HKSAR v. NAWAZ AHMED AND OTHERS

DCCC 756 & 903/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 756 & 903 OF 2013

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REASONS FOR VERDICT

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Introduction

1.  This is a case of wounding with intent and criminal damage. One charge of wounding with intent[1] was laid against D1, D3 and D4. It relates to an incident (“the first incident”) happened at about 2000 hours on 31 March 2013. The victim, Mr. Hazrat Gul (PW1), was attacked by a number of assailants whom PW1 identified to be D1, D3 and D4 to be three of them (Charge 1).

2.  Two amended charges of wounding with intent[2] and one charge of criminal damage[3] were also laid against all defendants (Charges 2 to 4). It relates to another incident (“the second incident”) occurred in the early hours on 1April 2013 but at a different place. The two victims were PW1 and a male called Kayani Muhammad Saleem (“PW2”).

3.  All five defendants pleaded not guilty to all charges. They and two victims are all Pakistani males. They are all refugee claimants residing in Hong Kong under an Immigration Recognizance.

4.  The Prosecution called 4 witnesses. Apart from PW1 and PW2, senior police constable 53152 (PW3) and the Acting Chief Inspector Mr. Chau (PW4) were called. PW3 was the arresting officer of D5 and PW4 was the officer who conducted the ID parade on 21 May 2013.

5.  The prosecution’s case substantially depended on the evidence of the two victims i.e. PW1 and PW2, who had seen some of the defendants before.

6.  Having ruled a case to answer on all charges faced by all defendants, all defendants elected not to give evidence but D1 called Mr. Mohammad Liaqat as an alibi witness (DW1). I draw no adverse inference against all defendants for not giving evidence because it is their rights.

7.  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 do not have to prove their innocence.

8.  The Court must consider each count separately and the case for and against each defendant separately on each count.

9.  All defendants have a clear record. They did not give evidence and they had not made any statement to the police. The fact that they are of clear record mean that they are less likely than otherwise might be the case to commit this crime now.

The Case for the Prosecution

(a) The first incident

10.  At about 2000 hours on 31 March 2013 outside Wellcome supermarket, Ground Floor, Cheung Fat Building, No. 14 Yu King Square, Yuen Long (“Location 1”), PW1 and his friend KASHIF were chatting.

11.  It was the prosecution case that PW1 was suddenly confronted by a gang of 8 to 10 assailants including D1, D3 and D4. PW1 further said that D4 initiated a verbal abuse on him. Then the gang assaulted PW1 in turn. PW1 said D4 grabbed his shirt and punched him. Almost at the same time, D1 approached PW1 and hit his head with a glass bottle.

12.  PW1 said that D3 punched and slapped on the face of him. The attack lasted for 2 to 3 minutes (Charge 1).

13.  After those assailants left, PW1 reported the incident to the police. PW1 was accompanied by KASHIF to go to the Pok Oi Hospital at about 2056 hours on the same day. As a result of the attack, PW1 suffered a 6 cm laceration wound over his left forehead.[4]

(b) The second incident

14.  Four of PW1’s friends went to the hospital to visit PW1 at different junctures. They were MEHMOOD Arshad, DOST Muhammad, KHAN Imran and PW2.

15.  At about 2330 hours on the same day, PW1 was discharged from the hospital. All six of them left the hospital and got on a van driven by DOST. He then drove the van towards Yuen Long.

16.  PW1 said that after 10 to 15 minutes of driving, DOST parked the van outside the Ground Floor, Hau Tak Building No.3 Hung Min Court, Yuen Long (“Location 2”)

17.  PW2 and two of the passengers walked to the nearest convenient store to buy drinks while PW1, Arshad and Kashif remained at their seats which were at the same row. PW1 was sitting between them in the first row of the passage seats.

18.  At about 0015 hour on the 1 April 2013, D1, D3 and D4 arrived at Location 2 followed by a group of Pakistani. They surrounded the van. D1 and D4 approached PW1 and stopped at a distance of 3 feet (PW1 marked the standing position of them in a photo).[5]

19.  Both D1 and D4 asked PW1 if he had reported the first incident to the police. At that juncture, D1, D4 and the group started to damage the vehicle. Almost all of them were holding iron pipes to damage the vehicle. PW1 also saw D3 standing in front of him.

20.  PW1 described D1 and D4 were leaders of the group. Both D1 and D4 used an iron pipe to assault him. The whole attack lasted for 3 to 4 minutes. As a result of the attack, PW1 got injuries on his right eye, arms and legs. PW1 said he recognized some of the attackers by their face but not by names.

21.  PW1 identified D1, D3 and D4 as the attackers whereas PW2 only identified D1 in the second incident.

22.  PW2 said when he walked back to Location 2, he witnessed some people were smashing the van with iron rods.  He also witnessed 20 to 30 Pakistani males assaulting PW1 and his two friends inside the van. He also said D1 together with 10 to 15 people came to him and started assaulting him.

23.  PW2 said that he saw D1 holding an iron pipe in his hand at a distance of 1 to 2 meters from him. PW2 added that there was nothing obstructed his view at that time. The lighting condition was good enough for him to see D1’s face from a distance of 1 to 2 meters.

24.  On 21 May 2013, both PW1 and PW2 attended an identification parade. Both of them identified D1 as one of the assailants.

25.  The Prosecution case against other defendants is on the basis of joint enterprise (Charges 2 to 3). It was an admitted fact that the registered owner of the light goods vehicle FA3486 is DOST Mohammed.[6]

26.  The Prosecution also avers that all defendants committed criminal damage on the vehicle with metal pipes (Charge 4). As a result of the attack, all windows and windscreen of the van were broken.

27.  The Prosecution also alleged that both D1 and D4 had a motive to wound PW1. On a day in the late March 2013 at about 1000 hours, when PW1 was standing at a bus stop of route no.68M in Yuen Long,  he was approached by D1 and D4 (hereinafter called “bus stop incident”).

28.  They asked PW1 to join their group; otherwise there will be some injury or some problems with PW1. PW1 refused. They told PW1 that “if you were living in Yuen Long, we will see you” and then left.  The reason for his refusal is that PW1 is unwilling to participate in a group which used to engage in unlawful fighting.

(c ) The injury of PW1 and PW2

29.  The unchallenged evidence and admitted facts clearly showed that both PW1 and PW2 suffered injuries.

30.  After the first incident, PW1 was admitted in the Pok Oi Hospital at 2056 hours on 31 March 2013. The medical report confirmed that there was a 6 cm laceration wound over his left forehead. Later, he was discharged from hospital.

31.  After the second incident, PW1 was re-admitted to the hospital at about 0042 hour on 1 April 2013. The medical report confirmed that there were laceration wounds over his right eyelid, lower lip and left elbow.[7]

32.  PW2 was also admitted in the hospital at about 0053 hours on 1 April 2013. The medical report revealed that: (1) there was a 3 cm long laceration wound over the top of his head; (2) a laceration wound over the chin; (3) abrasion wound over the front of his neck and right knee; and (4) laceration wounds over the left knee and left elbow.[8] PW2 was discharged on the next day.

The case for the Defence

33.  All defendants chose not to give evidence. D1 called one alibi witness, DW1. Other defendants called no witness. However, D3 and D4 also relied on the evidence of the alibi witness.

34.  The defence of D1, D3 and D4 is one of alibi. They said that they were not at Location 2 when the crime of the second incident was committed. They said that they were in the Pakistan Association of Hong Kong (“PAHK”) in Tsim Sha Tsui to celebrate the birthday of a 61-year-old man called Mr. SANDHU, Jasbir Singh at 2220 hours on 31 March 2013.

35.  DW1 testified that he was an Ex-Council member of the PAHK. The son of Mr. Singh called him the day before. DW1 promised to arrange a room for the cake-cutting birthday party.

36.  DW1 also tendered 12 photographs[9] to prove what had happened on that night in the PAHK. DW1 further admitted that he took some of the photographs.

37.  I have carefully compared the images depicted in photographs with the appearance of the defendants in court. I am sure the persons appeared in the relevant photographs were D1, D3 and D4 (See AG’s Reference (No.2 of 2002) [2003] 1 Cr App R 21) .

38.  The date appeared in the photographs is hearsay. I will not, in arriving my verdict, rely on any date appeared in those photographs.

39.  DW1 also said that he remembered Mr. Singh, his son and other friends came as a group at 2220 hours. The second group arrived at the place ten minutes later, but he could not remember who were in the second group. He further testified that the whole group left at about 0030 hour on 1 April 2013.

40.  The case for D2 and D5, as suggested during cross-examination, were that they were never present at Location 2 in the second incident.

Issues

41.  The issues in this case are whether both PW1 and PW2 are honest and reliable and their subsequent identification of all defendants as the assailants could safely be relied upon.

42.  There was no dispute that PW1 was injured in the first incident. Nor was there any challenge that both PW1 and PW2 were injured and that the vehicle was badly damaged in the second incident.

Lack of DNA and fingerprint

43.  There was neither DNA nor fingerprint of any defendant on two metal poles seized by the police.[10]  All Defence Counsel emphasized that there was no DNA or fingerprint to link any of the defendants to the metal poles.

44.  In this respect, I find all Defence Counsel’s submissions without substance. It is not the function of a judge sitting alone to speculate on what evidence there might have been.  The Court’s function is to decide the case on the evidence placed before him. The absence of such evidence does not mean that any of the defendants was not the assailants and does not cast doubt on the prosecution case against them.

45.  As the Court of Appeal said in HKSAR v Chau Ping, CACC2/2013, 8 January 2014, unreported, para. 33:

“the absence of [DNA or fingerprint evidence] is of neutral probative effect for there can be many explanations why such evidence is not found.”

Absence of any other possible witnesses

46.  All Defence Counsel submitted that why the Prosecution not called KASHIF on Charge 1 and KASHIF, ARSHAD, DOST and IMRAN on charges 2-4. The Defence further attempted to persuade the court that their absence casts doubt on the prosecution case.  

47.  I would not speculate on what other witnesses would say if they were called upon to testify on this matter. Once again my duty, as a trier of the facts, is to try the case on the evidence before me but not on speculation.

48.  As the Court of Appeal in HKSAR v Chan King Chong, CACC289/2008, 6.5.2009, unreported, para. 14 said:

“As a general principle, the prosecution does not have to call witnesses who may give evidence favourable to a defendant. The duty of the prosecution is to notify the defence of the existence of any such witness and their particulars should that be known. It is generally the responsibility of a defendant to call such witnesses as may be thought to assist his case....There was no obligation on the prosecution to do so.”

49.  This is a trial where the prosecution case depends wholly on the correctness of identification of both PW1 and PW2 which the defence alleges it to be a concoction or to be mistaken.

50.  I have warned myself of the special need for caution before convicting any defendant in reliance on the evidence of identification. It is also important to bear in mind that both PW1 and PW2 testified that all assailants were Pakistani males.

51.  PW1 who is convinced in his own mind may, as a result be a convincing witness, but may nevertheless be mistaken. The same may apply to PW2. Mistakes can also be made in the recognition of someone known to a witness, even of a close friend or relative (see R v Turnbull [1977] 2 QB 224).

52.  Apart from the evidence of the prosecution witnesses, there is no corroborative evidence, for example, admission by any defendants. I should therefore examine carefully the circumstances in the identification of each witness. It was also incumbent upon me to address myself on the possible weaknesses of the evidence of witnesses.

The identification of D1

53.  At trial PW1 said he had seen D1 many times before the incident. They used to play cricket together.

54.  PW1 said that there is a large Pakistani community in Yuen Long. Amongst the community, different kinds of social gathering would be held. PW1 told the court that he played cricket with other Pakistanis. During that time, PW1 was able to know many Pakistanis. That is the reason why PW1 kept on saying that he recognized the assailants by their face but not by name.

55.  At trial PW1 said that the night of the attack was not the first time he saw D1. PW1 said he recognized D1.

56.  As far as lighting condition is concerned, PW1 said that both Locations 1 and 2 where the attacks took place were in good lighting conditions. At Location 1, light came from shops and street lights.

57.  As for Location 2, PW1 said he was able to see the motor vehicle and people because there were street lights as appeared in photographs 10 and 11 (Exhibit P2).

58.  By looking at photo 21 (Exhibit P2), PW1 said the actual lighting is dimmer than what can be seen in that photo.  

59.  The Defence Counsel submitted that with the help of light coming from camera, it is expected that the actual lighting condition was not as good as what one can see in the photos.

60.  It should be borne in mind that PW1 had a bandage over his left forehead after he was discharged from the hospital at the time of the second incident. The Defence stressed that the injury on his right eye[11] would affect his visual identification.  The smashing of windows by the assailants would also frighten and confuse PW1.

The identification of D2

61.  On 8 June 2013, PW1 came across D2 in a betting centre in Yuen Long. He identified D2 to be the one physically present in the second incident and he reported the same to the police. After awhile, the police arrived and arrested D2. PW1 said he had seen D2 about 10 to 15 times before the incidents.

62.  The main thrust of Mr. Whitehouse submission was that the accidental identification by PW1 was more than 2 months after incidents. There is no formal identification parade conducted. Mr. Whitehouse further emphasized that the details of those 10 to 15 times encounters before the incidents were never explored by the Prosecution.  The Defence emphasized again that it is not a case of recognition.

63.  Mr. Whitehouse also asked the Court to consider the lighting and the chaotic situation when the attacks took place.  Bearing in mind all the circumstances, it is submitted that the identification is not reliable.

The identification of D3

64.  On 9 August 2013, PW1 went into the report room of Yuen Long Police Station and he saw D3 and identified him to be the one physically present in both incidents.

65.  PW1 saw D3’s face at a distance of about 2 feet in the first instance and about 4 feet in the second incident. PW1 recognized D3 because he had seen him 6 to 10 times at a place at or near route no. 68M bus stop before the two incidents.

66.  Counsel for D3 similarly submitted that there was no foundation on the evidence of the previous encounters. There was no evidence that about the circumstances for each encounter.

The identification of D4 and D5

67.  On 23 July 2013, PW1 came across D4 and D5 in the waiting room of Lai Chi Kok Reception Centre.

68.  PW1 identified D4 who had damaged the van with iron pipes in the second incident. PW1 also identified D5 who was present at the scene. PW1 said he recognized them as he had seen D4, 4 to 5 times and D5, 8 to 10 times before the incidents. I am aware that there is no evidence on the circumstance of previous encounters.

69.  Mr. Ross repeats the same argument said on behalf of D3 about the credibility of witnesses and the quality of identification for D4.

70.  Mr. Raffell submitted that the identification in Lai Chi Kok Reception Centre which was 4 months after the incidents, was traumatic and stressful. He adopted the submission of other Counsel in respect of the quality of the identification.

71.  It is a fact that no identification parade in respect of D4 and D5 was held. Counsel for D5 emphasized that if PW1 were taken to the area of Yuen Long by police and picked out D5 there, the identification would be much more convincing.

The credibility and reliability of PW1

72.  All Defence Counsel pointed out the shortcomings and the discrepancies in the evidence of PW1 and PW2. I am fully aware of the discrepancies of their evidence.

73.  PW1 received no formal schooling.  He was arrested for wounding 19 on 9 August 2013 but he was not charged.  One month later, he was further arrested by the police on 9 September 2013 for an offence of common assault on the same victim. PW2 has criminal records. I take these matters into account when assessing PW1 and PW2’s credibility.

74.  Evidence was also adduced in cross-examination as to what else happened when PW1 was verbally abused. He said both D1 and D4 verbally abused him in turn.

75.  PW1 made 8 statements to the police. The first was made at the night of 3 April 2013 in the presence of an interpreter at Yuen Long Police Station two days after the two incidents. In the statement, he said that:

“Around 8 pm on 31 March 2013, I was meeting my friend KASHIF, near the public toilet near Wellcome Supermarket on Yu King Square, Yuen Long. Soon after we met, around 8 to 10 Pakistani men (aged around 25 to 30, which included Johnny and Maher) appeared, some of them said that I did not join their group and they started assaulting me for about 1 to 2 minutes. Someone hit me on my left forehead with a glass bottle and injured me. After assaulting me, they fled towards CITI mall direction. I made a report to the police.”[12] (Emphasis added)

76.  PW1 told the court that he knew D1’s name was Johnny and D4’s name was Maher well before the bus stop incident.

77.  Counsel for D1 argued that if it was really D1 and D4 who had verbally abused him, there was no reason why not PW1 mentioned their names to the police instead of saying “some of them”.

78.  Furthermore, it is illogical for PW1 to mention that “someone hit me on the left forehead with a glass bottle.”

79.  Similarly, if PW1 was really sure that D1 hit him with a glass bottle, there was no reason why he did not mention the name Johnny to the police during the statement taking.

80.  PW1 explained that he thought “some of them” means D1 and D4.

81.  In the case in which the identification is the sole issue, the contents of the statement have crucial significance. I must stress that he knew the name of D1 was Johnny and D4 was Maher before the two incidents. When compared with other parts of the statement, it seems there was a contrast. In it, he said:

“Then, Johnny and Maher asked why did I made a report, Then, they assaulted us with the iron pipe inside the vehicle, which lasted for about 5 minutes. Then, they fled toward Hop Yick Plaza.”[13]

82.  When compared with those two parts in the statement, PW1’s explanation does not cover the reason he had omitted the name of D1 and D4 whom PW1 had known well before the two incidents.

83.  There is another point of significance. In his fifth statement dated 13 June 2013, PW1 said:

“I have identified two suspects. As far as I know, the police have arrested a number of suspects for this case. I do not clearly remember the appearances of some of the suspects that have been arrested by the police, actually. Up till now, for the suspects arrested by the police, I will not take part in their identification parades. And I am not threatened or induced by anyone.”

84.  PW1 reasoned that the above statement might contain some errors. His explanation to the police was that if he saw the assailants, he could recognize them and report to the police on 21 May 2013.

85.  It is important to note that PW1 identified D4 and D5 on 23 July 2013 while he identified D3 on 9 August 2013.

86.  PW1 gave 8 witness statements to the police. There was a Pakistani interpreter assisting him. He had read through the statements written in Punjabi. He signed to confirm that the content was accurate. The explanation, given by PW1, is improbable.

The credibility and reliability of PW2

87.  The correctness of identification of the defendants by PW2 was also an important issue. PW2 said he recognized D1 because he had seen D1 many times before the second incident. Nevertheless, the circumstance of each encounter was never explored at the trial.

88.  Counsel for D1 submitted that there was a discrepancy in PW2’s evidence. PW2 said he knew the name of Johnny from a piece of paper. Later, PW2 changed his version by saying that he was told by PW1.

89.  I rejected this submission. PW2 told us that he came to know D1’s name, Johnny, on the date of identification parade. PW2 testified that both PW1 and he attended the identification parade on the same day. After identification, he saw the word “Johnny” on a piece of paper.

90.  When PW2 spoke with PW1, PW1 told him that Johnny was the person who had attacked him. There was no inconsistency in his testimony.

91.  PW2 insisted that until the time he was told by PW1, he did not know the name of D1 was Johnny. He can only recognize the face of D1 but cannot tell his name.

92.  Mr. Egan emphasized that the first witness statement of PW2 was taken on 3 April 2013. Counsel for D1 said that it is illogical for PW2 not to tell the police that (1) the leader is someone he knows, (2) he saw the attackers many times in Yuen Long and (3) he recognizes his face but not by his name.

93.  I agree that there is merit in Mr. Egan’s argument. PW2 said that there were discussions between PW1 and him during the period between 1 April and 21 May (the date of identification parade). PW2 said that he was eager to know who had attacked him on that day, but he did not ask the name during that period. PW2 explained that he recognized them by face. I found the explanation hardly believable.

The Alibi evidence

94.  I should say something about s.65D of the Criminal Procedure Ordinance, Cap. 221. Section 65D(1) said:

“on a trial on indictment the defendant shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi.”

95.  Pursuant to s.65D(8) of the same ordinance, the prescribed period means “the period expiring not less than 10 days prior to the commencement of the trial.”

96.  Mr. Polson in its submission said the particulars of the defence alibi witness, DW1, were not supplied to the prosecution 10 days before trial. The statement is inaccurate. Mr. Egan had submitted a letter[14] to the Court dated 6 December 2013 about the alibi witness. It is a letter written by the instructing solicitor to the Department of Justice.

97.  At last, Mr. Polson did not object to the alibi evidence. Neither did he make any application for adjournment.

98.  Counsel for D1 said, taking into account the distance between Tsim Sha Tsui and Tin Shui Wan, it would not be possible for D1, D3 and D4 to be present in Location 1 when PW1 was assaulted. Mr. Egan and Mr. Ross both submitted that the alibi witness is unshaken when giving evidence. The photographs and the date of birth of Mr. Singh[15] clearly proved the existence of the doubt.

99.  As the prosecution has to prove their guilt so that the Court is sure of it, D1, D3 and D4 do not have to prove they were elsewhere at the time. On the contrary, the prosecution must disprove the alibi.

100.  I also direct myself that if the Court did not wholly believe the evidence of the alibi witnesses, the Court should go on to consider whether it has raised a reasonable doubt in its mind as to the guilt of the defendant (See R v Tsang Kam Hing CACC163/1990, 19.2.1991, unreported).

101.  I agree that the evidence of alibi witness is unshaken. DW1 could recall an eventful incident which took place 8 months ago and it is not inherent improbable, bearing in mind the fact that DW1 can refresh his memory with the aid of 12 photographs. The passage of time might of course account for the fact that he could not remember some details.

102.  I found no reason to disbelieve him.  I believed the alibi witness had told this court the truth.

103.  Based on the above analysis, I found the identification of PW1 and PW2 on all defendants not reliable.

104.  In addition, the alibi evidence would not just cast a doubt for the prosecution case but would demolish it totally. I, therefore, ordered that all charges against each defendant to be dismissed.