HKSAR v. ALI AHMAD

DCCC 1000/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1000 OF 2015

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Reasons for Verdict

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1.  The defendant faced two charges in this trial. Charge 1 was wounding with intent, contrary to Section 17(a) of the Offences against the Person Ordinance, Cap 212, and Charge 2, assault occasioning actual bodily harm, contrary to Common Law and punishable under Section 39 of the same ordinance.

2.  The prosecution case was that the defendant had targeted, followed and attacked the victim of Charge 1.  He hit him from behind with a white plastic rod.  The victim then chased the defendant along Nathan Road to try and catch him.  He was bleeding from a head wound.  During the chase, recorded on CCTV, the victim of Charge 2 (PW1) saw the defendant being chased by a man, shouting “Robbery, snatching.”  The robber chased was a Southeast Asian male.  PW1 tried to intercept the defendant, but was hit on the head with the rod and collapsed in the middle of Nathan Road.  This assault is also clearly captured on CCTV.

3.  A construction site worker (PW2) working nearby saw the chase and helped others to intercept the defendant.  The defendant was agitated and threw the white rod onto the ground.  The police were then called.

4.  The police arrested the defendant, seized two white rods, a bag, many masks, gloves, cash and other belongings.

5.  On the defendant’s mobile seized, there were photographs of the victim of Charge 1 sent to his phone as well as audio messages that suggested he was following instructions to attack the male of the photographs.  The photographs of the victim of Charge 1 were sent to the defendant’s phone within half an hour of the attack of Charge 1.  Those photographs and messages are seen in Exhibits 7, 8, 9 and 11.

6.  That victim of Charge 1 required stitches to a head wound. 

7.  PW1, the victim of Charge 2, vomited after the assault, felt dizzy and had abrasions over the left face area and left knee. PW1 received hospital treatment.

8.  The defence case was that the prosecution had not proved the man on the CCTV hitting PW1 and chasing and being chased by another male was the defendant.  Identity of the attacker is the issue.

9.  Much of the physical and documentary evidence, including CCTV footage and stills taken from the footage, was admitted into evidence.  There were two sets of admitted facts, P16 and P21.  Both physical and documentary exhibits referred to in P16 were submitted into evidence before any witnesses testified.  CCTV footage of three camera angles and locations were viewed in open court before any witness testified and during PW1’s evidence.

10.  The victim of Charge 1 failed to attend court as summonsed.  There was a witness to his attack, who was a Southeast Asian male who saw another Southeast Asian male attacking PW1 with a white rod wearing a mask and gloves.  That witness was across the road at the material time.  He also failed to attend court as summonsed.

11.  I granted an adjournment for the police to locate these two witnesses after I issued a warrant for their arrest.  During that adjournment period, the police were unable to locate either man.  When the trial resumed, the prosecution offered no evidence in relation to Charge 1. Charge 1 was dismissed.

12.  I repeat, the issue in relation to Charge 2 is one of identity. 

13.  There is no dispute PW1 was assaulted by a male carrying a white rod who was being chased by another male clutching his head. The chase and assault are seen on Exhibit P12B (CCTV) from two angles.  The defence say that that attacker is not the defendant.

The evidence

14.  Prosecution rely on the CCTV footage to prove the defendant is the male who assaulted PW1.  PW1 himself gave evidence.  In the CCTV, he is clearly seen wearing long socks to his knees, with shoes, shorts or a short skirt, and wearing his long hair down.

15.  In Exhibit P6, photographs of victim’s injuries, photographs 10, 11 and 12 show PW1’s abrasions on his left cheek and knee.  The other photographs relate to Charge 1 and are ignored.

16.  PW1 was on Nathan Road at about midnight on the material evening.  He was on his way to get something to eat.  He said he saw a Chinese male chasing a Southeast Asian male and shouting, “Robbery, snatching,” at the same time.  The Southeast Asian male ran towards PW1.  PW1 tried to block his path, but that male skirted around him.  On the CCTV, you see, and PW1 says, he then decided to chase him as well.  He chases him across a pedestrian crossing of Nathan Road and on that crossing the male turns towards him and hits him with a white rod. 

17.  PW1 recalls falling to the ground and rendered unconscious for a while or a few seconds.  He woke up, got up and chased again.  He said he saw his attacker had already been stopped by some construction site workers and was struggling, acting agitated.  He was eventually pinned down by others.  PW1 wanted to approach the man pinned down, but other passers-by pulled him away.  The police came very quickly.

18.  In cross-examination, PW1 was honest when he said he was not good at recognising people and finds Southeast Asian men harder to differentiate from each other, but he was sure he saw his face clearly that night.  However, he could not now recognise him.

19.  When he saw the defendant had been apprehended and was on the ground, he was 70 to 80 per cent sure it was him who had attacked him from his appearance and his clothing.  He saw the defendant’s face, even though others held him back, from a distance of about 6 to 7 metres.

20.  PW2, the only other live witness, Mr Chan, was a 52-year-old waterworks construction site worker on duty at that time with other colleagues on Nathan Road.  He heard someone shouting “Robbery and snatching.” He heard a colleague shout, “Chase him,” so PW2 chased a running man.  He says he stopped a Pakistani man who was running and carrying a rod.  He chased him about 50 metres before catching him.  Then a male with long hair ran up and said that male had hit him.  The defendant refused to squat down to wait for the police.  The defendant took off a glove that he had been wearing and threw the rod (P17) onto the ground.  His telephone rang and PW2 heard him say in Punti that he had been arrested.  The police came very quickly and he handed over that male to the police.  There is no dispute the man he apprehended was the defendant and the defendant he handed to the police.

21.  PW2 also said after he caught the defendant and tried to subdue him he heard a man holding his bleeding head say that the defendant had snatched from him.  He also saw the male with the long hair (PW1) on the side of the melee or group say the defendant had attacked him.  The defendant did not respond to these accusations.

22.  PW2 identified PW1 from the photographs of Exhibit P6 as the long-haired male who said he had been hit by the defendant. He also recalled the defendant had a recycling bag with him at the time. 

23.  It was put to PW2 that his evidence that PW1 was not more than 3 metres from the defendant when he accused him of assault was not true.  It was suggested PW1 was 6 metres away from the defendant and did not speak to him.  PW2 denied those suggestions.

24.  The defendant elected not to give evidence or call evidence, as is his right.  The failure of the defendant to give or call evidence is no evidence of his guilt.  It proves nothing one way or the other. The consequence of doing so is to leave the prosecution case enjoying the advantage of not being undermined, contradicted or explained by any testimony from the defendant.

CCTV footage

25.  The sketch, Exhibit P14, shows the position of the CCTV cameras shown in court and exhibited.  Annexe 1 of Exhibit P13 is a summary of the CCTV footage.  It refers to times and the source, as well as including corresponding snapshots from CCTV images.

26.  Exhibit P12A is CCTV footage from the Christian Peniel Missionary Society Church, which is on the corner of Portland Street and Hamilton Street.  Exhibit P12A and photographs 1 to 13 show a male, the first male, in a patterned polo shirt with a bag across his chest walking on the street.  The CCTV footage shows behind him is a male carrying a bag.  He is seen taking a white pole out of that bag.  He is wearing a face mask and his shirt is distinctive in that the two sleeves are dark in contrast to the body of the shirt.

27.  The prosecution say the second male is the defendant.

28.  Exhibit 12B is CCTV footage from cameras from Full Win Commercial Centre, 573 of Nathan Road, and includes a northbound and southbound view.  In P12B, 47 minutes into the CCTV footage, one can clearly see the first male of P12A being chased by the second male from the southbound-facing camera.

29.  I can see the first male, in order to get away from his pursuer, running into the middle of Nathan Road.  The second male stays on the pavement and stops chasing the first male.  That second male is holding a white road.  The second male then runs away from the first male.  The first male decides to give chase and I can clearly see the second male turn to threaten the first male with the rod.  The first male stops and seems to back away.  The second male then carries on running.  The first male chases again, holding his head with one hand and pointing towards the second male with his other.  Both are running.

30.  Photographs 13 to 22 of Exhibit P13 are stills from that CCTV footage. 

31.  The other camera from the same location faces northbound and on the CCTV footage of P12B at 47 minutes and 14 seconds into that footage I can clearly see the second male I describe above being chased by the first male.  I can see PW1 step out in front of the second male.

32.  The still photograph is photograph 24 of P13.

33.  In the CCTV footage, the second male raises his white rod above his head in a threatening manner.  It is clearly the same second male who is still carrying his bag who is seen in previous footage of P12A and B.  He then runs around PW1.  PW1 can be seen then chasing and, on the pedestrian crossing of Nathan Road, the second male turns to PW1, who has almost caught up to him.  He hits PW1, who immediately falls to the ground. PW1 lies there motionless.

34.  The still photos from the CCTV footage of this scenario is seen in photographs 25 to 32 of P13.

35.  PW1 confirmed in court the CCTV footage depicts what happened to him that evening. 

36.  The second male is then seen running to the right and then suddenly changes direction and runs to the left.  He runs past PW1 lying on the road.  In the CCTV footage I can see the first male continues to chase the second male until they are no longer seen on camera. 

37.  The chase and apprehension by PW2 of the defendant, who was running and holding a rod, is not captured on CCTV.

38.  I am well aware it was the case for the prosecution that the first male I described in Exhibits P12A, B and photographs of P13 was the victim of Charge 1, but that charge was dismissed.  I do not make reference to that first male on the basis that he was a victim, but on the basis he is part of the facts surrounding Charge 2.  But for his actions and declarations of robbery and snatching, PW1 would not have chased the second male and become the victim of Charge 2.  The presence and actions of that first male led to the commission of that offence and are relevant.

Exhibits

39.  The Prosecution do not only rely on PW1, PW2 and the CCTV evidence to prove it was the defendant who attacked PW1. 

40.  Exhibit P1 are photographs admitted into evidence that depict all physical exhibits seized as well as the clothes worn by the first male and the defendant.  Prosecution relies on these items to prove the identity of the attacker.

41.  These photographs include the two poles seized, one from next to the defendant and one nearby.  In addition, a recycling bag containing four balaclavas, black cap, three pairs of gloves, was also seized and all those items photographed. 

42.  What is pertinent to the issue of identification is the clothing worn by the defendant when arrested.  Those are seen in photographs 19 and 20 of Exhibit P1.

43.  Photograph 19 shows a shirt with a light red, white and blue checked front and back, with contrasting sleeves.  Those sleeves are solid black or very dark colour.  It is a distinctive design.  A shirt of the same distinctive design can be seen worn on the second male of the CCTV footage.  It matches the shirt worn by the defendant.

44.  I have also relied on screenshots from the CCTV footage (in particular, images 7, 8, 17, 18, 19, 20, 24 and 25 of Exhibit P13). In addition, the grey recycling bag found next to the defendant when arrested looks very much like the bag carried by the second male.  The same applies to the white rod, the weapon used to hit PW1.

45.  In final submissions, the defence did not challenge the truthfulness of PW1’s evidence.  The attack on him was not disputed, nor that it was an assault occasioning actual bodily harm.  However, it is submitted his evidence does not prove beyond reasonable doubt the defendant arrested was the same man that attacked him with a white rod.

46.  It was submitted PW1’s evidence was he was 6 to 7 metres away from the defendant after his arrest and he did not speak to PW2 directly.  PW1 was only 70 to 80 per cent sure the defendant was his attacker. It was submitted there was no DNA evidence on any rod belonging to PW1.  It was submitted the second male on the CCTV footage only looked similar to the defendant and was not conclusively the same man to the necessary standard of proof.

47.  Moreover, PW1 fainted for a few seconds, so he did not see where his attacker fled to and whether he was the same man caught by PW2.  PW2 in turn did not see the defendant hit PW1 with a rod.  He only saw him running.

48.  PW2, on the contrary, said he heard PW1 say it was the defendant that hit him. 

49.  It was submitted the evidence was not good enough to prove beyond reasonable doubt it was the defendant who hit PW1 with the rod.  There is a possibility it was a different man who hit him.

My findings

50.  I am sure, and it was undisputed, PW1 was assaulted with a rod.  I am sure that hit landed on his head area, occasioning or causing the victim (PW1) actual bodily harm.  He received an injury on his face and hurt his knee when he fell to the ground as a result of the blow.

51.  I am also sure PW1 and PW2 were truthful and credible witnesses.  I find their evidence reliable and there were no material discrepancies so serious that I doubted their credibility.  Whether PW1 was 6 or 7 metres as opposed to 3 metres from the subdued defendant is not a material discrepancy. 

52.  PW1 accused the defendant of assaulting him after he was subdued, but may not specifically have been speaking to PW2. There were other people there.  The fact PW2 heard this does not mean PW1 was talking to him.  Rather, PW1 spoke within his earshot.  Either way, it is not a material discrepancy or omission.  The scene would have been chaotic.  The defendant was agitated and PW1 had been injured.  There was also in addition another man bleeding and making accusations against the defendant.  Moreover, the police came very quickly.

53.  It is true PW1 said he was 70 to 80 per cent sure the defendant was his attacker and that he had trouble distinguishing between Southeast Asian males, but his identification is not the only incriminating evidence.

54.  On its own, it may not be enough to prove identity, but when I take into account the CCTV evidence, the physical evidence, the defendant’s distinctive shirt and PW2’s evidence he chased the defendant who was being chased by a male shouting, “Robbery”, just as PW1 had done only moments before, I am sure when considered collectively, it is all enough to prove beyond reasonable doubt the defendant caught was the male that hit PW1.  I am sure he did it with the rod he was caught carrying.

55.  Within a very short period of time, I am sure the defendant was chasing a male who in turn chased the defendant and had shouted for help.  PW1 responded to that call for help and tried to stop the defendant.  He was attacked for his brave effort and left unconscious in the middle of Nathan Road.

56.  I am sure when PW1 regained consciousness he saw the defendant had been stopped by construction site workers.

57.  Exhibit P14, as sketched, shows the streets, the camera location where the defendant and the other male walked and ran past, as well as the construction site where the workers had been working.  It also shows the defendant was arrested next to that site at 594 to 596 Nathan Road, as agreed in the admitted facts.  It is not far from the junction of Dundas Street and Nathan Road, where PW1 had tried to stop the defendant.

58.  I am sure PW2 saw the defendant running away from someone and carrying a white rod.  He did not see the defendant hit PW1, but he must have seen the defendant very soon after.  He heard someone shouting “Robbery and snatching”, as had PW1.

59.  I am sure the man, the defendant, stopped by PW2 is the same man seen running towards PW1 and hitting PW1, as shown on the CCTV footage.  It all happened in a very short period of time and he is wearing the same distinctive shirt as PW1’s attacker.  He was also carrying a similar bag; the same weapon, a rod; and is a Southeast Asian male.

60.  I am sure it is not someone else other than the attacker.  It was not someone who looked similar to the attacker who also happened to be running in that area.

61.  The Prosecution is able to prove beyond reasonable doubt the defendant assaulted PW1 with the rod and caused him actual bodily harm when PW1 went to help someone in trouble.

62.  The defendant is convicted of Charge 2.