HKSAR v. LEE KIN-PUI AND OTHERS

DCCC 428/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 428 OF 2013

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Reasons for Verdict

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1.  There were five defendants in this trial, all charged jointly with four charges involving four victims of an attack. All pleaded not guilty.

2.  Charges 1 and 2 are section 17(a) charges from the Offences Against the Persons Ordinance, Cap 212.  All five defendants were charged with unlawfully and maliciously wounding PW1, Mak Chun-hin, with intent to do him grievous bodily harm, and similarly PW2, Wong Yun-hei, in Charges 1 and 2 respectively.

3.  Charges 3 and 4 are common assault charges, contrary to common law and punishable under section 40 of Cap 212.  All five defendants were charged with assaulting PW3, Hui Cheung-lung, and similarly PW4, Cheung Ka-lok, in Charges 3 and 4 respectively.

4.  These four charges all took place at about the same time on 21 October 2012 at High Prosperity Terrace, 188 Kwai Shing Circuit, Kwai Chung, New Territories, that time being some time shortly after 11 pm.  

5.  The prosecution’s case was that all five defendants in a joint enterprise wounded and assaulted the four victims along with others not apprehended and unknown.

6.  After the first victim to give evidence, PW3, failed to come up to proof against the 5th defendant, and there being no other evidence against him, he was acquitted of all four charges and the prosecution offered no further evidence.

7.  After this, the charge sheet was re-amended.

8.  The 4th defendant was also acquitted after the end of the prosecution case when I found there was no prima facie evidence against him.  He had made no admission nor was there any direct evidence against him from any prosecution witness.  I found the fact he was merely present in the circumstances of this case insufficient to proceed further.

The Prosecution’s Case Against the 1st, 2nd and 3 Defendants

9.  The prosecution relied on identification evidence against the 1st, 2nd and 3rd defendants as well as admissions made by all three.  The issues of this case were whether or not the identification evidence was reliable and whether the admissions made under caution and in subsequent interviews under caution were made voluntarily. There was no challenge to the evidence the four victims were attacked and that PW1 and PW2 in particular were seriously injured.  The defence stance was that the assailants were not the 1st, 2nd or 3rd defendant but others.

10.  The prosecution called all four victims.  The victim of Charge 4, PW4, did not answer his witness summons as required and I issued a warrant for his arrest backed with bail.  He was arrested and gave evidence before the prosecution closed its case.  He describes how the group of four were attacked by a group of about 10 persons.  Many wore face masks and some carried long, black torches.  He saw PW1, the victim of Charge 1, attacked by the majority of the group and was bleeding from his head.  He was himself hit on the head twice by a torch but not wounded.  He did not subsequently identify any of the attackers.  PW1 and PW2, the victims of Charges 1 and 2, gave very similar descriptions of the attack on their group by a group of 10-odd persons.  PW1 subsequently identified the 1st, 2nd and 3rd defendants in police-held identification parades.  PW2 gave no evidence identifying any defendant.

11.  PW3, Hui Cheung-lung, gave evidence but obviously did not entirely come up to proof.  The prosecution nonetheless made no application in relation to PW3.  His evidence was not entirely reliable and I placed little weight on it.  He does describe an attack on their group and sees the other victims assaulted but beyond that, his evidence was not credible.  He himself was punched in the head which made him dizzy, causing blurry vision.  He did see torches being carried by the group of attackers.

12.  All four victims did identify the location of the attack and referred to Exhibit P15, a photo album.  In particular, Photographs 1, 2 and 4 show the approximate area of the attack at the entrance of High Prosperity Terrace.

13.  PW1 gave evidence that the four victims met up on the night of 21 October because it was the second prosecution witness Mr Wong Yun-hei’s birthday.  They arranged to meet outside a 7-Eleven store in Kwai Shing.  PW3 received a call looking for the first prosecution witness, Mak Chun-hin.  Then PW1, Mr Mak, received a call from a male who said he wanted to chat to him and arranged to meet him at High Prosperity Terrace.  This male PW1 assumed wanted to talk to him because he, PW1, had “hooked up with his girlfriend,” a girl called Carmen.  This issue arose over PW1 dating a girl called Carmen the day before.  PW1 knew that this girl already had a boyfriend and he was called Ah Pui.  PW1 knew and recognised this Ah Pui.  He later identified the 1st defendant as Ah Pui in an identification parade on 5 December 2012.

14.  PW1 describes the four friends taking a taxi to High Prosperity Terrace and waiting to see who would appear to meet them.  They did walk around.  At the entrance as seen in the photographs of P15, they then saw a group of about 10 people with some carrying weapons approach them.  He describes the weapons as being about 45 centimetres long and black.  The group rushed at PW1 and his three friends.  All four were hit and assaulted.  He himself was surrounded, kicked, punched and hit with the weapons.

15.  PW1 said Ah Pui was one of those that stood in front of him and hit him.  He recognised several others but did not know their names.

16.  PW1 suffered head and body injuries, and all four victims took a taxi to a hospital after the group of attackers fled.  The attack was less than one minute long.  PW1 had stitches in his head and was admitted into hospital for three days.  PW2 had his finger stitched, and he was discharged on the same day.  PW3 and 4 did not require medical treatment.

17.  The admitted facts, Exhibit P2, refer to the medical reports of PW1, P18 and 19, the medical report of PW2, P20, as well as the subsequent identification parade results, specifically PW1’s identification of the 1st, 2nd and 3rd defendants.

18.  It also referred to Exhibit P1, a black torch found at the scene by a cleaner sometime after the attack, PW9.

19.  As a result of the police investigation, the 1st, 2nd, 3rd and 4th defendants were arrested the following day.  The 5th defendant had left for China in the early hours of the same morning to be arrested three months later when he returned to Hong Kong.

20.  Only the 1st, 2nd and 3rd defendants made any admissions under caution.

21.  The 1st defendant admitted after his arrest and upon caution that he had only punched Mak Chun-hin, PW1.  A post‑recorded statement was made but not relied upon by the prosecution.  The 1st defendant was subsequently interviewed under caution in the presence of his father, Mr Lee Yiu-keung, and made further admissions, Exhibit P6.

22.  The 2nd defendant admitted after his arrest and upon caution that he punched Ah Hin, PW1, several times only.  A post‑recorded statement was relied upon by the prosecution, P8.  P9 was a subsequent record of interview making further admissions.

23.  The 3rd defendant admitted under caution and after his arrest in the presence of his father that he pushed PW1 once and kicked him once.  Exhibit P16 is a notebook record of this admission, and P11 is a subsequent record of interview making further admissions.

24.  All defendants’ records contained very specific details of the events leading up to and including the attack on the four victims.  The defence case for all the defendants where PW1 is concerned is that his identification evidence is shaky and unreliable, and his oral evidence is not credible and is contradictory, therefore insufficient to prove the elements of each offence beyond reasonable doubt. 

25.  All three defendants challenged the admissions made and the records of interviews.  The issue was dealt with by way of the special procedure, and the prosecution called a total of nine police officers to give evidence.

26.  Counsel for all three defendants submitted in their grounds of objections that the defendants were either assaulted and/or threatened by police officers, and the 1st and 2nd defendants were totally unaware of their rights despite signing a POL153 which is a notice to persons in custody. 

27.  The 1st defendant signed his record of interview as did his father without knowing the content of the statement.  The statement-taker made up the content and ordered the 1st defendant to write various declarations and sign as directed.  His father gave similar evidence.

28.  The 2nd defendant gave evidence and described being stripped naked in the police station and being assaulted by various police officers.  He was verbally threatened as well as induced to admit the offence.  At least four police officers were involved in the assaults, threats and inducements.

29.  He describes the statement-taker writing out a post‑recorded statement and a record of interview without asking the 2nd defendant one question.  The content all came from the police officer.  The 2nd defendant did not know the content of these documents before he signed where directed.  In fact, the 2nd defendant signed the pages of the statement and wrote out various declarations before the statement-taker himself put pen to paper.  For example, page 3 of Exhibit P9 was blank when the 2nd defendant was told to copy a declaration in the middle of the page and sign the bottom right corner of this and every other page.  Only after this was done did the statement-taker start to write it out.

30.  The 3rd defendant signed DPC5531’s notebook, P16, acknowledging the admission he made after caution as did his father without knowing the content or having made any such admission.  This is his evidence.  The 3rd defendant and his father described DPC5531, PW5, as covering the notebook with his hand, hiding the admission when he asked them to sign.

31.  After arrival at the police station, the 3rd defendant was for a period of time separated from his father and at that time assaulted by two police officers, including PW10, DSP47280.  He said he was told to admit the offences and as a result became very scared. He answered the questions put during the subsequent record of interview but did not realise until much later, weeks later that the officer did not record down his answers accurately but in fact had fabricated the content.  The 3rd defendant and his father signed without reading the content nor was it read to them.  The 3rd defendant’s father gave evidence that he did not read it because he was not asked to read it.

32.  I found after all the prosecution witnesses had given evidence as on the special issue that there was a case to answer for each defendant in relation to each document in dispute.

33.  As I have said, I heard evidence from each defendant as well as the 1st and the 3rd defendants’ fathers.

34.  The sole issue to be determined in relation to each of the post-recorded statements and the records of interviews is the question of voluntariness.  The prosecution has to prove beyond a reasonable doubt that on the whole of the evidence, the interviews were voluntary.  If that is the case, they are admissible.  If for any reason they were not voluntary, then the records are inadmissible.

35.  If the circumstances in which they were made were oppressive, they must be regarded as having been made involuntarily. There are further safeguards and a voluntary record of interview may still be excluded if obtained by unfairness or trickery.

36.  The only question in this case was whether or not I believed one set of witnesses or the other.  This case falls squarely within the description of a case referred to in an authority, Wallace & Fuller v R [1997] 1 Cr App R 396 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.  That trial judge ruled unequivocally that he accepted the accounts given by police officers, and he found the appellants’ story unworthy of credit.  That ruling without further elaboration would not have advanced, in that case, an appeal. Their Lordships could see nothing to recommend such a course.

37.  This authority Wallace has recently been adopted by the Court of Appeal in Hong Kong in HKSAR v Okafor Peter Eric Nwabunwanne CACC 437 of 2010.  Judgment was delivered on 27 January 2012.

38.  Therefore, all that was necessary for me to say was that after careful consideration of all the evidence relating to manner and circumstances in which these interviews were conducted, including the allegations made by and the evidence of each defendant and witness 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 were no grounds upon which I should exercise my discretion to exclude the records.  I admitted each post-recorded statement and record of interview into evidence.  I also found each POL153, notice to persons in custody, to have been properly dealt with and explained to those in custody and guardians present, Exhibit P4 and P7 for the 1st and 2nd defendants respectively.

39.  I add that I took into account the 1st and the 3rd defendants were of a young age, under 16, and both had clear records. I was satisfied they both had a parent present at the material times when interviewed.  The evidence of the two fathers, however, was weak and in part either contradicted their own sons or did not support their own sons’ evidence.  

40.  I will add that counsel for the 3rd defendant, Mr Polson, did submit that Exhibit P16 contained an admission recorded but a copy of it was not supplied to the defendant as soon as possible, as required by Rule 8 headed “Facilities for the Defence” of the Rules and Directions of 1992, specifically Rule 8(a)(v).  It was submitted DPC5531 denied the 3rd defendant a copy of a cautioned statement or a record of interview.  This officer did not agree, and I accepted his explanation and answer.

41.  DPC5531 gave evidence that his notebook, P16, was for his own contemporaneous note, and he asked the 3rd defendant and his father to sign as soon as he had made that record, but he proceeded to make a post-recorded statement of this verbal admission in P11.  This P11 was photocopied immediately after the interview finished and a copy given to the 3rd defendant.  It was not put to PW5 that he did not make a copy for the 3rd defendant.  However, the 3rd defendant gave evidence that although he and his father signed Exhibit P3 which was an acknowledgement of the receipt of a copy of P11, he never received one.  He did not know the content of P3 nor did his father.  I found that hard to believe.  I rejected this submission and did not find there to have been any breach of the Rules and Directions of 1992 where the 3rd defendant was concerned.

42.  It was also submitted that the defendants’ interviews should have been video-recorded.  I was shown paragraph 46/37 of the Force Procedure Manual, Chapter 46.  This was Exhibit D1.  PW13, Detective Inspector Wong Yu-fai, the officer in charge of this case, gave evidence as to why he directed his officers to conduct written records of interviews, POL857s.  I accepted his evidence and accepted he had a discretion that went with his rank.

43.  I also noted that Exhibit D1 says at 46/37, in the first sentence, the procedure for video-recording interviews should “be read in conjunction with the guidelines contained in Chapter 6 of the Criminal Investigation Manual (CIM).”  No such Chapter 6 was produced.

44.  I rejected this submission.

45.  It was also submitted by Mr Polson that the preamble of P11 reads as if PW5, the statement-taker, was relying on P16, his notebook, and read that over to the 3rd defendant.  It was submitted that if this is correct, then the notebook not having been copied and a copy given to the 3rd defendant meant the rest of the statement, P11, could not be relied upon.  I rejected this submission.  It is obvious PW5 was not relying on his notebook but was actually in this preamble post-recording the 3rd defendant’s admission there and then.

46.  Once the special procedure concluded and the interviews were admitted, the prosecution closed its case.  There were no submissions at this stage from the 1st to 3rd defendants and I ruled there was a case to answer on all four charges.

47.  The three defendants elected not to give evidence as is their right.  Their decision not to give or call evidence is no evidence of their guilt.  It proves nothing one way or the other.

48.  The prosecution has the duty to prove each element of each charge beyond reasonable doubt.  The evidence against each defendant must be considered independently.  They do not stand or fall together.

49.  The 1st and 3rd defendants are juveniles with clear records, and I carefully considered the likelihood and propensity of such young men committing offences of this nature.  I warned myself accordingly.

50.  The defence did not challenge the prosecution’s case that on the facts, PW1 and 2 were victims of a section 17 wounding offence.  There was no challenge to the prosecution’s case that the attackers of the first and second prosecution witnesses intended to inflict really serious injury at the time.  There was no challenge to the prosecution’s case that the third and fourth prosecution witnesses were assaulted by the same group that attacked the first and second prosecution witnesses.   

51.  The defence did not challenge the submission that the group that attacked the four victims were acting in pursuance to a joint enterprise.

52.  The only question was whether there was sufficient evidence to prove beyond reasonable doubt that the 1st, 2nd and 3rd defendants were participants in this course of criminal conduct.

My Findings

53.  I carefully considered the evidence of each victim and the submissions made by each counsel.

54.  I am sure from the victims’ evidence and the contents of the defendants’ records of interviews that the first to the fourth prosecution witnesses were summonsed to High Prosperity Terrace because the first prosecution witness had dated or shown interest in the 1st defendant’s girlfriend, Carmen.  The 1st defendant was already there with other defendants.  As a result of this meeting arranged, the 1st defendant asked another to arrange backup or get others to assist him.  Not long after, several more males arrived and weapons were brandished, long black Maglite torches.  Some males wore face masks obviously to conceal their identity.  What is clear is that when the four victims came face to face with this group that included the 1st, 2nd and 3rd defendants, the larger group rushed at and attacked the four.  PW1 being the target was the most seriously wounded.

55.  PW1 had seen and knew some of the attackers beforehand and recognised them.  They were not all strangers.  I am sure that is why despite the attack being frenzied and chaotic, he was able to later identify the 1st, 2nd and 3rd defendants in identification parades.

56.  I accepted PW1’s evidence in its entirety.  He also gave evidence of his three friends being attacked by the same group at the same time.  I came to this decision by carefully considering his evidence.  I did not find any material discrepancy, certainly none serious enough to make me doubt his evidence.

57.  When I considered the first prosecution witness’ evidence and other victims’ descriptions of the attack which supported his evidence together with the admissions made by the 1st, 2nd and 3rd defendants, I am sure the 1st, 2nd and 3rd defendants were part of this group that jointly set upon the four victims.  Each participant is criminally liable for all the acts done in pursuance of the joint enterprise.

58.  I am sure the prosecution can prove beyond reasonable doubt that the 1st, 2nd and 3rd defendants with others did unlawfully and maliciously wound PW1 and PW2 with intent to do them grievous bodily harm as well as assault PW3 and 4.

59.  I am sure the elements of each charge are proved.  Accordingly, the 1st, 2nd and 3rd defendants are convicted as charged, convicted of Charges 1 to 4.