HKSAR v. RAB NAWAZ

DCCC 461/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 461 OF 2015

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Reasons for Verdict

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1.   The prosecution has the duty to prove its case beyond reasonable doubt.

2.   Your allegation of alibi as purportedly calling your two witnesses does not give you any advantage, because my finding is that their alibi evidence and also your alibi evidence is unreliable.  All three of you suffer from an exaggerated memory.  All three of you would be able to remember the minute details of things with no special significance, and in terms of the exaggeration, I suppose that the three of you are lying.  It is not for me to convict you because of the fact that the three of you are lying in court.

3.   The prosecution has to prove its case. The crux of the matter is the quality of observation by the victim of the attackers.  According to his evidence, he had one minute during which he observed you.  The lighting was satisfactory.  He observed you also in close distance.  There was no obstacle between you and him, according to his evidence, but it is unclear in the prosecution’s case as to how long he actually set his eyes on you.  He said he observed you for one minute, but there is no detail given in his evidence as to what you were doing during that one-minute period, save and except that you struck his forehead with some broken glass.  I reckon that would not take more than three or five seconds, and the victim held up his arms to protect his head from the attack of other attackers.  That act of protecting his own head would take the remainder of the one minute.

4.   As the matter stands, though he had good observation possibly of the attacker who struck his forehead with the broken glass for about three to five seconds, the remaining time was spent in difficult observation.  He was blocking his own view with his arms when he tried to protect his own head.

5.   This sort of situation falls squarely in the safeguard against misidentification stated in the case of Turnbull. The victim is an honest witness because there is no challenge by the defence that he has any grounds to frame up a case.  He is an honest witness, but he may be an unreliable witness because his observation can be regarded as conducted in the fleeting glance situation.  After the attack he was unable to provide the police particulars as to the outward appearance of the attackers.

6.   On 8 January 2015 he accidentally saw you, whom he regarded as one of the attackers on the street.  He reported the matter to police and identified you as one of the attackers.  He precisely identified you as the one who struck his forehead with the broken glass. 

7.   This sort of drastic improvement in memory is astounding and unreasonable.  There is no good explanation from his evidence why he can make such a big step in his identification of you.

8.   There is the serious possibility of misidentification of you as one of the attackers when he met you on 8 January 2015.  His identification on that day, in my view, is unsafe.

9.   You are entitled to the benefit of the doubt.  You are acquitted of the charge.