HKSAR v. AJAY PAL SINGH

DCCC 11/2018

[2018] HKDC 954

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 11 OF 2018

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Reasons for Verdict

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1.  The defendant faces a single charge of wounding with intent, contrary to section 17(a) of the Offences Against the Persons Ordinance. The charge arises out of a dispute in a prison whereby the victim was struck on the head by a plastic stool and received injuries to the head and body. The defendant says the evidence called by the prosecution cannot identify him as the perpetrator of that action, and that is the sole issue before the court today.

2.  The prosecution case is based on facts that were admitted and also the evidence of two witnesses.  The relevant admitted facts are that on 27 September, the defendant and the person called as PW1 were inmates of the Tong Fuk Correctional Institution in Lantau Island.  At 8.43 am on that day, they were in the garment cell workshop.   

3.  Thirdly, the defendant was assigned a seat M806 whilst PW1 was assigned seat M803.  Fourthly, there was a digital CCTV system in operation and that the relevant portions of those CCTV recordings were admitted into evidence.  Also, it is the basis of the injuries suffered by the victim as a result of the assault.

4.  The evidence was of short compass.  The victim, PW1, a Mongolian prisoner, was called.  He was on the basis of his evidence unable to make any identification of the perpetrator of the crime.  He had agreed that he had gone to seat M803 and was sitting there himself on a grey plastic stool.  He said he was hit on the head by a hard object whilst he was sitting.  He was not clear where the blow had come from.  He was hit twice on the right side of his skull.  He turned to look at the man who hit him.  He said he saw a Southeast Asian, probably Indian.  He was shocked.  He could not see clearly.  He was asked about the identity of the assailant.  He said, “It was so quick.  Several people were behind me.”  He did not know the assailant, and he was unable to provide an identification.  Clearly, given that evidence, no identification was attempted in court which is quite proper in the circumstances of this case.

5.  The second prosecution witness called was Correctional Services officer, Mr Yuen.  He was aware of the incident that occurred in the garment workshop and had reviewed the CCTV footage.  He confirmed what could be seen from any viewing of the recording, and that is the man who was in the seat M806 directly assaulting with the grey stool the man who was sitting in M803.  He was unable to recognise the man who had walked up out of M806.  He did say that the designated seats were specific to the individuals designated to be there as he said that the individuals were not permitted to swap their seats.

6.  That was the extent of the prosecution evidence together with the CCTV recordings which clearly show the assault.  I have made the observation at this stage, having seen those recordings, that they are not capable of providing an identification of the assailant.  The recording is too blurred, and there is no direct revelation, as it were, of the face of the perpetrator although the face of the victim can be seen and certain other people could potentially be identified from the recording, but that does not apply to the perpetrator whose back is in fact to the camera most of the time.

7.  As far as the defendant’s case is concerned, it was advanced by cross-examination, and also in this case, the defendant did not give evidence or call any evidence.  No adverse inference of course can be drawn from that decision.

8.  The sole issue before me in this case was whether there was any evidence capable of identifying the defendant before me as the perpetrator to a criminal standard.  Criminal standard is of course proof beyond reasonable doubt with the burden remaining with the prosecution at all times.  Were there to be a competent identification, then of course there could be no issue that that caused the relevant injuries and those relevant injuries constituted the offence of wounding with intent. 

9.  So, as I said, the only issue was that of identification.  From my outlining of the facts, it can be seen there was no direct evidence that was capable of making an identification of this defendant as the perpetrator of the offence.  The first prosecution witness could not provide any identification of the defendant.  The second prosecution witness could not provide any identification of the defendant.  The CCTV recording could not provide any identification of the defendant.  So from that observation of the evidence, there is no direct evidence of identification. Clearly, the Turnbull direction is not appropriate in those circumstances.

10.  The sole evidence that can be relied upon by the prosecution and is relied upon by the prosecution is the evidence of PW2 and the admitted facts which combine to say that it was the defendant who was allocated to seat 806.  There can be no dispute that the assailant was in seat 806 when he commenced the assault against the victim.  The evidence of PW2 is that no other person would be permitted to occupy seat 806. 

11.  It is said that this evidence in the absence of evidence to the contrary is sufficient to establish by way of an irresistible inference that the defendant was the only possible occupant of seat 806 and thereby must be the perpetrator of the offence.  I note this is on the facts a possible matter of identification.

12.  However, does the broader evidence I have seen support that conclusion as the only reasonable inference that can be drawn?  It is fortunate in this case that it has all been recorded by CCTV cameras, in fact two CCTV cameras.  So we can see how the cell workshop was in operation on that morning.  My observation of that was that the inmates lounge about in their seats, some sleeping, some smoking.  Many huddle at the back. There seems to be a constant milling of inmates around the location.  Many are away from their seats as well as one is smoking.  There is no guard to enforce discipline or compliance with any of what might be the internal regulations of where people should or should not sit.  Even at the time when the assault takes place, there are many men out of their seats.

13.  My conclusion is it is simply not possible to reach as the sole conclusion the occupant of any seat is the person designated to that seat at the material time.  That being the only method by which the inference can be drawn, it is clear to me that no inference can be drawn to a criminal standard in this case.  Given that conclusion, there is insufficient evidence to prove beyond a reasonable doubt that the defendant was the perpetrator of the assault on the victim, and the charge will be dismissed.