HKSAR v. Sharif and Another

DCCC 792/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 792 OF 2016

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REASONS FOR VERDICT

1.The defendants plead not guilty to one joint charge of wounding Abdur Razzak with intent, contrary to section 17(a) of the Offences against the Person Ordinance[1].

2.The prosecution case is that on 15 January 2015 D1 and D2 together with Zillu MD, Rubal Hawlader and Ibrahim Hulader attacked Abdur Razzak outside Bossini on Peking Road in Tsim Sha Tsui.  When the police arrived Abdur Razzak pointed out D1 and D2 as two of his attackers.  The defence case is that D1 intervened to stop the attack and acted in self-defence whereas D2 was not present and did not take part in the attack. 

3.The defence case being one of mistaken identity I direct myself in accordance with the principles established in R v Turnbull[2].  I remind myself of the special need for caution before convicting in reliance on evidence of identification. 

Evidence

4.The prosecution called six witnesses on the list of prosecution witnesses attached to the prosecution opening: Abdur Razzak (PW1); PC 11026 (PW2); PC 10330 (PW3); PC 9756 (PW4), Dr Chow Wai Hung (PW7); and Dr Chan Kin Kwan (PW8) One additional witness PC 16751 (PW9), who arrested Zillu MD, was tendered for cross-examination.  

5.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[3] (exhibit P1), including PW1 pointed out D1 to the police as one of the persons who attacked him[4].   The evidence of PC 11026 (PW2); PC 10330 (PW3) and PC 9756 (PW4), who arrested PW1, D1 and D2, was read pursuant to section 65B of the Criminal Procedure Ordinance[5].  All three witnesses were also called to give evidence mainly as to the circumstances in which PW1 pointed out D1 and D2. 

6.Also admitted is the injuries and medical reports of Dr Chow Wai Hung (exhibit P3) and Dr Chan Kin Kwan (exhibit P4).  Dr Chow (PW7) and Dr Chan (PW8) were also called mainly as to the cause of injuries sustained by PW1 and D1.

7.Photographs (exhibit P2) and records of interview of both D1 (exhibit P6) and D2 (exhibit P8) have also been admitted in evidence.  The statement of Lo Kang Ming (exhibit P14), who runs a shop on Peking Road and witnessed a dispute between three males outside Giordano[6] and later the beginning of a fight, was also read pursuant to section 65B of the Criminal Procedure Ordinance.

8.D1 and D2 both elected to give evidence and called one witness MD Kamrul Hassan, who witnessed what happened.  Admitted in evidence is that both defendants have no criminal conviction in Hong Kong[7]. I direct myself as to good character in accordance with the decision in HKSAR v Tang Siu Man[8].

9.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have to prove nothing.  I direct myself that I must be sure of the guilt of the defendants before I can convict, the case of each defendant to be considered separately.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defendants have raised sufficient doubt in the prosecution case and are entitled to be acquitted. 

10.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against the defendant as well as one in his favour the adverse inference cannot be drawn.  

11.I have carefully considered all the evidence and the submissions of Ms Alva and Mr Marwah.

Prosecution evidence

12.In summary PW1 testified that on 15 January 2015 while standing near Nathan Road he was approached by Zillu Rahaman.  Zillu asked PW1 to work for him.  PW1 had worked for Zillu before which resulted in him being sent to prison[9].  PW1 therefore refused to work for Zillu again. 

13.An argument broke out during which PW1 was surrounded and attacked by five Bangladeshi males, including Zillu, who was holding a bottle.  PW1 was hit on his head resulting in bleeding.  PW1 was unable to hit back because he was attacked by five persons.  After the attackers ran away PW1 called the police.  Apart from being taken to hospital PW1 could not remember what happened after the police arrived.

14.Admitted in evidence is that PW1 pointed out D1 to the police as one of the persons who attacked him[10]. Read into evidence is that PW1 also pointed out D2 as one of his attackers[11]. 

15.PC 16751 (PW9) gave evidence that on 10 February 2015 he arrested Zillu after PW1 pointed out Zillu as one of the persons who assaulted him on 15 January[12].  Admitted in evidence is that Zillu jumped bail in January 2016[13].

Defence evidence

16.In summary D1 testified that he was sitting in the corner of iSQUARE when he saw opposite him a group of Bangladeshi males fighting.  D1 approached to separate them in the course of which he was hit therefore he punched back in self-defence.

17.D2 testified that he did not take part in the attack.  D2 was having a late lunch and only arrived after the fight was over. 

18.The evidence of D1 and D2 was supported by the defence witness Kamrul Hassan who said he witnessed what happened.

Discussion

19.The prosecution case rests largely, but not exclusively, on the evidence of Abdur Razzak (PW1).  In the course of his evidence PW1 was permitted to refresh his memory from a statement he made on 27 January 2015[14] and later was turned hostile.

20.Before being permitted to refresh his memory from his witness statement PW1 remembered little about the attack; and apart from Zillu he could not remember the names of the attackers or their physical appearance. 

21.After refreshing his memory from his witness statement PW1 still could not remember the names of the other attackers; said he did not know the friends with Zillu; did not know their names; and could not recollect their faces.  

22.Further PW1 said he did not remember pointing out D1 to the police as one of his attackers; that he may have been wrong in recognising the face of the person he pointed out; that he pointed someone out but did not remember the face of that person; and did not remember whether he pointed out more than one person to the police.    

23.After being turned hostile PW1 agreed with Ms Alva the names of the five attackers were Sharif[15], Numan Howlader, Zillu MD, Rubal Hawlader and Ibrahim Hulader.  Sharif and Numan Howlader are the names of D1 and D2.  At no time however did PW1 in court identify D1 or D2 as two of the attackers. 

24.In assessing the evidence of a hostile witness the court must determine whether the witness is creditworthy and whether his evidence can be relied upon.  A satisfactory explanation for any inconsistency or contradiction in the evidence may be a good foundation for accepting the evidence of a hostile witness. 

25.The impression PW1 seeks to give is that at the time he knew his attackers but due to the time lapse of over two years he is unable to recognise them now. Over two years having elapsed it is not at all surprising a witness cannot remember all the details.

26.Throughout his evidence PW1 gave little detail about what happened and about who attacked him, in particular when asked about D1 and D2.  Many times PW1 said he could not remember; was not very clear; did not know; did not remember clearly; and did not know what happened after the police arrived or said nothing happened.

27.I was not impressed with the evidence of PW1.  PW1 may well have forgotten some of the details.  However, having considered his evidence very carefully, I find I am far from satisfied PW1 could no longer recognise his attackers and instead has deliberately refused to identify his attackers in court and give details of what they did.  I find PW1 is neither a creditworthy or reliable witness. 

28.With PW1 not identifying D1 and D2 in court reliance is placed by the prosecution on the names of the attackers given by PW1 to the police, in particular Sharif and Numan Howlader, the names of D1 and D2; the admitted evidence PW1 pointed out D1 to the police as one of his attackers; the evidence of PC 10330 that PW1 pointed out D2 as one of his attackers; and that D1 in his record of interview (exhibit P6) admitted that he punched Razzak, albeit out of self-defence.

The names of D1 and D2.

29.The agreement by PW1 of the names of his attackers, including Sharif and Numan Howlader, is not in itself reliable evidence because PW1 said he was told the names and did not know whether they were correct. 

30.This evidence however does not stand alone.  Admitted in evidence is that PW1 pointed out D1 as one of the attackers[16]. D1 is called Sharif.  Read into evidence is that PW1 pointed out to PC 10330 that D2 was also one of his attackers[17]. This evidence was not challenged when PC 10330 was called to give evidence.  D2 is called Numan Howlader.

31.In examination-in-chief when PW1 was informed that he had pointed out D1 he said he did not remember whether D1 was there or not.   Later after refreshing his memory from his witness statement PW1 said that he may have recognised the wrong person; he did not remember the face of the person he pointed out; did not answer why he pointed that person out; only pointed out one person; and did not remember pointing anyone else out.  

32.After being turned hostile PW1 again said that he did not remember the faces of those who attacked him.  When Ms Alva put to PW1 that he identified D1 to the police because he knew D1 attacked him, PW1 replied “Yes, maybe I have”.    When Ms Alva put to PW1 that he also identified D2 to the police, PW1 replied that he could not recognise D2.  PW1 also said that because he received a head injury he could not remember that he pointed out D2 who became emotional and rushed towards him.  Ms Alva concluded her questioning by putting to PW1 that D1 and D2 attacked him to which PW1 replied he did not remember. 

33.On the other hand, when cross-examined by Mr Marwah, PW1 said that the people he pointed out attacked him.  In final submission Ms Alva relies on this answer as evidence that D1 and D2 did attack PW1.  In my view this answer must be looked at together with all the evidence of PW1, in particular that PW1 said he might have been wrong in who he pointed out; and that apart from Zillu he had not seen the others before and was therefore identifying strangers. 

34.Although the admitted evidence is that PW1 did point out D1 and the evidence of PC 10330 is that PW1 also pointed out D2, having carefully considered all the evidence I am satisfied there is no reliable evidence from PW1 that D1 and D2 were involved in the attack. There being no other evidence against D2 I find the prosecution have failed to prove the charge against D2 and he is acquitted of the charge. 

D1’s record of interview

35.This leaves the admission of D1 that he punched Razzak, the name of PW1, albeit in self-defence. 

36.In his own evidence D1 admits his presence and being involved albeit to intervene to separate the fighting parties and not as an attacker.  This in my view is inconsistent with what D1 told the police after he had been pointed out by PW1, namely that he had a money dispute with PW1 who hit him[18] and with what D1 said in the record of interview that he punched Razzak in self-defence.  

37.The defence witness Kamrul Hassan confirms the evidence of D1 that D1 separated the fighting parties. The evidence of the defence witness is unreliable.  In his evidence he told the court that he informed the police officer who apprehended D2 (PC 10330) that D2 had just come to the scene and was therefore not involved. In answer to the court the defence witness says he was told by the police officer after investigation they would let D2 go.

38.If the defence witness told PC 10330 or any other police officer D2 was not involved there was no reason for the police to ignore the witness. At the very least the police would have taken details of his identity.   The unchallenged evidence of PC 10330 is that he looked for independent witnesses but none were found[19].  Further in cross-examination PC 10330 said the sergeant repeatedly asked if anyone witnessed what happened.  I reject the evidence of the defence witness. 

39.I have real reservations that D1 intervened to separate the parties.  In cross-examination PW1 said that he did not know if anyone intervened to stop the attack; did not know if anyone was trying to help him out; and did not remember if someone tried to separate them.  

40.Notwithstanding these reservations I am satisfied, in the absence of reliable evidence from PW1 as to the role of D1, it would be unsafe to attach full weight to the inculpatory parts of the interview and reject the exculpatory parts.

41.In reaching this finding I have carefully considered all the evidence including the injuries sustained by D1 and the fact D1 either remained at the scene after the incident or returned a short while afterwards. 

Injuries

42.The admitted evidence is that D1 suffered several scratches to his left forearm, described by Dr Chan (PW8) as superficial lacerations.  PC 11026 inspected the injuries at the scene which he described as five blood (scratch) marks[20]. 

43.The prosecution case was that the injuries were self-inflicted by a knife[21].  PW1 however did not testify as expected.  PW1 said he did not see a knife.  After being turned hostile PW1 agreed he told the police he saw D1 cut his forearm with a knife but when asked if that is what happened said he could not remember exactly; maybe D1 dropped the knife before the police arrived and possibly the knife was dropped at Tsim Sha Tsui Mansion. 

44.I do not find PW1’s evidence reliable.  

Remaining or returning to the scene

45.In his evidence PW1 said the attackers ran away.

46.The police evidence is that at 1729 hours PC 9756 (PW4) was in Patrol Car 23 together with PC 10330 (PW3); the I/C Sergeant and the driver PC 48642 when they received a call from the Console to go to Bossini.  The police officers arrived at the scene at 1735 hours and located PW1[22].

47.At the same time PC 11026 (PW2) who was in EU Car 22 together with I/C ASGT 54650, SPC 51430 (in plain clothes) and the driver PC 34927 was asked to go to the scene to render assistance.  Car 22 arrived one minute later[23]. 

48.When D1 was pointed out this must have been at least ten minutes after the attack. If D1 was an attacker one would not expect him to return to the scene or remain at the scene and certainly not after the police arrived and started making enquiries with PW1. 

49.This is even more so when considering that D1, according to the evidence of PC 11026, was standing very close to PW1 on the same pavement outside Bossini only 2-3 meters away when PW1 pointed him out.  I find it is most unlikely an attacker would, in the presence of police officers, stand so close to the person he had just attacked. 

50.In reaching my verdict I have not overlooked the evidence of Lo Kang Ming (exhibit P14).  Whilst only describing three persons and not five or six he clearly did not see everything.  This evidence does not assist the court one way or the other.

51.The presence of the defendant at the scene and his own admission he punched Razzak clearly raises suspicion.  Suspicion is not enough.  In the absence of reliable evidence from PW1 I find that the prosecution have failed to prove the charge beyond reasonable doubt.  The benefit of the doubt is given to D1 and he is also acquitted of the charge.