HKSAR v. ABDUL JABBAR

DCCC 513/2020

[2021] HKDC 1228

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 513 OF 2020

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REASONS FOR VERDICT

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1.  The defendant is charged with one count of wounding with intent, contrary to Section 17(a)  of the Offences Against the Person Ordinance (Charge 1)  and one count of assault occasioning actual bodily harm, contrary to common law and Section 39 of the Offences Against the Person Ordinance (Charge 2). He pleaded not guilty to both charges.

2.  The prosecution alleged that the defendant together with a person called Usman and other persons on 15 March 2020 at around 2.45 am outside Ground Floor, Tin Yiu House, Shun Tin Estate, wounded Asam Ammad with intent to do him grievous bodily harm and assaulted Ahmed Sajjad thereby causing him actual bodily harm.  It is not disputed that Assam Ammad and Ahmed Sajjad were assaulted by someone at the material time.  Mr Ammad sustained multiple deep scar laceration wounds, left parietal skull fracture and laceration over left wrist.  Mr Sajjad suffered pain and tenderness on left thigh and small bruise on his left eyebrow area.  

3.  Defendant was arrested at 10.25 pm on the same day.  Under caution, he said in Cantonese that he only tried to separate them and he did not participate in the fight.  Subsequently, a cautioned video-recorded interview with the defendant was taken.  In that interview, defendant maintained that he was present at the scene when the assault took place but he was only trying to mediate.  The voluntariness and the accuracy of this interview is not challenged.

4.  Prosecution called two witnesses.  They are Mr Sajjad, PW1, and one Mr Ali Zalfiqar, PW2.  The police could not locate the whereabouts of Mr Asam Ammad and he was not called as a witness.  PW1 and PW2 testified that at around 10.30 pm on 14 March 2020 they together with Mr Ammad were chatting and drinking beer at the vicinity.  At around 2.30 am on 15 March 2020, a male called Usman and defendant arrived.  They had a conversation with Ahmed and then it soon developed into a verbal dispute.  Usman and defendant left and soon they returned with a group of people.  PW1 said that someone in the group was holding a chopper and iron rods.  PW2 claimed that someone used a chopper to hit Ammad’s head and arm.  He also said that he wanted to separate the assailants with Ammad but his left thigh was hit by an iron rod.  He also said that at that time he was about 40 feet away from the group when the assault took place.  They both said that the assault lasted about 2 to 3 minutes and then a group including Usman and defendant left the scene.

5.  It was put to them in the cross-examination by defence counsel that defendant was only trying to break up the fight.  PW1 denied whilst PW2 told the court that there was such a possibility as the defendant was further behind the attackers and he could not see clearly what the defendant was doing at that time. 

6.  Counsel for the defendant made a no case submission at the end of the prosecution case.  It is submitted that PW1 is an unreliable witness and it was possible that defendant was simply trying to mediate and did not participate in the attack.  It is further submitted that there are more than one inferences that this court could be drawn from the evidence as to defendant’s role. 

7.  Having considered counsels’ submissions, I found that there is a case to answer on both charges. 

8.  Defendant elected not to give evidence nor call any defence witness. 

9.  I bear in mind that the prosecution has the burden to prove its case against the defendant beyond reasonable doubt and the defendant has no duty to prove anything.  No adverse inference will be drawn against the defendant for not giving evidence as that is his right. 

10.  There are a number of discrepancies in the evidence of PW1 and PW2 as to how many people were present in the attacking group and how many were armed with choppers, iron rods and wearing face masks.  PW1 in his witness statement claimed that three persons holding choppers and another one was holding an iron rod.  In the examination-in-chief, he said one person was holding a chopper whereas three other persons were holding iron rods.  In the cross-examination, he changed his version and said only one person was holding a chopper and another person was holding an iron rod.  PW2 claimed that he saw three persons holding choppers whereas another two to three persons including defendant were holding iron rods, but then at the end of the cross-examination when it was put to him that he did not mention in this witness statement that someone was holding iron rods, he agreed to the proposition that he did not see anyone was holding an iron rod as the situation was chaotic and he was scared. 

11.  There is one further crucial inconsistency between the evidence of PW1 and PW2.  PW1 said that those who held choppers and iron rods attacked Ammad and he was also hit on his left eye by an iron rod.  However, PW2 said those who held choppers slashed on Ammad’s head and arm and those who held iron rods were at their back.  PW2 also witnessed PW1 was kicked by someone when he was trying to separate the group.

12.  PW1 and PW2 admitted that they consumed alcohol before the assault took place.  PW2 even told the court that he alone has consumed around 8 to 10 cans of 500 milliliters beer on that night.  He further admitted that he was not that sober on the night in question.  With that amount of consumption of alcohol, it is questionable whether the perceptions of memory are accurate.

13.  Given the inconsistencies and the discrepancies which are material, I cannot rely on the evidence of PW1 and PW2 as to what had happened when the defendant together with Usman and other people returned to the scene after they had a dispute with Ammad.  Even though the defendant’s act by associating himself with a group of attackers is highly suspicious, I cannot draw any irresistible inference from the evidence which I accepted that the defendant and the group of attackers had a common purpose to wound Ammad and assault PW2.  Mere presence alone is not enough to make the necessary inference.

14.  The prosecution has failed to prove its case against the defendant beyond reasonable doubt and he is acquitted of both charges.