HKSAR v. HUSSAIN TUQEER AND ANOTHER

DCCC 391/2023

[2026] HKDC 1417

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 391 OF 2023

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REASONS FOR VERDICT

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1.  Before me, D1 and D2 pleaded not guilty to a joint charge of Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212. Particulars are that they, on 21 January 2023, at the Pavilion in Kwai Hop Street Playground, No 9 Kwai Hop Street, Kwai Chung, New Territories, in Hong Kong, together with other persons unknown, unlawfully and maliciously wounded Sajid Umer Farooq with intent to do him grievous bodily harm.

2.  A trial is therefore necessary to determine if they are each guilty or not guilty.

PROSECUTION CASE IN BRIEF

3.  In a friends’ gathering in a public park, Fai Gor and D1 had a dispute about pulling of hair.  PW1 tried to mediate.  D1 was furious about PW1’s meddling.  D1 with D2 on his side made threats that people would be summoned and told PW1 and his friends not to leave.

4.  Later, after about 2 hours, at shortly before 11:30 pm, three cars arrived at speed.  D1 and D2 with about 14 others alighted.  D1 and D2 approached the pavilion of the park where PW1 was.  After some exchange of words, D1 and D2 slapped PW1.  D1 also cut PW1’s forearm and fingers with knife before leaving.

DEFENCE CASE IN BRIEF

5.  Defence for each defendant was initially one of alibi and mistaken identity.  But as the trial progressed, the defence case became more of a general denial based on credibility of prosecution witnesses.

ISSUES IN THE CASE

6.  The sole issue is the identity of the assailants and related to it the credibility and reliability of PW1 and PW2 who both testified that the assailants were D1 and D2 (former was alleged to be the actual perpetrator).

LAW ON JOINT CRIMINAL ENTERPRISE

7.  Where an offence committed during the course of a joint enterprise is the offence or type of offence intended, constituting its “common criminal purpose”, every defendant (and other participant)  who joined the enterprise with that “common purpose” will be liable as a party to that offence.  This is the “basic” joint criminal enterprise liability.

8.  Where an offence committed during the course of a joint enterprise is not the offence or the type of offence intended by the participants to the joint criminal enterprise, their liability will depend on the “wider principle” whereby a secondary party is liable for acts by the primary offender of a type which were foreseen by the secondary party as a possible incident of carrying out the “common purpose” even if not necessarily intended.  This is the “extended” joint criminal enterprise liability.

LAW ON IDENTIFICATION

9.  Where the case depends wholly or substantially upon the correctness of identification evidence, the Turnbull guidelines require that a judge should:

(a)  warn the jury of the special need for caution before convicting on the evidence;

(b)  Instruct the jury as to the reason for such need;

(c)  Refer the jury to the fact that a mistaken witness can be a convincing witness, and that a number of witnesses can be mistaken;

(d)  Direct the jury to examine closely the circumstances in which each identification was made;

(e)  Remind the jury of any specific weaknesses in the identification evidence;

(f)  Where appropriate, remind the jury that mistaken recognition can occur even of close relatives and friends;

(g)  Identify to the jury the evidence capable of supporting the identification; and

(h)  Identify evidence which might appear to support the identification but which does not in fact have that quality.

10.  Furthermore, the jury should be directed to examine carefully the circumstances in which the identification by each witness came to be made, for example:

(a)  How long did the witness have the accused under observation?

(b)  At what distance?

(c)  In what light?

(d)  Was the observation impeded in anyway, for example by passing traffic or a press of people?

(e)  Had the witness seen the accused before?

(f)  How often? If only occasionally, had the witness any special reason for remembering the accused?

(g)  How long had elapsed between the original observation and the subsequent identification to the police?

(h)  Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

(i)  If the prosecution has reason to believe there is a material discrepancy, they should supply the accused or his legal advisers with particulars of the description the police were first given; and

(j)  Finally, the judge should remind the jury of any specific weaknesses which had appeared in the identification evidence.

PROCEDURAL HISTORY

11.  Prosecution called a total of 2 witnesses, namely PW1 Sajid Umer Farooq (victim); PW2 Mohammad Umair (Eye-witness).

12.  After the close of the prosecution case, defence made no half-time submissions.  After considering the relevant evidence, I ruled there was a case to answer against each defendant on the charge.

13.  D1 elected not to give evidence himself but called 4 witnesses.  They are respectively DW1 Ms Aslam Maira (DW2’s friend), DW2 Ms Bibi Sedrah (D1’s sister), DW3 DPC12070 (statement taker of PW1 and PW2), and DW4 PC16015 (member of police party that visited the scene before the attack).  D2 elected not to give evidence nor call any other witnesses.  The fact that D1 and D2 exercised their right not to give evidence themselves proves nothing.  I will not draw any adverse inference against either of them on this ground.  I will treat the evidence of each defence witness in the same objective way as I have treated that of prosecution witnesses, bearing in mind it is the prosecution that bears the burden of proof.

14.  After close of the defence cases, parties made written submissions supplemented by oral submissions.  I will consider them but will not repeat them here.

SUMMARY OF PROSECUTION EVIDENCE

PW1 Sajid Umer Farooq

15.  On night of incident, PW1 went to scene after work to sit down and have chat and drinks with relatives and friends including PW2.  PW1 drank soda drink.  Some friends drank beer.

16.  At about 11 pm, while they were drinking, PW1 heard someone shouting in Urdu, “Don’t pull my hair.”  PW1 looked over there.  Tuqeer ie D1 was having a quarrel with PW1’s friend Fai Gor.  PW1 and several friends went over to stop them.  It was said, “We are all friends.  Don’t quarrel.  Let’s sit down and talk.”

17.  Some of them were emotionally agitated.  Some friends separated them.

18.  PW1 persuaded D1 and one other person (called Usman nicknamed “Show” ie D2)  who later hit PW1 to get into the car to leave first.  They did not want to go.  The quarrel was becoming fierce.  They were forced to get on the car.  D1 said to PW1, “Don’t leave.  I am calling people.”  They drove off.  After a period of time (exact time cannot recall)  on the same night, they drove back.

19.  When they returned, they returned with 3 vehicles.  PW1 and others stood up to take a look.  It seemed that people came out of the vehicles.  Someone was putting on gloves and getting knives to approach PW1’s group.  D1 and D2 (each holding a beef knife similar to P1)  approached PW1.  Other persons guarded the exit not allowing people to leave.

20.  PW1 said to D1 and D2, “The person you are looking for (ie Fai Gor)  is not here.”  D1 gave knife to D2 and walked close to PW1 and slapped PW1 for countless times and said, “Do you want to pretend to be big boss?”.

21.  PW1 replied, “I only mean we were friends.  I don’t want you to fight for such matter.”

22.  D1 and D2 slapped PW1 several more times.  PW1’s male elder cousin (later known as Abdul Usman)  standing next to PW1 wanted to stop D1 and D2.

23.  D2 passed the knife to D1.  D1 moved backwards 2 steps.  He using his right hand waved the knife with tip near PW1.  The first movement of the knife was from top to bottom probably targeting PW1’s hands/arms because they were being held out.  PW1 fended off with right hand/arm.  Knife cut PW1.  Other times, the knife was directed at PW1’s knees.  D1 waved the knife randomly. PW1 started to bleed in the arm and said, “Look, I am bleeding.”

24.  When D1 & D2 saw PW1 starting to bleed, they got back on the vehicle to leave.  One of PW1’s friends drove PW1 to Yan Chai Hospital.

25.  PW1 was injured in the back of right wrist, and in the right middle finger and ring finger.

26.  When D1 and D2 returned with knives, their faces were initially covered with facial masks.  After PW1 told them the person they were looking for was not there, they pulled down their masks.  There was artificial lighting in the pavilion as can be seen in the photos.  PW1 could see D1 and D2.  PW1 and D1 were only arm’s length apart.  D2 was beside D1.  There was nothing blocking his views of D1 and D2.

27.  D1 and D2 were male Pakistanis.  PW1 had them in his observation for about one minute or so with their masks pulled down.

28.  PW1 positively identified D1 and D2 in identification parade conducted on 8 February 2023.  PW1 positively identified them in court.

29.  PW1 has not fully recovered.  His fingers would still be in pain if lifting weight.

30.  PW1 came to know D1 through a good friend who was a relative of D1.  Up to date of incident, PW1 had known D1 for 6 months to a year; during this time, they would meet 2 to 3 times per week in friends’ gatherings.

31.  Prior to incident, he did not have any grudge/dispute with D1.

32.  As regards D2, the circumstances of first meeting with D2 was similar to those of D1.  In fact, D2 was a distant relative.

33.  Usually, at a gathering, when D1 came, D2 also came.  The time spent with D1 was the same as that spent with D2.

34.  PW1 had no grudge/dispute with D2.

35.  PW1 viewed CCTV Cam 3 footage from 21:35 to 21:50, and Cam 4 footage from 23:24 to 23:28 in court.

36.  PW1 identified from CCTV private car PV6673 arrived at 21:48:26 with D1 being driver and D2 being passenger, that PW1’s friend (he is also D1’s relative)  got on board from right rear door before the car departed at 21:50:49.

37.  When asked whether the pull-hair dispute had occurred by this time, PW1 answered, “probably, I cannot recall clearly.”

38.  When asked about the commotion from 21:35 to 21:45, PW1 said a friend was emotionally high so he was separated.

39.  PW1 also stated that D1 & D2 left the scene in the same car at 11 pm ie before the attack party came to the scene at 23:24.

40.  After D1 stated he would bring more people, PW1 was scared.  PW1 phoned his eldest male cousin (later known as Abdul Jabbar)  and told him about the incident.  The reply was that usually when they (D1 & D2)  drank too much they always quarrelled so that PW1 did not have to pay attention; that PW1 could leave or could continue to sit there.

41.  After the dispute but before the attack, the police did come to the scene for a while.  Police checked the ID cards of those present.  PW1 did tell police that just now there was a dispute/quarrel but no fight.

42.  Under cross-examination by D1, PW1 said that at the time of the dispute, there were about 8-10 persons present, but he was not sure.  Among them were his elder male cousin Usman (not D2 and probably Abdul Usman), Umair (PW2), Prince, Fai Gor, D1 and D2, another elder male cousin, and Harseep.

43.  PW1 insisted that on that day, he did not drink alcohol despite suggestion to the opposite.  PW1 had quitted drinking alcohol for religious reason and also because he had previously been caught drinking by his family members who gave him a lecture.  There were people there that night who did drink beer; others drank non-alcoholic beverages.

44.  PW1 did not know if D1 and D2 were Muslims.  PW1 had no recollection if D1 or D2 had drunk alcohol.

45.  PW1 said he had no recollection of standing in front of a vehicle and holding up his middle fingers of both hands.  PW1 added that usually when he had problems with other people, he would not raise his middle finger.

46.  When asked how many quarrels/fights he had had with anyone, PW1 said it was only on that night regarding his friend’s hair.

47.  PW1 elaborated on the origin of the pull-hair dispute, and the subsequent commotion caught on CCTV: Fai Gor had long hair; D1 put his hand on Fai Gor’s shoulder and pulled his hair; a friend (X)  became emotionally high; PW1’s male cousin or friend pulled/took X to one side; PW1 helped calm X down.

48.  D1 had nickname Jacky but PW1 called him Tuqeer.

49.  D1 and Fai Gor met for the first time that night.  However, D1 behaved like he had been old friend with Fai Gor.  Fai Gor felt his hair was pulled a few times; he mentioned to D1 several times kindly and asked D1 to put down his hand.  But D1 kept placing his hand on Fai Gor’s shoulder.  When Fai Gor’s hair was pulled again, Fai Gor said to D1, “I have told you several times you pulled my hair.  Also this is the first time we met and you did that.”  Then D1 and Fai Gor started quarrel.  They wanted to fight.  Fai Gor said, “If you want to fight for that reason, I myself can fight you two.  The others don’t get involved.”

50.  PW1 was present the whole time.  He kept persuading both sides: “Don’t fight.  We are all friends.”

51.  It was suggested no one pulled anyone’s hair.  PW1 disagreed.

52.  When asked why in para 2 of his statement dated 26 January 2023, he stated he was drinking alcohol with his Pakistani friends in the pavilion, PW1 said that was a mistake in the statement.

53.  When shown para 3 of the statement which stated the pull-hair dispute happened at about 11 pm (whereas the CCTV suggested a much earlier time of about 21:30)  and asked when D1 left in PV6673, PW1 said he didn’t recall, but possibly before 11 pm.  PW1 explained the apparent paradox by saying at the time of statement, he was released from hospital and could not recall the actual time so the time stated was a rough estimation.

54.  PW1 agreed that a police party did come to the scene that night after the commotion outside the secondary school (caught on CCTV).  PW1 could not recall the time of the police arrival (according to CCTV, police party arrived at about 22:55 and left at about 23:06).

55.  PW1 did not know why the police came but guessed that the noise generated by the commotion (post the pull-hair dispute)  outside the secondary school resulted in complaint made by neighbourhood to the police.

56.  Police did check ID cards at the scene.

57.  During the pull-hair dispute, D1 swore at all of PW1’s group.  In return, PW1 swore at D1.  One of PW1’s friends also swore at D1.

58.  PW1 did see D1 & D2 leave but he could not recall the time at which they did so.  After a period of time, not sure if it’s an hour, they came back to attack PW1.

59.  PW1 repeated that he was not sure if D1 and D2 were Muslims.

60.  Although D2 is a distant relative, PW1 seldom contacted him.  Before D1 and D2 were introduced by a friend (incidentally D1’s relative), PW1 had no contact with them.

61.  The reason why PW1 did not mention in his statement the presence of his elder male cousin Abdul Usman during the time of the attack was PW1 did not want him to be blamed by the family.

62.  PW1 did not mention the names of some others present because they were scared of being assaulted and did not want to come to court.

63.  After the pull-hair dispute and after D1 and D2 left, PW1 phoned his eldest male cousin Abdul Jabbar.  PW1 did not mention it in his statement because it was not a key point.  PW1 called Abdul Jabbar because PW1 was scared and because Abdul Jabbar knew D1 and D2.  PW1 asked Abdul Jabbar to call and ask them not to come back to a fight.

64.  When asked about the sequence of events, PW1 said police arrived first; after they left, he called Abdul Jabbar.

65.  At about 11 pm, PW1 told police about the pull-hair incident.  He did not mention the name of those involved.  However, he forgot if he told the police about the threat made by D1.  This is because of what Abdul Jabbar said on the phone.

66.  When questioned again about which came first: police arrival or the phone call to Abdul Jabbar, PW1 now said that he kept calling Abdul Jabbar several times after D1 and D2 left to relate the incident.  In short, PW1 had made such calls prior to and after the police came; that the police told him to terminate the call.

67.  PW1 said he called Abdul Jabbar more than 2 times.  At the very beginning of the pull-hair dispute, he called Abdul Jabbar because the latter knew D1 and D2.  PW1 wanted Abdul Jabbar to persuade them because they did not listen to anyone else. PW1 himself listened to Abdul Jabbar because he is the eldest.

68.  PW1 has previous convictions of AOABH and possession of offensive weapon in January 2021 when he was 18.  However, PW1 denied he has a propensity to violence.

69.  PW1 also has previous conviction of Taking conveyance without authority in April 2023.

70.  When shown CCTV Cam 3 footage for 20:20, PW1 identified himself raising his middle fingers on both hands towards the residential estate.  Reason was somebody from there was casting U/V light on PW1’s group.  He then got into car driven by his cousin Abdul Arslan and went away for a while possibly to buy things.

71.  Name of Fai Gor was Faisal (since deceased).  He was never featured in any CCTV footage.

72.  PW1 clarified that he did see D1 put his arm around the shoulder of Fai Gor but PW1 did not see hair-pulling.

73.  PW1 doesn’t recollect if Fai Gor drank alcohol.

74.  At the time of the attack, D1 and D2 were standing close to PW1, around 14 Pakistanis and Chinese were guarding the exits preventing people from leaving and entering.

75.  After attack, PW1’s friend Anson drove him to hospital.  Anson was there at the very beginning.  He was threatened too.  Anson was probably there when the police came at about 11 pm.

76.  Before 23:30, three vehicles came at high speed.  PW1’s group stood up (at the pavilion)  and saw them alight from vehicles.  D1 and D2 entered park through entrance.  Some of PW1’s friends including PW2 jumped into the bushes. D1 & D2 walked towards PW1 in quick pace; Hongkongers were guarding the entrances.

77.  PW1 stayed because he thought it was not his business and it was alright for him to stick around.

78.  He saw D1 and D2 hold knives.  He did not pay attention to the others. But soon PW1 changed by saying all members of D1 and D2’s party had knives.  D1 & D2 put on gloves but PW1 was not sure about the others.

79.  Before D1 and D2 slapped PW1, PW1 looked around to consider running away.  After seeing people at the entrances with knives, he decided he could not leave.

80.  PW1 said to D1 & D2 in Urdu, “What you two are doing is wrong.”

81.  D1 waved his knife randomly.  He did not mention this aspect in his statement because the statement taking officer (DW3 DPC12070)  asked him to tell where he was cut and suggested to him not to say D1 waved the knife randomly.

82.  When his second statement dated 18 April 2023 (MFI-2)  was shown to PW1, he said that he got it wrong when it stated he grabbed the knife and got the palm side (inner side)  of his right middle finger and ring finger cut.

83.  When asked why D1 & D2 would attack PW1, PW1 said they thought he was playing big boss by saying that the person they were looking for was not there.

84.  Before D1 & D2’s party were surrounding PW1’s group (consisting of about 5-6 persons, namely Abdul Usman, PW2, Anson, Harseep, Wakas, and some others), some were scared and went away.  Harseep and PW2 jumped into the bushes, some stood in original place.  When Wakas and Anson intended to go away, people holding knives asked them to go back to the pavilion.

85.  PW1 explained why he did not give a lot of details in the statement: (1)  the details were not the key point; (2)  police officer did not ask; (3)  he was in a state of a bit confusion and he tried to tell what he remembered.  PW1 denied the details were recent fabrication.

86.  The reason why PW1 did not mention in witness statement about the “face mask” was that he thought when people came over for this kind of action, normal people would think they would wear mask, so there is no need to mention.

87.  PW1 was shown CCTV Cam 3 footage from 16:39 to 23:20 on and off for comments.  PW1 said he was merely being playful when he showed the middle finger to the source of U/V light from time to time.

88.  At 21:33:21, D1 could be seen standing next to his vehicle PV6673.  At 21:34:05, a door was opened and someone got on.  At 21:34:38, D1 drove off PV6673.

89.  PW1 agreed up to this point, D2 could not be seen in the footage.  D1 and D2 were probably close: during gatherings, they were always together.

90.  At 21:35:48, PW1’s elder male cousin Abdul Arslan was holding PW1’s friend Patti (a relative of D1).  Patti had too much to drink and he was emotionally high.  Before D1 left (at 21:34), the pull-hair dispute happened. After D1 drove off, Patti was emotionally high and he argued with everyone.

91.  Arslan and Patti were living in the same neighbourhood and they were rather close; that was why Arslan held Patti up and took him to the other side.

92.  Before D1 left, PW1’s group of friends argued for Fai Gor against D1. After D1 left, Patti (a relative of D1)  argued with everyone for unknown reason.  Then Arslan took up Patti to the other side.

93.  PW1’s group asked Patti to calm down without hostility [this commotion involving Patti was caught on CCTV between 21:35 and 21:45].  PW1 said there were probably 10 to 11 people in the group.  PW1 denied he was being aggressive; he was asking people especially Patti to calm down.

94.  Harseep had drunk alcohol and he was unsteady in his posture.  Harseep had a dispute with Patti.  Zukii and Arslan were asking Harseep to go away. The rest of the group were persuading Patti to desist.  Things were heating up.

95.  Patti was also drunk and standing unsteadily.  Arslan was holding Patti who spoke loudly.

96.  PW1 does not remember if the atmosphere was tense but Harseep and Patti were drunk and were having an argument.

97.  At one time, Arslan was holding Harseep and there was pushing and shoving.

98.  When Harseep and Hudson came over, Patti started to argue again.  So Arslan took Harseep to the pavilion; Zukii was separating Hudson from Patti. PW1 stayed with Patti at the corner and asked him to calm down.  The atmosphere at this time could explode.

99.  At 21:38:41, Harseep was approaching corner (to reach Patti).  PW1 pushed to block him.

100.  At 21:38:53, PW1 was holding Patti to block him.

101.  At 21:39:35, PW1 and others wanted to get Patti into a car to go home because he was drunk.  Patti did not want to go.

102.  At 21:39:55, Hudson (Patti’s relative)  began to push Patti into a car.

103.  At 21:40:46, Harseep was being held by others; probably there were some disputes again.  PW1 was pulling Harseep away.  PW1 was playing the role of mediator.

104.  At 21:43:47, Fai Gor was alone in the pavilion.  PW1 went there to keep him company and to take a rest.

105.  At 21:44:59, the area where the commotion took place has now been cleared out as all of them including PW1 had gone to the pavilion.

106.  At 21:48:04, PV6673 returned.

107.  PW1 agreed that D1 and D2 left in PV6673 at the earlier time of 21:34.  The commotion took place after they left.  PW1 agreed that D1 & D2 returned together in the same car at 21:48:25.

108.  At 21:48:56, Arslan approached driver’s side of PV6673 for unknown reason.  Harseep then approached the driver’s side too.  PW1’s friend Saad also approached D1 & D2.

109.  At 21:49:14, Saad and Harseep were speaking to D1 with the driver’s window rolled down.  On the nearside of PV6673, Hudson lowered his body probably to communicate with D2.

110.  At 21:49:45, Hudson also went over to the driver’s side of PV6673.

111.  At 21:50:17, Hudson entered PV6673.  Harseep was standing behind PV6673.

112.  At 21:50:42, D1, D2, Hudson, and Patti were leaving on PV6673.  For a period of time, Patti had been on PV6673 to have a rest.

113.  To the suggestion that PW1 was making up the allegation that Patti was on board, PW1 responded by saying the door at Patti’s side was open, Patti was seated inside with his legs out.  D1 drove PV6673 away for the last time that night.

114.  Hudson never returned but D1 and D2 did in another car with changed clothes.

115.  When the police came at about 11 pm, PW1 told them that a group of friends drank too much without mentioning names.  Fai Gor was present when the police checked their IDs and conducted body search.

116.  PW1 now said he did not mention anyone pulling hair; he just said friends drank too much and they had disputes.

117.  When told PW2’s name was not on police notebook recording the names of those checked and searched, PW1 said he did not pay attention to whether PW2 was there.

118.  At 23:14:10, Arslan came back by driving KN4219.

119.  At 23:19:24, Fai Gor drove away KN4219 with Arslan on passenger seat.

120.  After police left, people were starting to leave.

121.  At 23:19:54, probably 4-5 people including PW1 and Abdul Usman remained.

122.  PW1 agreed that Fai Gor returned abusive language after D1 used it first.

123.  Under cross-examination by D2, PW1 said that in the first statement, he mainly gave the time of attack (about 11:45 pm); the time of the pull-hair dispute being about 11 pm was a rough estimation.

124.  When asked about change of evidence regarding the sequence of events between phone call to Abdul Jabbar and police arrival, PW1 said he was simply making additions to his evidence.

125.  PW1 said he forgot what Abdul Jabbar said on the phone prior to police arrival.  PW1 then for the first time said his friends on the spot also told him that D1 & D2 had made threats previously and did not come back so asked him not to worry.

126.  PW1 now said that PW2 was present when the police came and separated them.

127.  PW1 agreed that PW2 was not shown in the CCTV footage played in court.

128.  PW1 did not think D1 & D2 pulling down their masks was something important to justify mentioning in the statement.

PW2 Mohammad Umair

129.  PW2 is aged 28, educated to F6 level in Hong Kong.  He knows D1 & D2.  All three studied in the same secondary school.  He first met them in school.  PW2 was not a friend of D1 or D2 though.  On day of incident, PW2 was at the Kwai Hop Street Playground pavilion at about 7 pm to gather with his friends including PW1.  Some of them were smoking; some were drinking alcohol. They were chatting.

130.  PW2 has never consumed alcohol in his life.  PW1 did not drink alcohol that day.  There were other friends who did not drink alcohol either.

131.  Later on that night, there was a some scuffle-like argument between D1 and Ah Fai (Falsol)  [or Fai Gor as referred to by PW1].  It arose because D1 got drunk and he started pulling Ah Fai’s hair.  Ah Fai said, “You pull my hair.”  D1 was smirking and said, “I didn’t do that.”  They started saying bad words.

132.  PW1 and other friends were trying to de-escalate the situation.  They were successful in stopping Ah Fai and D1 from punching/touching each other. However, because other friends were also drunk, they also started argument in between.  The situation got worse.  Some friends started saying abusing words.

133.  PW1 and a couple of friends tried to make someone leave.  Everyone else was trying to calm down the situation.  PW1 and Arslan tried to de-escalate the situation.

134.  PW1 told D1 & D2 to leave.  Arslan asked Patti to leave.

135.  PW1 scolded D1 & D2.  D1 & D2 became furious and angry and said in a loud voice they would get someone to hit the group and asked them not to leave.  After seeing it, some friends brought them to D1’s car [PV6673].  D2 was with D1 the whole time.  Arslan was pushing Patti.

136.  D1 & D2, Patti and Hudson left in D1’s car.

137.  After the four persons left the scene, police came after some time.  PW2 was present.  The officer asked PW2 and others to go face the wall.  Police checked their ID cards and conducted body checks.

138.  After police left, some friends also left.

139.  D1 & D2 returned.  PW2 does not remember the time, maybe 11:30-11:35 pm.  That time, PW2 and others were about to leave.

140.  Three cars came in quick pace.  PW2 and some friends became very scared.  PW2 recalled the threat D1 made.  PW2 and his friend jumped over the fence to hide behind the bushes and trees.  Two other friends jumped over the fence and slid down the hill and escaped.

141.  PW1 stayed in pavilion.  He stood near the wall with his back against the wall near the corner.  Abdul Usman was standing with PW1.

142.  D1 & D2 along with 12-14 Chinese people came from both exits with D1 & D2 leading.  Everyone of them was wearing mask.

143.  D1 & D2 pulled off their mask after stepping on the last stair toward pavilion.  They approached PW1.  The 12-14 Chinese people surrounded the exit area.

144.  D1 & D2 approached PW1 and said something PW2 could not hear.  Then D1 gave his cleaver to D2.  D1 started to slap PW1’s left cheek with his right hand multiple times.  PW2 was frightened.

145.  D2 put the knives in his left hand, and slapped PW1’s face a couple of times.  Then D2 gave knife back to D1.  D1 swung the knife a couple of times before slashing PW1 with it.

146.  The first slash (horizontal)  landed on PW1’s forearm.  D1 tried to hit Abdul Usman on his leg.  PW1 blocked that slash and took it.

147.  The second slash (vertical)  landed on PW1’s middle-finger and ring-finger.

148.  D1 & D2 and the Chinese men left the scene.  Suneep and Wakas and PW2 stepped out from their hiding places.

149.  PW2 went to PW1 and saw his arm bleeding.

150.  A friend has car and took PW1 to hospital.  Wakas brought PW1 to hospital.

151.  During the attack which lasted 10 minutes, D2 was a couple of feet from D1.  D2 did not slash PW1.

152.  PW2 saw D1 & D2’s faces clearly.

153.  Under cross-examination by D1, PW2 said he left about 12 midnight; that he had been at the scene for 5 hours without ever leaving.  There was no food there.  He drank one bottle of water and one coke.

154.  PW2 was a Muslim and did not drink alcohol.

155.  PW2 chatted with at least three friends Ah Fai, Harseep and Suneep. They were within the pavilion.  PW2 did not intermingle with the others.

156.  Ah Fai was drinking beer (later change to “Don’t know”).  Suneep was not drinking beer.  Harseep might be drinking beer but PW2 did not know.

157.  PW2 stayed in the same place throughout the night (other than the time of the police check and the attack).

158.  Harseep was a bit drunk. Ah Fai drank maybe one beer and was not drunk.

159.  PW2 did not recall when Ah Fai left.

160.  PW2 did not talk with PW1 much.  He talked with his best friends more ie Suneep and Ah Fai.

161.  Both Wakas and Anson took PW1 to hospital.

162.  After the incident, PW2 went home in trauma.  He left by the lower entrance.

163.  PW2 did not remember the time of the pull-hair incident, maybe a couple of hours before the attack.

164.  PW2 acknowledged there was an argument between Patti and Harseep about Ah Fai and D1.

165.  When PW2 gave statement dated 6 February 2023 (MFI-4)  to the police, he was still in trauma and was in a hurry.  Most contents were right and he might have missed some information.

166.  PW2 does not read or write Chinese.

167.  When shown para 2 of his statement which says he, together with other Pakistani friends, were drinking alcohol, PW2 said he wasn’t drinking; that at the time of statement taking, he spoke to the Urdu interpreter who translated into English; that when checking the statement at the end, he might have missed the mistake.

168.  PW2 thought that the time of the pull-hair dispute being stated as around 11 pm in the statement was accurate.

169.  During the dispute, bad words were exchanged among D1, PW1, Harseep and Patti.

170.  Patti was taking side with D1.  Harseep was taking side with Ah Fai. Everyone else was trying to de-escalate.

171.  PW2 actually saw D1 leaning on Ah Fai’s shoulder and suddenly pulled his hair.

172.  PW2 was sure it happened at 11 pm.  D2 was behind D1 and supporting D1. D1 and D2 left after 11 pm.

173.  In the statement, PW2 did not mention the presence of Abdul Usman because the latter did not get hit.

174.  The last sentence of para 6 of the statement “I thereupon took [PW1] to see the doctor” was wrong.  PW2 did not notice it when checking.

175.  PW2 agreed that the 14 other people did not carry knives.

176.  Under cross-examination by D2, PW2 said he did not know why his name was not recorded in the police notebook after check of ID.

177.  PW2 disagreed that there was another dispute [the commotion] after D1 & D2 left the scene post the pull-hair dispute.

178.  Under re-examination, PW2 said during statement-taking, he was speaking in Urdu and there were only two other persons present other than him.

179.  When shown CCTV Cam 4 from a few minutes prior to and until 23:31, PW2 identified himself as the third person passing the lower entrance.

SUMMARY OF DEFENCE EVIDENCE

DW1 Ms Aslam Maira

180.  DW1 spent some time with DW2 Bibi Sedrah (D1’s younger sister)  and her two sisters in TST in the night of 21 January 2023 until 12:13 am on 22 January 2023 when they parted company.  DW2 and her two sisters left by MTR from TST.

DW2 Ms Bibi Sedrah

181.  DW2 is younger sister of D1 and they lived together with two other sisters and their parents at Yat Tam House, Tin Yat Estate, Tin Shui Wai.  DW2 and her two sisters spent night time of 21 January 2023 with DW1 until early morning of next day.

182.  DW2 and sisters arrived at Tin Yat Estate between 1 and 1:30 am.  When they were waiting for the lift at the lift lobby, D1 came inside.  They went home together.  D1 was wearing DW2’s black-white AAPE jacket which he borrowed from her in the morning of 21 January 2023.

183.  Under cross-examination by prosecution, DW2 said she did not know where D1 was from 9:30 pm to midnight on 21 January 2023.

DW3 DPC12070

184.  DW3 was statement taker of PW1’s first and second statements (MFI-1 and MFI-2)  and PW2’s statement (MFI-4).

185.  When taking statements, DW3 would write down what witness says. However, usually witness says it in a mess.  DW3 would write it out in chronological order.

186.  Witness would relate facts once.  Where some part is not clear, DW3 would asking questions.

187.  In relation to MFI-1 and MFI-2, DW3 did not make suggestions to PW1 on contents.

188.  In relation to MFI-4 from PW2, PW2 said he wanted to use English.  The interpreter present was English-Chinese interpreter.  DW3 did not make suggestions as to contents.

189.  Under cross-examination (mainly)  by prosecution, DW3 did not agree PW2 gave statement in Urdu.

190.  Regarding MFI-2, as this is a supplementary statement, DW3 would ask PW1 questions and the latter gave answers.

191.  Regarding MFI-4, DW3 did ask PW2 questions to clarify matters.

DW4 PC16015

192.  In the evening of 21 January 2023, DW4 attended the scene in response to information from console: “a passerby called in saying there were people quarrelling that he/she was afraid there would be a fight.”

193.  DW4 intercepted a number of people to make enquiries.  They said they drank alcohol and listened to music and quarrelling.

194.  DW4 did not see traces of fight.  As a result, the case was re-classified from “suspect” to “misunderstanding”.  DW4 could smell alcohol.

195.  DW4 produced his notebook as D5.  A page contained 8 names of non-ethnic Chinese.  They were people the police intercepted and made enquiries of.  The names did not include the name of PW2.

196.  DW4 received information from console at 22:42.

197.  Under cross-examination by prosecution, DW4 said the police only saw the 8 persons named in notebook.

MY CONSIDERATIONS

198.  I remind myself the prosecution bears the burden of proof throughout, the standard being beyond a reasonable doubt.  Defence need not prove anything least so the defendants’ innocence.

199.  I direct myself on the Turnbull directions although this is more a case of recognition than the identification of a stranger.

200.  I will consider the case against and for each defendant independently.

201.  I bear in mind D1 has a clear record.  What that means is compared with a person with a criminal record, he is less likely to have committed a criminal offence.

202.  First, I will assess the credibility and reliability (of the evidence)  of each of the witnesses.

PW1 Sajid Umer Farooq

203.  I am not satisfied as to the credibility of PW1 for the following reasons.

204.  First, I can’t find any reason that he could have got the time of the pull-hair dispute so wrong.  The correct version should be about 9:30 pm.  Yet both in his witness statement(s)  and in his examination-in-chief, he stated it was about 11 pm.  So he was about 1½ hour off the track both times.

205.  Second, there were far too many details of the incident missing not only from his statements and also from his examination-in-chief.  This makes me doubt if he was adding colour to the “event” as he was trying his best to meet the cross-examining questions.

206.  Third, his evidence on whether people present did drink alcohol or not was elusive.  It sometimes seems that he thought it was wrong (perhaps on religious ground)  to drink alcohol and he was at pains to distance himself from alcohol.  This may relate to why he was reluctant to answer in a concrete way whether D1 and/or D2 was a Muslim.  PW1 did not say concretely whether D1 and/or D2 drank alcohol.  Yet the advice from Abdul Jabbar was that D1 and D2 always quarrelled after drinking but they would not do anything more.

207.  Fourth, it was strange that if what PW1 said about the attack party was true, he would not try to escape like some of the others once he saw the three cars coming.  Instead, he stayed because he thought “it was none of his business”.

208.  Fifth, the way PW1 tried to explain the sequence between the call to Abdul Jabbar and the police arrival is just a perfect example of how he changed his evidence in order to meet the cross-examining questions.

209.  Sixth, there were far too many unexplained aspects of the commotion caught by the CCTV Cam 3.  Why was Patti so emotional?  Why did Patti argue with the majority of the people? What was the dispute between Harseep and Patti about? Could it be that the later attack was related to this commotion which D1 and D2 did not take part rather than to the pull-hair dispute assuming it took place?

210.  Although PW1 no doubt suffered some injuries that night, I do not believe PW1’s evidence to the requisite standard that it was D1 and D2 who participated in the attack.

PW2 Mohammad Umair

211.  I am not satisfied as to the credibility of PW2 for the following reasons.

212.  First, PW2, like PW1 before him, got the timing of the pull-hair dispute completely wrong, both in the statement and in court.  The strange thing is both PW1 and PW2 were wrong in the same way ie both stated it was about 11 pm. This is not explicable.

213.  Second, when PW2 was describing in examination-in-chief the sequence of events from pull-hair dispute onwards, he completely missed the intermediate leaving of the scene by car of D1 (and possibly D2)  post the pull-hair dispute before returning again at 21:48.  It shows that PW2 had not thought through his version of events to accommodate the CCTV footage.

214.  Third, and this is most important, PW2’s evidence that he was checked ID and body searched did not tally with the police notebook record of who were present at that time.

215.  Fourth, PW2’s evidence that there was an Urdu interpreter present at statement taking is not supported by the face of the statement MFI-4.

216.  I should say that although PW2 purportedly identified himself from CCTV Cam 4 at 23:31, there is no supportive evidence of his “positive” identification.

DW1 Ms Aslam Maira

217.  There is no challenge to her evidence.  I give her evidence full weight.

DW2 Ms Bibi Sedrah

218.  There is no challenge to her evidence.  I give her evidence full weight.

DW3 DPC12070

219.  There is no reason to doubt the credibility and reliability of DW3’s evidence.

DW4 PC16015

220.  There is no reason to doubt the credibility and reliability of DW4’s evidence.

CONCLUSIONS

221.  The credibility of PW1 and PW2 as witnesses of fact being critical to the outcome of the trial, I found D1 and D2 each not guilty of the charge.