HKSAR v. HUSSAIN ARSALAN AND OTHERS

DCCC 206/2025

[2026] HKDC 804

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 206 OF 2025

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REASONS FOR VERDICT

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1.  Before me, D1 to D3 are jointly charged with four charges as follows.

2.  Charge 1 is Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212.  Particulars are that D1 to D3, on 29 July 2024, at Central Kwai Chung Park, San Kwai Street, Kwai Chung, New Territories, in Hong Kong, unlawfully and maliciously wounded MANJ Mohammad Suleman Khan (PW1)  with intent to do him grievous bodily harm.

3.  Charge 2 is Causing grievous bodily harm with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212. Particulars are that D1 to D3, on the same day, at the same place, in Hong Kong, unlawfully and maliciously caused grievous bodily harm to MANJ Mohammad Qasim Khan (PW3)  with intent to do him grievous bodily harm.

4.  Charge 3 is Assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212.  Particulars are that D1 to D3, on the same day, at the same place, in Hong Kong, assaulted MANJ Mohammad Ibrahim Khan (PW2), thereby occasioning him actual bodily harm.

5.  Charge 4 is Assault occasioning actual bodily harm, contrary to Common Law and punishable under Section 39 of the Offences against the Person Ordinance, Cap 212.  Particulars are that D1 to D3, on the same day, at the same place, in Hong Kong, assaulted Subhaan-Naveed-Khan (PW4), thereby occasioning him actually bodily harm.

6.  D1 to D3 pleaded not guilty to the charges.  A trial is necessary to determine the correct verdicts for each of the defendants.

LAW ON JOINT CRIMINAL ENTREPRISE[1]

7.  Where an offence committed during the course of a joint enterprise is the offence or type of offence intended, constituting its “common criminal purpose”, every defendant who joined the enterprise with that “common purpose” will be liable as a party to that offence.  This is the “basic” joint criminal enterprise liability.

8.  Where an offence committed during the course of a joint enterprise is not the offence or the type of offence intended by the participants to the joint criminal enterprise, their liability will depend on the “wider principle” whereby a secondary party is liable for acts by the primary offender of a type which were foreseen by the secondary party as a possible incident of carrying out the “common purpose” even if not necessarily intended.  This is the “extended” joint criminal enterprise liability.

LAW ON IDENTIFICATION

9.  Where the case depends wholly or substantially upon the correctness of identification evidence, the Turnbull guidelines require that a judge should[2]:

(a)  warn the jury of the special need for caution before convicting on the evidence;

(b)  Instruct the jury as to the reason for such need;

(c)  Refer the jury to the fact that a mistaken witness can be a convincing witness, and that a number of witnesses can be mistaken;

(d)  Direct the jury to examine closely the circumstances in which each identification was made;

(e)  Remind the jury of any specific weaknesses in the identification evidence;

(f)  Where appropriate, remind the jury that mistaken recognition can occur even of close relatives and friends;

(g)  Identify to the jury the evidence capable of supporting the identification; and

(h)  Identify evidence which might appear to support the identification but which does not in fact have that quality.

10.  Furthermore, the jury should be directed to examine carefully the circumstances in which the identification by each witness came to be made, for example[3]:

(a)  How long did the witness have the accused under observation?

(b)  At what distance?

(c)  In what light?

(d)  Was the observation impeded in anyway, for example by passing traffic or a press of people?

(e)  Had the witness seen the accused before?

(f)  How often? If only occasionally, had the witness any special reason for remembering the accused?

(g)  How long had elapsed between the original observation and the subsequent identification to the police?

(h)  Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

(i)  If the prosecution has reason to believe there is a material discrepancy, they should supply the accused or his legal advisers with particulars of the description the police were first given; and

(j)  Finally, the judge should remind the jury of any specific weaknesses which had appeared in the identification evidence.

LAW ON DOCK IDENTIFICATION

11.  A witness should not be asked to make an identification for the first time in court.  This approach is taken because being in the dock makes it almost impossible for the witness to fail to identify the accused and there is no means of checking the accuracy of the identification.  It is within the court’s general discretion to disallow a dock identification on the basis that its prejudicial effect would outweigh its probative value.  The decision whether to admit such evidence is taken in the light of all the circumstances of the case.[4]

12.  Dock identification is permissible in an actual recognition case or where the identification witness was familiar with the accused.[5]

LAW ON IDENTIFICATION PARADE

13.  An identification parade is not necessary where the witness already knows the defendant or is familiar with his appearance.[6]

14.  In Attorney General v Lau Chi Tin & Ors [1989] 2 HKLR 15, a magistracy appeal, Hopkinson J held:

(a)  Where, as here, the witness already knew the defendant, from previous meetings, a prior identification parade was not only not necessary, it would have been improper (see 20I-J and 21G); and

(b)  In the premises, the magistrate was wrong to assert that the police should have held a formal identification parade (see 22G-H).

PROSECUTION CASE IN BRIEF

Charge 1 (Wounding with intent)  (Part 1)  (Action by D1 against PW1)

15.  D1 hit PW1’s head with a stick-like weapon.  PW1 put up a struggle with D1 and snatched the stick-like weapon from D1.

Charge 2 (Causing GBH with intent)  (Action by D2 against PW3)

16.  D2 hit PW3’s head with the hammer.  D1 went over to PW3, who was covering his head with his hands.  PW1 swung the stick-like weapon with a view to protecting PW3, who later ran away and sought help from people at the nearby petrol station.

Charge 1 (Wounding with intent)  (Part 2)  (Action by D2 and D3 against PW1)

17.  D3 snatched the stick-like weapon from PW1.  Afterwards, D2 and D3 chased and attacked PW1 respectively with the hammer and the stick-like weapon.  PW1 was hit a few times by D2 and D3, and PW1 fell to the ground.

Charge 3 (AOABH)  (Action by D2 against PW2)

18.  PW2 tried to stop D2 and D3 from attacking PW1.  At this junction, D2 swung the hammer at PW2’s head for several times.  PW2, who had already fallen onto the ground, protected his head with his hands.  D2 then hit PW2’s arms for several times, and PW2’s knees for several times with the hammer.

Charge 4 (AOABH)  (Action by D2 and D3 against PW4)

19.  After D2 attacked PW2 (under Charge 3), D2 and D3 ran towards PW4.  D2 hit PW4’s elbow area with the hammer for several times, while D3 swung the stick-like weapon at PW4’s left knee for about one to two times.

AGREED INJURIES

20.  The following injuries are agreed:

(a)  PW1: (i)  an 8 cm central scalp laceration; (ii)  a 1 cm left scalp laceration; (iii)  abrasions over both hands, right elbow and both knees. PW1’s scalp wounds were sutured and he was discharged same day.

(b)  PW2: (i)  tenderness over left scalp and left lateral elbow; (ii)  abrasions over left elbow, left wrist, both knees, left big and 2^nd toes and right hand dorsum; (iii)  range of motion of left elbow, left big and 2^nd toes was limited. PW2 was discharged the same day after treatment.

(c)  PW3: (i)  swelling and tenderness on left scalp; (ii)  abrasion over right elbow; (iii)  CT brain showed left pneumocephalus and subdural hemorrhage. PW3 was admitted to Neurosurgery Ward for further management where CT brain showed traumatic subarachnoid hemorrhage, cerebral contusion, and fracture at left temporal region. Repeated CT scans showed static lesions. He was hospitalized for about 7 days.

(d)  PW4: (i)  bruises on left elbow; (ii)  tenderness over proximal radius. PW4 was discharged on same day after treatment.

DEFENCE CASE IN BRIEF

21.  All of the defendants’ cases can be placed together.  None of them gave evidence.  On the one hand, defence said there was no dispute that the attacks happened to PW1-4.  On the other, at various times, defence put to the live witnesses they were lying about something unrelated to identities of the assailants.  What is significant though is that at no time did the defence put squarely to any of PW1-3 they did not know (ie were not acquainted with)  D1-3. Furthermore, at no time did the defence put to any of PW1-3 that D1-3 were at places other than the crime scene on the night in question.

22.  Thus seen, the defence case seemed to be about challenging if the prosecution case regarding identities could be and was proved to the required standard.

ISSUES IN THE CASE

23.  According to the defence, there is no dispute that PW1-4 were attacked that night; that the sole issue is the identity of the assailants.

24.  The defence put to PW1-3 that they were either mistaken as to identities or they had lied about the identities.

PROCEDURAL HISTORY

25.  Prosecution called a total of 3 witnesses.  They are PW1 MANJ Mohammad Suleman Khan (victim Charge 1); PW2 MANJ Mohammad Ibrahim Khan (victim Charge 3); PW3 MANJ Mohammad Qasim Khan (victim Charge 2). Under section 65B of the Criminal Procedure Ordinance, Cap 221, prosecution produced the witness statement of PW4 Subhaan Naveed Khan (victim Charge 4)  as P14; and the witness statement of PW5 Ali Ihisham[7] (Independent witness)  as P15.

26.  After the close of the prosecution case, defence did not make any half-time submissions.  After considering the relevant evidence, I ruled there was a case to answer against all defendants on all charges.

27.  D1 to D3 elected not to give evidence nor call any other witnesses. That is their rights.  I shall not on this ground draw any adverse inference against them.  On the other hand, it means that there is no evidence from the defendants to undermine or explain the evidence put before me by the prosecution.

28.  Defence however, before close of the prosecution case, asked to and did produce the witness statement of PW3 MANJ Mohammad Qasim Khan (victim Charge 2)  under section 65B of the Criminal Procedure Ordinance, Cap 221, as exhibit D1.

29.  Prosecution did not make final submissions.  Defence made final submissions orally.  I have considered them but will not summarize them here.

DOCK IDENTIFICATIONS

30.  PW1-3 in their turn set out to identify the three defendants.  Before they were allowed to do so, prosecution made the application having previously laid the foundation.  Defence in each case objected on the basis not on insufficient foundation but on the basis of lack of previous ID parades and its prejudicial effect.

31.  It is first of all necessary to spell out that the prosecution is alleging a case of recognition of people known to or whose faces were familiar to PW1-3 at various degrees of familiarity, and not a case of picking out a stranger.  Indeed, throughout the trial, defence seemed to intimate that there were grudges between the two groups of brothers.  Defence have never squarely put to PW1-3 that the two groups of brothers were not acquaintances.  I need to bear this in mind.

32.  There was a clear statement in the witness statement of PW3 (admitted under section 65B of Cap 221 as exhibit D1)  that he knew D1, that D1 has two elder brothers D2 and D3, in that order.  PW3 referred to D2 and D3 by name. PW3 also stated that D1-3 have been living in a flat on the 10/F of Wah Yiu Building.

33.  It is interesting to contrast the styles of the statement taker DPC 22177 in treating people known to a witness against someone who was a stranger.  There was no description of D1-3 in the witness statement save and except their being Pakistani.  However, as regards WP4, someone who was unknown to PW3, there were detailed descriptions such as height, build, and clothing.

34.  The police have not arranged an ID parade for PW1-3 to identify D1-3. This has to be looked at in the context what the purpose of an ID parade was. Primarily, it was for the purpose of picking out the offender(s), ie in this case the attackers.  That would make total sense if the attackers were strangers.  However, in this case, where the prosecution case was that the attackers were known to or whose faces were familiar to PW1-3, then if ID parades had been arranged, PW1-3 would simply be picking out their known acquaintances[8] D1-3, rather than strictly the attackers.  This would defeat the whole purpose of an ID parade and the exercise may even be accused as a dress-up to make the case look stronger than it is.

35.  Where the alleged offender is a person known to or whose appearance is familiar to a witness, I am of the view that an ID parade is not necessary before a dock ID will be allowed.

36.  As regards prejudice to the defendant in the dock, again in a case of recognition, the witness in court is merely trying to identify the person he knew[9], rather than strictly the offender.

37.  And when the defence was opposing the dock ID on the basis of prejudice, with respect, I think what was meant was that the prejudicial effect outweighed the probative value.  The probative value is clear – the prosecution was trying to align the three named attackers Arsalan, Adnan, and Sufyan, with D1, D2, and D3, in that order, as the prosecution was entitled to do.  The prejudicial effect?  Of course, there would be prejudicial effect – that would normally be the opposite side of the same coin.

38.  Where a case involves a stranger-offender without a prior ID parade, and it is at the same time a one-defendant case, I can see the force in the argument of prejudice outweighing probative value.  However, this case is a far cry from that situation for obvious reasons.

39.  In any event, out of an abundance of caution, before each of PW1-3 was to do a dock ID, I had in the absence of the witness ordered a different seating arrangement of the 3 defendants so as to increase the chances of a mis-identification, and thus minimizing alleged prejudice, if any.

40.  In the end, PW1-3 independently and positively identified D1 as Arsalan, D2 as Adnan, and D3 as Sufyan, in line with prosecution’s allegation.

PROTESTS ABOUT EVIDENCE NOT IN THE STATEMENTS OF PW1-3

41.  Throughout the trial, sometimes even in the middle of an examination-in-chief of a prosecution witness, defence protested against the lack of mention in the witness statement of what a witness said or was about to say in court.

42.  In general, there is no bar to prevent the admissibility of that part of the evidence which was not previously recorded in a witness’s statement. Indeed, it happens in court everyday.  One of the reasons may be, and it often is, that the statement taker is not legally trained (nor is the witness)  and therefore will not know what is or is not important to the case.  Sometimes, such important matters are simply left out of the statement.

43.  It is then up to counsel to bring these important matters out of the witness in court.  I will agree that the better practice would be for a supplementary statement to be taken and served on the defence prior to trial at the instigation of the trial prosecutor.  However, regrettably, this has not always been done, for one reason or another.  Nonetheless, the lack of mention in a witness statement of the evidence given is not a ground for ruling the evidence inadmissible.  Any prejudice that may be said to arise by late discovery may be cured by an adjournment.

44.  In this case, the defence has never asked for an adjournment such that, for example, instructions may be taken.

SUMMARY OF PROSECUTION EVIDENCE

PW1 MANJ Mohammad Suleman Khan

45.  PW1 was born in Hong Kong in 1987 (now almost 39).  He has lived in Wah Yiu House, Lai Yiu Estate, for about 8 to 9 years with his family and two of his brothers (both younger)  named Ibrahim (PW2)  and Usman.  PW1 used to work as security guard and Foodpanda deliverer.  Later he had a road accident.  Now he works part-time as Foodpanda deliverer.

46.  There was a park called “Central Kwai Chung Park” (“the Park”)  100-200 metres from where he lives.  PW1 used to go there on daily basis.  He parked his motorbike under the bridge (flyover)  there after work.

47.  On Exhibit P9(9), PW1 marked the location (left middle part of photo)  under the flyover in the Park where chairs were placed for people to sit and chat.

48.  PW1 received a call on 28 July 2024.  Caller was Hussain Arsalan (D1’s name and later identified as D1).  The three persons in the dock (ie D1 to D3)  also lived in the area.  In the call, D1 was talking in Punjabi about his brother Adnan (D2’s name and later identified as D2)  because D2 was calling PW1’s brother Qasim (PW3)  about a fight and threatening him.

49.  PW1 actually met (as opposed to saw)  D2 once in the past when D2 swore at PW1.  This was 7 to 8 months prior to the subject incident.  This was while PW1 was on the way near home.  D2 was standing by his white coloured van with “GoGoVan” sticker.  He was drunk with alcohol and was swearing angrily in Punjabi at others randomly.  Since he also lived in the area, PW1 got to know his name Adnan through other people and friends on spot (not proof because of hearsay but so that PW1 registered name to face).

50.  As a result of the call by D1 on 28 July 2024, PW1 went to the Park alone on 29 July 2024 at about 8 to 9 pm to meet D1.

51.  When PW1 reached the Park, there were a lot of people.  PW1 met and chatted with his two brothers Ibrahim (PW2)  and Qasim (PW3), his cousin Subhaan (PW4)  and a male friend Ali Ehtsham (probably PW5)  (who also lived in the same building as PW1).  There were other people present whom PW1 did not know.

52.  Suddenly, the group of 5 on PW1’s side saw Sufyan (D3’s name and later identified as D3)  coming on foot.  D3 started talking in Punjabi about his two brothers D1 and D2.  PW1 talked about whether they should find a solution to this argument or fight or problem.

53.  D3 said, “Give me two days’ time to go to talk to my father.  They will make Adnan (D2)  and Arsalan (D1)  understand.”  D3 said he would get the elders involved and talk to Arsalan (D1)  and Adnan (D2)  so they would not bother “you”.  PW1’s group of 5 said, “If he wants the matter out by involving the others, there is no better way than that.”

54.  PW1 had previously seen D3.  D3 lived in the same area (Wah Yiu House, Lai Yiu Estate).  PW1 has seen D3 passing by several times in the vicinity of the building that PW1 lives in.  PW1 had been told that D3 was the brother of “those guys” (not proof because of hearsay but so that PW1 registered name to face).

55.  The conversation lasted about 4 to 5 minutes.  The lighting was dark but he could see the others’ faces.  There was public lighting (marked on P9(9)  with other circles).  After the talking, D3 left.  D3 started to use the mobile phone before he went to stand behind a truck about 9.5 metres away.

56.  Then PW1 found he had 5 to 6 missed calls from D1’s phone.  He missed them because of the surrounding noise.

57.  After some time, PW1 saw a white van coming.  He saw D1 (first one out)  and D2 get out of the van and coming from Wah Yiu Road and nearby.  PW1 heard one of them say, “Pick up sticks/tools.”

58.  PW1 marked on P9(11)  with a “X” the position of the white van which came in the same direction as the white truck in the photo.  PW1’s position was a little forward of the chair in P9#9.  White van stopped about 7 metres away.

59.  PW1 had seen D2 before.  As regards D1, his picture was on his whatsapp profile when he called PW1.

60.  D1 had a stick weapon.  D2 had a hammer.  As D2 got off from the van, he was holding a hammer in his hand.  Both of them were running towards PW1 and started hitting PW1.  Before he had a chance to talk, D1 hit PW1 in the head. Then PW1 felt dizzy and fell down.

61.  D1 and D2 started hitting brother Ibrahim (PW2).  They were targeting his head.  Then PW1 got up and tried to snatch the stick from D1’s hand to stop him from beating PW2.

62.  PW1 got the stick, waved it and said, “Back off.”  He defended himself with the stick but then dropped it.  In that instance, D2 hit Qasim (PW3)  on the head 2 to 3 times.  PW3 started internal bleeding.

63.  PW1 told them, “Don’t do it.”  D2 said, “Hit them on their heads.”

64.  D3 then picked up the same stick (which was like a baseball bat)  and hit PW1 on his head.  D2 also hit PW1 on his head (top central part)  2 to 3 times. PW1’s head was “opened up”.  Then all three of them beat PW1.  The blood from PW1’s head came down to his eyes.

65.  D3 appeared at the scene when D1 and D2 started hitting PW1 on the head.

66.  The attack could have taken 3-4 minutes.  PW1 could not see in which direction the 3 attackers fled because his vision was blurred by the falling blood.

67.  PW1 knew the 3 attackers who were D1, D2 and D3.

68.  For D1, PW1 has seen his whatsapp picture on PW1’s phone.  For both D1 and D2, they live in the same Estate as he lives but PW1 did not know on which floor or in which flat it was.

69.  In the case of D1, PW1 has previously seen him in the Estate area during mornings when PW1 dropped off his daughter at the bus stop while D1 was collecting his parked truck.  That time, PW1 did not know his name.

70.  When D1 called PW1 by phone, PW1 saw his picture on the phone.  On the phone, D1 said he was Arsalan (D1’s name).  When D1 attacked him, D1 also said his name was Arsalan.

71.  PW1 further explained how he came to see D1’s picture.  PW1 saved D1’s whatsapp number and telephone number on his phone book (on his phone)  after the whatsapp call.  Only then was PW1 able to see D1’s picture.  However, PW1 has changed his phone now.  These guys (meaning D1 to D3)  were famous in the Estate area because they made loud sound scolding people.

72.  As regards frequency of sightings of D1, it was about 3 times a week with 1-2 minutes each time, the last time being 2-3 months prior to 28 July 2024.  The distance between them would be about 1.5 metres.

73.  In the case of D2, the first time PW1 saw him was when D2 was making noise during that incident 7-8 months before the attack incident.  PW1 kept him in observation for 5 minutes at a distance of 5.65 metres.  PW1 got to know D2’s name as Adnan (name of D2)  from others (doesn’t prove D2’s name was Adnan because of hearsay, but only as a label).  PW1 only came to know D2’s surname was Hussain from PW1’s witness statement (typed up by the police and marked MFI-1)  and it also appeared in the witness summons issued to PW1.

74.  D1’s surname Hussain also appears in the witness summons issued to PW1.

75.  D2 used to come to Wah Yiu House, Lai Yiu Estate, with his vehicle.  D2 used to park his vehicle after entering the main entrance.  It would be around 11:30 am when PW1 dropped off lunch to his children at the kindergarten/primary school when PW1 sighted D2 for 1-2 minutes from a distance of 5.65 metres.

76.  PW1 had seen D2 closely before: D2’s eyes are different from those of other people in that they were a little closer together.

77.  In the case of D3, PW1 has previously seen him several times at a place opposite to Wah Yiu House, Lai Yiu Estate, from a distance of about 5.65 metres.  Sometimes, D3 was parking a vehicle, other times he was standing beside the vehicle.  On the day of incident, D3 said he was Sufyan (name of D3)  from a distance of 1.5 metres, and that he came to talk.  D3’s surname also appears in the witness summons.

78.  PW1 identified the 3 defendants positively in court: Arsalan as D1; Adnan as D2; and Sufyan as D3.

79.  D3 also dragged PW1 after PW1 fell on the ground, causing him knee injuries.

80.  D1, D2, D3 spoke in Punjabi.

81.  Under cross-examination, PW1 said the call from D1 came after midnight between 28 and 29 July 2024.  However, in his witness statement dated 13 August 2024 (MFI-1), he described the call having been received at around 9:34 pm on 29 July 2024 (ie day of incident).  PW1 attributed the discrepancy to the fact at the time of the statement, he was still injured.  PW1 confirmed that the correct time of call was the night before the incident ie between 28 and 29 July.

82.  During the phone conversation, D1 said, “I’m Arsalan speaking.”  Since PW1 had never met (as opposed to seen)  or talked to him before, he was shocked and asked, “Why did you call me?”  D1 was talking about his brother and PW1’s brother.

83.  When asked why his reply was not contained in the witness statement, PW1 said he did not know he needed to mention in such great details.

84.  PW1 agreed that in January 2026 (ie after the incident), he was arrested by the police and investigated for smoking ICE.  PW1 said he was not smoking ICE in 2024.

85.  PW1 agreed he said in his witness statement that he was not very familiar with WP1 to WP3 (meaning D1, D3 and D2 respectively)  and that was true.  On the suggestion that what PW1 told in court about seeing the defendants in the vicinity of a truck was not recorded in the witness statement, PW1 replied that if there was a need to give details in the statement, he would have mentioned it.

86.  PW1 agreed before the incident, he had never talked to D3.  When it was suggested PW1 had given no description of D3 (WP2)  in the witness statement, PW1 said he was not asked about those details.

87.  When it was suggested there was no mention of lighting condition in the witness statement, PW1 said that there was enough light and he could see people’s faces; however, PW1 agreed that there was no mention in the statement that he could see his (sic)  face clearly.

88.  PW1 agreed upon suggestion that in the witness statement, there was no mention of clothing, height, build, or nationality[10].

89.  PW1 described the weather at the time of the incident as rain-like.

90.  On the suggestion of there being no mention of distance in the witness statement, PW1 replied that if he had known he needed to provide so much detail, he would have mentioned it.  When suggested there was no mention of time (at which)  he observed that person (probably D3)  in the witness statement, PW1 replied that he was confused as regards time.  When further suggested there was no mention in the statement the duration of observation, PW1 agreed.

91.  PW1 agreed he was not invited to attend an identification parade.

92.  PW1 agreed it was not mentioned in his witness statement that after the conversation under the bridge, D3 went towards the truck while using a phone. PW1 explained that he did not know it was required.

93.  When suggested it was recorded in para 5 of the witness statement that “you saw D3 coming out of the vehicle[11]”, PW1 said he mentioned it there.

94.  PW1 recollected it was D2 who said in Punjabi “Grab the tools”. However, PW1 agreed that in the witness statement, he said it was D3 who yelled in Urdu, “Grab the tools”.  PW1 explained that at the time of the statement, his injuries were fresh and he was in deep shock at that time.  Later, PW1 retracted “deep shock” and said he was under a lot of pressure and was scared, and was confused.

95.  PW1 agreed he mentioned in the witness statement “We swore at each other in Urdu”.  PW1 explained that swearing words in Urdu/Punjabi are the same. When asked to spell out the swear words used by the attack group, PW1 uttered two words.  According to the court interpreter, although the first word was the same in both languages, the second word was specifically in Punjabi.

96.  Under re-examination, PW1 confirmed he mentioned the 3 attackers as Pakistanis in his witness statement.

97.  At the time of statement giving, PW1 guessed their surname was Hussain because during the incident, D1 left his “wallet” (later changed to “mobile phone” when further cross-examined)  there with his ID card; and in their culture, like in Punjab or Pakistan, 99% of people use the same surname in the same family.  When D1 called PW1 on the phone, he said he was D2’s brother. Later, D3 also said they were brothers.

PW2 MANJ Mohammad Ibrahim Khan

98.  PW2 was born in Pakistan and came to Hong Kong in 1997.  PW2 lived with PW1 on 3/F Wah Yiu House, Lai Yiu Estate.

99.  PW2 was educated to secondary 7 level in Hong Kong.  He worked in TKO district as a courier.

100.  Qasim (PW3)  is his younger brother who lived elsewhere.  PW2 has many Pakistani friends living in Wah Yiu House.

101.  PW3 identified Central Kwai Chung Park, San Kwai Street, as the park near his home.  PW3 went there often to meet and chat with friends.

102.  Subhaan (PW4)  is his younger male cousin who lived in Chi Wan Shan.

103.  On 29 July 2024, he was in the company of his two brothers PW1 and PW3. He was attacked by 3 Pakistani men: Adnan (name of D2)  (aged 31-32), Sufyan (name of D3)  and Arsalan (name of D1)  were 27-30 years old.

104.  PW2 has seen these 3 men before in his Estate underneath his home.  When he was waiting for bus/minibus, he could see them around.  These three men lived in the same Estate as he did but in a different building.  The buildings are linked by one or two ground floor pathways.

105.  In the case of D2, PW2 saw him more than 2 times a day on the pathway(s).  D2 also came to sit with PW2 and friends in close proximity underneath PW2’s home near places like 7-Eleven and ParkN shop.  PW2 did not count how many times PW2 and D2 sat together but they did shake hands on these occasions.

106.  D2 was shorter than 5 ft 9-10 inches, thin, with black hair and fair colour skin of a normal Pakistani.

107.  D2 told PW2 that his name was Adnan.  PW2 got to know D2’s surname eventually.

108.  In the case of D3, he was a bit shorter than D2.  D3 was a little chubby and had black hair.  PW2 had seen D3 many times since he worked in TKO as courier; and D3 and D1 might also be doing their own work.  PW2 had seen D3 and D1 in a truck loaded with goods.  When PW2 was doing goods delivery in LOHAS Park (in TKO), he saw them with their truck parked there.

109.  The first time PW2 met (rather than just sighted)  D3 was in the sitting area outside ParkN shop of Lai Yiu Estate.  That time, PW2 did not know the three of them (D1-D3)  were brothers.  He spoke to PW3, “Do you know Sufyan (D3)?”  PW3 replied, “He studied in my school.”[12]

110.  Prior to the attack incident, PW2 has seen D3 many times sitting in the vicinity of ParkN shop from a close distance.  They met several times under daylight.  PW2 and D3 had even met several times at the place where the incident happened.  PW2 had shaken hands with D3 more than 10 times.

111.  PW2 and D3 had even played football together in Lai King once or twice and played cricket together once or twice or other sports too.  They talked in Punjabi and Urdu.

112.  D3 spoke in Urdu and Punjabi.

113.  PW2 studied in Sir Ellis Kadoorie Secondary School.  D3 was 3-4 years junior to him.  PW2 found out D3’s name in school because D3 was popular and famous with teachers and D3’s name was called in assemblies.

114.  There was also once when PW2 played snooker with D3 and D1.  PW2 called D3 by his name when he played football, cricket and snooker with him.

115.  In the case of D1, the first time PW2 found out D1’s name was Arsalan was when they first met between 2017 and 2018, during which occasion D1 told PW2 directly.

116.  Between 2018 and 2024, PW2 and D1 would encounter each other every second day; like when they were out doing their separate things, they would greet each other by names and shake hands.

117.  There were also many occasions when PW2 would greet these brothers (D1-D3)  when they came to the area below PW2’s home and in the vicinity of ParkN shop. PW2 talked to D1 in Punjabi on those occasions at close distance.

118.  D1 was as tall as or a little shorter than PW2, of middle, fit build, and had black hair.  D1 had a bit fairer skin colour than PW2.

119.  On 29 July 2024, evening time, after PW2 finished work in TKO, he went to Ngau Tau Kok.  He had prior arrangement with his brothers to go to Central Kwai Chung Park.

120.  At about 10:30 pm, PW2 and his brothers met at the Park and chatted there under the bridge.

121.  PW2’s cousin Subhaan (PW4)  was also there with other people.

122.  D3 then joined them.  Standing in front of them, D3 introduced himself, “I am the brother of Adnan (D2)  and Arsalan (D1).  If there’s any misunderstanding or grudge between us, we would solve it together and invite our families.”  D3 was talking to PW1 and PW2 in Punjabi.

123.  D3 said, “Give me 2 days’ time.  I will bring my family and elders.  You will bring your family and elders, and we will solve this matter by involving the families.”

124.  PW1 said, “It’s alright.  If you want to settle this, we also want to settle this.  We don’t want anything else happen, since we all live in the same place.”

125.  It was night time and was a bit dark.  Weather was so so.  There was light around.  It was not so dark that they could not see each other or recognize each other’s faces.

126.  D3 talked for a few minutes may be 4-5 minutes.

127.  After the conversation, D3 shook hands with them and went his way towards the direction of the truck shown in photo #11 of P9.

128.  PW2 and his two brothers PW1 and PW3 were calming each other down saying if they (D3’s party)  wanted to settle, then they (PW1-3)  should also do that, by inviting the respective elders.

129.  Then they (PW1-4)  sat there to talk.  Some other people living in Wah Yiu House were also present.

130.  Then a white van appeared.  D2 was the driver.  D1 was a passenger.  D3 ran towards the van saying, “Pick up weapons.  Pick up weapons.” in Punjabi.

131.  D2 got out with a hammer in his hand.  D1 also got out with a stick in his hand.  All of them came running towards PW1-4.

132.  PW1 said, “What happens?”  There was no reply from the opposite party. D1 caught an opportunity and waved/swung the stick/bat on PW1’s head.

133.  Then D2 hit PW3’s head with hammer.  D2 and D3 hit PW3 a few times.  PW2 and other(s)  tried to stop the attack.  PW1 grabbed the stick from D1.  PW1 then swung the stick around to protect himself.  D3 tried to snatch back the stick from PW1 with success and hit PW1 and PW2.

134.  PW2 fell to the ground and felt helpless and could not help PW1.  PW2 was attacked multiple times by the three brothers (later changed to just D2 and D3)  with hammer and stick.

135.  PW2 tried to protect himself by putting his hands up to his head position and also by using his legs.

136.  D2 went towards PW1 and hit PW1’s head with hammer causing bleeding from the head.

137.  PW4 then tried to snatch their weapons but failed.  PW4 was attacked 3-4 times on the head by D2 with hammer and D3 with stick.  PW2 was on the ground shouting, “Don’t hit him.  Don’t hit him.  He will die.”

138.  Then the attackers ran towards the vehicle with D2 swearing and saying, “I will come back.  I will do again.”  Then the attackers got in the vehicle.

139.  Some people of Lai Yiu Estate called the police.  Police and ambulance came.

140.  The assault last about 2 to 2.5 minutes.

141.  PW2 was taken to Princess Margaret Hospital for treatment.

142.  PW2 confirmed that D1 had not attacked him.

143.  PW2 knew that on day of incident, the HKID card of D1 was picked up at the scene.

144.  PW2 positively identified D1 as Arsalan, D2 as Adnan, and D3 as Sufyan.

145.  Under cross-examination, when confronted with the difference in language with which D3 spoke as described between PW2’s evidence in court (Punjabi)  and PW2’s witness statement (Urdu)  while D3 uttered, “Pick up/Grab the weapons/tools”, PW2 attributed it to the fact that the word “weapons” was the same in both languages.  PW2 also explained that the statement-taker also asked what language PW2 could speak or what was his mother tongue; since he had not given a statement before, he thought Punjabi and Urdu were the same.

146.  PW2 agreed that although Punjabi and Urdu are two different languages, there are several words which are the same in both languages.

147.  PW2 agreed there was no mention in the witness statement of lighting condition or weather condition but that was because he was not asked.

148.  PW2 agreed he had not mentioned about distances between the attackers and him.

149.  As regards the various prior sightings of and brief interactions with D1, PW2 agreed none of those was in his witness statement.  PW2 also agreed that the playing of snooker once with D1 and D3 was not recorded in the witness statement.  PW2 also agreed that the many instances when the defendant brothers came out to meet him and others in the vicinity of ParkN shop was not mentioned in the witness statement.  However, PW2 stated that the meetings/chats underneath the bridge in Central Kwai Chung Park was mentioned in the witness statement.

150.  PW2 agreed the details of how he came to meet D1 for the first time was not recorded in the witness statement and that all that was recorded was “In around 2018, I came to know male Hussain Arsalan [Pakistani hereinafter referred to as WP1] through victim 3 (PW3), because they were in the same secondary school.”

151.  PW2 did not mention in his witness statement he met D3 in the same school because he did not know D3 personally during school years but he only knew his name; however, PW2 agreed that he did not mention he came to know D3’s name in the same school.

152.  PW2 had not mentioned in his witness statement he and D3 played football, cricket and other sports together.

153.  PW2 agreed that recorded in the witness statement was the following:

“At the time, WP1-3 (ie the defendant brothers)  lived in a unit in Wah Yiu House. We would greet each other when we met. They had my contact but we were not very familiar with each other.”

“They were drunk. We were scared of WP1-3. We would not chat or have drinks with them.”

154.  As regards D2, PW2 agreed that he had not mentioned his various prior sightings of him in/about his van underneath PW2’s home.  PW2 also agreed he had not mentioned about D2 sometimes sitting together with PW2 and his friends including in the vicinity of 7-Eleven and ParkN shops.

155.  PW1 is 38-39.  PW2 is 33 years old.  PW3 is 29-30 years old.

156.  PW2 agreed he never mentioned the attackers’ age, height, hair colour, build.

157.  PW2 was asked at statement giving time if he recognized or knew the attackers.  PW2 said he knew them.  When PW2 said he knew them, the statement taker did not ask him about their descriptions.

158.  PW2 agreed that the witness statement did not say he knew them.[13]

159.  PW2 insisted all attackers had hair on night of the attack although PW2 agreed D3 is bald now.  PW2 disagreed that D3 was completely bald that night.

160.  PW2 was then challenged about his testimony in court that after he fell on the ground, D2 went after PW1 before D2 (and D3)  went to attack PW4; because in PW2’s witness statement, PW2 stated D2 (and D3)  walked to PW4 and hit him before PW2 thought they walked away to PW1.  In other words, defence alleged that PW2 got the sequence wrong.

161.  PW2 agreed things happened quickly but he disagreed that his arms and legs with which he was protecting himself were blocking his vision.

162.  PW2 disagreed he was mistaken as to the identity of the attackers.

163.  Under re-examination, PW2 clarified that the time from which he would not chat or have drinks with the D1-3 was 1 to 1.5 years prior to the incident.  The reason for that was that around end of 2022, D1-3 felt that PW2 and the other Pakistanis did not want to be friends with them so they swore and hurled insults at PW2 and PW1 on G/F of Wah Yiu House.

164.  PW2 then stopped talking to D1-3 and created distance with them. However, D1-3 still continued to come to him.

PW3 MANJ Mohammad Qasim Khan

165.  PW3 is 29 years old, born in Pakistan and came to Hong Kong when he was 1 year old.  PW3 lives in TKO.  His two brothers PW1 and PW2 live on 3/F Wah Yiu House.

166.  PW3 often sat and chatted with his brothers at the place (in Central Kwai Chung Park)  under the bridge where motorcycles were parked.  Other Pakistanis also went there to chat with friends.

167.  PW3 was attacked in the evening of 29 July 2024 by people he knew ie not strangers.  They were Pakistanis Adnan (D2), Sufyan (D3)  and Arsalan (D1).

168.  Regarding Arsalan (D1), he is 1-2 years younger than PW3, hence currently 27-28.  D1 and PW3 were in the same class in Sir Ellis Kadoorie Secondary School.  They spent around 4 years together in the same school.  PW3 saw D1 that time almost on daily basis.  They often sat and talked together in break time.  They even practiced cricket and volley ball by themselves as break time activities.  PW1 and D1 had good friendship but they had not gone to each other’s home.

169.  Regarding Sufyan (D3), he is D1’s brother.  D3 was in the same year as PW3 for 2 years because D3 was only in that school for 2 years.  PW3 was then 11-12 years old.  PW3 and D3 were schoolmates and they exchanged greetings and handshakes when met.

170.  Regarding Adnan (D2), PW3 met him in a restaurant in Sham Shui Po 3-4 years ago.  That time, PW3 was having food with a friend.  D2 came and sat down because he knew PW3’s friend.  D2 talked to the common friend for about 2 minutes and left.  PW3 and D2 merely exchanged greetings.  PW3 registered D2 (doesn’t prove it because of hearsay)  as a brother of D3 because of what the common friend said when D2 left.

171.  PW3 saw D2 again twice.  First time was below a Lai Yiu Estate building at 3-5 pm.  D2 was in his vehicle; with D2 was a man who used to be PW3’s classmate.  PW3 chatted with the ex-classmate for about 1-2 minutes.  PW3 exchanged greetings with D2.

172.  The second time was on the day of incident but earlier than the incident.  PW3 saw D2 sitting in the driver’s seat of a vehicle.  PW3 went over to shake hands with D2.

173.  After leaving school for good, PW3 did not keep contact with D1 or D3. However, if they met each other on the way, they would shake hands and exchange greetings.  Prior to the incident, PW3 saw/met D1 and D3 around 1-2 times a year, for example, when PW3 went to stay with PW1 and PW2 at their home.  PW3 saw/met D1 and D3 outside Wah Yiu House where the cars were parked.

174.  On one occasion, D1 called PW3 and asked PW3 to come down.  They met for 5-10 minutes under the bridge.

175.  Around 6-7 months before the incident, D1 used to call PW3 at night time and talked about his brother D2; as a result PW3 thought he (not clear if PW3 meant D1 or D2)  had a misunderstanding about something.  During this phone call, the names of D1’s brothers D2 and D3, and PW3’s brothers PW1 and PW2, were all mentioned.

176.  Both PW3 and D1 worked in delivery in TKO area though they did not work together.  Two to three times a week, they would see each other in the same building or the opposite building.  They waved at each other.  This situation went on even up to the time close to the incident date.  The last time PW3 waved at D1 might have been within 2 weeks prior to the incident date.

177.  On the day of incident, PW3 was working until around 8:30 pm.  He was planning to see his brothers’ children at their home.  However, in the end, he went instead to sit with their brothers under the bridge in Central Kwai Chung Park.  PW3 did not remember the time he started sitting but it was around 9 to 9:30 pm.  The lighting there was normal.  There was artificial lighting under the bridge and there were light coming from nearby road too.

178.  PW3 could see the faces of people he was talking to.  On a scale of 1 (poor)  to 10 (excellent), the lighting condition was between 8 and 10.  By reference to various photos in P9, PW3 pointed to the light sources.

179.  PW3 was with PW1, PW2 and his cousin Subhaan (PW4)  around 9:30 pm.  They were sitting and chatting.  D3 came and talked with PW1 and PW2.  They talked for maybe 2 to 5 minutes while standing.  When the talk concluded, D3 went towards the road.

180.  The PWs sat for sometime before a white van came.  With reference to photo #11 of P9, the white van travelled from right to left of photo.  D2, D1 and D3 got out of the vehicle.  All three came running with weapons.

181.  D1 attacked PW1’s head with stick.  PW3 was about 2 metres from them.

182.  D2 and D3 ran towards PW3.  D2 hit PW3’s head with a hammer.  PW3 got knocked out while standing; he became unconscious for a few seconds.  PW3’s vision was low.  He saw a pathway towards Sinopec petrol station so he slowly walked towards that.

183.  PW3 sought help from service personnel to call ambulance.  Ambulance shortly arrived to take him to hospital.  He was in hospital for about a week.

184.  Under cross-examination, PW3 said he did not think he had a criminal record.  At the time he went to apply for a security permit, he was told there was nothing in his record.  There is a department in Admiralty that issues a blue card for anyone who wants to work in the security field.

185.  PW3 said the police department told him he did not have a criminal record.  PW3 disagreed he committed perjury.

186.  PW3 agreed he had been convicted of assaulting a police officer and was sentenced to 80 hours CRO.  However, PW3 believed that when that case ended, his record would be cleared in 2 years’ time.  PW3 does not remember if the case number was TW10xx/2015.

187.  PW3 agreed he had a second conviction record and that was for possession of a Part I poison; he was fined.  PW3 does not remember if the case number was KT5xx/2022.  However, he insisted he believed he was given a clean sheet (slate?).  PW3 said he received a letter from the police or a government department in Admiralty which he has not kept; nor does he know the details. As he understood it, his record was checked; he was given a clear record; and he applied for security card.

188.  [At this point in time, prosecution applied to re-open the examination-in-chief to ask PW3 to dock ID the 3 defendants as the prosecutor has inadvertently omitted to do so previously.  Defence strongly opposed.  I allowed the application to re-open and an associated application to conduct dock ID.   The short reasons are that there was clearly sufficient foundation for a dock ID; and it is clear to me that the prosecutor has simply forgotten to ask for one before close of examination-in-chief (the OC Case, though present to assist the prosecutor at the close of examination-in-chief, had actually been absent from court that morning save for the very last part of the E-i-C and therefore she would not have known whether dock ID had or had not been conducted in her absence).  Although I could have allowed cross-examination to finish before considering the prosecution’s application to re-open, I decided against it for the following reasons.  First, it was clearly an inadvertent omission, and knowingly allowing it to persist until deep into cross-examination is against the interests of justice and might pose further problems later on.  Second, in the interests of case management, allowing the prosecution to rectify a mistake early would have the advantage of preventing unnecessary wastage of time later.]

189.  On reopening E-i-C, PW3 positively identified Arsalan as D1; Adnan as D2; and Sufyan as D3.

190.  Under resumed cross-examination, PW3 was asked various questions about his witness statement dated 26 August 2024 (subsequently adopted in whole by PW3 and admitted under section 65B of Cap 221 and produced as exhibit D1 (“ED1”)).  In ED1, PW3 had referred to his being secondary schoolmates with D1 Arsalan (WP1)  though he agreed there was no mention of his going to the same school with D3 Sufyan (WP2).

191.  PW3 also agreed that there was no mention in ED1 of his various associations/meetings with or previous sightings of the defendant brothers. Basically, PW3’s answer was that he only gave whatever information he was asked about at the time of giving ED1.

192.  Coming back to the incident, PW3 said 4 persons got off from the van. When challenged that he had said 3 (ie D2, D1 and D3), not 4, in chief, PW3 said his brain got injured with tension.

193.  When referred to para 6 of ED1, where he stated, “I saw WP2 (ie D3)  running from the left of the carriageway to the LGV”, which was different from what PW3 said in court about D3 getting off from the van, PW3 agreed there were 2 different versions of event which cannot both be correct.  PW3 said both versions were similar, in that when D3 went to the vehicle, he picked up stuff from the vehicle.

194.  PW3 disagreed he was lying about the events.

195.  After the vehicle arrived, and before the people ran towards PW3, he heard someone say, “Pick up weapons/tools” in Punjabi.

196.  When challenged that he had stated in ED1: “… yelled in Urdu, “Grab the tools” ”, PW3 said he heard at the scene “Take out the sticks/weapons” in Punjabi; and that to PW3, Urdu and Punjabi are about the same or similar.

197.  PW3 then demonstrated in court as to what was said in a foreign language.  Through the interpreter who was fluent in both Urdu and Punjabi, the translation was “Take out the weapons (Punjabi), take (out)  the weapons (Urdu)”.  PW3 confirmed that it was D3 who yelled.

198.  PW3 confirmed it should be 4 persons who ran out of the van.  PW3 explained the inconsistency between 3 or 4 persons: the 4^th one was not on his mind because he had concentrated on the three persons (attackers).

199.  PW3 did mention about the 4^th person as WP4 in ED1 (in para 6).  He did not tell the court in chief because all his focus was on the three attackers.

200.  PW3 denied he was lying about this part of the events.

201.  PW3 was then challenged about not mentioning in evidence something he stated in ED1, namely, that he returned to the park from the Sinopec petrol station before he was picked up by the ambulance.  PW3 explained the reason was that he was not asked in chief.  PW3 denied he was lying about this.

202.  PW3 denied he was choosing what to say to the police and to the court. PW3 denied he was lying/mistaken as to identity of the 3 attackers that night.

Summary of witness statement of PW3 ie ED1 admitted under section 65B of Cap 221

203.  PW3 knows D1 Arsalan (WP1)  a Pakistani who was his secondary schoolmate.  D1 has two elder brothers: the eldest brother is D2 Adnan (WP3)  a Pakistani, and the second elder brother is D3 Sufyan (WP2)  a Pakistani.  D1-3 have been living in a flat on 10^th Floor in Wah Yiu House.

204.  On 29 July 2024 at night, PW2 arranged to meet and chat with PW3 under the bridge in Central Kwai Chung Park outside Wah Yiu House.  At around 10:30 pm, the same day, PW3 arrived under the bridge in Central Kwai Chung Park outside Wah Yiu House.  Having other Pakistanis there, they chatted together under the bridge.

205.  At 10:55 pm the same day, PW3 saw D3 walking from the carriageway outside Wah Yiu House to the area under the bridge in Central Kwai Chung Park. Later, D3 walked up and talked to PW1 and PW2.  Generally, D3 said to PW1 and PW2 that he wanted to settle the grudge between their families (sic)  and D1-3’s family through conversation.  Then, PW1 and PW2 agreed to D3’s request, and D3 left the area under the bridge and walked towards the roadside outside Wah Yiu House.  PW3 was not aware of the direction D3 went afterwards.

206.  At around 11 pm the same day, while PW3 was facing the direction of Wah Yiu House, he saw a white Toyota LGV [he was not aware of the registration mark] driving downhill and being parked on the carriageway outside Wah Yiu House.  At that time, this vehicle was around 10 to 15 metres away from them. PW3 saw D3 running from the left of the carriageway to the LGV and yelled in Urdu, “Grab the tools”.  Then, D1 got out of the vehicle from the front passenger seat with a stick-like weapon [around 50 to 70 cm in length] in his hand.  D3 opened the door at the backseat and took out a stick-like weapon [around 50-70 cm in length].  D2 opened the door at the driver’s seat and got out of the vehicle with a hammer [around 20 to 30 cm in length] as a weapon. Also, a South Asian male whom PW3 did not know, around 1.7 metres in height, fat build, wearing a dark-coloured top and a pair of trousers (WP4), got out of the vehicle from the back car door.  At that time, PW3 saw that WP4 did not hold any weapons in his hand.  Later, D1-3 and WP4 ran towards them.  D1, holding a stick-like weapon with both of his hands, immediately assaulted PW1’s head and hit it around once.  Later, PW1 snatched the stick-like weapon held by D1, and D2 ran towards PW3 immediately.  D2, holding a hammer in his right hand, hit PW3’s left head once or twice.  Then PW3 walked away backwards. Being hit by D2, PW3 felt so dizzy and he kept looking at the floor at that time.  PW3 could only slowly walk towards the SINOPEC service station.  Seeking help from the staff at the station, PW3 asked them to call the ambulance. After resting for around two minutes, PW3 went back to the park.  D1-3 and WP4 were not there, and PW3 did not know their escape direction.

207.  After a while, the ambulancemen arrived and sent me to the hospital.  In the incident, PW3 did not have an obvious (external?)  injury.  After the incident, PW3 still had the symptoms of dizziness during the few days in the hospital.

PW4 Subhaan Naveed Khan (by way of witness statement dated 5 August 2024 marked P14 admitted under section 65B)

208.  PW4 is the cousin of PW1-3.  He lived in Chi Hong Estate (in Chi Wan Shan).

209.  Around 2255 hours on 29 July 2024, he arrived with PW2 on his motorcycle at Wah Yiu House, Lai Yiu Estate.  PW1 and PW3 were sitting and chatting with a few fellows of Pakistanis under the bridge in Central Kwai Chung Park opposite Wah Yiu House.  Therefore, PW2 and PW4 chatted together with them.

210.  Around 2255 hours the same day, PW1-3 were at his back.  PW4 was chatting with other fellows of Pakistanis at that time.  PW4 heard a male who spoke in Urdu, “Two days later, we arrange to meet [our] fathers to settle the problem face-to-face.”  Later, PW1 and PW2 replied in Urdu and said, “Okay.”  At that time, PW4 was not aware what happened to them.

211.  Around 2310 hours the same day, PW4 noticed there was a white LGV (registration mark unknown)  driving towards outside of Wah Yiu House and it stopped.  After that, a South Asian male wearing a black top and black trousers [Male 1] got out of the vehicle from the front passenger seat with a stick-like weapon [around 45-60 cm in length]; a South Asian male wearing black top, black trousers and a black cap [Male 2] opened the door at the backseat and took out a stick-like weapon [around 45-60 cm in length; a South Asian male [Male 3] wearing a white top and light blue trousers, got out of the vehicle from the driver seat with a suspected hammer-like weapon [around 30 cm]; and a South Asian male [Male 4] wearing a dark-coloured top without carrying any weapons, ran inside the Central Kwai Chung Park outside Wah Yiu House.

212.  After that, Male 1 used a stick-like object and hit at PW1 once.  PW1 snatched the stick-like object from Male 1, while Male 3 held a hammer and hit PW3’s head about twice.

213.  Then PW3 walked away at once and Male 1, who was suspected to attack PW3, ran towards PW3 immediately.  Then PW1 held a suspected stick-like object waving towards Male 1, which is believed to scare away Male 1.  At that time, PW1 might have hit Male 1 once or twice, and then Male 2 snatched a stick-like object from PW1.

214.  When Male 2 and Male 3 were chasing towards PW1, Male 2 was using a stick-like object and Male 3 was using a hammer to attack PW1’s head.  PW1 was hit by Male 2 and Male 3 respectively for about 2 to 3 times, causing PW1 falling on the ground immediately.

215.  Then PW2 stepped up (ie stepped forward)  and stopped Male 2 and Male 3. PW2’s head was also hit by Male 3 two to three times by using a hammer.  PW2 was protecting himself by covering his head with his arms at that time, but PW2 had fallen to the ground.  After PW2 fell on the ground, Male 3 continued to use a hammer to attack PW2’s leg three to four times.  After that, Male 2 and Male 3 walked towards PW4, and Male 3 hit on PW4’s left elbow for two to three times.  Then, Male 2 used a stick-like object to hit PW4’s left knee once or twice.  After hitting PW4, Male 2 and Male 3 walked towards PW1.

216.  Eventually, they left by getting on the white LGV and went downhill.

217.  The whole attack process was around two minutes.  Male 4 did not attack PW4 at all.  Male 4 only watched nearby.

218.  PW4 reported the case to the police.  PW4 did not have any grudge with anyone or have any unsettled debts.  During the attack with chaos situation at that time, it was raining, and the surrounding light was insufficient.  PW4 did not know the appearance of Male 1-4.  Male 1-4 spoke in Urdu.

PW5 Ali Ihisham (by way of witness statement dated 30 July 2024 marked P15 admitted under section 65B)

219.  At around 2100 hours on 29 July 2024, PW5 went to Central Kwai Chung Park, which is outside Wah Yiu House, Lai Yiu estate, Kwai Chung.  PW5 saw PW1 and then they both sat in the park.

220.  About one hour later, PW1’s two younger brothers, PW2 and PW3, and his cousin, PW4 arrived.  At around 2200 hours to 2300 hours, a male M2 came to the park and spoke to PW1-3.  After that, M2 went out to the back of a lorry at the roadside.  M2 was making a phone call.  About 5 minutes later, a white LGV (unknown car plate)  drove to the roadside near the park.  It was driven by a male, and then three males got out of the vehicle.  PW5 was about 10-20 metres from the vehicle.  The three males were M1 holding a cricket bat, M3 carrying a hammer, and M4 (not sure if carrying any weapon).

221.  M2 was also at the roadside.  M2 opened the door of the vehicle’s back seat and took something, but PW5 was not sure what they were.

222.  Later, M1-4 ran towards the park together.  Out of fear for personal safety, PW5 ran backwards immediately.  Running about 10 metres away, PW5 saw one of PW1-3 snatched the cricket bat from M1’s hand.  M3 hit PW3’s head with a hammer twice.  Also, M1 walked towards PW3, seeming to want to attack PW3. Then, PW1 swung his cricket bat towards M1, during which M1 was hit.

223.  Later, M2 grabbed back the cricket bat held by PW1 and then M2 and M3 chased after PW1.  At that time, M2 holding the cricket bat, and M3 holding the hammer, hit PW1’s head about two to three times.  Then M3 chased after PW2 with the hammer.  That time, PW2 was using his hands to protect his head, while M3 used the hammer to hit PW2’s left arm two to three times.

224.  When M2 and M3 chased after PW4, M2 used the cricket bat to hit PW4’s elbow two to three times; M3 used a hammer to hit PW4’s elbow.

225.  PW5 was not aware if M4 had hit anyone.

226.  Later, M1-4 took all the weapons and escaped by getting into the white LGV.

227.  PW1-2 laid down on the floor.  PW5 called the police immediately.  PW5 found a phone on the ground.  PW5 picked up the phone with case and found there was attached thereto a HKID card of a male [it is an admitted fact that the phone with case, and the HKID card marked P8 – photos #17-18 of P9 – belonged to D1].

[It is an admitted fact that PW5 resided on 10/F of Wah Yiu House on the day of incident.]

MY CONSIDERATIONS

228.  I remind myself the burden of proof lies with the prosecution throughout, standard being beyond a reasonable doubt.  Defendants do not need to prove anything least so their innocence.  If there is a reasonable doubt in the prosecution case, the benefit of that doubt goes to the relevant defendant.

229.  I will consider the charges separately.  I will consider the evidence against each defendant separately.  One particular verdict against a particular defendant shall not influence other verdicts against the same or a different defendant.  However, I will watch out for inconsistent verdicts at all times.

230.  I bear in mind D1 has a clear record.  What that means is as compared with someone with a criminal record, D1 is less likely to have committed a criminal offence.

231.  I exclude from my consideration all hearsay evidence.

232.  I exclude from my consideration the external injuries of D1 and D2 as depicted in the photos in P11 as there is no evidence as to their cause(s).

233.  I have given myself the Turnbull directions.

234.  First, I will assess the credibility and reliability of the evidence of the witnesses.  In doing so, I have borne in mind that there are large parts of the evidence of PW1-3 relating to their previous associations with D1-3 that are not recorded in their respective witness statements.

PW1 MANJ Mohammad Suleman Khan

235.  As regards credibility, I have no doubt that PW1 was trying to tell the truth as best he could.  For example, when describing his various previous encounters with D1-3, he was limiting himself to brief encounters only.  Since he had not made any mention of these encounters in the witness statement, he could have exaggerated his evidence by saying he had spoken with them previously, thus adding strength to the recognition evidence.

236.  The fact that he had not mentioned a lot of things in his witness statement was not his fault.  According to him, if he had seen the need, he would have mentioned them.  The fact is that a civilian witness cannot be expected to act as a professional witness.

237.  As regards reliability, it is clear that timing of events was not one of PW1’s strengths.  Few witnesses would look at a watch/phone for actual times of events anyway.  The fact that PW1 gave an uncertain/incorrect timing of a particular event will not lead me to doubt the internal reliability of his other evidence (but subject to the evidence of other witnesses).

238.  In general, I am satisfied of the credibility of PW1’s evidence.  I am also satisfied of the general reliability of PW1’s evidence to the required standard when it is viewed internally.

239.  However, there is one aspect of the reliability of PW1’s evidence that I have a doubt about, and it is the fact that PW1 in court said D1-3 spoke as part of or prelude to the incident in Punjabi.  This is contrary to what PW1 had stated in the witness statement.  I am of the view what PW1 described nearer to the incident should be the correct version.  Hence, I will give no weight to this aspect of his evidence in court.

PW2 MANJ Mohammad Ibrahim Khan

240.  As regards credibility, I am satisfied that PW2 was trying as best he could to tell the truth in court. He has withstood vigorous cross-examination without being shaken. Again, the fact that PW2 has not mentioned a lot of things in his witness statement was not his fault.

241.  As regards reliability, I am of the view that save for a few aspects, PW2’s evidence is generally reliable.

242.  Those aspects include where, in Lai Yiu Estate, D1 – 3 lived. In his evidence, he said that D1-3 though living in the same Estate as him, lived in a different building from the one he lived in, namely Wah Yiu House.  However, in his witness statement, PW2 specifically stated that D1-3 lived in a unit in Wah Yiu House.

243.  Those aspects also include the language in which D3 said “Pick up/Grab the weapons/tools.” PW2 said in court D3 uttered those words in Punjabi. However, in his witness statement, PW3 described D3 as having said so in Urdu. I have reservations as to whether PW2 remembered it correctly 20 months after the event.

244.  Those aspects also include the sequence of events during the attack.  In court, PW2 said after he fell to the ground, he was attacked multiple times by D2 and D3.  Then D2 went to PW1 and hit PW1’s head before D2 (and D3)  went to attack PW4.  However, in his witness statement, he stated that D2 (and D3)  walked to PW4 and hit him before PW2 thought they walked away to PW1.

245.  In the circumstances, I have doubts about the reliability of PW2’s evidence in those 3 aspects but as regards his other evidence, I am satisfied as to the general reliability when it is viewed internally.

PW3 MANJ Mohammad Qasim Khan

246.  As regards credibility, there is nothing to lead me to doubt that in relation to PW3’s testimony.  That is especially true because by and large, the viva-voce evidence and the evidence (admitted under section 65B)  contained in ED1 support each other.  There are minor discrepancies such as timing of events and the direction of travel of the van/LGV when it arrived at the scene; but that goes to reliability not credibility.

247.  I am sure that PW3 has not been trying to hide his criminal record.  I am sure he was under a genuine misunderstanding as to whether his criminal record still stands.

248.  Regarding reliability, I note the date of ED1 which was less than 1 month after the incident.  Where there are differences, I am of the view that the evidence on that topic contained in ED1 is internally reliable (subject to the evidence of other witnesses)  and the viva-voce evidence is not reliable.  For example, the evidence contained in ED1 that D3 yelled in Urdu “Grab the tools” is reliable, whereas the viva-voce evidence that D3 said something similar but in Punjabi is not reliable.

PW4 Subhaan Naveed Khan

249.  There is no challenge to the evidence of PW4 by the defence.  I am prepared to give to his evidence full credibility.

250.  As regards reliability, equally, there is no challenge by the defence. I am prepared to give his evidence full internal reliability (subject to the evidence of other witnesses).

PW5 Ali Ihisham

251.  There is no challenge to the evidence of PW5 by the defence.  I am prepared to give to his evidence full credibility.

252.  As regards reliability, equally, there is no challenge by the defence. I am prepared to give to his evidence full internal reliability (subject to the evidence of other witnesses).

DETAILED ANALYSIS OF THE EVIDENCE

253.  The main dispute is identity of the assailants ie the persons who carried out the attacks on the night in question.  There does not appear to be much dispute about the attacks themselves on PW1-4, nor the sequence of the attacks.

254.  As regards the prelude to the attacks, there does not appear to be much challenge about the visit by D3 to PW1-3 at the park under the bridge at which time a dialogue between the two sides took place.

255.  Even PW4, whose evidence was not challenged by the defence, described the conversation of the visitor (whom PW4 did not identify)  in Urdu in some detail: “Two days later, we arrange to meet [our] fathers to settle the problem face-to-face.”  PW4 then described PW1 and PW2’s reply in Urdu as “Okay”.

256.  PW2 said something very similar in evidence.  He described D3 as sayings, “Give me 2 days’ time.  I will bring my family and elders. You will bring your family and elders, and we will solve this matter by involving the families.”

257.  PW1 also said something very similar in evidence. [14]

258.  PW3, when giving evidence by way of ED1, described the dialogue as “D3 wanted to settle the grudge between their families (sic)  and D1-3’s family through conversation.  PW1-2 agreed.”

259.  The central message is clear.  The visitor gave the proposal about a settlement involving the wider families and PW1-2 agreed to the proposal.

260.  I am satisfied that this visit did take place; and that during this time (measured in minutes), PW1 and PW2, and to a lesser extent PW3, would have been face to face with the visitor.  It was not a fleeting glance.  Although it was not bright, PW1-3 had been chatting there with others for sometime prior to the said visit.  Their eyes would have been accustomed to the lighting condition there.

261.  I accept from PW1-3’s individual evidence that they knew D3 (and for that matter, also D1[15] & D2)  at the material time.  It was a case of recognition.  There should be no difficulty of identifying it was D3 that they were dealing with during the negotiation.  Besides, according to PW1, D3 even introduced himself by name before speaking.

262.  Even PW5, whose evidence was not challenged by the defence, said that the visitor was making a phone call after he left.  This is telling because, according to PW5, 5 minutes later, the attack LGV arrived.

263.  As to who said something like “Grab the tools” in whatever language, I accept PW3’s evidence in ED1 ie it was D3 who on running from the left of the carriageway to the stationary LGV yelled in Urdu, “Grab the tools.”

264.  As regards the subsequent events, the respective evidence of PW1-5 are very close to each other with some minor/insignificant differences/omissions.

265.  Basically, the sequence of events are as follows and they are what I found as facts.

266.  D1/Male 1/M1 (hereinafter “D1”)  got out of the front passenger seat with a stick-like weapon.

267.  D2/Male 3/M3 (hereinafter “D2”)  got out of the driver’s seat with a hammer.

268.  D3/Male 2/M2 (hereinafter “D3”)  opened the door at the backseat and took out a stick-like weapon.

269.  Unknown male/Male 4/M4 (hereinafter “UM”)  got out of the vehicle with no weapon.

270.  All four males rushed towards PW1-4.

271.  D1 hit PW1’s head with stick-like weapon.  D1 snatched the weapon from D1. (Charge 1 Part 1)

272.  D2 hit PW3’s head with hammer.  PW1 said, “Don’t do it.”  D2 said, “Hit them on their heads.” (Charge 2)

273.  D1 approached PW3.  PW1 swung the stick-like weapon towards D1 to scare away D1 and might have hit D1.

274.  D3 snatched the stick-like weapon from PW1.

275.  D3 and D2 chased after PW1.  D3 and D2 hit PW1’s head with stick-like weapon and hammer respectively for 2-3 times.  PW1 fell to the ground.  D3 dragged PW1 causing him knee injuries. (Charge 1 Part 2)

276.  PW2 tried to stop D3 and D2.  D2 hit PW2’s head with hammer.  PW2 protected his head with his arms but fell to the ground.  D2 continued to hit PW2 in his arm and leg several times. (Charge 3)

277.  D3 and D2 then approached PW4.  D2 hit PW4’s left elbow with hammer 2-3 times.  D3 hit PW4’s left knee with stick-like weapon[16]. (Charge 4)

278.  Eventually, D1-3 and UM left by the same LGV.

279.  Those were the facts as I found them.

280.  I am aware that the attack would have been over in a matter of minutes; and that the light condition could not be described as superior.  However, as I have accepted, based on the evidence of PW1-3, that this is a case of recognition rather than identification of a stranger, and that PW1-3 had been at the scene for quite sometime and would have been accustomed to the light intensity there, I conclude that the lighting condition was sufficient for identification by recognition.

281.  I am aware that PW4 said that the surrounding light was insufficient and he did not know the appearance of Male 1-4.  But that was said in the context of there being no evidence he had prior dealings with D1-3.  I will agree that the lighting condition would have been insufficient to map out the special features of a stranger for subsequent identification.  However, that is not the case with PW1-3 here.

282.  What’s more, there was supporting evidence of identification as far as D1 was concerned in the form of the finding of his phone and HKID card at the scene after the attack.  It is an admitted fact that on the day next after the attack, D1 went to the police to report the loss.  D1 did not give evidence as to circumstances of loss.  In the absence of evidence, it would be fanciful to suggest that he somehow lost them elsewhere and those items were brought to the scene by someone else; or that he lost them at the scene on an earlier occasion.

283.  Defence in submission made the point that PW5 was living on 10/F Wah Yiu House; and PW3 in ED1 stated that “D1-3 have been living on 10/F in Wah Yiu House”.  Defence thus made the submission that PW5 and D1-3 must have been neighbours known to each other.  Based on this, Defence made the further submission that the fact that PW5 did not identify the assailants as D1-3 meant either that D1-3 were not the assailants or perhaps that it was so dark that PW5 could not even identify a known neighbour.

284.  With respect, this set of submissions may be answered as follows.

285.  First, PW3 did not live in Wah Yiu House or Lai Yiu Estate.  He lived in TKO.  He only paid occasional visits to PW1-2 who together lived on the 3/F of Wah Yiu House.  PW3’s information might have been outdated.

286.  According to PW1, D1-3 lived in the area only. 

287.  Secondly, even if they lived on the same floor, it doesn’t make them known neighbours.  Much will depend on whether they had ever met on the corridor or in the elevators.

288.  Thirdly, even assuming they were known neighbours, there may be many reasons why a witness is unwilling to identify a suspect.

289.  Fourthly, in his witness statement P15, PW5 in the last sentence wrote: “Around 2 years ago, I was shopping for groceries in the market of Lai Yiu Estate and I saw that [M1] was working in the market.”  So it shows that, even in the alleged unsatisfactory lighting condition of the night, PW5 was still able to say (maybe mistakenly)  he could identify one of the assailants as someone he has previously seen.

ARE THE INJURIES SUFFICIENT?

290.  For Charge 1 relating to PW1, the injuries are clearly sufficient to constitute wounding.

291.  For Charge 2 relating to PW3, the injuries are clearly sufficient to constitute grievous ie very serious bodily harm.

292.  For Charge 3 relating to PW2, the injuries are clearly sufficient to constitute actual bodily harm.

293.  For Charge 4 relating to PW4, the injuries are clearly sufficient to constitute actual bodily harm.

MENS REA AND JOINT ENTERPRISE

294.  For Charge 1, the mens rea required is intent to do grievous bodily harm.  The primary offenders were D1 (for Part 1), and D2 and D3 (for Part 2).  The offence was a continuous offence with 2 parts.  Given the weapons used and the fact of multiple offenders against one victim, and the general direction of the blows, both mens rea and joint enterprise have been proved.

295.  For Charge 2, the mens rea required is intent to do grievous bodily harm.  The primary offender was D2.  Given the weapon used and the general direction of the blow, mens rea on the part of D2 has been proved.  Although D1 and D3 did not take part directly in the attack against PW3, they were part of the group that engaged in the attacks on PW1-4 including PW3. Judging on the weapon knowingly carried by D2, a hammer, there was a common criminal purpose that an offence involving an intent to do grievous bodily harm be committed against potential victims.  I am therefore of the view that “basic” joint enterprise has been proved on the part of D1 and D3.  In case I am wrong about that, D1 and D3 must have foreseen the possible incident that D2 commit an act with intent to do grievous bodily harm against potential victims, and hence be part of an “extended” joint enterprise.

296.  For Charge 3, there is no requirement of a specific intent. Recklessness is sufficient.  The primary offender was D2.  The common purpose of the attack group (involving at least D1-3)  must be at least to cause some actual bodily harm to potential victims.  D1 and D3 are liable under “basic” joint enterprise.

297.  For Charge 4, there is no requirement of a specific intent. Recklessness is sufficient.  The primary offenders were D2 and D3.  The common purpose of the attack group (involving at least D1-3)  must be at least to cause some actual bodily harm to potential victims.  D1 is liable under “basic” joint enterprise.

PROOF

298.  The prosecution has proved all elements of the offences under the four charges to the requisite standard.

CONCLUSIONS

299.  For the above reasons, I found the following verdicts.

300.  On Charge 1, all three defendants are guilty of the offence.

301.  On Charge 2, all three defendants are guilty of the offence.

302.  On Charge 3, all three defendants are guilty of the offence.

303.  On Charge 4, all three defendants are guilty of the offence.