HKSAR v. Shamsher Singh and Another

DCCC 1017 & 1020/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1017 & 1020 OF 2016

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RULING

1.D1 pleads not guilty to two joint charges of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance[1]. D2 pleaded guilty to the charges at the beginning of the trial.

Introduction

2.Malik Hameed Ahmed is the owner of a mobile phone shop on the ground floor of Chungking Mansions, Tsim Sha Tsui.  On 15 June 2016 Mr Malik was threatened by Jhanga and Happy that if he did not pay $800,000 his life will be in danger.  One to two days later Happy repeated the demand.  When Mr Malik said he did not have the money Happy repeated the threats. 

3.On the morning of 18 June Mr Malik and his friend Ali Muhammad were inside Mr Malik’s shop chatting when two South Asian males entered and attacked them with machetes.  The prosecution case is that the two attackers were D1 and D2.  The defence case is one of mistaken identity. 

4.The prosecution case depends on the identification of D1 by Mr Malik.  Mr Sze submits that the identification is extremely weak, ambiguous and flawed and submits a jury properly directed could not properly convict[2].  Mr Sze invites the court to withdraw the case against D1[3]. In considering this submission I remind myself to look at the quality of the identification and all the circumstances in which the identification was made in accordance with the principles established in the case of R v Turnbull[4].

5.I have carefully considered all the evidence and the oral and written submissions of Mr Sherry and Mr Sze.

Evidence

6.The prosecution called only one witness on the list of prosecution witnesses attached to the prosecution opening namely Mr Malik (PW1).  The evidence of Wu Kwok Ming a security guard of Chungking Mansions was read pursuant to section 65B of the Criminal Procedure Ordinance[5].  One additional witness PC 51624 (PW2), who investigated the alibi of the defendant[6], was also called.  The prosecution made available for cross-examination five witnesses involved in the taking of witness statements from Mr Malik[7].

7.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[8] (exhibit P9), including photographs (exhibits P1-P5); medical reports (exhibits P10-P16); sketches of the scene (exhibits P17 & P18); the evidence of SPC 58370 who attended the scene of the attack[9]; seizure of a black backpack (exhibit P21) and two machetes (exhibits P22 & P23); D1’s DNA was not found on the backpack or machetes[10]; CCTV of the area in and around Chungking Mansions (exhibit P19) together with still photographs from the CCTV (exhibits P6-P8); the arrest of D1; and that at an identification parade held on 12 August 2016 Mr Malik identified D1 as the second attacker whereas Ali Muhammad could not identify D1[11].

Prosecution evidence

The wounding of Malik Hameed Ahmed and Ali Muhammad

8.After giving evidence about Jhanga and Happy demanding payment of $800,000 to settle a matter concerning a complaint of robbery and that if he did not pay his life would be in danger Mr Malik described the events of the morning of 18 June 2016.

9.In summary Mr Malik testified that he opened his shop as usual at 10:30 a.m.  At about 11:30 a.m. Mr Malik was sitting down chatting with one of his customers when his friend Ali Muhammad arrived at the shop.  About twenty minutes later while the three of them were chatting two South Asian males, wearing caps and masks and waving machetes, entered the shop and attacked Mr Malik. 

10.During the attack the face mask of the first attacker became loose at which time Mr Malik recognised this man as Goppi (D2), a person he had seen frequently with Happy in Chungking Mansions.  Mr Malik was attacked by Goppi first.  When the second attacker tried to attack Mr Malik’s chest in order to protect himself Mr Malik used his left hand to hold the machete. 

11.Mr Malik was seriously injured in the attack.  Admitted in evidence are the medical reports (exhibits P10-P13) and photographs (exhibit P4) of Mr Malik’s injuries.  Ali Muhammad was also injured in the attack.  Admitted in evidence are the medical reports (exhibit P14-P16) and photographs (exhibit P5) of Ali Muhammad’s injuries[12].

12.The two attackers fled.  After being given first aid Mr Malik fell unconscious and only regained consciousness in hospital.  A report was made to the police by a security guard of Chungking Mansions[13].

Identification of the second attacker

13.Mr Malik was shown various footage from CCTV in which he identified the two attackers[14].   Mr Malik identified the second attacker as the one wearing the t-shirt and shorts.  Mr Malik testified that he had a good look at the second attacker saying that he noticed his forehead, eyebrows, eyes and that he had a beard.  Mr Malik demonstrated that the face mask covered the face just above the nostrils.  Mr Malik was therefore able to see the beard on both sides of the attacker’s face and underneath his chin.  Mr Malik also described the first attacker as taller than the second attacker. 

14.Mr Malik described first seeing the attackers on the other side of the counter of his shop.  Mr Malik marked on a copy of photograph 7 (exhibit P1)[15] the positions of the two attackers (marked X for the second attacker and D2 for Goppi); his position (marked W) and the position of Ali Muhammad (marked V2).  Mr Malik said he was able to see his attackers clearly but was unable to say how long he looked at the face of the second attacker[16]. In cross-examination Mr Malik said he did not remember how long the attack lasted because the attack happened all of a sudden. 

15.Admitted in evidence is that Mr Malik identified D1 in an identification parade held on 12 August 2016 as one of the people who attacked him and Ali Muhammad[17].  At the identification parade the chief inspector in charge of the parade suggested that because D1 had a beard all participants wear masks[18]. From the positions taken by the defendant on the parade (7 and 5) although not very clear it would appear the beard below the chin was not fully covered by the mask.  The participants did not wear caps.  

16.In cross-examination Mr Malik said he had seen the second attacker two weeks prior to the attack.  In re-examination Mr Malik said that he had seen the second attacker in Alpha House (which was opposite Chungking Mansions) together with D2, Happy and eight to ten others.  Mr Malik said he was crossing the road to go to the toilet in iSQUARE when he passed the second attacker.  Mr Malik did not stop to talk to the group.

Discussion

17.The prosecution did not ask Mr Malik why he was able to identify D1 in the identification parade.  The prosecution rely only on the admission that at the parade Mr Malik identified D1 as one of the attackers[19].  In cross-examination Mr Malik said that he identified D1 from his forehead, eyebrows and eyes. 

18.Although the CCTV footage does not show the attack, the attackers are seen entering Chungking Mansions; taking the machetes out and fleeing with the machetes after the attack. 

19.There is CCTV footage showing the second attacker without a mask.  Photograph 1 (exhibit P6) shows both attackers at the entrance of Chungking Mansions.  The first attacker enters Chungking Mansions whereas the second attacker continues walking down Nathan Road. 

20.The photograph is taken from Disc 3, folder 2, file 2 between 29:27 – 29:35.  Whilst the face of the second attacker can be seen he is too far away for a sufficiently clear image of the face to be seen from which to make an identification.

21.Folder 1, files 1 & 2 also show the second attacker: file 2 between 28:45 – 29:00 and file 1 between 29:15 – 29:19 (i.e. before the time in still photograph 1, exhibit P6).  The face of the second attacker cannot be seen in the footage on file 2.  On file 1 the second attacker walks almost right up to the camera. Having carefully viewed this footage I am not satisfied the image provides a sufficiently clear image of the face of the second attacker from which to make an identification.  

22.The best views of the second attacker wearing a cap and face mask is the CCTV footage of the attackers entering Chungking Mansions (see disc 3, folder 2, file 2 between 52:00 – 52:12) and the still photographs 1 & 2 (exhibit P6); shortly before the attack when the attackers were about to take the machetes out of the backpack (see disc 2, file 3 between 11:48:57 and 11:49:07); and in the course of the escape (see disc 2, file 1 at 11:50:18 and disc 2, file 2 at 11:50:59 and the still photographs 34 & 35 (exhibit P8).  The second attacker is also seen in the CCTV footage disc 3, folder 2, file 1 at 52:11 walking with the other attacker in an alleyway leading from Nathan Road.

23.I am satisfied from a careful viewing of the CCTV footage it is not possible to identify the second attacker from any of the footage. 

24.Mr Malik was only able to identify Goppi (D2), a person he had seen frequently, after his face mask became loose.  Whilst the identification of Goppi remains good the same cannot be said about the identification of D1, who Mr Malik said he had only seen once before.  

Recognition

25.Early in cross-examination was the first time Mr Malik had mentioned he had seen the second attacker two weeks prior to the attack. 

26.Mr Sze cross-examined Mr Malik on the content of his first witness statement dated 25 June, taken whilst Mr Malik was in hospital.  The witness statement was written only in Chinese[20]. Mr Malik confirmed that the statement was translated to him in Urdu and that the content was true and correct. 

27.When Mr Sze asked Mr Malik whether after telling the police he recognised Goppi he said, “I nevertheless do not recognize the other one or his clothing or characteristics”, Mr Malik replied that he was not feeling well at that time and that he had made a second statement.  After Mr Malik repeated that what he had told the police was true Mr Sze again asked Mr Malik if he told the police “I nevertheless do not recognize the other one or his clothing or characteristics.”  Mr Malik replied that he did not remember about this. 

28.Mr Malik said he did not tell the police about seeing the second attacker two weeks before the attack because he did not think this was important; and although he did think about telling the police he became lazy and therefore did not tell the police. 

29.Mr Sze also cross-examined Mr Malik on the content of his second witness statement dated 29 June, also taken whilst Mr Malik was in hospital.  The witness statement was also only written in Chinese[21]. Mr Malik again confirmed that the statement was translated to him in Urdu and that the content was accurate.

30.Mr Malik said that he also did not tell the police in this statement about having seen the second attacker two weeks prior to the attack.  Mr Malik said he could not remember why he did not tell the police and said that at the time of giving this statement he did not remember having seen this person two weeks before the attack. 

31.Asked by Mr Sze why he did not tell the court in his evidence-in-chief Mr Malik replied he was not asked whether he recognised him and that he kept waiting to be asked. 

Quality of the identification evidence

32.Although Mr Malik was unable to say how long the attack lasted and how long he looked at the face of the second attacker, the attack clearly happened very quickly giving Mr Malik only a brief opportunity to see the face of the second attacker, who was wearing a cap and face mask.  The CCTV footage and photographs show that very little of the face was visible making identification difficult. 

33.The evidence of recognition is inherently weak.  Not only did Mr Malik not tell the police about seeing the second attacker two weeks prior to the attack this evidence is inconsistent with that recorded in Mr Malik’s first witness statement that he did not recognise the other attacker, his clothing or his characteristics. 

34.In addition, Mr Malik’s evidence of seeing the second attacker two weeks before the attack was also a brief sighting as he was crossing the road to go to the toilet. 

35.I find the quality of Mr Malik’s identification of the second attacker both inherently weak and poor.  I note also Ali Muhammad who appears from the markings of the positions made by Mr Malik on the photograph of his shop[22]to have had almost as good a view of the second attacker, did not identify D1 in the identification parade. 

36.Where the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, a judge should withdraw the case from the jury and direct an acquittal unless there is evidence which goes to support the correctness of the identification[23]. There is no other evidence in support of the identification, for example the clothing worn by the second attacker was found at D1’s residence[24]. 

37.Having carefully considered all the circumstances of the identification I am satisfied taking the prosecution evidence at its highest a jury properly directed could not convict on this evidence.  I rule the defendant has no case to answer.  The defendant is acquitted of the charges.