HKSAR v. KWOK SAU FUNG

DCCC 507/2021

[2023] HKDC 1415

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 507 OF 2021

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REASONS FOR VERDICT

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1.  The defendant faces 3 counts of wounding with intent against three individuals in this trial.

2.  The prosecution called the 3 victims (PW1-3)  to testify, and I call them victims because the objective and undisputed facts show that on 12 September 2019, they were attacked by a group of more than 10 people at a bar in Kowloon City shortly after they had a dispute with a male in white shorts (hereinafter referred to as M1)  regarding the right to sing a song requested by the party of the victims.  The victims suffered from serious injuries[1] as a result.

3.  The prosecution also relied on a number of CCTV clips.  Nonetheless, counsel for the prosecution fairly confirmed that the prosecution case rested upon the reliability of the prosecution witnesses because solely relying on the CCTV would not bring home any conviction.  They were strong supporting evidence and it is clear that the victims were accurate in their accounts of when the dispute began and how it developed.  Insofar as the question of identification, the prosecution had to rely on at least one of the prosecution witnesses.

4.  The defendant was identified by the victims (not including PW2)  at an Identification Parade on 17 July 2020, ie approx 10 months after the incident, as M1.  Therefore, the accuracy and reliability of those identifications become the only issue in this case.  Had they mistaken the defendant as M1 at that time, the positive dock identification might not rescue the prosecution case as the victims did not know M1 or any of the attackers.

5.  According to PW1, she was enjoying the entertainments at the bar with her husband (PW2)  and his colleague (PW3)[2]. At around 0333 hours, PW2 passed the microphone to PW3 but for unknown reasons, M1, a stranger, sang along.  PW3 complained because he wanted to sing that song alone as it was played at the request of his wife (who was present at the bar but not called as a witness).  An argument ensued and, there were rounds of foul language exchange.  The incident lasted for about 10 minutes, but before that PW3 were joined by his party including PW1 and PW2 and some other males joined M1.  PW1 also mentioned two males who had joined the dispute: a thinner male (M2)  and another male who had with him a long transparent item (M3)[3].  M1 can be seen in the video clips[4] and relevant photos relied on by the prosecution, and clearly, he was holding a microphone before the dispute began.

6.  The dispute however first ended up with a settlement.  PW1 added that she said “sorry” to M1 and therefore she was able to see the face of M1, whom she identified, as aforesaid, as the defendant in the Identification Parade. PW1 also said that she thought the matter was over.  The parties then returned to their respective original tables and continued with their own entertainment.

7.  Shortly afterwards, a group of more than 10 people then suddenly appeared and approached PW1 and her party and attacked them with weapons including furniture inside the bar[5]. The video depicted M1[6] again who had joined the attack.

8.  Under cross examination, it was put to PW1 that she had mistaken the defendant to be M1 at the Identification Parade.  I shall further elaborate when I explain my analysis and consideration of the submissions.

9.  Suffice it to say, PW2 and PW3 gave similar accounts of the incident, and PW3 also positively identified the defendant to be M1[7] on 17 July 2020.  They gave various descriptions of M1 and by and large, these descriptions are consistent with what PW1 had said.

10.  PW3 added that he had shaken hand with M1 when they were reaching a settlement, and he also emphasized that he was able to see the appearance of M1 and described the tattoos on his arms with some details.

11.  I found that there was a case to answer.  Thereafter, the defendant exercised his right and elected not to testify.

The Consideration

12.  The burden of proof rests firmly on the prosecution and the standard of proof is beyond reasonable doubt.

13.  The defendant enjoys his right of silence and he would not be criticized for that.  Nevertheless, I am able to discern the defence case from the cross examination on PW1, PW2 and PW3.

14.  The followings are some of the salient features in the prosecution case:

(a)  M1 was not known to PW1, PW2 and PW3 before the incident;

(b)  No evidence to suggest that any of them knew the defendant or met him before;

(c)  The Identification Parade took place 10 months after the incident;

(d)  No evidence to say if the defendant was covering his arms[8] during the Identification Parade – the defendant only requested to put on a shower cap (it is common ground that there is no tattoo on his right arm);

(e)  The CCTV depictions do not sufficiently show the face of all the culprits and during the attack, they were wearing a facial mask;

(f)  The prosecution fairly confirmed that without the evidence of PW1, PW2 or PW3, the mere reliance on the CCTV would not bring home a conviction on any of the charges; and

(g)  The videos do not come with an audio recording.

15.  The prosecution also listed out the important parts in the videos showing the movements and actions of M1 (allegedly the defendant), those who joined him at the karaoke area, and the attackers who committed the offences together with M1.  I have viewed all the videos and I agree with the observations of the prosecution in this regard, save that whether “D” in their submissions, is actually the defendant.  It is fair to say that the videos support the evidence of the prosecution witnesses and I can say that I feel for them very much knowing that they had suffered very serious injuries and they all presented to be an honest witness.  But honest witness can make mistake. At the end of the day, the key issue remains whether M1 is the defendant who is now before me.

16.  I shall consider the 3 charges separately, but it does not mean that I should consider the evidence of the prosecution witnesses in isolation.  I also note that PW2 did not identify the defendant in the Identification Parade and he was not asked to do a dock identification.  That said, the prosecution can rely on PW1 and PW3’s evidence to prove Charge 2.  In other words, Charge 2 does not fail automatically for a lack of identification from the victim himself.

17.  Mr Boyton and Mr Choi submitted that PW1, PW2 and PW3 should not be accepted as reliable witnesses.  There are discrepancies and inherent weaknesses in their evidence which undermine their own reliability and that of the others.  In summary, the points are these:

(a)  The evidence of PW1 and PW3 were tainted (not in the sense of having a concoction but mutual influence consciously or unconsciously)  as PW2 admitted under cross examination that they had discussed the matter before making their individual witness statements;

(b)  All three witnesses made the common mistake that the one who first had argument over the singing matter with them was wearing dark shorts (when M1 was clearly wearing white shorts);

(c)  M1’s appearance “in a sea of dark clothed men at that (bar)  was therefore extremely conspicuous and obvious” and therefore, had the witnesses been reliable, they would not have made the same mistake that is relevant to the issue of identification;

(d)  PW3 made a serious mistake in that according to his evidence, M1 had tattoos on both arms, whereas the defendant has no tattoo on his right arm and this goes fundamentally to the question of identification;

(e)  The conditions for identification were difficult:

(i)  The venue had a relatively dim lighting;

(ii)  The parties were heated and emotional;

(iii)  There were many people in black top and black shorts (and the witnesses gave these descriptions about M1 in their witness statements to the police)  and therefore the witnesses could have mixed up the defendant with an attacker or bystander in black top and black shorts;

(iv)  The descriptions of M1 they gave in court are limited to clothing, build and height, there was no evidence on facial appearance or distinct features and no evidence as to why they were able to identify the defendant as M1 at the Identification Parade (save that the tattoo(s)  was mentioned whereas PW3 made a major mistake);

(v)  Whilst one can see from the CCTV that these witnesses could have looked at the face of M1 and at some stages, they were close to each other and standing face to face, yet there is no evidence to elaborate on the duration of facial observation and this has to be considered in light of the difficult conditions for identification.

(f)  There is also no evidence as to why the defendant was arrested or somehow connected to the place or incidents.

18.  In these circumstances, the defence submitted that the defendant should be given the benefit of the doubt.

19.  On the other hand, the prosecution asked me to accept the evidence of their witnesses and invite this court to convict the defendant on all the charges.  The discrepancies or mistakes were not material.  The CCTV also supported the evidence of the witnesses.

20.  Having carefully considered the evidence and submissions of the parties, I am satisfied that there exists reasonable doubts regarding the identification of PW1, PW2 and PW3 and I do not accept that the prosecution have proven the cases against the defendant.

21.  Strictly speaking, it is not surprising that a party could have settled with the other side at one point but turned to behaving in another extreme very shortly afterwards.  One can see that a male was using his phone at 0344 hrs[9], and that might be a call to summon the attackers unexpecting that the dispute ended up first with a settlement (at around 0346[10]). So the fact that there was a settlement does not mean that the attack was unrelated to the settled dispute.  In other words, whilst the witnesses perceived that the matter was over, it is neither here nor there.  The objective fact remains that there was such a group attack shortly after the dispute and that more importantly, M1 had taken part in it.  The defence also take no issue as to whether M1 was the same one in white shorts who is depicted to have joined the attack later on.

22.  The evidence of the witnesses support each other insofar as what had happened is concerned.

23.  What is the key issue remains whether M1 was the defendant as alleged by the witnesses, or at least, if the defendant is one of the attackers.

24.  I am of the view that the longer the lapse of time between the incident and the Identification Parade, the more difficult it is for the witness to be accurate and reliable in the exercise of identification.  The defence also drew my attention to this remark from the case of R v Turnbull [1977] QB224:

“… the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury … unless there is other evidence which goes to support the correctness of the identification.” (emphasis added)

25.  In my judgment, a gap of 10 months is not insignificant.

26.  On the issue of identification, PW1, PW2, and PW3 made a common mistake: they told the police in their respective statement(s)  that M1 was wearing dark shorts whilst the video clearly shows that M1 was wearing white shorts.  I must say that this alone does not give rise to a serious doubt because of the nature of the incident, and one can see from the videos that many people were involved and the situations (both during the dispute and later during the attack)  were chaotic.  Whilst I think, however, I should give certain buffer and tolerance in favour of the witnesses, the criminal standard of proof remains a high one and the reliability of their evidence is the key factor and very foundation for a conviction.

27.  They told me that the lapse of time can explain the mistake.  So I should consider whether the evidence of PW2 had undermined the credibility of PW1 and PW3 in that PW2 said he and the others (including PW1 and PW3)  had discussed about the case before and after PW2 gave the statement to the police; PW1 (PW2’s wife)  denied that on the one hand, the parties did not question PW3 when he was in the witness box on the other.  It was further revealed that PW2 and PW3 were working for the Customs & Excise Department, and I am sure they ought to know the importance of giving statement independently.  There is no explanation as to why and how much this discussion(s)  would take place and affect the reliability of these witnesses.  It begs the question as to whether their evidence in their statements or in court are a collective composition.

28.  Furthermore, PW3 said in detail in court about the tattoos on M1 and talked about it vividly and at length.  As it turned out, the defendant was called upon by his counsel to show his right arm to PW3 who said that there were tattoos on both arms of M1.  The right arm of the defendant was clean.

29.  The issue of mistaken identification clearly becomes a valid challenge.

30.  What concerns me is that when PW3 identified the defendant, he was saying that the defendant was M1; but when PW3 explained why he made the mistake about the colour of the shorts M1 was wearing in his 1^st statement, which was clarified in his 3^rd statement, he said his memories tangled.

31.  It is unfortunate that there were more than one attackers; it is also unfortunate that the situations were quite chaotic.  It is more unfortunate that there was not only M1 who was wearing a black T-shirt with the word “KENZO” on the chest area (See Exh P16 Photo 5 and Photo 51)  which means there were at least two persons who were wearing the same T-shirt – one being M1 in white shorts and the other in black trousers (hereinafter referred to as MX). It begs the question as to whether PW3 had mistaken the defendant at the Identification Parade when he could be MX or anyone (not necessarily one of the attackers)  in black top and black shorts/‌pants.

32.  This is a common mistake and each of the witnesses had offered an explanation.  However, I am not sure if the explanation was a result of a discussion(s)  amongst them and more importantly, whether the mistake is confined to one that mixing up two offenders because when both were a culprit in the joint enterprise, the mistake only goes to the question of who-did-what in the course of the attack, and therefore in law, the difference can be properly ignored.  In my judgment, the mistake goes to the reliability of their identification which is so fundamental that I am not sure if the defendant was M1 or MX or anyone.

33.  I tried to view the videos independently and followed the rules and principles in AG’s Reference (No 2 of 2002) [2003] 1 Cr App R 21 and HKSAR v Lam Tsz Kin [2020] HKCFI 654.  I am unable to say for sure that any of those depicted in the videos is the defendant.  The quality of the video clips is a factor; the angle of the cameras is another.  This explains why the prosecution confirmed that the CCTV alone cannot bring home any conviction.

34.  Should the criminal standard become a lower one, I might be able to say that M1 was the defendant.  That is not permissible, however.

35.  Should there be evidence on how his left arm looked like, I might be able to compare that evidence with the depictions in the videos.  The prosecution confirmed that there is no such evidence and I have no basis to embark upon such an exercise.

36.  Whilst I reject the other submissions of the defence, I agree with those I have summarized above.

37.  In conclusion, I do not accept PW1, PW2 and PW3 as a reliable witness. I have doubt in the issue of identification and the benefit of the doubt should be given to the defendant.

38.  The defendant is acquitted of all charges in this case accordingly.