HKSAR v. BRAR SUKHWINDER SINGH AND OTHERS

DCCC 807/2022

[2024] HKDC 1640

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 807 OF 2022

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REASONS FOR VERDICT

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Introduction

1.  This case concerns a vicious attack with sharp weapons by a group of attackers on 2 victims, Lovepreet SINGH (PW1)  and Sukwinder SINGH (SS), which occurred in the small hours on 5 November 2021 at their residence at Room No. 1, 6^th Floor, Nos. 459-461 Hennessy Road, Wanchai (The Room).

2.  There are 3 Charges on the Charge Sheet, involving 4 defendants, BRAR Sukhwinder Singh (D1), LOVEPREET Singh (D2), PRABHDEEP Singh (D3)  and AMIT (D4). Charge 1 “Wounding with intent”, contrary to section 17(a)  of the Offences against the Persons Ordinance, Cap.212, is against all defendants. It alleged that they took part in the said attack on the 2 victims. Charge 2 “Theft”, contrary to section 9 of the Theft Ordinance, Cap.210, is against D2 only. It alleged that during the attack D2 stole part of a gold chain belonging to SS. Charge 3 “Doing an act or a series of acts tending and intended to pervert the course of public justice”, contrary to Common Law and punishable under section 101I(5)  of the Criminal Procedure Ordinance, Cap.221, is against D1 & D2 only. It alleged that 3 days after the attack, D1 & D2, through another person, urged the 2 victims not to pursue the matter, which had been reported to the police.

3.  At the commencement of the proceedings, citing absence of a key witness, prosecution applied to withdraw Charge 3 against D1 & D2. There was no objection by the defence. The application was granted and the trial proceeded on Charges 1 & 2 only. All defendants entered pleas of Not Guilty to the Charge(s)  they are facing.

Prosecution’s Case

4.  There is no dispute that the vicious attack on PW1 & SS as stated in Charge 1 did take place. Some of the evidence relating to the background of the case and other formal evidence are admitted under section 65C of Cap.221 (exhibit P1).

5.  It is not in dispute that the 2 victims received medical treatment at the Ruttonjee Hospital in the small hours of 5 November 2021. Both sustained multiple laceration wounds as stated in their respective medical reports and shown in the photographs taken 3 days afterwards, P2, P3 and P8 for PW1, and P4, P5, P6 and P9 for SS. D1 was arrested on 24 November 2021, D2 on 27 November 2021, D3 and D4 on 14 February 2022 respectively.

6.  It is also not in dispute that on 15 February 2022, in an Identification Parade, both PW1 and SS positively identified D3 and D4; and on 26 April 2022, in a photographic Identification Parade, both PW1 and SS positively identified D1 and D2. However, no particulars have been given in what capacity the defendants had been identified as.

7.  Prosecution called only PW1 to testify viva voce. It is common ground that all allegations against the defendants came from him. Therefore, the main issue in this case is the credibility in general, and the reliability of the identification of the defendants as the assailants in particular, of PW1. As such, I shall first set out in some details the more important aspects of his evidence.

8.  PW1 was born in India and received education there. He settled in Hong Kong since 2015. He came to be acquainted with SS in 2016 as they both visited the Sikh Temple in Wanchai (The Temple)  regularly. At the times material to this case, he and SS lived together at the Room.

9.  4 November 2021 was the day of the Diwali, one of the most auspicious annual festival of the Sikh People. There were ceremonies held at The Temple to celebrate the festival with lots of Sikh people attending. On that day PW1 and SS attended The Temple as volunteers to assist in the celebration ceremonies. Food was served free of charge in The Temple, but people were only allowed to take them at the communal dining hall therein, called the Langar.

Incident at The Temple

10.  At around 6:30 p.m. that day PW1 was responsible for crowd control at the rear entrance of The Temple. There he saw a group of about 8 to 10 people taking food thereat and blocking the way. He had seen 3 of them before many times, 7 to 8 times he added. They were Sukha, Lovely and Happy (subsequently identified as D1, D2 and D3 respectively). He asked them to move on to clear the way for others, whereupon the group shouted back to say it was none of his business. SS was also present at the time.

11.  He and SS finished their duties and left The Temple at around 11 p.m.. It took them about 10 to 15 minutes to walk home. Upon return to their residence PW1 took a shower, stayed awake for a while and then went to sleep.

The Attack

12.  At around 4:45 a.m. PW1 was awaken by some loud noise. He then saw a group of 5 people, 4 of them rushed into the Room with the other one staying at the entrance. He said he could see and recognize 3 of them, viz., Lovely (D2), Happy (D3)  and Charlie (whom he later identified as D4). He even gave detailed descriptions of the clothing worn by D2 and D3, but not D4 as he did not pay attention to it. He did not see the other 2 but he said SS told him later that they were Sukha (D1)  who had also entered the room and another called Jaggi who stood at the entrance.

13.  2 of the men, i.e. D2 and the other person he could not see, shouted “cut off their fingers”, whereupon, they began to attack him. He said D2 and the other man attacked him with knives, D3 with a Kara, a religious accessory worn by most Sikh people, and D4 with an iron rod. He said he received several cut wounds by the knives on his head and left thumb, 4 cut wounds on his head by the Kara and 2 to 3 blows by the rod on his right leg, all happened at the same time.

14.  PW1 said after D2 and the other person had attacked him, they then attacked SS, who was just next to him at the time, with the knives they were holding. The other 2, i.e., D3 and D4, did not attack SS. He also saw D2 pulling the gold chain from the neck of SS, an accessory which SS wore permanently, causing it to break into two halves. D2 took away one half of the chain, leaving the other half with SS. The assailants then left and PW1 called the police for assistance. Not too long afterwards ambulance arrived and took him and SS to hospital for medical treatment.

15.  At this stage of PW1’s evidence, Mr. Laskey for the prosecution purported to ask him to make “dock identification” of the people he had mentioned in his testimony. D1 and D3 did not object, but on behalf of D2 and D4 Mr. Allan objected, on the basis that 2 Identification Parades had been held, it was not necessary to perform “dock identification” in Court, and as “Identification” is an issue in the case and the Turnbull guidelines apply, it would be prejudicial and unfair to his clients if the exercise was to be allowed by the Court.

16.  Having carefully considered the evidence as presented so far, and the submissions by Counsel, I allowed the prosecution to proceed with the “dock identification” exercise. PW1 then identified D2 as Lovely who was one of the 2 persons who used a knife, D3 as Happy who used a Kara and D4 as Charlie who used an iron rod, to attack him as he had earlier mentioned. He did not identify D1.

17.  PW1 suspected that the attack was linked to the incident in The Temple when he was performing crowd control duties during the Diwali.

Cross-examination

18.  Not surprisingly, there was no cross-examination by Mr. Wright, Counsel for D1. PW1 was then cross-examined, vigorously, first by Mr. Shah representing D3, and then Mr. Allan representing D2 and D4.

19.  One of the main areas of attack on PW1’s credibility was his failure to identify D1 in Court. He admitted to have given altogether 4 witness statements to the police about this case, the first one dated 26 November 2021 was the only one in which he mentioned about the details of the incident at The Temple and the attack. He confirmed that the contents of this statement were true and accurate. He was cross-examined at length on this statement, and it is obvious that there were major discrepancies between its contents and his evidence in Court, in particular, in relation to the role played by D1. I shall deal with these discrepancies in more detail later. Having considered the nature and extent of the cross-examination, in order to put this part of PW1’s evidence in its proper context, I exercised my power under section 14 of the Evidence Ordinance, Cap.8 and ordered that this statement of PW1, together with a certified English translation, be admitted as an exhibit in the case (P10).

20.  This issue of his failure to identify D1 in Court was touched upon several times during cross-examination. Each time he repeated his answer, viz., that he did not see D1 himself during the attack, he was only told by SS subsequently of the role D1 had allegedly played. He was told in the course of his evidence that he should only say what he himself had observed. Therefore, he did not make positive identification of D1 as one of the assailants.

21.  When asked why he could not see D1 during the attack, he said he and SS were attacked at the same time, meaning that he did not have opportunity to see every assailant clearly.

22.  He confirmed that a female named Aman Pannu (Ms. Pannu), who happened to be in the public gallery when he was giving evidence, was his “cousin” and worked in the legal field but he did not know in what capacity. He agreed that she was with him in the ambulance when he was being conveyed to hospital shortly after the attack.

23.  It is D3’s case that the attacked was triggered by a dispute between two rival gangs, with D1 on one side and PW1 on the other, and that there was a criminal conspiracy of perverting the course of public justice, involving at least PW1, Ms. Pannu and D1, to manipulate the evidence of PW1 in the present case to ensure D1’s acquittal and frame up at least D3. PW1 denied the allegations. He denied having any knowledge of communications by Ms. Pannu with other persons about this case.

No Case Submissions

24.  At the end of the prosecution’s case, all defendants, through their Counsel, made halfway submissions and asked the Court to withdraw the Charge(s)  from the Jury.

25.  Having considered carefully the evidence presented by the prosecution and submissions by Counsel, I ruled that, so far as D1 is concerned, there is insufficient evidence to establish a prima facie case against him on Charge 1, the only Charge he is facing, he is acquitted of the Charge. For D2 to D4, there is sufficient evidence for a case to answer in respect of Charge 1 against each of them, and Charge 2 against D2.

Defence Case

26.  D2 elected not to give evidence nor to call any defence witness.

27.  D3 elected not to give evidence but called 2 DWs, DW1, Madam Gurung Riya, the wife of D3, and DW3 Ms. Pannu.

28.  DW1 was called mainly as an alibi witness. She stated that on 4 November 2021, the day of the Diwali, she attended The Temple with D3 and their 3 months old baby. They left The Temple at around 7 p.m. and returned home in Sham Shui Po. D3 stayed at home with her to take care of the baby the whole night, so he could not have been at PW1’s residence in the small hours of 5 November 2021.

29.  Mr. Shah then intended to ask DW1 to introduce records of some WhatsApp messages between her and DW3 in relation to this case, with an attempt to establish D3’s case on the existence of a criminal conspiracy of perverting the course of justice to frame up D3. I held a voire dire to decide on the admissibility of these records. Having heard the relevant evidence and submissions by Counsel, I ruled that these exchanges contained hearsay evidence and are not relevant to the issues in this case. Even if I am wrong on this, since PW1 is the only witness called by the prosecution on the issue of identification and had denied any knowledge of these exchanges, and there is no other evidence to suggest otherwise, the prejudicial effect far outweighed its probative value as against PW1, and the prosecution’s case as a whole. I ruled that the records of the WhatsApp messages are inadmissible.

30.  Mr. Shah proceeded to call DW3, saying that she was the maker of some of the messages in the records with an intent to re-introduce them. I stood by my ruling. As such, her evidence is of little value to the case.

31.  D4 elected not to give evidence but called DW2, Mr. Bhagt SINGH, the President of The Temple. His evidence basically concerned the situation in The Temple during the Diwali on 4 November 2021. He was responsible for officiating the ceremonies on that Holy Day. He stated, inter alia, that the celebration ceremonies started from 7 p.m. until about 2 to 3 a.m.. Food was provided to those attending but they could only be taken in the Langar, not anywhere else inside or near The Temple.

Analysis of the evidence

32.  I direct myself that the burden of proof is on the prosecution. It is for the prosecution to prove each element of the offences against each defendant beyond reasonable doubt. The defendants bear no burden of prove. They are not required to prove their innocence.

33.  The defendants elected not to give evidence. It is their right and no adverse inference would be drawn against them. However, so far as D2 is concerned, this means that there is no evidence to undermine, contradict or explain the evidence presented by the prosecution.[1]

34.  I also direct myself that I have to consider the case against each defendant on each Charge separately.

35.  D2 & D4 have a clear record in Hong Kong. I direct myself in accordance with the principles applicable to this issue.

36.  There is no dispute that PW1 & SS were victims of a vicious attack in the small hours on 5 November 2021 at their residence in Wanchai. Before the trial all defendants served a Notice of alibi on the prosecution in accordance with section 75A of the District Court Ordinance, Cap.336. It is therefore clear that each of them asserted that he was not at the scene of attack, and thus could not have been one of the assailants. As such, identification of the defendants is one of the crucial, if not the only, issue in the case.

37.  PW1 is the only witness called by the prosecution in support of the allegations against the defendants. Therefore, the prosecution’s case against each of them stands or falls on the credibility in general, and reliability of the evidence of identification of the defendants in particular, of PW1.

38.  I shall first deal with the credibility of PW1 in general. Photographs of the Room, admitted as P7, showed that it was a very small room, with beddings on the floor and kitchen utensils placed next to the beddings, and a toilet at the back of the room. The attack occurred at about 4.45 a.m. when, admittedly, PW1 was fast asleep just before the assailants charged into the room. From the evidence it is clear that the attack on PW1 and SS was vicious, of short duration and at close quarters. PW1, and for that matter SS also, suffered severe cut wounds to their heads and/or hands.

39.  On the face of it, it is not at all surprising that PW1 could not see clearly all of his assailants. There is nothing wrong for him not to be able to identify D1 as one of the 2 persons who wielded a knife at him.

40.  However, when one reads through the contents of P10, a statement he gave to the police some 3 weeks after the incident, in particular paragraph 6 and Answer to Question 2, it revealed a completely different picture. He was familiar with D1 to the extent that he had social contacts with D1 and could give D1’s full name and telephone number to the police, but not the others. He vividly described what D1 had done during the attack, shouting “cut off their fingers” and attacked him with a knife. He even said that he saw D1 to D4 also wounded SS and Jaggi did not take part in the attack. There was nothing to indicate what he had asserted in Court, i.e., that he did not himself see D1 during the attack, only to be told of D1’s presence by SS after the incident.

41.  Mr. Laskey for the prosecution submitted that as a layman PW1 might not be able to distinguish between hearsay and non-hearsay evidence when giving his statement to the police. It might well be so but this argument is hardly convincing. The statement started with the usual declaration that it is true to the best of his knowledge and belief, with PW1’s signature attached to it, and ended with another declaration that the contents had been read over by him and interpreted to him in Punjabi, his native language. He had been told that he could correct, alter or add anything he wish. Surely, he would know what is meant by “the truth”. Had his assertions in Court been true, I can see no reason why he could not tell the police that he was only told by SS as to what he said about D1 and Jaggi during the attack.

42.  The situation is even more startling in relation to the allegation of theft of part of the gold chain. There was absolutely no mention by PW1 of this matter in P10. When asked about this in cross-examination, he stated that he could see this as the assailants attacked him first, and then on SS. He could therefore see D2 snatching and taking away half of the gold chain from the neck of SS. Mr. Laskey submitted that P10 was about the case of “wounding”. It was understandable that P10 made no mention of the gold chain. He submitted that PW1 had ample opportunity to observe what the attackers did to SS. However, when PW1 was first taxed about why he could not identify D1 in Court, he said that the assailants attacked him and SS at the same time. Further, he had in P10 described in some details what happened during the attack. It is difficult to accept that he could differentiate between “wounding” and “theft” so that he failed to mention this matter relating to the gold chain to the police.

43.  The evidence of PW1 is also at variance with other undisputed evidence. The medical reports, P2 & P3, show that when he received medical attention in the hospital shortly after attack, he only mentioned having been attacked by 3 persons with knives. He did not mention anything about being attacked by other weapons like Kara or iron rod. There was no truncal injury, which is inconsistent with what he said in Court, 2 to 3 blows with an iron rod by D4 on his right leg.

44.  PW1 was also evasive in answering some of the questions put to him during cross-examination. As the incidents occurred during COVID, which only ended in early 2023, Mr. Allan tried to explore the situation relating to the wearing of facemask by the people at The Temple and asked PW1 about it. PW1’s answer was that he did not know as he was not sure when COVID ended. This, as I see it, was a deliberate attempt by PW1 to avoid the issue raised by Counsel.

45.  It is equally difficult to accept that the incident at The Temple would trigger such a vicious attack on him and SS at their own residence. There are other aspects of PW1’s evidence which adversely affected his credibility in general. I will not list them out here, suffice for me to say that I have strong reservation on the general credibility of PW1.

46.  I now move on to deal with the reliability of PW1’s evidence on identification of D2 to D4. Given the nature of the case and the service of the Notices of alibi by the defence prior to the commencement of the trial, it is clear that identification is one of the main issues in the case, and the legal principles applicable to this issue, commonly known as “the Turnbull guidelines”, would be involved.

47.  However, there is a distinct lack of details presented by the prosecution as to the circumstances under which PW1 came to be able to identify D2 to D4 as the assailants. For example, there is no evidence as to the lighting condition at the time, the duration of the attack and how PW1 reacted during the attack. There was a 0.5 cm laceration wound on PW1’s left thumb. In P10 he said that he tried to ward off the attack by his arms, and when asked by Mr. Allan during cross-examination he said he tried to push the assailants away, not by covering his head.

48.  Mr. Laskey emphasized that the prosecution’s case is one of “recognition” as PW1 stated that he had seen his assailants 7 to 8 times prior to the attack.

49.  Again, there is a distinct lack of details as to these previous encounters. In his evidence PW1 only mentioned having met D1, D2 and D3 7 to 8 times before without any elaboration on the circumstances under which they met. There could be a big difference between brief encounters for a few seconds at a distance or lengthy chats at arms-length lasting for hours.  Further, I noticed that while in P10 he stated that he had met D4 in The Temple once before, in Court he had not mentioned any such previous encounter with D4, therefore the label of “recognition” does not apply to D4.

50.  Under such circumstances, there is no or no sufficient evidence for me to assess how reliable the evidence of identification by PW1 in respect of D2 to D4 is.

51.  To conclude, I find that PW1 is not a credible witness and his evidence in relation to the identification of each of D2 to D4 is not reliable.

52.  This is sufficient to dispose of the case. I shall not go on to discuss the issues raised in the defence case, in particular those raised by D3.  I may mention, by passing, that I find DW1 to be a credible and reliable witness. I see no reason why I should not accept her evidence in relation to the alibi of D3.

Verdict

53.  For the reasons set out above, I find D2, D3 and D4 not guilty of Charge 1 and D2 not guilty of Charge 2.