區域法院（刑事）Deputy District Judge Bernard Chung1/10/2024[2024] HKDC 1640
DCCC807/2022
A A
B B
DCCC 807/2022
[2024] HKDC 1640
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 807 OF 2022
F F
G ------------------------------ G
HKSAR
H H
v
I BRAR Sukhwinder Singh 1st Defendant I
LOVEPREET Singh 2nd Defendant
J J
PRABHDEEP Singh 3rd Defendant
K AMIT 4th Defendant K
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Before: Deputy District Judge Bernard Chung
M Date: 2 October 2024 M
Present: Mr. Laskey, Edward F. Le B, counsel on fiat, for HKSAR
N N
Mr. Wright John Charles, instructed by Messrs Morley Chow
O Seto, assigned by the Director of Legal Aid, for the 1st O
Defendant
P P
Mr. Allan William G., instructed by Messrs Mohnani &
Q Associates, for the 2nd & 4th Defendants Q
Mr. Shah Mohammed Jawadullah, instructed by Messrs
R R
Cheung, Yeung & Lee, Solicitors, assigned by the Director of
S Legal Aid, for the 3rd Defendant S
Offence: [1] Wounding with intent (有意圖而傷人)
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[2] Theft (盜竊罪)
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C REASONS FOR VERDICT C
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D D
E Introduction E
F F
1. This case concerns a vicious attack with sharp weapons by a
G group of attackers on 2 victims, Lovepreet SINGH (PW1) and Sukwinder G
SINGH (SS), which occurred in the small hours on 5 November 2021 at
H H
their residence at Room No. 1, 6th Floor, Nos. 459-461 Hennessy Road,
I Wanchai (The Room). I
J J
2. There are 3 Charges on the Charge Sheet, involving 4
K defendants, BRAR Sukhwinder Singh (D1), LOVEPREET Singh (D2), K
PRABHDEEP Singh (D3) and AMIT (D4). Charge 1 “Wounding with
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intent”, contrary to section 17(a) of the Offences against the Persons
M Ordinance, Cap.212, is against all defendants. It alleged that they took part M
in the said attack on the 2 victims. Charge 2 “Theft”, contrary to section 9
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of the Theft Ordinance, Cap.210, is against D2 only. It alleged that during
O the attack D2 stole part of a gold chain belonging to SS. Charge 3 “Doing O
an act or a series of acts tending and intended to pervert the course of public
P P
justice”, contrary to Common Law and punishable under section 101I(5)
Q of the Criminal Procedure Ordinance, Cap.221, is against D1 & D2 only. Q
It alleged that 3 days after the attack, D1 & D2, through another person,
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urged the 2 victims not to pursue the matter, which had been reported to
S the police. S
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3. At the commencement of the proceedings, citing absence of a
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key witness, prosecution applied to withdraw Charge 3 against D1 & D2.
C There was no objection by the defence. The application was granted and C
the trial proceeded on Charges 1 & 2 only. All defendants entered pleas of
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Not Guilty to the Charge(s) they are facing.
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Prosecution’s Case
F F
G 4. There is no dispute that the vicious attack on PW1 & SS as G
stated in Charge 1 did take place. Some of the evidence relating to the
H H
background of the case and other formal evidence are admitted under
I section 65C of Cap.221 (exhibit P1). I
J J
5. It is not in dispute that the 2 victims received medical
K treatment at the Ruttonjee Hospital in the small hours of 5 November 2021. K
Both sustained multiple laceration wounds as stated in their respective
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medical reports and shown in the photographs taken 3 days afterwards, P2,
M P3 and P8 for PW1, and P4, P5, P6 and P9 for SS. D1 was arrested on 24 M
November 2021, D2 on 27 November 2021, D3 and D4 on 14 February
N N
2022 respectively.
O O
6. It is also not in dispute that on 15 February 2022, in an
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Identification Parade, both PW1 and SS positively identified D3 and D4;
Q and on 26 April 2022, in a photographic Identification Parade, both PW1 Q
and SS positively identified D1 and D2. However, no particulars have been
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given in what capacity the defendants had been identified as.
S S
7. Prosecution called only PW1 to testify viva voce. It is
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common ground that all allegations against the defendants came from him.
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Therefore, the main issue in this case is the credibility in general, and the
C reliability of the identification of the defendants as the assailants in C
particular, of PW1. As such, I shall first set out in some details the more
D D
important aspects of his evidence.
E E
8. PW1 was born in India and received education there. He
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settled in Hong Kong since 2015. He came to be acquainted with SS in
G 2016 as they both visited the Sikh Temple in Wanchai (The Temple) G
regularly. At the times material to this case, he and SS lived together at the
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Room.
I I
9. 4 November 2021 was the day of the Diwali, one of the most
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auspicious annual festival of the Sikh People. There were ceremonies held
K at The Temple to celebrate the festival with lots of Sikh people attending. K
On that day PW1 and SS attended The Temple as volunteers to assist in the
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celebration ceremonies. Food was served free of charge in The Temple, but
M people were only allowed to take them at the communal dining hall therein, M
called the Langar.
N N
O Incident at The Temple O
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10. At around 6:30 p.m. that day PW1 was responsible for crowd
Q control at the rear entrance of The Temple. There he saw a group of about Q
8 to 10 people taking food thereat and blocking the way. He had seen 3 of
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them before many times, 7 to 8 times he added. They were Sukha, Lovely
S and Happy (subsequently identified as D1, D2 and D3 respectively). He S
asked them to move on to clear the way for others, whereupon the group
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shouted back to say it was none of his business. SS was also present at the
C time. C
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11. He and SS finished their duties and left The Temple at around
E 11 p.m.. It took them about 10 to 15 minutes to walk home. Upon return to E
their residence PW1 took a shower, stayed awake for a while and then went
F F
to sleep.
G G
The Attack
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I 12. At around 4:45 a.m. PW1 was awaken by some loud noise. I
He then saw a group of 5 people, 4 of them rushed into the Room with the
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other one staying at the entrance. He said he could see and recognize 3 of
K them, viz., Lovely (D2), Happy (D3) and Charlie (whom he later identified K
as D4). He even gave detailed descriptions of the clothing worn by D2 and
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D3, but not D4 as he did not pay attention to it. He did not see the other 2
M but he said SS told him later that they were Sukha (D1) who had also M
entered the room and another called Jaggi who stood at the entrance.
N N
O 13. 2 of the men, i.e. D2 and the other person he could not see, O
shouted “cut off their fingers”, whereupon, they began to attack him. He
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said D2 and the other man attacked him with knives, D3 with a Kara, a
Q religious accessory worn by most Sikh people, and D4 with an iron rod. He Q
said he received several cut wounds by the knives on his head and left
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thumb, 4 cut wounds on his head by the Kara and 2 to 3 blows by the rod
S on his right leg, all happened at the same time. S
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14. PW1 said after D2 and the other person had attacked him, they
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then attacked SS, who was just next to him at the time, with the knives they
C were holding. The other 2, i.e., D3 and D4, did not attack SS. He also saw C
D2 pulling the gold chain from the neck of SS, an accessory which SS wore
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permanently, causing it to break into two halves. D2 took away one half of
E the chain, leaving the other half with SS. The assailants then left and PW1 E
called the police for assistance. Not too long afterwards ambulance arrived
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and took him and SS to hospital for medical treatment.
G G
15. At this stage of PW1’s evidence, Mr. Laskey for the
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prosecution purported to ask him to make “dock identification” of the
I people he had mentioned in his testimony. D1 and D3 did not object, but I
on behalf of D2 and D4 Mr. Allan objected, on the basis that 2
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Identification Parades had been held, it was not necessary to perform “dock
K identification” in Court, and as “Identification” is an issue in the case and K
the Turnbull guidelines apply, it would be prejudicial and unfair to his
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clients if the exercise was to be allowed by the Court.
M M
16. Having carefully considered the evidence as presented so far,
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and the submissions by Counsel, I allowed the prosecution to proceed with
O the “dock identification” exercise. PW1 then identified D2 as Lovely who O
was one of the 2 persons who used a knife, D3 as Happy who used a Kara
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and D4 as Charlie who used an iron rod, to attack him as he had earlier
Q mentioned. He did not identify D1. Q
R R
17. PW1 suspected that the attack was linked to the incident in
S The Temple when he was performing crowd control duties during the S
Diwali.
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Cross-examination
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18. Not surprisingly, there was no cross-examination by Mr.
D D
Wright, Counsel for D1. PW1 was then cross-examined, vigorously, first
E by Mr. Shah representing D3, and then Mr. Allan representing D2 and D4. E
F F
19. One of the main areas of attack on PW1’s credibility was his
G failure to identify D1 in Court. He admitted to have given altogether 4 G
witness statements to the police about this case, the first one dated 26
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November 2021 was the only one in which he mentioned about the details
I of the incident at The Temple and the attack. He confirmed that the I
contents of this statement were true and accurate. He was cross-examined
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at length on this statement, and it is obvious that there were major
K discrepancies between its contents and his evidence in Court, in particular, K
in relation to the role played by D1. I shall deal with these discrepancies in
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more detail later. Having considered the nature and extent of the cross-
M examination, in order to put this part of PW1’s evidence in its proper M
context, I exercised my power under section 14 of the Evidence Ordinance,
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Cap.8 and ordered that this statement of PW1, together with a certified
O English translation, be admitted as an exhibit in the case (P10). O
P P
20. This issue of his failure to identify D1 in Court was touched
Q upon several times during cross-examination. Each time he repeated his Q
answer, viz., that he did not see D1 himself during the attack, he was only
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told by SS subsequently of the role D1 had allegedly played. He was told
S in the course of his evidence that he should only say what he himself had S
observed. Therefore, he did not make positive identification of D1 as one
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of the assailants.
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C 21. When asked why he could not see D1 during the attack, he C
said he and SS were attacked at the same time, meaning that he did not
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have opportunity to see every assailant clearly.
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22. He confirmed that a female named Aman Pannu (Ms. Pannu),
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who happened to be in the public gallery when he was giving evidence,
G was his “cousin” and worked in the legal field but he did not know in what G
capacity. He agreed that she was with him in the ambulance when he was
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being conveyed to hospital shortly after the attack.
I I
23. It is D3’s case that the attacked was triggered by a dispute
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between two rival gangs, with D1 on one side and PW1 on the other, and
K that there was a criminal conspiracy of perverting the course of public K
justice, involving at least PW1, Ms. Pannu and D1, to manipulate the
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evidence of PW1 in the present case to ensure D1’s acquittal and frame up
M at least D3. PW1 denied the allegations. He denied having any knowledge M
of communications by Ms. Pannu with other persons about this case.
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O No Case Submissions O
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24. At the end of the prosecution’s case, all defendants, through
Q their Counsel, made halfway submissions and asked the Court to withdraw Q
the Charge(s) from the Jury.
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S 25. Having considered carefully the evidence presented by the S
prosecution and submissions by Counsel, I ruled that, so far as D1 is
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concerned, there is insufficient evidence to establish a prima facie case
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against him on Charge 1, the only Charge he is facing, he is acquitted of
C the Charge. For D2 to D4, there is sufficient evidence for a case to answer C
in respect of Charge 1 against each of them, and Charge 2 against D2.
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E Defence Case E
F F
26. D2 elected not to give evidence nor to call any defence
G witness. G
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27. D3 elected not to give evidence but called 2 DWs, DW1,
I Madam Gurung Riya, the wife of D3, and DW3 Ms. Pannu. I
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28. DW1 was called mainly as an alibi witness. She stated that on
K 4 November 2021, the day of the Diwali, she attended The Temple with K
D3 and their 3 months old baby. They left The Temple at around 7 p.m.
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and returned home in Sham Shui Po. D3 stayed at home with her to take
M care of the baby the whole night, so he could not have been at PW1’s M
residence in the small hours of 5 November 2021.
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O 29. Mr. Shah then intended to ask DW1 to introduce records of O
some WhatsApp messages between her and DW3 in relation to this case,
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with an attempt to establish D3’s case on the existence of a criminal
Q conspiracy of perverting the course of justice to frame up D3. I held a voire Q
dire to decide on the admissibility of these records. Having heard the
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relevant evidence and submissions by Counsel, I ruled that these exchanges
S contained hearsay evidence and are not relevant to the issues in this case. S
Even if I am wrong on this, since PW1 is the only witness called by the
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prosecution on the issue of identification and had denied any knowledge of
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these exchanges, and there is no other evidence to suggest otherwise, the
C prejudicial effect far outweighed its probative value as against PW1, and C
the prosecution’s case as a whole. I ruled that the records of the WhatsApp
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messages are inadmissible.
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30. Mr. Shah proceeded to call DW3, saying that she was the
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maker of some of the messages in the records with an intent to re-introduce
G them. I stood by my ruling. As such, her evidence is of little value to the G
case.
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I 31. D4 elected not to give evidence but called DW2, Mr. Bhagt I
SINGH, the President of The Temple. His evidence basically concerned
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the situation in The Temple during the Diwali on 4 November 2021. He
K was responsible for officiating the ceremonies on that Holy Day. He stated, K
inter alia, that the celebration ceremonies started from 7 p.m. until about 2
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to 3 a.m.. Food was provided to those attending but they could only be
M taken in the Langar, not anywhere else inside or near The Temple. M
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Analysis of the evidence
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32. I direct myself that the burden of proof is on the prosecution.
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It is for the prosecution to prove each element of the offences against each
Q defendant beyond reasonable doubt. The defendants bear no burden of Q
prove. They are not required to prove their innocence.
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S 33. The defendants elected not to give evidence. It is their right S
and no adverse inference would be drawn against them. However, so far as
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D2 is concerned, this means that there is no evidence to undermine,
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contradict or explain the evidence presented by the prosecution.1
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34. I also direct myself that I have to consider the case against
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each defendant on each Charge separately.
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35. D2 & D4 have a clear record in Hong Kong. I direct myself in
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accordance with the principles applicable to this issue.
G G
36. There is no dispute that PW1 & SS were victims of a vicious
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attack in the small hours on 5 November 2021 at their residence in Wanchai.
I Before the trial all defendants served a Notice of alibi on the prosecution I
in accordance with section 75A of the District Court Ordinance, Cap.336.
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It is therefore clear that each of them asserted that he was not at the scene
K of attack, and thus could not have been one of the assailants. As such, K
identification of the defendants is one of the crucial, if not the only, issue
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in the case.
M M
37. PW1 is the only witness called by the prosecution in support
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of the allegations against the defendants. Therefore, the prosecution’s case
O against each of them stands or falls on the credibility in general, and O
reliability of the evidence of identification of the defendants in particular,
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of PW1.
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38. I shall first deal with the credibility of PW1 in general.
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Photographs of the Room, admitted as P7, showed that it was a very small
S room, with beddings on the floor and kitchen utensils placed next to the S
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1
Li Defan v HKSAR (2002) 5 HKCFAR 320.
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beddings, and a toilet at the back of the room. The attack occurred at about
C 4.45 a.m. when, admittedly, PW1 was fast asleep just before the assailants C
charged into the room. From the evidence it is clear that the attack on PW1
D D
and SS was vicious, of short duration and at close quarters. PW1, and for
E that matter SS also, suffered severe cut wounds to their heads and/or hands. E
F F
39. On the face of it, it is not at all surprising that PW1 could not
G see clearly all of his assailants. There is nothing wrong for him not to be G
able to identify D1 as one of the 2 persons who wielded a knife at him.
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I 40. However, when one reads through the contents of P10, a I
statement he gave to the police some 3 weeks after the incident, in
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particular paragraph 6 and Answer to Question 2, it revealed a completely
K different picture. He was familiar with D1 to the extent that he had social K
contacts with D1 and could give D1’s full name and telephone number to
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the police, but not the others. He vividly described what D1 had done
M during the attack, shouting “cut off their fingers” and attacked him with a M
knife. He even said that he saw D1 to D4 also wounded SS and Jaggi did
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not take part in the attack. There was nothing to indicate what he had
O asserted in Court, i.e., that he did not himself see D1 during the attack, only O
to be told of D1’s presence by SS after the incident.
P P
Q 41. Mr. Laskey for the prosecution submitted that as a layman Q
PW1 might not be able to distinguish between hearsay and non-hearsay
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evidence when giving his statement to the police. It might well be so but
S this argument is hardly convincing. The statement started with the usual S
declaration that it is true to the best of his knowledge and belief, with
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PW1’s signature attached to it, and ended with another declaration that the
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contents had been read over by him and interpreted to him in Punjabi, his
C native language. He had been told that he could correct, alter or add C
anything he wish. Surely, he would know what is meant by “the truth”. Had
D D
his assertions in Court been true, I can see no reason why he could not tell
E the police that he was only told by SS as to what he said about D1 and Jaggi E
during the attack.
F F
G 42. The situation is even more startling in relation to the G
allegation of theft of part of the gold chain. There was absolutely no
H H
mention by PW1 of this matter in P10. When asked about this in cross-
I examination, he stated that he could see this as the assailants attacked him I
first, and then on SS. He could therefore see D2 snatching and taking away
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half of the gold chain from the neck of SS. Mr. Laskey submitted that P10
K was about the case of “wounding”. It was understandable that P10 made K
no mention of the gold chain. He submitted that PW1 had ample
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opportunity to observe what the attackers did to SS. However, when PW1
M was first taxed about why he could not identify D1 in Court, he said that M
the assailants attacked him and SS at the same time. Further, he had in P10
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described in some details what happened during the attack. It is difficult to
O accept that he could differentiate between “wounding” and “theft” so that O
he failed to mention this matter relating to the gold chain to the police.
P P
Q 43. The evidence of PW1 is also at variance with other undisputed Q
evidence. The medical reports, P2 & P3, show that when he received
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medical attention in the hospital shortly after attack, he only mentioned
S having been attacked by 3 persons with knives. He did not mention S
anything about being attacked by other weapons like Kara or iron rod.
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There was no truncal injury, which is inconsistent with what he said in
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Court, 2 to 3 blows with an iron rod by D4 on his right leg.
C C
44. PW1 was also evasive in answering some of the questions put
D D
to him during cross-examination. As the incidents occurred during COVID,
E which only ended in early 2023, Mr. Allan tried to explore the situation E
relating to the wearing of facemask by the people at The Temple and asked
F F
PW1 about it. PW1’s answer was that he did not know as he was not sure
G when COVID ended. This, as I see it, was a deliberate attempt by PW1 to G
avoid the issue raised by Counsel.
H H
I 45. It is equally difficult to accept that the incident at The Temple I
would trigger such a vicious attack on him and SS at their own residence.
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There are other aspects of PW1’s evidence which adversely affected his
K credibility in general. I will not list them out here, suffice for me to say that K
I have strong reservation on the general credibility of PW1.
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M 46. I now move on to deal with the reliability of PW1’s evidence M
on identification of D2 to D4. Given the nature of the case and the service
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of the Notices of alibi by the defence prior to the commencement of the
O trial, it is clear that identification is one of the main issues in the case, and O
the legal principles applicable to this issue, commonly known as “the
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Turnbull guidelines”, would be involved.
Q Q
47. However, there is a distinct lack of details presented by the
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prosecution as to the circumstances under which PW1 came to be able to
S identify D2 to D4 as the assailants. For example, there is no evidence as to S
the lighting condition at the time, the duration of the attack and how PW1
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reacted during the attack. There was a 0.5 cm laceration wound on PW1’s
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left thumb. In P10 he said that he tried to ward off the attack by his arms,
C and when asked by Mr. Allan during cross-examination he said he tried to C
push the assailants away, not by covering his head.
D D
E 48. Mr. Laskey emphasized that the prosecution’s case is one of E
“recognition” as PW1 stated that he had seen his assailants 7 to 8 times
F F
prior to the attack.
G G
49. Again, there is a distinct lack of details as to these previous
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encounters. In his evidence PW1 only mentioned having met D1, D2 and
I D3 7 to 8 times before without any elaboration on the circumstances under I
which they met. There could be a big difference between brief encounters
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for a few seconds at a distance or lengthy chats at arms-length lasting for
K hours. Further, I noticed that while in P10 he stated that he had met D4 in K
The Temple once before, in Court he had not mentioned any such previous
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encounter with D4, therefore the label of “recognition” does not apply to
M D4. M
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50. Under such circumstances, there is no or no sufficient
O evidence for me to assess how reliable the evidence of identification by O
PW1 in respect of D2 to D4 is.
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Q 51. To conclude, I find that PW1 is not a credible witness and his Q
evidence in relation to the identification of each of D2 to D4 is not reliable.
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S 52. This is sufficient to dispose of the case. I shall not go on to S
discuss the issues raised in the defence case, in particular those raised by
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D3. I may mention, by passing, that I find DW1 to be a credible and
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reliable witness. I see no reason why I should not accept her evidence in
C relation to the alibi of D3. C
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Verdict
E E
53. For the reasons set out above, I find D2, D3 and D4 not guilty
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of Charge 1 and D2 not guilty of Charge 2.
G G
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I I
J ( Bernard Chung ) J
Deputy District Judge
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DCCC 807/2022
[2024] HKDC 1640
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 807 OF 2022
F F
G ------------------------------ G
HKSAR
H H
v
I BRAR Sukhwinder Singh 1st Defendant I
LOVEPREET Singh 2nd Defendant
J J
PRABHDEEP Singh 3rd Defendant
K AMIT 4th Defendant K
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Before: Deputy District Judge Bernard Chung
M Date: 2 October 2024 M
Present: Mr. Laskey, Edward F. Le B, counsel on fiat, for HKSAR
N N
Mr. Wright John Charles, instructed by Messrs Morley Chow
O Seto, assigned by the Director of Legal Aid, for the 1st O
Defendant
P P
Mr. Allan William G., instructed by Messrs Mohnani &
Q Associates, for the 2nd & 4th Defendants Q
Mr. Shah Mohammed Jawadullah, instructed by Messrs
R R
Cheung, Yeung & Lee, Solicitors, assigned by the Director of
S Legal Aid, for the 3rd Defendant S
Offence: [1] Wounding with intent (有意圖而傷人)
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[2] Theft (盜竊罪)
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C REASONS FOR VERDICT C
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D D
E Introduction E
F F
1. This case concerns a vicious attack with sharp weapons by a
G group of attackers on 2 victims, Lovepreet SINGH (PW1) and Sukwinder G
SINGH (SS), which occurred in the small hours on 5 November 2021 at
H H
their residence at Room No. 1, 6th Floor, Nos. 459-461 Hennessy Road,
I Wanchai (The Room). I
J J
2. There are 3 Charges on the Charge Sheet, involving 4
K defendants, BRAR Sukhwinder Singh (D1), LOVEPREET Singh (D2), K
PRABHDEEP Singh (D3) and AMIT (D4). Charge 1 “Wounding with
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intent”, contrary to section 17(a) of the Offences against the Persons
M Ordinance, Cap.212, is against all defendants. It alleged that they took part M
in the said attack on the 2 victims. Charge 2 “Theft”, contrary to section 9
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of the Theft Ordinance, Cap.210, is against D2 only. It alleged that during
O the attack D2 stole part of a gold chain belonging to SS. Charge 3 “Doing O
an act or a series of acts tending and intended to pervert the course of public
P P
justice”, contrary to Common Law and punishable under section 101I(5)
Q of the Criminal Procedure Ordinance, Cap.221, is against D1 & D2 only. Q
It alleged that 3 days after the attack, D1 & D2, through another person,
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urged the 2 victims not to pursue the matter, which had been reported to
S the police. S
T T
3. At the commencement of the proceedings, citing absence of a
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key witness, prosecution applied to withdraw Charge 3 against D1 & D2.
C There was no objection by the defence. The application was granted and C
the trial proceeded on Charges 1 & 2 only. All defendants entered pleas of
D D
Not Guilty to the Charge(s) they are facing.
E E
Prosecution’s Case
F F
G 4. There is no dispute that the vicious attack on PW1 & SS as G
stated in Charge 1 did take place. Some of the evidence relating to the
H H
background of the case and other formal evidence are admitted under
I section 65C of Cap.221 (exhibit P1). I
J J
5. It is not in dispute that the 2 victims received medical
K treatment at the Ruttonjee Hospital in the small hours of 5 November 2021. K
Both sustained multiple laceration wounds as stated in their respective
L L
medical reports and shown in the photographs taken 3 days afterwards, P2,
M P3 and P8 for PW1, and P4, P5, P6 and P9 for SS. D1 was arrested on 24 M
November 2021, D2 on 27 November 2021, D3 and D4 on 14 February
N N
2022 respectively.
O O
6. It is also not in dispute that on 15 February 2022, in an
P P
Identification Parade, both PW1 and SS positively identified D3 and D4;
Q and on 26 April 2022, in a photographic Identification Parade, both PW1 Q
and SS positively identified D1 and D2. However, no particulars have been
R R
given in what capacity the defendants had been identified as.
S S
7. Prosecution called only PW1 to testify viva voce. It is
T T
common ground that all allegations against the defendants came from him.
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A A
B B
Therefore, the main issue in this case is the credibility in general, and the
C reliability of the identification of the defendants as the assailants in C
particular, of PW1. As such, I shall first set out in some details the more
D D
important aspects of his evidence.
E E
8. PW1 was born in India and received education there. He
F F
settled in Hong Kong since 2015. He came to be acquainted with SS in
G 2016 as they both visited the Sikh Temple in Wanchai (The Temple) G
regularly. At the times material to this case, he and SS lived together at the
H H
Room.
I I
9. 4 November 2021 was the day of the Diwali, one of the most
J J
auspicious annual festival of the Sikh People. There were ceremonies held
K at The Temple to celebrate the festival with lots of Sikh people attending. K
On that day PW1 and SS attended The Temple as volunteers to assist in the
L L
celebration ceremonies. Food was served free of charge in The Temple, but
M people were only allowed to take them at the communal dining hall therein, M
called the Langar.
N N
O Incident at The Temple O
P P
10. At around 6:30 p.m. that day PW1 was responsible for crowd
Q control at the rear entrance of The Temple. There he saw a group of about Q
8 to 10 people taking food thereat and blocking the way. He had seen 3 of
R R
them before many times, 7 to 8 times he added. They were Sukha, Lovely
S and Happy (subsequently identified as D1, D2 and D3 respectively). He S
asked them to move on to clear the way for others, whereupon the group
T T
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A A
B B
shouted back to say it was none of his business. SS was also present at the
C time. C
D D
11. He and SS finished their duties and left The Temple at around
E 11 p.m.. It took them about 10 to 15 minutes to walk home. Upon return to E
their residence PW1 took a shower, stayed awake for a while and then went
F F
to sleep.
G G
The Attack
H H
I 12. At around 4:45 a.m. PW1 was awaken by some loud noise. I
He then saw a group of 5 people, 4 of them rushed into the Room with the
J J
other one staying at the entrance. He said he could see and recognize 3 of
K them, viz., Lovely (D2), Happy (D3) and Charlie (whom he later identified K
as D4). He even gave detailed descriptions of the clothing worn by D2 and
L L
D3, but not D4 as he did not pay attention to it. He did not see the other 2
M but he said SS told him later that they were Sukha (D1) who had also M
entered the room and another called Jaggi who stood at the entrance.
N N
O 13. 2 of the men, i.e. D2 and the other person he could not see, O
shouted “cut off their fingers”, whereupon, they began to attack him. He
P P
said D2 and the other man attacked him with knives, D3 with a Kara, a
Q religious accessory worn by most Sikh people, and D4 with an iron rod. He Q
said he received several cut wounds by the knives on his head and left
R R
thumb, 4 cut wounds on his head by the Kara and 2 to 3 blows by the rod
S on his right leg, all happened at the same time. S
T T
14. PW1 said after D2 and the other person had attacked him, they
U U
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A A
B B
then attacked SS, who was just next to him at the time, with the knives they
C were holding. The other 2, i.e., D3 and D4, did not attack SS. He also saw C
D2 pulling the gold chain from the neck of SS, an accessory which SS wore
D D
permanently, causing it to break into two halves. D2 took away one half of
E the chain, leaving the other half with SS. The assailants then left and PW1 E
called the police for assistance. Not too long afterwards ambulance arrived
F F
and took him and SS to hospital for medical treatment.
G G
15. At this stage of PW1’s evidence, Mr. Laskey for the
H H
prosecution purported to ask him to make “dock identification” of the
I people he had mentioned in his testimony. D1 and D3 did not object, but I
on behalf of D2 and D4 Mr. Allan objected, on the basis that 2
J J
Identification Parades had been held, it was not necessary to perform “dock
K identification” in Court, and as “Identification” is an issue in the case and K
the Turnbull guidelines apply, it would be prejudicial and unfair to his
L L
clients if the exercise was to be allowed by the Court.
M M
16. Having carefully considered the evidence as presented so far,
N N
and the submissions by Counsel, I allowed the prosecution to proceed with
O the “dock identification” exercise. PW1 then identified D2 as Lovely who O
was one of the 2 persons who used a knife, D3 as Happy who used a Kara
P P
and D4 as Charlie who used an iron rod, to attack him as he had earlier
Q mentioned. He did not identify D1. Q
R R
17. PW1 suspected that the attack was linked to the incident in
S The Temple when he was performing crowd control duties during the S
Diwali.
T T
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A A
B B
Cross-examination
C C
18. Not surprisingly, there was no cross-examination by Mr.
D D
Wright, Counsel for D1. PW1 was then cross-examined, vigorously, first
E by Mr. Shah representing D3, and then Mr. Allan representing D2 and D4. E
F F
19. One of the main areas of attack on PW1’s credibility was his
G failure to identify D1 in Court. He admitted to have given altogether 4 G
witness statements to the police about this case, the first one dated 26
H H
November 2021 was the only one in which he mentioned about the details
I of the incident at The Temple and the attack. He confirmed that the I
contents of this statement were true and accurate. He was cross-examined
J J
at length on this statement, and it is obvious that there were major
K discrepancies between its contents and his evidence in Court, in particular, K
in relation to the role played by D1. I shall deal with these discrepancies in
L L
more detail later. Having considered the nature and extent of the cross-
M examination, in order to put this part of PW1’s evidence in its proper M
context, I exercised my power under section 14 of the Evidence Ordinance,
N N
Cap.8 and ordered that this statement of PW1, together with a certified
O English translation, be admitted as an exhibit in the case (P10). O
P P
20. This issue of his failure to identify D1 in Court was touched
Q upon several times during cross-examination. Each time he repeated his Q
answer, viz., that he did not see D1 himself during the attack, he was only
R R
told by SS subsequently of the role D1 had allegedly played. He was told
S in the course of his evidence that he should only say what he himself had S
observed. Therefore, he did not make positive identification of D1 as one
T T
of the assailants.
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A A
B B
C 21. When asked why he could not see D1 during the attack, he C
said he and SS were attacked at the same time, meaning that he did not
D D
have opportunity to see every assailant clearly.
E E
22. He confirmed that a female named Aman Pannu (Ms. Pannu),
F F
who happened to be in the public gallery when he was giving evidence,
G was his “cousin” and worked in the legal field but he did not know in what G
capacity. He agreed that she was with him in the ambulance when he was
H H
being conveyed to hospital shortly after the attack.
I I
23. It is D3’s case that the attacked was triggered by a dispute
J J
between two rival gangs, with D1 on one side and PW1 on the other, and
K that there was a criminal conspiracy of perverting the course of public K
justice, involving at least PW1, Ms. Pannu and D1, to manipulate the
L L
evidence of PW1 in the present case to ensure D1’s acquittal and frame up
M at least D3. PW1 denied the allegations. He denied having any knowledge M
of communications by Ms. Pannu with other persons about this case.
N N
O No Case Submissions O
P P
24. At the end of the prosecution’s case, all defendants, through
Q their Counsel, made halfway submissions and asked the Court to withdraw Q
the Charge(s) from the Jury.
R R
S 25. Having considered carefully the evidence presented by the S
prosecution and submissions by Counsel, I ruled that, so far as D1 is
T T
concerned, there is insufficient evidence to establish a prima facie case
U U
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A A
B B
against him on Charge 1, the only Charge he is facing, he is acquitted of
C the Charge. For D2 to D4, there is sufficient evidence for a case to answer C
in respect of Charge 1 against each of them, and Charge 2 against D2.
D D
E Defence Case E
F F
26. D2 elected not to give evidence nor to call any defence
G witness. G
H H
27. D3 elected not to give evidence but called 2 DWs, DW1,
I Madam Gurung Riya, the wife of D3, and DW3 Ms. Pannu. I
J J
28. DW1 was called mainly as an alibi witness. She stated that on
K 4 November 2021, the day of the Diwali, she attended The Temple with K
D3 and their 3 months old baby. They left The Temple at around 7 p.m.
L L
and returned home in Sham Shui Po. D3 stayed at home with her to take
M care of the baby the whole night, so he could not have been at PW1’s M
residence in the small hours of 5 November 2021.
N N
O 29. Mr. Shah then intended to ask DW1 to introduce records of O
some WhatsApp messages between her and DW3 in relation to this case,
P P
with an attempt to establish D3’s case on the existence of a criminal
Q conspiracy of perverting the course of justice to frame up D3. I held a voire Q
dire to decide on the admissibility of these records. Having heard the
R R
relevant evidence and submissions by Counsel, I ruled that these exchanges
S contained hearsay evidence and are not relevant to the issues in this case. S
Even if I am wrong on this, since PW1 is the only witness called by the
T T
prosecution on the issue of identification and had denied any knowledge of
U U
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B B
these exchanges, and there is no other evidence to suggest otherwise, the
C prejudicial effect far outweighed its probative value as against PW1, and C
the prosecution’s case as a whole. I ruled that the records of the WhatsApp
D D
messages are inadmissible.
E E
30. Mr. Shah proceeded to call DW3, saying that she was the
F F
maker of some of the messages in the records with an intent to re-introduce
G them. I stood by my ruling. As such, her evidence is of little value to the G
case.
H H
I 31. D4 elected not to give evidence but called DW2, Mr. Bhagt I
SINGH, the President of The Temple. His evidence basically concerned
J J
the situation in The Temple during the Diwali on 4 November 2021. He
K was responsible for officiating the ceremonies on that Holy Day. He stated, K
inter alia, that the celebration ceremonies started from 7 p.m. until about 2
L L
to 3 a.m.. Food was provided to those attending but they could only be
M taken in the Langar, not anywhere else inside or near The Temple. M
N N
Analysis of the evidence
O O
32. I direct myself that the burden of proof is on the prosecution.
P P
It is for the prosecution to prove each element of the offences against each
Q defendant beyond reasonable doubt. The defendants bear no burden of Q
prove. They are not required to prove their innocence.
R R
S 33. The defendants elected not to give evidence. It is their right S
and no adverse inference would be drawn against them. However, so far as
T T
D2 is concerned, this means that there is no evidence to undermine,
U U
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A A
B B
contradict or explain the evidence presented by the prosecution.1
C C
34. I also direct myself that I have to consider the case against
D D
each defendant on each Charge separately.
E E
35. D2 & D4 have a clear record in Hong Kong. I direct myself in
F F
accordance with the principles applicable to this issue.
G G
36. There is no dispute that PW1 & SS were victims of a vicious
H H
attack in the small hours on 5 November 2021 at their residence in Wanchai.
I Before the trial all defendants served a Notice of alibi on the prosecution I
in accordance with section 75A of the District Court Ordinance, Cap.336.
J J
It is therefore clear that each of them asserted that he was not at the scene
K of attack, and thus could not have been one of the assailants. As such, K
identification of the defendants is one of the crucial, if not the only, issue
L L
in the case.
M M
37. PW1 is the only witness called by the prosecution in support
N N
of the allegations against the defendants. Therefore, the prosecution’s case
O against each of them stands or falls on the credibility in general, and O
reliability of the evidence of identification of the defendants in particular,
P P
of PW1.
Q Q
38. I shall first deal with the credibility of PW1 in general.
R R
Photographs of the Room, admitted as P7, showed that it was a very small
S room, with beddings on the floor and kitchen utensils placed next to the S
T T
1
Li Defan v HKSAR (2002) 5 HKCFAR 320.
U U
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A A
B B
beddings, and a toilet at the back of the room. The attack occurred at about
C 4.45 a.m. when, admittedly, PW1 was fast asleep just before the assailants C
charged into the room. From the evidence it is clear that the attack on PW1
D D
and SS was vicious, of short duration and at close quarters. PW1, and for
E that matter SS also, suffered severe cut wounds to their heads and/or hands. E
F F
39. On the face of it, it is not at all surprising that PW1 could not
G see clearly all of his assailants. There is nothing wrong for him not to be G
able to identify D1 as one of the 2 persons who wielded a knife at him.
H H
I 40. However, when one reads through the contents of P10, a I
statement he gave to the police some 3 weeks after the incident, in
J J
particular paragraph 6 and Answer to Question 2, it revealed a completely
K different picture. He was familiar with D1 to the extent that he had social K
contacts with D1 and could give D1’s full name and telephone number to
L L
the police, but not the others. He vividly described what D1 had done
M during the attack, shouting “cut off their fingers” and attacked him with a M
knife. He even said that he saw D1 to D4 also wounded SS and Jaggi did
N N
not take part in the attack. There was nothing to indicate what he had
O asserted in Court, i.e., that he did not himself see D1 during the attack, only O
to be told of D1’s presence by SS after the incident.
P P
Q 41. Mr. Laskey for the prosecution submitted that as a layman Q
PW1 might not be able to distinguish between hearsay and non-hearsay
R R
evidence when giving his statement to the police. It might well be so but
S this argument is hardly convincing. The statement started with the usual S
declaration that it is true to the best of his knowledge and belief, with
T T
PW1’s signature attached to it, and ended with another declaration that the
U U
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A A
B B
contents had been read over by him and interpreted to him in Punjabi, his
C native language. He had been told that he could correct, alter or add C
anything he wish. Surely, he would know what is meant by “the truth”. Had
D D
his assertions in Court been true, I can see no reason why he could not tell
E the police that he was only told by SS as to what he said about D1 and Jaggi E
during the attack.
F F
G 42. The situation is even more startling in relation to the G
allegation of theft of part of the gold chain. There was absolutely no
H H
mention by PW1 of this matter in P10. When asked about this in cross-
I examination, he stated that he could see this as the assailants attacked him I
first, and then on SS. He could therefore see D2 snatching and taking away
J J
half of the gold chain from the neck of SS. Mr. Laskey submitted that P10
K was about the case of “wounding”. It was understandable that P10 made K
no mention of the gold chain. He submitted that PW1 had ample
L L
opportunity to observe what the attackers did to SS. However, when PW1
M was first taxed about why he could not identify D1 in Court, he said that M
the assailants attacked him and SS at the same time. Further, he had in P10
N N
described in some details what happened during the attack. It is difficult to
O accept that he could differentiate between “wounding” and “theft” so that O
he failed to mention this matter relating to the gold chain to the police.
P P
Q 43. The evidence of PW1 is also at variance with other undisputed Q
evidence. The medical reports, P2 & P3, show that when he received
R R
medical attention in the hospital shortly after attack, he only mentioned
S having been attacked by 3 persons with knives. He did not mention S
anything about being attacked by other weapons like Kara or iron rod.
T T
There was no truncal injury, which is inconsistent with what he said in
U U
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A A
B B
Court, 2 to 3 blows with an iron rod by D4 on his right leg.
C C
44. PW1 was also evasive in answering some of the questions put
D D
to him during cross-examination. As the incidents occurred during COVID,
E which only ended in early 2023, Mr. Allan tried to explore the situation E
relating to the wearing of facemask by the people at The Temple and asked
F F
PW1 about it. PW1’s answer was that he did not know as he was not sure
G when COVID ended. This, as I see it, was a deliberate attempt by PW1 to G
avoid the issue raised by Counsel.
H H
I 45. It is equally difficult to accept that the incident at The Temple I
would trigger such a vicious attack on him and SS at their own residence.
J J
There are other aspects of PW1’s evidence which adversely affected his
K credibility in general. I will not list them out here, suffice for me to say that K
I have strong reservation on the general credibility of PW1.
L L
M 46. I now move on to deal with the reliability of PW1’s evidence M
on identification of D2 to D4. Given the nature of the case and the service
N N
of the Notices of alibi by the defence prior to the commencement of the
O trial, it is clear that identification is one of the main issues in the case, and O
the legal principles applicable to this issue, commonly known as “the
P P
Turnbull guidelines”, would be involved.
Q Q
47. However, there is a distinct lack of details presented by the
R R
prosecution as to the circumstances under which PW1 came to be able to
S identify D2 to D4 as the assailants. For example, there is no evidence as to S
the lighting condition at the time, the duration of the attack and how PW1
T T
reacted during the attack. There was a 0.5 cm laceration wound on PW1’s
U U
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A A
B B
left thumb. In P10 he said that he tried to ward off the attack by his arms,
C and when asked by Mr. Allan during cross-examination he said he tried to C
push the assailants away, not by covering his head.
D D
E 48. Mr. Laskey emphasized that the prosecution’s case is one of E
“recognition” as PW1 stated that he had seen his assailants 7 to 8 times
F F
prior to the attack.
G G
49. Again, there is a distinct lack of details as to these previous
H H
encounters. In his evidence PW1 only mentioned having met D1, D2 and
I D3 7 to 8 times before without any elaboration on the circumstances under I
which they met. There could be a big difference between brief encounters
J J
for a few seconds at a distance or lengthy chats at arms-length lasting for
K hours. Further, I noticed that while in P10 he stated that he had met D4 in K
The Temple once before, in Court he had not mentioned any such previous
L L
encounter with D4, therefore the label of “recognition” does not apply to
M D4. M
N N
50. Under such circumstances, there is no or no sufficient
O evidence for me to assess how reliable the evidence of identification by O
PW1 in respect of D2 to D4 is.
P P
Q 51. To conclude, I find that PW1 is not a credible witness and his Q
evidence in relation to the identification of each of D2 to D4 is not reliable.
R R
S 52. This is sufficient to dispose of the case. I shall not go on to S
discuss the issues raised in the defence case, in particular those raised by
T T
D3. I may mention, by passing, that I find DW1 to be a credible and
U U
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A A
B B
reliable witness. I see no reason why I should not accept her evidence in
C relation to the alibi of D3. C
D D
Verdict
E E
53. For the reasons set out above, I find D2, D3 and D4 not guilty
F F
of Charge 1 and D2 not guilty of Charge 2.
G G
H H
I I
J ( Bernard Chung ) J
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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DCCC807/2022 HKSAR v. BRAR SUKHWINDER SINGH AND OTHERS - LawHero