HKSAR v. Tang Yi Hang

DCCC 1001/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1001 OF 2012

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Reasons for Verdict

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1.Defendant faced four charges including acting as and claiming to be a member of a triad society; assault occasioning actual bodily harm and criminal damage.

2.The prosecution case was that a group of 10-odd people holding glass bottles went into an internet café shouting for triad-related persons, they then attacked a patron with the glass bottles and damaged the computers therein.  Seeing the incident, the boss held a knife guarding the doorway.  The assailants then had to jump off from the window at the first floor to escape.  The boss then went down only to find the defendant lying on the ground bleeding around the corner of the building.  The prosecution inferred that the defendant was one of the assailants while Mr Hui for the defendant submits that the identity was in issue and there was insufficient evidence to draw irresistible inference that the defendant was part of the group.

3.The prosecution called upon the boss, the arresting officer and a triad expert to give evidence, however, the victim did not attend because the witness summons could not be effectively served on him.

4.PW1, Mr Lau Hoi-shuen, said that at about midnight on 20 August 2012 a group of 10-odd people went into his cyber café at 1st Floor, Shop 106, Ka Kwai Arcade, Yau Tong.  They first just walked round and went out, some of them were holding glass bottles.  Fearing that they may destroy his properties he called the police by then but then the group came in again and said not allowing anyone to call police or they would hit the one who did so. They further said something relating to followers of numbers, they then proceeded to use the glass bottles to hit the head of Mr Luk Kin-ming, a part-time staff and patron.  Mr Luk was then bleeding.  The computers were also thrown and damaged by the group (see photos P1 (16, 18, 20 and 21)).  By that time, as he had been cutting some fruit in the kitchen with his chopper, he then held the chopper guarding the doorway to prevent them from leaving (photo P1 (4)) but someone in the group said “We are of Sun Yee On, you let me go and we would compensate you”.  He refused and then the group managed to demolish a window grille (photos P1 (22 to 24)) and then jumped off one by one to escape from the 1st floor to the ground.  He intended to catch the last one but in vain.  He then went down only to find the defendant lying on the ground and could not walk around the corner of the building.  The defendant was just about 35 feet away from the ground spot underneath the said window (photos P1 (26 to 30)).

5.Under cross-examination Mr Lau agreed that the incident was chaotic and it was dark and dim inside the café as all the curtains were closed.  He said he was also nervous and afraid.  He also admitted as there was only the defendant lying there it was the only reason why he told police that the defendant was part of the group.  He even agreed that it was possible that the defendant was not one in the group.  Lastly, he said it took him about 6 to 7 minutes from the time he saw the last one jumping off and when he found the defendant.  He also said he needed to go downstairs passing the park and went to the place around underneath the window.  He also found that about 10 computers were destroyed and the replacement cost was about $40,000 to $50,000.

6.PW2, Ma Kwai-cheung, PC13354, was the one who came to the scene and later arrested the defendant.  He found the defendant’s right ankle was hurt and bleeding and he was lying on the ground.  He further said the defendant told him when he jumped down Lau held a chopper and chased him, but when cross‑examined he agreed that the above conversation was not recorded and that in fact after caution defendant did not say anything.  He also agreed later that day the medical doctor attending the defendant said the defendant was not fit to give any statement. 

7.PW3, Detective Sergeant 20590, Mr Choi Tak-ming, gave evidence as triad expert.  His statement was admitted pursuant to section 65B of the Criminal Procedures Ordinance (P2). He further elaborated in court that the incident of a group of 10-odd people holding glass bottles, shouting for persons concerning numbers, were activities of a triad person showing force.  Numbers was an abbreviation of 14K in triad society.  Sun Yee On is also an active triad society in his statement.

8.Defendant elected not to give evidence.  No adverse inference could be drawn against him.  The defendant has no burden to prove anything, the entire burden rests upon the prosecution to prove the case beyond all reasonable doubt. 

9.Mr Hui submits the crux of the matter is whether the defendant was one of the group causing criminal damage in the cyber café.  He says the incident was chaotic and fast-happening. The light was dim and the boss could not review the matter in great detail. However, I assess that Mr Lau had already tried his best to tell what he actually saw without exaggeration or fabrication.  He did witness the part-time staff was hurt by the glass bottle by that group of persons.  They also damaged and threw the computers to the ground.  When confronted and blocked by Mr Lau, someone in the group also disclosed their triad affiliation and even promised by compensation. I found Mr Lau a truthful and reliable witness. 

10.From all the circumstances, no doubt this group of 10‑odd people were clearly acting as members of a triad society and did cause damage to the computers and the window grille of the cyber café intentionally.  Further, they also assaulted Luk Kin-ming causing him bleeding of his head.

11.However, the crux is whether one could be sure that the defendant was part of the group of assailants.  Mr Lau did witness the group jumping off from the window one by one.  He tried to catch the last one but in vain and he did not see anyone injured by then.  From photo P1 (26), the window was about 10-odd to 20-odd feet above the ground. (P1 (28 to 31)) showed the place underneath the said window and it was about 35 feet away from the fire hydrant where one may see the bloodstain and it was the place where the police found the defendant lying with his right ankle hurt and bleeding.

12.Although the arresting officer also mentioned that the defendant had admitted to him that he had jumped from the window and was chased by someone holding a knife, these words were not properly recorded nor said after caution.  The defendant also seemed not to be at a normal, fit or fully conscious state.  I shall attach no weight whatsoever for what the police had heard from the defendant.

13.What is left was simply the defendant hurt his ankle and bled, lying at a place about 35 feet away from the spot underneath the window, where about 6 to 7 minutes ago a group of assailants were seen jumping off from the said window.  It was about midnight, Mr Lau went down, taking time to pass through a park to reach the spot where there was no one but the defendant there.  Mr Lau admitted it was the only reason why he thought defendant was part of the group.  He also frankly admitted there was possibility that defendant was not part of it, yet there wasn’t any further elaboration.

14.Nonetheless, the facts were that at around midnight, nobody else but the defendant found lying down and bleeding just 35 feet away from the place underneath the window where just some minutes ago a group of assailants had jumped down therefrom.  What other possibility or inference one may possibly draw, particularly when considering all these background circumstances and in the absence of any other evidence to indicate or suggest otherwise?

15.I come to the conclusion that the only irresistible inference was clearly that the defendant must have had jumped off from the said window, he hurt himself and could not escape.  Defendant was no doubt part of the group who had been acting as members of a triad society, assaulting the victim and damaged the properties inside the cyber café.

16.I therefore found that the prosecution had proved all the charges beyond all reasonable doubt except the 4th charge of claiming to be a member of a triad society where there was simply insufficient evidence to show whom had actually uttered the words.  To that, I had already ruled no case to answer on this charge.

17.The defendant is therefore convicted on charges 1 to 3 but acquitted on the 4th.

Please refer to CACC146/2013 for the relevant appeal(s) to the Court of Appeal.