HKSAR v. CHHEENA MUHAMMAD BINIAMEEN AND ANOTHER

DCCC 839/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 839 OF 2013

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Reasons for Verdict

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1. There are two defendants in this trial. Both are jointly charged with wounding, contrary to section 17(a) of the Offence against the Persons Ordinance, Cap 212, and the 1st defendant faces a 2nd charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210. Both pleaded not guilty.

The background

2. The victim of both charges was a Mr Mahmood Sajid, PW1.  The prosecution case was that just before 5.30 am on 9 May 2013, the defendants and others jointly attacked and wounded PW1 with golf clubs and a hockey stick.  The 1st defendant stole PW1’s mobile phone.  The attack took place just inside the building where PW1 lived in Portland Street as he was returning home.  A call to the police was made at 5.30 am to report the crime. Meanwhile, a very short time after the attack at about 5.30 am and one street away, a group of patrolling police officers stopped the 1st and 2nd defendant who were running towards them.  The 1st defendant held a golf club in one hand and PW1’s mobile phone in the other.  When asked what happened and why they were running out of Hong Lok Street, both referred to a fight nearby; the 1st defendant named Portland Street.  Those officers then heard on their beat radios of a report of a wounding case on Portland Street.

3. The prosecution relies on the admissions and the defendants’ close proximity to each other and the scene of attack.  They also rely on the subsequent positive identification of both defendants as his attackers by the victim, PW1, in a formal identification parade held the next day.  The prosecution also relies on forensic evidence.  There is forensic evidence of the victim’s blood on the following items:

(1) the golf club found in the 1st defendant’s hand;

(2) a vest worn by the 1st defendant;

(3) black shoes worn by the 1st defendant;

(4) white shoes worn by the 2nd defendant; and

(5) a hockey stick found on the ground in the street the defendants were seen running out from by the police before they were intercepted. (Forensic report is P43)

There is also evidence of the actual attack on PW1 captured by CCTV in the building. This was not produced by the prosecution but the defence.

4. The defendants were arrested at the scene but not cautioned until there was an interpreter present at the police station, and no admissions were made under caution in subsequent record of interviews.  Both defendants exercised their right to silence.

5. The defence says the defendants were not present at the scene of the attack; they were individual innocent bystanders stopped by the police and falsely accused.  They were not even together at that time.  The 1st defendant did not have possession of a golf club in one hand and PW1’s mobile phone in the other.  The defence say neither defendant admitted just having been involved in a fight.  If they did make such an admission, it was not made voluntarily.  They were framed by the police.  The identification parade was unfair and should have been inadmissible.  If it is admissible evidence, then no weight should be attached to it, and PW1’s positive identification of the defendants ignored.  As for all the forensic evidence, it was all unreliable as there was a real danger of cross-contamination of blood; PW1’s blood was not transferred to the five items examined during the attack but later by careless or bloody-minded police officers.

6. Where the 2nd defendant is concerned, it was alternatively argued that if the court finds he is the man holding the hockey stick during the course of the attack, there is not enough evidence to convict him of wounding PW1 on the basis of joint enterprise.  Neither defendant elected to give evidence in the special or the general issue during trial.  No defence witnesses were called.

The issues

7. The issues are as follows: the credibility of the victim, the credibility of the police officers involved, and the weight to be attached to the forensic and identification evidence.

8. There was an alternative procedure to deal with the admissibility of the verbal utterances made by the defendants when stopped and questioned; if they did indeed make them.  The admissibility of the identification parade was also challenged.  I ruled after the alternative procedure the admissions admissible, if uttered, with some qualification where the 1st defendant was concerned, and the identification parade admissible.

9. The prosecution was put to strict proof by the 1st defendant.  All exhibit officers and police officers involved in the chain of evidence were called.  As it was both defendants’ case the forensic evidence linking the defendants to the attack on PW1 was tainted and contaminated by officers investigating the crime, it was necessary to call all these witnesses.  As it was suggested, the defendants were innocent bystanders framed for these offences, it was therefore necessary to call all these witnesses. There were a total of 22 prosecution witnesses.

10. An enormous number of issues and amount of ground was covered by the cross-examination of witnesses during the course of the trial.  It is simply not practical for me in these reasons to attempt to cover every aspect of events covered by or put to witnesses; to identify individually and discuss every discrepancy, real or perceived; to deal with every argument, submission made and comment passed by counsel for all parties. However, I have borne in mind all of the evidence of all of the witnesses. This includes the strength, the weaknesses, the contradictions, the discrepancies and the support that is found amongst their evidence for one another.  I have taken into account points made about, for and against the prosecution and the defendants.  That I do not mention a particular piece of evidence, submission or allegation put does not mean that I have not considered it or factored it into my decision making.

The prosecution case

11. PW1 gave evidence of the attack on 9 May at about 5.30 am.  There was a reason behind the attack and it was to scare him into not giving evidence against a male called Steven arrested for wounding others in an attack in April 2013 in Tsim Sha Tsui witnessed by PW1.  PW1 gave evidence of returning home at about 5 am after watching a live football game on television with friends.  A friend gave him a lift home to Portland Street.  As he walked to his building on that street, he received two calls from a private number not displayed and was threatened.  One was a short call and the second one immediately after was longer.  He was told not to be a witness in the Tsim Sha Tsui case or else he and his family would be in danger.  He recognised the voice speaking both Urdu and Punjabi.

12. He then approached his building and saw four men in front of him.  One of them spoke in Punjabi and Cantonese.  That man said out loud that PW1 was the one who is a witness and that they should beat him up.  PW1 recalled one of them was carrying a chopper or knife and others were carrying golf clubs.  PW1 then said he entered his building, trying to make a call on his mobile phone and was chased upstairs by two men.  He said they were either Pakistani or Indian.  The first held a golf club and started beating him with it.  The male behind held a hockey stick.  He protected himself with his hands to ward off the many consecutive blows and called out for help.  His wife came out of their flat, and the men fled back downstairs.  This was not before he sustained an injury to his hand as a result of being hit by a golf club several times in the same place.  His wife got him a towel as his hand was bleeding profusely.  The police were called and the report recorded at 5.31 am.

13. He was then later sent to hospital by the police and had 15 stitches in his hand.  He said he had a small wound or swelling on his head but it was not shaved or stitched.  He lost his mobile phone in the course of the attack because he dropped it on the staircase as he was chased. He did not see who picked it up.

14. The attack, he said, lasted 3 to 4 minutes.  He agreed under cross-examination by counsel for the 2nd defendant that the second male held the hockey stick up but did not hit him with the stick during the attack.  He agreed he did not see him clearly as he was behind the first male.  He only caught glimpses of him.  He said he saw the first male with the golf club clearly and he had a pony tail a few inches long.

15. He said the next day he was invited by the police to go to the police station to attend a single identification parade, and he picked out the 1st defendant as the first male who chased him upstairs beating him with a golf club and the second male as the male behind the 1st defendant carrying a hockey stick.

16. At the parade the defendants and all the actors wore shower caps as the 1st defendant had a pony tail and no one else in the line-up had long hair.  The 2nd defendant had changed shirts with one of the actors before the parade began.  All this is seen in the tape of the procedure, Exhibit P16.

CCTV evidence of the attack on PW1

17. The exhibits D3(1-3) are CCTV video recordings of the attack on PW1 from several cameras and P45, the admitted facts, relating to the footage.  It is agreed the times seen on the tape footage are not to be relied upon as the accuracy of the times displayed is doubtful.  Only the content of the tapes are in evidence, the times are only referred to below as a guide to the material footage.  There is footage from four cameras, hence four video clips referred to in P45.

18. The video footage was produced by the defence during cross-examination, not the prosecution.  The purpose was to discredit PW1’s evidence.  Nonetheless, the footage proves PW1 was attacked by three men chasing him in his building and up some stairs, not two as he described in oral evidence.  The first two men were brandishing golf clubs and the third man a hockey stick.

19. The evidence of the video clips is important and irrefutable.  I take into account the following.  PW1 walks into the entrance of his building holding his mobile phone to his left ear.  He is holding it in his left hand.  Before he reaches the top of the first flight of stairs he turns to look towards the entrance and starts to run up the stairs.  Three men entered the building running, one after the other, holding long objects.  PW1 is chased upstairs.  (See the clip labelled 1-01-R-130509043000 at a time shown as 4:58:57 on the screen and another clip 25-03-R-130509043000 at a time shown as 4:58:53 on the screen).  These two video clips show the same staircase from two angles.  What I can see is the first male is wildly swinging a golf club at PW1  and wearing white shoes, the second male is also holding a golf club, has a pony tail and is wearing black or dark shoes, the last  male is carrying a hockey stick and wearing white shoes with black or dark stripes on the side.

20. In the clip 25-03-R-130509043000, from the time shown as 4:59:01, one can count five strikes by the first male with the golf club aimed with great force at PW1.  PW1 tries to ward off blows with his hands.  At 4:59:06 I can see the second male and his pony tail is clearly visible.

21. In the third clip 37-04-R-13050943000, footage from a camera on the next floor at 4:59:03 shows PW1 still running from the men and the three men following him upstairs.  One can see all three men again; the first male is still swinging at PW1 with a golf club with force.  At the time shown on the screen as 4:59:07, one can see him swing twice in succession.  At 4:59:06 on the screen, I can see PW1 drop something from his left hand that bounces on the stairs.  He had just been holding his mobile in his left hand. The item he drops has a reflective surface.  I can also see the second male with the pony tail bend down and pick something up on the stairs at 4:59:10 with his left hand.  The item has a reflective surface and can be seen in his hand just after he bent down.  The second male is behind the first male, and at 04:59:11 one can again see clearly he had a pony tail at the back of his head. The three men then retreat downstairs.  And at 04:59:18 the second male’s left hand touches the banister of the stairs before he retreats, and in his hand one can see a small dark object.  As the second male runs downstairs, his pony tail can be seen obviously bobbing up and down.

22. There is footage of PW1 after the attackers flee.  On the video clip labelled 26-03-R-130509050000, he can be seen coming back downstairs at 05:03:00 and peering around the stairs looking towards the entrance of his building.  He said in oral evidence he was waiting for the police.  He is holding his injured hand in a towel and his shirt is splattered with blood.  His wife can be seen coming down and standing behind him.  At 05:03:50 she can be seen touching his hair and head.  She presses down and looks at her hand as if to see if anything is there.  The police obviously arrive at the scene, so PW1 goes downstairs to meet them.  His wife waits up one flight of stairs.  His son can be seen coming down minutes later and dealing with the police as well as his father, PW1.

23. The faces of the three men are not clear in the video footage, but I can make out the weapons they are holding, whether their shoes are black or dark, white, or white with black stripes and that the second male chasing PW1 upstairs had a pony tail.  This is not disputed by defence counsel.

24. These observations are relevant for the prosecution insofar as the 1st defendant had black shoes confiscated and the 2nd defendant had white shoes confiscated.  The 1st defendant had long hair and put his hair up in a pony tail before the identification parade.  This is clearly demonstrated by him in the identification parade video recording, P16. The prosecution case is that the 1st defendant stole PW1’s mobile he said he dropped during the attack.  From the footage I can see a male with a pony tail bend down as if picking something up from the stairs just where PW1 dropped the item from his left hand.

PW1’s credibility

25. Defence counsel both submit the evidence of PW1 is unreliable and not credible.  First, he is not reliable because in the District Court trial of Stephen responsible for the wounding case in the Tsim Sha Tsui attack in April 2013, PW1 did not come up to proof and was turned hostile.  I allowed cross-examination on this matter, and the transcript of the case DCCC729/2013 is Exhibit D1.  The trial was in December 2013.  The transcript is confined to PW1’s evidence only.  At page 25 he is turned hostile.  It relates to his identification of Stephen, or rather his lack of certainty. At page 33 the prosecutor points out to PW1 that he was threatened over the phone and beaten up on 9 May 2013.  He confirms with PW1 that he was told not to give evidence against Stephen or else he and his family would be in danger. The prosecutor suggests this is why he was reluctant to incriminate Stephen fully.

26. I note from the case file, and all parties before me confirm this is accurate, there were four victims of four charges and three eye-witnesses to give evidence against a Stephen.  PW1 in this case was the last of seven witnesses to be called.  All seven were Southeast Asian males.  Of the seven witnesses, four were turned hostile, one could not be served the witness summons and the remaining two told the prosecution they had forgotten everything before they were even called into the witness-box.  That trial collapsed and the defendant acquitted.

27. Defence counsel submit the fact PW1 was turned hostile in that case affects his credibility in this trial.  Mr Tibbo submits he should not be regarded as “a witness of truth”.

28. Every aspect of PW1’s evidence was challenged, even minute aspects.  Dealing with the more important aspects, he agrees once he watched the video clips of his building during cross-examination of the attack, he was wrong to describe two men when there were three.  He says he was running for his life at that time.  He says after viewing the video footage, the 1st defendant was not the first male of the three who attacked him but the second male.  He agrees his time estimate as to the length of the attack is wrong and the men are not seen going up in the video footage all the way to his home.

29. Mr Tibbo suggested to PW1 there was no blood seen on the video clips all over the stairs as seen in the photo albums, P20 and 21.  It was put to him that he was not hit by a golf club at all and the video clips proved the club did not make contact with his body.  It was put to him - I quote - “you kept a healthy distance from the clubs”.  It was also put to him the injury was self-inflicted with a knife; he cut himself.  Rather bizarrely, it was also suggested the blood on the stairs seen in the two photo albums was not human blood; not PW1’s blood from the injury he sustained.  It was not put to PW1 what type of blood he had poured on the stairs if it was not his own blood spilled.

30. It was also put to PW1 by Mr Tibbo that he did not receive any threats by phone before he was attacked, nor did a man threaten him in a group of four outside his building.  When asked by me if those were his instructions, Mr Tibbo said they were and they would have evidence produced to that effect.  There was no evidence produced to that effect.  He also put to PW1 that he did not receive two “no caller display” phone calls before he was attacked.  PW1’s response was to state that he had no reason to lie about this.  The phone records, P44, show only the following at the relevant times. At 5:05:20 am PW1 received a call from a number 55306132 which lasted six seconds.  At 5:06:28, within a minute, he received a second call from the same number; this time the call lasts 30 seconds.  At 5:29:13 am PW1’s phone receives a call for 84 seconds from 67427076.  This would take the call to 5:30:37.  We know the attack was reported to the police console at 5.31 and he seemed to be on the phone when attacked as seen in the video clip.  At 5:36:28 am PW1’s phone (by then he had lost it) receives a call made from one of the three of the 1st defendant’s mobile phones, Exhibit P33-35.  This is evidence adduced by Mr Tibbo.  I note that when one looks at the 1st defendant’s mobile the time of the call to PW1’s phone is recorded as 5:49 am.  This exhibit was turned on during the course of the trial and had been in police custody since 9 May 2013.  I will refer to this call to PW1’s phone when I refer to the 1st defendant’s arresting officer’s evidence.

31. When these anomalies were put to PW1, he could not explain why the number is displayed in the telephone record.  He says this was when he was threatened.  He explained why there is a gap in time between these calls and his attack saying he stopped to buy cigarettes at a newspaper shop that was open en route to his home.  He agrees he did not tell the police this and it is not recorded in any statement.  He bought cigarettes there everyday and did not think it was an important fact to tell the police.  The material fact is there is a record of two calls in quick succession, one short and one longer.

32. His oral evidence was extensively compared to his witness statement.  PW1 said on many occasions during his evidence, the statement taker asked for a short version of events; he was not asked to clarify or expand on anything and he was in a lot of pain having just had stitches in hand when he was asked to give statements.  The statements were given with the assistance of an interpreter.  He denied fabricating his statements to the police.

33. A photo album of the staircase leading to his flat was shown to him, Exhibit D2(1-19).  He was asked about steps and staircases, specifically where the attackers chased him to.  He said he could not recall exactly as he was scared, panicked and injured at the time.  During his evidence he said he was giving estimates of distances, locations and timing surrounding the details of the attack.  The times he gave were approximate times only.  These photographs were shown to him before he was asked to watch the video footage.

34. It was put to him by Mr Tibbo he only identified the 1st defendant in the identification parade because he and the 2nd defendant were the youngest in the line-up.  That was denied.  It was put to him that he described the attacker with a pony tail as having brown skin, but the 1st defendant had olive coloured, light brown skin.  PW1 denied that this was a discrepancy.  It was put to him that he had known the 1st defendant for four to five years and frequented a billiard hall in Prat Avenue where he had met the 1st defendant.  PW1 disagreed.

35. When cross-examined by Mr Tibbo, PW1 was sure he saw the 1st defendant clearly as an attacker, but he only got a glimpse of the male with the hockey stick.  When he picked him out of the identification parade as the 2nd defendant, it was - I quote - “an approximation”.  He denied he falsely identified the 1st defendant and framed him by fabricating his evidence.

36. When cross-examined by Mrs Panesar for the 2nd defendant, it was put to him he did not actually see the face of the man holding the hockey stick.  PW1 relied, “You can say so.”  He went on to say he identified him at the identification parade because he looked like that person, but he was not 100 per cent sure.

37. In re-examination he was asked if he recognised anyone he identified in the identification parade in the video footage he had been shown in court.  He said he clearly recognised the male in the video footage with a pony tail as the second attacker and he was the 1st defendant in court.  He said he was not 100 per cent sure, but the third male holding the hockey stick looked something like the 2nd defendant.

The arresting officers of the 1st and 2nd defendant

38. PW2, PC 10535, was the arresting officer of the 1st defendant.  He gave evidence of being on patrol in Mong Kok Road near the junction of Hong Lok Street with five other officers.  At the junction, he saw the 1st and 2nd defendant jog or run towards them up and out of Hong Lok Street.  They were about 10 to 15 feet away from him.  Exhibit P18 is a sketch of those roads and its proximity to Portland Street and  Argyle Street.  He stopped the two males first.  He saw the 1st defendant had a few dots of blood on his face, holding a golf club in one hand with the head of the club pointing downwards towards the ground and a mobile phone in the other hand.  The 1st defendant looked nervous.  He immediately said in Punti to the 1st defendant, “What happened?”  He replied after a pause of a few seconds - I quote - “Just finished fighting.”  So PW2 asked him, “Where?”  He replied, but again after a few seconds - I quote - “In Portland Street.”  PW2 then heard over his beat radio there was a report of a wounding case in Portland Street and Argyle Street.  This was approximately 5.35 to 5.40 am.  When he heard this, he seized the golf club from the 1st defendant and passed it to the exhibits officer, PC 10335.  He noticed there was a spot of blood on the back of the head of the club and two to three spots of blood on the phone in the 1st defendant’s hand.

39. After he heard the report and seized the club, he did go on to ask the 1st defendant four more questions.  The 1st defendant did answer them.  He told PW2 that he got the mobile he was holding from the person he beat and that he had used the club to beat that person.  He also said the blood on the club was from the person beaten and the blood on his face was from when he had a fight.

40. When the report was made over the beat radio, PW5, Sergeant 53473, left the officers and went to Portland Street near Argyle Street immediately.  Meanwhile, after the questions were asked by PW2, he asked the 1st defendant for his identity card and was handed a copy of a Form 8 issued by the Immigration Department.

41. The sergeant returned and told the officers someone had been beaten up and threatened; he had been told not to attend court.  That victim also told the sergeant he had lost his phone in the attack and gave him his mobile number.  The sergeant made a record of it.  PW2, suspecting the 1st defendant had the victim’s phone, called the victim’s number.  The phone that the 1st defendant had held in his hand rang.  PW2 said he did this to confirm and prove the 1st defendant was in possession of the victim’s phone.  He said at first he used his own mobile to call the number. He was shown in cross-examination one of the three phones belonging to the 1st defendant and its record showing a call was made to the victim’s number at 5.49 am.  It was put to him he used the 1st defendant’s mobile to call the victim’s number, not his own.  He agreed he may have been mistaken; he was not sure now whose phone he used to call the victim’s mobile number.  At that time PW2 had not yet seized the 1st defendant’s three phones as exhibits.

42. At 6.05 am PW2 arrested the 1st defendant for three offences, robbery, wounding and perverting the course of justice.  He did not caution him at the scene.  They returned to Mong Kok Police Station at 6.25 am.  He searched the body of the 1st defendant and found nothing else suspicious.  He denied he stripped the 1st defendant naked to search him.

43. He handed the 1st defendant to the duty officer of the report room after this search but signed him out at 11.01 am when the interpreter arrived.  Then he served a copy of the POL 153, Notice to Persons in Custody, that is in Urdu with the help of the interpreter.  The 1st defendant signed it, Exhibit P24.  It was not challenged.  After this was completed, he took three consecutive records of interviews from the 1st defendant; one for each charge for which he was arrested.  After the caution which came after the preamble, the 1st defendant replied that he had nothing to say and maintained his right to silence.  The interviews concluded after this; they are P37, 38 and 39.  The 1st defendant made no admissions at the station or indeed after his arrest.

44. It was put to PW2 by Mr Tibbo that he was not the officer who stopped the two defendants, but it was in fact the sergeant. The two men were walking along Hong Lok Street when they were stopped.  The 1st defendant was not carrying a golf club in one hand and PW1’s mobile in the other.  He did not have blood on his face, nor did he speak in Punti.  He cannot speak Punti.  PW2 was framing the 1st defendant, an innocent bystander. The mobile was never in the 1st defendant’s possession but another officer had it and showed it to the 1st defendant twice, once when it was ringing.  The 1st defendant denied all knowledge of it.  PW2 denied these allegations.

45. It was put to PW2 that as soon as he saw the 1st defendant approach him looking nervous and carrying a golf club he should have cautioned him before he asked any questions.  It was put to him at first sight of the 1st defendant he had reasonable grounds to believe the 1st defendant had been involved in a crime.  PW2 said he was aware of this rule but disagreed he should have first cautioned him without asking any more questions after the first answer.  He did agree he was suspicious of the 1st defendant and with each answer he gave, he was more of the view he had committed an offence.

46. He was asked why he did not take samples of the blood spots on the 1st defendant’s face or the victim’s phone.  He said there was no reason it was not done.  Much is made of this in submissions; omissions by many officers to take samples and photographs of the defendants’ faces, hands and exhibits seized.  The fact the police did not do everything possible or omitted to collect and have analysed every bit of evidence is neither here nor there.  It is not to the advantage of the prosecution nor to the detriment of the defendants.  He was questioned why he did not record down in his notebook or witness statement such details like asking the 1st defendant what was his mother tongue, whether he cuffed him or not after his arrest, how he tried to find an interpreter at the police station and what he did all morning whilst the defendant was under the control of the duty officer.

47. He was questioned extensively on mistakes he made in referring to the black phone he said the 1st defendant held as a silver phone in the preamble of the records of interviews and a black phone in his own statements.  He agreed there is a discrepancy and it was a mistake.  He was sure the phone in the defendant’s hand when he stopped him was black and the victim’s.  He was accused of fabricating his notebook entries and when he made entries in his notebook which he denied.

The 2nd defendant

48. PW3, PC 10263, was the first officer to come into contact with the 2nd defendant.  He saw both defendants together run out of Hong Lok Street towards Mong Kok Road.  And at the time, about 5.30 am, he was on patrol with a group of officers and they were at or about the junction of these two roads.  Two men were moving quickly but not at a full run.  He and PW2 went to intercept a man each at about the same time.  He noticed the 2nd defendant looked nervous and very soon after noticed he had some blood specks on his hands.  He took the 2nd defendant to one side away from the 1st defendant and spoke to him in simple English.  He asked him why he was running out of Hong Lok Street, and the 2nd defendant said a fight.  PW3 asked where, and the 2nd defendant did not reply but pointed down Hong Lok Street.  PW3 asked who fought and where are the other people, the 2nd defendant did not answer him.  He asked where the blood came from, the 2nd defendant did not answer him.  Then PW3 heard the report over his beat radio of an assault and injury case in Portland Street and Argyle Street.  The sergeant, PW5, then left them and went to Portland Street.  PW3 searched the 2nd defendant and found a face mask in his pocket and asked him what that was for to which he answered for a cough.  He also asked him if he knew the 1st defendant and he nodded. They then waited for the sergeant to return.

49. After the sergeant returned and told them what he had discovered at the scene of the assault, PW3 arrested the 2nd defendant for robbery, wounding and perverting the course of justice.  He did not caution him at the scene but he did handcuff him.  They then left the scene in a large police vehicle, a 22-seater, arriving at Mong Kok Police Station at 6.23 am. PW3 searched the 2nd defendant in the station and found nothing suspicious.  He did not strip search the 2nd defendant as was put to him in cross-examination.

50. At 1.43 pm PW3 served a POL 153 on the 2nd defendant as an interpreter was available.  It was read to him but he refused to sign it.  The sergeant was called in and signed the POL 153 to prove it had been read to the 2nd defendant but he refused to sign it.  It is Exhibit P41. He refused to sign because he said he wanted to call his friends as that was his right.  The officer in charge of the case had already decided the defendants were not allowed to contact persons other than lawyers because there were obviously wanted persons at large.  The 2nd defendant was told of this and that is why he refused to sign POL 153.  PW3 asked him if he would like to see a list of lawyers and he refused the list.  He only wanted to call a friend. He did not specify he wanted to call a friend to arrange a lawyer as was put to PW3 in cross-examination.

51. After the POL 153 was dealt with, PW3 conducted three consecutive records of interviews with the 2nd defendant.  After the preamble of the first interview, the 2nd defendant said he understood it but had nothing to do with the case and that he did not want to say anything. After the caution of the second and third interview, he said he did not know the males, PW1 or the 1st defendant, he had no connection to the case and wanted to remain silent.  He made no admissions after he was cautioned at the police station.

52. PW3 did deal with the 2nd defendant again later that day when at 6.38 pm, he witnessed the exhibits officer, PC 10335, seize the 2nd defendant’s white sports shoes as exhibits.  They were seized because he saw a spot of blood on them.  PW3 did not see it earlier but he had not examined the 2nd defendant’s shoes earlier.  It was put to him by Mrs Panesar for the 2nd defendant that because of the way PW3 handled the golf club at the scene of arrest, it is possible a blood droplet got onto the 2nd defendant’s shoes.  PW3 disagreed and said he had never handled the golf club at any time. He denied the blood got onto the 2nd defendant’s shoes in the police vehicle or in the search room of the station.

53. It was put to him that the 2nd defendant was not with the 1st defendant on Hong Lok Street, he did not say that there was a fight nor did he point down towards Hong Lok Street to indicate where the fight was, he did not have any blood spots on his hand nor say his mask was for a cough; in fact he did not speak any English.

54. It was put to PW3 that as soon as he saw the defendants approach them at speed, looking nervous and one carrying a golf club, he should have cautioned the 2nd defendant before he asked any questions.  It was put to him at the first sight of the 2nd defendant he had reasonable grounds to believe the 2nd defendant had been involved in a crime. PW3 disagreed he should have first cautioned him without asking any questions. He said he needed to investigate first and at that point was unaware there had been any crime committed.

55. He was asked why he did not take samples of the blood from the defendant’s hand or bag his hands, he said he told the sergeant about what he saw as well as the duty officer at the station.  He did not have authority to do it.  He did not know if anything was done about it later.

PW5 - Sergeant 53473

56. This officer gave evidence that he too saw the two defendants running towards them and out of Hong Lok Street.  Both men were about 10 to 15 feet apart.  Both were stopped by his officers after he shouted at the men to stop.  He saw blood on the 1st defendant’s face and him holding a golf club and a mobile phone.  He later saw some specks of blood on this phone.  He also saw the 2nd defendant looking scared and that he had blood spots on his hands.

57. After he heard the beat radio report of the assault on Portland Street, he went there himself.  He saw PW1 and his injury. He heard what he had to say which included someone of the gang held a knife and knew he had lost his mobile.  He asked PW1 for his phone number as he suspected the phone he saw the 1st defendant carrying may belong to the victim.  He knew he could prove it.  He went back and told PW2 who rang the number.  He heard the victim’s phone ring and it was the phone PW2 had taken from the 1st defendant.  His suspicions were accurate.  He then told his officers to arrest both defendants.

58. The sergeant went to Hong Lok Street on foot to look for exhibits and heard from another officer a hockey stick had been found.  He was shown the stick by PW7 and the position in which it had been found.  He saw a bit of blood on it.  He left PW8 in charge of guarding the stick and the scene.  He then went back to the police station with the defendants and other officers.

59. He was accused of shouting at the 1st defendant aggressively at the scene.  He was accused of possessing the victim’s phone somehow and showing it to the 1st defendant.  He showed it to him ringing. The 1st defendant denied all knowledge of it to him.  He was trying to scare the 1st defendant into admitting he possessed this mobile phone.  PW5 said he had never touched this phone at any time.

60. It was suggested to him that the 1st defendant’s shoes were contaminated in the police vehicle on the way to the station either by a bloodied exhibit or a police officer who had been to the scene and had blood on their persons or shoes.  It was denied this was the case and he observed the bus was not crowded at all.

61. It was suggested at the station he shouted aggressively at the 1st defendant and scared him.  The 1st defendant questioned him as to why he had been arrested and denied any involvement in a fight.  PW5 accused him of wounding and said if he did not admit possession of the mobile, he would be charged with robbery.  He also roughly manhandled the 1st defendant, scaring him further.  He then humiliated the 1st defendant by strip searching him.  It was all denied.  It was also suggested he did not seize the shoes and vest of the 1st defendant with PW4, the exhibits officer, but it was not suggested who did.

62. It was suggested it was he himself that walked through blood at the scene and contaminated exhibits with this blood.  He denied this and said any fresh police graduate would know not to step in blood at a crime scene. 

The exhibits officers

63. There were several police officers who dealt with exhibits in this case.  All were called to give evidence as their evidence could not be agreed.  There were allegations of fabrication, gross incompetence, ignorance and cross- contamination of exhibits with blood on them.

64. PW4 was on patrol with PW2, 3 and 5 and watched with the other police officers as the defendants jogged or ran towards them out of Hong Lok Street at about 5.30.  He also saw the 1st defendant holding a golf club.  He saw, when they were stopped, drops of blood on the 1st defendant’s face and later saw drops of blood on the 2nd defendant’s hands.  He also saw when he was handed the club seized by PW2 it had drops of blood on the head of the club.  He did not put it down or let it touch any surface until he got back to Mong Kok Station where he bagged it, Exhibit P1.  He also heard the report of a wounding case over the beat radio and watched the sergeant, PW5, and another officer go to Portland Street.  When the sergeant, he told PW4 he would be the exhibits officer.  PW4 put on gloves to collect exhibits and took the phone the 1st defendant had held in one hand and noticed it had drops of blood on it, Exhibit P2.  He also seized the face mask he was given by PW3, seized from the 2nd defendant.

65. At the station he put all exhibits in exhibit bags and handed them all over to the duty officer at 2.29 pm.  At 1503 pm at the station, he seized from the 1st defendant his vest which had blood on it and his shoes, P3 and P4.  At 1837 pm, he seized the 2nd defendant’s shoes, Exhibit P5.  When he did that, he saw some blood on them.  Items seized were properly handed to the exhibits room for safekeeping.

66. It was put to him that the way in which he dealt with the exhibits and carried them back to the station meant there was a likelihood of cross-contamination.  It was also put to him that he seized the bracelet, socks and watch of the 1st defendant.  The same allegation was put to PW2 that he seized those items.  Both witnesses denied this.  Mrs Panesar put to him he splashed blood that was on the golf club onto the shoes of the 2nd defendant when he was near the man.  This was also denied. 

67. PW11 was an exhibits officer who seized the victim’s clothes later on in the day on 9 May.  He was required to give evidence but not cross-examined. 

68. PW12 was also an exhibits officer.  He got a call to deal with the hockey stick on Hong Lok Street and arrived there to see it guarded by a police officer and covered with a cardboard box.  He dealt with it, had it photographed, then wrapped it in plastic bags and placed it in his car.  PW11 gave him bags of clothes belonging to the victim he had just seized.  He then went to the scene of the attack and seized a bloodied towel belonging to PW1 from the staircase.  He also took three samples of blood from different stairs and bottled them.

69. He took all the exhibits back to Mong Kok Station, packed them all and photographed them.  He was accused of negligence and ignorance.  The way he dealt with the exhibits meant there was cross-contamination and the forensic results tainted.  He denied all the allegations put to him.  He said he dealt with them all separately, individually and they did not come in contact with each other.  He did not deal with them in the same place.  It was common sense and part of his training not to let exhibits touch each other or the same surfaces.

70. It was put by Mr Tibbo he should have worn shoe covers at the scene and on the stairs where there was blood.  As a result of this failure, he could have transferred blood from the scene elsewhere.  PW12 said he could have worn shoe covers but it was not a murder trial and the victim lived to identify any culprits if caught.  He said it was a balancing act and concerned manpower.  He was sure he did not step in blood.  Mrs Panesar for the 2nd defendant put to him that when he went to Portland Street, he got blood on his shoes and then he later wiped it on the hockey stick.  At the station when dealing with the exhibits, he ignored all the cross-contamination rules and practices.  All was denied by this witness.

71. PW13 was in charge of taking the exhibits from the Mong Kok Station exhibits room to the Tsim Sha Tsui Police Station.  He did this on the evening of 9 May 2013.  He also escorted the 1st defendant there. At Tsim Sha Tsui Police Station, he seized the mobiles of both defendants.  On 10 May he took two buccal swabs from PW1 with his consent.  He also took them and all the other exhibits to the government chemists’ office for forensic examination on the same day.  He said that was all he did in relation to this case and the defendants.

72. He was however accused by Mr Tibbo of escorting the 1st defendant from the report room to the identification parade room in a 15-minute window and on the way there ignored the 1st defendant’s pleas for a lawyer. He told the 1st defendant it was too late for a lawyer now; he could arrange this later.  PW13 was puzzled by these allegations as he did not participate in the identification parade procedure nor see the defendants at this time.

The hockey stick

73. PW6 is a street sweeper who was working on 9 May 2013 at about 5.30 am.  He said at about 6 am on Hong Lok Street he saw a hockey stick on the ground on the road next to a car.  He thought it was broken wood, picked it up and put it on his cleaning cart.  He confirmed it was on the ground next to the black car of photographs in Exhibit P23.  He then saw some police officers who looked like they were searching for something so he asked. He then showed an officer where he found it and handed it to that officer.  It was put back on the ground.

74. PW7, PC 10251, was instructed to sweep the area including Hong Lok Street for exhibits after the police tended to PW1 and heard details of the attack.  He saw PW6’s cleaning cart and the hockey stick on it.  The head of the stick had a little bit of blood on it.  He asked PW6 to show him where he had found it exactly and they put it back in its original position on the road.  PW7 then informed his superiors of the find.  He said the blood looked wet.  It was put to him someone planted blood on the stick and he disagreed.

75. As the prosecution were put to strict proof by the 1st defendant, there were three other officers called and gave evidence. They gave evidence they took it in turns to guard the hockey stick on the ground during the course of the morning until PW12 came as an exhibits officer to deal with it.  They were PW8, PW9 and PW10.  PW12 was the exhibits officer who dealt with the hockey stick and seized it.  The connection of the hockey stick to this case is the forensic evidence.  The blood found on the head of the stick was determined to be the blood of the victim, PW1.  There is also the evidence of the victim and the CCTV saying and showing one of the attackers carried a hockey stick.

The doctor

76. PW1 was treated at Kwong Wah Accident and Emergency Ward by PW17.  This doctor wrote a report, P19.  He recalls examining PW1.  He would have examined parts of PW1’s body where PW1 indicated injuries. He has no recollection of what language PW1 spoke or whether there was anyone with him when he examined him, such as a police officer or a relative.  He does recall there was no interpreter present.  He agrees he wrote on his notes - I quote -  “Right hand injury by golf club and knife”.  He agreed in cross-examination the victim told him this.  He agreed it was a clean cut and consistent with a knife wound.  He did not recall if it was a straight clean cut.  He also agreed in re-examination the wound was also consistent with a blow from a golf club head used with force.

Other prosecution’s witnesses tendered for cross-examination

77. PW19 was an officer implicated in the special issue, but when he was in the witness-box, the 1st defendant did not recognise him.  He was not required and gave no evidence.

78. PW22 was a police console officer and gave evidence of the time the crime was reported on 9 May.  She said according to the records the telephone call reporting the wounding offence came in at 5.30 am and at 5.31 am a case was opened.  Her evidence was not challenged.

79. PW21 was a police officer who was in the first police vehicle to arrive at the scene.  In cross-examination he agreed he did speak to the victim and wrote in his notebook the victim said someone used a golf club to hit him on the head and a knife to cut his hand.  The victim said he was attacked by several Southeast Asian males.

80. PW20 was a police officer who went to Mong Kok Police Station on 9 May to escort the 2nd defendant to Tsim Sha Tsui Police Station.  He was asked in cross-examination if he heard the 2nd defendant repeatedly ask to be able to make a telephone call and repeatedly said he wanted a lawyer.  This police officer said he did not hear the 2nd defendant make such requests.

81. PW15 was a police officer who signed the 2nd defendant out from the duty officer’s care to attend an identification parade. His duty was to escort him to the room to attend an identification parade.  He did not witness the parade nor stay in the room.  He denied in cross-examination on the way to this room he, the 2nd defendant, repeatedly asked him to be able to call a friend and repeatedly told him he wanted a lawyer.

Forensic evidence

82. PW14 was a forensic scientist and tested the exhibits seized against the buccal swabs from PW1.  His report is P43 which includes nine photographs of exhibits tested.  Mr Chung Wai-wah’s expertise was not challenged.  His findings are not challenged.  The defence allege the exhibits were all contaminated before they got to the forensic scientist.  The victim’s blood was either accidentally or deliberately wiped on exhibits prior to examination and that is the only explanation for the forensic results.  As the defendants were not at the scene of the attack, their items of clothing must have been contaminated by the police.  The other items were not ever in their possession.  The defence rely on the evidence of Dr Sheilah Hamilton and her reports, Exhibit D10 for the 1st defendant and Exhibit D11 for the 2nd defendant.  She suggests cross-contamination of the exhibits.  She did not sit in court during the trial nor give evidence.  Her reports were agreed under section 65B of the Criminal Procedure Ordinance, Cap 221.

83. The forensic results I will repeat here and are clearly explained in the chart of Appendix 1 and 2 of P43.  The buccal swabs from PW1 gave PW14 PW1’s DNA types.  He found two areas of blood on the golf club head and handle respectively came from the victim.  He found the blood on the 1st defendant’s vest and black shoes came from the victim.  He found the blood on the 2nd defendant’s white shoes came from the victim.  He found the two areas of blood on the hockey stick came from the victim.

84. When I say he found the blood on these exhibits came from the victim, I really refer to his findings that there is a 1 in 2.16 quintillion chance there is another possible source of the DNA other than the victim.  Therefore, with those odds, I find it is the victim’s blood.  The defence do not challenge this.  He finds - and I quote - “RMP 1 in 2.16 quintillion the possible source is the victim”.  In his footnote he explains - and I quote - “RMP refers to the approximate combined random match probability of the particular combination of DNA types that a randomly selected person in the Pakistani population unrelated to the possible donor as stated in the ‘Possible Source’ column above would have the matching DNA found.”  One quintillion equals to a 19-figure number.

85. In cross-examination he was asked about three cotton swabs of blood PW12 took from the stairs of the scene of attack.  PW14 said they were still wet when he dealt with them and unless they had been put in a freezer before examination, the samples would have deteriorated.  PW12 did not give evidence he put them in the freezer.  PW14’s finding was that the swabs gave positive results to a presumptive test for blood, but human DNA was not found.  Dr Sheilah Hamilton in her report for the 2nd defendant, Exhibit D11, said it was unwise for PW12 to have diluted the blood with water on the stairs and then wipe it up.  She says blood diluted with water can deteriorate the blood sample to the extent that it cannot be DNA typed or even be shown as human blood.  She said the dried blood on the stairs should have been scraped off with a clean, unused sharp blade into a clean, dry container for analysis. Mr Tibbo took this finding to suggest it was possible the blood all over the stairs and walls was animal blood and therefore planted on the stairs rather than the sample had deteriorated as suggested by his own expert.

86. PW14 was cross-examined about the drop of blood on the 1st defendant’s vest.  From Exhibit P43 and the photos therein, one can see the bloodstain examined.  Dr Hamilton refers to this bloodstain in paragraph 7 of her observations and comments of Exhibit D10.  PW14 only finds the blood of this bloodstain came from the victim, he gives no opinion on how the blood came to be on the vest.  Dr Hamilton observes the stain is approximately round and - I quote - “circular bloodstains are usually found when liquid blood falls onto ‘passive’ horizontal surface whilst elongated shaped bloodstains are usually formed when a droplet of liquid blood impacts a vertical or sloping surface.  Additionally, circular bloodstains on clothing can also be produced by direct contact with other round bloodstains.”  In her Appendix 2 of page 10 she illustrates the shape of bloodstains dropped onto surfaces at various angles. When PW14 was cross-examined, he agreed with the illustrations of Appendix 2. He said, when asked about angles of blood drops onto surfaces, the bloodstain shape would be circular if the surface was very close to the origin. He was not asked how close would the surface need to be to the origin. About that particular bloodstain, he said it was possible a blood drop flew into the vest or the vest came into contact with a tiny circular bloodstain or contact was at a 90-degree angle.

The ID parade

87. The ID parade was held the day after the attack.  Both defendants were in one line-up with 12 actors, 14 in total.  PW1 identified them both as his attackers.  The defence challenged this parade. They submitted the defendants did not give consent to the parade and it should not be admitted into evidence.  It was submitted the parade was unfair and highly prejudicial to the defendants.  It was contended by Mr Tibbo that the identification parade should be excluded as a necessary remedy under section 6 of the Hong Kong Bill of Rights Ordinance, Cap 383.  Articles 1, 5, 10, 11, 22 and 23 of section 8 of the same ordinance is cited as is Article 25, 28, 35, 39, 41 and 87 of the Basic Law.  It was also contended the parade was conducted in flagrant breach of the Police Orders, chapter on identification parades and Hong Kong Police Force Manual, Chapter 44.  Two Canadian authorities were produced in final submissions on the special issue to support a constitutional law point.

88. PW16, the acting superintendent of Kowloon West, conducted the identification parade in the afternoon of 10 May.  He checked the defendants separately consented to participate in the parade.  The defendants had already signed a POL 279A each.  This is a consent form to participate.  It was explained to them with the help of an interpreter.  The forms are P14 and P15.  Clearly, the form explains to them the purpose of the parade, the procedure, they are not obliged to attend and they can request a solicitor to attend. Both were asked to sign this form if they were willing to attend a parade and both did.  They clearly gave their consent voluntarily.  There was no request for legal representation.  This was not challenged despite the submission they did not give their consent to attend a parade.

89. PW16 despite the consent forms already signed had to ask the defendants again if they wished to be legally represented during the parade.  This is on page 3, paragraph 5 of the identification parade book, Exhibit P17.  PW16 records the fact that the defendants said they did not need to be represented after informing them of their rights again.  In P17, page 4, PW16 has to ask the defendants again if they still agree to participate in the parade.  They both said yes.  They then go on to view the actors and decide if they would like to exclude anyone in particular.  They exclude two actors. PW16 ordered all shoes and socks to be removed as all wore different shoes, and he ordered them all to wear shower caps as the 1st defendant had long hair put up in a pony tail.  No one else had hair like his.  The 2nd defendant requested to swap shorts with an actor.  He wore a pink shirt instead of his own T-shirt.  The defendants had no objection to the line-up.  They chose where they wanted to stand before the victim was brought into the room.  He was to stand behind a one-way mirror. 

90. When PW1 came into the identification room, he was told what to do.  He then observed the line-up through a one-way mirror. He asked PW16 to request all 14 to look up and straight ahead.  Mr Tibbo put to PW16 in cross-examination he should not have asked the line-up to look up as requested by PW1.  PW1 then asked if they could push up their shower caps. PW16 explained PW1 could see enough of their foreheads and eyes so there was no need to do this.  PW1 then positively identified both defendants.  He then left the room.  Neither defendant had any comment when told of the positive identification. 

91. The tape of the procedure was viewed in court during PW16’s cross-examination.  The defence complain the parade was unfair for the following reasons.  The two defendants do not look similar enough or roughly the same to be in the same parade.  There should have been two parades.  One is taller, heavier and darker, looks younger than the other. Their facial features are very different.  Apart from the two defendants, the actors did not look like the two defendants.  Mr Tibbo submits there were actors much taller than the 1st defendant, ones who had darker skin, some significantly older, some fatter and some of a bigger build.  Mrs Panesar made similar submissions for the 2nd defendant.

92. It was put to PW16 that he breached the police manual, Exhibit D9, paragraph 30, regarding identification parades.  Unless the two suspects are of - I quote - “roughly similar appearance”, there should only be one suspect per parade.  In addition, in paragraph 29, the parade should consist of people who should - I quote - “as far as possible resemble the suspect in age, height, general appearance and position in life.”  He was taken to the tape several times and it was put to him that the line-up did not consist of people who resembled the defendants.  He disagreed.  He said everyone was unique and no one exactly the same.  He said in his judgment they were all roughly similar in age, height and appearance; that was what he had to decide.  He did not see a difference in height of a few inches as a great difference as suggested.

93. He was accused of singling out the 2nd defendant to make him more obvious to the witness to identify.  In fact, PW16 has been more than fair by asking his subordinate to push the 2nd defendant back in the line-up before the witness came in as in fact he was standing out by being more forward than the rest of the line-up.

The alternative procedure

94. The defendants objected to the admissibility of the admissions made in the identification parade.  I dealt with it by way of the alternative procedure.  The prosecution, as required, called everyone implicated by the grounds of the objection.  The defence made halfway submissions there was no prima facie case to answer on the special issue.  I rejected those submissions.  As I said earlier, the defendants elected not to give evidence or call any witnesses on the special issue or the general issue.

95. I found the defendants did agree to participate in the identification parade despite submissions from both counsel they had not.  It was not put to any witness they did not give consent to participate.  The consent form was voluntarily signed and consent given.  This was not challenged.  The submission the parades were unfair and prejudicial did not go to voluntariness but a question of weight to be attached to the positive identification at a later stage.  I did not rule the identification parades inadmissible.

96. The admissions referred to the answers given to PW2 and PW3 who stopped and questioned the 1st and 2nd defendant respectively. Paragraph 38 and 39 above set out what the 1st defendant said to PW2 when he questioned him.  Paragraph 48 above sets out what the 2nd defendant said to PW3 when he questioned him.

97. These were the only admissions the prosecution rely on.  There were no admissions after the defendants were arrested.  There were no admissions or confessions at the Mong Kok Police Station or the Tsim Sha Tsui Police Station.  In fact, what happened after the defendants were taken to the station does not affect the voluntariness of what they are alleged to have said at the scene.

98. The overall complaint by the 1st defendant was one of oppression at the scene and later at the stations.  Exhibit D5 and 5A were the grounds of objections.  It was contended that there were breaches of the provisions of the Secretary for Security’s Rules and Directions for the questioning and taking of statements, including the follow: Principles (c), (d) and (e), Rules I, II, III, V(a & c) and Directions 1, 2 and 6.  Many of the particulars of the alleged breaches of the above were not revealed either in written objections or in fact put to witnesses.

99. It was put to the relevant officers the 1st defendant did not utter anything when stopped as he does not speak Punti at all.  Mr Tibbo submitted the prosecution had to prove he did speak Punti and English.  It was put to officers the 1st defendant was traumatized by his arrest and detention by the police on the street.  He was surrounded by officers and dealt with in an aggressive and harsh manner.  The police did not arrange an interpreter to come to the scene to translate.  If he did make the admissions, he did not do so voluntarily.  He was pushed about and roughly manhandled by PW5, the sergeant, at Mong Kok Station and humiliated when strip searched.  The 1st defendant was denied access to a lawyer or legal advice in both stations.  It was submitted by Mr Tibbo the prosecution did not prove the 1st defendant had waived his right to legal representation.  Because of this trauma and continued oppressive behaviour of the police, the 1st defendant did not consent to the identification parade the following day, or if he did consent, he was induced to consent.  No particulars were given of how he was induced in Exhibit D5 or 5A.  It was put to PW13 he told the 1st defendant on the way to the identification room it was too late to get a lawyer now, but he could have one later.  That was the inducement.  In fact, particulars were lacking for many objections despite repeated requests by the prosecution.

100. Mr Tibbo put to PW2, as I have said in paragraph 45 above, he should have cautioned him after the first question because he had reasonable grounds to suspect the 1st defendant had committed an offence.  He breached Rule II of the Rules and Directions.  PW2 disagreed but agreed he got more suspicious with every answer from the defendant.  Mr Tibbo also put to PW2 he should have included the answers given before the arrest of the defendant in his preamble of the three record of interviews even though the defendant exercised his right of silence.  PW2 disagreed.

101. Mrs Panesar for the 2nd defendant in her grounds of objections, D8, submitted the 2nd defendant did not understand or speak English or Chinese and therefore could not have answered PW3’s questions.  It was submitted PW3 manhandled the 2nd defendant at the scene, pushing and shoving him as well as shouting at him aggressively.  The 2nd defendant did not know why he had been stopped, detained and later taken to the station.  He was not cautioned at the scene.  At the station he asked PW3 if he could call a friend to arrange a lawyer and his request was refused.  He was not offered a list of solicitors and refused legal representation.

102. It was also put to PW3 who stopped the 2nd defendant he should have cautioned him immediately without one question because at a glance he had reasonable grounds to suspect the 1st defendant had committed an offence.  He breached Rule II of the Rules and Directions.  PW3 disagreed.  I referred to this in paragraph 54 above.

103. After hearing all the prosecution witnesses on the special issue, both counsel made submissions of no case to answer.  I found there to be a prima facie case to answer that if the defendants did answer questions when stopped, they did speak voluntarily.  The defendants elected not to give evidence as is their right.  The prosecution must prove beyond reasonable doubt the admissions by the defendants were voluntary, and if I found they were, they were admissible.

104. Mrs Panesar referred the court to an authority, HKSAR v Chan Yuk Ling [2013] 1 HKC 599.  The Court of Appeal held that at paragraph 2, page 600, I quote:

“Convictions based on alleged oral admissions which were not repeated in a properly recorded interview conducted shortly thereafter...and where for no good reason the alleged admissions were not put to the interview, called for rigorous scrutiny.”

The court went on to identify several scenarios where scrutiny would be required and fairness and common sense applied. In that case there was no written record of the admissions made, be it in the police notebook post-recorded or a formal record of interview. I differentiated that case from the case before me. Here PW2 agrees he did not write down what the 1st defendant had said to him at the scene in the preamble but was not asked why he did not do that. He did make a record of it in his notebook before he took a record of interview and therefore there was a record of it. He then repeated it all in his own witness statement. This was not a scenario like it was in that authority where the defendant would have been caught unaware of what the arresting officer was going to say he admitted in court. It may well have been better for the officer to include the questions and answers in the preamble, but he may have raised it further in the statement if it had proceeded.

105. I found after considering all the evidence concerning the special issue and the submissions of both defence counsel I believed the police officers, in particular PW2 and 3.  I had no reason to doubt their evidence or their credibility.  I found there to be no material discrepancy serious enough for me to doubt their evidence.  I am sure the defendants ran into them and were rightly stopped as they must have looked suspicious running through Mong Kok at 5.30 am with a golf club.  I am sure the 1st defendant in answer to a natural question of “what has happened” said he had just finished fighting and then said, “In Portland Street.”  I am sure the 2nd defendant just said a fight and pointed down Hong Lok Street.  That is the extent of their admissions that I found admissible.  The 1st defendant did answer four more questions and made four more admissions but they came after PW2 heard on his beat radio there was a wounding case in Portland Street.  Although I am sure the answers did come from the 1st defendant for all six questions voluntarily, I exercised my discretion to exclude the answers to the four questions that were posed after the beat radio report was heard.  I found the appearances of the 1st defendant, coupled with his answers given to the first two questions, followed by the beat radio report, would have arguably given the officer reasonable grounds to suspect the defendant had committed an offence. I erred on the side of caution and excluded the last four answers given by the 1st defendant.

106. After careful consideration of all the evidence relating to the manner and circumstances in which those admissions were made within a minute of the defendants being stopped on the street, including the allegations made by the defence and having due regard for the 1992 Rules and Directions on the questioning of suspects, I was satisfied as to the voluntary nature of the admissions uttered and further satisfied that there are no further grounds on which I should exercise my discretion to exclude those admissions.  They were admissible.  The same applies to the constitutional law point unsuccessfully raised by Mr Tibbo.  In submissions, Mr Tibbo said where these admissions are concerned, the police were in breach of Rules II, IV and V as well as Direction 1.  Frankly, I could not follow that submission and rejected it. 

The law

107. The prosecution must prove both defendants jointly with another person or persons unknown unlawfully and maliciously wounded PW1 with intent to do him grievous bodily harm.  It must also prove the 1st defendant stole a mobile phone belonging to the victim.  The prosecution must prove both offences beyond reasonable doubt.

108. The 1st defendant’s case is put on the basis that he was not present when the victim was attacked and that the victim was not in fact wounded by any of the three men on the CCTV footage, but that he inflicted the wound on himself with a knife.  Defence counsel for the 2nd defendant does not make the same submission.  His case is put on the basis that he was not present at the attack and if he was, his actions did not amount to a joint enterprise to wound PW1.  Mrs Panesar does not argue that the victim was not wounded with intent by another.  It is not argued that if the victim’s mobile phone is found to be held by the 1st defendant as alleged, it still does not amount to a theft offence.

My findings

109. I have considered the evidence of all the prosecution witnesses.  I have considered all the parties’ submissions both for the special issue and the general issue.  As I have said, the defendants elected as is their right not to give evidence.  The failure of the defendants not to give or call evidence is no evidence of their 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 defendants.  The evidence against each defendant will be considered separately and individually.  They do not fall or stand together.  I repeat, the prosecution has the duty to prove the charges against each defendant beyond reasonable doubt.

110. The credibility of PW1 is attacked by both defence counsel.  His evidence was attacked in minute detail.  Much cross-examination centred on comparing his oral evidence to his witness statements, especially by Mr Tibbo.  On several occasions the translation Mr Tibbo relied upon was not accurate which misled the witness with questions.  In this case the victim is from Pakistan, neither English nor Chinese language is his mother tongue.  He was obviously attacked suddenly and ferociously.  The attack did not last long but it must have been very frightening.  He sustained an injury that bled copiously.  PW1 was then questioned by police officers at the scene in either English or Chinese and taken to the hospital.  There was no interpreter there either.  His hand was stitched up.  He then had to give statements the same day bearing in mind he had been out all night before he was attacked at 5.30 am.  He said that he was in great pain.  Therefore, if his timing is off or he omits  details such as buying cigarettes on his way home, it is hardly surprising.  Having said that, whilst giving evidence, he was clumsy at times, but I did not find him untruthful or evasive.

111. The truth of the matter is the attack is captured on CCTV and clearly he is chased by three men wielding clubs, attacked and wounded.  I say now I do not believe he was not wounded but went upstairs to his home, got a knife, cut his own hand open within a minute or two and then called the police to frame someone.  It is a farfetched and baseless suggestion.  I know the doctor and a police officer made a note of an assault that involves a knife, but that could be down to translation and communication issues.  After all, there was a man outside the building with a knife.  Why he was chased and what happened before the chase in minute detail is not important.  It has been submitted he is not to be believed because of contradictions, omissions and lies, but the CCTV footage does not lie.  Without it, his evidence may have been weaker.  But the CCTV footage supports him where it counts most; during the actual offence.

112. He gave evidence of two men when there were three.  He gave evidence of a golf club wielding man followed by a hockey stick carrying man.  He identified them the next day in a formal parade.  He agreed he made a mistake and there were three.  He was sure he recognised the man with a golf club and pony tail and picked out the 1st defendant.  He said he only had fleeting glances of the man with the hockey stick and chose the 2nd defendant because he bore similarities to one of the attackers.  He was not 100 per cent sure.  If the only evidence was this identification evidence, then the prosecution would not be able to rely on it to prove the offence beyond reasonable doubt.  But it is not the only evidence.

113. PW1 was declared a hostile witness in a trial last December; he and three others.  Three others would have been declared hostile, I am sure, if they had made it into the witness-box.  Why did he not come to proof?  Usually why is for the court and parties to speculate, but here there is an explanation.  He was threatened and actually beaten.  He was warned not to give evidence in that trial over the phone, and that threat to him and his family was followed up within a short period of time by an attack from three men.  There was a fourth holding a knife or a chopper.  I can see why he did not come up to proof.  It does not make him an unreliable witness or affect his credibility indefinitely.  I rely on what I see and hear from him in the witness-box in my court during this trial.

114. Where the other witnesses are concerned, I find them reliable and credible.  When I compare their evidence, especially PW2 and PW3, I found there to be no material discrepancy serious enough for me to doubt their evidence.  I do not believe the police framed the two defendants who were innocent bystanders.  I believe the two men were fleeing the scene of the attack and ran into the police.  The police were as surprised as the two men, I am sure.  I find the 1st defendant was holding the golf club and the victim’s phone.  I am sure the prosecution proved it was the victim’s phone by ringing it.  If they were planting it on the 1st defendant to frame him, they would not need to ring it at the scene.  The fact PW2 used the 1st defendant’s phone to ring it is a choice he made in the course of his investigation.  The 1st defendant’s phone had not yet been seized as an exhibit.  This choice does not cast doubt on his credibility.  I am sure it is the 1st defendant in the CCTV footage with the pony tail, holding a golf club and picking up the victim’s phone he dropped on the stairs.  I described this in detail in paragraph 21 above.

115. I am sure the two men did tell the police they were in a fight and said it voluntarily.  The 2nd defendant quickly decided not to answer any more questions and remained silent.  I do not believe they were abused verbally and physically at the scene or at the station.  I do not believe they were deprived of legal representation.  I do not find any oppressive behaviour from the police. 

116. I am also sure the 2nd defendant was one of the attackers.  He was with the 1st defendant running away and they were close to the scene of the attack.  He had no weapon on him, but he admitted he had been in a fight and had blood of the victim smeared on his shoe.  I do not go as far as making the finding he dropped the hockey stick along the road where they had been running.

117. As far as the forensic evidence is concerned, I do not find it was unreliable as submitted by the defence.  The defence expert herself does not challenge the findings of PW14.  There is undoubtedly the victim’s blood on five separate items.  I am sure it got there because the defendants were at the scene and picked up the victim’s blood on shoes and clothes.  They picked up his blood because of their close proximity to him when he was attacked.  The victim was attacked going upstairs with the men behind him and below him.  Blood droplets would fall downwards.

118. The defence expert reports were submitted although she did not sit in court to hear evidence except for one witness, nor did she give evidence.  Dr Hamilton’s reports were not referred to in submissions.  I do not attach weight to her observation and comments as they were not based on evidence before me.  In any event many comments were not controversial nor proved the exhibits were cross-contaminated.  I accept PW12’s evidence he would not have put exhibits on the same surfaces nor let them touch each other.  She assumes he did.

119. I do not find the exhibits were cross-contaminated by the police either deliberately or accidentally.  I accept the shoes and vests were not seized until later that day, but the defendants were not in any situation or position where the victim’s blood could have transferred to their shoes and vest after they were stopped and detained.  The hockey stick was touched by several people before it was seized, but again it was not placed in any situation or position where the victim’s blood could have transferred to it after it was discovered.  I am sure it was the stick held by the third man in the CCTV footage based on the blood on it and its close proximity to the scene of the attack.  I am sure it was discarded on the road after the attackers fled.

120. The ID parade itself was challenged and attacked as being unfair, improper and prejudicial to the defendants.  I have viewed the tape again and, yes, the men are not all identical in height and build.  It was submitted the positive identification of the defendants by the victim should be excluded.  I should exercise my discretion to exclude it as the identification parades were flawed.  The officer in charge of the parade said in his judgment it was fair and the defendants were not prejudiced.  The police cannot arrange almost identical people so they follow the guidelines of finding actors for the parade which should consist of people who “as far as possible resemble the suspect in age, height, general appearance and position in life.”  The decision is subjective.  I accept the officer’s judgment call and find the identification parade fair and acceptable.  However, even if I am wrong, the prosecution can rely on other evidence to convict the defendants.  The identification evidence is on its own weak, as I have said above, based on the victim’s own evidence.

121. Although the defendants did not give evidence or call evidence, the defendants did file notice of alibis.  The 1st defendant filed his during the course of the trial.  The 2nd defendant’s notice filed on time gave particulars that at the material time he was with a prostitute on Portland Street.  He could not supply an address or name.  The 1st deft said at the material time he was near Langham Place drinking beer opposite a 7-Eleven with a friend.  He could not supply an address or full name of this friend as he had lost contact with him.  I would not expect the police to investigate these alibis on this basis.  Mrs Panesar did comment on the police failure to follow up on the 2nd defendant’s alibi, but I dismissed that criticism.

122. It is well established an inference of guilt can only be drawn against a defendant if it is the only reasonable inference to be drawn.  In deciding if an inference of guilt can be drawn, the court must look at all the circumstances of the case.  I quote from The Queen v To Luen Sum [1995] 1 HKCLR 318, Bokhary JA, as he then was, made the following observations at page 323, I quote:

“When it comes to looking at all the circumstances of a case and considering whether an inference of guilt is the only reasonable inference to draw from the primary facts on which the prosecution relies and of which the tribunal of fact is sure, it is true that the piling of layer upon layer of unconvincing material cannot result in proof of guilt beyond reasonable doubt. But that is not to say that items of fact insufficient each in itself for the purpose of convicting may not, when taking together, form a body of fact upon which it would be proper to infer guilt and convict accordingly.”

123. To summarise my findings, I am sure the defendants were together and running from the scene of the attack.  They were stopped very close by.  The 1st defendant was still holding a golf club and had possession of the victim’s phone.  I am sure they admitted they had just been in a fight.  I am sure there was the victim’s blood on the golf club, the 1st defendant’s vest and his shoe and the 2nd defendant’s shoe.  I am sure it is the 1st defendant seen in the CCTV as the second man holding a golf club with a pony tail.  I am sure the 2nd defendant is one of the two other men, most likely the third man holding the hockey stick found on Hong Lok Street.  They chased the victim into his building and up the stairs.  He was attacked and wounded.  I am sure it was a joint enterprise.  All three men came in and chased with a weapon each, in the form of a club or a stick.  The fact the second and the third man did not swing at the victim is because of the location difficulties, not because, I am sure, they did not intend to wound him.  It was a staircase and they had to come one after the other.  They were not merely present.  I reject the submission if the 2nd defendant was the third male with a hockey stick, he had put distance between him and the first two men on the stairs and dropped out of the joint enterprise.  In an assault, it does not matter who dealt the blow that caused the injury if the intent of the group was to cause injury.  Each would be liable for the acts done in pursuance of that joint enterprise.

124. The identification evidence although not sufficient in itself to convict the defendants can add to a body of fact upon which it would be proper to infer guilt when considered together with all the other findings of facts.  The same could be said for the admissions made by the defendants.  In fact, even if I had ruled the admissions and the identification parade results inadmissible and excluded, in my opinion, there would still have been sufficient evidence to draw the required inference of guilt against both defendants.

125. I am sure when I consider all my findings together, the inference of guilt is compelling and is the only one that no reasonable man could fail to draw from the direct facts proved.  The evidence is overwhelming against the defendants.  I am sure the prosecution can prove beyond reasonable doubt both defendants wounded the victim with intent to do him grievous bodily harm.  I am sure the prosecution can prove the 1st defendant stole the victim’s phone and intended to permanently deprive him of it.  Both defendants are convicted as charged; the 1st defendant convicted of Charges 1 and 2 in his absence today.