HKSAR v. Baig Mirza Rohaan Mazhar
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DCCC 37/2024 [2026] HKDC 1638 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 37 OF 2024 ---------------------------
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----------------------------------------- REASONS FOR VERDICT ----------------------------------------- THE CHARGE 1.The defendant pleaded not guilty to one count of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212. 2.It is the particulars of the charge that the defendant, on the 4th day of May 2023, at the park outside Shing Yuet House, Ting Shing Court, Tin Shui Wai, New Territories, in Hong Kong, unlawfully and maliciously wounded Tsang Wing Kwong with intent to do him grievous bodily harm. BACKGROUND 3.It is the prosecution case that in the late afternoon on 4 May 2023, while Mr. Tsang Wing Kwong (PW1) seated on a bench in a recreational park area near Shing Yuet House in Tin Shing Court at Tin Shui Wai, he was attacked by a male who wielded a cutting implement and inflicted serious wounds. The male then fled. 4.Identification parade was held, but PW1 could not identify anyone. Police obtained CCTV from the relevant locations and figured out the reconnaissance, incident and escape routes which the male took at the material time and alleged that the male was the defendant. On 24 June 2023, the defendant was arrested when the police conduct licence check at a bar in Aguilar Street. 5.The prosecution alleged that the male who attacked PW1 was the defendant. 6.The defendant denied that he was the male who attacked PW1. 7.The main issue of the case is identification. TRIAL 8.The prosecution called three prosecution witnesses. They were Mr Tsang Wing Kwong (PW1), Mr Yip Chun Ho (PW2) and detective police constable 22561 (PW3). The evidence of the land surveyor of the Lands Department, Mr Chou Hio Shing (PW4) and forensic scientist, Ms Wong Yau Nga (PW5), were admitted under section 65B of Cap 221 (P45 and P46). 9.Admitted facts were agreed pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221 (P41 and P118). 10.Upon the conclusion of the prosecution case, the defence made half time submission. After hearing the submissions, I found there was a case to answer. 11.D elected not to give evidence. He called no witness. EVIDENCE PROSECUTION CASE PW1 Mr Tsang Wing Kwong 12.PW1 was a construction site worker. He was living in Tin Shing Court, Tin Shui Wai. 13.On 4 May 2023, after he had finished work around 3 to 4 p.m., he seated at a bench in the recreation park in Shing Yuet House (see album A photo). Whilst he was sitting and using the mobile phone, a person approached PW1 from behind. The person used a cutter like item to cut PW1’s back. PW1 responded by saying, “What happened?” but the person kept attacking PW1. 14.The person then fled towards the direction of West Rail Station and PW1 gave chase. Because of the attack, PW1 could only chased for around 10 steps. PW1 was injured and bled a lot so he returned to the bench. PW2 who was nearby came to PW1 to help. PW2 then reported to the police. It happened that an ambulance was in the vicinity to give assistance that saved PW1’s life as remarked by PW1. PW1 was taken to the hospital. The relevant clothing worn by PW1 at the time of the incident was later seized (P14-P19). SPC 1093 collected three samples from three areas of bloodstains at the material location on the floor near the bench for DNA analysis. DNA Analysis and comparison showed the blood in question in all three samples to be the blood of PW1. 15.PW1 recalled that the person who attacked him was in green T-shirt and jeans with a cap. In the identification parade conducted in August 2023, PW1 could not identified anyone. medical reports 16.PW1 was taken to Tuen Mun Hospital and was treated initially in the Accident and Emergency Unit of Tuen Mun Hospital by Dr Lam Miu San. He was then treated in the Department of Surgery and the Intensive Care Unit by Dr Lai Kai Ming. The medical reports and statements of the two doctors were produced as P4- P5. 17.There was no cross examination. PW2 Mr Yip Chun Ho 18.PW2 was a transport worker. PW2 also lived in Tin Shing Court. At around 4:40 p.m., PW2 was sitting near the material location smoking and listening to music. PW2 heard some noises on his right side and saw PW1 was cut by someone. PW2 saw the assailant fled afterwards. He then sought help from the ambulance officer nearby for PW1. 19.PW2 saw the assailant wearing a brown T-shirt. 20.There was no cross examination. PW3 DPC 22561 21.PW3 was the investigating officer of the case. 22.The CCTV footage of the relevant locations (Ting Shing Court[1] , Tin Shing Shopping Centre[2] and Japan Home[3] inside Tin Shing Shopping Centre) were seized and relevant maps were obtained and prepared. 23.After investigation, PW3 figured out an alleged reconnaissance route (P47), incident (P48) and escape route (P49) used by attacker of PW1. The CCTV footages (P22-P24) capturing the routes and the respective screen captures were produced – Book 1-3. The reconnaissance route, incident route, clothes changing location and the escape route were also marked on the plan of area at Tin Shing Court (P42-P44) prepared by the land surveyor of the Lands Department[4] dated 8 July 2026, around one month before the trial. 24.The Prosecution emphasized that PW3 was not called to identify the defendant in court. PW3 was called to identify only “the person of interests” in the CCTV and the photos adduced to be the alleged culprit who attacked PW1. alleged reconnaissance route 25.The reconnaissance route was alleged to have happened on 2 May 2023, i.e. two days prior to the incident. In the alleged reconnaissance route map P47, the black camera markings showed the CCTV locations and the respective camera angles. The alleged reconnaissance route was shown in green. The screen captures of the CCTV footages (P22-24) were produced – Book 1. PW3 was asked to mark and circle the person of interests i.e. the culprit in the photos of Book 1 by using the DEEH[5] system in court (P50-P86). PW3 testified that the person of interests was all along present with a companion, who was the arrested person 4 (Arrested person 4) but was not before the court. P50 showed the person of interests and the Arrested person 4 in yellow and black upper garment were on a motorcycle in Tin Shing Court. Both the person of interests and Arrested person 4 are South Asians. incident footage and alleged route 26.The CCTV footages (P22) of the incident happened on 4 May 2023 were played. The screen captures of the CCTV footage were produced - Book 2. In the alleged incident map P48, the route was shown in blue. PW3 was asked to mark and circle the person of interests i.e. the culprit in the photos of Book 2 by using the DEEH system in court (P87-P96). The CCTV footage P22 (file name ch25 ended with number 174059) was played showing the person of interests wearing a green top approached the victim on the bench in Tin Shing Court. alleged escape route 27.In the alleged escape map P49, the route was shown in red. The screen captures of the CCTV footages were produced - Book 3. PW3 was asked to mark and circle the person of interests i.e. the culprit in the photos of Book 3 by using the DEEH system in court (P97-P109). production of pictures in paper and electronic form 28.Photo albums A-G (P34-P40) and their electronic forms were produced:
29.On 25 June 2023 at 1342 hrs, PW3 met the defendant at Tin Shui Wai police station. He received the master DVD of the video record of interview (VRI) of the defendant. The features of the defendant in VRI was in picture 17 of Album G. The silvery necklace of defendant was photographed as that was alleged to have been worn at the time of the offence (picture 11 of Album B). PW3 also marked and circle the arrested person of the case in some photos of Album G showing the defendant (P110-P117). 30.PW3 confirmed that the defendant signed in the police notebook to give consent to police to check the content of his mobile phone and he was willing to give the password. 31.Under cross examination, PW3 agreed that the defendant was cooperative with the police during the investigation. Fingerprints, buccal swap and photographs were taken from defendant after the arrest and house search was conducted which has nothing relevant. PW3 also agreed that the defendant was cooperative in answering all the questions asked by the police. arrest 32.On 24 June 2023, PC 60150 conducted a liquor licence check at “PORT L.K.F. Bar” at Unit A, 3rd Floor, Ho Lee Commercial Building, 40D Aguilar Street. PC 60150 had occasion to speak with defendant in English. After checking, he learnt that the defendant was wanted by Police being suspected of involvement in a wounding matter on 4 May 2023. He declared arrest upon defendant and took the defendant to Central Police Station and was later transported to Tin Shui Wai Police Station. 33.The mobile phone of the defendant seized at his arrest contained two virtual Octopus cards, one of which was used: to enter the gates at Siu Hong MTR Station at around 4:00 p.m. on 4 May 2023 and to depart from the gates of Tin Shui Wai MTR Station at around 4:09 p.m. on 4 May 2023; and to enter the gates at Tin Shui Wai MTR Station at around 5:25 p.m. on 4 May 2023 and subsequently to depart from the gates of Siu Hong MTR Station at around 5:32 p.m. on 4 May 2023. 34.On 10 August 2023 at 1128 hr, PC 11070 performed traffic duties and noticed that at the junction of Inverness Road with Dumbarton Road, the vehicle licence of motor cycle with registration number XF 4407, had expired. He checked with console and was informed that the motor-cycle was wanted in connection with the present wounding case. The certificate of particulars of the motor-cycle was produced as P12. The defendant is the registered owner. 35.The evidence of forensic scientist Ms Wong Yau Nga was admitted under section 65B of Cap 221 (P46). 36.Ms Wong examined the concerned footages and the control image files handed by the police. The purpose of her examination was to determine whether or not the apparel items appeared in the control image files (in Appendix I of the report) could be associated with the apparel items worn by the questioned person (the person of interests) appeared in relevant footage (Appendix II of the report).After examination, she concluded that the possibility of the top worn by the questioned person in footage P22 channel 5 (enlarged screen capture P105) could have been the top in the submitted control image - Photo Album E picture 27 could not be eliminated. Due to the lack of class characteristic, no conclusion could be reached on whether or not the top and the pair of pants worn by questioned person in footage P22 channel 4 could have been the top and the pair of pants appeared in any of the submitted control images. CASE TO ANSWER 37.At the close of the Prosecution case, the defence made half-time submission. After hearing the submissions, I ruled that there was a case to answer in respect of the charge that D was facing. DEFENCE CASE 38.The defendant did not elect to give evidence. There was no defence witness. 39.It is agreed that the defendant was 21 years old on date of his arrest. ANALYSIS 40.I reminded myself that the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt. The defendant has no burden to prove. 41.The defendant did not elect to give evidence. This is his right. No adverse inference would be drawn against him. 42.The defendant has a clear record. I reminded myself of the relevant principles as to the directions of propensity and credibility. 43.I have considered all the evidence, exhibits and the submissions. 44.The only issue in dispute in this case is the identification of the defendant. 45.The prosecution relied upon the pictorial evidence and circumstantial evidence to invite the court to conclude that the South Asian male who attacked PW1 is the defendant, albeit the lack of identification from the witnesses. It was made clear by the prosecution that in this case, it is for the tribunal of fact to determine the question of identity. The prosecution relied on HKSAR v Okafor Christian [2025] 1 HKLRD 1250. 46.Defence submitted that the prosecution failed to prove the central issue beyond reasonable doubt. The final submission of the defence was made and half-time submission was adopted. Identification 47.The fundamental principles concerning identification evidence are set out at R v Turnbull[6] and apply to the case. The tribunal of fact should be especially cautious when considering the identification evidence and that they can only rely on the identification evidence if they are sure it is accurate. In Attorney General’s Reference (no 2 of 2002)[7], it is stated that there are at least four circumstances in which, subject to judicial discretion to exclude and subject to appropriate directions, the jury may be invited to conclude that the defendant committed the offence on the basis of a photographic image from the scene of the crime. The jury has to exercise care in considering the identification evidence. The legal principles regarding identification evidence are mainly directed at the quality and veracity of the identification[8] . 48.I have referred myself to the Specimen Directions (2025) on Identification[9] which deals with the range of situations where identification evidence needs to be appropriately and carefully addressed, in particular, identification by visual images: CCTV, videos and photographs. 49.It is clear from the evidence that PW1 could not identify the attacker in the identification parade. The main feature about the attacker that PW1 could give was the green T-shirt the attacker was wearing. There was no evidence to show there was any relationship between PW1 and the attacker. Also, there was no evidence to show PW1, who is Chinese, had any relationship and connection with the defendant, a person of South Asian background. The evidence showed PW1 had been attacked, but the reason and cause of the attack was not known. As such, the evidence on identification in this case depended largely on the pictorial and circumstantial evidence adduced. 50.In considering the identification evidence, I have carefully reviewed the features of the person of interests in the CCTV footages and captured screens. I have also reviewed the features of defendant shown in the photos retrieved from his mobile phone, photos taken in the police station and screen capture from the Video Recorded Interview. I have had the opportunity to observe defendant in court. I have not only looked at the appearance of the defendant in the dock but also compared the appearance of the person of interests who alleged to be the attacker in all the pictorial evidence. In making the comparison, it must be noted that on the day of incident, the person of interests was wearing a black mask on his face and a black cap. 51.I could not find the image of the face shown in CCTV footage showing the incident was sufficiently clear. Also, I could not make a clear comparison of that with the appearance of defendant as the person of interests in the footage showing the incident was wearing a mask and also a cap (see picture 6 of Book 2). Furthermore, the quality of the footage and screen capture could not clearly show the person of interests was wearing any particular accessories like the silvery necklace alleged in picture 11 of Album B. 52.It is the prosecution allegation that the person of interests shown in the reconnaissance, incident and escape footage were the same person. It must be cautious in making such a conclusion in view of the fact that the person of interests on day of incident was wearing a mask and a cap (see picture 1 and picture 3 of Album G). Even after the person of interests changed cloth with the cap removed, the quality of the image of the face was not clear (see picture 11 in Book 3 and picture 4 in Album G). I agreed with the defence submission that there was no facial identification of the attacker or any distinguishing features of height, weight, skin, and hair style. In the absence of any distinctive features, the most noticeable aspect of the appearance of the attacker was that he is a person of South Asian background. 53.I have considered the CCTV footage (P22 with file name ch25 ended with number 174059) showing the incident. At around 17:23:18, the person of interests wearing a green top approached the victim on a bench. At around 17:23:23, the person of interests attacked PW1. At around 17:23:28, the person of interests quickly fled. I have viewed the footage many times. The camera, however, was of a substantial distance away from the material location. Therefore, the figures of the person of interests and PW1 were tiny. The face of the person of interests could not be clearly seen. Because of the filming distance, the quality of the footage was not clear to show the persons’ actions or movement. 54.I have also considered the circumstantial evidence adduced. 55.Although there were discrepancies between the evidence of PW1 (green) and PW2 (brown) on the color of the T-shirt, the CCTV footage and the screen captures showed the person of interests on day of incident was seen wearing a green top. However, according to the evidence of the forensic scientist, due to the lack of characteristic, no conclusion could be reached on whether or not the top worn by the persons of interests in the footage could have been the top worn by the defendant in the photos found in his mobile phone. 56.It was the evidence of the forensic scientist that after examination, the possibility of the top worn by the person of interests in footage P22 channel 5 (enlarged screen capture P105) could have been the top worn by the defendant in a photo in his mobile phone (picture 27 Album E) could not be eliminated. I was aware in Ms Wong evidence, she found a common identified feature of a light-toned patch logo above the left chest area of the top in the corresponding images in making the conclusion. It must also be noted that the identified top worn was pointed to the clothing of the person of interests after the happening of the attack and changing of cloth (see picture 11 of Book 3). Nevertheless, by relying on the piece of apparel evidence, in this case, it is insufficient to confirm the identity with certainty. 57.The video recorded interview (VRI) was conducted sometime after the defendant was arrested in June 2023. There was one single screen capture taken from the VRI showing the right side of the face of the defendant. Without any distinguished facial appearance, and given the quality of the shot (see picture 17 of Album G), it could not be safely concluded that the defendant is the person of interests in Book 1-3. 58.The octopus card evidence was considered. The prosecution alleged, the defendant was the user of the subject virtual octopus card found and the card was used to travel to and away from the material location near the time of the incident. It was noted that on the day of the reconnaissance, it was the prosecution allegation that the person of interests went to the material location with the Arrested person 4 by riding the motor cycle. The defence submitted that the prosecution could not prove it was the defendant who actually used that octopus card. Also, the prosecution had not provided any specific distance as to the actual distance that needed to be travelled and the time that would be taken by a person going and leaving from the scene of the attack to the MTR station. 59.Evidence revealed that there were more than one and even at least three or four other suspects were arrested in connection with this case and only the defendant was before the court. Yet, the evidence showed there was only one attacker. It is noted that defendant and Arrested person 4 were both South Asian. No observation on the appearance of the other suspects who were arrested could be made. Without any suggestion of conspiracy or joint enterprise involved etc., the evidence was unclear as to why three or four other suspects were also arrested. 60.In considering the evidence as a whole, I find that the identification evidence is insufficient to establish that the defendant is the attacker. 61.I was reminded by the defence to further consider that the defendant was cooperative throughout the investigation and was willing to give his mobile phone and password to the police. House search of the defendant was conducted with nothing particular of relevance to the case was found. There was also complete absence of any motive of the defendant to become involved in this case. 62.Having considered the evidence before the court, I could not be sure if the defendant in this case was the attacker of PW1 as the prosecution alleged. CONCLUSION 63.I find the prosecution fail to prove the case beyond reasonable doubt that the defendant had committed the charge. I find the defendant not guilty of the charge.
[1] Collectively marked as P22. [2] Collectively marked as P24. [3] Collectively marked as P23. [4] The evidence of Mr Chou Hio Shing land surveyor of the Lands Department was admitted under section 65B of Cap 221 (P45). [5] Digital Evidence and Exhibit Handling. [6] [1977] QB 224 [7] [2003] 1 Cr App R 21 [8] HKSAR v Okafor Christian [2025] 1 HKLRD 1250 para 33-34. [9] Part VIII. |
Cases cited in this judgment