HKSAR v. Tamang Milan and Others

DCCC 313/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 313 OF 2016

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Reasons for Verdict

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1.The 2nd and 3rd defendants are the remaining defendants in a single charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance.

2.They are alleged to have unlawfully and maliciously wounded one Gurung Amrit Kumar with intent to do him grievous bodily harm.

3.I have heard and considered the evidence on this matter.  I consider the evidence not capable of securing a conviction against either of the defendants, and they will be acquitted.

4.My reasons are as follows.  Shortly after midnight on 1 January 2016, the victim, who was PW1, and his girlfriend, PW2 in the case, went to the Podium Level 4 of IFC.  Whilst he was there, PW1 was assaulted by a group of what appeared to be South-Asian males.

5.PW1 and PW2 later identified the 2nd and 3rd defendants as being assailants.  They both deny this.  Simply said, the 2nd defendant said he was in Tsim Sha Tsui, and the 3rd defendant says he was nearby, but at the time was waiting for a lift.  He in fact says that he can be seen in a CCTV recording taken at that location at exactly the same time as the assault is in progress nearby, but elsewhere.

6.The issue which is common to both defendants is whether they had been correctly identified by the witnesses at the identification parade, which is a position that they both maintained in court.

7.As far as the narrative is concerned, the victim and his girlfriend, PW2, arrived at IFC at about 12.35 on 1 January 2016. PW1 is Nepali, as is his girlfriend.  Their arrival and the initial assault upon the victim were captured clearly by CCTV cameras located on the Podium Level 4.

8.The PWs' evidence was that the CCTV capture confirms that he was approached by the 1st defendant, Milan, and some other men.  Milan, who is the 1st defendant, struck PW1 a blow to the head with a bottle.  I note this can be clearly seen from the CCTV.  PW1 was then assaulted by other men, including one who used a hockey stick.  Other people can be seen pushing away the people assaulting PW1.  PW1 then tries to escape.  As he does so, he leaves the area covered by the CCTV camera.

9.We are then left with his narrative.  In evidence he said he eventually fell over, and he was attacked whilst he was on the floor.  He said he was hit with a knife by the 3rd defendant and a hard object by the 2nd defendant.

10.PW1 was badly injured.  A finger was severed; he was struck about the head.  He was hospitalised until 27 January 2016.

11.On 27 January 2016, the 2nd defendant was identified by the 1st and 2nd prosecution witnesses in identification parades, and on 9 March 2016, the 3rd defendant was identified by the 1st and 2nd prosecution witnesses in identification parades.

12.Both the 2nd and 3rd defendants gave evidence and gave statements as to what they say they were doing at the time of the assault on the 1st prosecution witness.  In summary, the 2nd defendant said he was in Tsim Sha Tsui that night and was not at IFC at all.  The 3rd defendant says he was in the lift lobby of the 4th floor podium at the time of the assault.  His statement gives a fairly extensive description of what happened in that lift lobby.  These defences were reiterated by the defendants.

13.It is, I think, clear here that the evidence against both defendants was purely evidence of identification.  It is clear law that whenever the prosecution case depends wholly or substantially on the correctness of identification of an accused and they are alleged to be mistaken, then guidelines which are set out in the case of Crown v Turnbull must be observed, which includes an acceptance that there is a special need for caution before any conviction can be recorded in reliance on the correctness of identification evidence.  A reference to the possibility a mistaken witness can be convincing; also, there must be clear analysis of the circumstances in which the observations are made; for example, the distance, the lighting, whether the observation was in any way impeded, and the quality of the expression of the witness when they described the identification itself.

14.It is necessary to examine, to a certain extent, the evidence of the witnesses and the evidence that they gave against each individual defendant.

15.The 1st prosecution witness gave evidence against the 2nd defendant, and he was asked as to why he identified him at the identification parade.  He said, "I did recognise a person who was a little bit older.  I recognised him as one of the older people who attacked me."  He said he relied on his looks.  He was asked, "Do you remember what he did to you?"  That is, the 2nd defendant.  He said, "He attacked me with some object."  He was asked, "What object?"  His response was, "I don't remember." He was then asked, "At what stage did he take part?"  His response was, "I don't remember."

16.This somewhat conflicts with the opening of the prosecution, which said that the 2nd defendant took part at the initial part of the assault.  I will return to that later.

17.That rather sparse evidence from the 1st prosecution witness about the 2nd defendant was taken up in cross-examination. He was asked, "How many people were of that age," which had been described as 40.  He said, "Just one around 40."  He said, "I remember because he was older."  He was asked, "Was he there at the start when Milan attacked you?"  He said, "I'm not sure if I saw him first."  And then he said, "You can't tell us anything about him?"  He said, "The fight started.  During the fight I saw him."  He said, "For a few seconds he tried to attack me."  He was asked if he had seen him when the fight first started, and he said, "Yes."  He confirmed that he had never seen or was able to identify the defendant in any CCTV recording.  He was asked again, "How do you recognise him?"  He said, "The one older.  He was the only one old enough."  He said, "So because he was older, you thought it was him."  The witness then went on to say, "The attacker is like him.  I feel he is the one."  He was then asked, "Is he similar to him?" The answer was, "I don't know."  He said, "I remember the face."  He said, "How?"  He said, "I saw him, or someone like him," and he answered again, "I think he is the one because I saw him.  I feel like he is the one."  That was the extent of the evidence by the witness in respect of the 2nd defendant.

18.As far as the 2nd prosecution witness was concerned, she had already been shown a photograph of the 2nd defendant on Facebook before she tried to make any identification of him later at the hospital and then, finally, at the identification parade.  She was asked at what stage she had seen him.  She said she did not remember, and she again said, "I feel like if he is the one attacking.  I went to hospital and I went to QEH," she said.  She said, when she was asked why she had identified him, "I saw this person at IFC.  That is why I chose him.  He was with the crowd."  And then she said, "I saw him when the incident happened."  "The time when they attacked the person, at what stage?"  She said, "I don't remember clearly." The evidence of the 2nd prosecution witness was not able to identify any part at which the 2nd defendant was alleged to have taken part in the assault on the victim.

19.As far as the evidence against the 3rd defendant is concerned, the 1st prosecution witness said that the 3rd defendant had attacked him at a subsequent part of the incident.  He said, "He had a beard," and "He attacked me at the last part with a knife."  He said, "We were face to face at the end of the attack."  He said of him, "He's a little bit fat, and that day he was wearing a cap," which is described as being "snapped back", which meant the cap was a baseball cap on backwards with the visor worn towards the back.  He said he was sure about this person's involvement in that third attack where he was struck with a knife.  He said he was on the ground.  "He was attacking me."  He did not know when the knife fell and who picked it up.

20.In cross-examination he maintained the position that he was sure that it was the 3rd defendant who had attacked him at that later stage.  I also note that in the course of his evidence he identified a person on the CCTV who was wearing a cap backwards, and said that he was the 3rd defendant.  That was done in his evidence, and at no earlier stage had he been asked to do that.

21.As far as the case against the 2nd defendant is concerned, a large part of the case was devoted to his defence that he was in Tsim Sha Tsui at the time.  However, I do not think it is necessary for me to examine this, given my analysis and setting out of the evidence of PW1 and 2 as given against the 2nd defendant.

22.I did not find, considering that evidence, that either singly or collectively does it reach the standard of proof capable of securing a conviction in accordance with the Turnbull directions on identification.  The 1st prosecution witness, in cross-examination, describes his position of certainty in relation to his identification of the 2nd defendant as being one of feeling.  He was unable to say at what point the 2nd defendant had been involved in the incident and what the 2nd defendant had actually done and at what stage of the incident.

23.I consider that a full analysis of his evidence means that the court is unable to reach a conclusion of any certainty, because the language used by the witness in giving evidence of the 2nd defendant's involvement was not one of certainty, and I find also that the evidence of the 2nd prosecution witness did not add anything in that respect.

24.For those reasons, I find that the court must bring in a verdict of acquittal as against the 2nd defendant.

25.Having dealt with the 2nd defendant, of course one goes on to look at the evidence against the 3rd defendant, and I find that an analysis of the evidence of the witness against the 3rd defendant, the terms of his language, are capable of satisfying the requirement of certainty in that he is clear that his identification of the 3rd defendant is not based on a feeling but is based on a clear recollection in his own mind.  However, of course, the evidence of a witness who is certain can also be mistaken.

26.I also note that there was evidence given by the 2nd prosecution witness against the 3rd defendant, and that was she said that she identified him because she had seen him at IFC.  She could not remember clearly at what stage though she had seen him, so her evidence really did not add anything to the evidence of the 1st prosecution witness as against the 3rd defendant.

27.The case of the 3rd defendant is put in a somewhat different way from that of the 2nd defendant, because he admits that he was in that location or in that area at the time when the assault occurred. He made a record of interview on 24 February 2016, and he was asked, "In what location in Central were you at," and he said, "I was in IFC."  "And what you were doing there?"  He said he went to watch "the shells".  By that he meant fireworks.  He was not able to describe the colour of his shirt or shoes at the time.  He was asked about where he had gone to.  He was asked when he had reached -- "Do you remember that you reached the 4th Floor, the West Bridge Podium?"  He said he was not familiar with the place.  He was asked if he had seen any fighting.  He said, "At the time of departure, I heard some noise." He was asked, "Where were you when you heard the noise?"  He said, "I was waiting for the lift."  "Do you remember which floor you were at at the time?" He said, "No."  "Did you see anything as well?"  He said, "At the place where I was waiting for the lift, I saw two to three men running."  He said, "Did you see anything else?"  He said, "It was very crowded.  I didn't see."  He said, "Did you see those two people, which direction they went?"  He said, "No, but when I was waiting for the lift, then suddenly a lot of people came from behind, and whilst pushing, they were trying to enter into the lift, so they were pushing as well."  He said, "While I was waiting for the lift, many people rushed from behind.  Those people wanted to get into the lift.  They even pushed and bumped against each other."  "What happened after that," he was asked.  "I guess all the people could not get into the lift, so they ran away towards the other side.  After coming out from the lift, I don't know.  They ran towards the other side."  He was asked, "Did you enter into the lift?"  His answer was, "No."

28.So it is absolutely clear that when first taxed with this matter, the 3rd defendant was saying he was in the lift lobby and the situation was confused and confusing.  People were moving in and out.

29.The 3rd defendant's case is that the 1st prosecution witness is simply incorrect when he identifies him as being the man who used the knife on him and is also incorrect when he identified the man in the CCTV with the hat worn backwards as being the 3rd defendant.

30.At the end of the day, one has the opportunity to view the video recordings and be able to assess the quality of the images and whether identifications can properly be made from it.  My assessment, from looking at the images, is that the person identified as being the 3rd defendant by the 1st prosecution witness in the video with the hat worn backwards was not the 3rd defendant.  Also, when considering the 3rd defendant's case, I consider that the 3rd defendant gave quite an extensive account of where he had been and what he had been doing, and in court, a videotape was shown of the lift lobby of the 4th Floor of the IFC at around about and during the time that the assault was taking place on the 1st prosecution witness elsewhere.  There is a man who is clearly similar to the 3rd defendant there.  The 3rd defendant says, "That is me," and identified himself as being that man.

31.I considered, having viewed that evidence and also his explanation in the video-recorded interview, that it was reasonably possible that that person was in fact the 3rd defendant.

32.That being the case, the court must bring in a verdict of acquittal as against the 3rd defendant on that charge.

33.Those are my substantial reasons for the verdicts of acquittal in respect of the 2nd and 3rd defendant.  They are free to go.