HKSAR v. Wong Sui Cheung

DCCC890/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 890 OF 2011

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Reasons for Verdict

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1.D1 is facing one charge of affray, contrary to Common Law. The charge alleges that on 5 June 2010, D1, together with D2 to D4 and one Wong Yat-fung, unlawfully fought and made an affray at the bicycle track near Fuk Yat House, Yat Tung Estate, Tung Chung, Lantau. They all plead not guilty to the charge. D2 to D4 have been acquitted upon an earlier ruling that there is no case to answer for them.

The Prosecution Case

2.Shortly before midnight on 5 June 2010 at the bicycle track near a footbridge and Fuk Yat House of Yat Tung Estate at Tung Chung, an affray occurred with many youths involved.  When the police arrived, two youths were found injured and sent to hospital for treatment. 

3.Lee Kwong-pan, a 15-year-old boy at the time, suffered very serious injuries.  PW4, Senior Police Constable 1080, the officer who first arrived at the scene, saw him bleeding from his head.  The officer also saw Yu Siu-wai, PW1, had injury at his head.  Medical examination revealed a 5 cm haematoma over Lee’s forehead and a 2 cm laceration over his left temporal region.  The medical report dated 5 March this year states that Lee “can now walk a few steps with heavy assistance at home.  His mental state is suboptimal.  He is currently not fit for statement yet”.

4.Yu was discharged against medical advice on the same day with the medical findings of a 5 cm laceration over scalp.

5.D1 was arrested on 6 June 2010.  On 8 June 2010 in the presence of his mother he took part in a video interview record (VIR) under caution.  The interview was made admittedly voluntarily.  At interview he admitted his presence but he did not take part in the fight.

6.The prosecution calls five witnesses. 

7.Yu Siu-wai, PW1, now aged 18, says at the material time he was walking a dog with Lee Kwong-pan when a group of about 20-odd people suddenly rushed towards them and started to beat them up.  One member of the group was holding a black torch and others were holding something in their hands.  He says he only saw Mak Tung-ni when he was running home after he had been attacked.

8.Tam Tsz-lung, PW2, now aged 17, says at the material time he was a passer-by when he saw two groups of people were arguing.  Suddenly one group rushed towards another group.  People were holding one another.  When the people dispersed he saw a friend, Lee Kwong-pan, had injury on his head.  He helped Lee to go to a place near the shopping centre in Yat Tung Estate.  He left when Lee’s friends came to take care of Lee.

9.PW2 picked out three persons at identification parades held on 15 June 2010 as the assailants.  One of them was D1, known to PW2 as Cheung Chai.  He was standing at the very front position of the group of about 10 to 20 persons.  He had his arms folded across his chest.  The second person was about 10-odd years old and the third person was an adult in his 30s.  PW2 says in examination-in-chief that he picked these two persons out at the ID parade because they seemed to be present but he was not sure.

10.Mak Tung-ni, PW3, says at the material time he was with Yu Siu-wai, Lee Kwong-pan and some other people.  His group met another group of people and an argument started with exchange of foul language.  After one or two minutes, another group of about 10-odd people rushed down from the footbridge to join the rival group.  The argument continued and someone punched his face.  He lost balance and fell onto the ground where he saw D1 hit him with fists and kicks.

11.Cheung Tak-wai, PW5, says at the material time he was a passer-by walking his dog by himself.  He said he saw fighting in examination-in-chief but agreed in cross-examination that he did not see it. He did not hear people shouting. 

12.It is admitted by parties that at various identification parades PW1 identified D1, D2 and D3; PW2 identified D1, D3 and D4; PW3 identified D1; PW5 identified D3 and D4.

No Case Ruling

13.At the close of the prosecution case there was submission of no case for D2 to D4.  D2 to D4 were identified at identification parades when the prosecution witnesses said they were not sure the identified persons were the assailants.  As the quality of identification of D2 to D4 was so poor that clearly the evidence was insufficient to support a conviction against them, the prosecution quite properly and rightly conceded.  I made a ruling that there was no case to answer for D2 to D4 on the charge accordingly.  I ruled there was a case to answer for D1.

The Defence Case

14.Having been explained of his legal rights, D1 elects not to give evidence nor to call any witnesses.  It is admitted that D1 had a clear record on the date of the offence.  He was aged 15 at the time.

15.The defence case put forward by Mr Tam, counsel for D1, is quite simply that D1 was merely present there.  He did not participate in the fight or affray.

Elements of the Offence

16.Unlike the UK and Australia, affray is still a Common Law offence in Hong Kong.  It is a violent disturbance of the peace by one or more persons which takes place in such circumstances as to cause terror to one or more persons of reasonable firmness.  The prosecution must prove that there was unlawful fighting or unlawful violence used by one or more than one person against another or others, or that there was an unlawful display of force, and that the unlawful fighting, violence or display of force was such that a bystander of reasonable firmness and courage, whether or not present or likely to be present, might reasonably be expected to be terrified (AG’s reference No. 3 of 1983).

Evaluation of the Evidence

17.A video of the incident was taken by a resident in Yat Tung Estate which is admitted as evidence by consent.  It can clearly be seen in the video clips that groups of people were scolding each other loudly with foul language.  A large number of youths was seen moving about at the footbridge and the open area down the footbridge next to Fuk Yat House.  Some people suddenly rushed in a direction, some people retreated.  Though no fighting could be captured in the clips, sound of metal things being banged can be heard and something which appears to be a rubbish bin was thrown over.  The noise of the disturbance was loud and clear. 

18.There is undisputed medical evidence that PW1 and Lee Kwong-pan were seriously injured.  Even relying only on the video clips and the medical evidence, there was no doubt a fight between two parties.  At the beginning of the incident, there was a display of force by a large number of participants by shouting and yelling.  It was followed by fighting and actual violence resulting in injuries to Lee Kwong-pan and PW1. 

19.The place where the quarrelling and fighting took place was an open area near a footbridge and some residential blocks of a public housing estate.  It was a public place where residents need to go past in order to go home.  The incident happened at about around midnight.  It can be inferred that there were bystanders around.  There were very loud and disturbing noises that would attract the attention of residents in the vicinity.  In fact, one of them was the resident who took the video recording.

20.I am sure that in all the circumstances, as depicted in the video clips, a bystander of reasonable firmness and courage might reasonably be expected to be terrified and fear for their personal safety.  I find there was clearly an affray.

21.D1 admits that he was amongst one of the groups.  The issue in the case is what was his participation?

22.He was identified by PW2 and PW3.  PW2 says D1 was at the front of the rival group.  PW3 said D1 hit him with fists and kicks.  However, he did not mention about it in his statements to the police when he made reference to D1’s involvement in the case.  In light of this inconsistency the evidence of PW3 about the actual violence used by D1 cannot be relied upon.

23.PW1, 2, 3 and 5 all gave inconsistent versions of the incident in court.  PW2 and 5 say they happened to walk past but PW3 says they were among his group.  For the inconsistencies as revealed in the evidence of the youths called by the prosecution as witnesses, I have no doubt that these witnesses have not told this court the whole truth of the case. They were members of the other group and they were involved in fighting.  It is also noted that PW2 has two previous convictions, one for possession of dangerous drugs and the other for theft, in 2009 and 2010 respectively.

24.I will not convict D1 on their evidence alone. The question is what weight can be attached to the mixed statement made by D1? There is no admission that he actually used violence.  The question is whether it can be inferred that he was a participant in the affray.  Mere presence is not sufficient to found a conviction. 

25.It is submitted by Mr Tam, counsel for D1, that there is no evidence to show that D1 did any act of violence or that he was in a joint enterprise with others to use violence.  There is no evidence of conversation between D1 and the assailants or D1 saying anything at the scene. There is no evidence to show his participation in the fight or affray.

26.D1 does not give evidence.  This is his right and no adverse inference can be drawn from it.  It is agreed that he had no criminal record when the incident occurred. 

Evaluation of the VIR

27.D1 gave a detailed account of the incident.  The sequence of events were summarised in the question and answer at counters 712 and 713.  Put simply, when D1’s group was buying soft drinks at a 7-Eleven store they saw two persons of another group.  D1 shooed them off.  D1’s group walked on, then the number of the other group changed from 2 to 10-something. Later, the people who were having the barbecue came to help D1’s group, then the two groups scolded each other and subsequently fought.

28.As to the details, D1 said on that evening he was having a barbecue at Sheung Ling Pei, somewhere near the footbridge.  He went with some friends, altogether about 11 or 12 people of them, to a 7-Eleven store to buy drinks.  There were about 10 more people having a barbecue at Sheung Ling Pei.  His group belonged to Lo Sun.  D1 saw two persons from the No. 14 Triad Society.  He shooed them and they went away.  Later, D1 and his friends went to the bicycle track and sat there for about half an hour.  The two persons of No. 14 came back with 10 to 20 people.  The two groups started swearing at each other in abusive language (see counters 333 to 345 and 375 to 381). 

29.People from his group shouted and asked the other group, with the injured persons amongst them, if they wanted a fight (counter 254 to 262).  Some “strangers” at their 20s came giving help to D1’s group (counters 402 to 405).  They said, ‘Come down.’  We said, ‘Come up.’ Someone asked, ‘Do you want to fight?’  Having shouted a few words, they rushed upward to hit.  (Counter 707 to 709).  The No. 14 people used dustbins to fight (counter 407).  The shouting and fighting lasted for about 3 to 4 minutes (counter 415).  D1 confirmed that he was present at the scene throughout the whole incident (counters 710 to 711).  He saw Lee and Yu were hit by the strangers.  D1 said he was known as Cheung Chai.  He belonged to the party of Lo Sun (counters 494 to 499).  After they finished the fight he went back to the barbecue site (counter 429). 

30.He further said at about 2350 hours on 5 June 2010 he used his mobile phone to contact friends for five or six times.  One of the calls was from a male called “Nong Nong” who told him to come back and go on with the barbecue.  They talked for about 5 to 6 minutes (counters 789 to 832).

31.The inculpatory part of the VIR gave a detailed and coherent account of the incident.  The description is also consistent with what is recorded in the video clips and the version given by PW3. 

32.I find the sequence of events of the initial quarrelling and eventually the fight told by D1 in the VIR a reasonable and reliable account.  I attach full weight to it.

33.D1 has also given an exculpatory explanation. The prosecution has the burden to disprove it.  In gist, he said he walked to one side when the strangers fought the No. 14 group.  Though not explicitly put as such by his counsel, D1’s explanation would also suggest that he was not related to the strangers whose acts were not expected or reasonably contemplated by D1 and therefore D1 cannot be in joint enterprise with them.

34.In the VIR, D1 said when the strangers rushed forward and had a fight he sprang to one side (counter 264).  He saw the strangers for the first time that day (counter 278).  He said he just stood there watching all along, he did not take part in the fight (counters 423 to 425). 

35.The VIR is a mixed statement which must be considered by the court as a whole including the exculpatory part.

36.Both the inculpatory and exculpatory parts are admissible as evidence of the truth of what had been recorded in the mixed statement (see R v Sharp [1988], and HKSAR v Li De Fan, FACC5/2001).  However, when D1 has chosen not to go into the witness-box to give evidence of his version of events, any exculpatory explanation in his VIR which is an out of court self-serving statement, not being given under oath and subject to test by cross-examination, can carry only little weight.

37.Moreover, the exculpatory explanation of D1 is against logic and common sense. 

38.The video clips show that there was a very serious incident involving many youths.  Long before the fight started at about the time when rubbish bins were banged, lots of young people had been quarrelling and yelling.  Confrontation of parties had taken place near the footbridge.  I will refer to it as the first stage of the incident. 

39.As admitted by D1 in the VIR, he was already amongst the Lo Sun group at the very beginning of the argument.  There was a confrontation of the two rival gangs with shouting and yelling for a considerable time.  The continuous presence and yelling of the members of D1’s group were clearly an intended display of force to the opposite side.  A bystander of reasonable firmness and courage might reasonably be expected to be terrified.  I am sure that D1 intended to be a participant in the group to display force. 

40.However, the law is not clear whether quarrelsome or threatening words can amount to an affray. 

41.The version that D1 sprang to one side occurred at the second stage when the reinforcement group came and the fight started.  I find this exculpatory explanation cannot be true. 

42.D1 knew two boys of the No. 14 group had “blown the whistle”.  He chose to remain there.  D1’s group and the rival group had been confronting each other for a considerable time.  Violence would have been expected.  The so-called strangers clearly came for reinforcement of D1’s group.  D1 claimed he sprang to one side, suggesting that he wanted to disconnect himself from the group.  At that time, two rival gangs comprising of more than 30 people were already there.  Violence no doubt would be expected.

43.If D1 chose to disconnect himself from the reinforcement group, why did he choose to remain there, watching all along and witness how Lee and Yu were injured?  Moreover, why did he go back to the barbecue site if he wanted to dissociate from the reinforcement group?  It does not matter whether he knew the names of the people joining his group or whether he had seen them before, so long as he knew they came to reinforce his group. When he saw these people start to hit the other group, he must know that they came to give him hands to overcome the rival group.  He must know that to overcome the rival group violence would have been inevitable.

44.Moreover, there is evidence that D1 admitted that he talked to Nong Nong for about 5 minutes, apparently at the interval between the initial argument and the actual fight when the reinforcement came. The only reasonable inference is that D1 summoned for help in his conversation with Nong Nong and the reinforcement came to resist the rival group. 

45.It is submitted that there is no evidence that D1 spoke to other members of the group.  In my judgment, it is neither here nor there. 

46.I do not believe that D1 stood there only as a bystander.  He saw people were fighting; litter bins, to say the least, were used as weapons and seen being thrown up and down.  It is obvious that remaining there would be dangerous.  Would anybody stand there watching the fight all along if he is not part of the group?  The only reasonable inference to be drawn is when the fight started he remained at the scene intentionally as a party of the reinforcement group in joint enterprise to demonstrate force and to use violence.  It does not matter whether he was at the front of the group or whether he used actual violence.  The conduct of all of them taken together must be considered.

47.I am satisfied beyond all reasonable doubt that D1 is guilty of the offence.

48.Moreover, as I found earlier, D1 had summoned for the help of the reinforcement group.  I find that D1 knew they were coming.  He was aware of the conduct of the other people.  I find that he intended to be a party of the reinforcement group and intended that violence would be used.  He was a party in the fight.

49.For what it is worth, I also find that D1 was, as PW2 described, standing at the very front of the group of about 10 to 20 persons which were doing the scolding.  He was having his arms folded across his chest. 

50.I find that PW2 has not told the whole truth in court.  He testifies as if he was only a passer-by who happened to witness the fight.  The totality of evidence, in particular when PW3 was cross-examined by counsel for D4, clearly shows that he was a member of the No. 14 group.  He has previous convictions.

51.PW2 says in court that he was not sure whether some people he picked out from the identification parades were the assailants, yet he is adamant that he identified D1 correctly.  He identified D1 at an identification parade on 15 June 2010.  PW2’s evidence in this regard is supported by D1’s own admission of his presence with the Lo Sun group and that he has the same name known to PW2. 

52.PW2 had seen D1 once or twice before the incident.  He observed D1 for about less than a minute under the lighting of a street lamp.  D1 particularly impressed him as D1 was holding his arms in front of his chest.  I am satisfied that this part of evidence of PW2 is credible.

53.The incident should be a fast moving event. However, the identification of D1 is not properly regarded as a fleeting glimpse situation.  PW2 had sufficient time to observe D1.

54.Giving myself the Turnbull warning, I am satisfied that PW2 did not wrongly identify D1 as the person who was standing at the front of the Lo Sun group. 

55.The identification is further supported by my finding as the only reasonable inference that D1 summoned for help from Nong Nong.  D1 played a leading role in the incident.  In any case, this finding does not affect my earlier ruling on the guilt of D1. 

56.I am satisfied beyond all reasonable doubt that all the elements of the offence have been proved.  D1 is convicted accordingly.