HKSAR v. LAMA SUDIP

HCMA112/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 112 OF 1999

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J U D G M E N T

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1. The Appellant, a Nepalese, was convicted by a magistrate of two charges of s.19 wounding, one charge of assault occasioning actual bodily harm and one charge of criminal damage. He also pleaded guilty to one charge of resisting a police officer in the execution of his duty. He now appeals against the convictions save that relating to which he pleaded guilty.

2. The prosecution evidence was to the effect that at about 12:35 am on 26 October 1998, the Appellant approached PW3 (Mr Paul Buston) and PW2 (Mr Michael Warde) who were both employees of a club in Wanchai. PW3 and PW2 were the victims of the two wounding charges. They were standing on the pavement outside the entrance to the club. The Appellant asked PW3 if he was Mike, and PW3 turned to PW2 to say that someone was looking for him. The Appellant then asked PW2 if he was Mike, and when PW2 said he was, the Appellant asked PW2 if he had 'a problem with my brother?' PW2 stated that he did not have such a problem and asked who the brother was. The Appellant said that he wanted to speak to him and tried to move PW2 to one side. PW2 refused to move and stated 'Go ahead. What was the problem?' At this point, four other Nepalese men approached and formed a semi-circle behind PW2.

3. PW3 took PW2's elbow and directed him towards the door of the club. One of the Nepalese withdrew an iron bar from the inside of his jacket. Other Nepalese men produced beer bottles and pint glasses or mugs and attacked PW2 and PW3. The whole incident took about half a minute to one minute. Other staff of the club came to the rescue of the two witnesses. One of these colleagues, PW1, was injured during the fracas, and he was the victim of the charge of assault occasioning actual bodily harm of which the Appellant was convicted. At the conclusion of the attack, an iron bar was thrown by the assailants to hit on the glass door of the club, forming the substance of the charge of criminal damage.

4. The Nepalese men fled. PW4 was a police officer who heard the breaking of glass and observed about 10 men running. He gave chase and eventually subdued the Appellant at a petrol station after chasing him over a block of the street. The Appellant resisted the arrest by PW4, in respect of which he pleaded guilty.

5. The Appellant elected not to give evidence before the Magistrate. However, in his cautioned statement made in the police station, which was admitted in evidence, the Appellant stated that he was present at the scene of the assault. He had been drinking in a bar near the club. He was asked by some Nepalese men who had chatted with him if he could speak English, and when he responded yes, he was asked to go to speak to some 'foreigners'. He went to speak to the 'foreigners' when suddenly the Nepalese men started to hit the 'foreigners'. As he did not want to be involved, he tried to get away. When a foreigner tried to catch him, he had no choice but to hit him with his bare hand in order to break himself free and started to run away. He was chased by a police officer who caught up with him near a petrol station. He was thus arrested.

6. The main issue before me as argued by Mr Laskey, counsel for the Appellant, was one of identification. There is no doubt whatsoever that the Appellant was at the scene of the assault and that he was the person who spoke to PW3 and PW2. It is also clear that he was the person arrested by PW4. However, apart from PW3, there is no evidence identifying the Appellant as one of the persons who participated in the attack on PW3 and PW2.

7. PW1 testified that the Appellant who was arrested at the petrol station was one of the five Nepalese outside the entrance to the club. He said that he could obviously see everybody's face but he could not recognise anybody from there and then until after the struggle. He said he was at the entrance to the club for 10 or 15 seconds and at that time glass was flying everywhere. He only recognised the person's clothes as he ran away. Yet he could not tell the Magistrate the clothes that the person was wearing.

8. PW2 identified the Appellant as the person who was caught at the petrol station, but he did not know if the Appellant was one of those who attacked him. He described the attack on him as follows :

"I was hit from behind at first but before I was hit from behind I seen a gentleman to the left of the man talking to me come towards me, fly at me with a punch. I moved out the way and then, boom, I was hit in the back of the head and for split seconds it all seemed that quick and blurred. It seemed to happen and it's very hard to recall what happened and who done what and where it was done."

He did not tell the Magistrate that it was the Appellant who attacked him. He did not give evidence as to what the Appellant was wearing. He did not even see that he was hit by an iron bar.

9. As I said before, PW3 was the only witness who identified the Appellant as the person talking to him and PW2, opening his jacket to produce an iron bar and hit PW2's head with the iron bar while others were attacking PW3 and PW2 with beer bottles and mugs. PW3 described the person approaching him as 'wearing blue jeans, shirt, a green jacket, Colorado-style boots', and that 'the gentleman that came up and did all the talking opened his jacket and had an iron bar and smashed me.' In cross-examination, however, PW3 admitted that he did not mention in his statement given to the Police at 2:10 am the same morning that the Appellant or the arrested person was the person who produced an iron bar and hit PW2 with it. He gave some explanations why he did not do so, but the Magistrate did not seem to have considered those explanations in his Statement of Findings.

10. When the Appellant was arrested, he was not wearing any jacket, let alone a green one as described by PW3. While the victims were chasing the Nepalese who fled the scene, they might have lost sight of the Appellant for a brief moment. PW2 said that he lost sight of those who fled, but he identified the Appellant as the one arrested. On the other hand, the police officer PW4 chased the fleeing group before the victims did. He said he was chasing 10 odd men and did not lose sight of them. The men split and he concentrated on chasing the Appellant and eventually got him at the petrol station. PW4 arrested the Appellant before the club employees arrived, and the victims who gave evidence did not see any struggle between the Appellant and PW4 that formed the basis of the charge to which the Appellant pleaded guilty. They only saw the Appellant sitting between two petrol pumps, cowered up. There was no evidence before the Magistrate as to whether the Appellant had discarded anything while being pursued by PW4 and the club employees. Nobody told the Magistrate anything as to what had happened to the green jacket that PW3 so vividly described in his evidence. PW3 said that it was from within that green jacket that the person wearing it produced the iron bar that caused the gravest injury to PW2. The Magistrate stated in his findings that 'I was unable to find as a fact when he discarded it. It was not tendered in evidence.' The iron bar was found at outside the club on the ground where the assault took place. It was an 18-inch steel pipe having one end swaddled with a gauze field dressing secured by cellotape. He drew the inference that this exhibit was used in the assault. He then continued: 'I found that it was the iron bar which was concealed under the green jacket worn by the defendant and which he produced and used as a weapon.' It was based on this finding that the Magistrate convicted the Appellant of the charges under appeal.

11. I have dealt with the evidence in some detail so as to examine whether the identification evidence of PW3, who was the only witness identifying the Appellant as the person wearing a green jacket from which the iron bar was produced for the attack. All other witnesses did not mention any green jacket, or that one such jacket was donned by the Appellant. When the Appellant was arrested, he did not wear any jacket. PW4 described the Appellant as wearing a T-shirt and blue jeans in his witness statement. He testified to say that the Appellant was wearing blue jeans and black upper garment. PW4 could not remember if the Appellant was wearing any jacket. PW4 said he did not lose sight of the men and the Appellant whom he was chasing. None other prosecution witness gave evidence of seeing the Appellant wear a jacket during the chase or of discarding the same. The Magistrate was unable to find when the Appellant discarded the green jacket. He was certainly correct in reaching that decision. However, without that finding, it is difficult to justify his other finding crucial for the convictions under appeal that the Appellant was the person who produced the iron bar concealed by the green jacket worn by him and used it as a weapon. The Appellant was certainly not wearing any green jacket when he was caught by PW4 at the petrol station, or else PW4 would not have written in his witness statement and testified that the Appellant was wearing a T-shirt or black upper garment and blue jeans.

12. The Magistrate could only have relied on the evidence of PW3 to find that the Appellant was the person who wore the green jacket from which the iron bar was produced. However, that evidence did not tally with the evidence of PW4 in his description of the clothing of the Appellant unless it can be shown beyond a reasonable doubt that the Appellant discarded his jacket during his flight. Mr Laskey submitted that the identification by PW3 of the Appellant was full of difficulties. The incident took place at night, and the only description of the lighting being "very well lit" came from PW1 who did not make any identification. The assault occurred suddenly causing shock and took the victims off guard. The incident happened in a split second and PW3 was almost knocked out. The prosecution witnesses had never seen any of the Nepalese men before. Although the victims all spoke of five Nepalese persons, PW4 saw about 10 people fleeing the scene. Further, PW3 said in his witness statement that he might not be able to identify the assailants. There was no mention in his statement of the fact testified by him that it was the person who talked to him that drew out an iron bar from within the jacket worn by this man. No identification parade was held for any of the victims, let alone PW3, to identify the assailants. Further, no prosecution witness, including PW4 in particular, talked about the Appellant discarding anything during the pursuit. The Appellant was the only person caught and the victims were together with him at the petrol station for sometime looking at him with intense animosity before he was taken away by the police. Though the iron bar found at the scene was produced in court, no fingerprint was taken from it to help identify its user. It is also important to note that at the initial stage of the examination-in-chief of PW3, he was not specific that the person who talked to him and PW2 was the one who produced and used the iron bar. He described that the Nepalese man who approached him was talking to PW2, and he continued :

"At that point, I noticed four other men walking around behind Mike. I sensed there was trouble. I said, 'Mike, you better go inside. I think there's going to be trouble.' At that point I grabbed Mike's left elbow, directed him towards the front door of Joe Bananas. At that point the five gentlemen - one gentleman opened his jacket with an iron bar, the other guys grabbed bottles and proceeded to bash us and smash bottles on our heads. At that point I had pushed Mike into the door then one gentleman with an iron bar hit the top of the door as I was being dragged in the door and I fell through the door."

13. It can be noted that PW3 did not say that the person talking to Mike opened his jacket with an iron bar, but merely saying that 'one gentleman opened his jacket with an iron bar.' It was only later in-chief that he said the gentleman that came up and did all the talking opened his jacket and had an iron bar.

14. In all the circumstances of the case, especially in view of the lack of evidence before the Magistrate as to what happened to the green jacket so categorically testified by PW3 as worn by the assailant and from the inside of which the iron bar was drawn, I am left with a lurking doubt as to the reliability of the identification evidence of PW3 that the Appellant was one of the assailants. I do not fault the Magistrate who accepted the evidence of PW3 that the assailant with the iron bar was the person wearing the green jacket, but there remains a reasonable doubt whether that was the same person who approached and talked to PW3 and PW2.

15. The Appellant admitted in his cautioned statement that he was the person 'talking to the foreigners' but he was taken by surprise that an attack occurred. The Magistrate said that he found the cautioned statement an unreliable and self-serving one on which the court could not place any reliance other than to place the Appellant at the scene of the assault. Even accepting that the Appellant was at the scene, I find that there is a lurking doubt whether he was the person who participated in the attack as described by PW3. Mr Chan for HKSAR fairly conceded that barring the evidence of PW3, the mere presence of the Appellant at the scene did not in the totality of all other evidence before the Magistrate establish that the Appellant was one of the assailants. As I find a lurking doubt in PW3's identification of the Appellant as an assailant, I find the conviction unsafe and unsatisfactory. I would therefore allow the appeal, quash the relevant convictions and set aside the sentences.

16. Mr Laskey also raised other grounds in support of his attack on the identification evidence, such as the discrepancies in the descriptions by the prosecution witnesses of the length of the hair that the Appellant was wearing. In view of my decision that the appeal should be allowed on the basis above stated, I do not think it necessary to deal with this aspect.

17. What is left is the conviction of the offence of resisting a police officer's execution of his duty to which the Appellant had pleaded guilty. For that conviction, he was sentenced to one day's imprisonment. Against that conviction and sentence there is no appeal. The Appellant therefore stands convicted of that offence and he has to serve that sentence, unless it has already been served.