HKSAR v. Gurung Swatantra

DCCC 746/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 746 OF 2016

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Reasons for Verdict

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1.The defendant faces a single charge under section 17(a) of the Offences against the Person Ordinance of Wounding with intent.

2.There is no dispute that the 1st prosecution witness was wounded in the early morning of what was 1 January 2015 in a Nepali club called Volt in Lan Kwai Fong.  He was slashed with a bladed object on the side of the head and also stabbed in the back near the shoulder by two individuals.  He was also assaulted by kicking and hitting by five to seven other men.  PW1 says that the defendant was one of the men hitting him.

3.The defendant does not dispute that he was inside the Volt bar at the time the incident occurred.  He says he was by the toilet and came back to separate the parties.  He says PW1 is mistaken in identifying him as one of the gang that assaulted him.  The issue at trial was whether PW1’s identification of the defendant as one of the assailants is sufficiently reliable to discharge the standard of proof in a criminal case.

4.The evidence is as follows:-

PW1 is a Nepali, a resident of Hong Kong since 2008. He is aged 24. On New Year’s Eve of 2014/15 he went out to celebrate. Eventually in the early hours of New Year’s Day he went to Volt bar in Lan Kwai Fong with some friends. The Volt bar is a bar, as I understand, frequented by Nepalese. The group that PW1 was in sat to one side of the bar near the bathroom. He said initially he was a little bit drunk.

About 9 or 10 young Nepali or South Indian males came over to where he was. He said they spoke to him, they used rough words including foul language. When he tried to stand, they attacked him. He said they used knives and hands. He clarified that as he stood he said “they pushed me” and the person attacked him. Five or six of them to use his expression “put hands on him” (as translated). He said he was assaulted with a knife or attacked with a knife to the head but also to the backside. He knew it was a knife because he saw it when they fled. He said that knife was 15 to 20 centimetres long. The person who held it was a little bit fat. He could not see who caused the shoulder wound. He said the wounds were caused at the same time as he was being beaten. There were five or six attacked him that way, in total there were eight to nine men. Five or six, to use the expression as translated, “used hands to attack him”. After the attack with the knife he fell down. It all happened, he said, in a very short time.

5.He said he had seen some of the men who attacked him before at a Nepalese party.  He was asked if he recognised anyone.  In response he said “I felt like I know them somewhere”.  He was able to identify these men to the Police.  He was able to produce photographs of them from Facebook and provided four photographs of four men to the Police.  One of these is the defendant.  He said these photographs were the men who belonged to the group who he felt might be the ones. 

6.In October of 2015 he went to an identification parade where he identified the defendant.  He said that at the identification parade he was sure otherwise he would not participate in the parade.  He said he could not later identify the man and did not see him in court.  He said it was two years ago and he could no longer make an identification when asked in court.  He said again at the identification parade at that time he knew but now he had forgotten.  He also said that he identified the defendant at the parade because “At that time I felt that was the man, the person involved in the fight and I saw him on 1 January.  At that time”, he said, “I remembered the faces of the five or six of them very clearly.  Now this is at trial, I am giving evidence” he “could not remember much, it was more than two years ago”.

7.In cross-examination he denied that his friends provided the names of the persons who he had identified through Facebook.  He said he had searched them himself.  He said he felt that he had seen them at Nepali parties.  He said at the time their faces were very clear to him and that is why he gave the statement.  He said he was not drunk, he had drunk a little.  He agreed that the bar itself was what he describes as “a little bit dim”. 

8.He gave further details of the attack in cross‑examination. He said in the beginning he spoke to two of them.  There were others.  One used foul language.  Straight away he was taken to the centre of the dance floor. He asked who he was speaking to.  He was pushed, he pushed back.  Then there was fighting, he was injured.  He said he was stabbed and the other males used hands and legs.  He said he could still see even if it was dim and he said that “When people come in a group you can notice their faces”.  He also agreed that he had seen the defendant before the attack.  He had seen him later, then later, where there is a discussion with his friend.

9.In addition to PW1’s evidence there were admitted facts which produced CCTV recordings and photographs of the Volt Club, its entrance, lift lobby and stairs. The medical evidence which outlined the wounds to PW1 were also agreed.  CCTV recordings showed the defendant waiting for the lift at the ground floor or the bottom floor of the Volt Club.  He was with a group of five or so other South Asia males.  They entered the lift at 4.02.  The defendant can also be seen to take what is described as a long shining object resembling a knife and hide it under his clothes. 

10.Between 4.02 and 4.04 other males are seen using the lift and stairs to access the club.  At 4.09, and this must be after the incident at the club had taken place, the defendant and four other men entered the lift, this is leaving the Volt Club on the floor where the club is.  One appears to have blood on his neck and face.  The defendant takes out this long shiny object that had been seen before and strikes the door with it.  At 4.10 the lift has reached the bottom of the building, the ground floor.  The defendant leaves the lift but stays near the door.  He can be seen to brandish the long shiny object preventing others from entering the lift.  Eventually he and the other males left at around 4.13 am.

11.The prosecution also put into evidence a voluntary video-recorded interview made by the defendant on 30 April 2015.  The defendant admitted in that he had gone to Volt bar that morning in a group. There were around five of them. After they went there, there was a dispute with another group.  He knew three or four in that group.  He used to say “Hi” or “Hello” to them. 

12.He said there was a fight and it was not easy to separate them.  A person called “Sokin” had been injured.  Sokin had been in the group of five men he had entered the club with and that his cheek was cut by a bottle.  He also knew one called Sajan was injured, this would have been PW1.  He said he knew PW1’s friend, Nisha, he had seen him to say “Hi” or “Hello” to.  He did not know how Sajan and PW1 was injured or who injured him. He was not at the place where the fight happened.  He was by the toilet talking with Nisha.  They saw the fight and went over to separate.  He did not see any weapon being used.  A bottle was thrown and injured Sokin. 

13.He admitted he had been given a stick after the fight ended. He threw it in an alleyway near Volt to hide it.  He said the stick was bought by Sokin and at the lift lobby he grabbed it off him before throwing it away.

14.The defendant did not give or call any evidence.  He is entitled to do so and no adverse inference can be drawn from those decisions. 

The Issue

15.The prosecution state that the defendant took part in a joint enterprise to wound PW1.  They say his part in this was to assault PW1 physically with his hands and legs, that is to beat him.  The actual wounding appeared to be perpetrated by two other people.  They point to PW1’s identification of the defendant as part of the group that assaulted him.  There was evidence that the defendant was definitely at the premises at the material time and that he entered into the premises with a group of men and that the defendant appeared to have armed himself before he entered the club. 

16.They say that PW1’s identification of the defendant is reliable in all the circumstances and these circumstances being that they had known or been familiar to each other at least prior to this incident.  The defendant was armed himself and obviously contemplated being in a violent situation.  The defendant had admitted that he entered with the group that eventually assaulted Sajan, PW1.

The Defence

17.The defendant did not dispute that he was present in the club when the assault took place; nor that he entered with a group of men who were involved in the fight with PW1; or that he had a stick at some point in the evening.  He mentions that PW1 is mistaken or he maintains that PW1 is mistaken due to the low lighting, the confused, violent and shocking nature of the attack and PW1’s injuries.  They also point to his admitted consumption of some alcohol.  They contend that PW1 has in fact conflated the defendant into the attack because PW1 knew he was present and that his friends were there also and that this had led to the defendant being wrongly identified.

18.Now the prosecution bring this charge, the onus is on them to prove it and it remains on them at all times.  The prosecution must prove that charge or the charge they brought beyond all reasonable doubt. The case involves an allegation of mistaken identification by the defence.  The prosecution must of course prove the identification beyond all reasonable doubt. 

19.The guidelines in the case of R v Turnbull which are familiar are relevant and that where a case wholly or substantially depends upon the correctness of identification evidence is required that.  The court warns itself of a special need for caution; that a mistaken witness can be convincing; that there can be mistaken recognition of friends or acquaintances; that the circumstances of any identification that is made must be closely examined.  The evidence supporting the identification should be identified as should any evidence that appears to have the quality, that quality of supporting the identification but actually does not do so.

20.Again the prosecution alleges the defendant was involved in a joint enterprise to commit the offence of wounding with intent to do grievous bodily harm.  As I said earlier, there can be no dispute that the injuries inflicted on PW1 amount to wounds and wounding and that they themselves amount to really serious bodily injury or grievous bodily harm. However, the existence of a joint enterprise in the defendant’s participation in it must also be proved beyond reasonable doubt and to establish an accessory’s guilt the prosecution must be able to prove the commission of the principal offence and the accessory’s performance of intentional acts capable of assisting or encouraging that offence with knowledge of the essential facts constituting the offence and an intention to assist would encourage in its commission.

21.The prosecution say the defendant’s presence and the actions attributed to him and all the surrounding evidence as evidenced by PW1 and the CCTV cameras lead to an irresistible inference that the defendant participated in a joint enterprise to wound PW1 and cause serious bodily injury.  As I said before, the issues presented before the court was presented as one of mistaken identity.  It was not, and nor I think could it be argued, that were PW1’s evidence to be accepted the only available inference would be that the defendant took part in a joint enterprise to wound PW1 and that such wounding must be carried out by all concerned in the assault with an intent to cause grievous bodily harm even though only two of the assailants wielded weapons which were capable of causing such injury on the evidence of PW1.  The evidence of issue of identity is as follows:

22.It was established that the conditions inside the bar were dim, even PW1 admitted that, there was also other evidence of that as well.  The lighting was low; one would expect that in this kind of club at that time in the morning.  It is also clear that the incident happened very quickly and involved multiple persons.  Incidents of violence such as this are discharged often very quickly.  The time for the defendant to identify anyone was limited.  The situation was confusing.  It is clear from this that these are difficult conditions, also PW1 had made clear that by the time of trial he could not make any identification in court. 

23.However, it is again common ground that the defendant and PW1 had seen each other that evening and knew each other, if only for nodding acquaintances.  This the makes this a case of recognition.  This must of course be subject to the caveats I mentioned earlier that recognition of friends or acquaintances can also be mistaken even if the witness appears convincing. 

24.The defence referred to certain evidence given by PW1 that they say showed PW1 was less than certain in his identification of the defendant.  Particularly they refer to at least two areas in cross-examination and expressions used by the defendant when he was dealing with the issue of identification.  He was asked “Do you agree your identification of the attackers was unreliable?”  He said “I cannot say for a 100 per cent they were there by the side at the fighting time whereas the other people were already there”.  The answer is somewhat difficult to process but appears to refer to all of his attackers and we know there were eight or nine and we know that he could not identify a number of them so it does not necessarily appear to refer to the defendant who in examination-in-chief he had said he was sure about when making the identification at the identification parade. 

25.Also, at the end of his evidence he was asked in respect of the defendant, the expression was this, “Is it possible that putting his name on the statement as a person who kicked or punched you is mistaken?” His answer was “At the time I don’t know” although he never specified what time.  “Is it possible?” and he said “Maybe”.

26.Also it is pointed out that in the examination-in-chief he was asked why he identified the defendant and had said “At that time I felt that was the man, the person involved in the fight I saw”. It is said this reflects a degree of uncertainty that should prevent the defendant being identified as being involved to a criminal standard.

27.In resolution of this issue it is of course necessary to look at the totality of the evidence called.  PW1 was assaulted and was wounded on 1 January 2015.  He said in evidence he was very clear about who assaulted him.  “I remembered the faces of five or six of them very clearly” is what he said in evidence.  He said he had seen them directly in the fight.  He had seen the defendant before the fight at parties in Lan Kwai Fong and also in the Volt bar before the fight.  They were on, I think it is “nodding terms”.  He acknowledges this in his video‑recorded interview.  The defendant admits his presence.  He also admits he came with the five others, some of whom he knows were involved in the fight.

28.After this incident, PW1 goes on Facebook and comes up with the defendant’s photograph.  This occurs on 11 January.  The photographs are given to the Police.  PW1 had been in hospital, I think, till 8 January.  We wait until October of 2015 before the identification parade.  In that identification parade PW1 identifies the defendant as an assailant.  He said in court “At that time”, which must be the time of the identification parade, “I knew and also at that time” he said “I was sure otherwise I would not participate in the identification parade”.

29.When the witness also adds in his evidence he “felt it was the man”, it appears to me it is simply his mode of expression.  He was sure, that is clear.  I note that in his cross-examination PW1 acknowledged the possibility of mistake but in that it seems to me he was acknowledging the hypothetical nature of the questions that were being asked. I do not believe it impugned his identification of the defendant.

30.Furthermore, PW1 failure to identify the defendant in court at trial is not in my view significant as a considerable time had elapsed, so PW1 was simply being honest as to his current position. It did not reflect his evidence of his position in 2015, either in January or October of that year.

31.I find having considered all the evidence in its totality that PW1’s identification of the defendant must be reliable.  I found PW1 himself to be an honest and truthful witness doing his best to tell the court what he said happened.  I consider that looking at the preponderance of the evidence, it shows the defendant must be reliable and must be relied upon.

32.Firstly, that PW1 recognised the defendant, he was able to look directly at the face of the defendant during the incident, he was clear about that.  Although time was limited, it is possible, entirely possible to make an identification in those circumstances.

33.The defendant admits he was there; the defendant admits he was with the other men who had assaulted PW1.   The defendant can be seen to have come with some kind of object that appears to be a weapon and they also took it out after the incident to hit the lift door and brandish it downstairs. 

34.PW1 was able to find the defendant’s photograph after the incident and give it to Police after his release from hospital on 8 January.  He was later able to be sure about his identification in October at the parade.

35.These factors taken together support PW1’s identification and description of the defendant’s actions that evening. 

36.It is also contended that the contents of the defendant’s video-recorded interview where he says he separated the parties should be considered.  PW1 makes no mention of something like this occurring and I am sure it did not happen.  I found on reading the defendant’s video-recorded interview that it is self-serving in placing him away from the assault but near enough to have witnessed it and I am sure this is not truthful and I reject the possibility that PW1 is mistaken in this way about it.

37.It is clear on the evidence called by the prosecution that I find that the defendant was present, that the defendant was involved in the assault and wounding on PW1 at a time contiguous with when PW1 was wounded by two others with weapons capable of inflicting wounds that amounted to grievous bodily harm.  The defendant assisted these others in that wounding of PW1.  The defendant himself had come with a weapon-like object and so must have envisaged that the force used by the group would involve the use of more than fists and kicks and that weapons would be used. 

38.Thus the evidence shows the defendant was involved in active participation, in a joint criminal enterprise, an agreement to assault and wound PW1 with weapons with the intent to cause grievous bodily harm. The defendant’s conduct in giving effect to this joint enterprise by assaulting with fists and kicks amounted to active assistance by his actions to this criminal enterprise.  From these findings it is clear that the only inference I can draw, the irresistible inference, is the defendant was assisting, aiding and abetting the wounding of PW1 with the necessary intent. I find that proved beyond reasonable doubt and the defendant is convicted accordingly.