HKSAR v. Lui Kwok Man

DCCC 103/2018

[2018] HKDC 1068

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 103 OF 2018

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of wounding with intent to do grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance[1] and one charge of claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance[2].

2.The particulars of the wounding charge read as follows:

“LUI Kwok-man, on the 11th day of May 2013, outside Ground Floor, No. 32 Yin Hing Street, San Po Kong, Kowloon, in Hong Kong, together with Cheung Tak-sing, NG Tin-wo and two other persons unknown, unlawfully and maliciously wounded CHAN Jose Chun-wai with intent to do him grievous bodily harm.”

Prosecution case

3.In summary the prosecution case is that on the evening of 10 May 2013 three off duty police officers, PC Chan (Chan Jose Chun-wai), Sgt Man and WPC Kwok, were having dinner in a restaurant in San Po Kong.  At the same time the defendant and his group were also having dinner in an adjacent room of the same restaurant. 

4.At about 11:30 p.m. PC Chan went to use the toilet in the adjacent room where the prosecution say the defendant and his group were dining.  The diners did not allow PC Chan to use the toilet.  PC Chan therefore went to another toilet in the main restaurant which was opposite the room where he was dining. 

5.After midnight at about 00:45 hours on 11 May PC Chan needed to use the toilet again.  While PC Chan was waiting to go to the toilet a male, who the prosecution say is the defendant, asked PC Chan if he was choked with fury about the refusal to use the toilet earlier.  The defendant then claimed to be a member of a triad society and launched an attack on PC Chan.  Four of the defendant’s group joined in the attack on PC Chan who fell to the ground.  During the attack the defendant repeatedly used a green plastic stool to hit PC Chan. 

6.The defendant was arrested almost four years later in March 2017 when he surrendered to the police[3]. PC Chan and Sgt Man were unable to identify the defendant at identification parades. 

7.The attack on PC Chan was captured on CCTV.  The prosecution do not ask the court to look at the CCTV footage to make a visual identification that the defendant was the person who claimed to be a member of a triad society and attacked PC Chan. 

8.The prosecution rely on the CCTV footage to show what happened and the content of a video recorded interview.  The prosecution case is that in the interview the defendant told the police about the incident involving PC Chan and admitted that he took part in the attack on PC Chan[4].

Defence case

9.The defence case as put in cross-examination is that no one claimed to be a member of a triad society.  There being no visual identification of the defendant no defence case was put to the witnesses with regard to the wounding.  The defence case is that the video recorded interview is ambiguous and does not contain any unequivocal and clear confession by the defendant, in particular no admission that the defendant took part in the attack on PC Chan[5].   

Issues

10.The main issue in the case is whether the defendant was the person who launched the attack on PC Chan, which involves a consideration of whether the defendant in a video recorded interview admitted he took part in the attack on PC Chan, and if he was, whether he intended to cause grievous bodily harm and claimed to be a member of a triad society[6].

Evidence

11.The prosecution called five witnesses named on the prosecution schedule of witnesses attached to the prosecution opening[7]: PC Chan (PW1); Sgt Man (PW2); WPC Kwok (PW3); DPC 34190 (PW11), who arrested the defendant and Dr Ho (PW16), who examined PC Chan in the Accident & Emergency department of the Queen Elizabeth Hospital.  The evidence of Lo Chi Hung (PW5) who called the police was read pursuant to section 65B of the Criminal Procedure Ordinance[8].

12.Evidence was admitted pursuant to section 65C of the Criminal Procedure Ordinance (exhibits P8 & P12), including the CCTV footage (exhibit P1) together with still photographs (exhibits P1A & P1B); photographs of the scene and injuries of PC Chan (exhibits P3-P5).

13.The voluntariness of two video recorded interviews (exhibits P6 & P7) has also been admitted.  The accuracy of the certified translation of the first video recorded interview was challenged.  The prosecution tendered for cross-examination  Ms Lam Oi King, Ella (PW17), the court translator who certified the English translation of the transcript of the interview[9].

14.The defendant elected not to give evidence.  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.  

15.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, each charge being considered separately.  On the other hand, if the court thinks that the defence case is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

16.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.  

17.I have carefully considered all the evidence and the submissions of Mr Laskey and Mr Khosa. In considering the evidence due allowance is given to all prosecution witnesses who testified over five years later about what had happened.  Equally due allowance is given to the defendant when considering the content of the video recorded interviews which were given almost four years after the attack on PC Chan. 

Prosecution evidence

The attack on PC Chan

18.The evidence of PC Chan, Sgt Man and WPC Kwok about what happened when PC Chan was attacked was largely unchallenged save for whether anyone claimed to be a member of a triad society and whether PC Chan and Sgt Man revealed their police identity. 

19.I will first summarise their evidence with reference to the photographs and the CCTV footage[10].

20.The CCTV footage comprises of two different cameras CH 03 and CH 04 showing different views of the attack.  CH 03 shows the beginning of the attack when PC Chan walks out of the room where he was dining to the time where he is pressed to the ground (01:02:29 to 01:04:25).   CH 04 shows the time when PC Chan is pressed to the ground to the end of the attack when the police arrive (01:03:57 to 01:11:25).      

21.In summary at about 11 p.m. on 10 May 2013 PC Chan, Sgt Man and WPC Kwok were off duty when they went for dinner at the San Ying Wah restaurant on Yin Hing Street in San Po Kong, a restaurant PC Chan had been to a number of times before.  With reference to photograph 2 (exhibit P3) the witnesses identified the room shown on the right of the photograph with Chinese characters in black above the entrance as the room where they were having dinner.

22.At about 11:30 p.m. PC Chan wanted to go to the toilet.   The toilet was in the adjacent room shown in photograph 2 (exhibit P3) with the Chinese characters in blue above the entrance[11].

23.PC Chan opened the door of the room and saw around ten middle aged people inside.  PC Chan asked if he could use the toilet.  Someone in the room said they had booked the room and would not allow PC Chan to use the toilet.  PC Chan could not recall whether this was said by a male or a female because the incident was quite a while ago.  PC Chan politely left and went to another toilet opposite the room where he was having dinner.  In cross-examination PC Chan agreed that the toilet he used was in the main restaurant opposite where he was dining.

00:45 hours/12:45 a.m. on 11 May 2013

24.After going to the toilet PC Chan returned to continue dinner.   At about 12:45 a.m. PC Chan had the need to go to the toilet again and left the room to go to the toilet opposite where he was dining.  During cross-examination in answer to the court PC Chan said this was the same toilet he had been to earlier.

25.PC Chan said the CCTV footage (CH 03) at 01:02:29 shows him walking out of the room[12].

26.At the time the staff of the restaurant were busy therefore PC Chan could not borrow the key to go to the toilet.  PC Chan therefore stood on the pavement outside where he was dining.  While waiting to go to the toilet a man came up to PC Chan and said, “Young lad just now we refused to lend the toilet to you.  Are you choked with fury?”  PC Chan said that it was OK he was not allowed to use the toilet which was something in the past. 

27.Due to the long lapse of time PC Chan said he was unable to describe this man.

28.PC Chan said the CCTV footage (CH 03) between 01:02:29 and 01:03:00 was the time when the male asked him if he was choked with fury[13]. 

29.The male then started using foul language.  When PC Chan asked why the male was using foul language, the male responded by saying “Fuck your mother. I am from local Hung Fat Shan 14”.  The male then lunged towards PC Chan and began to throw punches at PC Chan.  PC Chan could not recall which part of his body the male punched him.  PC Chan said the male is shown hitting him on the CCTV footage (CH 03) at 01:03:38[14].

30.In cross-examination PC Chan disagreed that this man did not say he was from “Local Hung Fat Shan 14”. 

31.PC Chan tried to dodge and ward off the blows[15]. Four other males then joined in the attack and hit PC Chan. 

32.In cross-examination PC Chan agreed that part of the group seen at 01:02:14 were involved in the attack on him; said he could not tell from the still image at 01:02:28 whether the group paid attention to him as he walked out of the restaurant; and after being shown the CCTV footage between 01:02:28 and 01:02:39 said he had no idea whether during that period the group paid attention to him; could not remember if any of the group spoke to him and explained that because the group were in the middle of the path he walked round the group to avoid them.

33.PC Chan said he was kicked and that hard objects were also used to hit him.  PC Chan kept on dodging but was pressed to the ground where he was punched and kicked.  PC Chan revealed his police identity and asked them to stop hitting him. The attack on PC Chan however continued when someone said to keep on hitting. 

34.In cross-examination PC Chan disagreed he did not reveal his police identity.

35.PC Chan said the CCTV footage (CH 03) between 01:03:38 and 01:04:25 shows the male continuing to hit him and a group of people hitting him and that the CCTV footage (CH 04) at 01:03:59 shows the time when he was pressed on the ground[16].

36.When Sgt Man heard a noise coming from outside the restaurant he took a look from the room and saw a few Chinese males hitting PC Chan.  Sgt Man then walked outside followed by WPC Kwok.  Sgt Man and WPC Kwok confirmed this is shown on the CCTV footage (CH 03) between 01:03:48 to 01:03:58.

37.Sgt Man saw PC Chan lying on the ground surrounded by several males.  Sgt Man therefore went forward to stop them hitting PC Chan.  WPC Kwok also saw a few people surrounding PC Chan and hitting him.  WPC Kwok could not remember if anything was said.  

38.Sgt Man revealed his police identity and told them to stop hitting PC Chan.  Some of the males continued hitting PC Chan and one of their group said “Local Hung Fat Shan 14, stop being nosey”.  In cross-examination Sgt Man disagreed that nobody said “Local Hung Fat Shan 14” and disagreed nobody revealed their police identity.

39.Sgt Man continued trying to stop the group hitting PC Chan.  PC Chan said he noticed Sgt Man trying to break up the fight but did not notice WPC Kwok. 

40.When asked what hard objects were used PC Chan testified that the male who asked if he was choked with fury used a green plastic chair, similar to the green plastic stool shown in photograph 9 (exhibit P3), to hit him on the head.   Sgt Man and WPC Kwok also saw a man use a green plastic stool to hit PC Chan on his head. 

41.PC Chan said the green plastic stool was used to hit him on his head more than once causing bleeding and on his arms and hands when he tried to dodge the attack.  PC Chan said he was hit just above the hairline on the left side of his forehead as shown on photograph 11 (exhibit P4).  After he was hit on his head PC Chan tried to get away.  

42.PC Chan identified a male picking up a green plastic stool on the CCTV footage (CH 04) at 01:05:05.  PC Chan confirmed that the CCTV footage (CH 04) between 01:05:05 and 01:05:40 shows the male using the green stool to hit him; after which he is pulled out and thrown to the ground; the male follows and again hits him with the green stool; and when he tries to run away he was pushed against the railings and fell down.       

43.PC Chan confirmed that the CCTV footage (CH 04) between 01:05:40 and 01:06:10 shows a man holding a green stool which he raises and brings down forcefully after which the man throws the stool away.  PC Chan said he could not be sure if he was actually hit with the green stool when he was on the ground by the railings because the incident was a long time ago and the footage was not clear[17].    

44.PC Chan confirmed that the CCTV footage (CH 04) between 01:06:40 and 01:07:10 shows the same man picking up another green plastic stool which was taken off him and at 01:09:20 the male picking up the stool again.   PC Chan was not asked to confirm that the CCTV footage then shows the male using the stool to hit someone who was by the railings.    

45.WPC Kwok said she also saw some tools for road repair being used to hit PC Chan but could not see this on the CCTV footage. 

46.Sgt Man continued trying to stop the group hitting PC Chan up until uniform police officers arrived.  Sgt Man said that after hitting PC Chan for several minutes three of the group attacking PC Chan left, including the man who used the green plastic stool whereas the remaining two stayed at the scene.  WPC Kwok said that the CCTV footage (CH 04) at 01:11:20 probably shows the arrival of two police officers. 

47.The CCTV footage (CH 03) at 01:11:15 shows the arrival of two police officers[18].  

Independent witness

48.Part of the incident was witnessed by Mr Lo Chi Hung (PW5) who was also dining at the same restaurant.  The witness statement of Mr Lo was read into evidence (exhibit P11). 

49.In summary Mr Lo said that after paying the bill at around 12:30 a.m. on 11 May he went to a toilet in a private room of the restaurant.   When Mr Lo walked out of the restaurant to go to the toilet he saw two men accusing each other.  Mr Lo did not pay attention to them and continued walking to the private room to use the toilet[19].

50.About two minutes later after going to the toilet Mr Lo walked out of the private room and saw the same two males.  Mr Lo saw one of the males (WP1) using a green plastic stool to hit the other male (V) who was surrounded by about five males.  Two of the five males (WP2 and WP3) punched the male (V).  Mr Lo also saw a male try to conciliate and stop the dispute[20].

51.The attack however continued and Mr Lo perceiving the situation to be serious called the police.  The male (WP1) who had used the green plastic stool left while the two males (WP2 and WP3) kept on accusing the male (V).  About three minutes later the police arrived and separated the male (V) from the two males (WP2 and WP3)[21]. The male (V) was treated by a police officer while other police officers made enquiries of the two males (WP2 and WP3).

52.Mr Lo did not hear anyone say, “I am Hung Fat Shan No. 14 of this area” and did not hear anyone claiming to be a police officer[22].

Arrest

53.At 16:07 hours on 5 March 2017, after the defendant had surrendered to the Wong Tai Sin Police Station, DPC 34190 (PW11) arrested the defendant for the offence of wounding.

Identification

54.On 23 March 2017 PC Chan failed to identify the defendant at an identification parade.  On 19 May 2017 Sgt Man also failed to identify the defendant at an identification parade[23].

55.The prosecution rely on a video recorded interview given by the defendant in which the prosecution say the defendant told the police about the incident involving PC Chan and admitted that he took part in the attack on PC Chan.

Summary of the first video recorded interview (exhibit P6)

56.The defendant said that he surrendered for the offence of wounding which happened at about 12:45 on the night of 11 May 2013[24]. When asked what happened the defendant explained that he had a late night meal with friends and that while having a meal a Chinese male pushed open the door and asked to use the toilet.  After the defendant said he had exclusive use of the toilet the Chinese male left[25].

57.After finishing the meal the defendant described seeing the same male standing at the door of the adjacent room; he asked the male why he was looking at him and if he was very dissatisfied; the male pushed him onto the floor; two of his friends Cheung Tak Shing and Ng Tin Wo walked back and quarrelled with the male; they then had a row with the male and had a fight; they threw punches and rolled on the floor; the defendant did not see anybody using a weapon or a plastic chair to hit someone or anybody else hit the male and did not know how the male sustained his injuries[26].

58.The defendant had known Cheung Tak Shing, who was his boss, for 20 odd years.   The defendant came to know Ng Tin Wo through working for Cheung and had known him for a few months or so[27].

Discussion

59.I have considered the video recorded interview in accordance with the principles in R v Sharp[28].

Surrender

60.Admitted in evidence is that police officers had visited the defendant’s home on several occasions, the last visit being on 22 February 2017[29].  Mr Khosa submits that surrendering to the police station is neither here nor there and that it was natural that the defendant would go to the police station to enquire at some point[30].

61.I have no hesitation in rejecting this submission.  In cross-examination DPC 34190 disagreed the defendant told him he had no idea why the police were looking for him.  I accept the evidence of DPC 34190.

62.The only evidence before the court as to why the defendant surrendered to the police station is the reply made by the defendant under caution and his explanation in the video recorded interview.  

63.When DPC 34190 arrested the defendant he told the defendant that the police had reason to believe that at around 00:45 in the small hours of 11 May 2013, together with Cheung Tak Sing and Ng Tin Wo and two other males, he assaulted Chan Chun Wai (PC Chan) causing Chan to sustain a V-shaped laceration on his forehead and multiple abrasions and bruises on his body.  This is repeated in the post-record (exhibit P10) and in the video recorded interview (exhibit P6)[31]. 

64.Under caution when arrested the defendant said, “Ah Sir I just came back to settle the payment”.  This reply was subsequently post-recorded (exhibit P10)[32].  In cross-examination DPC 34190 disagreed that prior to making the post-record he talked to the defendant about the case under investigation.

65.In the first video recorded interview (exhibit P6) the defendant was asked what he meant by “I just came back to settle the payment”[33].  The defendant explained he came to the police station to surrender for the offence of wounding which happened at about 12:45 on the night of 11 May 2013[34].

66.Mr Khosa submits that it is difficult to say whether the defendant was remembering these details himself or was repeating what DPC 34190 had told him when cautioning him and that under normal circumstances it would be difficult for people to remember the date and time of an incident four years later[35]. 

67.I have no hesitation in rejecting this submission.  There is no evidence before the court that when explaining why he surrendered to the police station the defendant merely adopted what he was told by DPC 34190.

68.I am satisfied that the defendant went to the police station to surrender about the wounding which occurred in the early hours of 11 May 2013.  This in my view is clear from the explanation given by the defendant when asked in the video recorded interview why he surrendered to the police station[36].

69.Mr Khosa submits that the reply of the defendant “Ah Sir I just came back to settle the payment” can in no way be interpreted or construed as a confession or admission of guilt[37].

70.Both DPC 34190 and Ms Lam (PW17), who certified the translation of the transcript of the video recorded interview, agreed in cross-examination that “settle the payment”, which wastranslated from the Chinese“Jau So”, had many different meanings in Chinese. 

71.I am satisfied that by surrendering to the police station this in itself is not an admission by the defendant that he wounded anybody. 

Video recorded interview (exhibit P6)

72.Mr Khosa submits that it is unclear whether the incident described by the defendant in the interview is the same incident involving PC Chan[38].  Mr Khosa relies on what he calls ‘discrepancies’ between the versions given by the defendant in the interview and that of PC Chan and the CCTV footage.  Mr Khosa concludes by saying that it is impossible to say for sure that the defendant was talking about the same incident[39].

73.I have no hesitation in rejecting this submission.  The defendant clearly states that he did not allow a male to use the toilet where he was dining; that after he finished the meal he saw the same male again; he asked the male if he was dissatisfied; and that there was a fight in which punches were thrown and they rolled on the floor[40]. This is consistent with the evidence of PC Chan. 

74.I am satisfied so I am sure that the only inference to draw is that the defendant was talking about the same incident as PC Chan and admitted that he was the person who spoke to PC Chan immediately before the attack. 

75.Dealing with the ‘discrepancies’, Mr Khosa first submits that there was no door to push open[41]. Mr Khosa’s reference to the CCTV that there was no door to push is incorrect. The CCTV footage (CH 03) between 01:07:20 and 01:07:30 clearly shows that there was a sliding door to the room where the toilet was. 

76.Without the need to play this part of the footage in court Mr Khosa accepted the room had a sliding door but emphasised that on the CCTV footage the door was open. The fact that the door was open when the group left the room and the incident occurred does not cause me to doubt the finding that in the interview the defendant was talking about the same incident as PC Chan.  Further, what the defendant said that a man pushed at the door is consistent with PC Chan’s evidence that he opened the door of the room[42].

77.I do not agree that the version of the defendant and that of PC Chan about what was said when the man/PC Chan walked into the room to use the toilet are two very different versions [43]. In my view the difference is more apparent than real and does not cause me to doubt the finding that in the interview the defendant was talking about the same incident as PC Chan. 

78.Mr Khosa submits the version of the defendant that he was last in line when he reached the man is very different to the CCTV footage.  Mr Khosa explains that when the defendant refers to being last in line he is referring to when he left the room whereas on the CCTV footage the male is seen leaving the room first[44]. 

79.In my view the reference to the last in line is consistent with the CCTV footage (CH 03) between 01:00:57 and 01:02:59. The footage shows the male leaving the room where the toilet was and saying goodbye to his companions, who leave first at 01:02:29.  At the same time PC Chan walks out of his room.  Only the male stays behind and appears to turn his head and look at PC Chan.  The male then stands waiting in the middle of the pavement and shortly after he is seen talking to PC Chan. 

80.Mr Khosa also submits that the version of the defendant that the male (PC Chan) was looking at his group is also different to the CCTV footagewhich shows that when PC Chan walked in the direction of the male (the defendant), the male was alone[45]. A close look at the CCTV footage (CH 03) between 01:02:29 and 01:02:44 shows PC Chan looking at the group just before the male appears to look at PC Chan after which PC Chan walked behind the male and the group.

81.The ‘discrepancies’ referred to by Mr Khosa between what the defendant said in the interview and the CCTV footage are in my view again more apparent than real and do not cause me to doubt the finding that in the interview the defendant was talking about the same incident as PC Chan.  Furthermore, considering that the defendant was asked about what happened almost four years earlier, it is not at all surprising that there are discrepancies between what the defendant said and the CCTV footage. 

82.Mr Khosa further submits that the defendant’s description of what happened in the attack is also very different to what is seen on the CCTV footage[46].  I deal in the next section of my verdict with the defendant’s account of the attack, suffice to say the defendant’s description of what happened in the attack does not cause me to doubt the finding that in the interview the defendant was talking about the same incident as PC Chan.   

83.In addition in the interview the defendant admitted that Cheung Tak Shing and Ng Tin Wo, two work colleagues of his, walked back and quarrelled with the male and then they had a fight with the male[47]. Admitted in evidence is that at 1 a.m. on 11 May 2013 Cheung Tak-sing and Ng Tin-wo were arrested at the scene by PC 58859 and PC 6864 respectively[48]. When asked by the court if he had anything to say about this evidence Mr Khosa submitted that there was no admission by the defence that Cheung Tak Shing and Ng Tin Wo mentioned by the defendant were the same Cheung Tak-sing and Ng Tin-wo arrested at the scene. 

84.Although this is not a case of visual identification, I have borne in mind the dangers of mistaken identification in accordance with the principles established in R v Turnbull[49].   When considering evidence which goes to support the correctness of the identification the court in Turnbull said that odd coincidences can, if unexplained, be supporting evidence[50].

85.It is an odd coincidence that two persons from the group of five who attacked PC Chan remained at the scene[51]; that two persons named Cheung Tak Sing and Ng Tin Wo were arrested at the scene and that the defendant said that Cheung Tak Shing and Ng Tin Wo were involved in a fight with the male he had refused to allow to use the toilet and who he later asked if he was dissatisfied. 

86.I am satisfied this evidence supports the finding that the only inference to draw is that the defendant was talking about the same incident as PC Chan and admitted that he was the person who spoke to PC Chan immediately before the attack. 

The attack

87.In the video recorded interview, the defendant says that after he asked the male if he was dissatisfied the male pushed him onto the floor; two of his friends walked back and quarrelled with the male; then they had a row with the male and had a fight; they threw punches and rolled on the floor; the defendant did not see anybody using a weapon or a plastic chair to hit someone or anybody else hit the male and did not know how the male sustained his injuries[52].

88.Mr Khosa submits that the defendant did not admit he took part in the attack; that the fight was between the male and his two friends Cheung Tak Shing and Ng Tin Wo and that it is unclear whether the incident described by the defendant is the same incident involving PC Chan[53].

89.In making the submission that the defendant did not admit he took part in the fight Mr Khosa challenges the certified translation.  Mr Khosa submits that Ms Lam Oi King, Ella (PW17), who certified the translation of the transcript,fell into error by implying that by surrendering to the police station the defendant confessed that he was part of the attack and therefore wrongly inserted that the defendant had something to do with the fight thereby giving a wrong impression of the original Chinese answers[54]. 

90.In the certified translation the subject is included in brackets, for example counter 124 “(We) threw punches in the fight…”; counter 126 “(We) fought and rolled on the floor.”; and counter 128 “Well, at that time, each of (us) threw one punch or so…”.

91.Ms Lam was tendered for cross-examination.  In summary Ms Lam said that to a certain extent to make sense to the translation the subject is inserted into the translation.  Ms Lam explained that in making the insertions she read the entire interview to determine who were the subjects involved.  

92.Ms Lam referred to counter 62 and said that her understanding was that the defendant was surrendering specifically for the wounding offence and that from the whole of the interview the defendant was confessing to a crime and not a witness to a crime.  Ms Lam therefore logically deduced that the defendant was talking about his involvement in the incident. 

93.Ms Lam also said that prior to coming to court she had again repeatedly read the interview and came to the same conclusion that the insertions made rendered the proper sense of what was being mentioned.

94.Ms Lam disagreed with Mr Khosa that the insertions created a wrong translation of what was said in Chinese

95.I have no hesitation in rejecting the submission of Mr Khosa that the insertion of the subject gave a wrong impression of the original Chinese answers.  I accept the evidence of Ms Lam.  Having carefully considered the content of the interview I am satisfied so I am sure the defendant admitted he took part in the attack.  I am satisfied the admission is not as submitted by Mr Khosa ambiguous or equivocal[55].

96.I am satisfied no weight is to be attached to the defendant’s assertions in the vide recorded interview that he was pushed to the floor whereupon his two friends walked back and had a quarrel with the male and that he did not see anyone use a weapon or a plastic chair to hit someone, which assertions were not made on oath, have not been repeated on oath and have not been tested by cross-examination[56].  Even if the defendant was saying that only Cheung Tak Shing and Ng Tin Wo were involved in the fight no weight is to be attached to this assertion which was not made on oath, has not been repeated on oath and has not been tested by cross-examination.

97.These assertions are wholly inconsistent with the CCTV footage, both cameras, which clearly shows that the male who spoke to PC Chan and who I am satisfied for the reasons already given is the defendant, was involved in the attack from the very beginning.

98.The CCTV footage (CH 03) between 01:03:30 and 01:04:03 shows that it was the defendant who first attacked PC Chan and not PC Chan pushing the defendant to the ground.  After PC Chan was able to push the defendant away the defendant again hit PC Chan pushing PC Chan against a wooden panel in front of the room where PC Chan had been dining.  The defendant’s group then join in the attack not quarrel; the defendant and PC Chan then fall to the ground; the defendant stands up and uses his right hand to hit PC Chan who again falls to the ground.

99.The continuation of the incident on the CCTV footage(CH 04) between 01:03:59 and 01:09:53 shows the defendant and his group continuing to attack PC Chan. PC Chan was not fighting with the defendant and his group.  PC Chan was outnumbered by the defendant and his group.  The CCTV footage shows PC Chan trying to defend himself and Sgt Man trying to stop the attack. 

100.Specifically, with regard to the defendant hitting PC Chan the CCTV footage shows that:

(a) between 01:04:08 and 01:04:12 the defendant is seen using his right hand to hit PC Chan twice;

(b) between 01:04:58 and 01:05:45 the defendant is seen picking up a green plastic stool; using the stool to hit PC Chan; pulling the stool which is also held by PC Chan causing PC Chan to fall on the ground; following PC Chan and again hitting PC Chan with the stool. PC Chan tries to run away when he is pushed against the railings by one of the defendant’s group;

(c) between 01:05:55 and 01:06:10 the defendant is again seen picking up the green plastic stool and walking to the railings where he uses the stool to hit PC Chan who is lying on the ground by the railings. The defendant is pushed away at which time he throws the stool on the ground;

(d) between 01:06:20 and 01:07:15 the defendant runs up to where PC Chan is on the ground and appears to hit him; and then walks to pick up another green plastic stool which is taken from him by a lady from his group; and

(e) between 01:09:10 and 01:09:55 the defendant appears to be pushing PC Chan against the railings and then walks to pick up the green plastic stool which he uses to hit PC Chan at least twice; the stool is then thrown away and the defendant shortly after leaves. The defendant can be seen leaving at 01:09:53 in the still photograph 6, exhibit P1A taken from CH 03.

101.I remind myself that the rejection of the defendant’s assertions in the video recorded interview is not determinative of the issues in the case.  The defendant has to prove nothing.  The burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

102.Mr Khosa submits that the evidence of PC Chan and Sgt Man should be considered with extreme caution because they said their recollection of the incident was not good and that the incident was four years old[57].  Mr Khosa also states that WPC Kwok conceded her memory of the incident was not good[58].

103.When the witnesses gave evidence in court over five years had passed since the incident. 

104.In cross-examination PC Chan said that because there had been such a long time since the incident his memory was a bit vague of what happened in the room when he asked to use the toilet and that he had a very vague memory of what happened when he was attacked. 

105.When asked by Mr Khosa if he had not been shown the CCTV footage whether he would agree that he did not have much recollection of how the incident took place, PC Chan replied that because the incident happened a long time ago he only had a general impression of what happened.

106.In cross-examination when shown the CCTV footage (CH 03) between 01:02:42 and 01:02:58 PC Chan said that by referring to the CCTV footage and his witness statement this was the time when the male asked him if he was choked with fury[59].  

107.PC Chan disagreed that by the time he gave his witness statement he had mixed up the chronology of who said what and who did what in the incident.  PC Chan agreed that because the incident was quick, sudden and chaotic by the time he gave his witness statement he did not have a clear recollection of what happened and that what he described in his witness statement was the gist of what happened.  PC Chan disagreed his witness statement was not a good aid in assisting him in remembering what happened[60].

108.Sgt Man did not say his recollection was not good.  Sgt Man described what happened and was only cross-examined on the way three of the group left the scene and disagreed that nobody claimed to be a member of a triad society or nobody revealed they were a police officer. 

109.WPC Kwok did not concede her memory of the incident was not good.  WPC Kwok was asked very few questions and was not cross-examined. 

110.In court Mr Khosa accepted that Sgt Man did not say his recollection was not good and that WPC Kwok did not concede her memory of the incident was not good.  Mr Khosa submitted by reason of the brevity of their evidence their recollection was in fact not good. 

111.PC Chan remembered the main events of what was said before he was attacked and how he was attacked.  This evidence was given before PC Chan was shown the CCTV footage. 

112.Having carefully considered all the evidence and taken into account that the incident was over five years ago and that PC Chan had consumed alcohol, I find I am satisfied so I am sure that PC Chan is a witness of truth upon whose evidence I can safely rely. 

113.The evidence of PC Chan is consistent with the CCTV footage and supported by the evidence of Sgt Man, WPC Kwok and Mr Lo, who each witnessed part of the incident and whose evidence I accept. 

Wound

114.I accept the evidence of PC Chan about how he was attacked.

115.PC Chan was taken to the Queen Elizabeth Hospital where he was examined by Dr Ho (PW16).  Dr Ho gave expert evidence about the injuries sustained by PC Chan in the attack. 

116.A medical report of the injuries was produced by Dr Ho (exhibit P9).  PC Chan confirmed the injuries shown in the photographs (exhibit P4) showed the injuries he sustained in the attack save for the red marks next to his left eye on photograph 11 which was an old injury. 

117.One of the injuries was a V-shaped laceration over the left side of the forehead which required suturing.  According to the medical notes Dr Ho said there were nine stitches.  The V-shaped laceration is shown in photograph 11. 

118.In answer to the court Dr Ho confirmed that both the outer (epidermis) and the inner (dermis) part of the skin was cut otherwise suturing would not have been required.   

119.On this evidence I am satisfied so I am sure PC Chan was wounded.

Intent to do grievous bodily harm

120.Mr Khosa submits by looking at the injuries sustained by PC Chan the prosecution have failed to prove the defendant intended to cause grievous bodily harm[61] and refers in particular to the V-shaped laceration which required suturing and the evidence of Dr Ho about the laceration. 

121.In cross-examination Dr Ho said that much thinner and smaller stitches are used on the head for cosmetic purposes so that there was as little scarring as possible.   Dr Ho however did not say that the stitches were “used only so that the injury heals better, more for cosmetic purposes” as submitted by Mr Khosa[62]. Dr Ho explained that the purpose of stitches was not only for cosmetic purposes but also to stop bleeding and infection. 

122.Dr Ho said that because a wound required suturing did not mean the injury was serious and equally where no suturing was required did not mean the injury was not serious.  

123.Dr Ho agreed that the condition of the patient was satisfactory; no X-ray of the skull was required; the patient was treated and discharged the same day; the injury was not life threatening; bleeding had stopped by the time he saw the patient and that he thought the laceration which was not a deep cut was straightforward with no complications.

124.In support of his submission that the prosecution have failed to prove the defendant intended to cause grievous bodily harm Mr Khosa relies on the decision of the Court of Appeal in  HKSAR v Lo Tak Chi[63].  Mr Khosa has however wrongly stated that in that case the assailants were convicted of wounding with intent whereas the applicant was convicted of causing grievous bodily harm with intent. 

125.The issue before the Court of Appeal was whether the injuries amounted to grievous bodily harm which is not an element of the offence of wounding with intent to cause grievous bodily harm.  The decision of the Court of Appeal is therefore of limited assistance.

126.I have no hesitation in rejecting the submission of Mr Khosa.  As seen on the CCTV footage the attack lasted over six minutes between 01:03:36 and 01:09:50 when the defendant and two of his group left. 

127.The attack begins when the defendant lunges at PC Chan as seen on the CCTV footage (CH O3) at 01:03:36.  This is followed by the defendant pushing PC Chan against a wooden panel; the defendant’s group joining in the attack with at least four persons in addition to the defendant attacking PC Chan; the defendant and PC Chan falling to the ground; the defendant standing up and using his right hand to hit PC Chan who again fell to the ground; the defendant again hitting PC Chan twice with his right hand; on at least four occasions the defendant using a green plastic stool to hit PC Chan and PC Chan being pushed against the railings where the attack continued[64].

128.On any view an injury to the head requiring suturing is a serious injury.  As Mr Khosa states this was the most serious injury[65]. Having viewed the CCTV footage of the attack it is most fortunate PC Chan did not suffer more serious injuries. 

129.By reason of the length of the attack; at least five persons, including the defendant, attacked PC Chan; the defendant repeatedly used a green plastic stool to hit PC Chan, I am satisfied so I am sure the only inference to draw is that the defendant together with Cheung Tak Sing, Ng Tin Wo and two other persons from the defendant’s group wounded PC Chan with intent to do him grievous bodily harm.

Claiming to be a member of a triad society

130.In the second video recorded interview (exhibit P7) the defendant said that he did not say “I am of No 14 Hung Fat Shan” or hear anybody say that.   I am satisfied no weight is to be attached to the defendant’s answers in the second video recorded interview, answers which were not made on oath, have not been repeated on oath and have not been tested by cross-examination.

131.I again remind myself that the rejection of the defendant’s assertions in the video recorded interview is not determinative of the issues in the case.  The defendant has to prove nothing.  The burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

132.Mr Khosa submits that the evidence of PC Chan and Sgt Man that they both heard someone claim to be a member of a triad society and that they both revealed their police identity is unreliable because the incident was over four years ago; they both said their recollection of the incident was not good; they had drunk quite a bit of beer; were involved in a fast and chaotic situation and that it would be unsafe to rely on this evidence which was not supported by WPC Kwok or Mr Lo[66].

133.I have no hesitation in rejecting this submission.  I have already addressed the submission that PC Chan and Sgt Man said their recollection of the incident was not good[67].

134.The charge of claiming to be a member of a triad society is the claim made to PC Chan before the attack started and therefore it is not surprising Sgt Man or WPC Kwok did not hear this as their attention was not drawn to the incident until after the attack started[68].

135.Mr Lo said he did not pay attention to the two males when he heard them accusing each other[69]. Again it is therefore not surprising Mr Lo did not hear someone claim to be a member of a triad society.

136.In addition, the CCTV footage (CH 03) between 01:03:18 and 01:03:26 shows a person walking past PC Chan and the other male and entering the private room where earlier the diners did not allow PC Chan to use the toilet.  The CCTV footage (CH 03) between 01:04:45 and 01:05:00 shows the same male coming out of the room[70].  I am satisfied that the male seen in the CCTV footageis Mr Lo.  No other person is seen entering the room at that time. 

137.From the CCTV footage Mr Lo would only have been able to hear a small part of the conversation between the male and PC Chan which lasted over forty seconds between 01:02:53 and 01:03:38 (CH 03).  

138.The fact WPC Kwok could not remember whether anything was said and Mr Lo did not hear someone claim to be a member of a triad society or reveal they were a police officer does not cause me to doubt the evidence of PC Chan. 

139.Mr Khosa submits that the conversation between the male and PC Chan was quite long and that clearly more was said than what PC Chan told the court[71]. 

140.The CCTV footage (CH 03) between 01:02:58 and 01:03:38 was played to PC Chan in cross-examination.  PC Chan disagreed that without referring to his witness statement he could not remember in court what was said in those forty seconds and explained that he may not be able to remember everything said but that he had a general impression.  PC Chan agreed that impression was not a good impression. 

141.The fact that PC Chan could not remember everything that was said does not cause me to doubt his evidence. 

142.Mr Khosa submits that the CCTV footage does not really support what PC Chan said and that it is unbelievable that PC Chan could not prevent the incident and that anyone, no matter how drunk they were, would disregard warnings they were attacking a police officer and instead continue the attack[72].

143.In cross-examination PC Chan agreed that the CCTV footage (CH 03) between 01:02:58 and 01:03:38 did not, as he had testified in evidence, show that while he was waiting to go to the toilet the man walked up to him and spoke to him[73]. 

144.The CCTV footage shows that when the male was first talking to PC Chan it was PC Chan who walked in the direction of the male.  This is followed by the male walking towards PC Chan and starting to attack PC Chan.  This difference is, in my view, more apparent than real and does not cause me to doubt the evidence of PC Chan. 

145.PC Chan was outnumbered and therefore it is not surprising he was unable to stop the attack.  The fact the attack continued after PC Chan and Sgt Man had revealed their police identity does not cause me to doubt the evidence of PC Chan and Sgt Man.   

146.Having carefully considered all the evidence and taken into account that the incident was over five years ago; that PC Chan could not remember everything that was said and that PC Chan had consumed alcohol, I find I am satisfied so I am sure PC Chan is telling the truth. 

147.I accept the evidence of PC Chan that the male, who for the reasons given earlier I am satisfied is the defendant, said “Fuck your mother. I am from local Hung Fat Shan 14”. 

Verdict

148.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Khosa both individually and collectively.  Nothing said by Mr Khosa causes me to doubt the findings I have made.

149.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of both charges beyond reasonable doubt, each charge being considered separately.

150.I am satisfied so I am sure the defendant wounded PC Chan with intent to do PC Chan grievous bodily harm and claimed to be a member of a triad society.  The defendant is convicted as charged.