HKSAR v. GHALE RAJ

DCCC 373/2017

[2018] HKDC 29

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 373 OF 2017

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REASONS FOR VERDICT

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1.  The defendant was charged with two offences: Charge 1, common assault, contrary to common law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212; and Charge 2, wounding with intent, contrary to section 17(a) of the same ordinance.

2.  The two charges arose from two separate incidents on the same day, i.e. 19 February 2017.  Very briefly, the prosecution case was that after an argument in a bar, Thapa Suraj, PW1, was assaulted by the defendant outside the bar near a staircase and then, shortly thereafter, PW1 was wounded by the defendant with a knife outside a convenience store in the vicinity.  The defence case was that the defendant was not involved in those assaulting and wounding incidents.

3.  At the outset of the trial, a set of admitted facts (exhibit P6) was submitted, producing exhibits including photographs (exhibits P1(1) to (44)) taken at the scene and those showing PW1’s injuries and items seized from the defendant’s residence, two DVDs (exhibits P2 and P3) showing the CCTV footages obtained from the neighbourhood stores of the convenience store where the wounding incident took place, as well as PW1’s medical reports (exhibits P4 and P5).

4.  It was admitted that the defendant, who has a clear record, was arrested on 25 February 2017 in Yau Ma Tei area.  It was also admitted that the defendant’s trousers which were worn by him on the day of the incident contained a mixture from at least three DNA sources, the comparison results, however, did not provide any conclusion as to whether or not PW1 could have been a possible source of the DNA mixture.

5.  The prosecution sought to produce two video‑recorded interviews (exhibits PP9 and PP12) of the defendant conducted on 26 February 2017, admissibility of both had been challenged by the defence on the grounds that they were obtained by coercion and inducement.  Alternative procedure was adopted.  Both video-recorded interviews and all related documents had been ruled inadmissible as I was not satisfied beyond a reasonable doubt the voluntariness of those confessions contained in the interviews.  The main reason is that I was doubtful as to whether the police officers had, prior to the commencement of the first video-recorded interview, as alleged by the defence, shown photographs of South Asian males on a smartphone to the defendant and pressurised or induced him into making confessions.

6.  When considering those matters, I was aware that the defendant was only 17 years old, with a clear record, and was therefore more likely to be affected than an adult who had previous experience in investigation by authority.

7.  The prosecution called a total of seven witnesses, PW1 to PW7.  As said, PW1 was the victim.  PW4 was the Nepalese interpreter, and the rest were police officers.  Apart from PW1, all other prosecution witnesses were called for producing the video‑recorded interviews. A set of supplemental admitted facts (exhibit P14), in relation to certain formal matters like the time shown on the CCTV footages and the confirmation of the procedure of the identification parade was submitted before the prosecution closed its case.

8.  A half-time submission was made by the defence in respect of Charge 1, common assault.  As PW1 could only testify that he had been pushed from behind and then assaulted after he had fallen down but could not see who the assailant was, the prosecution, quite understandably, did not object to that defence application, and I ruled that the defendant had no case to answer for Charge 1.

9.  On the other hand, I ruled a case to answer for Charge 2, wounding with intent.

10.  The defendant elected not to testify or call any defence witnesses.

11.  First of all, on certain matters of law, I reminded myself of the following:

(a) This is a criminal trial, just like any other criminal cases, the prosecution bears the burden to prove the defendant’s guilt and the defendant is not required to prove his innocence or anything at all. To succeed in proving the defendant’s guilt, the prosecution must make me sure of his guilt, which is the same as proving the case beyond all reasonable doubt.

(b) The defendant did not give or call evidence. This is his right and no adverse inference would be drawn against him.

(c) The defendant is a young man with a clear record. I have given myself the relevant good character direction, i.e. he is less likely than otherwise might be the case to commit a crime.

12.  I now deal with the case against the defendant for Charge 2, wounding with intent.  There is no dispute that PW1 had been unlawfully and maliciously wounded.  Also, there is no dispute that the wounding was done with intent to do PW1 grievous bodily harm, in view of the serious circumstances of the attack as described by PW1, as well as the extensive and serious injuries as recorded in the medical reports (exhibits P4 and P5).

13.  Quite obviously, the only issue is the identity of the assailant.  The DNA evidence under the admitted facts, namely the DNA mixture found on the defendant’s trousers, is neutral as it does not conclusively link up the defendant with PW1.  None of the CCTV footages (exhibits P2 and P3) were of sufficient clarity to show the face or any distinct features of the assailant or anyone involved in the incident, except PW1 who could only identify himself.

14.  Therefore, the prosecution case against the defendant rests solely on the testimony of PW1 who identified the defendant as the assailant.  Before analysing his evidence in detail, I have given myself the Turnbull guidelines.  In particular, I have reminded myself that a convincing witness may nevertheless be mistaken, and the need for careful examination of all the circumstances in which the identification was made and the weaknesses which appeared in the identification evidence.  I will deal with those matters one after another.

15.  There is no evidence that PW1 and the defendant were known to each other or that there was any previous encounter prior to the incident, although it was briefly put to PW1 by the defence that the parties were kind of Facebook friends, to which PW1 did not confirm or deny, but simply said he did not notice.  In any event, there was no allegation of frame-up or bad faith of any kind put to PW1 so that it was the reliability rather than credibility of PW1 that was the key issue taken by the defence.  It is clear that, according to PW1, this is not a case of recognition as he never said he had seen the defendant under any other circumstances prior to this incident.  Nevertheless, the prosecution in closing, invited the court to consider that according to PW1, he had seen the defendant for 3 times that day.

16.  First, it was when they were inside the Ningwa Bar after midnight.  I do not consider that to be of much significance.  There was no particular reason for PW1 to pay any attention to the defendant who was a stranger to him prior to the argument between the two Nepalese groups. During the argument, PW1, when seeing the defendant for 5 or 6 minutes, as he said, must be in difficult conditions and it must be chaotic and dim inside a bar at that time.  Similarly, there was no reason for PW1 to pay any particular attention to the defendant who was just one of those involved in the argument and PW1, as he claimed, was simply trying to pacify the angry crowd.

17.  The second encounter was where PW1 said he saw the defendant outside the bar near a staircase shortly before he was assaulted.  That encounter was very brief, 1 or 2 minutes, as PW1 estimated, again under difficult conditions, i.e. near a staircase outside a bar where lighting would unlikely to be good, and there were other people around as PW1 was being attacked from behind.  PW1 was able to give some descriptions of that person whom he had encountered outside the bar, but his descriptions were either too general (e.g. wearing blue T‑shirt, black pants, not that dark complexion, Nepalese, about 5 feet 8 inches or 5 feet 9 inches tall, about 22 or 23 years old) or no evidence to prove that they matched with the features of the defendant (e.g. tattoo on the neck).  So this second encounter, again, is of little value for identification purpose.

18.  What requires further or closer examination is the third encounter where PW1 described how he was attacked outside the convenience store at about 3 am that same day and he accused the defendant to be the assailant.

19.  PW1 said he was having beer with two of his friends, a group including the defendant came.  The defendant first took one of the friends Arjun by his shirt and questioned him about the identity of the boy who interfered earlier in the bar.  The defendant, as alleged by PW1, then turned to him, accused him of speaking too much, pushed him, and then drew out a one‑foot-knife with his right hand from his right side.

20.  According to PW1, the defendant first attacked Arjun with the knife and then attacked PW1 on his head.  PW1 said he tried to stop the attack with his hands but the defendant kept attacking him for 4 to 5 times. PW1 got wounded on a few parts on his body before he managed to flee.  PW1 said he was able to see the assailant unobstructed, face to face within 2 metres, when he was questioning Arjun under sufficient lighting coming from the convenience store and the street lights.

21.  I have carefully considered all these circumstances.  The duration of observation, though not specifically described by PW1, must be very brief, even if it was not a fleeting glance.  PW1 said it was when the defendant was asking Arjun who was the boy who came forward and interfered in the bar that during that brief moment he was able to see the face of the defendant.  After that, PW1 must have had little opportunity to observe during the attack as he said he was using his hands to stop the attack on his head and that was evidenced by the extensive injuries on his left hand and left forearm.  By defending that way, PW1 could hardly see the assailant during the attack.  Further, the lighting was unlikely to be of good quality even with street lights and lights from the store as it was after all 3 am in the street.  It was further complicated by the fact that there were many people moving around at the scene, including PW1 and his friends, the defendant and the group he came with, as well as other bystanders outside the store.

22.  According to PW1, the defendant and his group first emerged as an interrogator, and then suddenly attacked them with the knife right outside the convenience store with other Nepalese elderly people around.  The situation must be chaotic and PW1 must be horrified under those circumstances.  It is, in my view, inherently difficult for anyone in PW1’s position to make an accurate and reliable identification of the assailant.

23.  The matter does not end there.  There are two specific weaknesses in PW1’s identification.  First, the issue as to what extent he was affected by drinks or was his observation in any way impaired by alcohol. PW1 said, after a day’s work in a construction site from 8 am to 6 pm, he set off to play video games at about 9 pm that evening.  He then went to a bar at midnight to have drinks with friends.  He drank 3 to 4 cans of beer.  At one stage he was driven out from the bar because of the argument incident, then he was beaten up near the staircase outside the bar before he and his friends went to the convenience store at around 3 am to continue drinking.  He bought a can of beer but had not finished when he was attacked.  Though repeating in evidence that he was sober or he was all right, PW1 however said several times that he was “not very much drunk” or “not that drunk”.

24.  There is, of course, no evidence from PW1 about his drinking capacity or his drinking habit so that I am unable to assess on the possible effect of alcohol on him that night when he was making the identification of the assailant.  Suffice to say, he said, during cross-examination, that he could not recall the number of officers with him in hospital shortly after the attack, nor could he tell how many were in plain clothes and how many were in uniform, and he agreed with the defence suggestion that he did not know whether he was intoxicated or under the influence of medication at hospital.  More importantly, he said, after he had been beaten up outside the bar, he agreed that he drank so much that he did not feel the pain, and he went on drinking again with his friends.  All of the above cast doubt on the veracity of PW1’s identification evidence.

25.  The second issue is about whether or not PW1 had been shown photographs by the police when he was in hospital.  PW1’s version was that, during that 5-day-hospitalisation, the police came visiting him daily and sometimes twice a day.  On some of those occasions, according to PW1, the officer(s) showed him photographs of South Asian males on a smartphone and asked him questions.  On the contrary, the police witnesses categorically denied having shown him any photographs in any of those hospital visits.

26.  In my view, there is no room for mistakes in recollection or misunderstanding.  In other words, either one of the two versions is true.  Even if I cannot form a definite view, I consider that PW1’s version is to be preferred as he has no reason to fabricate and on the other hand, as suggested by the defence, there is clear incentive on the part of the police to obtain information in this case when both the victim and the assailant were Nepalese and there were very few Nepalese‑speaking officers in the Police Force.  There is no evidence whatsoever as to what photographs have been shown except that, according to PW1, he had been shown photographs of South Asian males and he did not see the assailant there.

27.  The prosecution submitted in closing that seeing the photographs did not distract or prejudice PW1’s subsequent identification of the defendant on the formal identification parade.  I cannot be sure about that without first knowing what those photographs depicted.  If any of those photographs depicted the defendant and PW1 failed to identify, for whatever reason, the value of his subsequent identification of the defendant must be compromised.

28.  Of course, I did not lose sight of the evidence that CCTV footages in the neighbourhood stores, where still photographs of the defendant could be captured and in fact had been captured and used in the video-recorded interview of the defendant, had been seized by the police as early as on 20 February 2017, the day right after the incident.

29.  I am also aware of the evidence of PW3 (DPC13738) that, according to his investigation report, he and other officers went to see PW1 in hospital on 3 consecutive dates, 20 to 22 February, for a total duration of close to 2 hours, without disclosing in detail as to what actually had been done.

30.  Finally, there is the evidence of the arresting officer, PW2 (DPC34850), that on the date of arrest of the defendant, he was prior to the operation equipped with the full name of the defendant and apparently the details of his appearance when his team could effect the arrest in the street.

31.  There is virtually no evidence on all those matters and I certainly cannot speculate.  All the above did cause me further concern and unease as to what had been done with PW1 in hospital and what possible effect it could have on his subsequent identification of the defendant on the formal identification parade.

32.  Having considered all the circumstances, I do not feel I can safely rely on the identification evidence of PW1, which is essentially the only evidence to implicate the defendant.  It follows that I cannot be sure that the defendant was in fact the assailant who attacked PW1 outside the convenience store.  As such, I must find him not guilty of Charge 2.

33.  To conclude, the defendant is found not guilty of both Charges 1 and 2 and should be released.