HKSAR v SAJID UMER FAROOQ

DCCC 40/2021

[2022] HKDC 72

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 40 OF 2021

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REASONS FOR VERDICT

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1.  The defendant has pleaded not guilty to charge (1)  Wounding with intent; (2)  Causing grievous bodily harm with intent.

The Prosecution’s case

2.  It happened at around 4 to 5 am on 13 April 2020, while PW1 and PW2 were leaving the podium near the car park outside Block 1, Lei Muk Shue Estate and on to the street, a group of about 10 people shouted at PW1 and PW2, one of them (it was the defendant), started asking which Big Brother they were following, after that things got ugly, though PW1 and PW2’s version of events went slightly different.

PW1’s evidence

3.  PW1 replied no.  After this brief conversation, a Chinese male holding a knife started chopping PW1, another Chinese female kept scolding them and hitting PW2.  PW1 lost his balance and squatted on the floor, and several people started hitting PW1 with fists and feet, the defendant was amongst one of them.

4.  PW1 finally managed to get back on his feet and found out he was bleeding and he heard someone shouted “we made trouble” and they all started to disperse.

PW2’s evidence

5.  Mr Ho was a friend of PW1, they both were drinking on podium, at around 4 something in the morning, they decided to leave the podium and through the stairs they left and down on the street outside Lei Muk Shue Estate.

6.  While they were leaving the estate, several people stopped them, in particular, the defendant (whom was holding a pole)  had asked whom they were following.  PW2 replied in the negative, after they were stopped, they quarreled for less than a minute.  The group of people started hitting them.  PW2 saw PW1 was slapped by a female, and PW2 also saw a Chinese male holding a knife ran from the nearby carpark toward him and chopped his arm, luckily PW2’s arm was not slashed opened, he only got a bruise.  After the Chinese male chopped PW2 for a short while, he put down his knife and punched PW2’s eye once, and this Chinese male picked up the knife again and walked towards PW1 and started chopping PW1.

7.  All of the sudden, one of the South Asian males said we caused trouble, and the group of people started leaving the scene.  PW2 also said the defendant did hit PW1 during the beating of PW1.

8.  It is not in dispute, PW1 and PW2 were beaten up and sustained injury.

9.  There were 2-3 South Asian males at scene, not all of them involved in the attack.

10.  Both PW1 and PW2, identified the defendant as one of the assailants at the ID parade.

Analysis of the evidence

11.  I bear in mind the burden of proof is on the prosecution throughout, the defendant has no criminal record; Good character directions apply.  The defendant elected not to testify, that is his right, no adverse influence is drawn against him.

12.  Having considered the submission made by both parties.  I have come to the conclusion that the evidence of PW1 & PW2 could not be relied upon.

13.  I do understand things were chaotic, discrepancies are bound to happen amongst them, their recollection of the events might differ.  However there are certain aspects when put together that caused me to doubt their identification evidence.

14.  It was admitted, they had been drinking beers.  PW1 even admitted he was half drunk.  Couple with the fact that the amount of time that they both had to observe the defendant’s face or features were very little. Although it was not a fleeting glance situation, but they did not know the defendant, it was the very first time that they saw him, these two factors surely diminish the weight of their evidence.  There are several other factors, if to be viewed together, it further strengthens my conclusion as to their reliability.

15.  Both their evidence in court suggested the defendant was the one who stopped and questioned them and subsequently led to the assault.  It appears quite strange that there was no mention about this piece of information by both of them when the defendant was identified at the ID parade.  It was the first point of contact between them, that was the only time that both PWs had a clear view of the defendant’s feature before the whole situation became chaotic.  It is important because the defendant was a key figure in this, he played a key role in stopping them, that was the only conversation that they had.  One would expect either one if not both would mention this important piece of information to the police.

16.  But one has to be fair to them, what they told the police at the ID parade was that, they said the defendant was the one who assaulted them, it is perfectly reasonable to say so.  But what I find strange is that, why would they withhold this important information to the police which could strengthen their Identification evidence, the more information they have about the defendant the better, that’s always is the case!

17.  Even more so, both of them made a mistake in their ID parade statements.  For PW1, he first said the defendant was hitting him with a stick, but later changed it to holding the stick only, not hitting him.  For PW2, he first said the defendant hit him, but late corrected it to hitting PW1.  Before commenting on the above changes of their stance, PW2 did have an explanation to that, he said he did not read the ready printed out copy prepared by the police, he just signed on it, strange enough, he never raised this with the police, never told the police he did not say that, why made up a story for him.

18.  One would assume that would be quite a natural thing to question the police; If the police made up a story for him, but it never happened.  It often is very easy to put the blame on the police when there isn’t any reasonable excuse present.

19.  Back to the changes in the statement, that brings out another problem. If one compares their evidence in court and their respective statements.  It is not difficult to tell how they described what actually had been done by the defendant, whether he was holding a stick or anything at all, the version kept changing and that denotes a certain sense of uncertainty in their evidence. The fact that whether the defendant was the one holding a stick, is also not certain.  It appears in PW1’s evidence, the one holding the stick was entirely another people, but that’s not PW2’s evidence.

20.  As I said early on, putting together all the evidence.  I cannot be sure their ID evidence is reliable, given the fact the defendant was present near the scene, his face might have been wrongly registered by the PWs as the one present in the fight, and they might have mistakenly identified him as one of the attackers, I cannot rule out this possibility given the above findings. 

21.  Therefore, the defendant is acquitted on both charges.