HKSAR v. Nukpi Abilkaiyr

Press Summary (English)

Press Summary (Chinese)

DCCC 245/2020

[2021] HKDC 38

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 245 OF 2020

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REASONS FOR VERDICT

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Introduction

1.The defendant, a foreign student from Kazakhstan studying at a local university who has never had any trouble with the law before, was allegedly trying to ignite a petrol bomb in the streets of Kowloon in the small hours on 18 November 2019 and arrested.

2.He denies a charge of attempted arson with intent[1] and is legally represented by Mr Lawrence Lok SC pro bono leading counsel Ms Queenie Ng.  A Russian interpreter has been arranged for the benefit of the defendant throughout the trial.

3.Particulars of Offence

NUKPI Abilkaiyr, on the 18^th day of November 2019, near the junction of Nathan Road and Jordan Road, Yau Ma Tei, Kowloon, in Hong Kong, without lawful excuse, attempted to damage by fire property belonging to himself or another, being reckless as to whether such property would be destroyed or damaged, and being reckless as to whether the life of another would be thereby endangered.

4.The petrol bomb in question consists of a glass bottle partly filled with inflammable liquid (xylene in the present case) and a cloth wick soaked in xylene and fixed securely around the mouth of the bottle.

Issues

5.This is a simple and straightforward case, i.e. a case without any independent corroborative evidence, the only evidence against the defendant (the prosecution called 2 witnesses – acting sergeant 7720 and exhibit officer DPC 10518) involves the testimony of an eyewitness only, that is the acting sergeant 7720.

6.In a nutshell, sergeant testified that he saw the defendant trying to set light to a petrol bomb with a lighter several times but failed, and in the nick of time he was able to subdue the defendant before the next attempt.

7.The defence, however, contended that it did not happen in this way.  It was put to the sergeant during cross-examination that the defendant was with other protesters at the time and the petrol bomb was passed to him by one of them; no sooner had he got hold of it than he was pushed down to the ground and subdued. The sergeant categorically denied having seen anything like this and added that the defendant was all by himself at that point in time, there were no protesters around him or in his vicinity.

8.Exercising his rights as a defendant, the defence called no evidence at trial. Since there is no evidence from the defence; the whole case will then turn on the credibility/reliability of the sergeant, the question to be asked is “Is it safe to rely on sergeant’s account of events as being accurate and genuine?”

9.When dealing with a case like this, effectively a one-on-one situation, the court will as always approach it with caution.

10.Put in another way, in order to found a conviction, the prosecution, whose onus is to prove the case beyond reasonable doubt which is a very high standard, have to satisfy me so that I am sure what the sergeant had described was exactly what happened on the night in question. Anything short of that would mean the defendant’s guilt is not proven to the required standard and the defendant will be acquitted.

A Summary of Sergeant’s Account of the Event

11.A. At around 2:10 a.m. on 18 November 2019, the sergeant (a member of the anti-terrorists unit) and his colleagues were dispersing a crowd of protesters of about 300 in Nathan Road.

B. The crowd kept shouting and yelling and at times threw petrol bombs, bricks and hard objects at them to stall their advancing.

C. When coming near the junction between Jordan Road and Nathan Road at about 2:12 a.m., he saw the defendant in black clad wearing respirator and gloves about 10m in front of him, all alone by himself; the sergeant was not at the forefront, some of his colleagues were in front of him, some behind him.

D. The defendant facing the police had in his right hand a glass bottle the mouth of which was stuffed with a piece of white cloth, he estimated the bottle was half filled with liquid, and had in his left hand a lighter.

E. Sergeant saw sparks flying out from the lighter every time when the defendant was trying to set light to the white cloth but wouldn’t light, this went on for 4 to 5 times (such action lasted for 2 to 3 seconds).  The sergeant said if successful, he would have thought the defendant would throw the bottle at them.

F. It took 5 seconds for the sergeant to run up to the defendant, first thing he did was to reveal his police identity, and then he tried to control the defendant, but a violent struggle between the two ensued.    

G.  Eventually, the defendant was subdued on the ground face down and handcuffed behind his back. When sergeant helped him up, a bottle was lying on the ground right under his chest where the defendant fell.

H. On the ground sergeant picked up 4 items, i.e. the glass bottle, a cap, a respirator and a pair of labour gloves (the last 3 items were worn by the defendant but fell off at the time).

I. Sergeant did a search of the backpack carried by the defendant for 2 to 3 minutes and found two items inside, i.e. a pair of goggles and a head wrap (a piece of black cloth); he then put them back in afterwards.

J. About half an hour later at 2:48 a.m., sergeant declared arrest of the defendant for the offences of unlawful assembly, possession of offensive weapon (referring to the petrol bomb) and wearing mask.

K. At 2:53 a.m., sergeant passed the defendant and his backpack together with those exhibits described above on to the exhibit officer, DPC 10518, before moving off to deal with the situation ahead. Insofar as the lighter sergeant said the defendant held in his left hand is concerned, it has not been recovered (Indeed no attempt was made to search for it at scene but not to confuse with the lighter allegedly discovered by the exhibit officer in the defendant’s backpack later in the police station).  

Analysis

12.When it comes to analyse the evidence, I ask myself the question “whether sergeant’s testimony and his behaviour at scene as a whole was broadly consistent with other known facts?”

The first known fact

13.The first known fact comes to mind is that sergeant arrested the defendant for the offence of possession of offensive weapon rather than attempted arson. Generally speaking, possession refers to those situations where the person has yet put the weapon (the petrol bomb in the instant case) into any specific use – he just had it with him at the time (simple possession). Here the defendant, according to the sergeant, went much further than possession- he was in the act of lighting the petrol bomb - only at one remove from arson – that would constitute attempted arson.

14.It was submitted by the defence that the fact that sergeant arrested the defendant for offences other than “attempted arson” showed that even sergeant himself did not regard the defendant having done anything tantamount to attempted arson.

15.The fact that the defendant was arrested for possession at least in theory gives rise to two possible scenarios; one refers to the situation where the person simply had it with him, or another like the sergeant’s version – he had done something further with it. Faced with two different factual situations, the court will go through a process of analysis of the evidence before it comes to any conclusion.

16.It may be argued that the police are not lawyers, more leeway should be allowed if the officer fails to get the charge right at the time when they declare arrest of someone for an offence. It often happens the accused is subsequently charged with an offence quite different to the one for which he was initially arrested.

17.At first glance, this may sound reasonable but when combining it with the second known fact and viewed collectively, it may lead to a different conclusion.

The second known fact

18.The other known fact is that no attempt was ever made by anyone, in particular the sergeant, to look for the lighter allegedly held by the defendant at the scene. 

19.Counsel for the defendant, Mr Lok SC, submitted that as regard the defendant’s purported acts of igniting the lighter 4-5 times, which is the only basis to justify the defendant’s commission of the attempted arson, there is absolutely no reason why the sergeant simply did not care about the lighter at all at the scene. The sergeant did nothing to locate the purported lighter, nor had he requested any of his colleagues to look for it. It was further submitted that the sergeant’s allegation of the defendant’s attempt to ignite the glass bottle is clearly a blatant lie. 

20.Obviously, the key points in sergeant’s narrative involved a petrol bomb and a lighter. Sergeant should have known what exhibits, i.e., the lighter and the petrol bomb, to look for in support of his allegations so as to prevent them from being reduced to bare assertions. The more relevant exhibits recovered, the stronger would be the case against the defendant.  

21.In the circumstances, it is only natural for sergeant to do a search for the lighter in the immediate surrounding, not to say a thorough one but at least a quick one. While on the other hand, judging from the evidence before the court, sergeant did not seem to be in a hurry to leave the spot so as to get on with some pressing matters.

22.He said having dealt with the defendant, he then moved on to assist other colleagues in dispersing the crowd; here he was talking about a period of time - no less than 41 minutes - with the defendant (for he first encountered the defendant at around 02:12 and by the time he passed the backpack to exhibit officer before moving on, it was 02:53).  

23.During this time, sergeant testified to spending 2 to 3 minutes searching the backpack of the defendant and finding two more items, namely, a pair of goggles and a head wrap. Now that he had taken the trouble to search the backpack, why didn’t he look for the lighter at scene?

24.On cross-examination, sergeant acknowledged that nowhere in his first statement did he mention that he had looked for the lighter at scene. Even in his second statement which was meant to supplement further details, all that he said in relation to this matter is “no discovery of the lighter” – nothing suggests that a search was conducted at the scene for the lighter. 

25.It remains a major concern for the court since sergeant had stayed at the scene for quite some time (41 minutes), if what he said about  “seeing the defendant trying to light the petrol bomb with a lighter” was true, how come no attempts were made to locate an important piece of evidence, the lighter, in the immediate surrounding area where the struggling occurred.

26.Up to this stage, it has been shown that the sergeant’s behaviour at scene was not broadly consistent with what he said had happened. If the defendant was trying to light the petrol bomb several times with a lighter, he should have been arrested for attempted arson and the sergeant should have searched the scene for the lighter, but instead the contrary had happened. The defendant was arrested for possession of offensive weapon and no attempt to search for the lighter, does this lend support to the case put by the defence? 

27.Before discussing the case put by the defence, however, I’d like to deal with one other aspect of sergeant’s testimony the truthfulness of which the defence strongly challenged.

Additional Details

28.A last-minute addition – sparks were seen flying out from the lighter when the defendant attempted to light the petrol bomb - was made in the supplementary statement (second statement) prepared by the sergeant on 3 November 2020 (almost one year after the event and just 2 days before the trial) at the request of the Department of Justice (DOJ) after his first statement and notebook (made on the day of the event) having been reviewed by DOJ.  

29.The key additions are as follows (matters not referred to in his earlier statements -the first statement and notebook):

(1)- The seeing of sparks flying out 4 to 5 times from the lighter when the defendant tried to light the petrol bomb;

(2)- No recovery of the lighter at scene.

30.Assuming for a moment there was no such a review by DOJ, sergeant would in the circumstances be expected to testify in accordance with his earlier statements, the main theme of his narrative would then become something like this - “he saw the defendant trying to ignite a petrol bomb with the lighter”, that would be the end of it- no description of sparks seen or anything like that would be expected.

31.In fact, we know how he described it for he was asked under cross-examination to read out the relevant part in his first statement:

「.....我見AP右手手持一個玻璃樽，而樽口用白布塞住內有液體思疑汽油彈，左手企圖用打火機點着白布，用汽油彈向我方投擲....」

“I saw AP holding a glass bottle in his right hand, and white cloth was stuffed at the mouth of the bottle which I suspect to be a petrol bomb, attempted to use the lighter to ignite the white cloth, use the petrol bomb to throw towards us.”

32.In relation to the part concerning sparks seen, sergeant was asked under cross-examination why he failed to make any reference to it in his first statement or in his notebook if it was a fact, sergeant explained that what he had recorded was to him sufficient (meaning enough for us to picture what the defendant was doing at the time), and it did not occur to him he needed to write it down until he was told by DOJ to give further details.

33.Counsel for the defendant, Mr Lok SC, submitted that this was a total fabrication because it was an important piece of evidence and not complicated at all that no reasonable person would have omitted it in the contemporaneous records (i.e. the notebook and the first witness statement) and thus called into question the credibility of sergeant.

34.The prosecuting counsel, Miss Tsoi, argued that there was no inconsistency between what was recorded in the first and second statements. If I understand her correctly, what she was saying is that the additional details relating to the sparks did not substantially change the nature or the main theme of the recorded version in the first statement and that sergeant thought it sufficient was not an unreasonable explanation.

35.First of all, the issue here does not appear to turn on one’s memory because sergeant seemed to suggest that he remembered it all along, it was his decision not to write down the further details because what was recorded initially was to him sufficient for the purposes of the case.

36.To consider this alone, it may be a matter of different opinion (not much one could criticize the sergeant’s explanation), but in the grand scheme of things, though not a clear contradiction, no reliance should be placed on the sergeant on this point.

37.Bearing in mind the inconsistent behaviour of the sergeant at scene with what he said had happened; against this background, his explanation of “sufficiency” does not seem to be convincing at all.   

The Case Put by The Defence

38.I must emphasize from the outset that what was put to the police witness in the instant case has not been established as evidence of the case mainly because it had not been agreed to by the witness concerned nor had the defence called any evidence in support of it - it remains only the case theory of the defence.  Unless and until it is supported by evidence, the court cannot act on it but it does provide the court with an alternative perspective to consider the prosecution case.

39.It is worth mentioning that at no time did the defence imply that the defendant had had a lighter on him during the incident. Assuming that was what happened (just like the case put by the defence), it would make perfect sense for sergeant simply to arrest the defendant for possession of offensive weapon (the petrol bomb) because he was merely holding it; and as there was no lighter in his hand, that explained why sergeant did not bother to search for it at scene. The case put by defence tallied with what sergeant did.

40.In view of the foregoing analysis, the court is of the view that it is not safe to rely on the sergeant’s testimony. In other words, the court is not sure whether the event really happened in the way as described by sergeant. That being the case, the court is left with a doubt, a reasonable one, with the sergeant’s version of events. As the sergeant’s evidence being the central matter of the prosecution case, it rises or falls with it.

41.As there is one outstanding matter, though not directly relevant to the facts in issue (it does go to the credit of the witnesses concerned), the evidence of which was adduced before the court, and for the sake of completeness I am inclined to deal with.

42.It is the alleged discovery of an orange lighter in the defendant’s backpack by the exhibit officer (DPC 10518) later in the police station.

The Finding of an Orange Lighter

43.First of all, one thing I like to make clear is that it was never put forward as part of the prosecution case by Miss Tsoi, the prosecuting counsel, that the orange lighter was the one sergeant said the defendant was using to ignite the petrol bomb. While, on the other hand, the defence disputed its provenance.

44.Accordingly, the orange lighter is not directly relevant to the real issue of the case but is a fact that may go to the credit of the police witnesses concerned.

45.Before looking at the evidence of the exhibit officer, it is worth revisiting what the sergeant said (or did not say) on this aspect, basically he made no reference to the discovery of an orange lighter despite his searching the defendant’s backpack for 2 to 3 minutes (What he found were a pair of goggles and a head wrap (a piece of black cloth)). 

46.Now turning to the exhibit officer, he testified in court that at 02:53 hours the sergeant handed over to him the defendant together with his backpack and some exhibits for custody and later back in the police station, he found the orange lighter from the backpack for the first time at 04:00 hours and seized it as exhibit. When asked by the court where exactly in the backpack he found it, he said it was lying at the bottom of the big compartment.

47.On the face of it, there doesn’t seem to be any significant inconsistency between the testimony of the sergeant and the exhibit officer; however, what the exhibit officer said in his witness statement is quite different from his evidence on the stand.  What he described in his witness statement was that when sergeant handed over the defendant and the exhibits to him at scene, the exhibits included A to J items with J being the orange lighter, so it wasn’t the case that it was found back in the police station.

48.Now the question to be asked is whether it is worthy of belief that the orange lighter originated from the defendant’s backpack?

49.If the lighter was in the backpack, I find it difficult to believe that sergeant could have missed it when he spent 2 to 3 minutes going through the backpack. I have seen the backpack in court, it was of simple design; it was not like the lighter was kept in one of the small pockets inside the backpack or anything.

50.Bearing in mind sergeant seemed not to be in a hurry to leave because of the urgency of the situation at that time, he was with the defendant for 41 minutes before handing him over to the exhibit officer, he had had plenty of time to do a thorough search of the backpack if a couple of minutes were not enough. Could the contrary be true (no lighter ever in the backpack)? Judging from the evidence of the sergeant, it was possible.    

51.Now consider the evidence of the exhibit officer, he told the court that he found the lighter back in the police station at 4 a.m., giving us the impression that this was the first time he discovered the lighter. But what he described in his witness statement was quite a different version –

It was written like this in Chinese:

「及後於同日02:53時ASGT 7720將AP及下述證物交予本人看管。

a….

…

…

j. 一個橙色打火機」

“Later at 02:53 hours the same day ASGT handed over the defendant and the following exhibits to me for custody.

a…

…..

…..

j. an orange lighter.”

52.There are A to J items of exhibit handed over to him by sergeant, the exhibit officer named every one of them from A to J with J being the orange lighter, which would mean the exhibit officer knew what exhibits passed to him including the orange lighter. 

53.It was stated in no uncertain terms in the statement what exhibits were handed over to him by the sergeant. His explanation was that what he meant was some of them were handed over by sergeant and some seized by him. I don’t think this was borne out by the clear wording he used in his statement.

54.He either found the lighter back in the police station for the first time at 04:00 hours or it was to his knowledge handed over to him by sergeant at 02:53 hours at scene - both statements cannot be true at the same time, which strikes me that the exhibit officer is less than honest.  

55.In fact, what the exhibit officer said in his witness statement suggested that both of them knew about the existence of the lighter at scene, that might cast doubt on the testimony of the sergeant for he made no mention of the lighter when he passed those exhibits to the exhibit officer. Could this be the reason why the exhibit officer gave a version on the witness stand different to the one as recorded in his witness statement?

56.Given the evidence as it is, the court is unsure of who to believe and what to make of the orange lighter; consequently, the court cannot accept that the orange lighter was found in the defendant’s backpack.

Conclusion

57.For the reasons given above, the prosecution failed to prove the case against the defendant to the required standard, i.e. beyond all reasonable doubt; that being the case, the defendant is therefore acquitted.