HKSAR v. Sohail Nadeem

DCCC 519/2017
[2018] HKDC 22

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 519 OF 2017

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REASONS FOR VERDICT

1.The defendant pleads not guilty to two charges of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance[1].

Introduction

2.The prosecution case in summary is that on 24 September 2016 Khawar Saleem and Malik Hassnain were drinking with friends in the Middle Road Children’s Playground in Tsim Sha Tsui.  At around 11 p.m. three Pakistani males, each carrying beef knives, ran into the playground and chopped Khawar Saleem.  When Malik Hassnain tried to stop the attack he was also chopped.  The three men then ran away. 

3.On 18 April 2017 when Khawar Saleem was walking in Wanchai he saw one of the attackers.  Khawar Saleem called the police and the defendant was arrested. The next day an identification parade was held in which Khawar Saleem and Malik Hassnain both identified the defendant as one of the attackers[2].

4.The defence case is one of mistaken identity.

Evidence

5.The prosecution called three witnesses: Khawar Saleem (PW1), Malik Hassnain (PW2) and PC 13690 (PW3), who attended the scene of the attack.

6.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[3] (exhibit P6), including that at the identification parade held on 19 April 2017 the defendant and all the actors wore masks; the injuries and medical reports of Khawar Saleem and Malik Hassnain[4]; the police found three knives at the scene[5]; photographs[6] and the arrest of the defendant.

7.The prosecution case depending on the correctness of the identification of the defendant by Khawar Saleem and Malik Hassnain, which identifications the defence allege to be mistaken, I direct myself in accordance with the principles established in the case of R v Turnbull[7].  I warn myself of the special need for caution before convicting the defendant in reliance on the evidence of identification. 

8.I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.  I remind myself of the possibility that a mistaken witness can be a convincing witness and that a number of witnesses can all be mistaken.  I remind myself that mistakes in recognition of close relatives and friends are sometimes made.    

9.The defendant elected to remain silent.  No witnesses were called on his behalf. No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  This does not establish his guilt.  On the other hand, this means there is no evidence from the defence to undermine, contradict or explain the evidence led by the prosecution.  As was said in Turnbull a judge is entitled to tell the jury that when assessing the quality of the identification evidence they can take into consideration the fact that it is uncontradicted by any evidence coming from the accused himself[8].

10.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has nothing to prove.  I direct myself that I must be sure of the guilt of the defendant before I can convict.

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

12.I have carefully considered all the evidence and the submissions of Mr Laskey and Mr Pannu.

Prosecution evidence

13.The evidence of the attack on Khawar Saleem and Malik Hassnain can be briefly stated.  In summary Khawar Saleem and Malik Hassnain testified that on the evening of 24 September 2016 they were eating and drinking in the Middle Road Children’s Playground in Tsim Sha Tsui together with some friends, including Ahmed Mushtaq.  The location where they were sitting is best seen in photographs 4-8.

14.At around 11 p.m. while sitting in the playground three males jumped over the wall and approached Khawar Saleem with their hands behind their backs.  The male in the front said to Khawar Saleem that if he did not pay money to Safder Tehseen he would be beaten.  

15.At this stage Khawar Saleem and Malik Hassnain saw the three males were wearing gloves and carrying choppers. The male in the front chopped Khawar Saleem on the right side of his waist and one of the other two males chopped him on his left buttock.  

16.When Malik Hassnain tried to stop the male in front attacking Khawar Saleem, the male chopped Malik Hassnain on his right hand.  In the course of the attack one of the other two males dropped his chopper on the ground.  The male picked up the chopper and used the handle to hit the left hand of Malik Hassnain. 

17.The three males ran away in the opposite direction from which they came.  

18.Admitted in evidence is that the police found three long knives at the scene (exhibits P2 (a)-(c))[9]. Khawar Saleem identified exhibit P2(a) as similar to the knife used by the man in front to chop him. 

19.Khawar Saleem and Malik Hassnain were taken to Queen Elizabeth Hospital.  Admitted in evidence are the medical reports and photographs of the injuries of Khawar Saleem[10]and Malik Hassnain[11].

Identification

20.In evidence Khawar Saleem and Malik Hassnain both said the male in the front was called Sohail. Khawar Saleem said the other male who attacked him was called Jacky.

21.Khawar Saleem testified the lighting was sufficient to see the face of Sohail and Malik Hassnain testified the lighting was good enough for him to see what he described.  PC 13690 who attended the scene said the lighting in the playground as seen in photographs 1-8 was sufficient to clearly see someone’s face. 

22.In the early morning of 18 April 2017 Khawar Saleem saw the defendant in Wanchai and called the police who arrested the defendant.  In cross-examination Malik Hassnain said he was there when Khawar Saleem saw the defendant.  Khawar Saleem told Malik Hassnain to leave because the defendant might fight with him.

23.The following day Khawar Saleem attended an identification parade in which he identified the defendant as the person who attacked him.  Malik Hassnain also attended the identification parade and identified the defendant as the person who attacked Khawar Saleem. 

Identification by Khawar Saleem

24.Khawar Saleem who came to Hong Kong in December 2013 testified he had known Sohail for two years.  They would meet when eating Pakistani food in Chungking Mansions at a Pakistani food shop called Uncle’s Centre.  On occasions Khawar Saleem would speak to Sohail but could not remember the last time he saw Sohail or when he last spoke to him. 

25.Khawar Saleem testified that it was Sohail who said if he did not pay money to Safder Tehseen he would be beaten.  Khawar Saleem described Safder Tehseen as the boss of Sohail and that prior to the attack he had seen Sohail in the company of Safder Tehseen on more than one occasion.  Khawar Saleem agreed to pay Safder Tehseen $20,000 for arranging him to be smuggled into Hong Kong from China.  Khawar Saleem having only paid $10,000 believed Safder Tehseen arranged his chopping because he still owed him $10,000.

Identification by Malik Hassnain

26.Malik Hassnain who came to Hong Kong in 2016 testified that prior to the attack he had seen Sohail once or twice standing in Tsim Sha Tsui but did not have hello/hi with him and did not know his name.  One to two days or maybe three days before the attack he saw Sohail for about two to three minutes standing in K11 on Mody Road in Tsim Sha Tsui[12].

27.Malik Hassnain testified that if he has seen a person from his country once or twice he can recognise him whenever he sees him.  Malik Hassnain was therefore able to recognise Sohail when he attacked Khawar Saleem. 

Discussion

28.Both Khawar Saleem and Malik Hassnain were certain that the defendant was the first man who attacked them.  As pointed out in Turnbull a mistaken witness can be a convincing witness.   

Identification by Khawar Saleem

29.Khawar Saleem did not give any special reason for being able to recognise Sohail only that he had known him for two years and seen him when eating in Uncle’s Centre in Chungking Mansions.  Khawar Saleem could not remember the last time he saw Sohail or spoke to him. 

30.In cross-examination Khawar Saleem said that he cannot forget the person who hit him first and that for the other two that was the first time he had seen them. Mr Pannu then cross-examined Khawar Saleem on his first witness statement dated 3 October 2016, in particular Q&A 9[13]:

Q9) When was the last time you met the three assailants?

A9) I don’t remember. About two years ago.

31.Khawar Saleem said he could not remember the answer; he was very tense; he had not met them face to face and had seen them standing in the park when he passed by. 

32.In answer to the court Khawar Saleem said he had seen Sohail two or three times in Uncle’s Centre and also in P2 park where he saw him once standing with the other two attackers.   Khawar Saleem again said he could not remember when he spoke to Sohail[14].

33.Mr Pannu once more referred Khawar Saleem to Q&A 9[15]. This time Khawar Saleem said he recalled giving the answer to the police. Asked again by Mr Pannu when was the last time he met the defendant Khawar Saleem replied he did not remember and that when giving the answer to the police he guessed he had met them around two years ago.

Masks

34.In cross-examination when asked how close he was to the attackers when they approached and whether he had a good chance to look at the other two attackers Malik Hassnain replied that the first time he saw them they were wearing gloves and masks.  This was the first reference in evidence to the attackers wearing masks.  Mr Pannu then asked for a short adjournment to discuss with the defendant and his instructing solicitors whether to cut short his cross-examination. 

35.After a short adjournment Mr Laskey informed the court that at an identification parade held on 29 November 2016[16] all actors wore masks and that prior to the parade there was a real possibility the witnesses may have mentioned masks.  Whether masks were worn by the attackers therefore appeared to have been overlooked.  A joint application was then made to adjourn the trial for the prosecution to conduct further investigation[17].  

36.When the trial resumed Malik Hassnain could no longer be located and therefore could not be recalled for Mr Pannu to conclude his cross-examination.  Khawar Saleem was recalled and testified that none of the attackers were wearing masks and that he did not know why the actors at the identification parade held on 29 November 2016 were wearing masks. 

37.Admitted in evidence is that on 29 November 2016 prior to the conduct of the identification parade both Khawar Saleem and Malik Hassnain separately told DPC 5271 that the assailants had been wearing masks[18].  No doubt this was why or one of the reasons why masks were worn by the actors.  The court has not received evidence from the officer conducting the parade explaining why masks were worn by the actors. 

Arrest of Ali Riaz

38.In cross-examination Khawar Saleem agreed that on 10 October 2016 he called the police.  PC3429 attended exit P2 of the Tsim Sha Tsui East MTR station where Khawar Saleem pointed out Ali Riaz as one of the three persons holding a chopper. 

39.Khawar Saleem agreed that on 29 November 2016 he attended an identification parade where he failed to identify Ali Riaz explaining that he had seen him for the first time and was therefore unable to identify him in the parade. 

40.This evidence is inconsistent with Khawar Saleem’s first witness statement in which it is stated that he had seen all three assailants before; the third assailant he had just met him before; he had met all three assailants several times during gatherings with fellow Pakistanis and that he did not remember when he last saw the three assailants which was about two years ago[19]. 

41.Khawar Saleem confirmed that Malik Hassnain and Ahmed Mushtaq also failed to pick out Ali Riaz at the same identification parade.   

Alcohol

42.In evidence Khawar Saleem said he had drunk two or three pegs, a peg being half a glass.  In cross-examination Khawar Saleem agreed the group had been drinking whisky and that almost a whole bottle of Chivas Regal (seen in photograph 8) had been drunk.  Khawar Saleem disagreed that he was confused about what was going on due to intoxication. 

43.In re-examination Khawar Saleem said apart from the whisky there were more bottles of alcohol in the green bag “Vinsac” shown in photograph 7; everyone except Malik Hassnain were drinking alcohol; that he had drunk a bit more than half a plastic cup seen in the photographs, which was a quantity of alcohol he was used to drinking with his friends; and that his ability to identify people was not affected by drinking alcohol. 

44.Malik Hassnain testified he did not drink alcohol and in cross-examination said that Asif Mohammad who was also there told the police he could not be a witness because he was drunk. 

45.Taking into account that the identification was at night; of a person who Khawar Saleem had possibly not seen for about two years and only briefly; the conflicting evidence between Khawar Saleem and Malik Hassnain as to whether the attackers were wearing masks; the admitted evidence that Khawar Saleem told the police the attackers were wearing masks; the failure by Khawar Saleem to pick out Ali Riaz at the identification parade having earlier pointed him out as one of the attackers and that alcohol was drunk that night, I find that it would be unsafe to rely on the identification of the defendant by Khawar Saleem unless there is other evidence to support the identification. 

Identification by Malik Hassnain

46.The only supporting evidence is the identification of the defendant by Malik Hassnain.  Malik Hassnain also did not give any special reason for being able to recognise Sohail save he said that once he had seen a person from his country once or twice he can recognise them. 

47.Malik Hassnain testified he had seen Sohail once or twice standing in Tsim Sha Tsui. One occasion was one or two days, maybe three days before the attack when he saw Sohail for about two to three minutes standing in K11 on Mody Road.

48.In cross-examination Malik Hassnain said that he first saw the defendant about ten to twenty days before the attack outside Chungking Mansions for about ten seconds but did not pay attention to him; about ten to fifteen days earlier in the home of Khawar Saleem he was shown a photograph of the defendant on facebook by Hafiz (Ahmed Mushtaq) who said the defendant was his friend but did not tell him his name; and about ten days after seeing the defendant outside Chungking Mansions he saw the defendant again standing with friends in K11.

49.When seeing the defendant standing in K11 Malik Hassnain described seeing him face to face from a distance of about ten to eleven feet for two to three minutes.  Malik Hassnain said he did not keep looking at the defendant and agreed with Mr Pannu he only had a casual glance of the defendant.

50.The evidence of seeing Sohail prior to the attack is inconsistent with what Malik Hassnain told the police.  In his witness statement made on 11 November 2016 Malik Hassnain told the police that three unknown persons whose names he did not know attacked them[20]. In cross-examination Malik Hassnain said he told the police he recognised one of the attackers but did not tell the police the name because he was new here; he was afraid from all sides; and he had received threats not to give evidence.

51.Taking into account that the identification was at night of a person who was wearing a mask and that Malik Hassnain told the police the attackers were unknown, I find that it would also be unsafe to rely on the identification of the defendant by Malik Hassnain. 

52.Although both witnesses identified the defendant as one of the attackers in the identification parade held on 19 April 2017 which is uncontradicted by any evidence coming from the accused himself, for the reasons given I am not satisfied that it would be safe to rely on their identification of the defendant.  The benefit of the doubt is given to the defendant and he is acquitted of the charges.