HKSAR v. Ng Cheuk Yiu

DCCC 1044/2020

[2021] HKDC 1318

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1044 OF 2020

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REASONS FOR VERDICT

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1.D3 is jointly charged with 6 others for unlawfully and maliciously wounded Lam Hung Cheung with intent to do him grievous bodily harm on 16 May 2020.  He is the only one who pleaded not guilty but is willing to plead guilty to assault occasioning actually bodily harm or common assault.  Prosecution does not accept his lesser plea.

2.The undisputed facts are adduced by way of admitted facts.  Exhibit P8 is the admitted facts admitted pursuant to section 65C of the Criminal Procedure Ordinance as follows.

3.On 6 May 2020, a 15 year old Chinese male who was at the time a student (hereinafter referred to as “the victim”)  was inside an amusement game centre at Golden Era Plaza, Mongkok (hereinafter referred to as “AGC”)  with his friends for entertainment.  At about 9:44 pm when the victim with his friends were changing gaming tokens, he was grabbed from behind by several defendants and was punched and kicked by all of them.  The victim later fell on the floor.  D7 took a fire extinguisher to hit the victim who then lost consciousness.  Shortly thereafter, D1-D7 left the game centre.  P1 is a collection of footages from 5 CCTV cameras which captured the entire course of attack from the time the defendants entering and leaving the game centre.

4.As a result of the attack, the victim sustained bilateral temporal and parietal scalp haematoma, abrasion on right upper limb and multiple face abrasion.  CT scan showed splenic laceration with shattered spleen with active bleedings.  Clinical diagnosis was trauma.  Upon referral to ICU, the victim had to undergo emergency operation to remove the spleen on 17 May 2020.  Haematoma was also found on his left kidney.  A number of operations had to be performed.  He was later discharged on 8 June 2020.  He suffered from temporary loss of memory after the assault until late August 2020.  He requires long term medication and regular follow-up treatments.  Exhibit P2 and P3 are the medical reports which provided details of the victim’s injuries and condition resulted from the attack.  P4 is a photo album containing 9 photographs showing the extent of the injuries sustained by the victim.

5.The CCTV of a herbal tea store at Temple Street, Mongkok captured that on 16 May 2020 between 22:51:12 to 23:28:31 hours, D1-D7 attended the same for gathering.  Their face and attire captured by the CCTV corresponded with those they were wearing when they attacked the victim.

6.D3 and 5 other defendants were located by the police on 28 May 2020.  After cautioned by DPC 15110, D3 replied words to the effect that D7 asked him to do so and he merely kicked the victim’s lower body for 3 times (“龍蝦叫我上去，我踢咗佢下身3腳咋”).  He was duly arrested for the offence of wounding with intent.  The verbal admission was post recorded in the notebook of the arresting officer which is P5.

7.In the subsequent cautioned video recorded interview (VRI), D3 confirmed that no addition nor amendment were required to be made to his admission as recorded in P5.  He also confirmed at the material time, he was wearing black colour top and long jeans, and a pair of whited shoes.  During the VRI, he was shown and identified himself and the victim in the CCTV captured stills, exhibits P6 (1)-(9).  The disc which contained the VRI is produced and marked P7, P7(a)  is the transcript and P7(b)  is the certified English translation of the transcript.

8.D3 has a clear record.

9.Prosecution closed his case without calling any live evidence.

Defence case

10.D3 elected to give evidence but called no defence witness.

11.The gist of D3’s evidence is that there were 8 of them and they had just finished playing video games and left the AGC.  At downstairs when they were discussing what to do next, D5 saw the victim taking the escalator up to the AGC and told them he held grudge against the victim.  D7 then suggested going after the victim.  He followed suit when seeing the rest of his group followed D7 going back to the AGC.  Amongst the group, he was only familiar with D1 whilst the others were just friends playing video games together.  He did not know the victim and he did not hear from others what was the grudge D5 held against the victim.  He had no idea what was going to happen when the victim was located.  He was the second last one in the group to enter the AGC.  As he was entering the AGC, he saw his group had already started assaulting the victim.  He became panic, not knowing what to do for it was the first time he ever involved in such a situation and not something he agreed to take part of or expected.  Nor did he anticipate weapon would be used in the assault.  He and the 8^th person (who was not a defendant in this case)  stayed close to the glass door i.e. the entrance without joining in the group assault.  However, he did kick the victim once, as can be seen in the Cam 1 footage at 21:44:19 hour for he did not want his friends not to play with him in future.  Up to 22:44:41 hour in the footage, he wasn’t seen again when the rest of the group continued assaulting the victim.  The reason why he did not leave during the attack on the victim because the attack happened so fast and ended so quickly.  He told the police he kicked the victim 3 times because it was the very first time he was arrested by the police and he remembered wrongly.

12.Under cross examination, he agrees the victim was wholly defenceless whilst being assaulted by at least 4-5 of his friends when he kicked the victim.  He agrees he kicked the victim without being asked to do so by anyone.  He agrees no one prevented him from leaving.  He also agrees he moved back and forth towards the victim when the attack was on-going.  His explanation is he wanted to get closer to see how the victim was as he was afraid the matter would get worse.  He disagrees by doing so was an encouragement to his friends and his remaining there was an endorsement of his group’s act.

13.Under re-examination, he confirms after he was arrested, he was not shown the CCTV footages to refresh his memory.  He told the police he kicked the victim 3 times was based on his memory.  Having viewed the CCTV footages, he could say for sure he only kicked the victim once.

14.To sum up D3’s evidence, he only admits he took part in the initial attack on the victim when fists and kicks were used, but he had no further involvement in the escalated attack when a yellow plastic signboard and a fire extinguisher were used by others as a weapon to assault the victim.

15.As defence counsel Mr Khosa puts it, D3’s case is that there was an initial joint enterprise which did not involve the use of weapons and D3 was only party to this joint enterprise.  Mr Khosa submits there were in fact 2 joint enterprises, the first one was the attack involving fisting and kicking, the second one was the escalated attack when a yellow plastic signboard and a fire extinguisher were used as weapon to cause grievous bodily harm to the victim.  There was no oral agreement regarding the terms of the joint enterprise.  D3’s role and extent of his involvement in the joint enterprise have to be inferred from his actions captured by the CCTV and from his evidence in court.  Mr Khosa refers to Archbold 2021 paragraph 17-12 on participation, and paragraph 17-13 on encouragement.  He also refers to the following authorities: (i)  HKSAR v Chan Kam Shing, FACC 5/2006; (ii)  HKSAR v Lam Siu Fung & another, CACC 326/2012, and (iii)  HKSAR v Lee Kwan Kong & Others, CACC 198/2004.  He further submits D3 did not participate in the attack after he kicked the victim once, so D3 cannot be party to the escalated attack that followed.  He quoted paragraphs 8-10 of the Court of Final Appeal’s judgement in HKSAR v Chan Kam Shing which is the leading case on joint enterprise. As to whether D3 party to the second joint enterprise by his presence at the scene through encouragement or otherwise as a secondary party, Mr Khosa refers to paragraph 10 of the judgement in Chan Kam Shing’s case where it is very clearly stated that to be an accessory, the person must provide “active” assistance or encouragement.  He submits D3 did not do either, certainly none of D3’s action can be interpreted as active assistance or encouragement.  D3 stood passively aside, therefore he neither assisted nor encouraged the others. Mr Khosa further submits that the nature of the attack had changed by the time weapons were introduced into the attack by D7 and the prosecution needs to present evidence that D3 agreed to be party to this new joint enterprise.  He submits there is no such evidence.

Prosecution’s contention

16.Mr Lee for the prosecution submits the evidence given by D3 is unbelievable and should not be accepted.  He contends that:-

(a)  If what D3’s self serving statement is true, there was no joint enterprise in the first place.

(b)  If a joint enterprise did exist, was D3 a member of the joint enterprise? What was the agreement or common purpose of the joint enterprise? If the common purpose of the joint enterprise was to attack the victim, when did D3 withdraw from the joint enterprise? Mr Lee submits the actions depicted by the CCTV footages speak louder than words. It could be seen from the CCTV footages, the assailants including D3 followed the victim back into the AGC and D7 being their leader was actually running into the AGC, the victim was pulled away from his company and assaulted right after. The footages depicted all the defendants took part in the attack on the victim, they retreated from the scene together when people inside the AGC intervened, and later all gathered at a herbal tea shop. After the incident, 6 of them were together when they were arrested by the police 12 days later. Mr Lee submits these facts support all the defendants were acting as a group, and they did nothing else but to attack the victim when they returned to the AGC. Mr Lee also points out from the footages one can see all defendants including D3 attacked the victim without any need to communicate amongst themselves on the spot. As soon as the victim was grabbed, they immediately had the victim surrounded and assaulted him without making any utterance. Based on these facts, the only reasonable inference one can draw is that all the defendants before going after the victim had an agreement with a common plan to assault the victim.

(c)  Mr Lee also refers to 2 authorities, (i)  HKSAR and Maeda Hisato, [2017] 3 HKLRD 605, (ii)  HKSAR v Lam Siu Fung and another, CACC 326/2012.

17.I have carefully considered both parties’ final submissions and all the evidence before the court. I bear in mind the burden of proof is on the prosecution and the standard of proof has to be beyond all reasonable doubt.  I also reminded myself of the Berrada directions for D3 has a clear record.

18.The case against D3 rests on the admitted facts and in particular the footages from the CCTV at the scene which captured the attack on the victim.  It is not in dispute that D3 was not only present at the scene, admittedly he did kick the victim.

19.Exhibit P1 contains 5 footages from 5 CCTV cameras at the scene.

(a)  The 4^th footage on the list (Cam 4)  is from the camera installed outside the entrance to the AGC and it draws the curtain as to how the attack on the victim took place. It depicts at 21:44:04 the victim and his 2 companion entering the AGC. At 21:44:11, a male in white tee shirt (D7)  was running into the AGC followed by 7 males in file. At 21:44:49-58, it depicts the assailants leaving the AGC.

(b)  The 3^rd footage on the list (Cam 3)  is from a camera installed inside the AGC facing the entrance captured the moments of the said 2 groups entering the AGC and the assailants leaving. It is not in dispute that D3 was the second last one entering the AGC. He was wearing a black tee shirt with white and red pattern at the front of the tee shirt, black pants, white colour runners and blue colour face mask. The frame at 21:44:20-22 depict D3 in action, by his body language, he was kicking at something in front of him.

(c)  The 1^st, 2^nd and 5^th footage (Cam 1, 2 and 5)  are from 3 other CCTV cameras located at different locations inside the AGC all captured the group attack on the victim. In the 1^st footage (Cam 1), the frame at 21:44:18 depicts D3 moving forward whilst the victim was being fisted and kicked by 6 co-defendants. The frame at 21:44:19 depicts D3 raising his left leg to kick the victim.

20.Having viewed the footages repeatedly myself, what defence counsel recapped about the contents of the footages is basically correct saves I have the following observation:-

(a)  In the 1^st footage (Cam 1), one can see at 21:44:15 2 defendants pulling the victim away from the cashier counter area and assaulted the victim almost immediately. Then 2 more defendants joined in. The frame at 21:44:17 depicts 4 defendants were fisting the victim. As the assault continued, at 21:44:18, 3 more defendants including D3 joined in. D3 was the one closest to the right side of the frame. The frame at 21:44:19 depicts very clearly all 7 defendants were attacking the victim and D3 raised his left leg to kick the victim.

(b)  In the 2^nd footage (Cam 2)  at 21:44:20-21, whilst the assailants were assaulting the victim, I can see the 8^th person in the attacking group who according to defence counsel did not assault the victim also took part but I am unable to see what he actually did. I believe the entire group did take part in the assault on the victim.

(c)  In the 3^rd footage (Cam 3), at 21:44:20-21, I can see D3 moving forward after he kicked the victim once. The moving forward action, in my view, suggests D3 did not stop after he kicked the victim once but continued his attack on the victim.

(d)  According to paragraphs 9-11 of the admitted facts (P8), the police located D3 together with 5 other defendants on 28 May 2020. Upon caution, D3 admitted to the police as recorded by DPC 15110 the arresting officer in his police notebook (P5)  that “ Lung Ha (lobster)  asked me to go up. I kicked his lower body 3 times.” D3 repeated in the subsequent video recorded interview at counter 74: “Having walked back up there, (I)  violently kicked him three times.” When D3 was giving evidence, he withdrew his admission to the police and changed to say he only kicked the victim once. His explanation is it was his first time ever he was arrested and he remembered wrongly when he told the police he kicked the victim 3 times. He further explained in re-examination that he was not shown the CCTV footages or got anything to refresh his memory before he made such admission, after he had a chance to view the CCTV footages, he then realised he only kicked the victim once.

21.After careful consideration, I do not find D3’s explanation credible for the following reasons.  According to his evidence, it was the very first time he encountered such a situation, ie witnessing a violent assault.  If so, he must have a deep impression of the details, in particular, of what he himself did to the victim. He was located and arrested only 12 days after the assault and that was not a long lapse of time, his memory should still be fresh.  If he had only kicked the victim once, he would not have remembered wrongly and made such a big mistake to tell the police more than once he kicked the victim 3 times.  Although I do not consider such discrepancy to be the most important aspect of D3’s case, it is relevant when it comes to consider his overall credibility.

22.D3 claims when the victim was taking the elevator up to the AGC, D5 said he held a grudge against the victim and then D7 suggested going after the victim.  By that assertion, D3 must have heard what was said.  He saw the others were going back to the AGC, he just followed suit without knowing what was going to happen when the victim was located nor did he contemplate what would happen to the victim for there was no discussion between them.  I find such assertion incredible.  To say the least, he must have expected his group was going to create trouble with the victim.  As he entered the AGC, his group was already assaulting the victim.  He claims it was not within his expectation nor did he expect weapon would be used to attack the victim.  He gave the victim a kick for he did not know what to do and he did not want his friends not to play with him anymore.  Such an assertion contradicts what he confessed to the police.  He told the police that D7 asked him to do so and he kicked the victim 3 times.

23.After viewing the footages repeatedly, based on the facts as depicted, I agree with Mr Lee entirely.  I am satisfied beyond all reasonable doubt that all the defendants including D3 acted in concert and they went after the victim with a common intent to assault him.

24.Defence counsel submits in paragraph 7(a)  of his final submission, the victim was spotted by chance and none of the defendants had expected to see PW1 there.  They had just finished playing video games at the AGC and were at the street level contemplating what to do next.  There was no planning or any discussion amongst the defendants as what should be done about D5’s dispute with the victim before going after the victim.  There was no contemplation that any fight will take place.  Even if a fight were to take place, the contemplation could only be a fist fight.  Defence counsel emphasises none of the defendants possessed any weapon, so there could have been no contemplation that weapons were going to be used even if a fight broke out.  Furthermore, this negates the possibility that there was a pre-meditated intention to cause serious injury to the victim.  As was the case, the only weapons used were the yellow plastic signboard and the fire extinguisher which were later picked up by D7 unexpectedly from the floor of the AGC.  None of the other defendants could have contemplated beforehand that the yellow plastic signboard or the fire extinguisher would be used in the attack.  By the time D7 decided to use weapons, D3 had finished his part in the attack and did not further take part in the attack.  He had stepped aside, and by his conduct, very clearly demonstrated his intention to discontinue or withdraw from participating in the attack any further.  If he had wanted to continue being a party to the attack, there was nothing to stop him from joining the 5 defendants and adding a few kicks to the victim.  Defence counsel refers to the case of HKSAR v Lam Sui Fung & another, CACC 326/2012 in which a similar situation arose, and a series of questions that the trial judge handed to the jury to assist their deliberation.  Defence counsel submits these are also relevant in deciding the extent of participation of D3 in the attack, in particular points 4 and 5.

Point 4	That while participating in the attack upon Poon Ka Yan the defendant either himself intended to cause really serious injury to Poon Ka Yan or was aware that there was a real risk that one or more other members of the group would intentionally cause Poon Ka Yan really serious injury.
Point 5	That the defendant was aware of the possibility that a member of the group might use a weapon of the sort which caused the fatal injury to Poon Ka Yan.

Defence counsel submits the above are relevant and very important in considering the charge against D3. But every case depends on its own facts, and the case against every defendant depends on the acts committed by the defendant in question. The evidence for and against each defendant must be considered separately.

25.The main issue in D3’s case as Defence counsel submits in paragraph 32: “This joint enterprise relates to a physical attack.  The duration of the joint enterprise commenced when the victim was first grabbed near the cashier counter of the AGC and ended with the last blow or kick before the defendants left the AGC.  It is D3’s case that there were in fact 2 joint enterprises, the first one was the attack involving fists and kicks only and the second one was the escalated attack which commenced when the yellow plastic signboard was first used to attack the victim.  D7 had unilaterally changed the nature of the joint enterprise such that the attack that followed was a new enterprise.”  Alternatively, D3 had withdrawn from the joint enterprise when weapons were used.

26.In paragraph 41, defence counsel concluded “The most reliable evidence in this case comes from the CCTV footages which clearly show that apart from kicking the victim once when the victim was still standing, D3 played no other part in the attack.  The CCTV alone can prove that D3 was not party to the escalated attack, D3’s evidence only make his case stronger.  The evidence is clearly in favour of D3’s case.  The prosecution has not presented any evidence which contradicts the CCTV evidence or casts doubt on the evidence of D3.  D3 bears no burden to prove his innocence.  The prosecution bears the sole burden to prove D3 was party to the escalated attack.”

27.In support of the argument that D3 had withdrawn from the joint enterprise when weapons were used, Defence counsel refers to the case of HKSAR and Lee Kwan Kong and another, CACC 198/2004.  In that case, D1-D3 were jointly charged in the 1^st count of murder and they were all convicted for murder after trial.  D2’s defence was run on the basis that her guilt extended only to assaulting the deceased thereby occasioning him actual bodily harm.  Her offer to plead to this as an alternative to murder was also rejected by the prosecution.  This is similar to D3 in the present case.  He was willing to plead to a lesser offence either of assault occasioning actual bodily harm or common assault, but was rejected by the prosecution.  The facts in Lee Kwan Kong’s case is quite different from the present case but the central issue in both cases is similar, that is, the defendant’s possible withdrawal from the joint enterprise.  Her main ground of appeal was the directions to the jury did not go far enough and specific directions required were omitted in the trial judge’s summing up. D2’s appeal was allowed, her conviction and sentence for murder were quashed, and substituted a conviction for assault occasioning actual bodily harm despite the prosecution argued that there should be a re-trial for murder.  The legal principals on ‘Withdrawal’ from a joint enterprise and the reasons for allowing the appeal appear at paragraphs 72-75, 87, 88 and 90 in the judgment.  It is stated in paragraph 72: ‘Withdrawal’ from a joint enterprise is concisely dealt with in Blackstone’s Criminal Practice [2006] at paragraph A5.8 wherein it is stated: “There is often an interval between the act of the accessory and the completion of the offence by the principal offender.  In some circumstances, a change of heart by the accessory coupled with steps to withdraw from participation in the offence can remove his responsibility for the completed offence (although he may remain liable for any completed offence of incitement or conspiracy).  Precisely what is required for an effective withdrawal will vary from case to case.  It may depend on how imminent the completed offence is at the time of the attempted withdrawal by the accomplice and also on the nature of assistance and encouragement already given by the accessory.

28.Prosecution in his supplemental submissions accepted withdrawal from joint enterprise is possible under certain circumstances.  He refers to an English Court of Appeal case R v O’Flaherty and others [2004] 2 Cr App R 315 which was quoted in HKSAR and Lee Kwan Kong, Mantell LJ stated “….a strict view of what will in fact constitute withdrawal can properly be taken, the preclusion of withdrawal in any circumstances cannot in our view be correct either in principle or as a matter of policy. A person who unequivocally withdraws from the joint enterprise before the moment of the actual commission of the crime by the principal, here murder, should not be liable for that crime, although his acts before withdrawing may render him liable for other offences….” Mantell LJ further stated that “….we have noted that for there to be withdrawal, mere repentance does not suffice. To disengage from an incident a person must do enough to demonstrate that he or she is withdrawing from the joint enterprise…”, and “this is ultimately a question of fact and degree for the jury.”

29.As to what could amount to or constitute “unequivocal withdrawal”, in O’Flaherty’s case, it was stated: “…what amounts to “unequivocal withdrawal” may depend on the facts of each case. Where a violent incident arises spontaneously, it may not be ‘practicable and reasonable’ in the mayhem and immediacy of the moment for a person to communicate to the others involved with him in the joint criminal cause that he is disassociating himself from that cause.  A clear demonstration of disassociation may therefore be constituted by actions of a different kind.”

30.Prosecution submits given the relatively short duration (about 40 seconds)  of joint attack against the victim, this case could be categorised as one of spontaneous violence as contrast to those of pre-planned or premeditated violence, hence “the issue here is not whether there had been communication of withdrawal but whether the original joint venture was still continuing at the time of the principal’s act.” Prosecution then proceeded to analyse the evidence based on what one could see on the CCTV footages.  Prosecution accepts after D3 physically kicked the victim in concert with others shortly following his entry to the AGC, he had not landed further blows or kicks on the victim, nor did he take part in using items found on the floor to further injure the victim like some other defendants did.  The question is did his act at this point of time constituted an act of withdrawal from the joint enterprise?  Besides, did the use of items found on the floor as weapon by other defendants constituted any unauthorised acts which had gone beyond the scope of the original venture?  Prosecution then proceeded to analyse D3’s evidence and submits that the joint criminal enterprise still in existence by the time when items found on the floor were used to attack the victim, and the acts of using those items as weapons in the attack is not beyond the scope of the original enterprise.  Prosecution further submits D3 had tacitly agreed to use those items as weapons by others against the victim and D3 had shown no more than repentance which does not suffice to constitute any withdrawal from joint enterprise as he had not done enough to demonstrate that he is withdrawing from it.

31.Prosecution further submits that one could view from the CCTV footages that the majority in the group of young men kept attacking the victim after items found on the floor were used as weapons.  Apparently, the original common design in attacking the victim was still in existence and kept going by then at the material time and it would be clear that acts of escalation met with approval from the group members.

32.After careful consideration of all the evidence and legal arguments advanced by prosecution and defence, and based on the following undisputed facts I accept defence counsel’s submission:-

(a)  It was a coincidence that D5 caught sight of the victim in the street when the victim and his friends were going up to the AGC. D5 then told the co-defendants that he has previous grudge against the victim. As can be seen on the footages, the defendants went after the victim in no time apparently to take revenge for D5. Although I do not accept D3’s evidence that there was no discussion amongst the group before going after the victim and he himself did not know what was going to happen after the victim was located, I have to accept that there was nothing to suggest that they were going to inflict grievous bodily harm to the victim. The fact remains they did not arm themselves before going after the victim. However, by the fact that the co-defendants wasted no time and started to assault the victim after pulling him away from his company, and the rest of the group including D3 joined in the attack suggests that they all had a common desire and intention to attack the victim. I have no doubt whatsoever that D3 was party to this joint enterprise.

(b)  Prosecution cited R v Anderson and Morris [1966] 1 QB 110 and submits that “joint enterprise” in criminal laws means two or more persons embark on a joint criminal enterprise, each is liable for the acts done in pursuance of that joint enterprise, including liability for unusual consequences arising from the execution of the agreed joint enterprise. However, if a participant in the venture goes beyond what was tacitly agreed as part of the common enterprise, the other participants are not liable for the consequences of that unauthorised act.

(c)  In the present case, based on what is depicted in the CCTV footages, it started off with a group attack consisted of 7 or even 8 assailants on one single victim by fisting and kicking. There was absolutely no need for the assailants to resort to using weapons on the victim who was totally defenceless. One can see the footage of Cam 1 at 21:44:23 after the victim was cornered at the wall and the group assault was continuing, one defendant picked up a yellow plastic signboard as if he was going to use it as a weapon, D7 snatched it away and used it to hit the victim repeatedly until the plastic signboard was broken. D7 then picked up a fire extinguisher at once and used it to hit the victim repeatedly. I find and accept more likely than not the use of first of all a plastic signboard and then a fire extinguisher as weapon to attack the victim was a spontaneous act, and what D7 did was beyond what was tacitly agreed as part of the joint enterprise or the first joint enterprise as defence counsel puts it. It is important to note that during the time D7 was hitting the victim first with a plastic signboard and then with a fire extinguisher and even when he stopped, all the co-defendants continued to assault the victim except D3. Those who had taken part in assaulting the victim when and after weapons were used by D7 clearly indicated that they were party to the escalated attack on the victim. D3 did move forward to where the victim was towards the end of the attack but backed down when other people inside the AGC intervened. D3 explained in his evidence that he just wanted to have a closer look of the victim because “he was afraid the matter would become worse.” It is quite possible that he was looking for room to go up to assault the victim but such a speculation would be unfair to D3. I cannot rule out his explanation.

33.Having taken into consideration of the above, the “escalated attack” on the victim by D7 was spontaneous did change the nature of the assault and quite possibly unexpected and not tacitly agreed to in the first joint enterprise, the fact that D3 did not participate in the assault after weapons were used on the victim, there is a reasonable doubt whether he was still party to the joint enterprise after the nature changed (“the second joint enterprise”), his continuous presence at the scene during the escalated attack which lasted for about 18 seconds does not necessarily mean he remained there to encourage or assist his group or tacitly agreed to the use of weapons on the victim.  In all the circumstances, I have to give D3 the benefit of doubt by finding him not guilty of wounding with intent, but find him guilty on the lesser offence of assault occasioning actual bodily harm.