HKSAR v. TSUI HO

DCCC 140/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 140 OF 2013

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REASONS FOR VERDICT

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1.  Charge

The defendant pleaded not guilty to the offence of wounding with intent contrary to section 17 (a) of the Offences against the Person Ordinance cap 212.

2.  Overview

PW1 a boy aged 17 years went to Tin Tsz Shopping Centre (Tin Tsz) in Tin Shui Wai, with a group of about 10-14 boys in a convoy of about four taxis on 8 August 2012 at about 8.45 pm. Included in the group were PW2, PW3 and PW4. PW’s 2 to 4 arrived at Tin Tsz earlier than PW1. When PW1 alighted from his taxi at the shopping centre he was suddenly assaulted. During the attack several blows were struck upon him with a skateboard on his head by a male. He sustained very serious head and eye injuries.

3.  PW1 admitted that he had gone to the shopping centre with a group of boys for a fight with another group of boys there at the shopping centre.  However as soon as alighted from the taxi at the shopping centre all the other boys in his group ran away to escape being beaten whilst PW1 did not manage to escape on time and was assaulted. 

4.  It was the prosecution’s case that the defendant was the male in the opposing group of boys who used a skateboard to strike several blows on PW1’s head causing him the serious injuries. 

5.  PW1 was unable to see who had hit his head as he was struck from behind, all that he knew was that he was struck with a hard object.

6.  In an identity parade held at Yuen Long Police Station on 10 August 2012 two days after the attack on PW1, three witnesses present at the scene PW2, PW3 and PW4 identified the defendant as the assailant or as the person holding a skateboard at Tin Tsz.

7.  The defendant denied his presence at the scene of attack.  He denied he ever used a skateboard to strike PW1’s head.

8.  Issues

None of the witnesses (PW’s 2 to PW4) identified PW1 as the victim of the skateboard attack. They did not know the victim of the attack. One of the issues was therefore if PW1 who was the one and the same person whom PW’s 2 to PW4 had seen was assaulted with a skateboard. The principal issue was however whether the defendant was the person who used a skateboard to strike at PW1’s head.

9.  A resolution of the above issues are to be decided on the credibility and reliability of the witnesses PW’s 2 to PW4.  

10.  The witnesses and burden of proof

The prosecution called four witnesses PW1 to PW4. They were all present at the scene of the attack. The remainder of the prosecution case was admitted by the defence. The ages of PW1 and PW3 was 17, PW4 was 19, whilst PW2 was 22 years old respectively.

11.  The defendant elected not to give evidence or call any defence witnesses.  I drew no adverse inference on the defendant’s right to remain silent.  No burden lies with the defendant to prove anything. It is for the prosecution to prove beyond all reasonable doubt that it was the defendant who used a skateboard to strike at PW1’s head.

12.  The prosecution case

On 8 August 2012 PW1 was at home playing on the computer. Sometime after 8.00 pm his friend Chu Hung asked him on face book to go out and meet him as something had happened to a friend called Ho Wan Lok. PW1 then left his home to meet them. He met them and a group of about 10-14 other boys at about 9 pm and together they took taxis to Tin Tsz Shopping Centre (Tin Tsz). He knew they were going there for a fight against another group of boys.

13.  That same evening at about 8 pm PW2 came to know that two of his friends nicknamed Sum Kee and Tai Hau had been beaten up.  PW2 related that the two boys told him about their beating as they were hoping that PW2 would help them by remonstrating with the group that beat them.  It was PW2’s evidence that the two boys Sum Kee and Tai Hau regarded him as their ‘big brother’ (though they were not related).  

14.  Later that evening PW1, PW2, PW3 and PW4 together with Chu Hung and about 10 other boys therefore went to meet up with the group who beat up Sum Kee and Tai Hau at Tin Tsz.  

15.  PW2, PW3 and PW4 were friends in one group (PW2’s group), whilst PW1 was friends with Chu Hung. Chu Hung also had his own group. PW1 was one of the boys in Chu Hung’s group.  These two groups met up with each other and formed one large group.  These two groups went as one group to Tin Tsz in alliance with each other.  They took a convoy of about four taxis to Tin Tsz.  Altogether in their allied group there were about 10-14 boys heading towards Tin Tsz. 

16.  PW2’s group arrived at Tin Tsz before PW1 and Chu Hung’s group.  When PW2 arrived at Tin Tsz, the opposite group of about 10 boys were already there.  PW2 said he went to talk to the leader of the opposite group called Tsui Shui Tak (Tsui).  The rest of PW2’s group were behind him. 

17.  PW2 asked Tsui why Sum Kee and Tai Hau were beaten.  Tsui told him that they had made an arrangement to have a fight with Chu Hung’s group, however they were unable to find Chu Hung instead they saw Tai Hau and Sum Kee so they were beaten up.  PW2 was told that there was now an arrangement to have a fight with Chu Hung’s group and after the fight PW2 would be told more.  At the time PW2 was talking to Tsui, Chu Hung who was his friend had not arrived yet at Tin Tsz but he knew that he was on board a separate taxi on the way there.

18.  Shortly after, PW2 saw Chu Hung alight from the taxi and then suddenly the whole of Tsui’s group then chased after Chu Hung and his group.  PW2 shouted at Chu Hung “run they are going to beat you.”  PW2 was then told by someone to run away quickly as this fight had nothing to do with him.  PW2 did as was suggested and ran up to a corridor next to the Welcome supermarket nearby.  From there, PW2 saw that one person of Chu Hung’s group was beaten by one person from Tsui’s group.  

19.  In his viva voce evidence, PW2 said as the case happened approximately a year ago he was unable to remember much about the case.  PW2 said he was unable to identify the person doing the beating.  He also could not remember if the victim was beaten with anything.  He did not see the person who did the beating in court.  He had seen the defendant briefly previously and knew him by his nickname Bo Lung.  He had no recollection if the defendant was there that evening.  However the person called Bo Lung was not present that evening.

20.  PW2 stated that he did attend an Identity Parade at the police station two days after the beating occurred on 10 August 2012. He recalled he identified a person in the parade as the attacker.  This person as admitted in the admitted facts was the defendant. 

21.  In cross-examination by Mr Oliver Davies counsel for the defendant PW2 agreed that the assault was for a very brief moment, and therefore he did not see the face of the victim or the assailant. 

22.  PW3 and PW4 both stated that they were friends of PW2’s and went to Tin Tsz estate by taxi together with each other because the people who beat Sum Kee and Tai Hau were there.  PW4 denied in cross examination that there was a triad element in this confrontation and that he went there to fight with the other group.  PW4 said that he had gone together with PW2 and others to discuss with the opposite group about the incident of his friends being beaten up.  

23.  PW3 said that when he arrived at Tin Tsz there were already about 20 odd persons there from the opposite group that were supposed to have beaten his friends.  He had known some of the persons nicknames in that other group, including one called ‘Ho Lung’ who he identified in court as the defendant.

24.  Soon after PW3 arrived Chu Hung arrived with his group.  PW3 then saw that one person from Chu Hung’s group was beaten with skateboard on his head more than once.  He recalled there were others kicking the one who was assaulted with a skateboard.  He however did not see the person using the skateboard to beat the victim.  He did say however he saw the defendant at Tin Tsz holding a skateboard and he was the only person with a skateboard or holding anything at all. 

25.  PW3 confirmed that he had viewed an identity parade on 10 August 2012 and identified the defendant.  He said that he identified the defendant as the one he saw holding the skateboard when he arrived.  However he did not see if the defendant was the man who used the skateboard to hit the victim. 

26.  PW4 said at Tin Tsz there were about 10 people in the opposite group.  He saw PW2 exchange a few utterances with a man he called Fei Lung from the opposite group.  After the conversation Chu Hung’s group arrived at Tin Tsz with his group.  As soon as Chu Hung’s group arrived he saw those 10 odd people chase Chu Hung’s group. 

27.  PW4 saw that one boy from Chu Hung’s group was being beaten with a skateboard while he was lying on the staircase.  He saw the boy was hit on the head about 10 odd times with a skateboard.  While this was happening Fei Lung told PW4 “this has nothing to do with you” and told them to leave.  He then followed PW2 and left. 

28.  PW4 identified the defendant as the person who was attacking the boy on the ground with the skateboard.  He said at the time the defendant attacked the boy no one else was attacking him.  He knew that the nickname of the defendant was Ho Lung. 

29.  PW4 confirmed he identified the defendant at the identity parade on the 10 August 2012 as the person who used a skateboard to attack the victim at Tin Tsz. 

30.  PW4 said that at the time the defendant used the skateboard to strike the boy it was about 9 pm.  He said he was able to see the attack clearly as he was standing at a distance of about 15 feet away and there was lighting coming from the shopping centre which was sufficient to allow him to see clearly.  He was able to recognise the defendant as he had seen the defendant on two previous occasions prior to this attack.  

31.  Submissions

I shall not repeat all of Mr Davies submissions but I have borne in mind and given due consideration to all his submissions and the evidence before me. In general he submits PW2, PW3 and PW4 were unreliable witnesses. He further submitted that although there was no dispute that PW1 was seriously injured in an attack on the night in question by a skateboard, there was no evidence that PW1 was the same person that PW3’s to PW4 had seen being attacked by a skateboard.

32.  Analysis

In considering the evidence I bore in mind that PW2 and PW3 at the time of giving evidence were incarcerated and have a criminal record. I have directed myself regarding the propensity of PW2 and PW3 of committing crimes. This evidence is relevant to their credibility and reliability.

33.  I have also borne in mind that the defendant is a man of clear record.  His good character makes it more unlikely than otherwise that he would commit crimes, as the prosecution alleges he did.

34.  I was alive to the fact that PW2 was referred to as a “big brother.”  This reference though denied by PW2 alludes to a triad element.  PW1 frankly revealed that he attended Tin Tsz as his friend Chu Hung asked him to go there to fight.  It appeared PW’s 2 to PW4 were there as Mr Davies put it to provide ‘muscle” to Chu Hung’s group.  I had borne in mind all these factors when considering the credibility and reliability of all the prosecution witnesses. 

35.  PW1 was the boy that was attacked with a skateboard that PW2’s to PW4 said was attacked

PW2 to PW4 all stated that they did not know the boy who was attacked. They were not asked to identify the victim of the skateboard attack. I was satisfied that the attack on the boy that they witnessed was upon the victim, PW1.

36.  I was satisfied and drew the irresistible inference from the evidence before me for the following reasons :-

a) PW2 – PW4 said that the opposite group attacked ONE person from Chu Hung’s group;

b) PW1 was one from Chu Hung’s group;

c) PW2 to PW4 all said that there was only ONE person who was assaulted and

d) PW3 and PW4 said that that only ONE person was assaulted by a skateboard.

37.  Reliability of PW1’s evidence

It transpired in cross-examination by Mr Davies that PW1 had given inconsistent oral evidence from that in his witness statement to the police some two months after the attack upon him. PW1 said in court that he had been assaulted by about 3 people whilst in his witness statement taken from him on 4 October 2012 he said he was hit by about 7-8 boys. He said in court that he had been hit once by a hard object yet in his witness statement he said he had been hit once or twice with a hard object. In his witness statement he said after being hit he fell to the ground and a group of people surrounded him and continuously kicked his head, arms and leg. In cross-examination PW1 said he never ran away and he was conscious throughout the assault, whilst in re-examination PW1 said that he had lost consciousness.

38.  It was clear from the agreed medical reports that PW1 sustained serious and severe head injuries as a result of the attack upon him.  PW1 said when he gave his witness statement his memory had not come back completely.  He said his memory of the attack was clearer in court when he was giving evidence than when he gave his witness statement.  PW1 was hospitalised for 13 days after the attack.  He had an emergency brain operation. He is still receiving treatment for his injuries today. I accept PW1’s evidence that shortly after the attack on him his memory may have been affected and in time it has returned.  However what matters here is that fact that PW1 was assaulted with a hard object which he was unable to see.  I was satisfied that after he was beaten, he was bleeding profusely and as a result he lost consciousness whilst at Tin Tsz.

39.  Reliability of PW2 and PW3

Despite both PW2 and PW3 identifying the defendant in an identity parade, in their oral evidence both said they were now unable to identify the attacker.

40.  PW2 and PW3 both agreed and it was an admitted fact that they identified the defendant in the identity parade two days after the attack.  Why then did they identify the defendant?

41.  PW2 said he identified the defendant because the defendant was the person who was the attacker.  This evidence however materially contradicted his oral testimony.  In court PW2 went to great lengths to distance himself from witnessing the assault and identifying the attacker.  I found PW2 to be wholly unreliable witness.

42.  PW3’s reasons for identifying the defendant in the identity parade was because he said the defendant was the person holding the skateboard at the scene, but notably not as the person who used the skateboard in the assault.  At the scene PW3 had looked at the defendant’s face for about one minute because he was attracted to the defendant as he was holding a skateboard whilst the others were not holding anything at all.

43.  I was satisfied that PW3’s evidence was reliable and credible and that the defendant was present at Tin Tsz the night of the attack and PW3 had seen the defendant holding a skateboard there. 

44.  Presence of defendant at the scene

I rejected the defendant’s case that he was not present at Tin Tsz the night of the attack. I was satisfied that the defendant was there as PW3 and PW4 had seen him there.

45.  What was the defendant doing that evening at Tin Tsz

PW3’s evidence was that the defendant was the only person holding a skateboard that evening. PW3 had witnessed the attack with the skateboard but was unable to see who was doing the attack. PW4 said he saw that it was the defendant who used a skateboard to strike PW1’s head.

46.  Was PW4’s observation and identification reliable and correct?

Location of assault

Mr Davies submitted that there was a discrepancy as to the location PW1 was assaulted. PW1’s evidence was that it was on the road at the taxi stand of Tin Tsz whilst PW4 said it was at the stairs leading up to the shopping mall of Tin Tsz. As can be seen from the photographs exhibited P2, these two locations are close to each other but the difference is one is on the road whilst the other is not.

47.  PW4 said that the defendant used the skateboard to strike PW1’s head about ten odd times at the stairs towards the shopping mall.  At the time PW1 was lying on the ground at the bottom of the stairs. PW4 marked on photo exhibit P3 an X where PW1 was lying when he was being beaten.  

48.  PW1 said he was assaulted as soon as he had alighted from the taxi at the taxi stand on the road.  He felt a hard object hit his head.  He marked the location with an X on a photo exhibited as P7.  PW1 said he was attacked on the road but did not fall to the ground there.  He said he ran away from the road and fell at the stairs to the shopping mall.  It was at the stairs towards the shopping mall when he lost consciousness.  When he lost his consciousness he did not know what had happened to him. 

49.  I did not find there to be any inconsistency or discrepancy in the evidence of PW1 and PW4 as to the location of the assault.  I accept that PW1 was struck with a hard object at the taxi stand, what was clear from PW1’s evidence was that he did not fall at the taxi stand but only at the stairs.  PW4 said he saw PW1 being assaulted when he was on the ground.  Their evidence is consistent with each other.  The only conclusion from their evidence is that when PW1 fell to the ground he was at the stairs and that is when he lost consciousness. 

50.  I had no hesitation in finding that when PW4 was observing PW1 being struck by the skateboard about 10 odd times, PW1 was at the staircase unconscious and PW1 therefore did not even know of the blows upon him.

51.  Identification of the defendant by PW4

Mr Davies submitted that the quality of PW4’s identification of the defendant was unreliable as PW4 only had a fleeting glimpse of the attacker.

52.  PW4 said that he had observed the defendant strike PW1 for about ten odd times.  He saw the defendant strike PW1 for about 5-6 times for about 30 seconds whilst he was standing above the stairs and he observed and heard the remaining blows by the defendant whilst he was running away.  He had also seen the defendant running up to PW1.

53.  PW4’s observation of the defendant’s face during the attack was brief.  During the defendant’s blows at PW1 it was only about 30 seconds, he was only able to observe the defendant’s face briefly.  I warn myself of the special need for caution that an honest witness can be a mistaken and convincing. 

54.  Although PW4 was not familiar with the defendant the defendant was someone he recognised and was not a complete stranger.  I accept however that even recognition identification can be mistaken.  However PW4 had seen the defendant twice before the night of the attack and as recently as one week before the attack.  On the first of those occasions he had seen him for several minutes.  PW4 had observed the attack from a close proximity of about 15 feet.  His observation was from a raised level at the top of the stairs.  PW4 pointed out he was near the plants located in photo 4 of exhibit P2.  PW4 estimated that his observation of the whole attack on PW1 was for about 2 – 3 minutes, that was from the time he saw the defendant running to PW1 and to the time he ran away.  I accept that PW4’s duration of the whole attack may have been a slight overestimate given that the actual blows he saw were for about 30 seconds.  However having warned myself of the weaknesses in the identification of the defendant by PW4, I was satisfied that PW4 had a clear view of the defendant and correctly identified the defendant as the assailant of PW1.

55.  Moreover as the defendant was the only person in the group holding a skateboard and immediately upon PW1’s arrival at Tin Tsz, the opposing group which the defendant was one of immediately ran to and attacked PW1.  Looking at the totality of the evidence it lends to irresistible inference it was the defendant who pounced on PW1 immediately after he arrived at Tin Tsz and the defendant was one and the same person that PW4 had seen attack PW1 with the skateboard and that PW3 had seen holding the only skateboard. 

56.  I was satisfied beyond all reasonable doubt that PW4 had correctly and reliably identified the defendant as the assailant that used the skateboard to strike several blows at PW1’s head when PW1 was unconscious at the stairs.  PW4 was an honest and reliable witness.

57.  Conclusion

None of the following facts cast any doubt on the prosecution case :-

(a) upon the defendant’s arrest the day after the attack he said under caution that he did not assault anyone,

(b)upon search of his house no skateboard was found and

(c) none of the defendant’s DNA was found at the scene.

58.  In the circumstances I was satisfied beyond all reasonable doubt that the defendant is guilty of the charge and the defendant is convicted of the charge accordingly.