HKSAR v. CHAN CHI MING AND OTHERS

DCCC 760/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 760 OF 2012

----------------------

---------------------

Reasons for Verdict

---------------------

1.  This trial involved a sole charge of wounding with intent, contrary to section 17(a) of the Offences against the Persons Ordinance, Cap.212.

2.  The prosecution alleged that the four defendants in this trial, together with other persons unknown, unlawfully and maliciously wounded a Mr Ming Chun-kit with intent to do him grievous bodily harm on 5 November 2011, outside the Housing Department Sha Kok Estate Office in Sha Kok Estate, Shatin. 

3.  The fourth defendant pleaded guilty on the first day of the trial whilst his co-defendants, the 1st, 2nd and 3rd defendant maintained their not guilty plea.

The prosecution’s case

4.  The prosecution relied on the victim’s evidence and two independent eye-witnesses.  They also rely on the verbal admissions made at the scene of the arrest by the defendants as well as post recorded interviews and records of interviews.  These statements were challenged by each defendant and subject to a special procedure to determine their voluntariness; they were ultimately admitted into evidence.

5.  PW1, the victim, lived at Sha Kok Estate and at home on the material morning, 5 November, when he got a telephone call from a friend who was downstairs.  He had been assaulted.  During the assault he had lost his spectacles and needed help to find them.  The victim went down to help with two others at about 2.30 am.  The spectacles were found in a flower bed near the Housing Department office of the Sha Kok Estate.  The victim heard some males shouting and coming towards them so he and two friends ran away, splitting up as they did. 

6.  A group of males numbering about three to four or four to five chased the victim.  They caught up to him and hit his head with a glass bottle.  He felt approximately three strikes with the bottle before it smashed over his head.  He kept running away but a few paces after this he knelt down, curled up and protected his head with his arms.  He felt kicks, punches and further strikes with a bottle or bottles by a lot of people all over his body and head.  He was assaulted for one to two minutes before the group ran away.  The police arrived at about the same time.

7.  Before the police approached him several girls helped him to one side of the pavement and gave him tissues to wipe his bloody wounds. 

8.  This victim did not know why he was attacked nor knew his attackers.  He had stitches in his face, back, leg and arm.  His medical reports are exhibited at P25 and P26.  P19 are photographs of his injuries sustained that night.  Exhibit P18 are photographs of the scene where he was attacked.  He identified the sketch P17 as marking where he was attacked.  At traffic lights and where a circle is marked with a number 5, was where he was first hit; number 5 denotes where glass fragments were seized.  Where he stopped running is where the sketch is marked with four circles encircling the numbers 1 to 4.  That is where the police seized bloody tissues, more glass fragments and saw a pool of blood.

9.  The prosecution also relied on the evidence of a passer-by, PW2, who witnessed the attack on the victim, called 999 and watched the group of attackers flee.  His evidence was he heard noise on his way home and saw a male being attacked by six to seven persons.  He saw punches being thrown and heard swearing.  All attackers were surrounding the male who was on the ground.  When the police arrived all attackers fled in the direction of Sand Martin House.  He then saw four girls approach the victim to help him.  He was questioned by the police and described the attackers as being 17 to 18 year old youths.

10.  PW3 was one of the group of girls who went to help PW1 after the attackers fled.  She and her friends heard the attack first and then saw a group of males hitting the victim.  She said a group of five to six were kicking and punching him before they all fled.  She then went to help PW1 immediately.  She gave him tissues as he was bleeding after the attackers fled, and only they approached the victim, no one else went to his side or helped. 

11.  The police then proceeded to Sand Martin House to look for the attackers.  They searched the building and found seven males on a staircase on the 11th floor.  Some were sat on the stairs, some were panting and some had blood splatters on their clothes or shoes.  The police suspected this group of males were involved and questioned them individually. 

12.  Upon examination of the 1st defendant at the scene, the police found blood stains on his trousers and front upper part of his shoes.  He had an abrasion on his right leg and right middle finger.  He was arrested for wounding and, under caution, admitted to PC6582, PW4, that he had assaulted someone but it had nothing to do with the others there.

13.  Forensic examination determined the blood was some ones’ other than the victims’.  The only other person bleeding in that group was the 1st defendant himself.  At a subsequent record of interview he made further admissions and elaborations. 

14.  Upon examination at the scene, the 2nd defendant had blood stains on the back of his shirt and rear trouser pocket.  He was arrested for wounding and, under caution, admitted to PW5, PC4924 that he only punched the victim a few times and then fled.  He did not know who else had hit him.  Forensic examination determined the blood on his clothes originated from the victim.  At a subsequent record of interview, in the presence of his father, due to his young age, he made further admissions and elaborations.

15.  Upon examination at the scene the 3rd defendant had blood stains on his left trouser leg and right shoe laces.  He was arrested for wounding and cautioned.  Under caution he admitted to PC4924, PW5, that he along with the 1st defendant and the 2nd defendant had punched the victim but was not sure who else was present.  Forensic examination determined the blood on his clothes originated from the victim.  At a subsequent record of interview he made further admissions and elaborations.  However, he did retract from his earlier admission and said he was not sure if the 1st or the 2nd defendant were present at the assault.

16.  The 4th defendant was the other co-defendant found to have blood stains on his jacket, also determined to have originated from the victim.  When he was arrested and cautioned he denied the offence and any involvement.  In his subsequent record of interview he continued to deny the offence. 

17.  The parties prepared Admitted Facts, exhibited at P27.  The arrests of the three defendants was not challenged.  Items seized at the scene of the attack were not challenged nor were photographs taken at the scene and of the victim’s injuries.  The sketch of the scene, P17, was not challenged.  Belongings taken from the victim and each defendant were seized for the purpose of forensic examination, as were buccal swabs of the victim. The chain of evidence relating to these items was not challenged. 

18.  The Government Chemist report, P24, was not challenged nor were the findings relating to the blood splatters or stains on defendant’s shoes or clothes.  It was also agreed all three defendants had a clear record. 

The Special Issue

19.  The prosecution rely on a record of interview that post records the 1st defendant’s admission made verbally after his arrest and caution.  This is Exhibit P29 taken by PW4, PC6582.  The second record of interview, Exhibit P41, taken by PC48460, PW8, was also relied on.  The 1st defendant challenged these two exhibits as well as the Notices to Persons in Custody signed by him, P28 and P40. 

20.  The allegations made against the relevant statement takers and arresting officer include impropriety, assaults, threats, oppression and inducement.  He was denied medical attention for his bleeding hand as well as legal representation.  Written grounds of objections were submitted to challenge the statements; the admission was not made verbally either; he was, at the time of his arrest, drunk. 

21.  The prosecution rely on a record of interview that post records the 2nd defendant’s admission made verbally under caution, Exhibit P35 by PW5, PC4924.  The second record of interview, Exhibit P38, taken by PW7, PC34236 was also relied upon. The 2nd defendant challenged these two exhibits and made allegations of assaults and threats by PW14, SGT50761 and PW12, PC5626 at the scene of the arrest.  Because of a residual and lingering fear the 2nd defendant made up admissions in Exhibit P38.  He signed P35 without knowing its contents. Written grounds of objections were submitted to challenge the statements.  The 2nd defendant’s father accompanied him during the course of both interviews.

22.  The prosecution rely on a record of interview that post records the 3rd defendant’s verbal admission made under caution at the scene of the arrest, Exhibit P32, taken by PW5, PC4924.  A second record of interview, Exhibit P44, taken by PW9, PC5109 and a third record of interview, Exhibit P47, taken by PW10, DSPC16188, were also relied upon.  The third was taken 11 days after the second whilst the defendant was on police bail. 

23.  The 3rd defendant challenged the three exhibits as well as Exhibit P31, a POL153, a Notice to Persons in Custody.  The allegations made against the statement takers include threats, inducements, and fabrication of the contents of the statements.  At the scene of his arrest he was assaulted by a police officer he could not identify.  Also PW5 did not question the 3rd defendant at the scene as alleged, nor did the 3rd defendant say anything under caution. He was under the influence of alcohol at the time; he was denied legal representation at the station.  Written grounds of objections were submitted to challenge the statements.

The defence case

24.  The defence do not challenge the fact or evidence that the victim was assaulted and wounded.  Defence counsel for the 1st defendant casts doubt on whether he was assaulted by more than one bottle as alleged.  It was put to PW1, the victim, that the 1st and 3rd defendant went to aid or help him after the group of attackers fled this emphasis being on after the attack, not during.

25.  It was put by all three defence counsel to PW2 and PW3 that a male or a group of males went to help the victim after the attackers fled.  This male or group of males assisted the victim not attacked the victim.  This could explain the presence of the victim’s blood on their clothing.  PW1, 2 and 3 denied this was the case.  The only persons to approach the victim after the attackers fled and before the police arrived were PW3 and her girlfriends, no males. 

26.  The defendants do not deny their presence in Sand Martin House and their subsequent arrests but deny making any admissions of assault or wounding.  They allege the police assaulted them and others not charged but present on the 11th floor staircase.  There were assaults, threats and oppressive behaviour by the police.  The 1st defendant and 3rd defendant say they were under the influence of alcohol at that time.  Either admissions were not made or they were not made voluntarily.  The three defendants gave evidence in the special issue before the close of the prosecution’s case.   

27.  The three defendants elected not to give evidence in the general issue.  This proves nothing one way or the other.  A failure by a defendant to give evidence is no evidence of his guilt. 

28.  It was submitted in final submissions by the 1st defendant’s counsel that there were two groups of attackers and two stages or times when PW1 was attacked.  The serious injury inflicted by a glass bottle was during the first stage.  According to the 1st defendant’s admission, if relied upon, he joined in at the second stage.  If his admissions carry weight then, I quote:

“He was not responsible for the assault or wounding by a glass bottle and, therefore, did not have the requisite specific intent to wound PW1 with intent to do him grievous bodily harm and therefore the charge is not made out.”

29.  In written final submissions he goes on to say the 1st defendant could be convicted of an alternative, lesser charge, a section 19 or section 30 offence.  Counsel for the 1st defendant submits the evidence concerning the broken glass fragments at the scene is ambiguous and he submits that despite the sketch, P17, showing glass fragments at two locations, the victim was only assaulted by a glass bottle at the first location during the first attack.  In paragraph 3 of final submissions counsel submits that the 1st defendant joined a group of three to four after they used a glass bottle to assault PW1.  When he joined in no weapons were used. 

30.  It was also submitted that the evidence of two defence witnesses called by the 1st defendant shows he was very drunk just prior to his arrest.  They give evidence of the amount of alcohol drunk and how drunk the 1st defendant was when he left the bar to take a taxi to Sha Kok Estate.  Evidence of intoxication is relevant in determining whether the necessary mental element of intent is proved. 

31.  In fact all three defendants deny involvement but in the alternative submit the prosecution has not proved the necessary mens rea of intent required by a section 17 offence and therefore the court can only convict of a lesser offence.  All three defence counsel distinguish the attack on PW1 and submit there were two distinct groups of attackers on two separate occasions.

The oral admissions and confessions made

32.  The prosecution called 11 police officers all involved in the special issue.  All testified as to their search of Sand Martin House; all subsequent involvement with each defendant either at the scene or later at the police station.  All denied any assault, inducement, oppression or wrongdoing against any defendant.

33.  Before the trial commenced the prosecution arranged for all police officers from the three EU vehicles that responded to the 999 call, and investigated this case, to attend court for an informal identification parade.  The police officers were presented to the three defendants and their legal representatives as requested so the defendants could identify police officers relevant to their allegations and objections to the admissibility of any admissions made. 

34.  The 1st defendant and 2nd defendant identified each officer relevant to their case.  The 3rd defendant identified all the officers except one, one plain clothed officer who dealt with him at the scene of the arrest.  He failed to identify this officer amongst those that attended court.  He alleges this officer assaulted him at the scene.

35.  With the three defendant’s challenge to their confessions and admissions, the sole issue was credibility of witnesses and the defendants, except for the 2nd defendant.  The 2nd defendant’s defence counsel raised an issue that related to a breach of the rules and directions issued by the Secretary for Security, referred to as the 1992 Rules and Directions specifically the 5th direction, “Interrogation of children and young persons.” I quote from the 5th direction:

“So far as practicable, children and young persons under the age of 16 years should only be interviewed in the presence of a parent or guardian.”

36.  The 2nd defendant was 14 at the material time. The post recorded statement, P35, at page 2 repeats the questions and answers, after caution, at the scene of the arrest when no adult or guardian was present.  The 2nd defendant signed this in the presence of his father.  I quote from after the caution:

“Do you understand? He answered, I did give him several punches with fists then I left in a hurry. Further asked, did you attack other person with weapons? He answered, No I only hit him with hands. I further asked whom did you beat him together with? He answered, I did it alone. I don’t know anyone else. I further asked did you hear anyone claiming to be Pok Hong Fourteen. He answered, No. Neither did I.”

37.  I was referred to the authority, Trevor Daves Weekes [1993] Criminal Appeal Review 222 by defence counsel for the 2nd defendant.  It was submitted the questions amounted to an interview and therefore should be excluded.  It was also submitted that the post-recorded statement made at 6 am meant the 2nd defendant, as a young person, may have been tired and not rested enough to conduct such an interview.

38.  The sole issue to be determined in relation to each of the records of interviews and the reconstruction is a question of voluntariness.  The prosecution must prove beyond a reasonable doubt on the whole of the evidence that the interviews were voluntary.  And if they can achieve the standard of proof the records of them are admissible. If, for any reason, they were not voluntary the records are inadmissible.  If the circumstances in which they were made were oppressive they must be regarded as having been made involuntarily.  There is also a further safeguard that a record of voluntary interview may still be excluded if it was obtained by unfairness or trickery. 

39.  This case falls four-squares within the description of a case referred to in the authority of Wallace & Fuller v R [1997] 1 Criminal Appeal Review, 369 where the Privy Council noted that the trial judge was faced with an irreconcilable conflict of evidence between police officers and defendants turning on credibility alone.  No principles of law were in issue and there was no discretion to be exercised.  The only question was whether the judge believed one set of witnesses or the other. 

40.  His ruling left the answer in no doubt.  Simply to announce that he accepted the account given by the officers and found the appellant’s story unworthy of credit would not have advanced, in that case, an appeal.  Their Lordships could see nothing to recommend such a course and good reason not to follow it.  This authority, Wallace has recently been adopted by the Court of Appeal in Hong Kong in HKSAR v Okafor Peter Eric Nwabunwanne CACC 437/2010, the date of that judgment is 27 January 2012.

41.  In the circumstances all that is necessary for me to say is that after careful consideration of all the evidence relating to the manner and circumstances in which these interviews were conducted, including the allegations made by, and the evidence of the accused, and having due regard for the 1992 Rules and Directions on the questioning of suspects, I was satisfied as to the voluntary nature of each of them and further satisfied that there are no grounds upon which I should exercise my discretion to exclude the records.  They were consequently each admissible and admitted into evidence as were the challenged POL153’s Notice to Persons in Custody.

42.  I will add, however, that I specifically considered and found there to be no breach of the direction regarding the interrogation of children and young persons where the 2nd defendant was concerned.  I found the questions as by PW5, PC4924, did not amount to an interview as contemplated by those Rules and Directions.  The court should look at what is fair in the light of the provisions of the Code. I found no impropriety that led me to exclude the questions and answers that followed on from the voluntary oral admission made by the 2nd defendant under caution.  Nor was there any evidence he was too tired to interview when his father arrived at the station.

43.  I will further add that the 3rd defendant’s defence counsel’s submission that the prosecution failed to address the evidence that there were one or more unidentified officers that handled the 3rd defendant at the scene of arrest, was rejected.  There was no challenge to the assertion by the prosecution that they did arrange all officers present at the scene of investigation to attend court for the defendants to identify them.

44.  There was a submission from PW5’s evidence he agreed there were re-enforcements that arrived after him.  From the evidence as a whole we know other police officers arrived after PW5, after all he arrived first at the stairwell of the 11th floor with PC6582, PW4.  It is suggested that what he means by reinforcements are police officers, other than those who gave evidence or were provided for an identification exercise.  It is suggested the prosecution did not address this lacuna and therefore a doubt may exist, having not proved their case beyond reasonable doubt. 

45.  In my view that suggestion is misleading.  PW5 was not asked who he was referring to when he agreed to the term “re-enforcements”.  There is no suggestion there were officers other than those that arrived after PW5, such as PW14 or PW6.  This was not put as suggested in re-examination.  This submission was rejected.

The Law

46.  The prosecution has the burden of prove.  It must prove beyond reasonable doubt all elements of the offence against each defendant individually.  The defendants elected not to give evidence in the general issue which I have said is not evidence of any guilt.

47.  A section 17(a) offence requires the prosecution to prove the defendants unlawfully and maliciously wounded PW1 with intent to do him grievous bodily harm.  He was clearly seriously wounded by a glass bottle and bodily assaults.  This was not challenged.  Grievous bodily harm is given its ordinary meaning and means serious bodily harm.  The defence do not argue he did not suffer grievous bodily harm.  The question is did the defendants jointly would PW1 with intent to do this harm to him.

48.  The intention of each defendant can be determined from all the relevant circumstances and what was said and done.  The prosecution must prove that the grievous bodily harm was intended.  If it was then it must follow that it was malicious.  There is no suggestion it was lawful such as in self-defence.

49.  The prosecution say there was a joint enterprise where several persons are accused of inflicting injury on a victim.  It is the totality of the injuries which are to be considered in relation to a section 17 Charge.  It is neither here nor there if a defendant joins in an attack slightly after the others have begun to inflict injuries which may have included the most serious injury.  A co-defendant is aiding in the commission of the offence as soon as he joins in.  it matters not which of the defendants in a joint enterprise struck the most serious blow.

50.  Joint enterprise means two or more persons together take part in a course of criminal conduct.  It need not be at the same moment.  Each participant is criminally liable for all acts done in pursuance of the joint enterprise.  The prosecution must prove they had a common purpose to commit this offence.  Again, this can be determined from all the relevant circumstances and what was said and done.

51.  If intoxication is proved or raised in a charge where intent is required, then the court must consider any such evidence of intoxication to determine whether the required mental element is proved.  A drunken intent can still be an intent.  The issue is whether or not that defendant formed the mens rea required, an intent.

My Findings

52.  I have carefully considered the evidence of each witness, the discrepancies and consistencies and the submissions of each party.  The three defendants have clear records.  I have warned myself of the likelihood and propensity of young men with no previous convictions to commit this offence. 

53.  The prosecution relies on the evidence of each defendant’s admission that they were part of the group that attacked PW1 which could explain how the 2nd defendant and 3rd defendant had the victim’s blood on their clothes.  The 1st defendant had an injury to his hand that was apparently fresh when arrested.  The blood evidence was not challenged and is evidence that supports the admissions.  I am sure the victim’s blood was transferred to the defendant’s clothing during the course of the attack.

54.  I have considered all the evidence of the prosecution witnesses.  I accept their evidence as truthful, reliable and credible.  From PW1 and PW2’s evidence, the sketch, P17 and the photographs of the scene of the attack, I find the attack on PW1 was simultaneous; not in two stages nor by two groups.

55.  PW1 saw a group approach with bottles shouting so he ran away.  He was unable to say exactly how many chased him but that is understandable.  He was caught and hit with a glass bottle.  He said there were three blows and on the third strike the bottle shattered.  The attack did not stop there or pause, as suggested by defence counsel; PW1 kept moving to get away but only managed to run a bit further before stopping and kneeling down. The attack continued so he protected his head with his arms which is a natural instinct.  He then felt kicks, punches and felt more hard blows one or more bottles; blows can be felt to be from hard blunt objects.  Then after one to two minutes the blows stopped and the attackers ran away.  I also relied on the second and third prosecution witness’s evidence as to the attack on him whilst he was on the ground and how the attackers ran away.  Their evidence supported PW1’s evidence.

56.  What he describes which I accept as the truth, is an attack by a group that was continuous.  It is possible there were attackers that joined in after the others but if there were it was only a matter of a very short period of time apart.  There was no obvious pause. 

57.  What I believe is that the group that attacked PW1 acted in a joint enterprise and by their act of chasing him, hitting him and surrounding him to continue to assault proves there intent to cause him grievous bodily harm.  There was a bottle used to hit him, more than one, a weapon that no one could have missed and despite the use of an obvious weapon the assaults continued until the attackers fled.  I am sure the prosecution can prove the necessary mens rea required from the proven facts.

58.  I do not agree with the submission that the most serious blow was delivered by one group that may not have included the defendants at that precise moment.  If the defendants joined in after they were not guilty of a section 17 offence but perhaps an alternative lesser charge. That must be wrong in principle if my finding the attack was simultaneous is correct. 

59.  To come to that finding I also relied on what PW2 actually witnessed.  He said PW1 moved from the traffic lights where he described the group first catching him and hitting him with a bottle to the railings a short distance away where he knelt down.  PW2 saw six or seven males.  He did not describe other males joining after or later.  He watched this attack for three minutes before the group fled.  This flies in the face of the defence submission that there were two stages of an attack by two groups of attackers.

60.  This also contradicts the three defendant’s own admissions that they joined the attack after the attack started and only delivered a few punches.  I am sure the defendants have tried to distance themselves by admitting a few blows only and not being part of the initial gang attack. 

61.  I found their records of interviews were given voluntarily and I found they made incriminating admission orally at the scene of arrest voluntarily.  The prosecution can rely on that evidence to support their case. 

62.  I considered the 1st and 3rd defendant’s evidence of drinking alcohol earlier and the 1st defendant’s two defence witness’s evidence.  However even if the 1st and 3rd defendant had been drinking alcohol before the attack and their arrest, I was not convinced they were so intoxicated they could not form the required intent.  There was no evidence from the police or their conversations with the police that they were intoxicated.  Moreover they were able to surround, as I have found, PW1 as described by witnesses and flee with speed successfully as a group.  I am sure they could and did form the necessary mens rea.

63.  Having considered the admissions made by each defendant admitting assaulting PW1, the facts surrounding their arrest immediately after the attack in Sand Martin House close to the scene of the attack and the victim’s blood found on the 2nd and 3rd defendants’ clothing, I am sure that the 1st, 2nd and 3rd defendant were part of the group that, together with others, assaulted PW1.  I am sure there was a joint enterprise. 

64.  I am sure the prosecution has proved all elements of the offence charged including the required mens rea against each of the defendants.

65.  Despite their previous clear records I find the 1st, 2nd and 3rd defendant guilty as charged and convicted after trial.