HKSAR v. Leung Wai Kit Jeff

DCCC 640/2019

[2020] HKDC 843

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 640 OF 2019

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Reasons for Verdict

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1.The defendant pleaded not guilty to three charges he faces, two charges of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212, and one charge of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the same Ordinance.

2.The victims, three members of the same family, were attacked by a gang of men in the early hours of 17 June 2018, not long after they left a late cinema showing in Kwai Fong.  The prosecution’s case is that there had been a previous incident in the cinema involving the defendant and the victims which led to this gang attack; one of the attackers was the defendant.

3.The issue is whether the defendant was one of the attackers and whether the identification of the defendant by one of the victims is safe and reliable.  Identification is the issue here.

The Prosecution’s Case

4.PW1 was the victim of Charge 1 and the father of PW2 and PW3.  PW2 was the victim of Charge 2 and was 16 years old at the time of the attack.  PW3, the victim of Charge 3, was 18 years old.  All had decided to go to a midnight showing of a movie in Broadway Circuit Cinema in Metro Plaza, Kwai Fong on 16 June 2018.  The movie was scheduled to start at 11.50 pm.  They bought tickets and sat on the last row at the back of the cinema.

5.The prosecution say the defendant, a female named Lai and a young girl bought tickets for the same movie and also sat on the last row at the back of the cinema.  There was an empty seat between the defendant and PW2.  Basically, the defendant, Lai and the child sat to the left of PW1, PW2 and PW3 with an empty seat in between the two groups.

6.The prosecution says the motive for the attack after the movie on the victims arose from a petty incident in the cinema. After the movie had started, the defendant was continuously playing with or using his mobile phone which distracted the victims to his right.  This was spoiling their enjoyment of the movie and PW1 asked the defendant to turn his phone off.

7.Without speaking, the defendant did turn his phone off but glared in a hostile manner at PW1 and his sons.  He glared in such a manner that PW1 decided it was best if he swapped seats with his son, PW2, so that he was seated closest to the defendant; just in case.

8.About 25 to 30 minutes before the end of the movie, the defendant left the auditorium.  A few minutes later, he was followed by the two females.  The prosecution says that between 1.24 am and 1.33 am he was in the lobby of the cinema just outside that auditorium using his mobile phone.  They then returned to the auditorium at 1.33 am, sat in the front row and not in their original seats.  Some of their movements in the cinema lobby was captured on CCTV.

9.The prosecution has mobile phone records of the phone they say was used by the defendant in the lobby and seized from him at his subsequent arrest.  They say that the records show he made 20 phone calls between 1.24 am and 2.17 am and received eight phone calls during the same time.  The prosecution says that during that time he must have made phone calls to other people to meet him outside the cinema and attack the victims with him.

10.After the movie ended, the three victims left the cinema and walked along Hing Fong Road to go home.  They walked past a bus stop outside the Metro Plaza and saw Lai and the young child with an unknown man waiting at that bus stop.  They walked past that bus stop and at the next road crossing they saw to their right, in a layby, a silver car.  They saw the man in the cinema with Lai and the young child stood alone by that silver car. They say it was that man who had been playing with his phone during the movie, the defendant.  All three victims saw and recognised him.

11.None of the victims approached or said anything to the defendant but crossed the road and carried on walking.  When they got to a traffic island further ahead and were waiting to cross the road, suddenly they heard a man shout, “Are you fucking with my brother?”  They turned to see a group of between five to seven men, including the defendant, the man in the cinema, rushing at them brandishing weapons, namely long black torches.  PW1 was clearly the target and ultimately the most injured.

12.All three victims were attacked but PW3, the youngest son, was able to run away even though he had been hit on the head with a long black heavy torch.  He ran away from the attackers and called the police on his mobile phone.  He then went back to his brother and father to find that the attackers had fled the scene and his father was unconscious on the road. His older brother was bleeding from a head wound.

13.They were all taken to hospital where PW1 received treatment for serious wounds and was admitted.  PW2’s head wound was stitched.  PW3 was hit on his head and wrist but the blows did not break skin.

14.The defendant was arrested on 26 June 2018 at 7.11 am in the home of Lai.  Lai was at home as well and also arrested.  An identification parade was conducted on 3 September 2018 with the defendant in the line-up.  PW1 and PW2 were unable to identify anyone but PW3 positively identified the defendant as the man next to them in the cinema playing on his mobile.  He was also the same man who stood by a silver car and one of the men who attacked them on their way home.

15.The prosecution relies on the positive identification of the defendant by PW3 as well as circumstantial evidence putting the defendant in the same cinema with the victims when he then spent a considerable amount of time on his mobile before the end of the movie.  The prosecution say he was calling for the attackers to meet him to attack the victims after they left the cinema.

The Defence Case

16.The defence do not challenge the fact that the three victims were set upon by a gang of people brandishing weapons nor do they challenge the fact that PW1 and PW2 were seriously wounded.

17.What is challenged is the positive identification by PW3 of the defendant.  The issue is whether the defendant was one of the attackers.  The defence cast doubt on the evidence of the victims, especially the identification of the defendant at a subsequent parade.

18.The defence do not admit that the defendant was the man in the cinema playing with his mobile phone during the movie. Alternatively, even if he was, he was not the same man seen beside a silver car or involved in the attack.

19.The defence do not agree that the circumstantial evidence relied upon by the prosecution points to the man in the cinema being the defendant.  The defence do not agree that the phone records produced for that mobile number means it was the defendant making or receiving phone calls in the cinema lobby.

Evidence of the Prosecution Witnesses

20.PW1 is a 47-year-old man who took his two sons to a midnight showing of a movie.  The three of them sat on the back row and to their left was a male, female and young child.  Half an hour into the movie the male to their left, who was closest to them of the three, was sat one seat apart from this witness’s eldest son.  They could see that he was on his phone and it affected them enjoying the movie.  His phone screen was very bright and distracting.  All three noticed it.

21.After some time, PW1 politely asked the man to turn off his phone.  He did not use abusive language.  He did turn his phone off but turned around to stare at them or rather glared at them in an unfriendly manner.  Nothing else was said.  Not long after this, PW1 swapped seats with this eldest son so he could be sat closest to the man in case he took his phone out again.  He did not want this man to spoil his sons’ enjoyment of the movie.

22.In any event, the outing was spoilt because this man turned often to stare and glare at them.  He described the man as about 30 years old, wearing a dark top and black rimmed glasses with short hair and of medium build.

23.About 25 minutes before the end of the movie, that man got up and left the cinema.  He walked back into the lobby of the cinema.  About five minutes later, the female and child followed him.  PW1 noticed them come back a short while later and all sit on the first row.  They did not return to their original seats.  He noticed that they left again before the movie finished which was about 1.50 am.

24.PW1 and his sons stood up after all the credits rolled, leaving the cinema and building through a side entrance to Hing Fong Road.  The exit they used can be seen in photograph album P8 photographs 1 and 2.  They walked in front of the main entrance to Metro Plaza where there was a bus stop.  This bus stop can be seen in P8 photographs 2 and 3.  At that bus stop, PW1 saw the female and the child from the cinema with a different man, not the man they were with in the cinema.

25.They carried on walking and reached Hing Ning Road which ran between Metro Plaza and Kwai Chung Plaza.  There was an HSBC branch on the corner of Metro Plaza.  This road, road crossing and HSBC branch can be seen in P8 photograph 4.  PW1 went to cross the road but looked at his right before he crossed and saw in a layby not far from him, to his right, a silver car.  Next to the silver car was the man from the cinema.  That layby and position of the silver car can be seen in P8 photographs 4 and 5.  Where the white vehicle is seen in photograph 5 was where PW1 says the silver car was parked that night.  There was no other car in front of it at that time.  There was no other vehicles between the three victims and that silver car.

26.He stopped to ensure no cars were coming and saw this man clearly.  They ignored him and crossed the road to go home.  At the next crossing outside Kwai Chung Plaza they were stood on a traffic island waiting to cross when PW1 suddenly heard a shout of, “Are you fucking with my brother?” causing him to turn to look.  That traffic island can be seen in P8 photograph 6.  He later said he thought that this accusation was directed at him and he was accused of scolding one of their people.

27.He saw the man from the cinema as well as the man who was at the bus stop with the female and child earlier with three to four more men rushing towards them.  He saw one man carrying a knife and the rest brandishing long black torches.  The torches were about 18 inches long. They targeted PW1 and kept hitting his head and body with those torches.  He eventually fell over as he retreated and was continuously hit and kicked.  He passed out and woke up in an ambulance being treated for serious injuries to his head and face.  Photographs were taken of him in the ambulance and in the hospital; they can be seen in P7 photographs 19 to 23.

28.He did attend an identification parade sometime later but could not identify anyone from that evening in the line-up.  He said their faces were covered and their bodies were covered with a blanket and heads with a shower cap.  All he could see were eyes and he could not identify anyone.

29.It was suggested in cross-examination that the man did not continuously turn to glare angrily at PW1 and his sons in the cinema, he was mistaken.  PW1 disagreed.  It was suggested he did not tell the police in his statement that the man glared or stared angrily, he just said that the man looked at them.  He was asked in cross-examination about details in his statement taken on 19 June when he was in hospital.  PW1 agreed and explained that he was still in great pain when that first statement was taken.

30.It was suggested to him that when he stood at the corner outside HSBC branch and looked right, the layby was quite some distance away and the area was dark.  There was insufficient light to see clearly.  Therefore, how could he be sure it was the same man he saw in the cinema?  PW1 did not agree he could not see the man clearly.  He was sure it was the same man because there were streetlights there and before the attack he had good vision.  He saw him for between 5 to 10 seconds before he crossed the road.

31.He was shown a photograph in P4 photograph 24, from a CCTV camera where it was suggested that in that layby there was no streetlight.  He did not agree.  In fact, in P8 photograph 4, there is clearly a lamppost in that layby above where he says the silver car was parked by itself as well as illumination by HSBC signs and other buildings signs and lampposts.

32.He was shown CCTV footage during his evidence which captured the bus stop outside Metro Plaza main entrance.  It was suggested to him that the three people seen in the CCTV were those three in the cinema, there was no other unknown man with the female and child.  PW1 disagreed and in any event said he could not identify those people in the CCTV because only their lower bodies could be seen.  It was suggested that if the man in the CCTV was the man from the cinema with the female and child, he could not have been by any silver car.  PW1 disagreed.  He disagreed that there was no second man with the female and child at the bus stop; he described a fat man in a striped top with them.  His evidence was that when he went past the bus stop, an unknown second man was with that female and child, not the man from the cinema.

33.He agrees he was shown that same CCTV by the police in a second witness statement but the police showed him 1.57 am whereas in court he was shown 1.55 am.  It was played again and he agreed that he did tell the police that in the CCTV he can see the man who was from the cinema and who assaulted them with the female and child, he was in white shoes.  But by the time he himself arrived at the bus stop having left the cinema, that man was no longer there.  There was another man with that female and child.  In cross-examination, he clarified that from the CCTV at 1:57:17 am he could see the man from the cinema with the female and child but he himself was not present at that time.

34.It was suggested to PW1 that he may have seen a man by a car but he did not stop before crossing and look at him for 5 to 10 seconds.  PW1 did not agree.  He told the police that he did ignore that man when he saw him by the car.  By that he meant he did not approach him, argue, have words or any conversation with him.  They saw him, noted him and walked on.

35.He was cross-examined at length about the attack.  It was suggested that he was suddenly attacked by five to six men without warning which would have made it very difficult for him to look at them whilst being hit on the head and warding off blows with his arms.  He did not agree, he said he saw them when they ran towards him and were looking at them as they attacked him and he retreated backwards.  He disagreed that he mistook a knife for a torch and that no man was carrying a knife.  He agreed that he was not struck by the knife but the man brandishing the knife kicked him.  He saw that one or two men were attacking his sons.

36.Both PW1’s sons gave evidence and PW2 was the youngest being 16 at the time of the attack.  He described the incident in the cinema with his father asking the man to their left to turn off his mobile phone.  The phone was bright enough to prevent them enjoying the movie.  He describes that man putting his phone away but he did stare at his father with hostility.  He described his father and elder brother swapping seats so that his father was then closest to that man.  He too noticed that man leave about 25 minutes before the end of the movie with the female and child following him out a few minutes later.  They themselves left after watching all the credits.

37.He said they walked home and when they reached the road between Metro Plaza and Kwai Fong Plaza, he saw the man from the cinema stood near the front of a silver car to their right.  They ignored him and kept walking.  He recognised him from his clothes and glasses.  He too said the silver car was parked where the white vehicle was parked in P8 photograph 5.  He looked at the man for 5 to 8 seconds as they crossed the road.

38.When they walked to the traffic safety island as seen in P8 photograph 6, a group of people suddenly rushed towards them.  He described one of the attackers as wearing a dark upper garment and black rimmed glasses with black short hair.  He himself was attacked by a fat man with goldish colour hair.  He was hit by a long black torch over the head.  He was hit a few times but was unable to fight back and his head was bleeding.  He saw his elder brother successfully run away but his father being surrounded and attacked by many people.  He felt dizzy after the blows to his head.  He required stitches in his head after he was sent to hospital.

39.In cross-examination he was shown Exhibit P4 photograph 26 and disagreed that at the material time it was very dark.  It was suggested to him that from where they stood to cross the road was too far a distance to the layby for him to see the man and his glasses clearly.  He disagreed and explained he recognised the particular frame of the glasses and the colour of the frame.  He described the man as wearing dark clothing, top and bottom.

40.It was suggested to him that in his first witness statement he did tell the police that the man was wearing dark trousers.  He agreed but also said that the statement was taken at 5.55 am on 17 June, just hours after the attack and he was still terrified and injured at the time of that statement.

41.PW3 was 18 at the time of this attack and his evidence about his father asking the man to their left to turn off his phone about 30 minutes into the movie was similar to PW1 and PW2’s evidence.  He said after the man turned his phone off, there was eye contact between that man and his father which he witnessed.  He said he looked a bit hostile at the time. In cross-examination, he physically demonstrated what that man did and that was to bend right forward in his seat and turn his head to the right towards the witnesses in what I would describe as an exaggerated and hostile manner.  PW3 disagreed the look was unfriendly as opposed to hostile.

42.Then his father changed seats with him so that his father was then sat nearest the man.  He noticed the man leave the cinema about 25 minutes before the end of the movie with the female and child following him soon after.

43.PW3 had seen the man who sat next to him enter the cinema and come to the same row of seats.  He saw him after he sat down a couple of minutes before the movie started.  At that time PW3 was closest to this man with one spare seat between them.  He said whilst the man was playing with his phone he looked at him several times.  He said from the light of the man’s mobile phone and the cinema screen, he could see his face clearly.

44.He said they left the cinema and went to walk home.  His evidence was that when they were outside the HSBC branch he could see near the car park exit of Metro Plaza to their right the same man from the cinema next to a silver car.  He recognised him and was sure it was the same man from the cinema.

45.He said that when they reached the traffic island, suddenly a group attacked them from behind.  He said there was light from the footbridge above, lights were on under the bridge above the traffic island.  He could clearly see what happened.  He heard someone shout in foul language, “Are you fucking with my brother?” before the attack.  He saw five to six people coming and recognised one of them as the man in the cinema playing with his mobile phone.  He saw him clearly, recognised him from his face, body shape and his clothing.  It was the same man from the cinema and the same man who had stood by the silver car.

46.He said he saw people holding 18-inch-long black torches.  He was hit on his head and left forearm.  He ran away immediately and when he was safely away, he called the police.  He did not see what happened to his father and his younger brother.  After calling the police, he returned to his family and the attackers were gone by then.  His father was unconscious on the road and his younger brother was still on the traffic island.  He himself suffered bruising to his head and arm.

47.PW3 attended an identification parade on 3 September 2018.  He observed nine people in a line-up.  All were sitting down with shower caps on their heads, tape covering their mouths and blankets draped over their shoulders down to the ground.  None of them were wearing glasses.  All he could see were eyes and that is how he recognised and identified the man sat at number 6 as the man from the cinema, as the man stood by the silver car and as one of the attackers.  That is by the silhouette of his face and his eyes.

48.In open court he identified the defendant in the dock as the man he identified at the identification parade.  That is despite the defendant in the dock wearing a face mask.

49.In cross-examination, his description of the man in the cinema that he gave the police in his first witness statement was repeated to him to confirm.  He made that statement within a couple of hours of the attack on 17 June 2018.  He was asked if he was physically and mentally okay at that time and he replied not mentally but gave a statement anyway.  He described the man in the cinema as about 30 years old, 1.8 metres tall, medium build with short black hair and wearing dark coloured short-sleeved upper garment and trousers.

50.He was also asked about how he could see that a man standing by a silver car in the layby was the man he saw in the cinema when it was dark there.  He did not agree that it was as dark as depicted by P4 photograph 26.  He disagreed that it was dark in that area.

51.He agreed that he did not tell the police he heard someone shout foul language before the attack.  He said at the time of the first statement he was still very scared and forgot to give this detail. He said he did tell the police during a later statement, nearly a year later, but does not know why it was not recorded down in that statement.  The purpose of taking that later statement was to show him some CCTV footage.  He also did not notice that the police officer had not written down his description of one of the attackers, who he later identified as the defendant, wearing glasses.

52.He was cross-examined at length about the details of the attack.  He said he had more than several seconds to see the attackers.  He was only attacked by one man.  He is sure that when he saw the men rush at them, he saw the defendant in front, the same man who was in the cinema and by the silver car.  He recognised his dark clothes, black glasses, height and hairstyle but now he was holding a torch.

53.In cross-examination, he was shown the video footage of his identification parade, specifically how he took about 3 minutes to choose number 6 which was where the defendant was sat.  He was asked to explain why it took him so long.  It was suggested he was not sure that the man he identified at number 6 was the man he saw that night.  He only chose number 6 because he looked more likely to be that man as opposed to being sure it was that man.  He disagreed.

54.During cross-examination about his identification of the defendant, he said it took time because he was thinking of the incidents of 16 and 17 June whilst looking at all the men in the line-up.  He wanted to be sure when he recognised them and that he uttered the right number which was placed in front of each person.  PW3 was a witness who, despite his age, gave evidence in a calm manner.  He thought about every answer before he gave it.

55.It was suggested to him that he told the first police officer who arrived at the scene of the attack that that man had been sitting in the silver car but in his statement several hours later he had said the man was standing by the car.  He had no recollection of telling the officer this at the scene; he was frightened at the time.

56.It was suggested to him that the man in the cinema was not one of the attackers and the man by the silver car was not the same man as the man in the cinema.  He disagreed with these suggestions.

57.PW4 was the first officer to arrive at the scene and attend to the three victims of the attack.  He agreed PW3 spoke to him and said that when passing Metro Plaza car park he saw one of the attackers sat inside a silver car.  He also said a female and girl was next to the car.  In re-examination he agreed that he did make a record of this in his notebook but it was not a witness statement, nor did PW3 confirm then or at any stage this record that he had made.

The Arrest

58.PW5 was one of several officers who went to Room 202 Wing Tai House, Fu Loi Estate where Miss Lai Siu-mon lives.  They arrived at 7.10 am and Lai’s father opened the door.  The defendant and Lai came out of their bedroom into the living room in pyjamas.  This officer arrested the defendant for wounding and seized from him various items.  Those included P12 to P14 which were the clothes and bag the police say he was wearing and holding at the cinema that night.  P11 was a pair of black thick rimmed glasses he seized from the bedside table and P31 to 33 was an iPhone the defendant was carrying in his hand when he came out of the bedroom.

59.PW5 disagreed with the suggestion that the defendant was not holding that phone and that it was in fact on a bedside table.  He was sure he was holding it and he took it from his hand.  There were very few exhibits in this arrest and search so he had no doubt.

60.PW6 was the exhibits officer during the arrest and was handed the defendant’s iPhone and other items.  Back at the police station he ascertained the defendant’s mobile number by calling his own office phone with it.  The caller display showed that the defendant’s phone number was 66946436.  It is an admitted fact that the registered name of that phone number is Miss Lai Siu-mon, the female arrested with the defendant.  A call record for that phone is Exhibit P5.

Cinema Staff and Ticket Sale Record

61.PW7 worked at the Broadway Cinema in Metro Plaza and was the staff member who sold tickets to a female who handed her a cinema membership card in the name of Lai Siu-mon.  She identified herself from CCTV screenshots, from P4 photographs 4 and 5.  In photograph 4 she is serving a woman with long black hair in a black garment with a young girl in a light purple garment.  In photograph 5 a man has joined the two females with a dark coloured shirt with a white trim and dark thick rimmed glasses.  She does not actually recall that sale or transaction or those people.

62.PW7 would record transactions and ticket sales in a computer terminal.  That would include a membership number if any.  A member would give her a membership card to enter its details.  She would scan the card.  A customer would then select seats using the monitor in the counter before paying with cash or credit card.  Tickets are then printed out.

63.She was shown a transaction record relating to a member called Lai Siu-mon with a membership number 189159, Exhibit P37.  This is a document generated by the cinema’s computer system which records when a member with a member ID number uses the membership card to buy tickets from Broadway Cinemas.  It includes the transaction date and time, member ID and name as well as the location of the cinema.  It will record the amount paid and either membership points used or points earned.  There was no challenge to this document’s admissibility during her evidence.

64.A Broadway Cinema membership card, P2, with the number 189159 and in the name of Lai Siu-mon was seized in Lai’s house when she and the defendant were arrested.  A photograph of it is Exhibit P2A.  This is an admitted fact in P1.

65.The CCTV photograph 4 and 5 of P4 shows the woman and child at PW7’s counter at 23:46:57 buying tickets according to that camera timer and the man with the two females in the same position at 23:48:08. P37 records the membership card of Lai Siu-mon being used at Kwai Fong Broadway Cinema on 16 June 2018 at 2350 pm.

Circumstantial Evidence

66.The defendant does not admit being in the cinema that night.  The prosecution say he is seen on CCTV buying tickets with Lai and a child and later talking on his phone for quite some time in the lobby before the movie ended.

67.The prosecution relies on P37 recording the fact Lai bought tickets at 2350 using a membership card, CCTV footage of her with a young girl in purple and a man with thick dark rimmed glasses buying tickets and then entering the same cinema as the victims at 23:50:53 as seen in photograph 7 of P4.  The victims identified themselves in that same cinema sitting in the back row.

68.The defendant is arrested with Lai 10 days later at Lai’s home.  The police have a screenshot of a man and a woman they say are the defendant and Lai entering Lai’s building on 17 June 2018 at 5.04 am (photograph 23 of P4).  That is several hours after the attack on the victims. In that photograph the defendant is wearing a dark shirt and holding a telephone to his ear in his left hand.  Lai is wearing a dark dress with a distinctive white stripe which matches the white stripe seen on a dress of the woman outside in the cinema lobby at 1:30:54 am earlier that morning.  She is close to a man with thick rimmed glasses and a shirt with a distinctive white trim around the collar.  A young child in light purple is seen squatting or sitting on the ground nearby.

69.The prosecution say this is Lai, the young girl and the defendant who had bought tickets for the midnight show and sat on the same row as the three victims.  The man seen in photograph 5 of P4 at the ticket counter is the same man pacing in the cinema lobby for about 10 minutes from 1.24 am.  He can be identified as the same man by his clothes, glasses and the fact that the same woman and child seen earlier in photograph 5 buying tickets with him are also in the lobby as well.  The three of them are in the lobby well before the movie finished, which was about 1.50 am.  In fact, in photograph 21 of P4 the three victims and other cinemagoers can be seen standing to leave the cinema at 1:56:05 am.

70.The victims’ evidence was that about half an hour before the movie ended the man sat next to them who had glared and stared in an unfriendly manner left the cinema alone.  A few minutes later the two females followed him out into the lobby.  In P4, from photographs 8 to 19, all screenshots from the CCTV of the lobby, the same man is seen walking around talking on the phone from 1:24:50.  It appears he re-enters house 3 at 1:33:10 am. The female and child appear at 1:29:10 and re-enter with him at the same time.

71.The prosecution says that that man in the screenshots is the defendant and he can be identified by his black or dark thick rimmed glasses and shirt with white trim.  The distinctive white trim on the collar can be seen in photographs 9, 10 and 16.  The thick dark rimmed glasses can be seen in photographs 9, 16 and 17.  The police seized a black polo shirt with that same white trim and a pair of black thick rimmed glasses from the defendant’s bedroom he shared with Lai, Exhibits 12 and 11 respectively.

72.During the course of the trial the defendant sat in the dock wearing a mask and light thin framed glasses and I had a chance to observe him.  Looking at photograph 5 of P4, I am sure that it is the defendant next to the woman and child.

73.It is noticeable in the cinema lobby screenshots in P4 that that man holds his mobile phone in his left hand (photograph 9 and 17) as he is in photograph 23 when a man enters the building of Lai’s home hours later.

74.The prosecution relies on the phone records, P5, for the phone number 66946436, that is the phone seized from the defendant’s hand when arrested.  On the material night, 16 June 2018, the last call received by that number before the movie started was 22:05.  There are no phone calls until after midnight, that is 17 June at 1:24:35.  That phone call is to 54042781.  The prosecution says that it is the defendant talking on 66946436 for 98 seconds and was by then in the cinema lobby as seen from photograph 8 where the time recorded is 1:24:50.

75.Between 1:24:35 and 2:50:53 am, there are 30 calls either from or to that phone number.  10 were from or to 54042781; 6 were from or to 66399900.  There were 5 other mobile phone numbers calling or receiving calls from 66946436 in that period of time.  Numerous calls were made from each number.

76.It was PW1’s evidence that when they left the cinema they saw that same female and child with a man, a different man, not the defendant.  They then saw the defendant alone by a silver car and then not long after with the group of attackers.  It would appear therefore that the defendant left that female Lai and child after they left the cinema.  Lai’s mobile with the number 66841698 was also seized by the police during their arrest and its call record is Exhibit P3.  At 2:02:30 am, the defendant’s phone calls Lai’s phone for a duration of one second.  It is unlikely he would call her if they were still together.

77.From the defendant’s phone records, P5, there are three calls with 98183513 before the three victims were attacked and similarly three calls with 54222008.  Those two mobiles also called or received calls from Lai’s mobile phone according to her phone records, P3.  Those calls were made between 1:27:23 and 2:03:36 am.  This shows the same people that were communicating with the defendant were also communicating with Lai after the incident in the cinema and around the time of the attack on the three victims.

The Admitted Facts

78.There were two sets of admitted facts, P1 and P40.  In P1, it was admitted that the victims were in House 3 of the Kwai Fong Metro Plaza Broadway Circuit Cinema.  The CCTV footage from the cinema was agreed as were the set of still screenshots taken from the CCTV footage.

79.It was agreed that Miss Lai was arrested at the same time as the defendant in the same premises.  It was agreed that she was a Broadway membership cardholder with a card number 189159.  The two mobile phones seized in this case were both registered in her name.  The phone records exhibited as P3 and P5 were admitted.  All photographs taken and exhibited in several albums were admitted.  The medical reports of all three victims were also admitted.

80.The arrest and seizure of items were admitted. The identification parade book was exhibited as P20 and the identification parade itself was not in dispute.  The second set of admitted facts dealt with all the exhibits seized in Lai’s home with the defendant seen in photograph album P9 were also admitted.

My Findings

81.I have considered the evidence from the prosecution witnesses.  I have considered the submissions by both parties.  The defendant elected, as is his right, not to give evidence nor call any witnesses.  The failure of a defendant to give evidence is no evidence of his or her guilt, it proves nothing one way or the other.  The consequences of doing so is to leave the prosecution case enjoying the advantage of not being undermined, contradicted or explained by any testimony from the defendant. These three charges do stand or fall together.  The prosecution has the duty to prove the elements of each charge beyond reasonable doubt.  The defendant has nothing to prove.

82.The prosecution relies on the direct evidence of the positive identification of the defendant by PW3 in an identification parade and subsequently during a dock identification.  It also relies on the circumstantial evidence to support that positive identification; to support the fact it was the defendant who took offence of an innocuous remark in the cinema and called people to exact a violent revenge.

83.The defence have attacked that positive identification as unreliable and unsafe.  It is submitted that the identification of the defendant comes from seeing him in dark places, in dark streets and fleetingly.  It would be dangerous to rely on the evidence from all of the victims who say that the man playing on the phone in the cinema next to them was next seen by a silver car when they were walking home as well as being one of the attackers who appeared very soon after that.

84.Mr Khosa for the defendant submits this is a case that depends wholly on one witness identifying the defendant as an attacker.  The quality of that identification is in dispute and the Turnbull guidelines apply here.  The victims did not know the man in the cinema, they were strangers.  The defence points out that the incident happened in a cinema where it was dark save for the screen.  The next sighting of the defendant was at some distance away by a silver car in dark surroundings.  The observation of the same man as one of the attackers must have been impeded when it was a surprise attack by many which happened very quickly.

85.This being a case where identification is the substantive issue, it is appropriate that a Turnbull warning be given. I refer to the authority R v Turnbull and Others [1977] QB 224, in particular pages 228 to 229.  And I quote:

“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police?...

All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.”

86.Mr Khosa makes much of the fact PW3 took 3 minutes to identify the defendant in the line-up during the parade.  I have taken into account that the defendant and actors were all sat down on chairs with a blanket draped over their shoulders down to the ground.  All were wearing shower caps and all had tape covering their mouths because the defendant had a moustache and goatee beard.  All that could be seen were their eyes and the shapes of their faces.

87.Mr Khosa says that because PW3 observed the line-up for several minutes, he was obviously having difficulty in identifying a man.  He describes him as obviously being unable to make up his mind and the time taken was unusually long for recognition.  The more time a witness takes means more uncertainty in his mind.  He suggests that it took him so long because his mind was confused as to who to identify.

88.I do not agree that because he took so long it meant he was uncertain and unable to make up his mind.  He did take his time to recount the events of that night and study each man in the line-up carefully. He only had eyes and an outline of their faces to study.  He was being very cautious and took his time to ensure he was not mistaken.  Having observed him give evidence in the witness-box, he was a young man who took time to consider and think about his answers before giving them.  He was the same during this identification parade.

89.I agree that PW3 had not seen the defendant before that night in the cinema and then mainly saw him side on whilst in the cinema, then at a distance by a silver car and then fleetingly during a very sudden and violent attack where PW3 ran away almost as soon as the attackers started beating them.  These are the dangers Mr Khosa highlights to demonstrate an unsafe identification.

90.To avoid any risk of injustice in this case, I did warn myself of the special need for caution before convicting the defendant in reliance of the identification parade.  I reminded myself that an honest witness can be a mistaken witness.  A witness who is convinced and sure in his own mind may as a result be a convincing witness but may still nevertheless be mistaken.  I did closely examine the circumstances in which the identification came to be made.

91.I am satisfied that the quality of the identification was good and safe; a reliable identification of a previously unknown person.  PW3 had had sufficient time, light from the big screen and opportunity to observe the man in the cinema who took offence to being told to turn his phone off and behaved in a hostile manner before leaving during the movie.  Such behaviour would naturally warrant a closer observation of the defendant by all the victims.  That would explain why PW3 was able to recognise the same man as he walked home first by a silver car and then as one of the attackers.  It was not a fleeting glance but he had significant opportunities to see and then recognise him.

92.This positive identification of the defendant by PW3 is supported by the circumstantial evidence highlighted by the prosecution.  It assists me to be sure that there is no mistake in that identification.  In addition, PW1 and PW2 may not have identified him in a parade but they recognised the man in the cinema later standing by the car and as one of the attackers.  This supports PW3’s evidence.

93.I am sure it is the defendant in the CCTV footage with Lai Siu-mon and a child.  He is the man buying a ticket before the movie with Lai who uses her cinema membership card and then later paces in the lobby using a phone.  Lai and the child even join him in the cinema lobby before the end of the movie.  This shows it is the same man.  The defendant is arrested with Lai in Lai’s home holding a mobile registered in Lai’s name. That mobile phone record shows at least 20 phone calls made from 1.24 am to about the time of the attack at 2 am.

94.I am sure those phone calls related to the attack.  Mr Khosa says there is no evidence that these calls were related to the attack nor would there be such a need to make calls immediately before and immediately after the attack.  Why would this phone be in constant use before or after?

95.All three victims heard one attacker shout, “Are you fucking with my brother?”  What had the three done?  In the cinema, just prior to the attack, PW1 asked the defendant to turn off his phone.  He obviously took issue with this request as he then stared at them with hostility.  PW3 even demonstrates the exaggerated movement of the defendant leaning forward to stare over at them with hostility.  It is therefore very natural that they all paid attention to him and could recognise him when they saw him outside again.

96.I am sure the reference to “my brother” was a reference to the defendant feeling insulted or slighted in the cinema.  I am sure he was able to make calls to others to meet him at or near the cinema in order to attack the victims on their way out and home.  Those many phone calls started about half an hour before the attack.

97.I have considered the credibility of all the three victims.  I do not intend to repeat their evidence or submissions in detail, but the fact I do not refer to any part of it does not mean I did not take it all into consideration in reaching my findings.  The defence have submitted parts of their evidence are weak, unreliable and affects their identification evidence.

98.I did find all their evidence consistent and supportive of each other.  There was no indication that there was collusion or fabrication.  There were no omissions, discrepancies or contradictions so serious that I doubt their credibility.  I found them all credible witnesses.

99.It is true that they did all describe the man in the cinema who they say was the same man beside a silver car as wearing dark trousers but the CCTV screenshots show the man in the cinema and the man who entered Lai’s building early that morning was wearing light coloured trousers. But this is not a discrepancy I find so serious when all of them were able to identify his dark shirt and dark thick rimmed glasses.

100.Much was made of the poor lighting in the cinema and outside by the silver car.  Cinema screens are enormous and emit very bright light, so even when it is the only source of light one can clearly see other people sitting around you and certainly those sitting one seat away from you.

101.As for the layby of Hing Ning Road, the CCTV screenshots of photographs 25 and 26 of P4 may not be bright but the witnesses said they could see it clearly even from the crossing.  They could see a silver car and they could see the same man in the cinema there.  There were lights from the HSBC branch just in front of the layby as well as a street lamppost directly above the layby.  Therefore, I am sure all three were telling the truth when they said they were able to recognise the same man from the cinema by the silver car.

102.It was suggested in submissions that they said they did not pay attention to him and therefore their identification or recognition of him must be questionable but in fact the translation meant they ignored him rather than they did not see him or pay attention to him.  PW1 clearly explains that they saw him, recognised him but ignored him.  They carried on walking across the road on their way home.  They said nothing to him nor had any argument.  I am sure that is the truth.

103.I agree with the prosecution that the direct identification evidence and the circumstantial evidence together points to the defendant as the only person with a motive for whistleblowing after he felt insulted or slighted in the cinema by PW1.  He is captured on CCTV before the movie ended and incriminated by phone records, records of a phone he was found to be holding when arrested.  I am sure he was arranging for men to come to meet him and attack the victims.

104.The defendant’s arrest connects Lai to the defendant even though Lai was not charged ultimately.  They were both arrested in Lai’s house and the defendant’s phone was registered in Lai’s name.  The cinema record shows that Lai’s membership card was used to buy tickets in that same cinema at 11.50 pm.

105.I am sure the circumstantial evidence considered together puts the defendant and Lai in the cinema with the three victims watching the same movie.  The CCTV footage of the cinema lobby supports the victim’s evidence that the defendant left his seat about half an hour before the movie ended.  It also supports their evidence that the female and child followed him out a few minutes later.  What he is seen doing on the CCTV footage on his phone is supported by the telephone records, P5.  I am satisfied that it was his phone and it was seized by the arresting officer out of his hand when he was arrested.

106.I will say here that even if there was no evidence of the cinema CCTV footage and phone records, any of that other evidence, I would have found there was enough evidence to prove the charges beyond reasonable doubt solely on the basis of the positive identification evidence of PW3 from the identification parade.  He was the best witness.

107.I find the defendant’s ego must have been bruised and hurt by an older man, PW1, telling him to turn his phone off during the movie.  I am sure he arranged for people to meet him outside the cinema by phone before the movie ended.  I am sure he coordinated the attack on the three victims at the traffic island at the junction of Kwai Foo Road and Hing Fong Road.

108.I am sure they were attacked with long torches and suffered injury.  I am sure PW1 and PW2 did suffer grievous bodily harm. Their medical reports support this element of the offence.  I am sure PW3 was also assaulted but luckily not as seriously injured because he was able to run away and then call the police.

109.I find the prosecution has proved beyond reasonable doubt that the defendant with other persons unknown unlawfully and maliciously wounded PW1 and PW2 with intent to do them grievous bodily harm as well as assaulted PW3 occasioning him actual bodily harm.

110.Accordingly, the defendant is convicted of Charges 1, 2 and 3.