HKSAR v. ABBAS YASIR AND OTHERS

DCCC 737/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 737 OF 2013

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REASONS FOR VERDICT

1.  D2, D3 and D4 plead not guilty to one charge of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance, Chapter 212. At the commencement of the trial D1 pleaded guilty to the charge. D1 does not agree paragraph 11 of the summary of facts that the offence was planned and executed with the support of D2, D3 and D4. I therefore held a Newton hearing at the same time as the trial to determine whether D1 acted alone or in concert with D2, D3 and/or D4.

Introduction

2.  Mr Kung Ho and his wife worked at Nina Tower, No 8 Yeung Uk Road in Tsuen Wan.  Mr Kung would drive to work with his wife usually arriving at about 8:45 a.m.  Mr Kung would park the car in a fixed parking space on the lower basement of the car park.  Mr Wong Chi Ho, the customer service officer of the management company of the car park, would greet Mr Kung and his wife by opening the fire exit doors leading from the car park to the lift lobby. 

3.  On the 7 June 2013 Mr Kung and his wife arrived as usual.  As they walked towards the fire exit doors four South Asian males were seen walking towards them.  One of the South Asian males, D1, attacked Mr Kung with an umbrella.  The attack, part of which was captured by the CCTV system of Nina Tower, lasted about 12 seconds from the first blow to when the last of the four South Asian males ran away. 

4.  The prosecution case in summary is that D1 together with D2, D3 and D4 agreed to attack Mr Kung intending to cause him serious bodily harm.  On the 5 June the prosecution contend that D1 was seen at Nina Tower planning the attack together with D2 and again on the 6 June with D2 and D3.  On the 7 June the four defendants were seen together at the West Rail Station in Tsuen Wan from where they proceeded to Nina Tower.  On reaching the lower basement of the car park they waited for the arrival of Mr Kung.  As opened by the prosecution when Mr Kung was walking to the lift lobby D1, D2 and D4 rushed forward.  D1 used an umbrella to strike Mr Kung whilst D2 and D4 punched Mr Kung.  Although not mentioned in the written opening the prosecution on the first day of trial conceded that the CCTV footage did not show D3 attacking Mr Kung.  The prosecution case against D3 is that by his presence in the car park, as part of a prior agreement to attack Mr Kung, he lent support to that attack. 

5.  In summary the defence case is that D1 acted alone.  D2 and D4 on seeing D1 attack Mr Kung with the umbrella tried to separate D1 and   Mr Kung.  D3 wanting nothing to do with the attack left the car park.    

Evidence

6.  The prosecution called nine witnesses, namely Mr Kung Ho (PW1); Mr Wong Chi Ho (PW2); WPC 56819 (PW3) and PC 13817 (PW4) who conducted the surveillance; PC 5835 (PW5); PC 6014 (PW6) and PC 54447 (PW7) the arresting officers of D4, D3 and D2 respectively;    DPC 5989 (PW8) who seized the clothes D1 had been wearing at the time of arrest; and DPC 34483 (PW9) who took a witness statement from Mr Kung.

7.  Evidence has also been admitted by D2, D3 and D4 pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibits P23, P29 and P31), including the seizure of exhibits from the car park (exhibits P1-P6); a sketch of the car park (exhibit P7); the clothing D2, D3 and D4 had been wearing at the time of arrest (exhibits P11-P19); the medical report on Mr Kung (exhibit P20); photographs (exhibit P21); CCTV footage (exhibits P22 & P28); the location of the International Social Services office (“ISS office”) at 118 Chuen Lung Street in Tsuen Wan; a map of the road network around Nina Tower (exhibit D1) and a photograph of the vehicular access in and out of the car park of Nina Tower (exhibit D2).  D1 has also admitted the evidence relating to the medical report; the CCTV footage; the location of the ISS office and the map and photographs of Nina Tower (exhibits P24, P29 and P31).  The summary of facts agreed by D1 on pleading guilty are marked exhibit P32.

8.  D2 gave evidence whilst D1, D3 and D4 elected to remain silent.  No witnesses have been called on behalf of any of the defendants.  No adverse inference is drawn against the defendants for remaining silent.  That is their right.  This proves nothing one way or the other.  This does not establish their guilt or in the case of D1 that he acted in concert with D2, D3 and/or D4.     

9.  D4 relies on the explanations given to the police in a video interview (exhibit P25) the voluntariness and accuracy of which has been admitted pursuant to section 65C of the Criminal Procedure Ordinance (exhibit P26).  In reaching my verdict I have considered the interview, both the inculpatory and exculpatory parts, in accordance with the principles in    R v Sharp (1988) 1 WLR 7.

10.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have to prove nothing.  I direct myself that I must be sure of the guilt of each defendant before I can convict, the case of each defendant to be considered separately. Equally the burden and standard of proof is the same on the Newton hearing the prosecution having to prove beyond reasonable doubt D1 acted in concert with the other defendants.

11.  I remind myself that when drawing inferences from the evidence the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.

12.  I have carefully considered all the evidence and the submissions of Mr Fenton, Mr Loftus, Mr Beel and Mr Sadhwani.  Unless otherwise stated I accept the evidence of the prosecution witnesses.

CCTV footage (exhibit P22)

13.  The CCTV footage comprises of one camera in the lift of Nina Tower and two views of the lower basement of the car park, one being a close up view.  The CCTV footage from the lift and the close up were played as part of the prosecution opening but only the close up was shown to the witnesses.  References in my verdict to the CCTV footage unless otherwise specified refer to the close-up view of the car park.

14.  The CCTV footage of the car park has been played in court in real time, slow motion, double slow motion and frame by frame.  I have repeatedly looked at the CCTV footage in considering my verdict.  References will be to the time of the CCTV footage followed by the counter number when necessary to distinguish where within a particular second is being referred to.  To be noted is that the existence of the counter number was not drawn to my attention until the second day of  Mr Kung’s evidence.

Wounding

15.  There is no issue that Mr Kung was wounded having sustained a soft tissue laceration at the apex of the root of one of his teeth which required one intra oral black braided silk suture (see exhibit P20). 

Identification

16.  The attack on Mr Kung by D1 with the umbrella is clearly seen on the CCTV footage of the car park.  Prior to the attack the CCTV footage shows D1 in the car park together with three other South Asian males.  PC 5835 (PW5) testified that when he arrived at the lower basement of the car park he saw four South Asian males run out of the car park into the lift lobby.  PC 5835 followed them into the lift lobby where he intercepted and arrested one of them, who was D4.  The other three, who are D1, D2 and D3 were also intercepted and arrested in the lift lobby. 

17.  Mr Beel submits the evidence of PC 5835 is unreliable as being inconsistent with what is seen on the CCTV footage.  In cross-examination PC 5835 was asked by Mr Beel to draw a sketch of the lower basement of the car park showing where he was facing when he saw the four South Asian males run out of the car park.  On the sketch (exhibit P30) PC 5835 marked the four South Asian males together in a group.  Following this PC 5835 agreed that he would describe the four men as running together and that they went through the door one after the other in a continuous motion.  This Mr Beel says is inconsistent with the CCTV footage and is illustrative of how memory can play tricks. 

18.  In my view the inconsistency referred to by Mr Beel is more apparent than real and not material.  The CCTV footage shows all four defendants went through the fire exit door between 08:50:07 and 08:50:12.  D1 and D3 went through the door first followed by D2 and D4 2-3 seconds later.  Whilst there was a short gap between the defendants going through the door from the perspective of PC 5835 who was running from the far left of the car park towards the door he would have observed the four defendants within 5 seconds all go through the same door one after the other.  

19.  I accept PC 5835’s evidence that he saw all four defendants leave by the fire exit door.  The only inference to draw from this evidence is that D1 was in the car park together with D2, D3 and D4.  Although no prosecution witness has identified which is which defendant by reference to the CCTV footage by looking at the clothing the defendants were wearing when arrested one can identify each defendant.  From the CCTV footage one can see the red shirt worn by D1; the grey shirt worn by D2 and the white T-shirt worn by D3.  The CCTV footage does not however clearly show the shirt worn by D4 was a long sleeved checked shirt.  By looking at the CCTV footage of the car park alone one would say D4 was also wearing a white shirt, the sleeves of which are rolled up.  Looking however at the CCTV footage of the lift of Nina Tower one can clearly see the shirt worn by D4 is a checked shirt.

20.  In addition D2 in his evidence when shown the CCTV footage identified all of the defendants.  Between 08:48:35 (2362) and 08:48:40 (2490) D2 identifies the two persons seen walking together as D1 and D4, with D4 wearing the lighter coloured shirt.  D2 identifies himself as the one walking ahead of D1 and D4 and D3 as the one entering the car park from the fire exit door at 08:48:53.  Also I note at no time have any defence counsel put identification in issue.

21.  The issue to be determined is whether D1 was acting alone when he attacked Mr Kung or whether D2, D3 and/or D4 were party to a joint enterprise with D1 to cause Mr Kung serious bodily harm.  The prosecution rely on the surveillance of the defendants on the 5 and 6 June and prior to the attack on the morning of the 7 June; the CCTV footage and the evidence of Mr Kung and Mr Wong.  I will first summarise this evidence and then consider the evidence as against each defendant.

Surveillance on the 5 and 6 June

22.  On the 5 and 6 June WPC 56819 (PW3) conducted surveillance of the 1/F of Nina Tower whilst PC 13817 (PW4) conducted surveillance of the Tsuen Wan Park, which is situated close to Nina Tower (see exhibit D1).  Shortly after 8:00 a.m. on the 5 June PC 13817 saw D1, D2 and two more non-Chinese males appear in the park near Nina Tower where they remained for about 30 minutes.  D1, D2 and one of the other two males then went to Yeung Uk Road outside Nina Tower.  The three of them went to the car park exit/entrance where D1 spoke to a security guard. Afterwards they entered Nina Tower.  WPC 56819 also saw these three in the park and later at 8:55 when they were crossing the footbridge from the 1/F of Nina Tower towards City Walk Phase 1, marked as position 1 on a sketch drawn by WPC 56819 of the 1/F (see exhibit P27).

23.  On the 6 June at 7:53 a.m. PC 13817 saw D1, D2, D3 and another male inside the park. Again they stayed for about 30 minutes when D1, D2 and D3 walked in the direction of Tai Ho Street at 8:27.  At 8:34 WPC 56819 saw D1, D2 and D3 also on the footbridge leading to City Walk, Phase 1.  At 8:57 D1 walked to position 2 on the sketch when he left the first floor by the emergency exit.  One minute later D2 and D3 followed and also left via the same emergency exit.  At 9:02 WPC 56819 saw D1, D2 and D3 reappear left of position 3 on the sketch.  D1, D2 and D3 stayed there until 9:12 when they walked along the footbridge towards City Walk, Phase 2.  PC 13817 saw them at 9:16 near City Walk, Phase 2 when they crossed Yeung Uk Road in the direction of Wo Tik Road.  

24.  The fact D1 and D2 were present at Nina Tower on both the 5 and 6 June and together with D3 on the 6 June raises suspicion that they were there to observe the movements of Mr Kung.  I am however satisfied without evidence that on either of those days they saw Mr Kung’s car arrive or they went to the lower basement of the car park it would be unsafe to rely on this evidence to show that the attack was being planned at that time. 

Summary of the evidence relating to the attack on Mr Kung.

25.  WPC 56819 and PC 13817 also conducted surveillance on the 7 June.  At 7:57 a.m. PC 13817 saw D1, D2, D3, D4 and a fifth male appear at the West Rail Station opposite the park.  At 8:13 they walked to the park.  At 8:19 PC 13817 followed the fifth male who left on his own.  WPC 56819 was the next to see D1, D2, D3 and D4 at 8:27 on the footbridge.  Five minutes later the defendants walked to Nina Tower to a place left of position 3 where they again left the first floor by an emergency exit. 

26.  The CCTV footage of the lift shows the four defendants going down to the lower basement of the car park between 08:47:19 and 08:47:45.  The area outside the lift on the lower basement is shown in photographs 32 & 33, exhibit P21. The CCTV footage of the car park shows the four defendants entering the car park between 08:48:27 and 08:48:47 with D3 the last to enter at 08:48:47.  The four defendants had by now been together for at least 45 minutes from when PC 13817 first saw them at 7:57 a.m.

27.  After entering the car park the CCTV footage shows D1 waiting in the car park. The other defendants all having walked behind car park space No. 24 (see sketch, exhibit P7) are at this stage out of view of the camera (see CCTV footage between 08:48:47 and 08:49:35).  Mr Wong is then seen approaching D1 and talking to D1 and D2 (see CCTV footage between 08:49:35 and 08:49:48). 

28.  Mr Wong testified that whilst carrying out patrol in the lower basement of the car park he saw four South Asian males.  Mr Wong approached and asked the one who was holding an umbrella (D1), in English, “What can I help you?” One of the other South Asian males dressed in grey (D2) replied in English.  Mr Wong could not quite remember what the reply was.  Asked if he remembered the gist Mr Wong replied, “Waiting for vehicle.”

29.  Mr Wong paid no further attention to the four South Asian males and walked to the fire exit door to open the door for Mr Kung.  This can be seen on the CCTV footage between 08:49:47 and 08:50:00 with Mr Wong seen leaving the car park at 08:49:59 just before Mr Kung is hit by D1 for the first time.

30.  As Mr Wong is walking away from D1 the CCTV footage shows  Mr Kung and his wife walking towards the fire exit door.  The longer view of the CCTV footage of the car park shows the arrival of the car driven by Mr Kung at 08:48:31; Mr Wong acknowledging the arrival of Mr Kung at 08:49:02 and Mr Wong speaking to D1 at 08:49:35 at which time Mr Kung has just got out of his car and started walking with his wife towards the fire exit door.    

31.  Mr Kung testified that after alighting from his car he noticed four South Asian males on his right, one of whom was carrying an umbrella (D1).  Having almost reached the lift lobby Mr Kung saw the four males also walk towards the lift lobby.  All of a sudden the one holding the umbrella attacked Mr Kung striking him on his mouth with the umbrella.  This can be seen on the CCTV footage between 08:49:48 and 08:50:00.

32.  When D1 intended to hit Mr Kung the second and third time Mr Kung used his hands to protect his face whilst warding off the attack.  At this juncture Mr Kung saw the other three males also rush forward.  This can be seen on the CCTV footage between 08:50:00 and 08:50:03.  By this time Mr Kung had retreated into the car park spaces 5 & 6 (see sketch, exhibit P7).  Most of what happened in the car park spaces is out of view of the CCTV footage.  Mr Kung and D2 are behind the wall of car park space No. 6 while D1 is only seen part of the time. 

33.  Mr Kung testified that during the chaos he was punched by someone other than the one holding the umbrella.  As he was covering his face   Mr Kung could not say who punched him save that it was not the one holding the umbrella.  Mr Kung could not be sure if he was punched by one or more than one.  In cross-examination when asked if it was possible the man with the umbrella had punched him with his other hand Mr Kung replied, “Yes, may be, I guess.” 

34.  Mr Kung was also holding a bottle of whisky which in the chaos he threw on the ground.  Mr Wong testified on hearing the sound of a glass bottle shattering he rushed back into the car park when he saw the four South Asian males attacking Mr Kung.  Mr Wong said at least three were hitting Mr Kung with fists.  The CCTV footage shows Mr Wong coming back into the car park at 08:50:03 (4561) and in the two car park spaces   5 & 6 between 08:50:05 (4590) and 08:50:07 (4642) with Mr Kung beginning to move out from the two car park spaces at about 08:50:05 (4952).  

35.  When the CCTV footage was played to Mr Wong he said that at 08:50:04 (4574) (a time when D1 and Mr Kung were behind the wall of car park space No. 6 and out of view of the CCTV camera) he saw D1 having bodily contact with Mr Kung by which he meant D1 was probably using fist to hit Mr Kung.  Mr Wong said he could not remember anything else happening at this juncture. 

36.  The CCTV footage between 08:50:05 and 08:50:08 shows Mr Kung coming out of car park spaces 5 & 6 at a time when he is still trying to prevent being hit by the umbrella.  The umbrella falls to the ground after which D1 runs away.  Mr Kung regains his balance and steps back on seeing D2 and D4 approaching him.  When the CCTV footage was stopped at 08:50:05 (4606) at a time when Mr Wong was still inside car park spaces 5 & 6 and Mr Kung was beginning to move out of the two car park spaces Mr Wong said Mr Kung was being attacked by more than one person. 

37.  Mr Kung testified he managed to move away from the person with the umbrella back into the middle of the car park when at least one person was chasing after him.  Mr Kung was not sure if there was more than one who chased after him but there was at least one, who punched him on his head.  Very soon after Mr Kung said the police arrived and chased after the four South Asian males who had escaped towards the lift lobby.  Mr Wong testified on seeing Mr Kung being hit he rushed forward and spread his arms to prevent Mr Kung being hit after which the South Asian males began to escape.  Mr Wong then saw a large group rush out from the staircase claiming to be police officers (see CCTV footage between 08:50:05 and 08:50:11 with Mr Wong seen spreading his arms in front of Mr Kung between 08:50:09 and 08:50:11).

38.  When Mr Kung was shown the CCTV footage between 08:50:08 (4668) and 08:50:09 (4690) when two persons can be seen (D2 and D4) he said he was not sure if both of them hit him as he was concentrating on the danger ahead.  Again due to the chaos Mr Kung was unable to say if he was punched more than once.  When Mr Wong was shown the CCTV footage between 08:50:06 (4636) and 08:50:09 (4692) he explained that two of the four South Asian males (D2 and D4) were within a meter of Mr Kung about to throw a punch at which time Mr Wong tried to stop them.  Mr Wong said from the CCTV footage he was only able to see one male punch Mr Kung which was at 08:50:08 (4675).  Having viewed the CCTV footage Mr Wong said he was not sure whether both males punched Mr Kung and could not recall what the other one was doing at that time. 

Consideration of the evidence of Mr Kung and Mr Wong

39.  Although there is no evidence as to what caused the wound to Mr Kung’s mouth I accept the submission of Mr Beel the injury was likely caused when D1 used the umbrella to strike the face of Mr Kung, Mr Kung having testified he was hit in the mouth by the umbrella.  Mr Beel submits the evidence that Mr Kung was also punched is not supported by the medical evidence or the photographs of Mr Kung’s face. The medical report (exhibit P20) apart from referring to both upper and lower lips being swollen details only the condition of Mr Kung’s teeth.  Photographs 45-48 (exhibit P21) show only swelling of the lips and the injury to the mouth.  In cross examination when asked by Mr Beel if it was true he only complained about injury to the mouth Mr Kung replied that he also said there was slight redness on the forehead.  Mr Beel submits if Mr Kung was punched one would expect to see at least reference to redness or tenderness in the medical report or signs of redness on the photographs.

40.  I note the attack on Mr Kung took place at 08.50 whereas Mr Kung was not seen by Dr Ma until 2:30 in the afternoon, some 5 hours and 40 minutes later (see the medical notes attached to the medical report).  I also note the medical report is from the Dental Clinic and that the report concentrates on injuries to the mouth as can be seen by the attachment to the report showing the condition of the individual teeth. 

41.  There is no evidence before the court of the time the photographs were taken however by looking at photograph 47 which appears to show the black braided silk suture the photographs must have been taken after medical treatment.  The absence of reference to slight redness in the medical report and no such injury being shown on the photographs do not cause me to doubt the evidence that Mr Kung was punched.  

42.  Mr Beel goes further and submits that in saying he was punched    Mr Kung has embellished and fabricated his evidence, which submission is adopted by Mr Sadhwani.  This Mr Beel submits is because Mr Kung made no mention in his witness statement of being punched and categorically said that he did not see how the other three attacked him.  Mr Kung was specifically referred to paragraph 5 of his witness statement, the following part of which was read out in court: “After that the other three also approached to attack me.  In fact I at the time was holding a bottle of whisky.  I fended off the attack with the bottle of whisky.  In the confusion the bottle of whisky fell onto the ground and broke.  Regarding how the other three attacked me I was unable to see.  The time of being hit was very short.”

43.  Mr Kung said the witness statement was taken in hospital at a time when he was still bleeding and in great pain whereas DPC 34483 (PW9) gave evidence he took the witness statement from Mr Kung at his home commencing at 15:45.  In cross-examination DPC 34483 said he sought clarification from Mr Kung of what he meant by attack however Mr Kung did not give a clear account of what happened when the attack took place. 

44.  The difference as to where the witness statement was taken is not reconcilable. Wherever the statement was taken the fact remains that    Mr Kung not only did not use the word punch but also said he did not see how the other three attacked him. Although in cross-examination Mr Kung explained attack included being hit and being punched I am satisfied in the circumstances I must proceed with caution before accepting Mr Kung’s evidence he was punched.  I will return to whether or not Mr Kung was punched when considering the case against D2.

45.  I am nevertheless satisfied that Mr Kung has neither embellished nor fabricated his evidence.  I find that throughout his evidence both in chief and under cross-examination Mr Kung accepted he could not see everything that happened and would say when he was not sure.  By way of example in chief Mr Kung said because he was covering his face he could not see who punched him; he could not be sure whether he was punched by one or more than one person; was not sure whether one or more than one person chased him back into the middle of the car park but that there was at least one who punched him on his head; and due to the chaos Mr Kung was unable to say at this time whether he was punched more than once.  In cross-examination Mr Kung also repeated when he put his hands in front of his face he could not see clearly and said that he could not be sure whether D1 also punched him and that there was no way for him to correctly say whether only one person hit him.  In my view this is not the evidence of a witness seeking to embellish or fabricate the truth about what happened.

46.  Criticism is also made of Mr Kung’s evidence in relation to the whisky bottle.  In cross-examination Mr Kung disagreed he used the bottle to ward off the blows whereas in the same paragraph of his witness statement referred to earlier Mr Kung said he fended off the attack with the bottle of whisky.  I am satisfied looking at Mr Kung’s evidence as a whole this difference is more apparent than real and not material. 

47.  In chief Mr Kung said that in the chaos he threw the bottle on the ground.  Later when the CCTV footage was shown to Mr Kung and stopped at 08:05:03 he was asked by Mr Fenton what happened when he was behind the wall of the car park space. Mr Kung replied that it was very chaotic at this stage and if he remembered correctly the umbrella was still being used and he was warding off the attack with his hand whilst holding the bottle of whisky.  Mr Kung said it was probably during this stage that he threw the bottle away after which some one rushed towards him and punched him.

48.  In cross-examination when Mr Beel put to Mr Kung that before the bottle was broken he used the bottle to ward off the attack Mr Kung replied; “It should be put in this way. I used both my left and right hands to ward off the attack and I was holding the bottle of whisky in my right hand.  It was not the case I used the bottle to ward off the umbrella because the bottle was not able to ward off the umbrella.”  Mr Beel also criticises this evidence submitting that a bottle is a greater weapon than an umbrella and that Mr Kung used the bottle to defend himself leading to the bottle coming into contact with the umbrella or a person and shattering into pieces of glass which flew across the car park. 

49.  I have no hesitation in rejecting this submission.  When Mr Beel asked Mr Kung why he threw the bottle Mr Kung replied it was not convenient to hold the bottle because the bottle would break at anytime.   I accept this explanation.  I also accept Mr Kung’s evidence in cross-examination that when he threw away the bottle he did not know if the bottle came into contact with anyone or with the umbrella.  Further I accept the explanation given by Mr Kung in answer to the court that when he was hit by the umbrella he wanted to protect himself and out of instinct warded off the attack with both hands and in the confusion threw away the bottle without giving any thought to which direction to throw the bottle.

50.  In my view Mr Kung’s evidence is consistent with the CCTV footage between 08:05:01 and 08:05:04 which shows Mr Kung holding up his hands to protect himself followed by what appears to be an object flying across the car park and landing near where broken glass fragments were found by the police (see exhibit P7).  Just before landing on the ground liquid can be seen splashing on the ground.  I accept the evidence of Mr Kung and Mr Wong that in defending himself Mr Kung did not use the bottle. 

51.  By reference to the CCTV footage criticism is made as to the reliability of Mr Wong’s testimony that he saw the four South Asian males attacking Mr Kung.  The CCTV footage shows that Mr Kung was not attacked by all four South Asian males. Mr Wong is therefore clearly mistaken when he testifies that having rushed back into the car park he saw the four South Asian males attacking Mr Kung with fists.

52.  However Mr Wong went on to qualify his evidence.  In evidence-in-chief shortly after saying he saw the four South Asian males attacking  Mr Kung with fists and before the CCTV footage was played to him Mr Wong was asked how many were hitting Mr Kung.  Mr Wong replied at least three.  Similarly in cross-examination when asked by Mr Beel if he was certain all four men attacked Mr Kung, Mr Wong replied he was not very sure if all four did that.  Notwithstanding this qualification I nevertheless bear in mind this mistake when considering Mr Wong’s evidence.

53.  I now turn to consider the case against each defendant.

D2

54.  D2 elected to give evidence.  In summary D2 testified that on the morning of the 7 June together with D3, who he lived with, he went to Tsuen Wan to accompany D1 to go to the ISS office.  On arrival D2 sat in a garden together with D1, D3, D4 and some other friends and talked about going to the ISS office.  After leaving the park they went to the 7-11 and the Wellcome supermarket in Nina Tower.  D1 then said he wanted to see someone and together they went to the car park of Nina Tower for a smoke. 

55.  Whilst standing in the car park D2 heard a noise like someone being abused and then saw D1 use his umbrella to strike Mr Kung.  D2 and D4 immediately went forward to separate D1 from Mr Kung.  During the ensuing struggle Mr Kung used a bottle to hit D1 underneath his left eye and on his head and used a broken bottle to try attack D2. 

56.  With reference to the CCTV footage D2 explained that at 08:49:43 (4061) D1 was asked something by Mr Wong therefore he moved closer to them.  When Mr Wong asked what they were doing there D2 replied, “We are leaving after smoking”.  D2 said that 08:49:59 (4462) was when he heard some abusive language in Chinese and 08:50:04 (4583) was when he moved across to separate D1 and Mr Kung.  In answer to the court D2 explained he did this by first pulling D1 back and then pushing him away. 

57.  At 08:50:07 (4653) D2 says Mr Kung was beating him up.  D2 therefore asked Mr Kung in English why he was beating him whilst at the same time trying to fend off Mr Kung who was holding a broken bottle in his hand.  D2 further explained that by extending one arm with a clenched fist he was giving Mr Kung a warning.  No contact was however made with Mr Kung.  When asked by Mr Beel whether this action was shown at 08:50:08 (4674) D2 replied that he used both hands, palms facing outwards, to push Mr Kung away.  At 08:50:10 (4733) D2 said he tried to flee because too many people came around them.

58.  D2 says that the attack was a surprise to him.  D2 did not know beforehand D1 was going to strike Mr Kung, the attack happening all of a sudden.  At no time did D2 punch Mr Kung rather Mr Kung punched D2.  D2 did not see anybody else apart from D1 strike Mr Kung. 

59.  I have no hesitation in rejecting the evidence of D2.  I do not find his evidence credible.  Not only does his evidence materially conflict with that of both Mr Kung and Mr Wong but also in my view with the CCTV footage. 

60.  I do not find credible D2 went to the car park to have a smoke.  In cross-examination when asked why he did not go to the park to have a smoke D2 changed his evidence to say that the only reason they were in the car park was because D1 wanted to see someone and they would go have a smoke afterwards.  

61.  Nor do I find credible D2 told Mr Wong they were leaving after having a smoke.  D2 agreed in cross-examination that what he said to   Mr Wong was not true.  Asked why he lied to Mr Wong D2 replied, “In fact we were about to leave.”  I also note this was not put to Mr Wong leaving unchallenged Mr Wong’s evidence that the gist of what D2 said was “Waiting for vehicle”.  I accept Mr Wong’s evidence that when he asked “What can I help you?” the gist of D2’s reply was “Waiting for vehicle”. 

62.  I do not find credible D2’s evidence that while standing in the car park he heard abusive language after which he saw D1 strike Mr Kung with the umbrella and therefore together with D4 he immediately went forward to separate D1 and Mr Kung.  The CCTV footage between 08:49:58 and 08:50:00 clearly shows that D2 and D4 were already walking behind D1 and in full view of D1 before D1 struck Mr Kung in the face with the umbrella for the first time. 

63.  Further nowhere on the CCTV footage does it show D2 or D4 trying to separate Mr Kung and D1.  Whilst accepting everything happened very quickly no attempt is made by D2 or D4 to stop D1 after the first blow with the umbrella.  They do not run forward to try stop D1 but continue walking towards D1 and Mr Kung and only reaching D1 after he has struck Mr Kung four times with the umbrella.  At this juncture D4 is seen putting his hand on the shoulder of D2 as though directing D2 to one side of D1 and Mr Kung whilst D4 goes towards the other side (see CCTV footage between 08:50:00 and 08:50:05).  Whilst one cannot see most of what happened when they were inside the car park spaces I am satisfied what is seen on the CCTV footage is wholly inconsistent with any of the defendants trying to separate D1 from Mr Kung. 

64.  I do not find credible D2’s evidence that between 08:50:07 (4653) and 08:50:08 (4674) Mr Kung was beating him up whilst holding a broken bottle in his hand. Nor do I find credible that by extending one arm with a clenched fist D2 was giving Mr Kung a warning.  Notwithstanding Mr Kung did not mention being punched in his witness statement I accept his evidence that at this stage he was punched which evidence is supported by Mr Wong.  Mr Wong specifically referred to the CCTV footage 08:50:08 (4675) as showing this punch, which punch Mr Wong says landed on Mr Kung.  While the CCTV footage between 08:50:06 and 08:50:10 cannot clearly show whether the punch landed on Mr Kung the footage in my view shows that when D2 throws the punch Mr Kung is trying to defend himself and in doing so steps backwards to avoid being hit.  D2 then immediately turns round and runs away.

65.  Mr Beel further submits that if fists were used when Mr Kung had moved back into the middle of the car park there could not have been any contact made because D2 was around 5ˊ from Mr Kung at the time.  The reference to around 5ˊ arises from an answer given in cross-examination when Mr Beel put that when the man in grey (D2) was in front of Mr Kung the distance apart was not less than 5ˊ - just under 2 meters.  Mr Wong replied “Approximately so – I guess”.  5ˊ was also mentioned in re-examination when Mr Fenton asked how far apart the man in grey was when he threw a punch at Mr Kung.  Mr Wong replied about the length of an arm, which he estimated to be 4-5ˊ.    

66.  Clearly this was only an estimate.  The reference to 4-5ˊ does not cause me to doubt Mr Wong’s evidence the punch landed on Mr Kung.  I also note in evidence in chief Mr Wong had said that D2 and D4 were within a meter of Mr Kung when D2 punched Mr Kung.  I accept the evidence of Mr Kung and Mr Wong that at this stage Mr Kung was punched, which punch landed on Mr Kung.  Even if the blow did not land on Mr Kung I am nevertheless satisfied this action was not an act seeking to separate D1 from Mr Kung or an act of self defence on the part of D2.  As can clearly be seen on the CCTV footage between 08:50:06 (4617) and 08:50:08 (4684) when D2 throws the punch D1 is no longer attacking Mr Kung and is in fact running towards the fire exit door leading to the lift lobby. 

67.  Taking into account inter alia:

(i) the defendants were together for at least 45 minutes prior to the attack on Mr Kung;

(ii) they all went to the car park together where they waited until the arrival of Mr Kung who arrived by car;

(iii) D2 said to Mr Wong they were “Waiting for vehicle”;

(iv) there was no other apparent reason for them to be waiting in the car park other than waiting for Mr Kung;

(v) the inherent improbability D1 would go to the car park with anyone else unless they were party to a prior agreement to attack Mr Kung;

(vi) the actions of D2 in the car park on the arrival of Mr Kung including that D2 punched Mr Kung as shown on the CCTV footage at 08:50:08 (4675); and

(vii) at no time did D2 make any attempts to stop D1 from attacking Mr Kung,

I am satisfied so I am sure the only inference to draw is that:

(1) D2’s presence in the car park was as a result of a prior agreementto attack Mr Kung intending to cause Mr Kung serious bodily harm; and

(2) D2 participated in the attack on Mr Kung.

D3

68.  Admitted in evidence is that D3 has a clear record (see paragraph 5 of the admitted facts, exhibit P29).  In considering good character I direct myself in accordance with the decision in HKSAR v Tang Siu Man [1997-98] 1 HKCFAR 107.   

69.  The CCTV footage shows that after entering the lower basement of the car park at 08:48:47 D3 walks across the car park past D1 to a position behind car park space No. 24 and out of view of the camera.  Only D1 can be seen at this point in time.  Mr Wong approaches to talk to D1 during which time D2 appears in car park space No. 24 and is also seen talking to Mr Wong.  Whilst D2 is talking to Mr Wong D3 appears inside car park space No. 24 and stands next to the wall (see CCTV footage between 08:48:47 and 08:49:48).

70.  As Mr Kung and his wife walk towards the fire exit door D1 is seen walking towards Mr Kung with D2 and D4 following behind.  Just as D1is about tostrike Mr Kung with the umbrella for the first time D3 starts walking behind D2 (see CCTV footage between 08:49:48 and 08:50:00).  When D1 is about to strike Mr Kung for the third time D3 is seen changing direction towards the fire exit door and quickening his pace (see CCTV footage between 08:50:00 and 08:50:02). D3 stops at the fire exit door at 08:50:04.  At no time is D3 seen hitting Mr Kung or coming into physical contact with Mr Kung.

71.  Mr Beel submits that there is no evidence that D3 knew there was to be an attack and that from the CCTV footage there is no indication that he assisted in anyway by his presence in the car park.  Mr Beel further submits that even if the court was to find D3 may have known about the attack his actions in the car park show that there had been effective withdrawal from any enterprise.  Mr Beel concludes by saying that by his actions D3 showed he wanted no part of what was happening and that there is a strong inference from how he behaved that D3 “…appeared shocked and wanted to get away as quickly as possible.” 

72.  I have no hesitation in rejecting this submission.  Whilst D3 heads towards the fire exit doors he does not immediately leave but instead stops near to the fire exit door for 2-3 seconds watching what is happening.  D3 only leaves once D1 has pushed away Mr Kung and starts to run for the exit.  This can be seen on the CCTV footage between 08:50:04 to 08:50:09 with D3 leaving the car park at08:05:07 (4658) and D1 at 08:05:09 (4691). 

73.  Taking into account inter alia:

(i) the defendants were together for at least 45 minutes prior to the attack on Mr Kung;

(ii) they all went together to the car park where they waited until the arrival of Mr Kung who arrived by car;

(iii) D3 was present when D2 said to Mr Wong they were “waiting for vehicle”;

(iv) there was no other apparent reason for them to be waiting in the car park other than waiting for Mr Kung;

(v) the inherent improbability D1 would go to the car park with anyone else unless they were party to a prior agreement to attack Mr Kung;

(vi) D3 left only when D1 had stopped attacking Mr Kung and had started to run for the exit; and

(vii) at no time did D3 make any attempts to stop D1 from attacking Mr Kung,

I am satisfied so I am sure the only inference to draw is that:

(1) D3’s presence in the car park was as a result of a prior agreementto attack Mr Kung intending to cause Mr Kung serious bodily harm; and

(2) notwithstanding D3 did not hit or come into physical contact with Mr Kung by his continued presence in the car park until D1 had stopped attacking Mr Kung and was running towards the exit to leave D3 intended and did by his presence encourage the attack on Mr Kung and was ready and willing to assist in that attack if so required.

D4

74.  Reliance is placed by D4 on the explanation he gave in the video interview (exhibit P25).  I have considered the whole of the interview.  The transcript of the interview is at times difficult to follow and understand what exactly is being said.  This is not helped by the fact that at one stage the Chinese/English interpreter (D) cannot interpret to the interviewer (A) everything that is being said because D4 (B) continues to talk as she is interpreting what the Punjabi interpreter (C) has said.  This results in D4 requesting the Chinese/English interpreter not to interpret at the same time which in turn leads to the writing down of what D4 says before being translated into English and then Chinese for the interviewer (see entries 611-650).

75.  Notwithstanding these difficulties what is clear is that D4 whilst accepting he was present in the car park when Mr Kung was attacked denies being part of a joint enterprise to wound Mr Kung.  In summary D4 says he went to Tsuen Wan for an interview at the ISS office however before going there he was told there was someone who they needed to talk with after which they would go to the ISS office (see for example entries 675-800); that he did not attack anybody (see for example entry 276); had no physical contact with any Chinese male (see for example entries 1018-1019)and that he rushed forward to stop his friend and separate him from Mr Kung (see for example entries 612-614 and 722).  D4 referred to the friend as the one in the red shirt, who is D1 (see entries 514, 932, 1252, 1518, 1576 and 1698 as read with entry 245).  I will refer to the friend hereafter as D1.

76.  Describing the incident in the car park D4 says the umbrella was held by D1 (see entries 502-520) but he did not see what D1 did with the umbrella (see entries 560-571).  This was because D4 was standing far away at the back and that there was a pillar in between (see entries 565-569; 574-597; 652-663; 949; 1046-1059 and 1079-1082).  On hearing shouting and what sounded like fighting D4 rushed towards D1 and Mr Kung to separate them (see entries 600-614; 689-695, 722, 752-755; 943, 1028-1087 and 1120-1171).

77.  I have no hesitation in rejecting D4’s explanation that he did not see what D1 did with the umbrella and that on hearing a noise he rushed forward to separate D1 and Mr Kung.  Contrary to the final submission of Mr Sadhwani I am satisfied the CCTV footage between 08:49:58 and 08:50:00 clearly shows that D4 appears from behind the wall of car park space No. 24 and is at the same time as D2 already walking behind D1 and in full view of D1 before D1 strikes Mr Kung in the face with the umbrella for the first time.

78.  Nowhere on the CCTV footage does it show D4 or D2 trying to separate Mr Kung and D1. Whilst again accepting everything happened very quickly no attempt is made by D4 or D2 to stop D1 after the first blow with the umbrella.  They do not run forward to try stop D1 but continue walking towards D1 and Mr Kung and only reaching D1 after he has struck Mr Kung four times with the umbrella.  At this juncture D4 is seen putting his hand on the shoulder of D2 as though directing D2 to one side of D1 and Mr Kung whilst D4 goes towards the other side (see CCTV footage between 08:49:58 and 08:50:05).

79.  While at first D4 said he did not know that there was an intention to hit someone (see entries 683, 740, 924, 1068 and 1230) in my view by the end of the interview D4 has clearly stated that he knew D1 was going to hit someone.  At entry 1449 D4 was asked why he went to the car park.  D4 replied that he was told D1 had to talk to a Chinese male who had used bad language and threatened to run him over and kill him (see entries 1449-1513).  In this passage of the interview D4 initially says at 1460 that D1 did not go for any fight but later at 1507 appears to say the Chinese male had to be assaulted.  This passage is purely the exchange between D4 and the Punjabi interpreter.  When the Punjabi interpreter interprets to the Chinese/English interpreter this part reads “My friend wants to assault him” (see entries 1514-1543).

80.  Again later in the interview when asked at 1675 why he went towards Nina Tower D4 replied because D1 wanted to hit the Chinese male however D4 goes on to say that he sought to persuade D1 not to hit him (see entries 1676-1677).  I have no hesitation in rejecting this explanation.  The CCTV footage clearly shows the actions of D4 are not those of someone trying to persuade D1 not to hit Mr Kung or trying to separate them. 

81.  Having carefully considered all the evidence I am satisfied no weight is to be attached to D4’s explanation of what happened inside the car park and his explanation at the end of the interview that he sought to persuade D1 not to hit the Chinese male, which explanations were not made on oath, have not been repeated on oath and have not been tested by cross-examination (see HKSAR v Wong Ka Wah CACC 260/2006).  I am satisfied however that full weight is to be attached to the admission that D4 knew someone was to be hit and that this was the only reason he went to the car park (see entries 1542-1547). 

82.  Mr Wong testified that when he rushed back into the car park he said at least three South Asian males were hitting Mr Kung.  The CCTV footage showing D3 did not hit Mr Kung this leaves D1, D2 and D4.     Mr Wong was however unable to point to anything on the CCTV footage showing that D4 did punch Mr Kung.   

83.  Even though the CCTV footage does not show all that happens inside the car park spaces 5 & 6 a careful look at the footage reveals that D4 appears not to enter the car park spaces.  As seen earlier the CCTV footage between 08:49:58 and 08:50:06 shows D2 and D4 walking towards D1 and Mr Kung and only reaching D1 after he has struck Mr Kung four times with the umbrella.  At this juncture D4 is seen putting his hand on the shoulder of D2 as though directing D2 to one side of D1 and Mr Kung whilst D4 goes towards the other side of D1 and Mr Kung.  From this point on D4 follows the action throughout from very close by until he leaves with D2, including being right next to D2 when D2 throws a punch at Mr Kung at 08:50:08 (4675).Significantly throughout this period D4 is not seen to try separate or stop D1 or D2 from attacking    Mr Kung (see CCTV footage between 08:50:03 and 08:50:09).

84.  Mr Sadhwani submits that Mr Wong’s evidence is unreliable because he wrongly remembered the colour of D4’s shirt.  In evidence-in-chief Mr Wong was asked if he could remember what clothes the two South Asian males (D2 & D4) seen at 08:50:07(4658) were wearing.    Mr Wong replied one in grey top and one in white top.  D2 was wearing a grey top (exhibit P11) whereas D4 was wearing a long sleeved checked shirt (exhibit P17). 

85.  Mr Sadhwani submits as Mr Wong was present at the time he should have remembered the shirt of D4 was a long sleeved checked shirt.  I have no hesitation in rejecting this submission.  Looking at the CCTV footage it is not at all surprising Mr Wong described the clothing worn by D4 as white.  The wrong description of the colour of the shirt worn by D4 does not cause me to doubt Mr Wong’s evidence. 

86.  Taking into account, inter alia:

(i) the defendants were together for at least 45 minutes prior to the attack on Mr Kung;

(ii) they all went together to the car park where they waited until the arrival of Mr Kung who arrived by car;

(iii) there was no other apparent reason for them to be waiting in the car park other than waiting for Mr Kung;

(iv) the inherent improbability D1 would go to the car park with anyone else unless they were party to a prior agreement to attack Mr Kung;

(v) D4 admitted the only reason he went to the car park was because he knew that someone was to be hit;

(vi) at no time did D4 make any attempts to stop D1 or D2 from attacking Mr Kung; and

(vii) the actions of D4 in the car park on the arrival of Mr Kung including that D4 throughout followed what happened from very close proximity as shown on the CCTV footage between 08:49:58 and 08:50:10,

I am satisfied so I am sure the only inference to draw is that:

(1) D4’s presence in the car park was as a result of a prior agreementto attack Mr Kung intending to cause Mr Kung serious bodily harm; and

(2) notwithstanding D4 is not seen on the CCTV footage to have hit or come into physical contact with Mr Kung by his continued presence in the car park until after D2 had thrown a punch at Mr Kung after which time together with D2 he ran away D4 intended and did by his presence encourage the attack on Mr Kung and was ready and willing to assist in that attack if so required.

87.  In reaching my verdict, in particular as regards D3 and D4, I have reminded myself that “mere” presence at the scene of a crime is not enough to prove guilt.  In Blackstone’s Criminal Practice 2014 at paragraph A4.28 the authors’ state:“Neither mere presence at the scene of a crime nor a failure to prevent an offence will generally give rise to liability. However, presence at the scene of a crime is capable of constituting encouragement …. If the accused is present in pursuance of a prior agreement with the principal, that will normally amount to aiding and abetting, but if the accused is only accidentally present then he must know that his presence is actually encouraging the principal(s).”  

88.  Similarly in Smith & Hogan’s Criminal Law, 13th Edition at paragraph 8.4.1.4 “Mere presence at the scene of a crime is capable of constituting encouragement or assistance, but D is not necessarily guilty as an accessory because he is present and does nothing to prevent P’s crime.  In some cases D’s presence will constitute encouragement or assistance because he is present in pursuance of an agreement that the crime be committed.  In other cases, D’s presence may be sufficient even though there was no prior agreement, and no positive act, provided his presence intentionally provides assistance or encouragement to the principal.”

89.  In the well known case of R v Coney (1882) 8 Q.B.D. 534 Hawkins J., said:

“It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting.”

90.  I am satisfied having agreed to go to the car park with the intention of attacking Mr Kung the presence of the defendants in the car park cannot be said to be “mere” presence.  Further I am satisfied that by remaining in the car park D3 and D4, who are not seen on the CCTV footage to physically participate in the attack on Mr Kung, intended to and did by their continued presence encourage and support D1 and D2 to carry out the attack on Mr Kung. 

Newton Hearing

91.  For the reasons already given I am satisfied so I am sure on the evidence produced at trial that D1 acted in concert with D2, D3 and D4 to cause Mr Kung serious bodily harm. 

Verdict

92.  In reaching my verdict I have reminded myself the defendants have nothing to prove and that if the defence evidence pointing to innocence is true or may be true the defendants are entitled to be acquitted. 

93.  I have carefully considered everything said by Mr Loftus, Mr Beel and Mr Sadhwani both individually and collectively, including that the wound was not caused by any of the defendants on trial; that an umbrella is not an item that would alert someone else that it is going to be used in an attack; and that D1 was also injured. 

94.  Mr Beel submits, which submission is adopted by Mr Sadhwani, that even if the court was to find that after Mr Kung was wounded by the umbrella the defendants or any of them joined in the attack there is no evidence that they inflicted any injuries on Mr Kung and therefore were a party to the wounding of Mr Kung.  In support Mr Beel relies on the decision in R v Grundy (1980) 89 Cr App R 333 where a policeman was attacked on the staircase of someone’s home.  Grundy arrived within a few seconds and joined in the attack including headbutting the police officer. The assault continued when the police officer was knocked to the ground.  The Court of Appeal held that Grundy was aiding the commission of the offence as soon as he joined in and there was ample evidence that the police officer sustained grievous bodily harm in the attack in which all three participated.

95.  Mr Beel submits the actions of the defendants unlike Grundy are not in furtherance of the attack which resulted in the wound to Mr Kung’s mouth and that far more evidence is required to find the defendants party to the wounding of Mr Kung.  I have no hesitation in rejecting this submission. The facts in Grundy are very different to the facts here.  The appellants in Grundy were not acting in concert in furtherance of any prior agreementto attack the police officer.  The defendants having gone to the car park with the intention of causing Mr Kung serious bodily harm are criminally responsible for all injuries sustained in carrying out that intention no matter who actually caused the injuries.    

96.  Mr Beel submits, which submission is again adopted by Mr Sadhwani, that the act of D1 carrying an umbrella, which is an everyday object, is not something from which a court can draw the inference the defendants knew the umbrella was to be used to attack Mr Kung.  This Mr Beel submits is very different to the situation in HKSAR v Terrado Alfredo S & another CACC 112/2005 where the Court of Appeal held that the court had properly found the defendants were acting in concert when, seeking revenge, they returned to a shop, one armed with an iron bar. 

97.  Again I have no hesitation in rejecting this submission which is based on the premise the attack on Mr Kung with the umbrella was a spontaneous attack unforeseen by the other defendants.  I am satisfied the defendants having gone to the car park together for the purpose of waiting for Mr Kung so they could cause him serious bodily harm were acting in concert.  As seen on the CCTV footage before D1 had struck the first blow with the umbrella D2 and D4 were already walking behind D1 followed by D3 and all in full view of what D1 was doing.  D3 only changed direction when D1 was about to strike Mr Kung for the third time.  The fact the wound was caused by D1 using an umbrella does not cause me to doubt the defendants were acting in concert to cause Mr Kung serious bodily harm. 

98.  Mr Sadhwani submits doubt is raised in the evidence of Mr Kung by reason of the fact D1 sustained injuries to his face as shown in photographs 49-51, exhibit P21.  When cross-examined by Mr Sadhwani Mr Kung denied that when defending himself he punched, hit or assaulted any South Asian male and said he did not know how D1 got the injuries shown in the photographs.  I accept the evidence of Mr Kung that in defending himself he did not punch, hit or assault any of the South Asian males.  This submission does not cause me to doubt the findings I have made. 

99.  Nothing said by Mr Loftus, Mr Beel and Mr Sadhwani causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt as against each defendant, the case of each defendant having been considered separately. D2, D3 and D4 are convicted as charged.

100.  I am satisfied so I am sure the prosecution have proved beyond reasonable doubt that D1 acted in concert with D2, D3 and D4.