HKSAR v. Satnam Singh and Others

DCCC 89 & 525/2016 (Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 89 & 525 OF 2016 (CONS)

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Reasons for Verdict

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1.This consolidated case began with five defendants and five charges. Before trial commenced, the 4th defendant pleaded guilty to Charges 1, 2 and 3.

2.Charges 1, 2 and 3 are all wounding offences, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212.  All three charges relate to an incident on the MTR platform of Jordan Station on 21 September 2015 where three victims were attacked with choppers by a group of men.  The 1st, 2nd, 3rd and 4th defendant were jointly charged with all three counts of wounding.

3.Charge 4 and 5 relate to an incident on the evening of 19 May 2016.  The 3rd and 5th defendant face Charge 4, doing acts tending and intending to pervert the course of public justice, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221. 

4.The 3rd and 5th defendant are accused of threatening the victim of Charge 1; he was told not to give evidence in the trial of Charges 1, 2 and 3 and not to identify the 3rd defendant as an attacker. 

5.The 3rd defendant alone faces Charge 5.  After committing Charge 4, he is accused of wounding the same victim, contrary to section 19 of Cap 212. 

6.This case involves five charges and two different dates, but Charges 4 and 5 are connected to Charges 1, 2 and 3. 

The Background

7.The prosecution say the victims of Charges 1, 2 and 3, PW8, 7 and 9 respectively, were on the Jordan Station platform waiting to board a train at about 6.30 pm on 21 September.  Suddenly, without a word, warning or apparent motive, D1, D2, D3 and D4 as well as five or six other men appeared with some attacking the three men with choppers or knives.  PW8’s arm and forehead were cut.  PW7’s hand and ear were cut and PW9’s chest area was slashed.  All the attackers fled before the police arrived.

8.All three victims were admitted into hospital. There is no dispute they suffered really serious injuries. 

9.The 1st and 2nd defendant were arrested on 29 September 2015 when seen and recognised by PW9 at the ISS offices, “International Social Services” offices in Kowloon.  D3 was arrested on 19 October 2015 when seen and recognised by PW7 and PW9 at a bus stop outside the Castle Peak Bay Immigration Centre in Tuen Mun.  They called the police.

10.They were all identified in subsequent identification parades by victims.  There were no admissions made. 

11.The prosecution say that on 19 May 2016 PW8 was ambushed and pushed into a rear lane in Yau Ma Tei by the 3rd and the 5th defendant as well as an unknown male.  He was physically restrained.  The 3rd and the 5th defendant spoke and threatened him.  He was warned not to give evidence in the trial for Charges 1 to 3 and not to identify the 3rd defendant. The 3rd defendant threatened to kill him if he did.  PW8 refused and the 3rd defendant sliced his arm with a paper cutter type weapon.  He required stitches later on in hospital.

12.The 3rd and the 5th defendant called alibi evidence for the charges they faced to prove they were not present as accused.

The Issues

13.The 1st, 2nd and 3rd defendant deny a joint enterprise to wound PW8, 7 and 9.  All the defendants’ identification parades were challenged and deemed unsafe.  The 2nd defendant admits he witnessed the MTR platform attack but was not a participant.  The 1st and the 3rd defendant deny being present; the 3rd defendant called alibi evidence to support this.  D3 and D5 also did the same for Charge 5 relating to 19 May 2016. 

14.The defence argue the evidence of the three victims is unreliable and not credible.  The same applies for the witness relating to Charges 4 and 5.  It would be dangerous to convict on their evidence.  Therefore, credibility is a main issue despite allegedly positive identifications after the offences.  The prosecution rely on identification evidence to support the victims’ evidence.  The credibility of both are the issues to be resolved. 

The Prosecution Case

21 September 2015

15.All three victims were together with other men earlier on that afternoon at about 3 pm in the Jordan area.  They were outside a phone shop on the pavement at one point.  It was at this time the 5th defendant walked past them and PW9, the third victim, nicknamed Happy, told PW8, the first victim, the 5th defendant’s name.  PW8 recalled this incident and PW9 confirmed it. 

16.Then at about 6.30 pm the victims and their friends went down to the Jordan MTR Station platform.  As they reached the platform after descending a staircase, a group of eight to nine men came towards them.  Nothing was said, but some of them attacked the three victims with choppers.  All three victims said the attackers were strangers to them. Choppers were taken from bags held by more than one of the group.  It included a plastic bag and a rucksack.  PW7, the second victim, saw the group of men get off a train that had arrived.

17.The three victims say PW7 was chopped first by the 4th defendant.  He was hit and cut above his left ear and his hand was hurt.  PW8 saw the 4th defendant attack PW7 and grabbed the 4th defendant but he himself was attacked from behind.  He did not see who attacked him.  He was chopped on his arm and head several times.  He fell unconscious after that. 

18.PW9 said he saw the 4th defendant hit PW7 with a chopper and saw PW8 try and grab hold of him.  He also saw PW8 attacked. However, at the same time a man chopped him when face to face under his left armpit.  He too lost consciousness.

19.There is no CCTV footage of this attack.  There is some CCTV footage from other parts of the same MTR station of men running at speed.

20.All three victims were interviewed and gave almost no description of the attackers individually.

21.Eight days later, the 1st and 2nd defendant were seen in the offices of the International Social Services, ISS, by PW9.  He asked his case officer to call the police.  The police arrived and were told the 1st and 2nd defendant were amongst the attackers from 21 September 2015. They were arrested.

22.There was arranged the next day identification parades.  PW7 and PW8 were invited to attend identification parades with the 1st and the 2nd defendant in the line-up voluntarily.

23.Both prosecution witnesses identified the 1st and 2nd defendant.  PW7 identified the 1st defendant very quickly and without hesitation.  That line-up all wore blankets and face masks.  PW7 walked to the 1st defendant immediately.  As for the 2nd defendant, PW7 did not leave his seat to observe the line-up.  He glanced in the direction of the 2nd defendant twice from his seat and identified him.

24.Similarly, PW8 identified the 1st and 2nd defendant very quickly despite the 1st defendant wearing a face mask and a blanket over his upper body.

25.On 19 October 2016, the 3rd defendant was in Tuen Mun at a bus stop outside the immigration centre.  PW7 and PW9 saw him, recognised him as one of the MTR attackers and called the police.  He was arrested.

26.The police arranged PW8 to attend an identification parade on 20 October with the 3rd defendant voluntarily in the line-up.  In the parade PW8 had a very cursory look at the actors and the 3rd defendant and identified him quickly.

27.There was another round of identification parades on 24 May 2016 after the offence date for Charges 4 and 5.  On that date PW8, the victim of Charge 4 and 5, identified the 5th defendant and PW11, the independent witness who saw the incident, identified the 3rd defendant only.

19 May 2016

Charges 4 and 5

28.On 19 May PW8 was on his own walking to the Temple Street Market along Saigon Street at about 9.15 pm after having met his wife.

29.Suddenly three South Asian males appeared and pushed PW8 into a rear lane.  PW8 recognised the 3rd defendant who was on bail after his arrest for Charges 1, 2 and 3.  One of his bail conditions was he was not allowed to contact either directly or indirectly any prosecution witness such as PW8.

30.One of the males not identified or seen held PW8’s injured arm behind his back in order to restrain him.  He had seen the 5th defendant before, hours before the MTR attack on 21 September 2015 passing by.  He said the 3rd and the 5th defendant stood in front of him.  They threatened him, warning him not to identify the 3rd defendant during the trial of Charges 1 to 3.  The 3rd defendant specifically said if PW8 identified him, he would kill him.  PW5 told him not to give evidence.

31.PW11 who was nearby when he saw the commotion and saw PW8 pushed into the lane.  He went closer to see and shouted out.  When he did, the three men ran away down the lane away from PW11.  PW11 recognised PW8.  He called the police for PW8 at 7.24 pm and an ambulance then arrived.

32.It transpires that he recognised PW8 but they were not friends.  However, he was good friends with PW7 and once lived with PW9.  Both he and PW8 denied being friends despite allegations otherwise.  As I have said, he then identified the 3rd defendant at an identification parade but not the 5th defendant.

33.The prosecution relies on identification evidence, so I will summarise the evidence of those parades and the allegations made by the defence.

34.On 30 September 2015 two identification parades were conducted.  The ID parade book, P11, records the fact PW8 and then PW7 positively identified the 2nd defendant.  It began at 1834 pm and concluded at 1859 pm.  The second parade began at 1937 pm and concluded at 2015 pm.  The ID parade book, P12, records the fact PW8 and PW7 positively identified the 1st defendant.

35.The same officer in charge led both parades, DCIP Cheung Ka-ho, PW2.  He gave evidence of the procedure he followed.  Videos of those parades were submitted.  It was put to PW2 by counsel for the 1st defendant that the 1st defendant did not want to participate in the parade but had no choice after he was assaulted by a police officer.

36.It was put to PW2 by counsel for the 2nd defendant that his request to wear a blanket was refused, so he settled for changing his shirt with an actor.  It was suggested the 2nd defendant was told if he refused to participate in the parade, then PW2 would arrange a direct confrontation identification.

37.On 20 October 2015 one identification parade was conducted.  The identification parade book, P15, records the fact PW8 positively identified the 3rd defendant.  It began at 1822 pm.  PW4, ACIP Lo Chung-wong, was the officer in charge of it.  All suspects and actors wore the same shirt and shower caps.

38.It was put to PW4 that the 3rd defendant in the parade was a Sikh Indian and all the actors were Muslim Pakistanis, so the 3rd defendant was disadvantaged and stood out.

39.On 24 May 2016 two identification parades were conducted.  The identification parade book, P13, records the fact that PW8 and PW11 positively identified the 3rd defendant.  It began at 1633 pm and concluded at about 1656 pm.  The second parade began at 1936 pm and concluded at about 2022 pm.  The identification parade book, P14, records the fact PW8 positively identified the 5th defendant and PW11 identified no one in the line-up.

40.The 3rd defendant wore a hat as did all the actors in the first parade.  The 5th defendant who was legally represented during this parade wore a hat and a face mask as did all the actors.  They also all sat down on chairs and all had blankets draped over them from the neck down.  All that was visible were essentially his eyes.

41.The same officer in charge led both parades, PW3, ACIP Chow Hsing-Hsien.  She explained her conduct of the parade.

42.It was put to PW3 by counsel for the 5th defendant that she had left the parade book open and PW8 could have seen the No 3 written on page 5 upside down, therefore, able to identify the 5th defendant at position 3 in the line-up.

43.Counsel at the parade commented after the positive identification made that she was concerned the book had been left open at page 5 allowing PW8 to see it upside down.  This concern is recorded on page 7 of P14.

44.The video of the parade, P14B, was played to see if the page was open and PW8 could have seen the No 3 on the page upside down. PW3 said, and the video confirms, she used a blank piece of paper to cover up part of the page during the process.

45.There is no need for me to repeat the evidence of the witnesses nor the allegations put by the defence.  I have considered it all at length for my findings.

46.It transpired that when the 1st and 2nd defendant were arrested on 29 September, PW9 not only told his case officer to call the police because he recognised the 1st and 2nd defendant, but he called PW7 who was downstairs at the time and told him the same thing.  PW7 went up to the ISS office and saw the 1st and 2nd defendant arrested by the police.  PW7 said it was one of the reasons he recognised the defendants in the identification parade the next day.  For this reason I find PW7’s identification of the 1st and 2nd defendant not safe.

47.It also transpired that the man PW8 identified as the 1st defendant, he described to the police in a statement as a Nepalese male wearing a white shirt.  But after the positive identification parade, he said the same male was Indian and wore black and white shirts.  When this discrepancy was put to him, he said he meant the 1st defendant looked Nepalese but did not correct it in his statement.

48.The man PW8 identified as the 2nd defendant he described as wearing a red shirt during the attack.  He was stood on the platform, PW8 not see him do anything else specifically.  Counsel for the 2nd defendant played CCTV footage from MTR cameras and took stills from the same footage to show the 2nd defendant was not wearing a red shirt.  I can see it is not red in that footage.  The 2nd defendant was obviously not wearing a cap or a hat either, nor does he appear to be holding one as described by PW9 as a possibility.  Those discrepancies mean I have to treat PW8’s identification with great caution.

49.It also transpired PW8 was shown a photograph of the 3rd defendant taken when he was arrested on 19 October 2015, that same night.  The next day he identified the 3rd defendant in a line-up at a parade. PW8 says PW7 showed him the 3rd defendant’s photograph on a mobile phone.  PW7 said PW9 took a photograph of the 3rd defendant on his mobile phone, not him. What is agreed is that a photograph was shown to PW8.  This must mean his identification the next day of the 3rd defendant must be unsafe.

50.There was also evidence the 3rd defendant’s hair was bright green on the top of his head on 21 September 2015 during the MTR attack and golden brown by May 2016.  No victim describes a man with bright green hair and if they did not notice it, then the 3rd defendant must have worn a cap or a hat.  The only victim to mention a cap is PW9 and it seems from his evidence he thought it was the 2nd defendant who was wearing a cap, not the 3rd defendant.

51.The 3rd defendant’s wife gave evidence of dyeing the 3rd defendant’s hair bright green just before the date of the MTR attack and Exhibit D8 is a photograph of the 3rd defendant and his green hair taken one day before.  There was no reason for me to doubt this part of her evidence or her photograph. 

52.Neither PW7, 8, 9 or 11 mentioned the 3rd defendant or any attacker having green hair or dyed hair either before or after the identification parades.  That is an omission I cannot ignore; such a feature is distinctive.

53.PW8’s identification of the 5th defendant must raise eyebrows.  He gave a vague description of the 5th defendant to the police, he said a light grey T-shirt, short hair, medium height and Pakistani. He did not describe his facial features because he said he was not asked.  He did not give an age because he was not asked.  He did not give these details because he said he knew the 5th defendant and could name him.

54.He is sure he told the police in his statement that he had seen the 5th defendant outside a mobile phone shop the same afternoon of the MTR attack.  However, it is agreed that that is not in his statements.  The first mention of this is in court.  There is no mention in his statement he knew the 5th defendant, yet he identified him by his eyes only and very quickly in the identification parade.

55.In that parade PW8 walked up and down the line-up picking out the 5th defendant in about 15 seconds.  He did not need to stop and look at anybody before selecting the 5th defendant.  The video, P14B, was watched in court.

56.Defence counsel for the 5th defendant suggests PW8 could only have identified the 5th defendant by his eyes if he knew he stood at No 3 position in the line-up.  It was suggested he saw the No 3 written in P14, the ID parade book.  That is not the only possibility; another would be if he knew the 5th defendant well, well enough to recognise him by his eyes.  His evidence clearly is otherwise, but I am not so sure that is the whole truth.

57.PW9 recognised and called the police when he saw the 1st, 2nd and 3rd defendant on two divers dates.  He was very sure in the witness-box, but he did not deny he told the police in his first statement that it was very chaotic at the scene and he was unable to describe anyone except the 4th defendant of all the attackers.  Yet, in the witness-box, he was able to describe the 1st defendant as short, slim and the man who chopped him.  He also said the 2nd defendant wore a cap and did not hold a chopper.  He said the 3rd defendant did hold a chopper but he did not see him chop anyone.

58.In cross-examination he said he did not give any descriptions of the 1st, 2nd or 3rd defendant but did tell the police if he saw them again he would recognise them.  In fact, he was sure he was not asked by the police at any stage to describe the attackers even when taken to his statement and shown otherwise.

59.He said he told PW15, the police officer who came to the ISS office to arrest the 1st and 2nd defendant, that the 1st defendant was the one who chopped him.  Yet, at the same time he agreed he only told a police officer these two were amongst the people who attacked him at the MTR station.  PW15, a police officer, confirmed this was what PW9 said to him at the ISS office; at least that was the gist of what he said.

60.Again, I am not sure PW9 has told the whole truth.

61.It is clear that a lot of evidence from the victims relating to their ability to identify and describe the defendants and their roles were not in their statements.  Of course I do not expect all details to be in those statements but nor should there be unresolved glaring discrepancies such as like some I have just highlighted.  It can cast doubt on the positive identifications subsequently made.

62.The victims were not very strong witnesses, in particular PW8.  Their discrepancies, errors and omissions are too numerous to repeat.  Some answers plainly non-sensical.  Nonetheless, my observation is that they were trying to tell the truth, not being deliberately obstructive and perhaps believed their own evidence. 

63.The problem is when I reviewed their evidence, I am sure the whole truth has not come out or been revealed.  Not that that means deliberately or for sinister reasons, but it is nonetheless a cause for concern.  It is hard to imagine two groups of men in this scenario of a vicious attack with choppers in a very public place would all be strangers to each other bar the 4th defendant.  The same would apply to the ability of the victims to then recognise them, call the police, identify them in a line-up and give specific details of them from the night of the attack when none was given to the police in statements.

64.Again, it may in reality be the case that they recognised them when they saw them again, but for the purposes of proving the charges beyond reasonable doubt with credible evidence, that standard may not be reached under such circumstances.

65.Counsel for the 5th defendant did suggest to PW8 and PW9 that he and others were trying to extort protection money from the owner of a shop where the 5th defendant worked and that it was the 5th defendant who threatened them with the police, hence an attempt to frame the 5th defendant.  This was denied.

Alibis and the Defence Witnesses

66.The 3rd defendant filed a notice of alibi and called a witness for the evening of 19 May 2016, Charges 4 and 5, as well as a witness for the evening of 21 September 2015, Charges 1, 2 and 3.  His wife also gave evidence for him.

67.DW5, currently detained in Lai Chi Kok Remand Centre, gave evidence that the 3rd defendant met him on 21 September at around 6.33 to 6.35 pm at Ferry Street Park.  They then left together to a nearby 7-Eleven shop.  He recalls the 3rd defendant using his Octopus card in that shop at 6.38 to 6.40 pm.  They then went to Austin Station where he again recalls the 3rd defendant using his Octopus card to buy a ticket.  They both took the KCR to Tsuen Wan district to meet DW5’s uncle where they stayed for an hour and 10 minutes.  When they left and took the train again, DW5 mentioned the 3rd defendant’s Octopus card for a third time.  He said they left his uncle at 9.18 pm.

68.He said he never discussed his alibi evidence or those times he gave with the 3rd defendant before giving evidence in court. His evidence was that he knew the 5th defendant.  He said that the police visited him in Lai Chi Kok and threatened him, telling him not to give evidence.  He was then too scared to give the police a statement in answer to the 3rd defendant’s alibi notice.  Therefore, DW5 gave evidence with no statement taken by police beforehand as is the norm.  It hinders the prosecution’s ability to negate that alibi.

69.DW3 gave evidence of meeting the 3rd defendant at his request at their normal meeting point in Kowloon Park at about 7 pm on 19 May 2016.  There were two other friends there.  At about 8 pm he said the 3rd defendant ordered food to be delivered.  They stayed in the park until about 11 pm.  He recalls this night clearly because his wife called DW3 on 22 May crying, saying that the 3rd defendant had been arrested for an offence on 19 May.  DW3 recalled that in fact the 3rd defendant had been with him all night from about 7 pm.  He too knew the 5th defendant well enough to speak to.

70.Exhibit D12, admitted facts that relate to times two Octopus cards were used on 21 September 2015 and 19 May 2016.  Both cards were seized from the 3rd defendant when he was arrested on 19 October and 22 May respectively.  D12 also admits that on 19 May 2016 at 1803 pm the 3rd defendant signed the occurrence book at Hung Hom Police Station, the night of the offences, Charges 4 and 5.

71.DW4, the 3rd defendant’s wife, the hairdresser, gave evidence of dyeing his hair bright green several days before the MTR attack.  She took the photograph D8 on 20 September showing that particular shade of green.  She recalls the 3rd defendant went out at about 6 or 7 pm on 21 September.  She was with him when he was arrested on 19 October in Tuen Mun.  On 22 May 2016 she went with him to answer his bail at Ho Man Tin Police Station and waited outside.  He was arrested again inside and did not come back out.  She did call DW3, the 3rd defendant’s friend, to see if he could shed any light on the 3rd defendant’s second arrest.

72.Of all three defence witnesses, DW5’s evidence is hard to believe because of his very specific times given to the minute and his specific references to the 3rd defendant’s Octopus card usage.  However, on the other hand, the Octopus card timings were logged in as exhibited in D12 and indisputable.  Nonetheless, I suspect that there was collusion and coaching of his alibi evidence and I rejected his evidence. 

73.DW3’s evidence starts with a recollection of meeting the 3rd defendant at approximately 7 pm on 19 May.  His memory can be just that approximate only.  That is not a cast-iron alibi. 

74.I am not convinced the alibi evidence from the 3rd defendant hinders the prosecution case or the timings they relied upon. However, it is the duty of the prosecution to negative any alibi raised by any defendant.

75.The 5th defendant also filed a notice of alibi stated that at the material time at about 1910 pm on 19 May 2016 the 5th defendant was not at the scene for Charges 4 and 5 of Saigon Street, Yau Ma Tei.  The 5th defendant says he has CCTV footage from his home security cameras to prove it.  At the time he was at home in his flat in Fruit Lane, Yau Ma Tei. 

76.He was, according to the notice, to call two defence witnesses in his defence.  He called one, DW7, a flatmate.  In fact, this man did not give evidence on the 5th defendant’s whereabouts at about 7 pm on 19 May.  What he did do was confirm he was seen in CCTV footage from cameras inside the 5th defendant’s home.  Exhibit D1 is video footage and Exhibit D2, 1 to 13, are still photographs taken from Exhibit D1. 

77.The 5th defendant says the date and time seen on the camera is accurate and in real time, therefore, the CCTV footage shows him at 1907 going out, saying he is going to collect his laundry and returning at 1918 pm with a bag of laundered clothes.  It shows he then gave DW7 who was seen on CCTV at all times a packet of biscuits.  The 5th defendant is then seen selecting clean clothes and going out at 1927 pm.  The defence say that PW11 called the police at 1924 pm from Saigon Street, so the 5th defendant could not have been at that scene threatening with the 3rd defendant. 

78.DW7 gave evidence of the installation of those CCTV cameras in March 2016 as arranged by the 5th defendant.  DW7 checked the time and date against his mobile phone when the system was set up to ensure it was accurate.  Thereafter, the monitor was always on showing the front door and the time and date was always displayed.  DW7 never noticed it being out of sync or showing the wrong time.

79.When the 5th defendant was arrested on 22 May, he called DW7 to tell him and ask him to arrange for legal representation, for a lawyer. 

80.There is evidence of a house search on 23 May, but DW7 was not at home.  An interpreter, DW8, recalls the 5th defendant asking the police to watch the CCTV footage to prove he was at home at the material time.  They did watch and asked the 5th defendant to put the footage on a disc for them.

81.DW7 said the police came again hours later when he was at home.  They told him to put the CCTV footage on a USB for them.  DW7 bought a USB and asked someone to transfer the footage for him.  He later went with a lawyer to hand it to the police the following day.  Admitted facts deal with the CCTV footage, handling dates and the still photographs, that being Exhibit P16.

82.The 5th defendant also gave evidence and said where he was and at what time on 19 May from about 7 pm.  He relies on the CCTV footage to document his whereabouts at the material times.  He also produced photographs and a map of the route he took from home to the launderette and back again.  He recounted who he spoke to, about what and where on this route.

83.The prosecution do not agree the timing and date on the CCTV footage is in real time, but that is without any investigation into the matter.  The tape and alibi was brought to their attention the day after the 5th defendant’s arrest and no effort was made to negative the alibi as required.  At the end of the day that has not been achieved.

My Findings

84.Charges 1, 2 and 3 are charges that involve a joint enterprise.  The prosecution do not have to prove which defendant delivered which blows that caused the injuries sustained by the victims.

85.The prosecution must prove all charges beyond reasonable doubt.  The defence have nothing to prove.

86.All the defendants have a clear record in Hong Kong.  All but the 5th defendant are presently asylum seekers having come to Hong Kong at different times; they are not permanent residents.  I have warned myself of the fact that since they arrived in Hong Kong they have a clear record.  I have directed myself in accordance with requisite directions set out in the authority of Tang Siu Man v HKSAR [1998] 1 HKC 371.

87.I have read carefully final submissions submitted by all parties, marked MFI-3 to MFI-6.  Also relevant are the submissions for unsuccessful submissions of no case to answer after the close of the prosecution’s case, MFI-1 for the 2nd and 3rd defendant and MFI-2 for the 5th defendant.

88.The authority of R v Turnbull [1977] QB 224 deals with identification evidence and the dangers of relying on it when the prosecution case is solely or substantially evidence of identification.   Here, there must be a warning of the special need for caution before convicting.  

89.The defence stress in this case that this authority is very relevant as is the warning advocated.  The defence stress the attack on the MTR platform was chaotic and a surprise, not lasting very long.  If the attackers were really strangers to the victims, then the identification must have depended solely on a fleeting glance or observations made in difficult conditions of a vicious attack.

90.I have set out the identification parades held and under what circumstances identifications were made.  I do not find any evidence of any impropriety by the police conducting the parades and the officers, senior officers presiding over them.  The 1st defendant may have been seen crying by the interpreter, PW13, but that was after the parade and I am sure more likely because he was distraught he had been identified rather than because he had been beaten by a police officer.

91.What worries me other than those concerns I have already highlighted is the speed in which witnesses were able to identify men they all say were strangers to them.  There was in addition a difficulty factor with the 1st and the 5th defendant who were covered by blankets, masks, caps so that very little of their faces or bodies were exposed.  Despite such difficulties, identification was made without hesitation which troubles me.

92.I do not propose to identify every reason why I find all identification parades unsafe.  I have covered most already, but it did concern me that none of the prosecution witnesses could give any descriptions of the 1st, 2nd, 3rd and 5th defendant before the parades yet able to pick out defendants and describe their features, clothes and at times their roles.

93.There were instances where descriptions of sorts were given, but it differed after the parade such as PW8 telling the police the 1st defendant was a Nepalese man in a white shirt, but after the parade telling the police he was in fact Indian and wearing a black T-shirt with a white shirt over it.  He made it worse by angrily saying he meant the 1st defendant looked Nepalese. 

94.PW7 saw the 1st and 2nd defendant when they were arrested the day before the parade and PW8 saw a photograph of the 3rd defendant knowing he had been arrested for this attack, also the day before a parade.  It troubles me that not one witness mentions the 3rd defendant’s green hair in 2015 or his golden hair in 2016. 

95.These concerns apply to all identifications with differing levels of concern, but they do apply to all.

96.Then there is the alibis of the 3rd and the 5th defendant.  The 3rd defendant’s, I doubt, and despite the Octopus card times, there is still a possibility he was on the MTR platform.  The 5th defendant is in a different category.  The alibi of the CCTV footage and recorded times required more than a brush-off by the police and prosecution. 

97.Lastly, there is the evidence of the victims themselves.  There are too many unanswered questions.  This case cannot reach the appropriate standard of proof because of their evidence.  There was not enough care taken to extract full statements from these witnesses before the identification parades.  However, there is also the possibility that the witnesses did not want to give the police more information or did not realise the significance of such information to be supplied before trial.  Their inconsistencies and omissions were ample ammunition for defence counsel in cross-examination and they took full advantage of it.  Much was made of this and highlighted in final submissions submitted.  I have to agree with defence counsel.  The victims and PW11 were not good enough witnesses.

98.Although I find they were collectively not good enough witnesses, that does not necessarily mean they were evasive or dishonest witnesses.  With the exception of the 5th defendant, I suspect the defendants were involved in these offences, but my strong suspicion is not enough.  The evidence has to be credible enough to prove all the elements of each charge beyond reasonable doubt.

99.I only single out the 5th defendant because of the alibi not being dealt with sufficiently.  My suspicion is that there is more here than meets the eye, but as I have said, suspicion is not enough.

100.These charges do not fall or stand together nor do the defendants.  However, the discrepancies and omissions highlighted in the evidence and the concerns I had about the identification evidence means all defendants benefit from doubts raised.  Therefore, all defendants are acquitted of the charges they faced.