HKSAR v. AHMAD GULZAR

DCCC 370/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 370 OF 2016

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REASONS FOR VERDICT

1.  The defendant pleads not guilty to one charge of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance[1].

Introduction

2.  The complainant Mr Amaechi Anayo Athanasius operated a business, “ABS” International Company Hong Kong, which bought second hand cars for dismantling so that the spare parts could be sent to Africa.  The business was situated in Wang Toi Shan, Pat Heung.  The defendant operated a similar business adjacent to Mr Amaechi. 

3.  On 26 November 2015 Mr Amaechi drove Mr Nick Patrick Maintain and Mr Adibe Okezie Louis from the airport to the office of Mr Nick.  Mr Nick also operated a similar business in Wang Toi Shan.  After alighting from the car Mr Amaechi was attacked by three masked males with golf clubs.  Mr Amaechi sustained a fracture of his right arm and right index finger.

4.  In summary the prosecution case is that the defendant was present at the time of the attack and was the one who directed the three males to attack Mr Amaechi.  The defence case as put in cross-examination is that while the defendant was present outside the office of Mr Nick there was no attack on Mr Amaechi by three males with golf clubs.  Mr Amaechi sustained his injuries when he fell on the ground running away from a dispute he, Mr Adibe, Mr Nick and other Africans had with some Indians and Pakistanis.

Evidence

5.  The prosecution called three witnesses, Mr Amaechi (PW1); Mr Adibe (PW2) and Mr Nick (PW3).  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[2] (exhibit P1), including the arrest of the defendant; photographs (exhibit P2 (1-16)); medical reports of the injuries of Mr Amaechi (exhibits P3 & P4) and that the defendant was identified at identification parades by Mr Adibe and Mr Nick. 

6.  The defendant elected to remain silent.  Two witnesses were called on his behalf Hussain Zaroof (DW1) and Ali Asghar (DW2) who met the defendant on the afternoon of 26 November 2015. 

7.  No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  This does not establish his guilt.  Admitted in evidence is that the defendant has a previous conviction in 2006 for driving with alcohol concentration above the prescribed limit[3].   

8.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict. 

9.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against the defendant as well as one in his favour the adverse inference cannot be drawn.  

10.  I have carefully considered all the evidence and the submissions of Mr Ross and Mrs Panesar. 

Prosecution evidence

11.  In summary on 26 November last year Mr Nick and Mr Adibe arrived in Hong Kong from Nigeria.  Mr Nick called his friend Mr Amaechi asking to be picked up at the airport together with Mr Adibe.  Together with a friend called Temple Mr Amaechi drove to the airport.  Mr Amaechi collected Mr Nick and Mr Adibe and drove them to Mr Nick’s office in Wang Toi Shan.    

12.  After arriving at Mr Nick’s office Mr Amaechi was taking luggage out of the boot when he heard someone call out his nickname “ABS”.  At the same time Mr Nick also heard someone call out his nickname “UD”.

13.  Mr Amaechi looked up and saw three males wearing masks.  The three masked males immediately beat Mr Amaechi with golf clubs.  Mr Amaechi also saw the defendant standing there while the three masked males beat him.  The attack was witnessed by both Mr Adibe and Mr Nick, who being frightened ran away after the first of the three males hit Mr Amaechi. 

14.  Mr Amaechi managed to escape and sought help from a friend to recover his phone from the car.  The friend then took Mr Amaechi to the police station where Mr Amaechi told the police what happened.  

15.  The police called an ambulance and Mr Amaechi was taken to hospital where he discovered his right forearm and right index finger were broken.  The forearm was fractured when he was first hit with a golf club and his right index finger was fractured when he held up his hands up to protect his head. 

Defence evidence

16.  In summary Hussain Zaroof testified that on 26 November 2015 he was driving past the location shown in photograph 15.  On seeing the defendant standing there Mr Hussain stopped his truck to greet the defendant.  Mr Hussain noticed that there were 5-6 Africans and some Pakistanis talking to each other on the other side.  Mr Hussain stopped his truck for between 30 seconds and one minute. During that time Mr Hussain did not see anybody holding golf clubs or anyone attack any of the Africans. 

17.  Ali Asghar testified that in the afternoon of 26 November 2015 he went to buy a fridge at a place near Mr Nick’s office.  When leaving he saw the defendant standing there.  At the same time Mr Ali saw a group of Indians and Pakistanis and a group of about 4 or 5 Africans abusing each other with foul language.  After 30 seconds to one minute Mr Ali left.  During that time Mr Ali did not see anybody fighting or anyone in the group being hit.     

Discussion

18.  I accept the evidence of the prosecution witnesses that Mr Amaechi was attacked by three masked males with golf clubs.  The evidence of the defence witnesses does not cause me to doubt this finding.  I reject the evidence the defence witnesses met the defendant in the afternoon of 26 November 2015.  Their evidence as to how they each remembered the date was not credible.

19.  Even if the defence witnesses were present at some stage that afternoon and saw the defendant, they were present, seemingly at different times and only for between 30 seconds and one minute.  During that time neither witness saw how Mr Amaechi was injured, save to say that both witnesses said they did not see anyone being hit. 

20.  I am satisfied the injuries sustained by Mr Amaechi in the attack amount to grievous bodily harm, in particular the fracture of the right ulna and fracture of the right index finger. 

Presence

21.  No witnesses testified that the defendant took part in the attack.  The three witnesses only said that the defendant was present at the time of the attack. 

22.  “Mere” presence at the scene of a crime is not enough to prove guilt.  In Blackstone’s Criminal Practice[4] the authors state:“Neither mere presence at the scene of a crime nor a failure to prevent an offence will generally give rise to liability. However, presence at the scene of a crime is capable of constituting encouragement …. If the accused is present in pursuance of a prior agreement with the principal, that will normally amount to aiding and abetting, but if the accused is present only accidentally then he must know that his presence is actually encouraging the principal(s).”  

23.  Similarly in Smith & Hogan’s Criminal Law[5] “Mere presence at the scene of a crime is capable of constituting encouragement or assistance, but D is not necessarily guilty as an accessory because he is present and does nothing to prevent P’s crime.  In some cases D’s presence will constitute encouragement or assistance because he is present in pursuance of an agreement that the crime be committed.  In other cases, D’s presence may be sufficient even though there was no prior agreement, and no positive act, provided his presence intentionally provides assistance or encouragement to the principal.”

24.  In the well known case of R v Coney[6]Hawkins J., said:

“It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting.”

25.  The prosecution case as put in the opening included that Mr Nick saw the defendant and the three men alighting from a car holding something resembling a baseball bat and that Mr Amaechi saw the defendant and the three males heading towards him when the defendant said “beat him”[7].

26.  Mr Amaechi failed to give evidence as expected.  Mr Amaechi testified that on hearing his name he looked up and saw three males standing near him.  The three males instantly beat him with golf clubs.  Apart from calling out his name Mr Amaechi said he did not hear anything else said before the three men beat him.

27.  In describing what happened Mr Amaechi made no mention of the defendant.  Only when asked if he had received any advice from the police as to how he might find the people who beat him did Mr Amaechi say before he was beaten that he had seen the defendant standing there.  The police told Mr Amaechi if he saw the defendant again to call them so they could arrest the defendant and question him about whether he knew the persons who beat Mr Amaechi.  Mr Amaechi said that when he was beaten the defendant was only standing there and that he did not see the defendant do or say anything else. 

28.  Mr Ross then applied to turn the witness hostile.  I refused the application at that stage and invited Mr Ross to seek to refresh the memory of Mr Amaechi from his witness statement.  

29.  Mr Amaechi was shown his witness statement dated 3 December 2015 in which is recorded that he heard the defendant say: “Who is ABS - start beating him”.[8]  Mr Amaechi said he told the police the only person he knew was the defendant and that he thought the voice was that of the defendant but the police wrote down that the defendant said to beat him. 

30.  When asked what was said Mr Amaechi gave differing answers varying from he thinks someone asked them to beat him but it was very noisy so he did not understand very well what was said; when they started beating him he was confused so he did not know exactly what was said; he was shocked and could not recollect what was said; he only heard his name “ABS”; he did tell the police “Who is ABS - start beating him” but he was unconscious at the time and was not sure and could not remember what happened; and that he did hear someone say beat him but did not know the particular words spoken.  In cross-examinationMr Amaechi again said he only heard “ABS” and that the voice sounded like the defendant but he was not sure. 

31.  At no time did Mr Amaechi confirm that he heard the defendant say “Who is ABS - start beating him”.  Mr Amaechi’s evidence of what was said and who said what, is so unreliable I place no weight on this part of his evidence. 

32.  Similarly Mr Nick failed to give evidence as expected.  Mr Nick testified he heard someone say “UD” and “ABS”.  Mr Nick did not see who said this and did not recognise the voice.  Mr Nick looked up and saw the defendant with three masked men.  Mr Nick ran away on seeing one of the three masked men hit Mr Amaechi. 

33.  Mr Nick could not explain how they came to approach Mr Amaechi because as he raised up his head to look they started hitting Mr Amaechi.  In cross-examination when asked where in relation to the three men was the defendant when he saw them Mr Nick replied that he could not explain whether they came together.  No application was made to have Mr Nick refresh his memory or to turn him hostile. 

Encouragement and assistance

34.  The evidence varies as between the witnesses as to exactly where the defendant was in relation to the three masked men.  Apart from seeing the defendant standing none of the witnesses saw what the defendant did.

35.  Mr Amaechi only saw the defendant standing there and did not see the defendant do or say anything else.  Mr Ross did not ask Mr Amaechi any questions about where the defendant was standing in relation to the three masked men.  This was first asked in cross-examination whenMr Amaechi said that the distance between the defendant and the three masked men was about 12’. 

36.  In re-examination Mr Amaechi said the closest distance between the defendant and the three masked men was 5-6’.  Asked to explain why earlier he had said the distance was about 12’, Mr Amaechi sought to explain this by the length of the car.  In later clarification by the court Mr Amaechi said he had misunderstood Mrs Panesar’s question and that the reference to 12’ was the distance between Mr Adibe and the defendant.   

37.  Mr Adibe testified that when Mr Amaechi was about to get something out of the vehicle he saw four men standing in the same place.  Three men were carrying sticks which looked like those used in sport.  The fourth man was the defendant. 

38.  When the three men moved towards Mr Amaechi and started hitting him Mr Adibe ran away and did not stay to see what the defendant did.  Mr Adibe also heard someone called out “ABS” but did not know who said this.  Asked what role the defendant played Mr Adibe replied that he did not know exactly what role he played and that what he knew was the defendant was among those three men who hit Mr Amaechi.

39.  In answer to the court Mr Adibe said he could not remember what the four men were doing when he first saw them.  All he could recall was they were standing there together and then immediately three of them started to go towards Mr Amaechi.

40.  Mr Nick testified that when he alighted from the car he heard someone call out “ABS” and “UD”, he looked up and saw the defendant with three masked men.  On seeing Mr Amaechi being hit by one of the three masked men Mr Nick ran away and was therefore unable to explain what the defendant did. 

41.  When asked how far the defendant was from him Mr Nick replied that where the defendant was standing and the three men were standing was not too close.  The defendant was standing on the left and the three men on the right.  When the question was repeated Mr Nick said he could not explain exactly because he ran away. 

42.  Similarly in cross-examination Mr Nick said he could not say how far the defendant was behind the car when he first saw him and how far the three men were from the defendant when he saw them.  After the court explained he was only being asked to give an estimate Mr Nick estimated the distance was about 10’. 

43.  Only Mr Adibe said the defendant was together with the three men but was unable to say what, if anything he did.  I was not impressed with the evidence of Mr Amaechi and Mr Nick.  Mrs Panesar’s questions of Mr Amaechi were clear and could not have given rise to misunderstanding.  The impression I gained was Mr Nick was very reluctant to give evidence of the distance between the defendant and the three masked men.     

44.  There was no apparent motive for the defendant to attack Mr Amaechi, Mr Amaechi having testified there was no grudges between them.  In the absence of any motive and without the expected evidence, I am not satisfied that the only inference to draw is by his presence at the scene the defendant intended to and did in fact encourage or assist in the commission of the offence (see for example R v Jones and Mirrless[9]).  Nor can it be said on the evidence that the defendant might reasonably have been expected to prevent the commission of the offence (see for example R v McCarry and Waters[10]). 

45.  The evidence of Mr Adibe that the defendant was together with the three masked men who were carrying golf clubs, which the defendant could not have failed to see, raises suspicion that the four men were present in pursuance of an agreement that the crime be committed.  Suspicion is however never enough. 

46.  I find that the prosecution have failed to prove the charge beyond reasonable doubt.  The benefit of the doubt is given to the defendant and he is acquitted of the charge.