HKSAR v. Singh Balbir

DCCC 833/2021

[2022] HKDC 1220

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 833 OF 2021

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REASONS FOR VERDICT

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The Charges

1.There were originally two accuseds in the present case, namely Mr.SINGH Balbir (the Defendant)  and Mr HARPAL SINGH.

2.Mr.  HARPAL SINGH was absent on the first day of the trial.  The prosecution subsequently applied to sever their case against the Defendant from that of Mr HARPAL SINGH.  Such application was granted by this Court on 8^th day of September 2022.

3.The Defendant faces a total of 4 re-amended charges.

4.Charges 1 to 3 are all charges of causing grievous bodily harm with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212.  The Defendant was alleged to have, on the 31^st day of March 2020, at the entrance, Central Kowloon Route Construction Site, No.2 Kai Fuk Road, Kowloon Bay, Kowloon, in Hong Kong (“the Site”), together with HARPAL SINGH and other persons unknown, unlawfully and maliciously caused grievous bodily harm to MEHMOOD Zamurd (“PW1”), HUSSAIN Shazib (“PW2”)  and HUSSAIN Adnan (“PW3”)  in Charges 1, 2 and 3 respectively, with intent to do them grievous bodily harm.

5.Charge 4 is a charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221.  He was alleged, on 25^th day of January 2022, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.

6.The Defendant pleaded not guilty to all four re-amended charges.

Admitted Facts

7.A significant portion of the prosecution’s case had been agreed by the defence.

8.By virtue of section 65 C of the Criminal Procedure Ordinance, the prosecution and the defence agreed, inter alia, the followings:

8.1On 31 March 2020, PW1 was employed by Gurka Force Security Limited as a full time Security Guard outsourced to work at the Central Kowloon Route Construction Site, No. 2 Kai Fuk Road, Kowloon Bay, Kowloon, in Hong Kong (“the Location”). The Location was an open construction site fenced with wire mesh.

8.2On 31 March 2020 in the early hours, PW1 was working on night shift duty staying at the guard booth inside the Location and near to its entrance gate (“the Gate”). While PW1 was chatting with his two friends PW2 and PW3, one South Asian male knocked from outside the Gate and asked PW1 to open the Gate for discussion. PW1 refused to open the Gate.

8.3Shortly afterwards, a total of five South Asian males emerged outside the Gate. They pestered PW1 to open the Gate, but PW1 refused.

8.4Three of the South Asian males entered the Location. Then, one of them opened the Gate to let another person in while the remaining one did not enter.

8.5Upon entering the Location, the four South Asian males began to assault PW1 to PW3. The assault lasted for a few minutes, then the four South Asian males fled from the Location.

8.6PW1 to PW3 suffered injuries as a result of the assault and were admitted to the United Christian Hospital (“the Hospital”)  for treatment immediately.

8.7PW1 sustained, among other things, a 1cm laceration over left parietal scalp, a small laceration over right elbow, comminuted olecranon fracture over both elbows and right proximal fibula fracture over right knee. He was discharged from the Hospital on 19 April 2020. Various medical reports of that of PW1 were produced as Exhibits P1 to P5.

8.8PW2 sustained, among other things, a fracture over left ulnar shaft. Medical reports of that of PW2 were produced as Exhibits P6 and P7.

8.9PW3 sustained, among other things, left superior scalp wound and left lateral femoral condyle fracture. Various medical reports of that of PW3 were produced as Exhibits P8 to P12.

8.10CCTV footage of the Location is produced as Exhibit P14.

8.119 photographs of PW1’s injuries, 2 photographs of the injuries of PW2, 5 photographs of PW3’s injuries, 10 photographs of the Location and 6 photographs of clothing are assembled in a photo album produced as Exhibit P13.

8.12On 3 April 2020, the Defendant was arrested by DPC 8293 (“PW7”)  at Tsim Sha Tsui Police Station.

8.13On 14 May 2020, in an Identification Parade conducted by SIP Wong Chun Wai (“PW4")  at Sau Mau Ping Police Station, PW1 and PW2 both positively identified the Defendant.

8.14On 7 July 2020, HARPAL SINGH was arrested by DPC 18449 (“PW9")  at Wan Chai Police Station.

8.15On 17 August 2020, during an Identification Parade conducted by CIP CHAN Chi-him, at Sau Mau Ping Police Station, PW2 positively identified HARPAL SINGH.

8.16On the first District Court Plea Day on 5 October 2021, the Defendant was granted court bail and the case was adjourned to 30 November 2021. The Defendant was again granted court bail on 30 November 2021 and the case was further adjourned to 25 January 2022.

8.17In the hearing on 25 January 2022, the Defendant failed to appear in the District Court and a warrant of arrest was issued against him.

8.18At a time before 12:35 a.m. on 27 January 2022, the Defendant surrendered himself to Sham Shui Po Police Station, and the police arrested him for being wanted.

Issue of the case

9.The material live issue in the present case is one of identity of the Defendant.

10.The defence also challenged the propriety of the identification parade conducted on the 14 May 2020 (“the ID Parade”)  on the chief ground that the Defendant’s request for all the actors and himself to wear mask during the identification was refused.  Alternative procedure was therefore adopted.

Prosecution Witnesses

11.A total of 4 prosecution witnesses were called by the prosecution, namely PW1, PW2, PW3 and PW4.

PW1

12.The events preceded to the entering of the attackers into the Location as well as the course of the attack as described by PW1 were in line with that of the admitted facts agreed between parties.

13.Insofar as the issue of identity is concerned, PW1 was asked to describe the clothing of the first person who climbed over the Gate and jumped into the Location (“the First Person”). 

14.PW1 said he could not do so as it was some two-and-a-half years ago, but he was able to remember his face. 

15.PW1 said he saw this person many times wondering in the Kwun Tong area.

16.PW1 further said that on the night in question, at the Location, he saw the face of the First Person.

17.When asked to describe the facial features of the First Person, PW1 said he was not able to do so.  However, PW1 said that there was a lizard-like tattoo on the back of the First Person’s left hand. 

18.Aside from the First Person, PW1 said he also saw the faces of two other attackers during that night.

19.PW1 subsequently revealed that it was in fact a case of recognition insofar as the 3 attackers whom PW1 saw their faces during the night of the attack is concerned.

20.PW1 said he used to see them wondering around in the Kwun Tong, Shum Shui Po and To Kwa Wan areas.  He never spoken to any of them before.

21.When asked as to whether PW1 knew any of their names, PW1 replied one is called HARPAL SINGH and another has a nickname of “Lucky”.

22.As to the name of the First Person, PW1 in his evidence–in-chief never reveal that he knows this person’s name.  Time and again he was pointing towards the dock and referred such person as “this one”.

23.It transpired subsequently in PW1’s testimony that the First Person PW1 referred to was the Defendant.  It was further revealed, during cross-examination, that PW1 told the police in his first witness statement furnished to the police (dated 1 April 2020)  that he already knew the nickname of the defendant was Nikka SINGH.   

24.PW1 was further asked by the prosecution: “For what reason you are able to recognize him?” To that PW1 replied: “When he attacked me, I saw his face” He also claimed at one stage of his testimony that he was able to recognize the Defendant when he was outside the Gate and wearing a mask. 

25.During cross examination, PW1 agreed with the defence that all the attackers were wearing masks.  However, PW1 supplemented that answer by saying: “when they were attacking, a few of them pulled their masks down or masks came down automatically.”

26.With regard to the Defendant, PW1 specifically said that: “his mask was lowered down so I could see his face” He further supplemented that by gesturing that the top of the mask was lowered to his neck level, below his chin.  PW1 further described that when the Defendant was climbing over the Gate, his mask was a little bit lowered, and “When he climbed down inside the premises I saw his mask was removed. 

27.PW1 agreed that in his first witness statement furnished to the police, he did not mention about seeing the masks of the attackers coming down and it was until 14^th May 2020, after he took part in the ID Parade, did PW1 first told the police about such sighting.

28.When asked as to why he did not tell the police in his first witness statement about seeing the mask of the Defendant coming down, PW1 explained that he was not in a fit condition at the Hospital when furnishing such information.

29.The defence challenged PW1 why he did not tell the police in his first witness statement that in fact he saw some of the attackers (in Kwun Tong and other areas)  prior to the attack.  To that PW1 replied that he did tell the police such information just that the same was not recorded down in his witness statement.

30.PW1 agreed that in his first witness statement to the police, he said that: “I recognized a South Asian male with nickname Nikka Singh,  because I had seen him in a friend’s gathering once before”.  PW1 also agreed with the defence that such description is different from saying that he used to seeing the same person in Kwun Tong and other areas. 

31.PW1 confirmed that during the ID Parade, none of the actors nor himself was wearing mask during the course of identification.

PW2

32.PW2 described the manner in which the attackers entered the Location as well as the course of attack in line with the admitted facts. 

33.As to the appearance of the attackers, he confirmed that they were all wearing mask.

34.When asked as to whether he saw the face of any of the attackers during that night, PW2 said that: “I only saw one of them, the one who fell over the fence and opened the door.”  PW2 further described that this person’s mask was lowered down to below his lips.

35.PW2 also confirmed that one of the attacker was the one whom he identified during the ID Parade, namely the Defendant. 

36.PW2 said that after the Defendant climbed over the Gate and landed on the ground, he saw the Defendant’s mask dropped down and then quickly pulled back up by the Defendant.  It was at this juncture that PW2 was able to see the face of the Defendant. 

37.With the aid of Exhibit P14, PW2 indicated that such sighting of the dropping down of the mask and that of the Defendant’s face took place at 03:14:40 of the CCTV footage and lasted for about 1 to 2 seconds.

38.During cross-examination, PW2 confirmed that he never seen any of those attackers prior to the night in question.

39.PW2 also confirmed that he furnished a witness statement to the police on 31 March 2020 (“Exhibit P18”)  in which he did not mention about seeing the dropping down or sliding down of any of the attackers’ mask.  It was until 14 May 2020 when he gave his second witness statement (“Exhibit P19”)  did he mentioned to the police for the first time about the sighting of mask dropping down.

40.PW2 was referred to a particular piece of description stated in Exhibit P18, namely that “WP1 to WP5 told VTM1 to open the metal gate, but VTM1 insisted on his refusal to open the metal gate.  Suddenly the WP with a hockey stick in his hand beat VTM1 on the top of the head with the hockey stick with his arm over the metal gate” Defence counsel challenged PW2 by saying that the said beating of PW1’s head over the metal gate never took place.  To that PW2 agreed that such event in fact did not take place.  PW2, however, further responded that he was in pain whilst giving such statement and was not in a fit condition to furnish such statement.  He made his request for arranging the taking of his statement to another date but was refused by the police.

PW3

41.PW3 confirmed that there was an incident of PW1, PW2 and he himself being attack on the night in question, albeit he was not able to recognize any of the attackers.

42.PW3 further confirmed the incident took place in the middle of the night, which was, according to his own description, “very dark” at the time.

PW4

43.PW4 conducted the ID Parade on the 14 May 2020.

44.PW4 confirmed that from the information that he received, he had a basic understanding of the allegation from the brief facts of the case.

45.PW4 recalled that the Defendant did make a request for all the actors and himself to wear masks during the identification.  Such request was declined by PW4.  PW4 explained the reason for his refusal was because a mask would cover a substantial part of a person’s face and therefore would defeat the purpose of the identification parade.

46.Thus it was PW4’s direction to all the actors and the Defendant to remove their masks during the identification process.

47.During cross-examination, PW4 agreed that insofar as possible, he should recreate the circumstances similar to the one that happened on the day in question.

48.PW4 further said that he received no information that any of the attackers was wearing mask at the time and he could not make such assumption.

Special Issue

49.After all the prosecution witnesses were called, this Court ruled that there is a case to answer for the special issue.

50.The defendant elected not to testify nor call any witness for the special issue.

51.After hearing submissions from parties and consideration of all the evidence, this court was satisfied as to the propriety of the ID Parade.

52.Based on the information received by PW4 and the nature of the present case, this Court was satisfied that PW4’s decision in refusing the wearing of mask during the identification was reasonable and proper.

53.The ID Parade was therefore ruled to have been properly conducted by PW4 and thus all related evidence were admitted into evidence.

Half-way

54.After the prosecution formally closed their case, I ruled that there is a case to answer for the Defendant in respect of all 4 re-amended charges.

55.The Defendant elected to testify.

The Defence Case

56.The Defendant told this Court that he was residing in Sham Shui Po at the time of the offences related to Charges 1 to 3.

57.Insofar as he could recall, on the night of the attack, he was at an illegal gambling centre situated in Mongkok, albeit he was not able to tell its exact address.

58.The Defendant said he did make an effort to see if there was anyone who recall seeing him that night but to no avail.

59.As to his failure to turn up to Court on the 25 January 2022, he explained that he was at his brother’s residence in Kwai Chung that morning.  He was in great back pain (an injury which stemmed from an accident which took place in 2017)  that morning.  He sought medical attention that day.  He went to the Caritas Hospital via Ambulance

60.During cross-examination, the Defendant said that he called the ambulance at around 1-2 pm on the 25 January 2022. 

61.The Defendant admitted that he knew he had to attend court at 11:45 a.m. that morning.

62.The Defendant further said he wanted to receive treatment with regard to his pain, he was afraid that if he turns up in court or inform the court, he would not be able to receive his treatment.  In his own words, he said: “I was in pain, I wanted to have treatment.  Me getting treated is more important than going to court”.

63.The Defendant also revealed that shortly after he was arrested on the 3^rd April 2020, he made an effort in ascertaining his whereabouts on the night of the attack.  He said that after he was released on police bail in April 2020, he did go to the illegal gambling establishment that he thought he visited during the night in question.  He also took pictures therefrom.

Analysis

Charges 1, 2 and 3

64.Insofar as Charges 1, 2 and 3 are concerned, there is no dispute as to the fact that PW1, PW2 and PW3 were attacked by a group on the night in question.

65.The key issue is one of the identity of the assailants.

66.PW1 and PW2 both said that one of the assailants was the Defendant.

67.They both positively identified him in their respective Identification Parade.  They also indicated in court, with the aid of Exhibit P14 as to what this assailant did on the night in question.

68.Both PW1 and PW2 said that they were able to see the whole face of the Defendant due to the fact that soon after he climbed over the Gate, his mask dropped down. 

69.This is a crucial aspect in this case.

70.Exhibit P14 rendered much assistance in this regard.

71.In tracking the movement of the person whom PW1 said was the Defendant, with the aid of Exhibit P14, this court noticed the followings:

71.1At 03:14:34, a male (“the First Male”)  was seen in the process of climbing over the Gate.

71.2At 03:14:39, the First Male jumped from the top of the Gate and landed on the ground, with the front of his body facing towards the Gate. At this juncture both PW1 and PW2 were behind the First Male.

71.3At 03:14:40, the First Male got up. He turned his body in a clockwise direction to about 180 degrees. He then bent down and used his right hand to pick up something (seemed to be a rod)  from the ground.

71.4At 03:14:42, the First Male stood up. He was then facing towards PW1.

71.5At 03:14:43, the First Male was seen holding a rod with his right hand whilst he used his left hand to grab PW1 and pulled PW1 in a direction away from where PW2 was.

71.6At 03:14:45, a second male (“the Second Male”)  was seen jumping from the Gate and landed on the ground.

71.7At 03:14:46, the Second Male used his left hand to adjust his mask whilst his right hand was holding a rod.

71.8At 03:14:50, the First Male left PW1 and approached the Gate. Meanwhile the Second Male took over in grabbing PW1.

71.9At 03:14:54, the First Male opened the Gate. The footage depicted the left side of his face and showed that he had his mask on which covered his face from his eyes downwards.

71.10At 03:15:05, the First Male used a rod to beat PW1

71.11At 03:15:38, the First Male started to approach PW2.

71.12At 03:15:40, the First Male used a rod to beat PW2 once, then used his left hand to point at PW2.

71.13At 03:16:35, the First Male walked towards the entrance of the Gate which was kept adjar.

71.12At 03:16:38, the First Male was looking towards the direction of the camera with his mask on, covering the part of his face from his eyes downwards.

72.From the above CCTV footage, this court cannot see there being any pulling of mask or dropping down of mask on the part of the person whom PW1 and PW2 said was the Defendant. 

73.As such, I find the identification evidence of both PW1 and PW2 to be unreliable.

74.Such unreliability is augmented by the very fact that both PW1 and PW2 never mention to the police in respect of them seeing “the mask dropping down scenario” in their respective first witness statement to the police but chose to do so only after the Identification Parade.

75.I therefore find that I cannot safely rely on the identification evidence of that from both PW1 and PW2.

76.As to the prosecution’s submissions that there were lies on the part of the Defendant insofar as alibi is concerned, I do not find that that amounts to such a serious degree as a fabrication by the Defendant to deceive the court.

77.Without the identification evidence, the prosecution is quite clearly cannot prove its case beyond all reasonable doubt in respect of Charges 1, 2 and 3.

78.I therefore find that the Defendant is not guilty for Charges 1,2 and 3 and he is acquitted of these three charges. 

Charge 4

79.It is not disputed that on 25 January 2022, whilst on court’s bail, the Defendant failed to appear in the District Court and a warrant of arrest was issued against him.

80.And slightly before 12:35 a.m.  on 27 January 2022, the Defendant surrendered himself to Sham Shui Po Police Station, and was arrested by the police for being wanted. 

81.It was the admission of the Defendant during cross examination that his failure to attend court on the 25^th January 2022 was due to the fact that he was afraid of being remanded in custody.

82.I do not find this being a reasonable cause.

83.As such I do find therefore find that the prosecution had proved its case beyond reasonable doubt against the Defendant on Charge 4.

84.I therefore find him guilty of Charge 4.