/2025

[2025] HKDC 1457

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 515 OF 2024 AND 702 OF 2025

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REASONS FOR VERDICT

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1.  There are 3 defendants in this case who are jointly charged with one count of wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap. 212.  D3 pleaded guilty to the charge while D1 and D2 pleaded not guilty, so only D1 and D2 stood trial in this matter.

2.  Needless to say, D3’s plea has no bearing on the innocence or guilt of either D1 or D2.  In this trial, the prosecution has to prove beyond reasonable doubt that D1, and likewise, D2, is guilty before any conviction can be entered against any of them.  The case of each defendant is to be considered separately.

THE PROSECUTION CASE

(1)  Overview

3.  The prosecution case in summary is that on 23 April 2023, at LRT Hong Lok Road Station (“Hong Lok Station”)  and its vicinity, Castle Peak Road, Yuen Long, SUNWAR Nabin (“PW1”)  was attacked by a group of men, resulting in PW1 sustaining injuries to various parts of his body.

4.  At trial, the prosecution only called PW1 to testify.

5.  The injuries of PW1 were agreed by way of admitted facts.

6.  D1 and D2 were arrested on 19 June 2023 and 11 August 2023 respectively and they both remained silent under caution.  PW1 positively identified D1 and D2 in the identification parade respectively held on 23 June 2023 and 18 August 2023.

7.  The defence initially indicated their challenge to the admissibility of both identification parades on the basis that they were conducted in a way that was unfair to the defendants.  However, such objections were subsequently withdrawn after PW1 had testified and before the close of the prosecution’s case.  The admissibility of such was, therefore, no longer in issue.

(2)  The 1^st part of the attack

8.  PW1, now aged 28, was born in Nepal.  He came with his parents to settle in Hong Kong in 2012.  He is a construction worker.

9.  On 23 April 2023, PW1 went to a bar in Yuen Long for a drink.  At around 8:30 p.m. he was on the stairs of the building leading up to the bar and a group of about 5 to 6 men surrounded him.  They were all wearing masks and most of them were holding knives.

10.  When PW1 came down the stairs onto the road, the men followed him and pointed at him saying “that’s the one, that’s the one”.  The men then attacked PW1 with knives and stabbed him on his thighs and arms.  PW1 could only recognize 2 or 3 of the men in the group, including one he said to be D2.

11.  PW1 tried to make escape and headed towards Hong Lok Station while 2 or 3 men followed him.

(3)  The 2^nd part of attack

12.  When PW1 reached the track of Hong Lok Station, those following him, together with a few other men, surrounded him.  There were 4 to 5 attackers and most of them were holding knives, including one whom PW1 later identified as D1 in the subsequent identification parade.  The assailants attacked him with knives for about 1 minute injuring his hands, thighs and back.  PW1 agreed that all assailants were wearing masks throughout the attack and some of them were in hooded upper clothing.

13.  After the attack, the men fled and PW1 sought help from some Nepalese in the vicinity.  He was then sent to the hospital.

14.  In cross-examination, PW1 agreed that he had been drinking around 8 p.m. that night.  He said he was not much intoxicated though he was unable to recall the exact amount of beer he had consumed.

15.  PW1 was also cross-examined on the inconsistencies between his testimony in court and what he had stated in his witness statements in respect of the number of persons who had attacked him.  PW1 explained that due to the lapse of time he was unable to recall everything.  Although he was sure that there were 2 to 3 assailants with knives in the 1^st part of the attack, he agreed that he did not know the exact number of attackers at Hong Lok Station.

(4)  The role of D1 and D2 in the incident

16.  PW1 did not know D1 but said he had “seen him around”.  Upon clarification, PW1 said he used to see D1 in the park in Yuen Long and in places where he drank beer for about 10 to 15 times over a period of 1 to 1 & 1/2 years.

17.  PW1 initially said he was sure D1 was one of the masked men who had attacked him with a knife at Hong Lok Station although he did not see D1 in the 1^st part of the attack.

18.  While the attacks took place at nighttime, PW1 said there was sufficient light.  He said when D1 was attacking him with a knife, he was facing D1 and was able to see the front of him for about 1 minute.  The distance between them was about 2 meters and lighting was sufficient.

19.  Under cross-examination, PW1 agreed that he was in panic during both parts of the attack and he only recognized some of the attackers, including D1. He agreed that in all the circumstances, including that all attackers were masked while some were in hooded clothing and that the second part of the attack took place frantically after the first one, PW1 did not have a chance to pay sufficient attention to identify D1.

20.  When PW1 was asked about the identification parade regarding D1, it was suggested that he made the identification without seriously considering all the faces of the people in the parade.  His reply was “maybe”.

21.  As for D2, PW1 said D2 first appeared amongst the group of men surrounding him at the stairs of the building leading to the bar that evening.  He then also saw D2 on the ground floor of the building where the 1^st part of the attack took place and D2 was holding something like a bottle.  D2 did not attack PW1 but was also wearing a mask at that time.

22.  When questioned as to whether he knew D2, PW1 said he had seen D2 around but did not elaborate further in this regard.

(5)  Injuries of PW1

23.  It is not disputed that PW1 suffered grievous bodily harm after both parts of the attack.  PW1 was sent to Tuen Mun Hospital at 2249 hours that night.  He was conscious and there were multiple chop wounds over his bilateral upper limbs, 3 cm deep laceration wound over his upper back and superficial laceration wound over his right thigh.  The mode of injury was compatible with trauma by sharp object.  Doctors in the Department of Orthopedics & Traumatology of the hospital also found lacerations on various parts of PW1’s forearms, left wrist, hands, right shoulder and right thigh.  Emergency operation was performed for the repair of the tendon and muscle of PW1’s right index finger.  Medical reports are produced as exhibit P5 and P6 in the trial.

Case to Answer

24.  Upon the closing of the prosecution’s case, I ruled that there was a case to answer in respect of the charge against each defendant.

The Defence Case

25.  Both defendants elected not to testify.  This is entirely their rights and that no adverse inference is drawn against them for remaining silent.

26.  Documents and video recordings in relation to the identification parade of the defendants respectively held on 23 June 2023 and 18 August 2023 were admitted and produced as defence exhibits.  These include the identification parade book of D1 (exhibit D-1), the video recordings of the parades (exhibit D-2 and D-4), and police form Pol. 279A in relation to D1 and D2 (exhibit D-6 and D-3).

27.  Both recordings were played and it was drawn to the Court’s attention that in the identification parade of D1, all participants were wearing masks and that their pants and shoes were covered by a black rug.  Likewise in the identification parade of D2, each participant was wearing a shower cap, a mask and the shoes were also covered.

THE ISSUES

(1)  Identification of the defendants by PW1

28.  Like every criminal trial, it is for the prosecution to prove the charge against the defendants.  Only if the prosecution can prove beyond a reasonable doubt that any of the defendants was involved in a joint enterprise to wound PW1 with intent to cause him grievous bodily harm can he be found guilty of the offence.  The defendants do not bear any burden of proof and they do not need to prove their innocence.

29.  The main issue in this case is identification.  The prosecution case depends on the correctness of the identification of both defendants.  I direct myself in accordance with the principles established in R v Turnbull [1977] 1 QB 224.  I warn myself of the special need for caution.

30.  Apart from PW1’s identification of both defendants, there is indeed no further evidence to link each of the defendants with the attack against PW1.  PW1 said he had seen both defendants before and I accept this part of his evidence. Thus, if PW1’s identification is unmistaken, this is a case of recognition.  However, I have also to bear in mind that recognition of acquaintances can be mistaken even if a witness appears to be honest or convincing.  While PW1 subsequently made positive identification of the defendants in the respective identification parade, the Court has to examine closely the circumstances under which he observed his attackers when deciding as to whether the identification, both at the time of the attack and at the identification parades, was reliable.

31.  I have also carefully considered the closing submissions of defence counsel in which he highlighted the weaknesses in the quality of PW1’s identification evidence during the attack, as well as matters which he considered diminishing the weight of the subsequent identification parades.  These included the manner the parades had been conducted and recorded and the apparent casual attitude adopted by PW1 in the process (the identification parade of D1 in particular).

32.  In the case of D1, while PW1 said he was sure that D1 was one of the assailants who had attacked him with a knife at Hong Lok Station, he also admitted that he did not have a chance to pay sufficient attention for the identification of D1 at the scene.  This, together with the following matters, renders it possible that his recognition of D1 was mistaken.

33.  I accept that PW1 was an honest witness who tried his best to tell the truth at Court what he said had happened.  However, I cannot be sure that PW1’s claim that D1 as one of the attackers that night was reliable.  I was particularly concerned that all the assailants were wearing masks and that the attack at Hong Lok Station, which took place shortly after the first attack and followed by a chase, happened within a minute.  Throughout that time PW1 did not deny that he was under a state of panic, and this no doubt affect the quality of his identification.

34.  Under such chaotic situation, despite sufficient lighting, it would be quite impossible for PW1 to observe the face of the masked attackers closely, especially because there were a few of them, not just a lone attacker.  Even though he was facing the front of them, he was undoubtedly busily avoiding their attack at the same time.  Indeed, I find that PW1 must be truthful when he agreed with defence counsel that under such confusing situation, he did not have a chance to pay sufficient attention to the identification of D1.

35.  If PW1’s identification of D1 during the attack may be inaccurate, needless to say, such subsequent identification in an identification parade cannot be relied on, for PW1 might have picked out D1 merely because he thought he saw D1 at the scene, not that he was sure that D1 was at the scene.  Since there is no other evidence in support of the identification of D1, I find that it would be unsafe to rely on the identification of D1 by PW1.

36.  In the case of D2, apart from the quality of the identification evidence, the defence also took issue as to the whether the presence of D2 at the scene of the 1^st part of the attack amounted to taking part in the joint enterprise with D1 and others to wound PW1 that night.

37.  Before analyzing D2’s role or participation in the incident, I first deal with the issue of identification.

38.  While PW1 said D2 was present with other men at the ground level of the building of the bar, it is unclear from the evidence as to the lighting condition and the distance between them.  There is also no evidence as to the length of time of this encounter, let alone the time of the actual observation and details of any interactions between them.  Importantly, PW1 did say that D2, like the other attackers, was wearing a mask that night.

39.  Since PW1 said he had seen D2 around before, if his identification of D2 at the scene was correct, this is a case of recognition.  However, PW1 made no further elaboration as to the circumstances under which they had previously met.  Therefore, when I come to assess the quality of PW1’s identification of D2 in the incident pursuant to the guidelines as set out in R v Turnbull, I am unable to be sure PW1’s claim that D2 was present with the other men at the scene of the 1^st part of the attack was reliable.  This inability stems from the fact that such was an identification in difficult circumstances – a sudden attack by a group of masked men at nighttime when PW1’s observation was made after the consumption of alcohol.  With the identification at scene not being reliable, for the reason given above, it follows that the subsequent identification parade also cannot be relied on.

(2)  Was D2 part of the joint enterprise ?

40.  Although I am not satisfied that PW1’s recognition of D2 as one of the men present in the incident was accurate, for the sake of completeness, I also deal with the issue as to whether the man alleged to be D2 was part of the joint enterprise to wound PW1 that night.

41.  The prosecution alleges that D1 and D2, together with others, were involved in a joint enterprise to wound PW1 with intent to cause him grievous bodily harm.  While it is undisputed that PW1 suffered grievous bodily harm in the incident, it has to be proved to the required standard that the circumstances would be sufficient to infer each defendant shared a common intention to cause PW1 grievous bodily harm and participated in it.

42.  PW1’s evidence in respect of D2’s involvement that night was brief.  He merely mentioned D2 was amongst the group of men who had surrounded him at the staircase outside the bar and that he saw D2 again when PW1 came down the building.  D2 did not attack him.  He was holding something like a bottle but there is no further evidence as to how D2 was holding it, whether he was doing anything with it and / or whether there was any other interaction between D2 and PW1 and between D2 and the other assailants.  It also appears that D2 did not take part in the chase nor was he present in the attack at Hong Lok Station.

43.  While the circumstances under which the man alleged to be D2, wearing a mask and present throughout the 1^st part of the attack was highly suspicious, I find that it cannot be inferred that he shared the common intention with D1 and other assailants to cause PW1 grievous bodily harm.

44.  The prosecution is unable to prove the charge beyond reasonable doubt.  I acquit both D1 and D2 of the charge.