HKSAR v. Salim Kasim and Another

DCCC 266/2018

[2019] HKDC 636

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 266 OF 2018

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REASONS FOR VERDICT

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Charges

1.D1 (1^st Defendant) and D2 (2^ndDefendant) are jointly charged with wounding with intent (Charge 1) and criminal damage (Charge2). They plead not guilty to both counts.

Introduction

2.The incident occurred in the early morning on 10 November 2017 at the Spades Bar in Tsimshatsui. D1 and D2 had an argument with the people of the bar, in particular the security guard called Hadi. The two defendants returned with two men in black T-shirts. The four then rushed into the bar and caused a brawl. They were expelled. D1 went to a neigbouring restaurant to fetch a chopper and came back. When D1 chased Hadi to the bar with his chopper, D2 also rushed to the bar. D2 kicked at the door as D1 chopped towards the bar. D1 then chopped towards Hadi, who was defending from inside the bar through a half-open door (one side open; the other side closed). Hadi was injured in his left thumb and index finger by D1’s chopping. When D1 was so attacking Hadi, D2 was behind D1, shouting and raising his arm towards the bar. 

3.A glass pane on the door of the bar was damaged. Prosecution say it was caused by D1’s chopping.

4.The incident was captured by CCTV of the Spades Bar and the neighbouring premises.

5.There is no dispute of identification. In all the CCTV footages, the man wearing a jacket and later holding a chopper was D1; the one in light-coloured garments and sometimes holding a bag was D2.

6.D1 gives evidence in the trial. He says he was not an aggressor. He only rushed into the bar to save his friend Ah Hoi (one of the two men in black T-shirts; the other was Ah Hoi’s friend). D1 claims he later fetched a chopper from a neighbouring restaurant (Yuen Kee) to save D2 from being beaten up by the people of the bar and to prevent those people from coming out of the bar to chase them. D1 denies hurting Hadi with the chopper or damaging the glass pane on the door of the bar. He denies he was in joint enterprise with D2 to wound Hadi or to damage the glass pane.

7.D2 elects not to give evidence in the trial. His counsel submits D2 was not an aggressor and D2 was not in joint enterprise with D1 to wound Hadi or to damage the glass pane.

Prosecution case

8.Prosecutor calls seven witnesses to testify and produces exhibits P1-P15.

PW1 Bobby

9.Bobby was the boss of the Spades Bar. He was not in the bar when the incident occurred in the early morning of 10 November 2017. He only learnt of what happened from his staff later.

10.The police requested Bobby to retrieve the relevant CCTV record. There were nine cameras inside the bar and two outside. Bobby learnt the incident took place near the entrance so he downloaded from one camera (Camera 3) inside which monitored that area and from the two cameras outside the bar (Camera 1 and Camera 2).

11.Counsel for D1 (Ms Moosdeen) suggests that Bobby purposely omitted to download from the other cameras inside the bar in order to conceal evidence. She also accuses Bobby of delaying the downloading so that he could tamper with the record by undesirable editing. Bobby denies all those allegations.

12.Ms Moosdeen suggests in the alternative that it was Christina (the manageress of the bar) who produced the USB (P9) containing the CCTV footage to the police. Bobby disagrees. He says he was the only one who had the password to download from the CCTV machine. He personally gave P9 to the police on 10 November 2017.

13.Bobby says the damaged glass pane on the door cost $1,200 to repair.

PW2 Christina

14.Christina was the manageress of the Spades Bar. She says the two defendants came at around 4:45 am on 10 November 2017. D1 appeared to be under the influence of alcohol. D2 told Christina not to mind D1 because D1 was drunk. The two defendants sat for a while before they left without ordering anything. D1 then argued with a customer called Nishant at the doorway. (Nishant was also a part-time staff in the bar but he was not on duty that day.) The security guard Hadi intervened. The two defendants soon left. Later, some men gathered outside the bar. They threw bottles into the bar. Christina had to find shelter for protection. She saw Hadi trying to close the door. [It can be seen from P5 (photos 1-6) that the door was withdrawn a few feet from the bar front with the road. There was a small space in front of the door. Behind the door, there were a few steps ascending to the lounge. The door had two sides. Looking at the door from the front of the bar. The bar licence was stuck on one of the glass panes on one side. I shall always call this the left side of the door, whether it was looked from inside the bar or from outside. Christina says the left side was normally open while the other side was closed during business hours.] Christina later found a glass pane on the left side of the door was damaged as shown in P5 (photo 3).

15.Ms Moosdeen questions Christina on her statement (MFI-1) dated 15 May 2018. It was written by DPC 10525 to the effect that Christina prepared the CCTV download for the bar and gave the USB (P9) to the police.

16.Christina tells the court that she was tired when she signed that statement. She did not pay attention to its content and just signed it, believing it was not a big deal.

17.Christina says she could not access the CCTV machine. Only Bobby had the password.

PW3 DPC 58933

18.DPC 58933 went to the Spades bar at around 4 pm on 10 November 2017. He asked Bobby to download the relevant CCTV record. Bobby needed time to get a USB for that purpose so the officer went back to the bar later. He got P9 from Bobby at around 5:50 pm.

19.On the same day, DPC 58933 handed over P9 to the investigation officer DPC 9598.

PW5 DPC 9598

20.DPC 9598 got P9 from DPC 58933 at around 6:30 pm on 10 November 2017. He kept it in safe custody and handed it over to the new investigation officer DPC 10525 in mid-2018.

PW4 DPC 10525

21.DPC 10525 became the investigation officer sometime in 2018. He wrongly thought there was no statement taken in relation to P9. (In fact, the previous investigation officer DPC 9598 had already taken a statement from Bobby as early as 11 November 2017. [See MFI-2])

22.DPC 10525 says he found out from the investigation file that Christina produced P9 to the police. He thus prepared a Chinese statement to that effect and had it translated into English (MFI-1). On 15 May 2018, he invited Christina to come to the police station. He read over the prepared statement to Christina and also let her read it. Christina signed the statement without raising objection.

23.In court, DPC 10525 is asked to look up the investigation file to find out where it says Christina produced P9 to the police. The officer cannot find such information in the file. He admits he was mistaken about who produced P9 to the police and wrongly prepared MFI-1 for Christina to sign. The officer says he was handling several cases at the material time.

PW7 Nishant

24.Nishant had been working at the Spades Bar as a part-time bar tender since 2016. He stopped working at the bar in late October 2018.

25.On 10 November 2017, Nishant was not on duty. He went to the bar as a customer with two friends to have drinks. D1 blocked the entrance and would not move away. The two defendants appeared to be drunk. The security guard Hadi came to intervene. An argument followed. D1 and D2 soon left and Hadi stood guard at the door. After a while, the two defendants returned with two men. Nishant could see some were holding bottles. Then there was a brawl inside the bar and Hadi was assaulted near the entrance. Nishant went down a few steps of the staircase to hit the assailants. After the assailants had gone, Hadi went out of the bar. Nishant followed. He saw Hadi fight with one of the assailants. Another assailant came back with a chopper. Hadi tried to close the door of the bar. The man with the chopper hit the glass on the door with his chopper. When the assailants were all gone, Nishant noticed Hadi’s thumb was injured. He did not see how Hadi was hurt but he saw the man’s chopper had gone through the gap of the door during the attack.

26.Nishant denies Hadi insulted and threatened to kill the defendants. He agrees Hadi had taken up a rod, a sign board and a bar stool to fight in the incident.

PW6 Hadi

27.Hadi came to Hong Kong in 2010. He is of African origin. He speaks French and English but does not understand Chinese. In court, he speaks French.

28.Hadi says he noticed the two defendants arguing with Nishant about the right of way. He intervened and told the defendants that Nishant was a staff member there. Hadi asked them to let Nishant in. D1 ignored his request and said in English that he was the Tsimshatsui Boss. He pushed Hadi. The two defendants soon left the scene. Hadi then stood guard at the entrance with a rod. The two defendants came back with two men. All had bottles in their hands. Hadi says D1 was holding a broken bottle. The four men rushed into the bar to cause a fight. D1 waved his broken bottle in a threatening manner. Hadi caught D1’s hand and made him drop the bottle. The others threw their bottles inside the bar. After the four intruders had been expelled, Hadi went out. He tried to catch D2 to hand him over to the police. However, D1 came back with a chopper. Hadi warned the others. All retreated into the bar. Hadi tried to shut the left side of the door but he failed to do so. D1 attacked him from outside. The chopper injured Hadi’s left thumb and index finger [see medical report P7 and photos P5 (14-17)]. When D1 was attacking Hadi, D2 and the two men in black T-shirts were nearby but Hadi could not tell what the other three men were doing at that juncture.

29.Hadi says when he finally closed the door, D1 hit the door. Hadi heard glass breaking. However, he was not sure how the glass pane on the door was damaged.

30.The medical report P7 states there was laceration over Hadi’s left hand, cut wound with tissue loss over left hand and abrasion over right ankle. He was treated and discharged. The doctor gave Hadi one-day sick leave.

31.Hadi says he now still feels pain in his left thumb. He says he was also injured in the right elbow and right ankle [see photos P5 (18-19)] but he cannot tell how the elbow and ankle injuries were caused in the incident.

32.Hadi denies he asked the defendants to pay the minimum charge for not ordering anything in the bar. He denies he insulted and threatened to kill the defendants. He disagrees he started the fight and attacked the defendants. He says he held the rods for defending. He denies he asked other people in the bar to chase and hit the defendants. Hadi disagrees D1 only swung the chopper to quell the situation and to stop others from chasing. He insists D1 attacked him with the chopper. His left thumb and index finger were thus injured. The injuries were not caused accidentally.

33.Hadi denies he collaborated with Christina, Bobby and Nishant to fabricate accusation against the defendants.

CCTV

34.The police seized CCTV records from the Spades Bar (P9) and the neigbouring premises: the UFO Bar (P1), the Sun Tsai Kee Restaurant (P2) and the Yuen Kee Restaurant (P3). [See sketch P6 for their relative locations.]

35.Counsel for D2 Mr. Ching has no objection to the admissibility of all the CCTV records.

36.Counsel for D1 Ms Moosdeen has no objection to the admissibility of P1, P2 and P3. However, she submits P9 is not admissible on the following grounds:

(a) The defence challenge the integrity of the film downloaded by him (Bobby) onto a USB and later produced to the Police sometime after the alleged incident on 10 November 2017. There were 9 CCTV inside the bar at the time of the incident but he selected what he wanted to give to the police and did not produce the remaining CCTV films for their consideration.

(b) It is suspicious that the USB he chose to give to the Police may contain distorted activities of the defendant at the time of the alleged incident.

(c) The film might not have shown the events in their true sequence.

(d) No evidence was adduced by the prosecution to establish the authenticity of the film.

(e) No evidence to suggest/support the contents were original and authentic

(f) No proof of complete accuracy of the copy he gave to the Police.

(g) No evidence which defines and describes the provenance and history of the recording up to the moment of production.

(h) Issue of authenticity is a matter for consideration on admissibility evidence.

(i) Issue of weight and admissibility may overlay each other.

37.Ms Moosdeen is suspicious of the authenticity, completeness and accuracy of P9 but she does not indicate there is any evidence from her side to support her contention. She asks for a voire dire hearing regarding P9. Mr. Ching does not join in her application.

38.Prosecutor says Ms Moosdeen’s complaints are actually matters relating to weight rather than admissibility. 

39.It is not correct for Ms Moosdeen to say Prosecution would not prove the authenticity of P9. Bobby, DPC 58933, DPC 9598 and DPC 10525 are called to complete the chain relating to P9. DPC 10525 and Christine explain the statement MFI-1 was a mistake.

40.I agree with Prosecutor that Ms Moosdeen’s complaints are matters relating to the credibility of the witnesses regarding P9 and to the weight of the content of P9. Whether P9 is a piece of reliable evidence and what weight should be attached to it is part of the general issue to be decided by the jury. Ms Moosdeen’s complaints do not constitute any voire dire issue. I rule there is no need for any voire dire hearing and thus refuse her application for a voire dire hearing regarding P9.

41.Once Prosecutor has proved the chain of P9, it is admitted as exhibit for the jury to consider later what weight to be given to it.

42.Relevant excerpts from P1, P2, P3 and P9 are viewed in court. Upon request of the court, those excerpts are made into eleven folders and grouped in one USB (MFI-5) for convenient viewing.

From P9:
Folder 6	The Spades Bar Camera 1 (outside) 05:09:55 - 05:13:50;
Folder 11	The Spades Bar Camera 2 (outside) 04:53:00 - 05:13:40;
Folder 5	The Spades Bar Camera 2 (outside) 04:53:00 - 04:55:00;
Folder 4	The Spades Bar Camera 2 (outside) 05:09:55 - 05:13:50;
Folder 10	The Spades Bar Camera 3 (inside) 04:47:00 - 05:14:00;
Folder 1	The Spades Bar Camera 3 (inside) 04:47:00 - 04:48:00;
Folder 2	The Spades Bar Camera 3 (inside) 04:51:45 - 04:55:00;
Folder 3	The Spades Bar Camera 3 (inside) 05:10:00 - 05:14:00.
[Folders 4 and 5 are segments of Folder 11 showing what happened outside the bar, while Folders 1, 2, and 3 are segments of Folder 10 showing what happened inside the bar.]
From P1:
Folder 7	The UFO Bar (outside) 05:10:28 - 05:13:40.
From P3:
Folder 8	Yuen Kee (inside) 06:00:56 - 06:02:51.
From P2:
Folder 9	Sum Tsai Kee (outside) 05:11:55 - 05:13:55.

[All the CCTV records have no sound recording. Cameras 1, 2 and 3 of the Spades Bar were synchronized in time while the cameras of the UFO Bar, Yuen Kee and Sum Tsai Kee had their own time. Yuen Kee’s time was much faster, about 50 minutes ahead of real time.]

43.Folders 10 and 11 reveal the two defendants entered the Spades Bar at 04:47. They sat down and left a few minutes later. Between 04:51 and 04:52, D1 was standing at the doorway talking to Nishant and Hadi. D2 went down to them. There was an argument with some finger pointing and slight pushing. The two defendants left the scene at 04:53. Hadi remained outside the bar.  At 05:10, he took a rod to guard outside the door.

44.At 05:10:26, the two defendants came back. A few seconds later, two men in black T-shirts also appeared outside the bar. (According to D1, the first one was his friend Ah Hoi and the other was Ah Hoi’s friend.) Hadi tried to close the left side of the door but he was not successful. Hadi then took a longer rod to guard outside the door.

45.At 05:10:55, D2 put down his bag on the floor and drank from the bottle he was holding. He and the two men in black T-shirts were each holding a bottle at that time. D1 was also holding something in his left hand but the CCTV record does not show clearly what it was.

46.At 05:11:01, Ah Hoi, D2, D1 and Ah Hoi’s friend started rushing into the bar in that order. Ah Hoi, his friend and D2 were each holding a bottle. D1 raised what he was holding in his left hand (05:11:04 - 05:11:06). There was a fight between the two parties inside the bar. It was chaotic.

47.The two defendants and Ah Hoi’s friend first retreated from the bar at 05:11:15. Ah Hoi was still inside the bar. The thing that was previously in D1’s left hand had gone.

48.At 05:11:19, D1 picked up the longer rod which Hadi had left on the ground outside the bar. He entered the bar again. He ascended the stairs and tried to hit the other party with the rod.

49.At 05:11:39, D1 and the two men in black T-shirts again retreated from the bar. Ah Hoi re-entered the bar and came out with D2 at 05:11:45. Hadi came out of the bar too. There was an argument.

50.At 05:12:07, D1 and the two men in black T-shirts went to the left. D2 went to the right. Hadi came out of the bar again. Nishant and others followed. They tried to catch D2 but the two men in black T-shirts went to the side of D2 (Folder 6/05:12:32). At that time, D1 had fetched a chopper (P14) from Yuen Kee and came running down the road towards Hadi. Hadi and the others immediately rushed back to the bar. D1 passed D2 at 05:12:43 to continue chasing Hadi. At the same time, D2 ran across the road to the bar. D1 made chopping action with his chopper outside the bar. At 05:12:47, D2 kicked ferociously at the door of the bar and then swung the left side of the door twice. D1 then chopped towards Hadi several times through the open left side of the door between 05:13:01- 05:13:07. He stopped when Hadi raised a stool to resist. At 05:13:12, outside the bar D2 pulled D1 to leave.

51.Hadi put down the stool and checked his left thumb at 05:13:18.

52.At 05:13:23, D1 returned to appear outside the door. He raised his chopper again and soon left.

53.Folder 11 shows D1 returned and went near the bar once more at 05:13:32. Just as when D1 was about to leave the scene, Ah Hoi’s friend threw three bottles at the bar (Folder 6/05:13:34 - 05:13:37). The glass pane on the door of the bar was smashed (Folder 10/05:13:36).

54.D1 went to Yuen Kee to return the chopper.

Case to answer

55.After Prosecutor has adduced all the evidence, both defence counsel have no submission to make. I rule D1 has a case to answer on Charges 1 and 2; D2 also has a case to answer on both counts.

56.D1 elects to give evidence while D2 exercises his right not to give evidence. They have no witnesses to call or any exhibits to produce.

D1’s evidence

57.D1 says he had dinner with some friends on 9 November 2017. By 3 am the next morning, he had drunk 6 - 7 small bottles of beer. The alcohol influenced him. He felt light and walked unsteadily. He went with D2 to the Spades Bar to look for girls. It was the first time he had been to that bar. There were no girls so they left without ordering anything. At the doorway, Hadi and Nishant blocked their way. Hadi demanded them to pay the minimum charge. An argument followed. A few South Asians appeared on Hadi’s side. Hadi pointed his finger at D1 and called him ‘Chinese Pig’. The South Asians insulted him too and asked him to go. Nishant also pushed D2. The two defendants eventually left the scene.

58.D1 says he then came across a friend called Ah Hoi. Ah Hoi was with a friend. Both wore black T-shirts. Ah Hoi asked D1 what had happened. D1 said he had been humiliated. Ah Hoi volunteered to go with D1 to reason with Hadi. D1 did not know what to do. He worried Ah Hoi might become impulsive. He followed Ah Hoi to the Spades Bar.

59.Outside the bar, Ah Hoi had heated exchanges with Hadi, who had rods with him. D1 says Ah Hoi fought with Hadi outside the bar. Hadi dragged Ah Hoi into the bar. D1 then went inside to stop their fight. D2 and Ah Hoi’s friend also went inside. They were attacked by the people of the bar. The situation was chaotic.

60.D1 says he was holding a phone in his hand at that time, not a broken bottle. He picked up a rod from the ground to fend off the people of the bar.

61.D1 says he left the bar in fear. He was confused and tried to look for a shelter. However, he heard D2 shouting for help and saw D2 being chased by Hadi and some people. He thus fetched a chopper from Yuen Kee and went back to the bar. He only wanted to quell the situation and to stop the people of the bar coming out to chase him and his friends. He so told Hadi and the others in the bar. However, Hadi told the others to go out. Hadi also said he had called people to come to the scene.

62.D1 denies he had chopped and wounded Hadi. He admits a portion of his chopper had gone through the gap of the door but he merely waved the chopper without doing any chopping action. He just wanted to warn the people of the bar and he had no intention to harm anybody. D1 denies he took the chopper to seek revenge. He also denies he hit the glass pane of the door and damaged it.

63.D1 says he returned to the outside of the bar because he heard someone shout “Go out and chase”. He went back to tell the people in the bar not to come out to chase them.  He then returned the chopper to Yuen Kee.

64.D1 says he was so confused that he did not think of calling the police for help.

Final submission

Prosecution

65.Prosecutor says all the prosecution witnesses are honest and reliable. The CCTV record from the Spades Bar is as much reliable as those from the UFO Bar, Sum Tsai Kee and Yuen Kee. They have not been tampered with. The evidence clearly shows D1 was not acting in defence for himself or for his friends. D1 was actually an aggressor seeking revenge. He chopped towards Hadi repeatedly with the clear intent of causing the latter grievous bodily harm. D1 also deliberately damaged the glass pane on the door by hitting it with his chopper.  Prosecutor asks the court to reject D1’s evidence since it is in stark contrast with the CCTV revelation.

66.Prosecutor says D2 was obviously in concerted effort with D1 throughout. The two defendants were in joint enterprise to injure Hadi and to damage the glass pane on the door of the bar.

D1

67.Counsel for D1 comments on the integrity of the witnesses from the bar. Ms Moosdeen suggests Bobby delayed the CCTV downloading in order to achieve undesirable editing and tampering. P9 is not a complete record since it only contains the recording of three cameras out of the eleven in the bar. It is thus unreliable and in any event not conclusive.

68.Ms Moosdeen also accuses Christina, Nishant and Hadi of padding up their evidence to create false accusation against D1 when in fact Hadi was the aggressor.

69.Ms Moosdeen says it is not clear how Hadi was injured. If D1 had really chopped Hadi, the latter would have suffered more serious injuries. She submits Hadi’s injuries were not grievous bodily harm. If D1 should be found guilty of anything on Charge 1, it could only be a conviction of assault occasioning actual bodily harm. However, Ms Moosdeen asks the court to accept D1’s evidence that he used the chopper only to quell the situation and to warn the people of the bar rather than to cause harm to anybody.

70.Ms Moosdeen says D1 was emotional and intoxicated at the material time. He would not have the requisite basic or specific intent for wounding with intent.

71.Ms Moosdeen also says it is not clear how the glass pane of the door was damaged.

72.Ms Moosdeen submits D1 was not in joint enterprise with D2 for wounding or criminal damage. The court ought to acquit D1 of both charges since there is no clear evidence to support either accusation.

73.Ms Moosdeen refers to six cases (HKSAR v Ong Nelson D  CACC 76/2010, HKSAR v Lo Tak Chi CACC 269/99, HKSAR v Favillaran Ludy Visillas HCMA 478/2006, 香港特別行政區訴曾暉文HCMA 33/2011, 香港特別行政區訴馬曉岱HCMA 415/2014, 香港特別行政區訴曾智威HCMA 680/2014). They are all on the construction of ‘grievous bodily harm’.

D2

74.Counsel for D2 Mr. Ching says Hadi was mistaken to say D2’s party picked up bottles from the street and threw the bottles inside the bar. He says the CCTV records cannot show that.

75.Mr. Ching says D2 was not an aggressor. He did nothing to hurt Hadi or damage the glass pane on the door. Mr. Ching points out D2 actually pulled D1 away at 05:13:12 and later signalled all to leave.

76.Mr. Ching submits there is no evidence of joint enterprise between D1 and D2.

77.Mr. Ching refers to the case of Chan Kam Shing FACC 5/2016 on the law of ‘joint enterprise’ and the case of Chung Chi Fai CACC 497/2012 on ‘specific intent’.

Discussion

Prosecution witnesses

78.The prosecution witnesses Christina, Nishant and Hadi give evidence of what happened that morning in line with one another. There are minor discrepancies among them but the differences are surely due to their perception from different positions during the incident, which was dynamic and chaotic. Their evidence is supported by the CCTV record of the Spades Bar (P9).

79.P9 was clearly prepared by Bobby, who was the only person that had the password to access the CCTV machine for downloading. I accept Bobby needed time to prepare P9 and he did not delay or tamper with the downloading.

80.It is reasonable for Bobby to download CCTV record from the two cameras (Camera 1 and Camera 2) outside the bar and from only one camera (Camera 3) inside, which governed the entrance of the bar. It is clear the initial argument and the subsequent altercation took place near the entrance and at the staircase of the bar.

81.Bobby produced P9 to DPC 58933 on 10 November 2017. DPC 58933 handed the USB to DPC 9598, who managed to obtain a statement from Bobby regarding P9 as early as 11 November 2017 (MFI-2).

82.The new investigation officer DPC 10525 took up the case some months later in mid-2018. He made a mistake in reading file information and labored under the wrong belief that it was Christina who produced P9 to the police.  He thus caused Christina to sign incorrectly a statement to that effect (MFI-1). DPC 10525 admits his mistake. At the material time, he was handling several cases.

83.Christina was also careless in signing MFI-1. I accept she did not pay attention to its contents and significance.

84.I find the prosecution witnesses Bobby, Christina, Nishant, Hadi and the three police officers all honest and reliable.

CCTV records

85.I am sure P9 was prepared and produced by Bobby to the police. It is an authentic record of the images captured by Cameras 1, 2 and 3 of the Spades Bar at the material time. The footage in P9 from the Spades Bar is as much admissible as P1, P2 and P3 from the UFO Bar, Sum Tsai Kee and Yuen Kee respectively.

86.All the CCTV records show continuous images with flowing time stamps. There is no interruption or jamming. There is no sign of tampering or irregularity. I accept they are all reliable and accurate visual records of what happened in that early morning inside and outside the Spades Bar.

87.P1, P2, P3 and P9 are all authentic, accurate and reliable records. The relevant excerpts are played in court. Upon request of the court, those excerpts are grouped into one USB (MFI-5) of eleven folders for convenient viewing. [See para 42 above.]

Wounding with intent (Charge 1)

88.I accept the evidence of Christina, Nishant and Hadi, who witnessed what happened at the Spades Bar on 10 November 2017. Their evidence is supported by the CCTV records, in particular those from the Spades Bar (Folders 6, 10 and 11) and the UFO Bar (Folder 7).

89.The CCTV evidence from the Spades Bar clearly shows the two defendants led the two men in black T-shirts to the bar at 05:10. The two men in black T-shirts each had a bottle in their hands. D2 put down his bag on the ground at 05:10:55. Then he drank from his bottle and held the bottle in his hand. It is obvious D2 was preparing himself to fight so he emptied his bottle and put down his bag. He was to use his bottle as a weapon, as much as the two men in black T-shirts were prepared to do so with theirs.

90.D1 was holding something in his left hand. The CCTV record cannot reveal clearly what it was. D1 held that object in his left hand when he rushed into the bar at 05:11:03. He raised the object in his left hand (Folder 10/05:11:04 - 05:11:06). After a brief chaotic altercation, D1 retreated from the bar at 05:11:15. The object in his left hand had already gone.

91.Hadi testifies that D1 had a broken bottle in his hand. D1 waved it and Hadi caught his hand to cause D1 to drop the bottle.

92.I accept Hadi’s evidence. I reject D1’s claim that he was holding a mobile phone in his left hand at that time. He would not hold a phone to rush into the bar in that situation. He also would not have the time to put that object in place during that brief chaotic altercation. I am sure D1 was holding a broken bottle when he appeared outside the bar at 05:10:26. When he rushed into the bar at 05:11:03, he waved it and Hadi caused him to drop the bottle. Therefore, when D1 retreated from the bar at 05:11:15, he was empty-handed.

93.D1 says he entered the bar after Ah Hoi had been dragged into the bar by Hadi. Folders 10 and 11 show that was not the case. Ah Hoi rushed into the bar on his own initiative, followed immediately by D2, D1 and the other man in black T-shirt.

94.I am sure D1 rushed into the bar with the other three at that juncture in order to attack. They were all armed with bottles in their hands.  I am sure the two defendants and the two men in black T-shirts were aggressors. They rushed into the bar as one party. Their main target was Hadi, who posed himself as the defender of the bar.

95.The four were outfought by Hadi, Nishant and a few others inside the bar. They retreated from the bar eventually at 05:11:45. D1 then went to the left at 05:12:07. Yuen Kee was on that side. D1 went there to fetch a chopper. Then he came running back, raising the chopper high (Folder 7/05:12).

96.D1 says he fetched the chopper to save D2 because D2 was in danger. However, Folder 6 reveals that at 05:12:32 the two men in black T-shirts had already got to the side of D2. None of the three was in danger. D1 came running with his chopper raised high. He ran past D2 and the two men in black T-shirts at 05:12::43. He chased after Hadi. Hadi and the others immediately rushed back to the bar at 05:12:44. D1 chased them to the entrance and chopped. At the same time, D2 ran across the road to the bar. D2 kicked ferociously at the door and then swung the left side of the door twice. Inside the bar, Hadi stood near the door. The left side of the door was half open. Between 5:13:01 - 05:13:07, D1 held the left side of the door open and repeatedly chopped towards Hadi. He only stopped when Hadi picked up a stool and raised it.

97.When D1 was chopping, D2 was standing behind D1 and shouting in the direction of the bar. He also raised his left arm towards the bar. D2 only pulled D1 to leave the scene at 05:13:12.

98.It can be seen in Folder 10 that Hadi checked his left thumb at 05:13:18. I accept Hadi’s evidence that he was injured by D1’s chopper when D1 chopped towards him repeatedly.

99.Ms Moosdeen says D1 was emotional and intoxicated at that time. He would not have the requisite basic and specific intent to cause grievous bodily harm to Hadi.

100.I accept D1 was under the influence of alcohol at the material time. However, he knew where to fetch a chopper and after all the chopping he returned it to the right place. He surely knew what he was doing with the chopper all along.

101.It is clear from Hadi’s evidence, Folder 10 and Folder 11 that between 05:13:01 - 05:13:07 D1 chopped fiercely and repeatedly towards Hadi. Hadi was defending on the other side of the door, which was half open. I reject D1’s claim that he only intended to warn the people of the bar not to come out and he did not chop towards Hadi. I am sure D1 was an aggressor. I am sure D1 intended to cause Hadi grievous bodily harm by his fierce chopping towards Hadi out of anger. The chopper cut Hadi’s left thumb and index finger.

102.Hadi thus suffered injuries in his left thumb and index finger. He was treated and discharged on the same day. The doctor gave him only one-day sick leave.

103.Although I accept Hadi’s complaint that he still feels pain in his left thumb now, I have to agree with Ms Moosdeen that the thumb and index finger injuries were not really serious. They were not slight injuries but they did not qualify as ‘grievous bodily harm’.

104.For wounding with intent, the requisite intent must be an intent to cause grievous bodily harm but the resulting injury need not be really serious. A wound would be sufficient. Charge 1 alleges Hadi was wounded as a result of D1’s attacking Hadi with the intent to cause Hadi grievous bodily harm. 

105.I am sure D1 chopped Hadi with the intent to cause the latter grievous bodily harm. D1 did wound Hadi’s left thumb and index finger with his chopper in such attack. Hadi had not suffered more serious injuries in his left hand despite D1’s fierce and repeated chopping.  It was merely Hadi’s luck. I find as I am sure D1 is guilty of Charge 1.

106.Counsel for D2 submits that D2 was not an aggressor and not in joint enterprise with D1.

107.The CCTV evidence clearly shows D2 was already an aggressor and in joint enterprise with D1 and the two men in black T-shirts when they rushed into the bar with bottles in their hands at 05:11 to attack the people inside.

108.Of course, D1 only fetched the chopper from Yuen Kee after he had retreated from the bar. There is no evidence D1 had consulted D2 on the taking of the chopper as a weapon.

109.Mr. Ching submits D2 might not be aware of D1’s returning to the bar with the chopper. He says there is no evidence of D2’s adopting D1’s use of the chopper to attack Hadi or D2’s agreeing to D1’s chopping acts.

110.I cannot agree with Mr. Ching. D1 held the chopper high when he ran down the road in the direction of D2 towards Hadi and the others. D1 passed D2. D2 certainly saw D1’s holding the chopper high and chasing after Hadi and the other people of the bar.

111.Just as D1 chased those people to the entrance of the bar and made chopping action in front of the bar, D2 rushed towards the bar and ferociously kicked at the door at 05:12:47. He then swung the door twice and shouted towards the bar. When D1 repeatedly chopped towards Hadi between 05:13:01 - 05:13:07, D2 was just behind D1 and still shouting towards the bar. He raised his left arm several times in the direction of the bar. D2 only pulled D1 away at 05:13:12 when D1 had already stopped chopping.

112.Although it is said D2 was under the influence of alcohol, the CCTV evidence shows he was all along responsive to what happened around him. In particular, he was quick to rush towards the bar when seeing D1 raise a chopper to chase Hadi to the bar. I am sure D2 was fully aware that D1 intended to use the chopper to hurt Hadi with the intent of causing Hadi grievous bodily harm.

113.D2 had no duty to stop D1. However, the evidence clearly shows D2 was riding on D1’s use of the chopper as a weapon towards Hadi. From the moment he saw D1’s chasing Hadi with the chopper to the time he pulled D1 away, D2 was endorsing and adopting D1’s use of the chopper against Hadi with the obvious intent of causing grievous bodily harm to Hadi. D1 with the chopper became D2’s instrument. D1’s attack on Hadi also became D2’s attack. It was a joint enterprise. D2 himself also kicked the door, swung the left side of the door open, shouted behind D1 and raised his left arm towards the bar, while D1 was attacking Hadi. D2 was not acting on his own; he made himself a joint party with D1 in Charge 1. I find as I am sure D2 is guilty of Charge 1.

Criminal damage (Charge 2)

114.Nishant says D1 hit the glass of the door repeatedly. Hadi heard glass-breaking sound. However, none can say for sure how the glass pane in P5 (photo 3) was damaged.

115.On the other hand, the CCTV record of the Spades Bar (Folder 10) clearly shows it was smashed only at 05:13:36.

116.Folder 11 and Folder 7 reveal Ah Hoi’s friend threw three bottles at the door of the bar at that juncture. By that time, D2 had already walked away. D1 also started to leave. At 05:13:35, D1 turned to Ah Hoi’s friend and made a slight movement with his right hand. It is not clear whether D1 was gesturing Ah Hoi’s friend to leave or to throw bottles at the bar. I cannot be sure D1 is accountable for the damage of the glass pane in that circumstance. I give D1 the benefit of doubt and acquit him of Charge 2.

117.As said, D2 had already walked away from Ah Hoi’s friend for some distance then. There is no evidence D2 endorsed or adopted the use of force by Ah Hoi’s friend in that circumstance. I thus acquit D2 of Charge 2.