HKSAR v. WU CHU LEUNG

DCCC 40/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 40 OF 2012

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REASONS FOR VERDICT

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1.  The defendant (D3 on the indictment and so termed throughout) is jointly charged with Ching Pak-ho, Parkol and Fung Lai-yee, Winnie (D1 and D2 on the indictment respectively and so termed throughout) with 3 counts of wounding with intent, contrary to Section 17(a) of the Offences Against the Person Ordinance, Cap 212 (Counts 1 to 3 on the indictment). D1 also faced a fourth count of claiming to be a member of a triad society, contrary to Section 20(2) of the Societies Ordinance, Cap 151. At the outset, D1 admitted the four counts on the indictment that he faced, whilst D2 and D3 each denied counts 1 to 3 on the indictment that they faced. D1 admitted the Summary of Facts in respect of all the charges that he faced and I convicted him on all the charges upon his pleas and admission of the facts. Sentence was adjourned until the conclusion of the trial of D3, D1 being remanded in custody in the meantime. There was no objection by Mr Fung, Counsel for D3, that I continue to hear the trial. The prosecution offered no evidence against D2 in respect of the three counts of wounding wherein she was jointly charged with D1 and D3 and I dismissed counts 1 to 3 against her. The trial of D3 on the 3 counts of wounding, namely counts 1 to 3 on the indictment, then proceeded.

2.  There were 4 Prosecution witnesses, all civilians, three being the victims as named in the particulars of counts 1 to 3, and one an eye-witness, who testified as to what happened.  At the conclusion of the Prosecution case, no submissions were made on behalf of D3.  I found that D3 had a case to answer on the 3 charges that he faced. Having had his rights explained to him by his Counsel, D3 elected not to give evidence and called no witnesses.  That was his right and I inferred nothing against him for exercising that right.  At the conclusion, after hearing final submissions, I adjourned the matter until today for verdict.

3.  I have carefully considered all the evidence adduced before me.  I have also carefully considered all the submissions of Counsel.  I have borne in mind also that the burden of proof remains throughout upon the Prosecution to prove guilt beyond all reasonable doubt.  D3 had a clear record and I gave myself the relevant directions in that regard.

4.  The chain of evidence in respect of the documentary exhibits was not challenged.

5.  A photo album of 65 photographs was produced by agreement and marked Exhibit P1. The photographs were divided into 4 books.  Book 1 consisted of 41 photographs marked 1 to 41.  These were photographs of the scene in question. Book 2 consisted of 13 photographs, marked 1 to 13, and were photographs of the injuries sustained by PW1.  Book 3 consisted of 7 photographs, marked 1 to 7, and were photographs of the injuries sustained by PW2, while Book 4 consisted of 4 photographs, marked 1 to 4, and were photographs of the injuries sustained by PW3.

6.  The medical reports of PWs 1, 2 and 3 were admitted under Section 65B of the Criminal Procedure Ordinance, Cap 221, and marked Exhibits P3, P4 and P5 respectively.

7.  Facts admitted by the Prosecution and Defence under Section 65C of the Criminal Procedure Ordinance, Exhibit P13, disclosed that:

a. There was a CCTV recording system operating at the material time at the premises. The CCTV disc, Exhibit P2, accurately depicted what was portrayed and was an accurate record of the activity in and about the material premises between 0455 and 0512 hours on 18 February, 2011. 14 still photographs of what was captured on the CCTV recordings was produced by agreement and marked Exhibit P2A (1) to (14).

b. DPC 54242 Yeung Ying-kei drew 5 sketches depicting the following:

(i) Locations of the CCTV at the bar on 18 February, 2011 – Exhibit P6

(ii) Layout of the bar on 18 February, 2011 – Exhibit P7

(iii) Location where exhibits were seized on 18 February, 2011 – Exhibit P8

(iv) Location where blood stains were found on 18 February, 2011 at the bar – Exhibit P9

(v) Location of blood stains and broken glass at the bar on 18 February, 2011 – Exhibit P10

The sketches were accurately drawn.

c. DNA belonging to D1 was found on a cigarette butt, Exhibit P11 and a cap, Exhibit P12. The cigarette butt was marked as exhibit C on the sketch Exhibit P8, whilst the cap was marked as ‘hat’ on the said sketch.

d. On 11 May, 2011, PW1 Wong Ming-to, Mandel, identified D3 at an identification parade that was properly conducted.

Outline of the Evidence:

8. It was not in dispute that an incident occurred on 18 February, 2011 at the Space Club & Lounge at 15/F, the Hennessy, No 256 Hennessy Road, Wanchai wherein PW1, PW2 and PW3 sustained injuries.

9. PW1, Wong Ming To, Mandel, was named as the victim in the particulars of count 1. He is aged 33 years and works as an insurance agent. He described in his testimony that he had gone to the bar in question, the Space Club & Lounge in Hennessy Road shortly after midnight on 18 February, 2011 with friends including PW2 Pak Tim-yee, Fiona, PW3 Leung Kwok-hei and PW4 Ip Sze-man, Joyce. They sat in the VIP Room and were drinking and having fun. Two of the friends left at around 2 a.m. Afterwards, a group of about 5 or 6 persons came into the VIP Room and sat at another table. A member of the staff, he thought it was the manager, introduced the other group to his group. He went over and sat at their table for about an hour, whilst PWs2, 3 and 4 sat at their original table about 12 feet away. PW3 had also come over to chat with the group. PW1 went to the washroom, where he was approached by Samson, D1 and Winnie, D2, the girlfriend of D1. They were in the group of people who had subsequently come into the VIP Room, and he had sat with them at their table. Another in the group was called ‘Ah Shue’ and he had hair that had been dyed golden. He was asked if he was the boyfriend of PW2 and he admitted that he was. He then returned to the VIP Room. Shortly after, D1 came over and pushed him. PW3 came over to them to ask what the matter was. PW1 said when he was pushed by D1, he had asked him what happened. D1 spoke some words relating to triad society – he seemingly said ‘I am of 14’. PW1 was then hit with a glass bottle at his left temple near his left eye by D1. D1 was in a group of 3 to 4 persons, one of whom he identified to be ‘Ah Shue’ i.e. D3. He could not identify the other persons. He said he was hit with several glass bottles, although he could not say how many. D3 hit him as well, and he thought it was with a fist or glass bottle or a hard object. The situation was chaotic, and after the first hit to his head with the glass bottle, his head was bleeding. He saw fists waving in front of him and also glass bottles. There were 3 to 4 persons hitting him, and D3 was one of the group. PW1 left the VIP Room and went out into the lift lobby – the group followed him into the lift lobby where he was further assaulted by the group including D1 and D3. He had gone to the lift lobby to find his girlfriend PW2, but she was not there. After being assaulted in the lift lobby, he went back to the main area of the bar, where he saw his girlfriend, PW2. D1, D3 and a third person he was not able to identify still followed him there. It was at this time that PW2 got injured on her left hand, although he was unable to see how she was injured. It was chaotic at the time. He went over to talk to her and ask how she was – as he was talking to her, he was hit on the back of his head by a hard object and lost consciousness. He did not know who hit him at this time – this part of the assault on PW1 was captured on the CCTV of the premises. When he regained consciousness, he was still at the bar. The police and ambulance men had arrived, and he was being given first aid. He was hospitalised for a night at the Ruttonjee Hospital, and received stitches as well – the injuries he sustained were photographed and are shown in Book 2 photos 1 to 13 of Exhibit P1.

10. He attended an identification parade on 11 May, 2011 when he picked out from the parade the person he referred to as ‘Ah Shue’, D3 in these proceedings. He also identified D3 in court. He had attended identification parades on 6 May, 2011 when he had identified D1 and D2.

11.  PW1 was shown Exhibit P6, the sketch of the bar, and identified that they had all been seated in the room marked VIP Room 1.   The toilet where he was when he spoke to D1 and D2 was near the room marked VIP Room 2, and he marked the position on a photocopy of Exhibit P6, which was marked Exhibit P6A.  He also marked a red circle on Exhibit P6A to show where he was when he collapsed.

12.  Exhibit P1, the photo album was shown to PW1 and he identified the photographs in Book 1 of the album to be photos of the bar in question, photo 10 depicting the entrance of the bar, photo 12 the area where he lost consciousness, photo 18 the entrance to VIP Room 1,  and photos 19 to 28 the inside of VIP Room 1.

13.  Under cross-examination, it was put to D1 that the one he had pointed out on the CCTV recording Exhibit P2 as ‘Ah Shue’ who had blonde hair and who had assaulted him and PW3  was not the same person as D3 whom he had picked out in the identification parade – PW1 disagreed.  PW1 said he had sat with D1, D2, D3 ‘Ah Shue’ and some others for one to two hours before the assault, although he did move between the two tables in VIP Room 1.  It was suggested to him that D3 was know as ‘Ah Chue’ and not ‘Ah Shue’ – PW1 said he did not know, at the time of self-introduction, D3 had so introduced himself, and he might have been mistaken in the name but he was certain that D3 was ‘Ah Shue’ and had sat with them.

14.  PW1 was cross-examined in respect of the 5 witness statements he had made in respect of the incident.  He agreed that in none of his witness statements had he mentioned hearing D1 say triad related words.  He said he had heard what was said from ‘Ah Hei’ PW3 before statements were taken from them at the hospital. He did not mention in his witness statement as he had just been attacked and he tried to tell everything that he could recall.  He said when D1 said the words, he had already been hit by the glass bottle and he did not actually hear D1 mention ‘14’, but heard this from PW3 subsequently at the hospital.  He was unclear whether the words D1 spoke were said before or after he was hit as things were quite chaotic at the time.  Although he was not drunk, he had been drinking that evening, and described himself as being ‘tipsy’ but said on the night in question they had not been drinking that much – he had run a bar for two years and as a result his recognition of people was good, as was his tolerance for alcohol.

15.  PW1 gave his first witness statement at 10.57 hours on 18 February, 2011, when he was still in the hospital, a few hours after the incident.  He described the male ‘Ah Shue’ as being ‘aged around 30. 5’8” tall, short black hair, dark complexion, medium build, details on his clothes unknown’.  PW1 said the environment was dim and that he recalled the height and dark complexion might be because it was dim at the time. But he remembered the appearance of ‘Ah Shue’ and the name and that he was one of the attackers.  When giving his first witness statement, he just said what he could recall at the time, and in respect of the hair, at that time he did not remember the colour.  He was referred to his first witness statement where he described how he had been attacked – he had said that a ‘male in a checked ‘kak chai’ t-shirt took a glass bottle from the table and hit on my head.  I immediately fell onto the floor. Then somebody punched and kicked me.  I protected my head with both hands. Therefore I could not see who hit me.  After 3 to 4 minutes I felt the people who had hit me had left. I got up and found blood all over me’.  When asked where the man in the checked t-shirt had come from, he said that he was one of the group, but what he meant was ‘track suit’ not ‘checked t-shirt’, and that it was ‘probably’ wrongly recorded in the witness statement.  In his evidence in court, he described the blow he received as having been delivered by Samson, D1, who was captured on the CCTV Exhibit P2, and D1 was not wearing a checked t-shirt, nor was he wearing a ‘track suit’.  He was wearing a t-shirt.   When asked why he had told the police it was somebody in a ‘checked t-shirt’ who had hit him, he said he tried his best to give a description and it was what he recalled after he had regained consciousness.   He was questioned as to why he made no mention of what D1 had said – he said that he had just been assaulted and at the time he did not remember all the details, and he recalled it later. He only described the assault in the VIP Room, and not the subsequent assault in the area near the elevator and in the main bar. He was also told by the police that a more detailed witness statement would be taken later.  He did give more details in his second witness statement taken on 24 February, 2011, which was produced and marked as Exhibit P14, and its English translation, admitted by the parties to be an accurate translation, was marked as Exhibit P14A.  In this statement, he described how he saw PW2 talking to D1 and D2 and he sensed something unusual and went up to see what the matter was. When he approached, D2 asked him fiercely if PW2 was his girlfriend, and he said she was.  D1 immediately pushed him with both hands.  PW3 came up to them and asked D1 why he pushed PW1.  Then D1, D2 and two other men, one of whom was ‘Ah Shue’ who had been introduced to him by the manager earlier that day, totally 4 persons, assaulted him, PW2 and PW3. PW1 explained that this account differed from what he had said had happened in his evidence-in-chief as things happened very quickly and were quite chaotic. In his first witness statement where he had described ‘Ah Shue’, he did not describe the role ‘Ah Shue’ played.

16.  He said he recognised that D3 was the one he referred to as ‘Ah Shue’ because he had so introduced himself, they had sat together and had fun together for some time. Thus he was able to pick him out at the identification parade.  After the identification parade, he was shown the CCTV recording, Exhibit P2.  He pointed out ‘Ah Shue’ on the recording as the person, D3, that he had picked out at the identification parade.   He said he had recognised the face when he picked D3 out at the identification parade, and when he had described ‘Ah Shue’ in his first witness statement as having black hair, he had not been paying attention to the hair.

17.  PW2, Ms Pak Tim-yee, was named as the victim in the particulars of count 2.  She had gone to the bar in question with PW1 and others.  Their group sat in VIP Room 1, and subsequently, another group came into the room and sat at another table.   PW1 went over to the other group and sat and had fun with them.   She knew D1 and D2, who were in the other group, although she did not herself go over and join the group.  She saw PW1 leave the room to go to the washroom, and saw D2 approach and have a conversation with PW1, although she could not hear clearly what was said until they were closer and she heard D2 ask PW1 if he was her boyfriend and PW1 said he was.  D2 then approached her and asked her if PW1 was her boyfriend in an unfriendly manner, and she said yes.  Then D1 came in and said ‘making trouble?’, and PW1 replied ‘no nothing’. D1 pushed PW1, PW3 came over and tried to separate PW1 from D1. D1 picked up a bottle and smashed PW1’s head, and someone else picked up a bottle and smashed it on PW3’s head, someone with golden and brownish hair. She tried to stop them but was unsuccessful.  She took out her mobile phone to call the police, and went out of the VIP Room, and dialled ‘999’. D2 followed her out of the room and tried to prevent PW2 from calling the police.  D2 pulled PW2’s hair, and there was a struggle. PW4 came over to try to separate them – this was in the main area of the bar. D2 finally released her, and she went and sat at the innermost area of the main area of the bar.  The group came out of the VIP Room. D1 and D2 came over to her and asked her if she would like to be beaten up.  PW1 walked towards her, and asked her if she was all right.  D1 picked up a bottle and smashed it on PW1’s head, and PW1 collapsed to the ground in front of her. Someone picked up a bar stool and threw it at her, someone with brownish hair, which she warded off with her hand and sustained injury on her left hand. After this assault, the group left the bar.  She subsequently picked out D1 and D2 in an identification parade that was held.  Exhibit P2, the CCTV recording was played, and she identified PW1, PW3, PW4, D1 and D2 as they appeared on the recording.

18.  PW3, Leung Kwok-hei, was named as the victim in the particulars of count 3.  He was at the bar in question at the material time with PWs 2, 3 and 4 and in the VIP Room.   He had gone to the toilet, and when he returned, he saw that PW1 and PW2 were having a quarrel with a male and female from the other group sitting in the VIP Room.  He saw the male push PW1 and he rushed up to try to separate them.  He was assaulted by the male and others with fists and kicks and then a bottle was smashed on his head by the male, and he was bleeding. He fell to the floor, and struggled up.  PW3 left the room and ran to the lift lobby. Some from the group chased after him to the lift lobby where he was further assaulted.  He rushed into the toilet, and locked the door. Soon after, the police arrived. He could recognise the first male who pushed PW1, but no one else as the environment was dim.  He had heard the male who pushed PW1 say some foul language and ask him where he was from and to watch out and also say that he was of 14.  The CCTV recording, Exhibit P2, was viewed by PW3, and he identified himself and how he was assaulted.  He described the scene as chaotic.

19.  PW4, Ms Ip Sze-man, Joyce, had been sitting in the group with PWs 1, 2 and 3 in the VIP Room, where another group that had come into the VIP Room after them had sat at another table.   She described D2 talking to PW1 and D2 appeared angry. She described D2 scolding PW2, D1 returning from the toilet and seeing the quarrel between PW1 and D2. PW3 tried to mediate. D1 punched PW1 in the face, and a friend of D1 smashed a bottle on the head of PW3.  There was chaos in the VIP Room – she left the room and called the police. She went into the main area of the bar and saw D2 pull PW2’s hair and slap her – she went to separate them.  She had also gone into the lift lobby, when PW3 rushed into the lift lobby, followed by D1 and others. D1 swore at PW3 and hit him, and a bottle was passed to D1 and he used it to hit PW3 with.  In the main area of the bar, a bar stool was picked up by a male who threw it at PW2 who was sitting on the sofa.  D1 picked up a bottle and hit PW1 on the head with it, and PW1 fell to the ground and lost consciousness.

20.  Exhibit P2, the CCTV recording was played, and some of the cameras had captured the assault that took place on PW1, PW2 and PW3, namely the camera at the elevator, and the cameras marked Channel 7, for the main area of the bar, and Channel 8, another view of the main area of the bar.  The camera at the elevator clearly captured the assault on PW1 and PW3 at the lift lobby from about 05:02:30 – one can see the one that PW1 identified to be ‘Ah Shue’ in the lift lobby and he participated in the assault on both  PW1 and PW3.  In the course of the recording, there are a number of close-ups  of his face, although they are not of the best quality. One example is seen in the still marked Exhibit P2A(1) taken at 05:02:21 when ‘Ah Shue’ is captured at the lower left corner of the screen.  This same person is seen at the still Exhibit P2A(4) at 05:02:55 kicking PW3 on the head outside the elevator.  This same person is also captured on the cameras of Channel 7 and Channel 8, and can be seen as one of the assailants in this incident on PWs 1, 2 and 3.

21.  Of the 4 prosecution witnesses, only PW1 was able to identify D3 in an identification parade, and he said that D3 was this person “Ah Shue’ that was captured on the CCTV recordings.  In his initial description of ‘Ah Shue’, he described him as having ‘short black hair’.  Clearly, the person he picked out as ‘Ah Shue’ on the CCTV recording had dyed blonde hair, although the sides were black in colour.  PW1 explained why he had initially described ‘Ah Shue’ as having black hair – he had not paid attention to the hair colour, and he said he had identified D3 because he recognised his face.

22.  I must say that from an observation of the CCTV recording itself, D3 looks very similar to the person PW1 identified as ‘Ah Shue’ on the CCTV recording.

23.  But the burden of proof on the prosecution is one of proof beyond all reasonable doubt.  The evidence of PW1 is crucial to the prosecution case against D3.  It is clear that PW1 had made a number of witness statements, and the accounts he gave in his first and second witness statements differ materially from his account of the incident in court.  There are also material differences between his account and that of the other prosecution witnesses. His description given immediately after the assault of the person he described as ‘Ah Shue’ is also quite different from that of the ‘Ah Shue’ he pointed out on the CCTV recordings.

24.  I have no doubt that PWs1, 2 and 3 were assaulted at the material time and place by D1 and others, and parts of the attack has been captured on the CCTV recording of the bar, Exhibit P2.  I find also that the injuries sustained by each of them amounts to grievous bodily harm.

25.  But I cannot be satisfied to the requisite standard that D3 is the person ‘Ah Shue’ referred to by PW1 as one of the assailants.  I cannot be certain that PW1 has correctly identified D3 to be one of the assailants, although I must say D3 looks very much like the person PW1 identified as ‘Ah Shue’ on the CCTV.  The benefit of the doubt must go to D3 – he is acquitted of the 3 charges that he faces.