HKSAR v. SINGH GURMEET AND OTHERS

DCCC 624/2019

[2020] HKDC 1092

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 624 OF 2019

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REASONS FOR VERDICT

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1.  The defendants plead not guilty to three joint charges of wounding with intent to do grievous bodily harm, contrary to section 17 (a) of the Offences against the Person Ordinance[1] and one joint charge of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance.

Prosecution case

2.  The prosecution case in summary is that at around 10 p.m. on 2 February 2018 Waqar Mohammad, Hayat Noor, Hussain Safeer, Hussain Waqar and Mehmood Adnan were chatting inside a pavilion in Tuen Mun Park when they were attacked by a group of about twenty males holding various weapons.  Waqar Mohammad, Hayat Noor, Hussain Safeer and Hussain Waqar were all injured in the attack which was in part captured on CCTV.  Mehmood Adnan was able to run away and call the police.

3.  Waqar Mohammad, Hussain Safeer, Hussain Waqar and Mehmood Adnan recognised D1 and D2 who used to be their friends and picked them out in an identification parade held on 2 March 2018.   In the same identification parade Hayat Noor also identified D1 and D2.  In identification parade held on 16 July 2018 Waqar Mohammad, Hussain Safeer, Hussain Waqar and Mehmood Adnan identified D3 as taking part in the attack. 

Defence case

4.  In summary the defence case as put in cross-examination is that the defendants were not part of the group which attacked Waqar Mohammad, Hayat Noor, Hussain Safeer and Hussain Waqar and that the witnesses were either mistaken in their identification or have deliberately lied that D1, D2 and D3 attacked them.

Evidence

5.  The prosecution called five witnesses: Waqar Mohammad (PW1), Hayat Noor (PW2), Hussain Safeer (PW3), Hussain Waqar (PW4) and Mehmood Adnan (PW5). 

6.  WCIP Cheung Po Yuet (PW6) who conducted the identification parades; Sgt 5046 (PW7) who took the witness statements from PW1-PW5 and Ahmed Ashfaq (PW8) the Urdu interpreter who assisted in the taking of the witness statements, were tendered for cross-examination.

7.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[2], including the medical reports and photographs of the injuries sustained by Waqar Mohammad, Hayat Noor, Hussain Safeer and Hussain Waqar[3]; CCTV footage[4]; a sketch of the scene[5]; photographs[6]; DNA evidence[7]; the identification parades[8] and the 999 Police In-Log Report[9].  I will refer to the admitted facts as I review the evidence. 

8.  All defendants elected not to give evidence or call any witnesses.  No adverse inference is drawn against the defendants for remaining silent.  That is their right.  This proves nothing one way or the other.  This does not establish their guilt. 

9.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have to prove nothing.  I direct myself that I must be sure of the guilt of each defendant before I can convict, the case of each defendant being considered separately and each charge being considered separately.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

10.  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 a defendant as well as one in his favour the adverse inference cannot be drawn.

Prosecution evidence

The attack

11.  Waqar Mohammad (PW1), Hayat Noor (PW2), Hussain Safeer (PW3), Hussain Waqar (PW4) and Mehmood Adnan (PW5) all testified about what happened on the night of 2 February 2018.

12.  The CCTV footage covers the period from 2205-2208 hours on 2 February 2018.  Only part of what happened can be seen in the footage. 

13.  In summary Waqar Mohammad, Hayat Noor, Hussain Safeer, Hussain Waqar and Mehmood Adnan testified that at about 10 p.m. on 2 February 2018 they were sitting chatting and playing cards in Tuen Mun Park inside the pavilion shown in photograph 11, exhibit P7[10].

14.  At about 10 p.m. while they were sitting in the pavilion about twenty males carrying sticks, hammers and metal rods came running into the pavilion and attacked them.

15.  Waqar Mohammad, Hussain Safeer, Hussain Waqar and Mehmood Adnan recognised D1 and D2 who used to be their friends.  D1 and D2 were brothers.  Waqar Mohammad had known D1 and D2 for around five to six years.  Hussain Safeer had known D1 and D2 for around two to three years.  Hussain Waqar had known D1 and D2 for one to two years.  Mehmood Adnan had known D1 and D2 for around three years.  All regarded D1 and D2 as good friends.

16.  The witnesses described that D1 was in front of the group holding a hammer and that D2 was next to D1 holding something made of metal.  D1 said “take Chand’s case back”.  None of the witnesses knew what D1 was talking about. 

17.  D1 then hit Waqar Mohammad on his head with the hammer.  Hayat Noor was hit on the right side of his face once but did not see who hit him because he was hit from behind.  Hussain Safeer said he had eye contact with D2 who hit him once or twice with his knuckles, having moved his bangle over the back of his hand to hit him.  At that moment D1 pulled Hussain Safeer and threw him to the ground. Hussain Safeer was then hit by sticks and kicked by five to ten persons.

18.  Hussain Waqar was also hit on his left eye by D2 in the same way that D2 hit Hussain Safeer with the bangle over the back of his hand.  Hussan Waqar fell to the ground and was hit and kicked while he was on the ground. 

19.  During the attack Waqar Mohammad, Hussain Safeer and Hussain Waqar testified that one of the attackers kept shouting his name was “Sunny”. Waqar Mohammad said he had seen this person a long time ago with D1 and D2 but did not know him. Hussain Safeer said “Sunny” hit Waqar Mohammad and Hayat Noor.  Hussain Waqar said that “Sunny” was holding an extendable baton like the one shown in photograph 24, exhibit P7 which he used to hit his friends.

20.  After the attack started Mehmood Adnan found a way to escape and run away.  In the direction in which he ran he saw another boy, who he described as 1.8m and of fat build, the fattest among the group.  This boy was at the back of the group holding a stick in his hand.  Mehmood Adnan ran to the KCR station where he made a 999 call.  The police met Mehmood Adnan who took them to where the attack happened.

21.  After the assault the attackers left.  After the police arrived Waqar Mohammad, Hayat Noor, Hussain Safeer and Hussain Waqar were taken to hospital.  Admitted in evidence are the medical reports detailing the injuries sustained by Waqar Mohammad, Hayat Noor, Hussain Safeer and Hussain Waqar[11].  Photographs of the injuries are also admitted in evidence[12].

Identification parades

22.  Admitted in evidence is that Waqar Mohammad, Hayat Noor, Hussain Safeer, Hussain Waqar and Mehmood Adnan identified D1 and D2 in an identification parade held on 2 March 2018[13].

23.  Waqar Mohammad testified he identified D1 and D2 because they were two persons who took part in the fight.  Hayat Noor testified he identified D1 and D2 because he had seen these two in the fight hitting him and his friends with sticks, metal rods and hammers.  Hussain Safeer testified he identified D1 and D2 because they attacked them.  Hussain Waqar testified he identified D1 and D2 because he knew them and recognised them at the time of the fight.  Mehmood Adnan testified he identified D1 and D2 because they attacked his friends.  

24.  Admitted in evidence is that Waqar Mohammad, Hussain Safeer, Hussain Waqar and Mehmood Adnan identified D3 in an identification parade held on 16 July 2018[14]. 

25.  Waqar Mohammad testified that he identified D3 as “Sunny” because he was present during the fight and had a metal rod in his hand which he used to try hit him. Waqar Mohammad said he was able to move back and avoid being hit by the rod.  Hussain Safeer testified that he identified D3 as “Sunny” because he hit them.  Hussain Waqar testified that he identified D3 as “Sunny” because he was in the fight.  Mehmood Adnan testified that he identified D3 as the boy who was at the back when he was running away.   

CCTV footage

26.  The CCTV footage was played to Waqar Mohammad and Hayat Noor only.  Waqar Mohammad identified D1 at 22:05:52 (187) as the man with something in his right hand and at 22:06:08 (171) as the man with a hat on.  Waqar Mohammad said he thinks the male with a white upper garment seen at 22:06:54 (062) was his friend Hussain Safeer.

27.  In cross-examination when Mr Pannu played the CCTV footage between 22:06:46 (984) and 22:07:06 (000) Waqar Mohammad said he could see himself go up and assist Hussain Safeer who was on the ground.  In answer to the court Waqar Mohammad said that he was the first of two persons who ran up to help Hussain Safeer[15].

28.  The CCTV footage between 22:05:52 (921) and 22:07:06 (265) was played to Hayat Noor.  Hayat Noor said he could recognise himself and a person he called “Singh Singh”.  Singh was a friend of Waqar Mohammad.  Hayat Noor said he had seen Singh once or twice with friends and just said “Hello, Hi.”  Hayat Noor explained that if someone did not know the name of a person who wore a turban he would be called Singh.  Hayat Noor said Singh was wearing a turban on the CCTV footage.

29.  Hayat Noor said he could see Singh at 22:06:09 (703) and identified the same person Waqar Mohammad identified as D1 at 22:06:08 (171).  Hayat Noor identified himself at 22:06:54 (062) as the second person running up to help Hussain Safeer.

Forensic examination

30.  Admitted in evidence is that five bloodstains were found on the ground at the scene; the five bloodstains could all have originated from Waqar Mohammad; on 3 February 2018 an extendable baton was found by a cleaning worker in the bushes near the pavilion; the DNA obtained from the bloodstain on the metal shaft of the extendable baton could have originated from Hussain Waqar and the DNA found on the handle did not match any of the defendants[16].

Discussion

31.  I have carefully considered all the evidence and the submissions of Mr Richmond, Mr Hemmings, Mr Donald and Mr Pannu.  In considering the evidence due allowance is given to the prosecution witnesses who testified about what happened on the 2 February 2018, over two and a half years ago. 

Identification

32.  The main issue in the case is identification.  The prosecution case depending on the correctness of the identification of the defendants, I direct myself in accordance with the principles established in R v Turnbull[17].  I warn myself of the special need for caution before convicting the defendants in reliance on the evidence of identification. 

33.  I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.  I remind myself of the possibility that a mistaken witness can be a convincing witness, that a number of witnesses can all be mistaken and that mistakes in recognition of close relatives and friends are sometimes made[18].  When the quality of the identifying evidence is poor unless there is evidence which goes to support the correctness of the identification the accused shall be acquitted.

The 999 Police In-Log Report

34.  Admitted in evidence is the 999 Police In-Log Report [19]. This report shows that the informant (INFT) told the police “that they did not know the assailants”. 

35.  The INFT in the report is stated to be F/艾迪.  Admitted in evidence is that the reference to the INFT as a female is an error and that the INFT was a male Mehmood Adnan, PW5[20].

36.  In cross-examination when first asked why he told the police in the 999 call he did not know who the assailants were Mehmood Adnan answered that when he made the call he was in a hurry; he was only able to tell that a fight was happening and that some people were hitting his friends and that because the police officer could not understand where the location was he arranged to meet the police at the KCR station.  When the question was repeated Mehmood Adnan answered that he did not remember that; he was only trying to get the police to reach the scene quickly and that he would not find it necessary to tell the police who were beating his friends.  Asked a third time whether he told the police he did not know who the assailants were Mehmood Adnan answered that he did not remember[21].

37.  All defence counsel rely on this report to cast doubt on the identifications made by the prosecution witnesses[22]. No reference is made to the report in the final submissions on behalf of the prosecution. 

38.  In oral submissions when replying to paragraph 10.1(d) of the final submissions of D3, Mr Richmond stated that it was only agreed that the INFT at the head of the report was Mehmood Adnan, PW5.  Mr Richmond said that it was not agreed that the INFT who stated “that they did not know the assailants” was also Mehmood Adnan, PW5 and that there was in fact no evidence of who this INFT was[23]. 

39.  Whilst one interpretation of the report is that the statement “that they did not know the assailants” was made during enquiries at the scene and not in the 999 call, on a plain reading of the report there is only one INFT, namely Mehmood Adnan, PW5, who told the police “that they did not know the assailants”. 

40.  If the prosecution were of the view that the INFT who said “that they did not know the assailants” was not Mehmood Adnan, PW5, then these facts should not have been admitted by the prosecution in the form that they were.  Section 65C of the Criminal Procedure Ordinance provides that the admission by any party of any such fact shall as against that party be conclusive evidence of the fact admitted.

41.  Although this does not prove the truth of what was said, the fact that Mehmood Adnan, PW5, told the police “that they did not know the assailants”, is in my view sufficient to cast doubt on the identifications made not only by Mehmood Adnan but by the other witnesses as well.

42.  In addition, there are question marks over the identifications made by the other witnesses. For example, Waqar Mohammad identified D1 at 22:05:52 (187) as the man with something in his right hand and at 22:06:08 (171) as the man with a hat on.  I accept the submission of Mr Hemmings that the two persons identified by Waqar Mohmmad as D1 do not look to be the same person[24]. 

43.  By following the males in the footage as they go into the brighter lit parts of the pavilion the clothing of the persons appears different.  The jacket of the male identified as D1 at 22:05:52 (187) appears to be light coloured and the shoes white, whereas the jacket of the person identified as D1 at 22:06:08 (171) appears to be darker and the shoes dark. 

44.  The male at 22:05:52 (187) also appears to be holding a long weapon like a metal rod whereas the male at 22:06:08 (171) appears to be holding a different weapon in his right hand, which by magnifying the frame has the appearance of a hammer. 

45.  The CCTV footage is not of sufficient quality for the court to say that either man pointed out by Waqar Mohammad is D1.  The fact Waqar Mohammad has identified two different persons highlights the danger of mistaken identification.  

46.  I also note that Waqar Mohammad did not tell the police he had seen “Sunny” before with D1 and D2 and that at the identification parade he had asked D3 to stand up because he had doubt it was him[25].

47.  When Hayat Noor was shown the CCTV footage he identified the same person Waqar Mohammad identified as D1 at 22:06:08 (171) and said he was called Singh and was a friend of Waqar Mohammad who he had seen once or twice with friends and just said “Hello, Hi.”  In cross-examination Hayat Noor said he knew D1 and D2 were brothers and that he had seen D2 before with friends but did not know how many times but not many times[26].

48.  None of this detail was given in his witness statement where he told the police he did not know the assailants[27]. I do not find credible the explanation given in cross-examination for omitting to tell the police he had seen D1 and D2 who he knew were brothers who he called Singh was because he did not know the names of the assailants[28].

49.  Both Hussain Safeer and Hussain Waqar testified that they were hit by D2 who moved his bangle over the back of his hand to hit them with his knuckles.  Neither Hussain Safeer nor Hussain Waqar told this to the police. 

50.  I do not find credible the explanation given in cross-examination by Hussain Safeer that he omitted to tell the police about the bangle because it was small detail which he may have missed[29]. Similarly, I did not find credible the explanation given in cross-examination by Hussain Waqar that he omitted to tell the police about the bangle because he did not remember but remembered after making the statement but did not tell the police because the statement was over and he had left the police station[30]. 

51.  In reaching my verdict I have also considered the submissions of Mr Hemmings that the virtual identical descriptions of the attack in the witness statements had obviously been rehearsed[31]. I have taken into account that only Waqar Mohammad said he had seen D3 before, a long time before the incident and therefore the identification of D3 was essentially identification of a stranger. 

52.  Having carefully considered all the evidence including that the incident was over very quickly, within two minutes, the CCTV footage showing the group arriving at 22:05:52 and leaving at 22:07:31 and that there is no other evidence to support the identification such as forensic evidence connecting the defendants to the incident, I find that it would be unsafe to rely on the identification of the defendants by the witnesses.  The benefit of the doubt is given to the defendants and they are acquitted of all charges.