HKSAR v. Malkit Singh and Another

DCCC 1074/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1074 OF 2014

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Reasons for Verdict

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1.There are 3 defendants and 4 charges in this case. D1 faces one count of blackmail alone (charge 1). D2 and D3 are jointly charged with one count of wounding with intent (charge 2). D2 and D3 each faces one additional count of resisting a Police officer in the due execution of his duty (charge 3 and 4 respectively).

2.During the course of PW1’s evidence-in-chief, he categorically stated that he had made a mistake in identifying D1 as one of the people who had blackmailed him. As a result of this evidence, I ruled that there was no case for D1 to answer against charge 1 and acquitted him. This Reasons for Verdict therefore deals only with charges 2, 3 and 4.

Background

3.PW1, Mr. Singh, was attacked on the street by some people on 19^th October. One of the people who was present around the time of the attack in the vicinity was D1. D1 was one of the two people whom PW1 thought had blackmailed him on 1^st October.

4.D2 and D3 in turn took part in the attack on PW1. They put up resistance against the Police officer who was present at the time of the attack and who tried to stop them from carrying out or continuing with the attack. The two were eventually arrested at scene.

5.It is the prosecution’s case that D2 and D3 had taken part in the attack on PW1 and had intended to and did cause PW1 grievous bodily harm, together with two unknown persons. It is also their case that D2 and D3 had resisted the Police officer when they struggled against being controlled from carrying out or continuing with the attack.

Issues

Charge 2

In relation to D2

6.First of all, can the prosecution prove that D2 was in the course of attacking PW1 with a hockey stick when the Police officer PW2 saw that and intervened by tackling D2 to the ground.

7.Secondly, the prosecution must prove that D2 was taking part in a joint enterprise together with D3 and two other people in their attack carried out on PW1. Only then can D2 be found to have caused grievous bodily harm to PW1.

In relation to D3

8.The prosecution must first prove that D3 did assault PW1 in the way as described by PW1, and that the assault had caused the injury to PW1 as alleged by PW1 and described in PW1’s medical reports. The prosecution must also prove that D3 had intended to cause PW1 grievous bodily harm. Just as with D2, the prosecution will also have to prove that D3 was in the attack together with D2 and the two other unknown people.

Charge 3 and 4

9.It is for the prosecution to prove that the Police officer PW2 was in the due execution of his duty when he tackled D2 and D3 respectively, and that D2 and D3 did resist the Police officer. Since D3 had raised the issue of excessive force, it is also for the prosecution to prove beyond reasonable doubt that the officer did not use excessive force when trying to subdue the defendant.

Summary of prosecution evidence

10.The prosecution called 3 witnesses. They are, the victim in charge 2, the Police officer involved with charges 3 and 4, and a civilian witness who was one of the passers-by who stepped up to assist the Police officer to control and subdue D2.

PW1’s evidence

11.At around 12pm on 19^th October, while PW1, a driver by occupation, was standing next to his vehicle, PN1447, that was parked outside Alpha House on Peking Road (see photo 4, P-23 for position of vehicle), 4 to 5 men rushed over from the direction of Nathan Road, where the sign “SASA” is in photo 4 of P-23. They were shouting when they rushed over. PW1 saw that among them were men holding a hockey stick, a beer bottle and a wooden stick. PW1 also claimed that one of the men was wearing something like a knuckleduster on his right hand.

12.PW1 said he did not see clearly the facial features or the identity of the person holding the beer bottle since there were many people. Later on, it was pointed out to PW1 in cross-examination by D3’s counsel that in a statement he made on 20^th October, PW1 positively identified one Harjot Singh as the person who was holding a beer bottle. PW1 also stated in that statement that this Harjot Singh was one of the two people who had blackmailed him previously on 1^st October. PW1 responded in court that he had made a mistake about the identity of that person as well. In fact, he did not see who the 4 to 5 men that rushed over from the direction of SASA were, given their distance and the presence of other road users.

13.On seeing the men rushing over, PW1 got scared and immediately jumped over the railings next to his vehicle and went inside the nearby ISA shop. There PW1 made a 999 call.

14.Police officers arrived about 5 to 6 minutes after PW1’s 999 call. They met up with PW1 outside the nearby Imperial Hotel. PW1 showed them the statement that he had made on 1^st October at Sham Shui Po Police station and talked about how he did not have any dispute with anyone in his life and did not know why they wanted to attack him.

15.The Police and PW1 returned to the front of PW1’s vehicle. When there, PW1 saw a person whose face resembled the person who had blackmailed him on 1^st October walking at the traffic signal crossing, and PW1 pointed him out to the Police as such. The man was then arrested by the Police and taken away. PW1 then in court said that the man’s face “quite resembled” that of the person who demanded money from him, but that “he was not that person”. When the prosecutor pointed out that it was not disputed that the person who was arrested was D1, PW1 said, “I do not want to say anything in this.”

16.After D1 was taken away, PW1 stayed behind with another Police officer, PW2, to wait for PW1’s friend to come to take over the vehicle so that PW1 could go to the Police station to assist in the investigation.

The attack

17.While they were waiting near the vehicle, a man holding a hockey stick approached PW1. The way that the hockey stick was being held caused PW1 to believe that he was about to be attacked. PW1 immediately notified the Police officer about the imminent attack, whereupon the officer immediately pushed PW1 aside and went to tackle the man. They both fell and the man continued to struggle with the Police officer. As far as PW1 was aware, this man who was later subdued by the Police officer with the help of some passers-by was Malkit Singh, D2.

18.While PW2 was struggling with D2 on the ground, 3 other men attacked PW1 who had moved towards the rear right wheel area of the vehicle. PW1 recognized one of the 3 attackers as Gurpreet Singh, D3.

19.D3 was holding a hockey stick and used it to hit PW1 two times, once on his left face and once on his left forearm. When D3 was about to hit PW1 a third time, PW2 caught hold of D3 and tackled him to the ground by holding D3’s legs.

20.Just after D3 tried to hit PW1 a third time and was tackled to the ground, someone else used a bottle to hit PW1’s head. PW1 said he was not able to recognize the person who had hit him with the bottle and that he had escaped right after hitting PW1.

21.D3 was also subsequently subdued by the Police officer.

PW2’s evidence

22.PW2 was in uniform patrolling in the vicinity of Chung King Mansion when he and his colleagues received a report of a case concerning a dispute when they went to Peking Road near Nathan Road to meet up with the informant, PW1.

23.While they were standing near PW1’s vehicle, PW2 saw a man walked towards them from Peking Road, shouting something in a language that PW2 did not understand. The informant was also pointing at the man and spoke in a language that PW2 did not understand.

24.PW2 therefore, together with 3 other Police officers, approached that male to investigate. While his colleague PC12768 was carrying out the investigation with the male, PW2 stayed with the informant. In the end, PC12768 arrested the male. It is not disputed that the male who was arrested was D1, Harjang Singh.

25.PW2’s colleagues then took D1 back to the Police station while PW2 stayed behind with PW1 to wait for PW1’s friend to come to take over the vehicle that PW1 was using.

26.PW1 and PW2 stood about half a meter from the front to PN1447 as seen in photo 4 of P-23 while they waited. About 5 minutes into their wait, a foreign male suddenly came rushing out from the right hand side of the vehicle, holding up a hockey stick in his right hand, with his arms up facing PW1, trying to attack PW1. The man was about 1 odd meter from PW1 when the Police officer first noticed him approaching. It is PW2’s evidence that because the man was holding the hockey stick as if someone holding a sword high above his head about to strike, he felt that the man was going to or trying to attack PW1.

27.PW2 immediately went forward to try to stop the male. PW2 held the male’s right hand and tried to stop him from going forward. There was a struggle and they both fell to the ground. The man tried to get up but was not able to because PW2 continued to hold on to him. They struggled on the ground for a period of time, with the man waving both his hands trying to free himself. The man’s struggling was quite forceful. It is PW2’s evidence that he did say to the man in English, ‘stop resisting’.

28.The struggle lasted about 2 minutes and PW2 eventually used his body to press him on the ground and was able to bring the man under control despite the man still trying to push the officer away. PW2 asked the man in English not to continue to resist him and that he was going to arrest him. Yet the man continued to try to push PW2 away.

29.Then several passers-by came up to assist the officer and the man was subdued. PW2 then proceeded to declare arrest on him for possession of offensive weapon and resisting arrest. It is not disputed that D2 was the person whom PW2 had arrested.

30.Right after declaring arrest on D2, PW2 looked over towards PW1 and saw that he was being attacked by another foreigner person, who was holding a hockey stick in his right hand. The stick was of the same colour as the one that D2 was holding before PW2 had tackled him, and which had fallen to the ground during the struggle. PW2 believed that they were the same hockey stick.

31.PW2 saw that the head of PW1 was bleeding. Blood was on the left side of his head near the forehead area, under the hair. PW2 saw the man used the hockey stick to hit PW1’s head and that was why PW1’s head was bleeding.

32.PW2 immediately went forward to stop the attack on PW1, which was taking place at the rear right wheel area of the PN1447 vehicle in photo 4 of P-23.

33.PW2 ran over and held the man around his waist area and tackled him to the ground. PW2 then continued to press him on the ground with his own body. The man however kept on struggling. PW2 tried to hold on to his wrists but the man kept trying to push him away. PW2 called for reinforcement on his beat radio. When the man saw PW2 releasing his grip, he continued to put up resistance.

34.PW2 then decided to turn over the man so that he could handcuff him with his hands behind his back. While PW2 was doing that, the man suddenly bit PW2 on the inner side of his right forearm for about 20 to 30 seconds. The bite was very forceful and PW2 was not able to pull his arm away. PW2 used English to tell him to release his bite but the man did not do so. It was only when other passers-by came to offer assistance to the Police officer that the man released his bite.

35.PW2 eventually declared arrest on the man. It is not disputed that this man was D3, Gurpreet Singh.

36.During cross-examination, PW2 stated that he saw PW1 being attacked by just one man; that he did not see a male with a beer bottle or someone wearing a knuckleduster. PW2 also did not hear the sound of a beer bottle being smashed, nor did he see PW1 being hit in the head by someone with a beer bottle. PW2 however confirmed that he did see D3 attack PW1 with the hockey stick and that PW1’s head started to bleed only after he had been attacked. PW2 only saw D3 hit PW1’s head with the hockey stick once.

37.PW2 disagreed that he had used ‘extreme force’ on D3 when he tried to subdue him.

PW3 Mr. Suen Tsz Ho’s evidence

38.Mr. Suen was one of the passers-by who stopped to assist PW2 to subdue D2. It was around 12pm to 1 pm on 19^th October when Mr. Suen’s attention was first caught by shouting and the sound of a bottle being smashed on the opposite side of the road that he was at that time on.

39.Mr. Suen looked over and saw a Police officer struggling with a South Asian male on the ground in the vicinity of Alpha House. He therefore approached them and tried to help to subdue the male. The position of the Police officer and the male was about 1 meter in front of the PN1447 vehicle in photo 4 of P-23 and very close to the kerb.

40.At about the same time, Mr. Suen also saw two other men who were standing next to the PN1447 vehicle struggling with each other.

41.Nevertheless, Mr. Suen went to assist the Police officer and he saw the Police officer and the male were both on the ground and the officer tried to pin down the man and turn him over. That was the time when PW3 reached them and started to help the officer by kneeling on the male’s legs to press them down. Later on, another two passers-by came and they also helped to subdue the man. The man kept struggling and PW3 had to match his force, using both his hands to hold on to the man’s ankles and press them to the ground. PW3 heard the Police officer asked for help and for someone to call the Police in Cantonese. The struggle lasted only a short time.

42.Shortly afterwards, Mr. Suen saw the Police officer turned to another direction and then ran off towards the rear of the vehicle. Mr. Suen did not see what the Police officer was running to, nor what he did when he got there because his line of sight was blocked by the PN1447 vehicle. The man however did continue to struggle even after the Police officer had left.

43.During cross-examination by D3, Mr. Suen remembered that he had in fact heard the noise of bottle breaking twice. The first time he heard it, he thought it was the sound of car window being broken. The second time he heard it was while he was helping to subdue the man. He was however not sure whether the sound was after the officer had left them or while he was giving assistance.

44.Mr. Suen also recalled that in relation to the two other men who were struggling, one was holding a stick, but he was not sure who it was.

Defendants’ evidence

45.Both D2 and D3 elected not to give evidence nor call any defence witnesses.

Findings

46.The burden is on the prosecution to prove beyond reasonable doubt all the elements of each individual offence against each individual defendant.

47.D3 is of clear record. The fact that he is of good character may mean that he is less likely than otherwise might be the case to commit the crimes that he is being charged with now.

48.The defendants had elected not to give evidence. The fact that they had chosen not to give evidence proves nothing, one way or the other. It does nothing to establish their guilt. On the other hand, it means that there is no evidence from the defendants to undermine, contradict or explain the evidence put before the court by the prosecution.

Charge 2

PW1 as a witness

49.Having heard the evidence of PW1, I find that he is not a completely reliable or credible witness. The reasons are as follows.

50.According to PW1, on 1^st October 2014 at around 8 am, two men went up to him in his car and asked him through the opened window for money. They demanded $50,000 and threatened that if they were not paid they will beat him up. PW1’s evidence in court is that he had never seen those men before that day and he did not know who they were.

51.It is not disputed that PW1 went to the Police station the same day to file a report and made a statement. In that statement, contrary to his evidence in court, PW1 positively identified the two men who blackmailed him and gave their names to the Police. He also referred to them as his ‘Indian friends’. When PW1 was cross-examined about that, he gave the explanation that he told the Police those names ‘because their faces resembled so much, so I thought that it was that person but it was not’.

52.During examination-in-chief, PW1 was specifically asked who Harjang Singh (D1) was and if PW1 knew any person by that name. PW1’s answer was ‘no, I had heard this name.’ PW1 was then asked if he had seen this person before and he answered no at first, but then added that, ‘I might have seen, but a long time ago’. Yet, D1 was the person whom PW1 had positively identified to PW2 on 19^th October to be one of the people who had blackmailed him on 1^st October.

53.I find the fact that PW1 thought he could identify the two men who blackmailed him, even to the extent that he was able to name them, and yet ultimately find that he had made a mistake when he gave evidence in court show that PW1 is, first of all, not an entirely reliable witness.

54.In addition to being unreliable, I find that there is also ground to suggest that PW1 was not telling the whole truth in relation to certain facts. I find it dubious that PW1 would make such a mistake as to the two men who blackmailed him, given that he had told Police that those two men were his friends. If those two men were really his friends, the chance of PW1 mistaking their identity should be small. Which would lead to the suggestion that PW1 may have for some reason decided to change his evidence and claimed that he had made a mistake. If that was the case, it would make PW1 an incredible witness.

55.If the two men were not in fact his friends and PW1 in fact did not recognize them at the time, then PW1 would have lied to the Police and had made up two names to give to the Police, which also makes PW1 not a credible witness.

56.I find that the cumulative effect of PW1’s change of evidence regarding the identity of the two men who allegedly blackmailed him is to render him an unreliable and incredible witness in relation to the identities of his assailants. I find that this would inevitably cast a doubt on the evidence he gave in court in relation to the attack that took place on 19^th October as well. For this reason, I find that I have to take extra care when assessing his evidence regarding the attack on that day. Having said that, I do find that PW1 was telling the truth as to how he was attacked on the day.

57.There is of course also the evidence of PW2 and PW3 to consider. PW2 is a Police officer who was called to the scene to investigate and PW3 is a passer-by who had nothing to do with either the defendants or the Police officer. Both can be regarded as independent witnesses in relation to the attack.

58.I find PW2 and PW3 to be honest and reliable witnesses. I find that D2 did rush at PW1 while holding a hockey stick in his hand, raised and as if about to strike. I find that the only inference from that evidence is that D2 did in fact intend to use the hockey stick to strike PW1.

59.I find that PW1 was telling the truth when he said that he was being attacked by D3 with a hockey stick and then by another unknown male with a bottle. I find that after PW2 had subdued D2, he did turn around and saw PW1 being attacked by D3.

60.I note the following discrepancies between PW1 and PW2’s evidence. It is PW1’s evidence that D3 hit him twice, once on his left face and once on his left forearm. There was no mention of him being hit by D3’s hockey stick on the head. It is however PW2’s evidence that D3 hit PW1 once on his head and that PW1’s head started to bleed after being hit.

61.Another discrepancy between PW1 and PW2’s evidence is where PW2 said he did not see anyone else other than D3 attacking PW1 and that the Police officer did not see anyone hitting PW1’s head with a bottle.

62.I find however that these are not significant discrepancies. I find that what happened was that when PW2 looked up and saw D3 attacking PW1, PW2 immediately went over to tackle D3, and it was right around the time when D3 was being tackled that someone else used a bottle to hit PW1’s head. I find that PW2’s full attention would be on subduing D3 once he decided he needed to tackle D3 to protect PW1, and he would not be in a position to pay attention to what was happening with PW1 once he started to struggle with D3.

63.I find that PW1 was telling the truth when he said that he was attacked by D3 and 2 other males and that his head was being hit by a beer bottle after D3 had attacked him with a hockey stick. This part of PW1’s evidence is supported by the independent evidence of PW3, who said that he had heard the sound of glass bottle being smashed at around the time of PW1 being attacked.

64.I find that it does not matter whether PW1’s head bled as a result of being hit by D3 with the hockey stick or as a result of being hit by the unknown person with a beer bottle. The reason being that, I find it is an irresistible inference that D2, D3 together with the 2 other unknown people who attacked PW1 while he was there waiting with PW2 were in the assault together.

65.It could not have been mere coincidence that two different groups of South Asian male decided to attack PW1 on the same day at the same time independently. The timing of D2’s attempted attack on PW1 with the hockey stick, together with the close proximity in time and location of the follow up attack by D3 with the same hockey stick on PW1, and together with the attack by the unknown person with the beer bottle on PW1’s head was no coincidence.

66.I find without reasonable doubt that D2, D3 and the two unknown people were in the attack together.

67.I find in relation to D3 that he did in fact use a hockey stick to attack PW1. I find that PW1 was telling the truth when he said that D3 had used the hockey stick to hit him twice, once on his left face and once on his left forearm. I do not find the discrepancy between PW1 and PW2’s evidence as to how many times D3 had hit PW1 a significant discrepancy. PW2 only saw D3’s attack on PW1 after PW2 had subdued D2. I find that PW1 is telling the truth when he said that the attack on him by D3 and the others had started while PW2 was still dealing with D2. That was why PW2 might not have seen all of the attacks by D3 on PW1. As for the position of hitting, being hit on the left face would have seemed similar to being hit on the head, which was what PW2 thought he saw.

68.I find that PW1 did suffer the injuries as described in his two medical reports in P-19 and P-20, which were read into evidence pursuant to s.65B of the Criminal Procedure Ordinance, Cap.221.

69.The P-20 report was prepared by the A&E department of Queen Elizabeth Hospital. There it is stated that PW1 suffered left forehead laceration, four laceration wounds over upper back region and deep laceration over left upper arm with suspected tendon cut.

70.The P-19 report was prepared by the Department of Orthopaedics and Traumatology. PW1 was found to have superficial laceration on his arm, back and scalp. Surgical toilet and suturing was performed and PW1 was discharged the following day. Follow up treatment showed that the wounds had healed well and there was no need for orthopaedic follow up.

71.I find that these injuries did not exist at the time PW2 was waiting with PW1 by the side of PN1447 and prior to the subsequent attacks. I find that PW1 was telling the truth when he said that he had suffered injuries from the attacks by D3 and the unknown people. I find that the injuries listed out in the reports are the injuries caused by the attacks. I find that they are serious injuries and together amounted to grievous bodily harm. The injuries also corroborate PW1’s evidence as to where on his person was hit.

72.I find that there was no lawful reason for D2, D3 and the unknown people to so attack PW1. I find that the use of hockey stick and beer bottle to attack PW1 in the manner described by PW1 and PW2 prove that they had acted with malice. I find that the fact that a hockey stick and a beer bottle were used in the attack also prove that the assailants had intended to do grievous bodily harm to PW1 in the attack. I find that judging by the injuries suffered by PW1, they did do grievous bodily harm to PW1.

73.I therefore find D2 and D3 guilty of charge 2.

Charge 3

74.I find PW2 and PW3 honest and reliable witnesses.

75.I accept PW2’s evidence that when he saw D2 rushing at PW1 with the hockey stick held high as if to attack, D2 was in fact on his way to attacking PW1. As a Police officer, it was his duty then to prevent the attack from taking place. He was therefore entitled to tackle D2 to the ground. When D2 continued to struggle with this Police officer in uniform, right after he had tried to use a hockey stick to attack another person, it is obvious that D2 was resisting the Police officer in the due execution of his duty, which had then changed from preventing the crime from happening to apprehending the perpetrator of the attempted attack.

76.It is PW2’s evidence that at the time of struggling with D2, he had told D2 not to resist. Yet D2 did not comply and continued to struggle against being controlled by the uniformed Police officer. I find that D2 must have been able to see the uniform that the Police officer was wearing and be at least aware of the possibility that he was in fact a Police officer. If D2 was in fact, as his counsel pointed out to the witness during cross-examination, just there to say hi to PW1, there is no reason why D2 would not just tell the officer that he was making a mistake in tackling him. Any reasonable person would no doubt stay still and tell the officer to calm down. D2 did none of that. The evidence from PW2 and PW3 is that at no time did D2 say anything to them and at no time did D2 mention that they were making a mistake. All D2 did was kept struggling against being controlled by the Police officer, and then against being controlled by the passers-by, despite having been told that he was under arrest.

77.I find that D2 was wilfully struggling against the Police officer who was executing his duty to apprehend D2 who had attempted to attack PW1 (as apparent to PW2 at the time). I find that D2’s struggling amounted to resisting PW2’s apprehension and find D2 guilty of charge 3.

Charge 4

78.I find PW2 honest and reliable.

79.When PW2 saw D3 attacked PW1 with the hockey stick and decided to go up to tackle D3, the Police officer was executing his duty of crime prevention as well as protection of PW1 from further harm from the attack. I find that PW2 was acting in the due execution of his duty when he tackled and then sought to subdue D3.

80.I find that D3 did put up a strong struggle against PW2, a uniformed Police officer. There was no reason why D3 would not know that the Police officer was trying to subdue him for what he had just done. I find that the only irresistible inference must be that D3 was struggling because he did not want to be apprehended by the Police officer.  I find that D3 did bite PW2 during the struggle. This is corroborated by the finding of the medical officer in exhibit P-21, where it was found that there was right elbow abrasion, the place where PW2 alleged to the doctor he was bitten on.

Excessive force?

81.A photograph was admitted into evidence by agreement between D3 and the prosecution. The photo shows PW2 controlling D3 who was lying with his back on the ground. It was suggested by D3’s counsel to PW2 that during his subduing of D3, PW2 had used his leg to press against D3’s torso, twisted his thumb to cause D3 to scream in pain, and PW2 would from time to time use his right leg to press against D3’s private parts and the lower part of his belly.

82.PW2 disagreed that he had done those things to D3. His evidence is that the photo merely showed one snapshot of what was going on. In fact, at around that time, D3 had previously held on to PW2’s left wrist with his left hand and that was why the officer was seen to be pulling D3’s hand away with his right hand. Both the officer’s feet were on the ground and the officer was just trying to subdue D3.

83.I accept PW2’s evidence and find that he did not use excessive force in the course of his subduing D3. One must not forget that D3 did not just struggle but had also bitten PW2 on his arm and held on for a short time. It goes to show the fierceness of D3’s struggle and PW2 had to use reasonable force to try to subdue D3, someone who chose to carry out an attack on another person despite the presence of a uniformed Police officer in the immediate vicinity.

84.I find that the continued struggling by D3 amounted to resisting PW2 in the due execution of his duty and find D3 guilty of charge 4 accordingly.