HKSAR v. SO CHIN CHING AND OTHERS

DCCC 478, 838/2021 & 1007/2022 (Consolidated)

[2026] HKDC 330

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 478, 838 OF 2021 AND 1007 OF 2022 (CONSOLIDATED)

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REASONS FOR VERDICT

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1.  This case involves 6 defendants.  The 3^rd Defendant Chung Wai Chung (“Chung”) pleaded guilty to the charges he faced.  This trial only relates to 3 charges and D1, D2, D4, D5 and D6.  All 5 defendants pleaded not guilty to the charges they are facing:

(1) D1, D2, Chung, D4 and D5 have been jointly charged with 1 count of causing grievous bodily harm with intent[1] (Charge 1);

(2) D2, Chung, D4, D5 and D6 have been jointly charged with 1 count of wounding with intent[2] (Charge 2);

(3) D1, D2, Chung, D4 and D5 have been jointly charged with 1 count of common assault[3] (Charge 3).

Prosecution’s case

2.  The incident happened in the morning of 22 July 2020 on Cheung Chau Island.  At around 06:31:00 on 22 July 2020, a group of assailants were pursuing after Mr. Liu Tsz Ho (PW1) and a person with white T-shirt (“the Unknown Person”) at Kwok Man Road, Cheung Chau (“the Location”).

3.  It is the prosecution’s case that at approximately 06:31:04 on the same day at the Location, the Unknown Person was physically hit by a long object held by D4 (the male in black T-shirt with white shorts).  The prosecution further contended that D2 (the shirtless male with shorts) and D1 (the male with a surgical mask with a long object on the right-hand side next to D2) were pursuing after the Unknown Person (Charge 3).

4.  At approximately 06:31:11 (approximately 7 seconds later), D5 (the male with black T-shirt and pink and white shorts) was also pursuing the Unknown Person (Charge 3).

5.  Shortly after, the Unknown Person managed to escape from the assailants and departed the Location.

6.  Unfortunately, PW1 lost his balance and fell onto the ground while still at the Location.  He was the subject of a brutal attack by the assailants.  The prosecution contended that D1, D2, D4 and D5 were all participants in causing grievous bodily harm to PW1 (Charge 1).

7.  At around the same time, Mr. Shek Ka Fai (PW2) came to the Location where PW1 was being beaten by the assailants.  PW2 was able to witness PW1 being physically attacked.  Subsequently, PW2 was attacked by D2, D4, D5 and D6.

8.  Part of the incident was captured by the CCTV installed at Kwok Man School.

9.  Both PW1 and PW2 positively identified D2 at an identification parade on 21 September 2020.  PW1 also positively identified D5 at an identification parade on 26 May 2021.

10.  There is a receipt of Cheung Chau Seaview Holiday House which shows D6 was the person who rented the holiday house from 21 to 22 July 2020.

11.  The prosecution called a total of 8 witnesses to give evidence in court and tendered the written witness statement of Ms. Cheung Yun Mui (PW9) as part of the evidence.  A number of admitted facts were submitted.

12.  D5 challenged the admissibility of the evidence relating to the identification parade of D5. 

Admissibility of D5’s identification parade

13.  D5 disputed the admissibility of the evidence on identification parade on the ground that the prejudicial value of the identification parade outweighed the probative value as: (1) CIP Tse Tze Kwan (PW6) failed to eliminate the obvious differences in general appearances between D5 and the actors; and (2) PW6 failed to follow the passage in the identification parade book when briefing the witness about identification of culprit[4].

14.  PW6 was in charge of the identification parade of D5 at North Point Police Station on 26 May 2021.  PW6 confirmed with D5 whether he understood the parade notice issued to him (Exhibit P14) and was willing to take part in the parade.  D5 also confirmed he did not require the presence of lawyer for the parade.  Then PW6 asked D5 to select the actor who looked least like him.  As a result, actor no. 3 on the list (who stood at position 5) was excluded upon D5’s request.  PW6 further considered whether to exclude the actor who stood at position 1 as he had dyed his hair.  Given that D5 had not dyed his hair, that actor’s presence would not make D5 stand out.  Thus, PW6 decided not to exclude the actor at position 1.  Thereafter, D5 did not have any objection to any of the actors in the parade.  He then chose to stand at position 4.  Other actors stood at the remaining positions.  All actors and D5 took off their masks and put their hands behind.  PW6 then met PW1 and explained to PW1 that he should be certain that the suspect did assault him and it was only if he was certain before he should identify.  Subsequently, PW1 identified D5 in the parade. When D5 was told that he was identified, he had nothing to say. 

15.  Under cross-examination, PW6 said although he did not state to D5 in the words that “he had the right to ask for alterations”, he did ask whether or not D5 had any objections.  PW6 did not know that D5 was a detainee.  He was not aware of any obvious differences between D5 and the actors that necessitated the removal of shoelaces.   Although PW6 did not state to PW1 explicitly that the suspect might not be present at the identification parade, PW6 informed PW1 that he had to be “sure” that the person who assaulted him was at the parade prior to making identification.  PW6 stated that the words he used were far more stringent than the words “quite sure” used in the identification parade book (Exhibit P15).  He adopted a higher standard and the key idea was for PW1 to be sure prior to making identification.  PW6 reiterated that Exhibit P15 was only a guide/suggestion.  It was not mandatory.  For him, the crux was to bring out the idea that PW1 was sure by using stronger words than what was set out in Exhibit P15.

16.  After I ruled a case to answer on the admissibility of identification parade, D5 elected not to give evidence nor call defence witness.

17.  When determining the special issue, I remind myself that the burden is on the prosecution to prove beyond reasonable doubt that the identification parade was conducted in a fair and impartial manner.  D5 elected not to give evidence nor call defence witness.  This is his right and I will not draw any adverse inference against him for exercising his right.  On the other hand, it means that there is no evidence from D5 to undermine, contradict or explain the evidence adduced by the prosecution. 

18.  It is clear from the evidence of PW6 that D5 took part in the identification parade voluntarily.  Counsel for D5 did not criticise on the credibility of PW6.  PW6’s evidence was straightforward.  He was not shaken under cross-examination.  I find him credible and reliable.  I accept his evidence and attach full weight to his evidence.

19.  According to the records, D5 was under police custody at the time of the identification parade.  PW6 confirmed that according to the practice of police, if a detainee wore shoes with shoelaces, those shoelaces would be removed for safety reason during detention. 

20.  As far as D5’s complaint about his shoelaces being removed before the identification parade is concerned, as D5 has not given evidence, there is no evidence to support his complaint.  It was PW6’s evidence that he had observed the appearances of the actors and D5 and was not alerted of any apparent differences in relation to the shoes and/or socks they wore.  Evidence also shows that PW6 in other identification parades had made arrangement to cover legs and shoes or ask actors and suspect to remove shoes and socks if he found apparent differences in the appearances.  As he had not made any such arrangement in the identification parade of D5, this further supports the conclusion that he did not find any conspicuous difference.  Therefore, I find this ground of objection not substantiated. 

21.  Regarding the failure to follow the passage as set out in paragraph 3 at page 6 of Exhibit P15 when briefing PW1, the defence submitted that PW6’s failure to mention that the culprit may not be present at the parade left the suggestion / false impression that the culprit must be present at the parade constituting material irregularity causing grave prejudicial effect and rendered the identification parade unfair.

22.  Paragraph 3 at page 6 of Exhibit P15 reads as follows:

“3. Brief the Witness using the following passage as a guide:

‘You have been asked here today to see if you can pick out the person(s) whom you saw on (here give date and a brief description of what the Witness has seen). Before you view the Parade I must explain the following to you. Firstly, not only is there a Suspect(s) on this Parade but also 8 (or 12 if two Suspects) people who cannot have been present on (date). Secondly, the person(s) you saw on (date) may not be here. Thirdly, if you recognize the person(s) you saw on (date), and you are quite sure, please clearly state the number on the floor in front of him/her or write down the number on this sheet of paper (i.e. a blank sheet provided at the Witness Briefing Table). Please now follow me and view the Parade. Take your time and walk along the screen as often and as slowly as you wish.’”

23.  Unlike some other instructions in Exhibit P15 which appear mandatory, such as the use of words in Uppercase “DO NOT” in paragraphs 1 and 2 under the title “Viewing of Identification Parade By a Witness” at page 5 of Exhibit P15, the opening statement of the passage in question clearly states that the passage is to be used “as a guide”, meaning that it is not mandatory. Therefore, I agree with PW6’s evidence that the passage is a guide only.  The important point is to remind the witness that he/she has to be sure/certain before he/she identifies someone at the parade.  According to the evidence of PW6, he told PW1 to be sure/certain before making identification.  The standard attached to his choice of word is higher than what is required in the guiding passage (i.e. “quite sure”).  I therefore find that PW6 had reminded PW1 clearly that he had to be sure before he identified anyone from the parade.  I do not find this to be a material irregularity.  Instead, I find what PW6 told PW1 in effect provided better protection to D5.

24.  In view of the above, I find the prosecution has proved beyond reasonable doubt that the identification parade was conducted in a fair and impartial manner.  I rule the evidence on the identification parade of D5 admissible.  I have not found any circumstances whereby I have to exercise my discretion to exclude the evidence.  Therefore, the provisional exhibits PP14-PP18 are now formally marked as Exhibits P14-P18.  

Defence case

25.  Defence did not have any half time submissions on general issue.  After I ruled a case to answer, D1, D2, D4 and D5 elected not to give evidence nor call any defence witnesses.  D6 elected not to give evidence but called a defence witness to give evidence on his behalf. 

26.  While some of the defendants did cross-examine PW1 and/or PW2, it was never suggested to PW1 and/or PW2 that the physical beatings did not happen. It was also not suggested that the Unknown Person was not assaulted.  D2 and D5 alleged that PW1 and PW2 had made a mistake at the identification parades when picking out D2 and D5.  All defendants disputed whether or not the assailants, as captured in the CCTV footage (Exhibits P24 and P24A), was the respective defendant when compared to that defendant’s APS photographs and his VRI screen captures.  For the purpose of this judgment, the CCTV footage referred to hereinafter is the enhanced version of the CCTV footage (Exhibit P24A) unless it is specified otherwise.

27.  DW1, Ms. Cheung Hoi Lam, gave evidence on behalf of D6.  She first met D6 in April 2020.  She and D6 have been a couple together.  She confirmed that she and D6 and 3 friends went to Cheung Chau on 21 July 2020 and stayed there overnight before she had a surgery on 23 July 2020.  They rented 2 holiday houses in the same building.  She and D6 shared the same holiday house while the 3 friends shared the other holiday house.  They took some rest at the houses.  Later that night, they had BBQ and played mahjong.  At around 2 a.m. to 3 a.m. on 22 July 2020, she and D6 went back to their holiday house to rest.  They took a shower and ate in the holiday house.  They watched television together until 7 a.m. on 22 July 2020.  She was with D6 all the time except when in toilet located at the holiday house.  They slept from around 7 a.m. to 12 noon and then checked out.  She said that D6 had serious eczema and his face was always red.  She also said D6 had 2 “crowns” on his head as shown in Exhibit D6-2.

28.  Under cross-examination, DW1 agreed Exhibits P34, P39 and P39A depicted D6 as she could recognise D6 because of the shape of the man’s face, ears, eyebrows, the nose, and all these features.  She said she was watching television for an hour from 6 a.m. to 7 a.m.  She mentioned she had quite a good memory and that was why she could still recall watching television with D6 at the material time when giving evidence 5 years after the incident.

29.  She did not know the person depicted in photograph 2 at MFI-11(5), but she said that person looked a bit like D6.  She did not quite remember what D6 was wearing on 22 July 2020.

Legal principles

30.  In this case, the main issue is identification.  If any of the defendants were identified as one of the assailants, there is also the issue on joint enterprise, i.e. whether the identified defendant was a party to the group of assailants.  Both the prosecution and the defence have set out the relevant legal principles concerning identification and joint enterprise.  A gist of the principles are as follows.

(A) Identification evidence

31.  The Court of Appeal recently reviewed the principles regarding identification in HKSAR v Okafor Christian [2025] 1 HKLRD 1250[5]:

(1) The fundamental principles in R v Turnbull apply to the usual case when a witness gives evidence identifying the defendant as the person who has committed or is involved in the crime alleged against him.

(2) The jury should be warned of the special need for caution before convicting the defendant in reliance on the identification evidence, such as mistaken identification can happen and an honest person can be a convincing witness but may nevertheless be mistaken. The jury can only rely upon the identification evidence if they are sure it is accurate.

(3) The principles in Attorney General’s Reference (No 2 of 2002) are that the jury may be invited to conclude that the defendant committed the offence on the basis of a photographic image from the scene of the crime in at least 4 circumstances:

(i) Where the photographic image was sufficiently clear, the jury could compare it with the defendant sitting in the dock.

(ii) Where a witness knew the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he or she could give evidence of this.

(iii) Where a witness, who did not know the defendant, had spent time viewing and analysing the photographic images from the scene, thereby acquiring special knowledge that the jury did not have, he or she could give evidence of identification based on a comparison between those images and a reasonably contemporary photograph of the defendant, provided that the images and the contemporary photograph were available for the jury.

(iv) Where the witness was suitably qualified in facial mapping he could give opinion evidence of identification based on a comparison between images from the scene (whether expertly enhanced or not) and a reasonably contemporary photograph of the defendant, provided both were available to the jury.

(B) Joint enterprise

32.  The Court of Final Appeal in HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640 clarified the principles regarding joint criminal enterprise:

(1) The doctrine of joint criminal enterprise is distinct from the traditional rules on accessorial liability, although there are situations where those rules may overlap. Under the doctrine of joint criminal enterprise, liability is not derivative: it is not dependent on proving that one person (the principal) committed the main offence and that another (the accomplice) assisted or encouraged its commission. Liability is independently based on each defendant’s participation in a joint criminal enterprise where the requisite mental state to constitute the offence relevant to the defendant in question[6].

(2) In basic joint criminal enterprise, it involves the co-adventurers simply agreeing to carry out and then executing a planned crime, as set out in Miller v The Queen: “if the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus[7].”

(3) Since participation in the joint criminal enterprise makes all participants guilty whoever the actual perpetrator may have been, the doctrine is of particular value in murder cases where there is evidential uncertainty as to who struck the fatal blow[8].

(4) On the facts of the case, the Court of Final Appeal held that the appeal must be dismissed: “obeying orders from his triad boss, he and his fellows armed themselves with lethal weapons with the intention of ‘chopping’ – that is, at least inflicting grievous bodily harm on – their rivals. It was a basic joint criminal enterprise case and it mattered not that other members of the gang were the actual perpetrators of the fatal attack[9].”

Directions

33.  Prosecution has the burden to prove the requisite elements of the offences beyond reasonable doubt.  The defendants have no burden of proof.

34.  All defendants elected not to give evidence.  This is their right.  I will not draw adverse inference against them.  On the other hand, it means that there is no evidence from them to undermine, contradict or explain the evidence adduced by the prosecution. 

35.  D6 called DW1 to give evidence on his behalf.  Before reaching the verdict, I must consider the evidence of DW1.  If what DW1 said is or may be true, then D6 must be acquitted. 

36.  Even if the evidence of DW1 was rejected, I still have to consider the prosecution’s evidence and decide if the charges have been proved beyond reasonable doubt.

37.  Since there are more than 1 charge in this case, I have to consider the evidence relating to each charge against the person(s) charged.

38.  As there are 5 defendants in this trial, I have to consider the evidence relating to each of them separately.

39.  I bear in mind D1, D2 and D6 have no criminal conviction record when considering their credibility and propensity.

40.  I also remind myself that an inference must be drawn from facts proved and that inference must be the only reasonable inference to be drawn from the proved facts. 

Credibility of prosecution witnesses

41.  Prosecution called PW1-PW8 to give evidence in court and produced the written witness statement of PW9 as evidence.

42.  Prosecution mainly relied on the evidence of PW1 and PW2 regarding the circumstances of the assault.  Prosecution also relied on PW6’s evidence on the circumstances under which D2 and D5 were identified by PW1 and/or PW2.

(A) Credibility of PW1

43.  Counsel for D2, D4 and D5 criticised PW1 as being untruthful and unreliable in that:

(1) PW1 said in his witness statement dated 27 July 2020 that he “did not remember the appearance or the special features of his assailants for now”. He said he did not give further witness statement as the police had not contacted him. However, this was contradicted by the evidence of PW7.

(2) PW1’s identification evidence of D2 was based on observation made under “difficult and confusing” circumstances[10] which substantially reduced his observation to “fleeting glimpses”.

(3) CCTV footage showed PW1 was holding a wine bottle on the street in broad daylight and attacking others. It was submitted that PW1 was under the influence of alcohol which would undermine his ability to observe and recognise his assailants.

(4) While PW1 maintained that he identified D2 based on his “appearance and body size”, he failed to name any special feature or even the build of him in court. He never described D2 as being shirtless in his witness statement or in his evidence. The only descriptions in his witness statement were: “Among those men, I only remember a thin man in his twenties who stabbed me in the eyes and head many times with a stick, as well as a fat man in the twenties who hit me with a stick-like object”. It was submitted that the descriptions offered by PW1 did not relate to the male alleged to be D5.

(5) PW1 had made wrongful identification of 2 actors, who had no connection with the case, at the identification parades held on 17 September 2020 and 14 January 2021.

(6) PW1 was able to identify himself in MFI-1 but could not recognise himself in MFI-2 when the same showed him attacking others with a wine bottle.

(7) PW1’s version of all 3 males left the holiday house together in the early morning of 22 July 2020 was completely different from the account given by PW2. Such discrepancy casts doubt on the accuracy and reliability of both witnesses’ recollections.

(8) When faced with challenging questions, PW1 consistently resorted to claiming memory lapses and replied “I don’t remember” or “I am not sure”. Other than “Ah Ken”, he could not even remember the identity of PW2 who was present with him on Cheung Chau Island. Yet, when talking about identification parades, he claimed a recovered memory was sufficient to identify the assailants. Counsel for the defence said this pattern strongly suggested that PW1 tailored his responses to avoid scrutiny, undermining the trustworthiness of his account.

(9) PW1 admitted his criminal history. This further undermines his testimony.

(10) PW1 did not give a truthful account on what had happened on the material date. Channel 12 of CCTV footage between 06:29:51 and 06:30:20 clearly depicts that PW1 was the initial aggressor and assaulted two males with the wine bottle. The footage also shows the Unknown Person picked up a long stick and entered the assailants’ holiday house with PW1. Nevertheless, none of these events were mentioned by PW1 and PW2 in their oral testimonies. PW1 also denied that he used a bottle to assault others and he was the instigator of the whole incident.

44.  In assessing the credibility and reliability of PW1, I bear in mind that PW1 has a number of criminal conviction records (criticism (9) above). Nevertheless, none of them relates to offences involving dishonesty.  So I do not consider his conviction records have any effect on his credibility.  In gist, the other criticisms set out above are either about the credibility of PW1 in general or the reliability of his identification evidence.  My observations regarding the criticisms are as follows.

45.  Regarding criticisms (1), (6), (7), (8) and (10), as the incident happened 5 years ago, it is understandable that PW1 was not able to recall all the details of the incident.  Nevertheless, PW1 was able to recall the attack and his evidence is supported by and consistent with the CCTV footage (Exhibits P24 and P24A) and findings in the medical reports (Exhibits P1-P9).  The defence did not challenge PW1 on the basis that he did not suffer a physical beating.  Thus, the matters raised in these criticisms such as his version of how many male left the holiday house was different from PW2’s version or his refusal to identify himself in MFI-2 even though it is clear from the CCTV footage that the person in MFI-2 is him, and that he might be an aggressor by using a wine bottle to attack others prior to the attack does not change the fact that PW1 was later attacked and injured by a group of assailants when he was lying on the ground defenceless at the Location.  Therefore, I find all these criticisms do not affect the credibility of PW1 as far as his evidence about the attack at the Location and his injuries is concerned.

46.  Regarding criticisms (2), (3), (4) and (5), although the CCTV footage shows PW1 was holding a wine bottle and appeared a bit emotional, it does not show any signs indicating PW1 was under the influence of alcohol at the material time.  While PW1 was being attacked by the group of assailants, he said he only protected his head but not his face and thus was able to observe some of the assailants.  Thus, I do not accept PW1 only had “fleeting glimpses” of the assailants.  As far as his positive identification of D2 and D5 are concerned, PW1 was certain that he was not mistaken.  He relied upon their appearance and build.  It is clear that his identification of D5 had nothing to do with the absence of shoelaces, but based on D5’s physical features.  PW1 fairly admitted that he could not tell the appearance and build of the person at trial because of the lapse of time.  I find this understandable. Nevertheless, I cannot ignore the fact that in the 4 identification parades that PW1 had attended, he positively identified D2 and D5 as the assailants and identified 2 of the actors who were not involved in the attack as the assailants as well.  In other words, he wrongly identified 2 persons as the assailants.  While it is understandable that given the circumstances of the attack, PW1 may not be able to observe and recognise all the assailants, however, it will be unsafe to rely on his identification evidence when instead of saying he could not identify the persons at the parades, he identified someone who was definitely not involved in the attack.  Therefore, I accept submissions from the defence that PW1’s evidence on identification parades is not reliable.

47.  In view of the above, I find PW1 a reliable and credible witness as far as his evidence on the attack and the injuries he suffered is concerned.  I therefore accept his evidence on the attack and the injuries and attach full weight to this aspect of his evidence.  As stated above, I do not find his evidence on the identification parades reliable and I will not attach any weight to this part of his evidence.

(B) Credibility of PW2

48.  Counsel for D2, D4 and D6 criticized PW2 as untruthful and unreliable in that:

(1) PW2 gave evidence that he identified D2 at the identification parade on 21 September 2020 based on “his build and the tattoo on his hand or arm”. The evidence of PW7 and PW8 clearly established that had D2 had a tattoo on him, it would have been recorded in his Pol.539 and featured in his APS photographs. There is no evidence that D2 had a tattoo. It is clear that his identification was not based on D2’s appearance at all. Even if one were to accept that D2 had a tattoo on him, there was no evidence showing how it looked like and whether it was so unique that any risk of a mistaken identification could be ruled out. The prosecution said even if PW2 was mistaken about D2’s tattoo, one could still rely on his identification based on D2’s build. It was pointed out that when the identification parade was conducted on 21 September 2020, D2 and the actors were all sitting on chairs with their legs and feet covered with blankets (the 2^nd remark on page 4 of Exhibit P12). It was very different from observing one’s build when he was on his feet and moving about. It was also submitted that the identification of a suspect by way of his build alone was wholly unreliable.

(2) PW2 gave a wholly different account of his injury in court from what he told PW3 shortly after the incident. In particular, he told the officer that he had bumped into something and hurt his head. There is no reason why he chose to lie to PW3 if he had been attacked by someone and suffered injury.

(3) PW2 vividly described in court the injury to his (left) eye corner but the same was neither mentioned in his medical report (Exhibit P12) nor supported by any photographs of his injury (Exhibit P42).

(4) Despite his claim that he had some 20 seconds to observe his assailants, PW2 never mentioned anyone being shirtless.

(5) PW2’s account of how many males left the holiday house together in the early morning of 22 July 2020 before the attack was different from PW1’s account. It was submitted that these two accounts were mutually exclusive and showed the two witnesses’ recollection of this critical lead-up event was deeply flawed and unreliable.

(6) PW2 said he was attacked by a large-built man with tattoo on the arm using bamboo stick. Hence, it was submitted that D6 could not be the one who hit PW2 simply based on the body build. The prosecution failed to prove beyond reasonable doubt if PW2 was actually injured by the attacker or that he fell and bumped into something himself on the head.

49.  Similar to the criticisms on PW1, criticisms on PW2 are either about the credibility of PW2 as to the attack and injuries or reliability of his identification evidence.  My observations on the criticisms are as follows.

50.  Regarding criticisms (1), (4) and (6), I accept that the evidence available (i.e. the CCTV footage and APS photographs and VRI screen captures of D2) does not show the person alleged to be D2 and /or D2 had a tattoo at the time of the offence.  In the circumstances, it would appear that PW2 is mistaken about the tattoo of the assailant.  As he only relied on the build but not the facial features of the assailant to identify D2, I accept counsel’s submissions and find his identification evidence not reliable.  As the incident was captured by the CCTV, CCTV footage clearly shows PW2 was attacked by more than 1 person.  Thus, the fact that PW2 did not identify D6 is neither here nor there. 

51.  Regarding criticisms (2), (3), (5) and (6), PW2 was able to recall the attack and his evidence is supported by and consistent with the CCTV footage, the medical report and photographs.  The defence did not challenge PW2 on the basis that he did not suffer a physical beating.  Thus, the fact that his version of how many males left the holiday house is different from PW1 does not change the fact that both of them were later attacked by a group of persons. PW2 was never cross-examined about what he told PW3.  As PW2 was not given the opportunity to explain this issue, I will not take it against PW2.  As far as his evidence about injury near corner of his left eye is concerned, such injury was not stated in the medical report nor shown in the photographs.  PW2 may be mistaken about this given the long lapse of time.  In any event, CCTV footage clearly shows he was attacked on the head and then he touched his head as if he was checking his injury after the assailants left the Location (Channel 11 at 06:32:39).  Further, PW2 did sustain injury to his scalp after the attack as shown in the medical report (Exhibit P10) and photographs (Exhibit P42).  PW3 also confirmed that he saw injury on PW2’s head when he met PW2 at the scene. Thus, I do not consider this point would affect his credibility about the attack and the injury he sustained.

52.  In view of the above, I find PW2 a reliable and credible witness as far as his evidence on the attack and the injury he suffered is concerned.  I accept his evidence on the attack and the injury and attach full weight to this aspect of his evidence.  As stated above, I do not find his evidence on the identification parade reliable and I will not attach any weight to this part of his evidence. 

(C) Credibility of PW3-PW9

53.  In deciding the special issue on the admissibility of D5’s identification parade, I have already assessed the credibility and reliability of PW6.  I am not going to repeat the same analysis here.  It is my finding that PW6 is a credible and reliable witness.  I accept his evidence and attach full weight to his evidence.

54.  The defence did not challenge and/or criticise the evidence of PW3, PW4, PW5, PW7 and PW8.  These witnesses gave clear and straightforward evidence.  I find them credible and reliable.  I accept their evidence and attach full weight to their evidence.

55.  The defence also did not criticise the evidence of PW9 as stated in her written witness statement.  I find her evidence credible and reliable.  I accept her evidence and attach full weight to her evidence. 

56.  In other words, I accept the evidence of all prosecution witnesses and attach full weight to their evidence save and except those parts of evidence that I specifically mentioned above.

Credibility of defence witness

57.  For DW1’s evidence, I have the following observations:

(1) DW1 stated in her examination-in-chief that she went back to her holiday house on Cheung Chau with D6 at around 2 a.m. or 3 a.m. and then proceeded to watch television with D6 until 7 a.m. on 22 July 2020. However, under cross-examination, she changed her evidence by saying that they only started to watch television from 6 a.m. to 7 a.m.

(2) According to DW1, she had quite a good memory and she therefore remembered the trip to Cheung Chau and the fact that she was watching television with D6 at the time of the offence (i.e. 6 a.m. to 7 a.m.) even though it was 5 years after the incident when she gave evidence in court. On the other hand, despite her good memory, she could not remember the clothes D6 was wearing at the time of the offence. Her evidence is self-contradictory.

(3) Under cross-examination, DW1 confirmed that she did not know much about the police’s allegation against D6 as she did not ask for details. Given her close relationship with D6, DW1 should be anxious to know the details of allegation but she did not ask. I find that unreasonable.

(4) According to her evidence, police had made a mistake in arresting and accusing D6 for the wounding incident on Cheung Chau Island. Nevertheless, DW1 never made a statement to the police to clarify that she was with D6 at the time of the offence and that it was impossible for D6 to hurt anyone. Instead, she only made inquiries regarding D6’s bail. Her explanation that she did not know of the procedure and she was not coached by the lawyer is unreasonable and unbelievable.

58.  In view of the above, I consider DW1 not a credible and reliable witness. I do not accept her evidence except the fact that she and D6 were on Cheung Chau Island at the time of the offence.

Identification evidence against the defendants

(A) General observation

59.  The law on identification evidence is well settled.  The trial judge, as finder of fact, can make his/her own comparison with the photograph of the defendant and any footage alleged to have captured the defendant, provided the footage is sufficiently clear[11]. When making such comparison, the trial judge should bear in mind the Turnbull direction as applicable to the case in question.

60.  In this case, I have the opportunity to view the CCTV footage (Exhibit P24A) repeatedly.  According to the evidence, the footage captured the incident happened in the early morning.  It can be seen from the footage that it was captured in daylight.  I do not agree with D1’s counsel that there was uneven lighting.

61.  I agree with counsel for the defence that photographs of the enlarged images are blur (see for example photographs 6, 8, 10 and 12 of MFI-11(1)), but I find the images themselves (without enlargement) in the photographs and on the screen of the computer monitor are not blur.  Further, although the persons captured in the footage were moving and there may be occasions when the image may become blur while the person was moving fast, there are still some occasions with clear images of some of the assailants at some points of time in the CCTV footage even though the camera of CCTV was at an angle and the images captured were at a distance.  Therefore, I find the CCTV footage is sufficiently clear such that I can use the photographs of the defendants and make my own comparison with the CCTV footage to confirm if any of the defendants were amongst the group of assailants.  I bear in mind the Turnbull direction when making my own comparison.  I also bear in mind that I have to be sure beyond reasonable doubt that the person in the CCTV footage is a particular defendant before I can find that defendant as one of the assailants.

62.  In the CCTV footage, it is clear that there are more than 1 image within 1 second of the footage.  So, in order to let parties know which image(s) I am referring to when comparing the images in the CCTV footage with the APS photographs and/or VRI screen captures of a defendant, apart from quoting the time (hour:minute:second) as seen on the screen of the footage, I also provide the screenshots of the relevant images from the CCTV footage for parties’ reference[12]. Further, it should be noted that while the images shown in the photographs of MFI-11(1)-(5) and in the screenshots referred to in this judgment (printed on A4 paper) appear to be small, the identical images as appear on the screen of the computer monitor while playing the footage is much larger and thus clearer.  I am not going to repeat this remark in every section when I deal with identification evidence of each defendant hereinbelow.

(B) Identification evidence of D1

63.  The only identification evidence against D1 is the CCTV footage.  This Court was invited to compare D1’s APS photographs and VRI screen captures with the CCTV footage. 

64.  The prosecution contended that the APS photographs and VRI screen captures (Exhibits P30, P35 and P35A) provide a sufficiently clear image of D1’s facial features such as his eyebrows, the nose, the eyes, the forehead shape and structure, the overall facial structure and depth, the mouth and the ears.  The prosecution further contended that the only person wearing black shorts and putting on a mask in the CCTV footage was D1 as shown in MFI-11(1) photograph 2 (Channel 12 at 06:31:06), and by comparing the CCTV footage with the APS photographs and VRI screen captures, the eyebrows, the forehead shape, and the ears all correspond with D1. 

65.  Counsel for D1 challenged the comparison contending that (1) the CCTV footage, even with enhancement, was of poor visual clarity with uneven lighting condition, blurring caused by motion and limited by the angle of the camera, (2) the person alleged to be D1 had put on a surgical mask at the material time therefore the lower half of his face was concealed, which was essential for reliable recognition, (3) lack of positive identification by witnesses at scene, and (4) no forensic evidence, no similar clothes found at D1’s home and no circumstantial evidence connecting D1 to the masked person.

66.  In this case, I have the opportunity to view the CCTV footage repeatedly and with the enlarge screen function.  According to the evidence, the footage captured the incident happened in the early morning.  It can be seen from the footage that it was captured in daylight.  I do not agree with D1’s counsel that there was uneven lighting.  Further, I do not agree with counsel’s submissions that MFI-11(1) photograph 12 showed the targeted individual bearing a black beard.  I find “the black beard” referred by counsel is an area of darker colour apparently caused by the shadow of light under the chin of that person and definitely not a beard (see for reference Channel 11 at 06:32:25 when that person turned his head to the left and no black beard was shown at the chin area under the surgical mask). 

67.  Although the CCTV camera is at an angle, I can still see the whole face (although slightly at an angle) of the person alleged to be D1  at MFI-11(1) at Channel 12 at 06:31:06.  By comparing the CCTV footage with D1’s APS photographs and VRI screen captures, I find the hairstyle, eyebrows, the eyes, the forehead shape and the ears of the person alleged to be D1 were similar to those of D1. However, as I cannot see the features of the lower part of that person’s face which was covered by a surgical mask, and given there is lack of other evidence to show D1 was on Cheung Chau Island at the material time, I cannot be sure if the person with surgical mask on in the CCTV footage is D1.  In other words, I cannot be sure if D1 was one of the assailants. 

68.  In the circumstances, I find the prosecution has not proved beyond reasonable doubt that D1 was at the scene at the material time.  I therefore find D1 not guilty of Charges 1 and 3.

(C) Identification evidence of D2

69.  The prosecution relied on the comparison of D2’s APS photographs and VRI screen captures with the CCTV footage and the positive identification of D2 by PW1 and PW2.  As I have stated above, I will not rely on the identification of D2 by PW1 and PW2. 

70.  The prosecution contended that the APS photographs and VRI screen captures (Exhibits P31, P36 and P36A) provide a sufficiently clear image of D2’s physical and facial features.  These features include D2’s eyebrows, the nose, the eyes, the forehead shape and structure, the overall facial structure and depth, the mouth and the ears.  The prosecution submitted that D2 stood out from the other defendants as he had a larger body build and did not wear any upper clothing.  He was the only person wearing shorts with light blue/grey colour.

71.  The prosecution further contended that the eyebrows, the hairstyle, the large body build, the large facial structure, and the mouth of that person all match D2.  These matches could not be regarded as coincidences when viewed in totality.

72.  I have the opportunity to watch the CCTV footage repeatedly.  From D2’s APS photographs and VRI screen captures, it is clear that D2 had a larger body build than other defendants at that time.  In the CCTV footage, one of the assailants had a larger body build and did not wear any upper clothing.  It is easy to identify that person from the CCTV footage.  Although the CCTV camera is at an angle, there are occasions when the whole face of that assailant with larger build can be seen clearly, for example, MFI-11(2) photographs 9 and 10 (Channel 11 at 06:32:54) and screenshots D2[1] and the enlarged image version D2[2] at Channel 11 at 06:32:55.  Comparing these images with the features of D2 as shown in the APS photographs and VRI screen captures, I find that their features such as hairstyle, eyebrows, the eyes, the nose, the mouth, the ears and body build are the same.  Based on the comparison, I am sure the assailant with larger build and not wearing any upper clothing is D2. 

(D) Identification evidence of D4

73.  The prosecution relied on the comparison of D4’s APS photographs and VRI screen captures with the CCTV footage.

74.  The prosecution contended that the APS photographs and VRI screen captures (Exhibits P32, P37 and P37A) provide a sufficiently clear image of D4’s physical and facial features. These features include D4’s eyebrows, the nose, the eyes, the forehead shape and structure, the overall facial structure and depth, the mouth and the ears. 

75.  The prosecution also submitted that MFI-11(3) photographs 4 and 12 (Channel 12 at 06:31:04 and Channel 11 at 06:32:36) provide a sufficiently clear picture of the eyebrows, nose, eyes, forehead shape and structure, the overall facial structure and depth, the mouth and the ears of the person whom the prosecution alleged is D4.   It was alleged that D4 was the only person wearing white shorts compared to the other defendants.  In particular, the prosecution contended that the eyebrows, the hairstyle, the long nose, the ears and the facial structure of that person all match with D4.  These matches could not be regarded as coincidences when viewed in totality.

76.  D4’s APS photographs and VRI screen captures clearly show his facial features.  In the CCTV footage, the image of the person with white shorts are always at an angle.  Sometimes that person was looking slightly to the right side and some images only show a large part of his face from the right or from the left, for example MFI-11(3) photographs 3 and 11 (Channel 12 at 06:31:04 and Channel 11 at 6:32:36) and screenshots D4[1] and the enlarged image version D4[2] at Channel 12 at 06:29:02, D4[3] at Channel 12 at 06:29:05, the enlarged image version D4[4] at Channel 12 at 06:29:06, D4[5] at Channel 11 at 06:29:15, D4[6] at Channel 12 at 06:29:48, D4[7] at Channel 11 at 06:32:31 and the enlarged image version D4[8] and D4[9] at Channel 11 at 06:32:36. Nevertheless, when considering all these images together, one can get a full picture of the facial features of the person with white shorts.  Comparing these images with the features of D4 as shown in the APS photographs and VRI screen captures, I find that their features such as hairstyle, eyebrows, the eyes, the nose, the ears and the mouth are the same.  Based on the comparison, I am sure the assailant with white shorts is D4.

(E) Identification evidence of D5

77.  The prosecution relied on the comparison of D5’s APS photographs and VRI screen captures with the CCTV footage.  The prosecution also relied on the identification of D5 by PW1.  As stated above, I will not attach weight to PW1’s identification of D5.

78.  The prosecution contended that the APS photographs and VRI screen captures (Exhibits P33, P38 and P38A) provide a sufficiently clear image of D5’s physical and facial features.  These features include D5’s eyebrows, the nose, the eyes, the forehead shape and structure, the overall facial structure and depth, the mouth and the ears.

79.  The prosecution also submitted that MFI-11(4) photographs 2 and 8 (Channel 12 at 06:31:11 and Channel 11 at 06:32:49) provide a sufficiently clear picture of the eyebrows, the nose, the eyes, the forehead shape and structure, the overall facial structure and depth, the mouth and the ears of the person alleged to be D5.  It was alleged that D5 was wearing pink and white shorts which made him stand out in comparison to the other defendants.  In particular, the prosecution contended that the eyebrows, the hairstyle, the long nose, the ears and the facial structure of that person all match with D5.

80.  D5’s APS photographs clearly show his facial features while the lower part of his face was under a surgical mask in the VRI screen captures. Although the CCTV camera is at an angle, there are occasions when the whole face of the person with pink and white shorts can be seen clearly, for example MFI-11(4) photographs 1 and 7 (Channel 12 at 06:31:11 and Channel 11 at 06:32:49) and screenshots D5[1] at Channel 12 at 06:31:10, the enlarged image version D5[2] at Channel 12 at 06:31:11, D5[3] and the enlarged image version D5[4] at Channel 11 at 06:32:48, D5[5] and the enlarged image version D5[6] at Channel 11 at 06:32:49, D5[7] at Channel 11 at 06:32:53, and D5[8] and the enlarged image version D5[9] at Channel 12 at 06:33:01.  Comparing his face with the features of D5 as shown in the APS photographs, I find that their features such as hairstyle, eyebrows, the eyes, the nose, the ears and the mouth are the same.  Based on the comparison, I am sure the assailant with pink and white shorts is D5.

(F) Identification evidence of D6

81.  The prosecution relied on the comparison of D6’s APS photographs and VRI screen captures with the CCTV footage.  The prosecution also relied on the evidence of PW9 that D6 was the person renting the holiday house and he was present on Cheung Chau Island at the material time, which was confirmed by DW1’s evidence.  However, the fact that D6 was on Cheung Chau Island is not by itself evidence that D6 was one of the assailants.  At the end of the day, the issue is whether I am sure D6 was one of the assailants by comparing the photographs with the CCTV footage.

82.  The prosecution contended that the APS photographs and VRI screen captures (Exhibits P34, P39 and P39A) provide a sufficiently clear image of D6’s physical and facial features.  These features include D6’s eyebrows, the nose, the eyes, the forehead shape and structure, the overall facial structure and depth, the mouth and the ears.

83.  The prosecution also submitted that MFI-11(5) photographs 1 and 2 (Channel 12 at 06:31:35) provide a sufficiently clear picture of the eyebrows, the nose, the eyes, the forehead shape and structure, the overall facial structure and depth, the mouth and the ears of the person alleged to be D6.  It was alleged that D6 was the only person wearing long jeans compared to the other defendants.  In particular, the prosecution contended that the eyebrows, the hairstyle, the nose, the ears and the facial structure of that person all match with D6.

84.  D6’s APS photographs and VRI screen captures clearly show his facial features.  Although the CCTV camera is at an angle, there are occasions when the whole face of the person wearing long jeans can be seen clearly, for example, MFI-11(5) photograph 1 (Channel 12 at 06:31:35) as well as screenshots of 4 images of D6 all within the same second, namely D6[1] and D6[2] at Channel 12 at 06:31:35 and the enlarged image version D6[3] and D6[4] at Channel 12 at 06:31:35, D6[5] at Channel 11 at 06:32:28, D6[6] at Channel 11 at 06:32:31, and the enlarged image version D6[7] at Channel 11 at 06:32:31.  Comparing his face with the features of D6 as shown in the APS photographs and VRI screen captures, I find that their features such as hairstyle, eyebrows, the eyes, the ears, the nose and the mouth are the same.  Based on the comparison, I am sure the assailant wearing long jeans is D6.

Wounding evidence against D2, D4, D5 and D6

85.  As I have already found D1 not guilty of Charges 1 and 3 for the lack of identification evidence, there is no need for me to consider the wounding evidence against the person alleged to be D1 (“alleged D1”). 

(A) Wounding evidence against D2, D4, D5 and D6

86.  While I have to consider the evidence against D2, D4, D5 and D6 individually and separately, I have to consider whether any of them had interaction with each other before, during and after the attack when considering whether they were party to a joint enterprise in attacking PW1, PW2 and/or the Unknown Person, the respective victim of Charges 1 to 3.

87.  According to PW1, he went to Cheung Chau Island with a group of friends consisting of 2 males and 2 females.  CCTV footage shows his friends are PW2, the Unknown Person, a female in black clothes (“Female A”) and a female in white clothes (“Female B”).  Before PW1 fell onto the ground and was attacked at the Location, the CCTV footage shows he was with his group of friends.  PW2 identified himself at Exhibit P46 which corresponds to 06:32:02 at Channel 11 of the CCTV footage.  PW2’s self-identification was not challenged by the defence during cross-examination.

(1) Prior to the attack, i.e. before 06:31:11

88.  Channel 12 of CCTV footage shows D4 appeared with a male in long black trousers (“Male A”) at 06:28:51.  Then, a male in short jeans (“Male B”) talked with Male A while D4 was talking on the phone at 06:28:58.  D4 then waved at Male B.  So, it appears that D4, Male A and Male B knew each other.  At 06:29:52, PW1 appeared and hit Male A.  D4 tried to stop PW1 from hitting Male A at 06:29:54.  PW1 thus tried to hit D4 who ran away with Male A at 06:29:55. At this stage, it appeared there was altercation between D4, Male A and PW1. D4 then entered the pathway on the left side of the screen (“the Pathway”).  At 06:30:03, PW1 was standing at the entrance of the Pathway and appeared to be scolding D4 who entered the Pathway a few seconds earlier.  Shortly after, the Unknown Person got a stick-like object while Female A tried to stop him.  At 06:30:23, both PW1 and the Unknown Person entered the Pathway.  At that time, the Unknown Person was not holding any object.  Females A and B also entered the Pathway subsequently.  During this period of time, something might have happened at the Pathway as 2 passers-by stood and watched.  At 06:30:59, PW1 ran out from the Pathway.  One second later at 06:31:00, the Unknown Person also ran out from the Pathway.  D4 was holding a stick-like object trying to hit the Unknown Person.  At 06:31:01 to 06:31:04, D4 hit the Unknown Person with the stick-like object several times.  At 06:31:04, alleged D1, D2 and a male in black T-shirt with words “EA7” (“Male C”) appeared.  At 06:31:05, both alleged D1 and Male C were each holding a stick-like object while D2 did not have any weapon.  They all ran after PW1 and/or the Unknown Person.  D5 then appeared at the entrance of the Pathway.  At 06:31:06, alleged D1, D2, Male C were still running after PW1 and/or the Unknown Person while D5 came out from the Pathway.  At 06:31:09, D5 started to run after the group while Male B started to run with a stick-like object.  At this stage, it would appear that alleged D1, D2, D4, D5, Male B and Male C all knew each other.

89.  Channel 11 of CCTV footage shows at 06:28:26 to 06:28:54, PW1 and his group of friends appeared.  At 06:29:04, both PW2 and Female A looked towards the direction of the bottom of the screen.  At 06:29:12, D4 appeared at the bottom of the screen and was talking on the phone.  At 06:29:15, Male A appeared. At 06:29:16, both D4 and Male A looked towards the direction of the entrance of the Pathway.  At 06:29:22, PW2 walked towards Male A and talked to him.  Then D4 joined them.  At 06:29:36, PW2 was facing D4 and appeared talking to D4 before D4 turned round and talked on the phone.  At this stage, it would appear that PW2 knew Male A and maybe D4 as well.  At 06:29:42, PW1 and the Unknown Person came out from a building.  At 06:29:44, PW1 tried to hold onto Male A while PW2 tried to stop PW1 from doing so.  At 06:29:45, PW1 tried to hit Male A with a wine bottle.  Then there appeared to be some sort of scuffle near the lower right corner of the screen, which cannot be seen clearly.  Subsequently, the Unknown Person, Females A and B all walked towards that direction and disappeared from the screen.  At 06:31:05, PW1 appeared.  He was running and seemed to be chased by others.  At that time, he was still holding a wine bottle.  At 06:31:05, D4 appeared and he was holding a stick-like object.  The Unknown Person also appeared.  At 06:31:05, D4 was running and hitting the Unknown Person with the stick-like object.  Male C also appeared with a stick-like object.  At 06:31:08, D2 appeared.  Alleged D1 appeared holding a stick-like object.  At the same time, D4 chased the Unknown Person who was near PW1.  PW1 threw the wine bottle apparently trying to fend off the attack.  Alleged D1, D2 and Male C were still running towards PW1.  At 06:31:09, D4 avoided the wine bottle from PW1, the Unknown Person ran towards PW1 and past D4.  The Unknown Person then disappeared from the scene.  Alleged D1, D2 and Male C were still running.  At 06:31:11, PW1 fell onto the ground at the Location and were then attacked by others.  So, with all these interactions, it can be inferred that alleged D1, D2, D4, D5, Male A, Male B and Male C all knew each other. 

(2) Details of the attack at 06:31:11 to 06:32:26 at Channel 11

Time	Description
06:31:11-06:31:12	PW1 fell onto the ground.  Both D4 and Male C hit PW1 with stick-like objects several times.  Alleged D1 and D2 ran towards PW1.
06:31:13	Male B and D5 appeared.  Male B was holding a stick-like object.
06:31:15	D2 kicked at PW1 and then attacked him with fist.  Alleged D1 came near the Location with a stick-like object.  Male B and D5 ran towards the Location.
06:31:16	Alleged D1 used a stick-like object to hit PW1.
06:31:21	D5 was standing near the group.  D2 tried to find something on the street while other people in the group kept hitting PW1.
06:31:23-06:31:25	Alleged D1, D4 and Male C hit PW1 with stick-like objects.  D5 stood nearby.  D2 got a chair-like object from the street and used it to hit PW1.
06:31:29	D5 tried to find something on the street.
06:31:30	D4 and Male B hit PW1 with stick-like objects.
06:31:32	Male C hit PW1 with the chair-like object previously used by D2.
06:31:32-06:31:34	D5 got a pallet-like object from the street and threw it onto PW1.
06:31:35-06:31:36	D4 moved away the pallet-like object and then he and someone in the group continued to hit PW1.  Alleged D1 started to walk away from the Location.  Male C used a chair-like object to hit PW1 and then walked away.
06:31:38	PW2 appeared. PW2 and D5 did some sort of “pointing” gesture.  D6 appeared.
06:31:39	D4 and Male B were still hitting PW1 with stick-like objects.
06:31:41-06:31:43	D5 walked towards PW2 and then towards the direction of the Location.  D6 walked towards the Location.
06:31:47	Alleged D1 and Male C walked away from the Location.
06:31:53	Both D2 and D4 were hitting PW1 with stick-like objects.  D5 tried to pull D4 away.  D6 walked towards them.
06:31:59	PW2 approached the group.  D2 pointed a stick-like object towards PW2.
06:32:01	Alleged D1 looked back and walked away.  Male A appeared.  Alleged D1 turned round and looked back and walked a few steps towards them.
06:32:03-06:32:07	D2, D4 and D6 hit PW2 with stick-like objects.  D6 hit PW2 for at least 2 times.
06:32:09-06:32:22	Alleged D1 turned round and walked towards the entrance of the Pathway but still looked back occasionally.  D4 used a stick-like object to hit PW1, who was still lying on the ground.  D2 also hit PW1 with a stick-like object.  Male C stopped D4 from hitting PW1 again.  Alleged D1 walked towards Male A and they walked away from the Location.  D6 dropped the stick-like object and left the Location.
06:32:23-06:32-29	D2 was still pointing a stick-like object, attempting to strike at PW2 and at the same time appeared to be scolding PW2.  D5 walked and made “pointing” gesture towards the direction of PW2.
06:32:29	D4 walked away from the Location still carrying a stick like object.  Male C also walked away.
06:32:37	D2, D5 and Male B walked away from the Location.  PW2 came out after D2, D5 and Male B started to walk away.
05:32:47	D5 talked to Male B, who was still holding a stick-like object.  D2 was carrying a stick-like object.
06:32:51	D2 was pointing the stick-like object in his hand and seemed talking.  D5 looked back towards D2.
06:33:00	PW2 remained at the Location with PW1 on the ground.

(B) Wounding evidence against D2

90.  The Prosecution submitted that D2 was involved in causing grievous bodily harm to PW1 and PW2 (Charges 1 and 2):

(1) MFI-11(2) photographs 2, 3 and 4 (Channel 12 at 06:31:05 and Channel 11 at 06:31:08) show D2 was charging towards PW1.

(2) Channel 11 of CCTV footage at around 06:31:15 and MFI-11(2) photograph 5 (Channel 11 at 06:31:15) show D2 joined the group of assailants and was beating PW1 on the ground. D2 was the only person who was topless in the group of assailants which made him stand out and easier to identify. It can clearly be seen that D2 was engaged in physical violence against PW1.

(3) MFI-11(2) photographs 9 and 10 (Channel 11 at 06:32:54) show D2 was holding a hard stick-like object on his right hand. It was contended that there was no other innocent explanation as to why D2 would need such an object.

(4) Channel 11 of CCTV footage at 06:32:04 and MFI-11(5) photographs 5 and 6 (Channel 11 at 06:32:04) show a group of assailants (including D2) was attacking PW2.

91.  The Prosecution also submitted that D2 was involved in assaulting the Unknown Person (Charge 3):

(1) Channel 12 of CCTV footage at 06:31:04 and MFI-11(3) photograph 3 (Channel 12 at 06:31:04) show D2 was amongst a group of 3 men. He was running in the middle as the topless man. D4 was assaulting and chasing after the Unknown Person.

(2) Although D2 did not directly hit the Unknown Person, D2 was acting in concert with D4 who was hitting the Unknown Person. The close temporal and geographical proximity between D2 and the Unknown Person would lead to the irresistible inference that D2 was acting in concert with the other defendants in assaulting the Unknown Person.

(3) MFI-11(2) photograph 3 (Channel 11 at 06:31:08) shows D2 was pursuing in the direction of the Unknown Person. The Unknown Person was being hit by a long object by D4. This reinforces the fact that D2 was acting in concert in assaulting the Unknown Person.

92.  Relying on Chan Kam Shing, the prosecution submitted that if D2 was acting in concert by agreeing and executing the crime, D2 would still be guilty even if he did not strike the blow at the Unknown Person.

93.  Counsel for D2 did not make any submissions on the issue of joint enterprise in respect of Charges 1 and 2. 

94.  With reference to the evidence as shown on the CCTV footage I set out above, it is clear that D2 knew some of the assailants.  He joined in the group and chased after PW1.  When other assailants were attacking PW1, D2 joined in and kicked and fisted PW1 and later used a chair-like object to hit PW1, followed by an attack on him with a stick-like object.  All these support the only reasonable inference that D2 was a party to the group of assailants.  In light of the manner in which this group of assailants attacked PW1, i.e. by fists and kicks, hitting with stick-like object, chair-like object and/or pallet-like object for many times while PW1 was on the ground defenceless, the only reasonable inference is that they intended to cause PW1 grievous bodily harm.  At the end, PW1 did suffer grievous bodily harm including blindness to his left eye.  Therefore, I find the prosecution has proved beyond reasonable doubt that D2 had committed Charge 1.  I find D2 guilty of Charge 1.

95.  Similarly, from the evidence as shown in the CCTV footage I set out above, it is clear that D2 was amongst the group of persons attacking PW2. This group of persons hit PW2’s head with stick-like objects for several times.  It is clear that hitting PW2’s head in that manner may cause grievous bodily harm to PW2.  Therefore, the only reasonable inference is that the group’s intention was to cause grievous bodily harm to PW2.  As a result of the attack, PW2 suffered a wound on his scalp.  Therefore, I find the prosecution has proved beyond reasonable doubt that D2 had committed Charge 2.  I find D2 guilty of Charge 2.

96.  Regarding Charge 3, counsel for D2 submitted that even if D2 were the shirtless male as alleged, the doctrine of joint enterprise did not apply to Charge 3.  While the person alleged to be D2 was amongst a group of 3 men running in the direction of the Unknown Person, he was at a certain distance behind D4.  Further, PW1 was also there being chased and was running further ahead of the Unknown Person.  It was submitted that, in the circumstances, it was equally plausible that D2 and the 2 other males were merely targeting and chasing PW1.  The CCTV footage clearly shows that D2 was not involved in the assault of the Unknown Person at all.  As the Unknown Person had not attended court to give evidence, there was no evidence as to what had gone on between him and D4 prior to the assault. 

97.  The CCTV footage shows D2 did not chase after the Unknown Person after the Unknown Person ran past D4.  Instead, D2 stopped at the Location and started attacking PW1.  Given the Unknown Person had not given evidence in court, I am not sure if D2 intended to chase and assault the Unknown Person. Therefore, I find the prosecution has not proved beyond reasonable doubt that D2 had committed Charge 3.  I find D2 not guilty of Charge 3.

(C) Wounding evidence against D4

98.  The Prosecution submitted that D4 was involved in causing grievous bodily harm to PW1 and PW2 (Charges 1 and 2):

(1) MFI-11(3) photographs 1 and 5 (Channel 12, 06:31:00 and Channel 11, 06:31:05) show D4 was chasing after PW1.

(2) Channel 11 of CCTV footage at around 06:31:14 and MFI-11(3) photographs 7 and 8 (Channel 11, 06:31:14) clearly show that D4 joined the group of assailants and was beating PW1 on the ground.

(3) Channel 11 of CCTV footage at 06:32:04 and MFI-11(5) photographs 5 and 6 (Channel 11 at 06:32:04) show a group of persons (including D4) was attacking PW2.

(4) MFI-11(3) photographs 11 and 12 (Channel 11 at 06:32:36) show D4 was holding a hard stick-like object on his right hand. It was contended that there was no other innocent explanation as to why D4 would need such an object. D4 clearly used this object as part of the attack against PW1 and PW2.

99.  The prosecution submitted that D4 was involved in assaulting the Unknown Person (Charge 3) as Channel 12 of the CCTV footage at 06:31:04 and MFI-11(3) photograph 3 (Channel 12 at 06:31:04) show D4 was assaulting and chasing after the Unknown Person.  The manner in which D4 was assaulting the Unknown Person clearly indicated that there was an absence of consent.  Prosecution further submitted that it was sufficient to constitute an offence if there was an apprehension of immediate unlawful violence which was plainly clear from the relevant CCTV footage.

100.  Since it is the stance of D4 that there was no positive identification of D4 and there was no other corroborative evidence linking D4 to the attack, counsel for D4 did not address this Court on the joint enterprise issue and the evidence of wounding allegedly against D4.  From the evidence as shown in the CCTV footage I have set out above, it is clear that D4 did attack PW1, PW2 and Unknown Person with a stick-like object.  It is clear from the CCTV footage that D4 was the first one to hit PW1 after he fell on the ground.  Then other persons joined in and they all attacked PW1 with hard objects.  From the manner they assaulted PW1, the only reasonable inference is that the group’s intention was to cause grievous bodily harm to PW1.  PW1 did sustain grievous bodily harm as a result of the attack.  I therefore find the prosecution has proved beyond reasonable doubt that D4 had committed Charge 1.  I find D4 guilty of Charge 1.

101.  Applying the same reasoning, it is clear from the evidence that D4 and others assaulted PW2 on his head with stick-like objects.  The only reasonable inference is that it was their joint intention to cause grievous bodily harm on PW2.  PW2 did suffer a wound on his scalp after the attack.  I therefore find the prosecution has proved beyond reasonable doubt that D4 had committed Charge 2.  I find D4 guilty of Charge 2. 

102.  For Charge 3, it is clear from the CCTV footage that D4 did attack the Unknown Person by hitting him several times with a stick-like object.  Even if the Unknown Person did not attend court to give evidence and we do not know what had happened between him and D4, the fact remains that D4 chased after the Unknown Person and hit him several times.  Even if the Unknown Person had previously hit D4 (which we do not have evidence on this), the way D4 acted as shown in the CCTV footage certainly did not constitute self-defence as the Unknown Person was running away, not attacking D4 or about to attack him. Despite the absence of any evidence of any injury sustained by the Unknown Person, there must be at least apprehension of immediate violence by the Unknown Person, otherwise he would not have run away.  Therefore, I find the prosecution has proved beyond reasonable doubt that D4 had committed Charge 3. I find D4 guilty of Charge 3.

(D) Wounding evidence against D5

103.  The Prosecution submitted that D5 was involved in causing grievous bodily harm to PW1 and PW2 (Charges 1 and 2):

(1) MFI-11(4) photographs 1 and 3 (Channel 12 at 06:31:11 and Channel 11 at 06:31:13) show D5 was charging towards the direction of PW1.

(2) Channel 11 of CCTV footage at around 06:31:34 and MFI-11(4) photographs 5 and 6 (Channel 11 at 06:31:34) show D5 joined the group of assailants and was beating PW1 on the ground. Notably, D5 was the only person wearing pink and white shorts.

(3) Channel 11 of CCTV footage at 06:32:04 and MFI-11(5) photographs 5 and 6 (Channel 11 at 06:32:04) show a group of persons (including D5) was attacking PW2.

104.  The prosecution also submitted that D5 was involved in assaulting the Unknown Person (Charge 3):

(1) Channel 12 of CCTV footage at 06:31:04 and MFI-11(3) at photograph 3 (Channel 12 at 06:31:04) show D4 was assaulting and chasing after the Unknown Person.

(2) At approximately 7 seconds later, Channel 12 of CCTV footage at 06:31:11 and MFI-11(4) photograph 1 (Channel 12 at 06:31:11) captured D5 pursuing the Unknown Person. The close temporal and geographical proximity between D5 and the Unknown Person would lead to the irresistible inference that D5 was acting in concert with the other defendants in assaulting the Unknown Person.

(3) Relying on Chan Kam Shing, the prosecution submitted that if D5 was acting in concert by agreeing and executing the crime, D5 would still be guilty even if he did not strike the blow at the Unknown Person.

105.  Counsel for D5 submitted that regarding Charge 1, the person alleged to be D5 only arrived at 06:31:19.  He stood nearby for 10 seconds while others had kept on assaulting PW1.  Then, he only grabbed and threw a pallet to the direction of PW1.  PW1 never mentioned he had been hit by a pallet.  At 06:31:52, D5 was seen trying to pull away other person who was assaulting PW1. Bearing in mind that PW1 was the initial aggressor who charged into the assailants’ holiday house with a wine bottle and the Unknown Person holding a long stick, it was possible that D5 threw the pallet to deter PW1 and the Unknown Person. Further, the fact that D5 tried to stop others indicated that he did not share the common intention with others to cause grievous bodily harm to PW1.  Even if he did have intention to cause injuries to PW1, that intention was not aiming at causing grievous bodily harm. 

106.  Regarding the above submissions, I must point out that there is no evidence from PW1 or anyone else to the effect that PW1 and the Unknown Person had charged into the assailants’ holiday house with wine bottle and a long stick respectively.  Further, even if PW1 was the initial aggressor (as we can see from the CCTV footage that PW1 had used the wine bottle to try to hit Male A and even D4), when D5 threw the pallet-like object towards PW1, PW1 was already on the ground being attacked by others for some time while the Unknown Person had already run away.  There was no need to “deter” PW1 at that stage.  If D5 was not a party to the group of assailants and was only curious as to what happened, he did not need to stand so close to the group at the Location.  He could have watched at a distance just like other passers-by.  Further, if he was not a party to the attack, he would not have grabbed a pallet-like object and threw at PW1.  If he did not share the common intention with others, he would have stopped the others from attacking PW1 when he arrived at the Location at 06:31:19.  Instead, he stayed there watching others assaulting PW1 with stick-like objects and he himself later threw a pallet-like object to PW1.  He could clearly see the manner in which the others attacked PW1.  Nevertheless, he joined in and threw a large object at PW1 who was lying on the ground and was unable to defend himself.  In view of all these, I do not accept counsel’s submissions.

107.  From the evidence available, I find the only reasonable inference is that D5 was there because he was party to the group of assailants sharing the common intention with them.  From the way they assaulted PW1, their intention must be to cause grievous bodily harm to PW1, which he did sustained.  In the circumstances, I find the prosecution has proved beyond reasonable doubt that D5 had committed Charge 1.  I find D5 guilty of Charge 1.

108.  Regarding Charge 2, counsel for D5 submitted that the CCTV footage showed PW2 was assaulted at 06:32:04.  It was pointed out that between 06:31:35 and 06:32:21, D5 had never walked close nor touched PW2.  It was submitted D5 had never acted in concert with others to assault PW2.  Even if this Court found that D5 was acting in a joint enterprise with others previously, the act of him trying to pull away others had clearly severed him from the group or any common intention to assault PW2. 

109.  As I have pointed out in the above analysis, the fact that D5 at some stage tried to pull others away in the attack of PW1 regarding Charge 1 does not absolve him from being party to the joint enterprise.  While D5 was not involved in physically hitting PW2, he was the first person who did some sort of “pointing” gesture with PW2 when PW2 approached the group.  D5 even walked towards PW2 before he walked back towards the group.  At 06:32:03 to 06:32:07, while D2, D4 and D6 were hitting PW2, D5 stood nearby and did not stop them. At 06:32:23 to 06:32:29, when D2 was still pointing a stick-like object at PW2 and seen to be scolding PW2, D5 even walked towards them and pointed and gestured at PW2.  I find all these support the only reasonable inference that D5 was also a party to the group assaulting PW2 and he shared the common intention with them even though he did not hit PW2.  As they attacked PW2 on his head with stick-like objects, the only reasonable inference is that it was their intention to cause grievous bodily harm to PW2.  PW2 sustained a wound on his scalp as a result of the attack.  I find the prosecution has proved beyond reasonable doubt that D5 committed Charge 2.  I find D5 guilty of Charge 2.

110.  For Charge 3, counsel for D5 submitted that D5 did not physically attack PW2.  Channel 11 of CCTV footage shows no sign of the Unknown Person after 06:31:11 and it was the prosecution’s case that he managed to escape and departed the scene while PW1 fell onto the ground.  D5 only started running at 06:31:11 and arrived at the Location at 06:31:19, which was 8 seconds after the Unknown Person had left the scene.  It was submitted that there might be multiple reasons/inferences that could be drawn from him running and entering the scene 8 seconds after the Unknown Person had left, and D5 acting in concert with others was certainly not the only irresistible inference that could be drawn.

111.  Regarding Charge 3, I accept counsel’s submissions.  Based on the evidence available, I am not sure if D5 was a party to any joint enterprise in relation to the attack of the Unknown Person.  I find the prosecution has not proved beyond reasonable doubt that D5 had committed Charge 3.  I find D5 not guilty of Charge 3.

(E) Wounding evidence against D6

112.  The prosecution submitted that D6 was involved in causing grievous bodily harm to PW2 (Charge 2):

(1) MFI-11(5) photographs 1 and 3 (Channel 12 at 06:31:35 and Channel 11 at 06:31:38) show D6 was moving towards the direction of PW2.

(2) Channel 12 of CCTV footage at around 06:31:38 and MFI-11(5) photograph 3 (Channel 11 at 06:31:38) show the group of assailants were in the course of beating PW1 and D6 was standing at a considerable distance. Nevertheless, D6 began to approach towards the direction of PW1 and PW2.

(3) Channel 11 of CCTV footage at 06:32:04 and MFI-11(5) photographs 5 and 6 (Channel 11 at 06:32:04) show D6 joined a group of assailants and attacked PW2.

(4) MFI-11(5) photograph 6 (Channel 11 at 06:32:04) shows that D6 was holding a long stick-like object to attack PW2.

113.  The prosecution further invited this Court to take into account the evidence provided by PW9 at Exhibits P19, P19A, P49, P49A and P49B to the effect that D6 was the person who rented the holiday houses and he was close to the Location at Cheung Chau Island at the material date and time of Charge 2. In fact, this also tallies with the evidence of DW1 regarding renting of holiday houses. 

114.  Counsel for D6 submitted that in case this Court found it was D6 who showed up at the crime scene, there is no intention to cause grievous bodily harm:

(1) The photographs took on the date of attack show PW2 was injured at the right hand side of his head. The Medical Report prepared by Dr. Lo Chi Wing dated 10 August 2020 (Exhibit P10) stated that:

“PW2 was attended by Dr. Lo at 08:07 on 22 July 2020 at the Accident and Emergency Department of St John’s Hospital.

On examination, the findings were as follows: General condition was good. …

He was treated and discharged. Scalp laceration was sutured. Permanent disability is unlikely as a result of the injury.”

(2) According to PW2, even assuming he did not bump his head but was actually attacked, he said to the treating doctor about 2 hours after the attack that he was hit by one large-built guy and one guy only. Obviously, the attacker cannot be D6 based on PW2’s recollection and description. He further said that the big-built male used a bamboo to assault him, not a chopper, a knife, a fork, or broken glasses with sharp edge.

(3) From the CCTV footage, there was no conversation exchanged between D6 and others and it was hard to conclude that D6 shared a common intention with the others with the ulterior motive to cause PW2 grievous bodily harm.

(4) The entire attack lasted from 06:32:04 to 06:32:12 which is very short and hence could not support an intent to cause grievous bodily harm.

115.  In a group attack like the one in our present case, it is understandable that the victim such as PW2 may not be able to recall all the details of attack when giving evidence in Court.  Even if PW2 has not told this Court details of the whole incident on the offence date, the fact remains that PW2 was attacked and the attack was captured by the CCTV footage.  Therefore, I can safely rely on the CCTV footage to determine the circumstances of the attack.  As far as the injury sustained by PW2 is concerned, counsel for D6 queried if PW2 did sustain any injury.  I have dealt with this point in paragraph 51 above.  It can be seen from the CCTV footage that PW2 did use his hand to touch the right side of his head immediately after the attack.  He must be checking his injury.  The area where he touched coincides with the injury of “4 cm deep laceration at right side of scalp” as stated in the medical report (Exhibit P10) and shown in the photographs (Exhibit P42).  It is also PW3’s evidence that he saw PW2 with injury on his head when he attended the scene.  Thus, there is no doubt that PW2 did sustain injury to his head as a result of the attack.  Although PW2 was only able to recall one attacker who was big-built, CCTV footage shows PW2 was attacked by more than 1 person.  It can be seen from the CCTV footage that the assailants used stick-like objects to hit PW2 several times.  The fact that they used hard object to attack PW2 on his head supports the only reasonable inference that they intended to cause him grievous bodily harm.  It is clear from the CCTV footage that D6 hit PW2 with stick-like object.  He was certainly a party to the group attacking PW2.  Lastly, regarding counsel’s submissions about the lack of intention due to short period of attack, it is clear that the length of time of the attack is not the only factor that the court will take into consideration when determining on the intent.  Factors such as the manner of the attack, the type of weapons used and the area(s) of the body attacked should also be considered.  Therefore, I reject counsel’s submissions and find the prosecution has proved beyond reasonable doubt that D6 had committed Charge 2.  I find D6 guilty of Charge 2.