HKSAR v. Cheng Ka Ho and Others

DCCC 497/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 497 OF 2017

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Reasons for Verdict

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1.The defendants face one joint charge of wounding with intent, contrary to section 17(1)(a) of the Offences Against the Person Ordinance, Cap.212.

2.They each pleaded not guilty to the charge.

Background

3.Plainclothes Police officers on anti-crime patrol in the Taipo Market area observed a man approaching a group of 10 odd people at a brisk pace at 2:52am on 6^th April 2016. The man was holding a large spanner in his hand.

4.Given the time of night and the manner of the man approaching the group, the officers kept an eye on the man.

5.Upon the man reaching the group, the officers heard them quarrelling. After a few seconds, the man started to run away from the group.

6.The officers saw 3 men broke from the group and ran after the man.

7.It is the prosecution’s case that D2 was the person who hit the man with the spanner, while D3 was the person who had held the man’s neck from behind. It is also the prosecution’s case that the defendants had kicked and punched the man after they had caught up with him.

8.The Police officers moved in, revealed their identity and stopped the attack.

9.The 3 men were arrested and eventually charged in this case.

10.The man who was chased, later identified as one Mr Liu, was also arrested. He was charged with the offence of possession of an offensive weapon for his part in the incident. Mr Liu pleaded guilty to that charge before a magistrate and was sentenced to 2 weeks’ imprisonment on 7^th July 2017.

11.Despite being the alleged victim in the present case, Mr Liu was not called as a witness. There is no admissible evidence from the prosecution to explain why Mr Liu was not called, although Mr Hotten for the prosecution did inform the court that Mr Liu had refused to be a witness.

12.The prosecution proceeded with the prosecution of the defendants, relying on the evidence of the plainclothes Police officers.

Issues

13.The prosecution must prove beyond reasonable doubt that D2 did use a spanner to hit the head of Mr Liu. They must prove that the hitting of Mr Liu’s head by D2 caused the injuries as depicted in Mr Liu’s medical reports.

14.The prosecution must prove that D1 and D3 were ‘in it together’ with D2. More specifically, D1 and D3 had each intended to take part in the wounding that caused Mr Liu grievous bodily harm.

15.The prosecution must also prove that the wounding was unlawful.

16.Since D1 and D3 admitted to grabbing and pinning down Mr Liu under caution, even if the prosecution fails to prove that D1 and D3 were ‘in it together’ with D2 with regard to the hitting of Mr Liu on the head with the spanner, D1 and D3 may still be guilty of the alternative offences of assault occasioning actual bodily harm and common assault based on their admissions.

The trial

17.The prosecution called 6 witnesses. As mentioned above, Mr Liu was not called to give evidence.

18.Witnesses PC3769, PC11817, PC18810, DPC14968 and Sgt34204 were members of the team of plainclothes Police officers who were at scene.

19.None of the defendants elected to give evidence, nor did they call any defence witnesses.

Summary of the evidence

PC 3769 Officer Lee’s evidence

20.Officer Lee was on plainclothes duty with his team mates at around 2:52am in the area of Taipo Market when he suddenly saw a man in his forties walking across Kwong Fook Road in a hurry. It is not disputed that this man was Mr Liu.

21.Mr Liu had a spanner in his hand. He walked towards a group of about 10 odd people who were standing on Kwong Fook Road.

22.Officer Lee heard Mr Liu and the group quarrelled. And then, very quickly, the man came out of the crowd and ran towards number 147 Kwong Fook Road to the right of Officer Lee. 3 men broke off from the crowd and ran after him.

23.This is what Officer Lee said in evidence-in-chief: “And I saw 3 men coming out of the crowd after that man and beating him. That man in chubby build fell over on the ground”.

24.Officer Lee said that, when he saw that happening, he ran towards them and shouted “Police, stop!”.

25.Officer Lee ran for about 5 to 6 meters towards them. He saw the 3 men hitting the man on the ground. Officer Lee yelled again for them to stop. He said the 3 men then started to scatter, wanting to escape.

26.It must be pointed out that Mr Hotten for the prosecution did not ask Officer Lee to elaborate on the “beating” and the “hitting”.

27.Officer Lee continued with his evidence and said that he charged forward and pinned one of the men down to the ground. He revealed his Police identity and asked the man to stop.

28.Officer Lee looked to his left and saw Mr Liu with blood on his head. He also saw his team mates pinning down or holding down the other men. One of his colleagues radioed for assistance and other Police officers soon arrived and helped to control the scene.

29.It is an admitted fact that Officer Lee arrested and cautioned D1 at scene. Under caution, D1 said that he saw the fat man intending to hit people, so D1 went forward and helped to subdue the man, to pin him down.

30.Officer Lee was not able to identify D1 in court as the person he arrested on the night. Given that it is admitted fact that he did arrest D1 on the night, and given that D1’s identity was never in issue, I find that this failure in dock identification has no evidential value.

31.During cross-examination, Officer Lee confirmed that Mr Liu was running across the street while holding a spanner. He said he did not see Mr Liu’s face when he was running towards the crowd and agreed with counsel that if Mr Liu had any injuries on his face at that time, he could not have seen it.

32.Officer Lee said Mr Liu spent about 5 to 6 seconds at the crowd before he started to run off. He did not see Mr Liu doing anything when he was at the crowd, he just carried the spanner “like usual walking”. This part of his evidence contradicts directly with the evidence of his team mate DPC 14968 who claimed that Mr Liu pointed the spanner left and right and waved it up and down at the crowd.

33.Mr Szeto, Counsel for D3, asked Officer Lee questions about his team’s position when Mr Liu showed up. Officer Lee said he and his team mates had been standing at the corner between Wan Tau Street and Kwong Fook Road for about 10 minutes before Mr Liu appeared.

34.Mr Szeto pointed out to Officer Lee that he and his team mates should have immediately tried to stop Mr Liu when they saw him approaching the crowd holding the spanner. Given the time of night and the manner of Mr Liu’s approach, they would have been entirely justified to stop him during the 10 odd seconds that they saw Mr Liu walking hurriedly towards the crowd.

35.Officer Lee disagreed. He claimed that it never crossed his mind to immediately shout out to Mr Liu and ask him to stop so that he would not have had contact with the crowd.

36.It was pointed out to Officer Lee that D3 never kicked or punched Mr Liu that night. Officer Lee disagreed and said this: “At that time, I saw 3 men hitting that man”.

37.Mr Hotten did not ask Officer Lee to clarify about the hitting of the man in re-examination.

PC 11817 Officer Yip’s evidence

38.Officer Yip was on plainclothes anti-crime patrol with his team mates. He was about 5 to 6 meters from Mr Liu when Officer Yip first saw him. Mr Liu had a black spanner in his right hand and crossing the road towards Kwong Fook Road.

39.Once Mr Liu got there, Officer Yip saw him quarrelling with a crowd. Since the Police officers found it odd that a man should be walking around holding a spanner in the middle of the night, they started to walk towards where the man and the crowd were.

40.After 3 to 5 seconds, while the officers were on the move, Mr Liu suddenly ran away from the crowd and towards number 147 Kwong Fook Road. Officer Yip said Mr Liu was not holding the spanner anymore when he was running away from the crowd.

41.Officer Yip then saw 3 men broke from the crowd of 10 odd people and they chased Mr Liu. Officer Yip described them as being very close to Mr Liu, 「好貼」were the words he used.

42.The 3 caught up with Mr Liu after about 10 meters, when they got to outside number 147 Kwong Fook Road.

43.Officer Yip was then asked what happened when they caught up with Mr Liu and Officer Yip gave this answer: “I saw the 3 men hitting the first man who was previously holding a spanner”.

44.Mr Hotten asked Officer Yip to explain what the 3 men were doing one by one. Officer Yip was able to say Mr Liu was standing up while being hit, he was however unable to provide more information in this answer of his: “I just saw them hitting the man, I could not see the details.”

45.Slightly later on in his evidence Officer Yip did give a little bit more information about the attack. He said that when he arrived at the location of the attack, with his baton out, preparing to subdue one of the men whom he later arrested, that man was holding a black spanner in his right hand, hitting the first man on the head once.

46.It is Officer Yip’s evidence that he then immediately subdued the man, who threw away the spanner from his right hand.

47.Officer Yip arrested the man, D2 according to the admitted facts, and cautioned him. Under caution, D2 said to him that the man was holding his spanner so D2 took it from the man and threw it away on the ground.

48.During cross-examination, Officer Yip confirmed that on the night, prior to the attack, he only had a chance to see the side of Mr Liu’s face and not the front of his face. He agreed that if Mr Liu had had some injuries on his face, he could not have seen it.

49.Officer Yip confirmed that Mr Liu was arrested for Possession of offensive weapon and that Officer Yip himself was a witness in that case.

50.Mr Allan suggested to Officer Yip that, if D2 was in fact holding a spanner just a few seconds after they started to run away from the crowd, it would have been obvious and therefore everybody on Officer Yip’s team would have been able to see that D2 was holding the spanner.

51.Officer Yip answered that it was not necessarily the case. He explained that it was because they were running towards the 4 of them and that they subdued them separately.

52.Mr Hotten did not ask Officer Yip any questions in re-examination.

PC 18810’s evidence

53.Officer 18810 only arrived after all the defendants were subdued. He was responsible for the arrest of D3. He confirmed that D3 told him under caution that he saw a man in a white top and wearing glasses holding a spanner come in, intending to hit people and he put his arm around his neck.

54.During cross-examination by counsel for D3, Officer 18810 claimed that in his witness statement that was made shortly after the night of the incident, he had mistakenly missed out the Chinese character ‘intending’ before the words ‘to hit people’ (「我見到個白色衫戴眼鏡嘅男人拎住士巴拿過黎【想】打人，之後我即刻禁實佢啦」).

55.It seems to be the case that D3’s counsel wanted to rely on what D3 said under caution to show that Mr Liu did hit someone and not just intended to do it.

56.On this point, I find that PC 18810’s evidence, together with the rest of the prosecution witnesses who were at scene, prove beyond reasonable doubt that there was no actual attack at the time Mr Liu approached the group of 10 odd people, merely body language that tended to suggest that he was threatening the group. The fact that the character ‘intending’ was left out or not does not have any material significance in relation to that part of the prosecution witnesses’ credibility. 

DPC 14968 Officer Chan’s evidence

57.Officer Chan’s evidence is that he saw Mr Liu “holding spanner, did do some left right pointing and up and down waving action. Towards the group of people.” That was done when Mr Liu was in front of the group of people.

58.Officer Chan heard loud noises from quarrelling between the group and Mr Liu, but could not make out the contents.

59.His team then went up to investigate as to what was going on. Suddenly he saw Mr Liu running out of the crowd and 3 men ran after him about 1 to 2 meters behind.

60.He saw the 3 men caught up with Mr Liu and they “started to do some attacking movement towards” Mr Liu. Officer Chan was asked to describe the attack and he said this: “One man from behind grabbing the man who had been chased. The other two men were kicking and punching the man.”

61.Officer Chan said Mr Liu was grabbed by the neck. Most importantly, Officer Chan could not be sure if the two men who were kicking and punching Mr Liu “had actually had contact with the man”.

62.When Mr Hotten asked Officer Chan whether it was the case that he never saw the two men attacking the one man, Officer Chan said, “you can say that”.

63.Officer Chan identified the person who grabbed Mr Liu by the neck from behind as D3.

64.Officer Chan was not the officer who arrested D3 though. He arrested Mr Liu for possession of an offensive weapon, because he had reason to believe that when Mr Liu held the spanner and approached the crowd, he “had the intention to hit someone in the group of people”.

65.During cross-examination, Officer Chan confirmed that he only had a chance to see the front of the face of Mr Liu when the 4 men were subdued and apprehended and Mr Liu was lying on the ground.

66.Officer Chan confirmed that he and his team mates were all standing very close together before they started to approach Mr Liu.

67.Officer Chan also confirmed that Mr Liu did not complain to him after Mr Liu was arrested and cautioned that those men had assaulted him, or that a man just attacked him with the spanner.

68.Officer Chan confirmed that in the 2 sets of witness statements that he had made in relation to both the Possession of offensive weapon case and the present wounding case, all that Officer Chan recorded in relation to the assault was that 2 men had kicked and punched Mr Liu. Officer Chan repeated in cross-examination that he was not able to say in details whether the kicks and punches actually did come into contact with Mr Liu or not.

69.Lastly in cross-examination, Officer Chan confirmed there is no mention in any of his witness statements that he had seen any of the defendants holding a spanner.

Sgt 34204’s evidence

70.Sgt 34204 was the last member of the team to be called to give evidence.

71.He said he saw a man in white top walking at a brisk pace while holding an object that looked like a spanner in his right hand. The man crossed the road at a fast pace and walked into the crowd of about 10 odd people.

72.Sgt 34204 thought that something may happen so he and his team mates followed closely. When he reached Kwong Fook Road, the man rushed out from the group of people and ran towards number 147 Kwong Fook Road. The man was running very fast. Sgt 34204 “did not see there was any spanner in his hand” at that time.

73.Sgt 34204 then saw that out of the crowd 3 people rushed out, running after the man. He realized that there might be a fight and so he and his team mates immediately ran towards them. Sgt 34204 was the last one running.

74.Sgt 34204 said he saw the man got to number 147 when he was surrounded by the 3 men. One of them grabbed the man, and another of the three used an object that looked like a black spanner to “hit on to the man in the white top”. The last and third man kicked the man in the white top. The Chinese term used by Sgt 34204 in his evidence was “yarng”. Mr Hotten did not ask Sgt 34204 to demonstrate or explain the action.

75.Mr Hotten did not ask Sgt 34204 whether the spanner did in fact come into contact with the man who was caught up outside number 147, and if there was contact, with which part of the man’s body.

76.Mr Hotten also did not ask, and therefore there is no evidence from, Sgt 34204 about the force of the hit.

77.It is Sgt 34204’s evidence that when his team mates caught up with the 4 men, the man in the white top was lying on the ground. Sgt 34204’s evidence is that “it seemed that the 3 men as if were not stopping” and “looking at my colleagues ferociously”. All of them, however, did stop after Sgt 34204 shouted ‘police’. Sgt 34204 very fairly stated that because he and his colleagues were in plainclothes, he realized that the 3 men would have had no idea that they were Police officers before they so announced.

78.The 3 men were then all pinned down to the ground by his team mates.

79.Sgt 34204 went up to check with the man in the white top and found that he was bleeding on his right cheekbone and right forehead. He tried to get up but was not able to do so.

80.Only counsel for D2 cross-examined Sgt 34204. Only 4 questions were asked.

81.The answers given by Sgt 34204 to those 4 questions confirmed that Sgt 34204 had made a witness statement shortly after the incident when his memory was still fresh, and that he had read the statement and reminded himself that he could correct or add anything. He confirmed that there was no mention at all in his statement about him seeing any of the men who had rushed out from the crowd holding any spanner.

82.Mr Allan, as he is entitled to, did not ask Sgt 34204 why he did not include that in his statement despite this court inquiring if Mr Allan would like to so ask.

83.Mr Hotten chose not to re-examine Sgt 34204 on this point.

84.There is, therefore, no explanation from Sgt 34204 as to why such an important piece of evidence was not recorded in his witness statement.

85.The last witness was SPC 11629 and he was the exhibits officer. Nothing significant or contentious arose from his evidence.

Findings

The quality of the evidence regarding the assault

86.The alleged use of a spanner to strike Mr Liu in the head took place at around 2:52am. The evidence suggest that other than the group of Police officers, Mr Liu and the crowd of 10 odd people, there were no others around the scene.

87.The Police officers were on anti-crime patrolling duties. It must be common sense that as soon as Mr Liu showed up holding a large spanner walking briskly towards a group of people who were gathered on the street in the middle of the night, the Police officers’ focus and attention would be on Mr Liu and the spanner.

88.There is no evidence from any of the prosecution witnesses to suggest that there was anything to distract them in their observation of Mr Liu, and later, the action of the 3 defendants.

89.Yet, in each of the Police officers’ description of how the defendants had ‘kicked and punched’ Mr Liu, no details were forthcoming.

90.In fact, the evidence of PC14968 Officer Chan is that he was not even sure that the kicks and punches had, in fact, landed on Mr Liu.

91.As for the attack with the spanner, the prosecution’s evidence came from only 2 of the team members who were present on the night, PC 11817 Officer Yip and Sgt 34204.

92.Neither PC3769 nor DPC14968 mentioned anything about a spanner being used in the attack on Mr Liu.

93.PC 3769 Officer Lee’s evidence is that he saw 3 men “beating” or “hitting” Mr Liu. There was no mention in his evidence in court at all about anyone using the spanner to hit Mr Liu.

94.As for DPC 14968, in addition to not mentioning in his evidence in court that he had seen anyone, let alone any of the defendants, holding a spanner, or using a spanner to attack anyone, there is no record of this happening in either of his two sets of witness statements.

95.Just as with the quality of the prosecution’s evidence on the kicking and punching, the quality regarding the spanner attack is also not ideal.

96.In relation to Officer Yip who claimed to have seen the spanner attack, when he was first asked in-chief to tell the court how each of the defendants was hitting Mr Liu, he answered that he could not see the details. It was only slightly later on that he claimed to have seen one of them holding the spanner hitting Mr Liu on the head once.

97.Mr Hotten did not ask Officer Yip which part of the head the strike was directed at, nor whether the spanner did come into contact with Mr Liu’s head or not, and even more importantly, with what force the strike was applied.

98.When Officer Yip was asked whether his team members should also have seen the strike with the spanner, he explained that they might not necessarily have seen D2 holding the spanner because they were running towards the 4 men and they subdued them separately.

99.For the following reasons, I find that I cannot accept that explanation.

100.There is no evidence that the officers had had any discussion as to who should be subduing whom before they all started to run towards the 4 men.

101.If someone did hold up a spanner and used it to hit Mr Liu on the head, it would be impossible not to have caught the eyes and attention of the officers who were running directly towards the attack. That must have become the immediate focal point of all the Police officers.

102.There is no evidence that any of the Police officers’ views were blocked. The officers were getting closer to the scene, not running away. It is highly unlikely that they would not see someone using a spanner to attack another person’s head if that was in fact what had happened.

103.The prosecution’s evidence is that the attack was one hit to the head of Mr Liu while he was standing up. According to Sgt 34204, the hitting was done when Mr Liu was held by the neck from behind.

104.If that is true, in order to hit the head, D2 must have raised his hand and the spanner to a certain height before he would be able to hit Mr Liu’s head. There were only 4 people at that time, with one running away and 3 chasing. They were already separated from the crowd. There is no evidence from any of the Police officers that their attention was anywhere other than on the defendants and Mr Liu.

105.If the attack did happen as Officer Yip and Sgt 34204 had described, PC3769 and DPC14968 could not have missed it. If they did see it, they could not have chosen not to include that in their witness statements or evidence in court.

106.Yet, only Officer Yip and Sgt 34204 claimed to have seen the attack with the spanner and not Officer 3769 and DPC 14968.

107.Furthermore, as to Sgt 34204’s evidence on D2’s use of the spanner to attack Mr Liu, I have the following observations.

108.Although Sgt 34204 gave evidence in court as to how one of the defendants used a spanner to hit Mr Liu, he did not provide details as to the hitting. Just as he did with Officer Yip, Mr Hotten chose not to ask Sgt 34204 to elaborate on the particulars of the attack.

109.It then transpired in cross-examination that Sgt 34204 did not record this fact in his witness statement.

110.Of everything that happened that night, the presence of the large spanner and the use of it by one of the people present to hit another person must be the most important piece of evidence.

111.I, therefore, find it perplexing that Sgt 34204 had not recorded in his witness statement the fact that he had seen one of the men holding a spanner to hit the man in the white top.

112.It might have been useful if Mr Hotten had sought to clarify the matter through re-examination but he did not. I chose not to initiate the clarification lest it might result in unfairness to the defendants. It is not for the judge to assist the prosecution in their presentation of evidence.

113.Based on the above analyses, I find that the fact that there is no evidence from PC3769 and DPC14968 that the spanner attack had taken place, together with the poor quality of the evidence on the assault generally, there is a reasonable doubt as to the credibility of the prosecution witnesses on whether D2 did use the spanner to hit Mr Liu on the head.

On the issue of causation

114.In addition to proving D2 did use the spanner to ‘beat’ or ‘hit’ Mr Liu on the head, the prosecution must prove that the assault did cause Mr Liu grievous bodily harm as particularized. For the following reasons, I find that the prosecution had failed to prove this element of the offence.

115.There is no evidence from any of the prosecution witnesses as to the force that D2 allegedly used to hit Mr Liu with. There is no evidence from any of the prosecution witnesses as to where on the head of Mr Liu the spanner had come into contact with.

116.None of the prosecution witnesses had a proper look at the face of Mr Liu until after the alleged attack. The witnesses who were asked agreed that if Mr Liu had had injuries on his face before the alleged attack they would not have been able to see it from their place of observation.

117.The 2 medical reports of Mr Liu are prepared by doctors who examined Mr Liu shortly after the alleged attack. Since Mr Liu was not called as a witness, what Mr Liu told the doctors and repeated in the reports would be inadmissible evidence if used to prove the truth of their contents.

118.The reports, therefore, merely show that Mr Liu suffered laceration wounds on his right face, abrasion on his right little finger, and subconjunctival bleeding in his right eye. Mr Liu was discharged after neurological observation and suturing.

119.The injuries suffered is possibly consistent with both an attack as alleged, and with the scenario where D3 caught up and held Mr Liu in order to prevent him from leaving the scene. It is not the only reasonable inference that Mr Liu’s head injuries must have been the result of an attack by someone with a spanner.

120.Since none of the Police officers gave evidence as to the particulars of the assault, and since Mr Liu did not give evidence, there is nothing from the prosecution to prove that the injuries, and in fact which injuries, were caused by the alleged attack.

The defendants’ out of court statements made under caution

121.All three defendants made mixed statements under caution. D1 and D2 are of previously clear record, as such, I have to take that into account when considering their propensity to commit the offence, as well as their credibility in relation to what they said under caution.

122.D1 said this: “I saw the fat guy wanted to hit somebody, so I went forward to help pin him down on the ground”.

123.D2 said this: “I saw that the male was holding a spanner, so I grabbed his spanner and threw it onto the ground”.

124.D3 said this: “I saw that a male with spectacles in a white top was coming over with a spanner intending to hit somebody. So, I immediately grabbed hold of him”.

125.The statements are mixed because they each put the individual defendant at scene, but what each defendant said could be interpreted as being exculpatory in that D2 did not admit to using the spanner to attack Mr Liu and D1 and D3 did not admit to being part of that attack. D1 and D3 also claimed that they were acting to prevent Mr Liu from getting away after they had seen Mr Liu intending to hit someone with the spanner that he was holding.

126.Given the circumstances of how Mr Liu had approached the group based on the evidence of the prosecution witnesses, I find that there is no reason I should not give full weight to what the defendants said under caution despite the fact that they had elected not to give evidence in court.

Whether what the defendants did according to their admissions lawful

127.The evidence suggest that Mr Liu might have committed the criminal offence of possession of an offensive weapon when he approached the crowd holding the spanner and waved it at them while quarrelling with the people in the crowd.

128.What the defendants had admitted to doing could be considered an exercise of their statutory rights under section 101 or 101A of the Criminal Procedure Ordinance, Cap.221:

s.101(2): “Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence.”

s.101A(1): “A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

129.Based on the eventual decision by the Police to arrest Mr Liu for the offence of possession of offensive weapon, and based on the above mentioned cautioned statements of the defendants considered together with the prosecution evidence on the manner of Mr Liu’s approach towards the crowd and waving of the spanner in front of the crowd, I find that the evidence support a case of the defendants acting lawfully in trying to prevent Mr Liu from escaping after threatening the group while holding a spanner.

Joint enterprise

130.The prosecution’s case is that the defendants committed this wounding together.

131.Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit it, they are each guilty.

132.The words ‘plan’ and ‘agreement’ do not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing need be said at all. It can be made with a nod and a wink, or a knowing look, or it can be inferred from the behaviour of the parties. The essence of joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it however great or small so as to achieve that aim.

133.The prosecution must therefore prove that when D2 hit Mr Liu with the spanner, it was done as part of a joint plan or agreement with D1 and D3 to commit it, he is guilty. Put simply, the question is ‘Were they in it together?’

134.Having directed myself as above, I find that even if we assume that the prosecution can prove beyond reasonable doubt that D2 did use the spanner to hit Mr Liu in the head, there is insufficient evidence to find that D1 and D3 were ‘in it together’ with D2 on the attack. Reasons are as follows.

135.According to the prosecution, the spanner that D2 allegedly used to attack Mr Liu was the one that Mr Liu himself had brought to the scene.

136.There is no evidence that the defendants had had any opportunity to communicate, either expressly or by way of inference, a common intention that they were going to assault Mr Liu, or that anyone of them should use the spanner to attack Mr Liu.

137.There is no evidence to suggest that D1 and D3 knew that D2 would be attacking Mr Liu with the spanner, nor can a common intention be inferred from the circumstances and the behaviour of the defendants.

138.D1 and D3 both said they just wanted to hold and prevent Mr Liu from getting away. Their action is consistent with that intention. It is not an only reasonable inference that they must have been holding Mr Liu so that D2 can attack him, or to hit him with the spanner.

139.Therefore, had the prosecution been able to prove that D2 did hit Mr Liu’s head with the spanner, I would have found that the prosecution had failed to prove that D1 and D3 were ‘in it together’ with D2 on the wounding of Mr Liu.

Verdict

140.Given the doubt I have in the credibility of the prosecution witnesses on their evidence in relation to the use of a spanner by D2 to attack Mr Liu; given the failure of the prosecution to prove that the alleged attack did cause the injuries shown in Mr Liu’s medical report; and given the finding that the defendants could have been exercising their rights to apprehend Mr Liu when they chased and pinned him down, I find that the prosecution has failed to prove these elements of the offence and find the defendants each not guilty as charged.

141.I have further considered the alternative offences of assault occasioning actual bodily harm and common assault but find that there is also insufficient evidence to support a conviction against each of the defendant on the alternative offences. Reasons are as follows.

142.As a result of my findings above, the prosecution would still be unable to prove beyond reasonable doubt that D2 did in fact hit Mr Liu with the spanner on the head. They would still not be able to prove that the alleged hit on the head did injure Mr Liu. They would also not be able to prove that the defendants’ grabbing and pinning down of Mr Liu was not a lawful act under section 101 or 101A of the Criminal Procedure Ordinance.

143.I, therefore, find the defendants not guilty of the alternative offences as well.