HKSAR v. AHMED SAJJAD

DCCC 221/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 221 OF 2016

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Reasons for Verdict

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1.  The defendant is charged with wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. He is accused of attacking PW1, the victim, Mr Rathor Tanveer Hussain, with other persons unknown and unapprehended on 22 November 2015 on Kwun Tong Road, Kowloon Bay at about 9 pm. He is accused of punching and kicking PW1 with other men until he fell to the ground.

2.  The attackers ran away but PW1 was able to recognise the defendant and name him to the Police.  The victim was sent to hospital after the sudden and unprovoked attack.  He had a wound above his right eye stitched and he had other injuries.  The defendant denies he was one of the victim's attackers.  He suggests the victim had a motive to frame him. The issue in this case lies in the credibility of PW1.

Prosecution case

3.  The prosecution called the victim, PW1.  There were no other independent witnesses to the attack.  The prosecution also tendered for cross-examination the Police officer who recorded the victim's witness statement as well as the Urdu interpreter who assisted in the statement.  PW1 is from Pakistan and arrived in Hong Kong a year and a half ago.  He has applied for asylum and is a Form 8 Recognisance holder.  On 22 November 2015 at about 9 pm, he left home to go and play street football nearby.  On Kwun Tong Road, the defendant and three other men appeared and attacked him. 

4.  He said the defendant stood to PW1's left and swung at him.  PW1 dodged this punch.  The defendant's cousin, Bilal, stood to the right of PW1 and swung next.  This punch did connect with PW1's temple. Bilal had a knuckleduster on his hand which was wrapped in a handkerchief.  The defendant then rained punches down on PW1. The other two men stood behind the defendant and Bilel but did not strike him.  The attack lasted three to four minutes before PW1 fell to the ground.  All four then fled on foot.  He had been mainly hit on his head, face and hands.  He still has a problem with the vision in his left eye.

5.  Whilst he was hit, he was sworn at, foul language was used.  He also heard one of the men say "Don't ask me for money again after this".  He did not see who spoke as he was shielding his eyes with his arms.  PW1 assumed this referred to the debt of HK$1,700 that he had lent to the defendant four or five months prior to this.  He had been chasing the defendant to repay it to him.  Two months earlier in September, he and the defendant had had a fight over this debt.  Both had been arrested and were on Police bail when this November attack took place.

6.  PW1 knew the defendant from Pakistan and recognised him.  He also knew Bilal.  He called him "the defendant's cousin" but later said he was in reality the defendant's brother that had come to Hong Kong to seek asylum on a false passport or a passport belonging to another, so even the defendant referred to him as a "cousin" to hide the truth.

7.  In September 2015 after he had chased up the defendant to repay his debt of $1,700, one night the defendant called him at home and asked him to come downstairs.  The victim went downstairs after the defendant swore at him.  The defendant hit him so the victim hit him back.  It seems the defendant came off worse and ended up admitted into hospital for a short period of time.  The victim also sought treatment at the Accident & Emergency Unit of the United Christian Hospital after this fight.  Both the defendant and PW1 were released from Police bail without charge in March 2016. PW1 said this incident was a one on one fight, no one else was involved.  He admitted he got angry and wanted to hit the defendant for insulting him.

8.  In cross-examination, it was put to him that he did not even lend $1,700 or any money to the defendant.  He denied this.  It was put to him that in September 2015 he and other Pakistani and Chinese men attacked the defendant with poles and weapons.  He denied this.  It was put to him that in fact the man he lived with, Zahib, owed the defendant $21,000 and the defendant was chasing Zahib for repayment.  It was why the defendant helped Zahib by beating the defendant in September.  PW1 denied this saying actually the defendant also owed Zahaib money, a large sum, $52,000. 

9.  It was put to him the defendant did not call PW1 in September 2015 inviting him to come downstairs.  He denied this.  It was put to him the defendant had no brother or cousin, in fact any relatives in Hong Kong.  He denied this, reiterating that he knew the defendant's family from Pakistan.  He explained why no one acknowledged Bilal was the defendant's brother in Hong Kong.

10.  He was also cross-examined at length about the inconsistencies between his oral evidence and his witness statement, Exhibit P5, dated 28 November 2015.  In court he said four Pakistani men attacked and ambushed him; in P5 he specifically recalls five men and describes them.  In court he names the defendant and his cousin, Bilal, as two of the four but in P5, the second man is referred to as Ibrar, not Bilal, and does not say the second man is related to the defendant.  In court he said he was spoken to and threatened; in P5 it says the five men said nothing to him.  In court he said he was assaulted by two men only, the other two stood there; in P5 it says the five men punched and kicked his whole body.  In court he said when he fell to the ground the four men fled on foot; in P5 it says when he fell to the ground, only the two named men continued to assault him, the other three stopped at that moment.

11.  The victim explained these discrepancies and differences.  He said he had received a call from the Police and he understood he was to go to the station the next day but he could not understand at what time.  He therefore arrived at 9 am but was not interviewed until nearly 3 pm and left about 6 pm.  He did not feel well and was still in pain from the attack.  He is illiterate so relied on the interpreter to assist him.  He says his statement is an accurate record of his account to the Police and the material night.  He says the statement was not read back to him and he was unaware of the discrepancies highlighted. 

12.  He disagreed in the interview he told them there were five men.  He may have said "four or five men".  He has no idea why the second male was named as Ibrar when he said he was Bilal.  The name Ibrar is a mistake, the translator's mistake.  He said he did not tell the Police the attackers said nothing, he does not understand why that is what is recorded in P5.  He said it was not true all five men attacked him but he may have said that in the interview because he was not feeling well, had a head injury and problems with his vision.  He did not tell the Police officer he felt like this as he did not think he could postpone the interview just because he felt unwell. 

13.  The second prosecution witness was PC12293, PW2, the statement-taker of P5.  As a result of the discrepancies between PW1's oral evidence and his witness statement as well as his explanation the defence asked for PW2 to be tendered.  PW3 was the Urdu translator who assisted in P5. 

14.  PW2 said he called the victim by phone on 26 November 2015 and told him to come to the station on 28 November 2015.  He could not recall what time he told PW1 he was required.  He did recall his colleague drove to the victim's home and picked him up at about 2.30 to take him to the station to make a statement.  PW2 said the victim looked fine and acted normal.  PW2 said he asked the victim what happened that night through the English translator who spoke to the victim through the Urdu translator. After he heard the story he wrote it in Chinese then the English translator wrote it out in English and PW3 translated that version into Urdu.  There is a declaration at the end that states that the statement was read to the victim in Urdu and he made no corrections, alterations or additions.  PW2 could not recall if it was read to the victim.  PW2 could not recall if the victim was illiterate. 

15.  PW3 gave evidence that he did recall that particular interview and the victim after he had read P5.  He was shown photographs of the victim which jogged his memory.  PW3 was fluent in English and Urdu as well as about 98 per cent fluent in Cantonese.  He had no problem communicating with or understanding the victim's Urdu.  He could not recall the victim looking unwell or unfit at the time.  If he had told PW3 he did not feel well, PW3 would have told the Police officer, PW2.  He denied he misheard the victim and heard Ibrar instead of Bilal.  He said they sat very close to each other and the names were very different. 

16.  As far as PW3 could recall, the English version he translated was an accurate record of what the victim said happened to him that night.  That was his duty as an interpreter.  He recalled that he read the Urdu version to the victim after he had done the translation. 

17.  The defendant elected to give evidence.  He denied he attacked the victim on this particular night, he was at home at the material time with his girlfriend.  He has three brothers but none of them are in Hong Kong nor does he have any other relatives here.  His version is that the victim owed his farming family in Pakistan $21,000 that he had borrowed over two years ago.  The defendant had asked the victim to repay it.  He himself did not owe the victim any money.  He only met the victim once in Hong Kong. 

18.  Zahib, who the victim lived with, also owed him a large sum of money.  He was attacked in September 2015 when he happened to pass by the building where the victim lived with Zahib.  He was jumped and beaten by the victim and others with sticks.  There was a total of six men.  He spent two to three days in hospital and said the victim was arrested at the scene.  Everyone else disappeared before the Police came.  He too was arrested over this incident and like the victim released without charge in March 2016. He says after the September incident he had no contact with the victim and was framed by the victim for this November attack.  He assumes the victim is framing him because the victim was arrested for the September incident. 

19.  The defence do not challenge the fact the victim was attacked and wounded in November but deny the defendant was one of the attackers. 

20.  I have considered the evidence and submissions carefully.  The prosecution must prove beyond a reasonable doubt the defendant was one of the attackers that wounded the victim.  The prosecution rely on the victim's recognition of the defendant, the credibility of the victim and the motive of the defendant to attack the victim to deter him demanding the repayment of money owed to him. 

21.  After careful consideration, I find the discrepancies between the statement of the victim, P5, and his oral evidence too many to ignore.  I cannot safely rely on his evidence to find the standard required has been reached to convict the defendant.

22.  Having said that, I did not believe the defendant.  I found him dishonest, his evidence was evasive and had little credibility.  I suspect the victim's version of events is in fact the truth. The defendant owed him money and he has refused to repay it.  This had led to two physical altercations as well as threats from the defendant.  His actions are cowardly, attacking the victim with other men.  However, despite my suspicions, I cannot safely convict the defendant on the evidence before me. The defendant is acquitted of this charge.