DCCC515/2024

DCCC515/2024

A A B B DCCC 515/2024 & 702/2025 C [2025] HKDC 1457 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NOS. 515 OF 2024 AND 702 OF 2025 F F G ---------------------------------------- G HKSAR H H v I I (D1) ALE MAGAR Krishpoo J J (D2) RAI Samir K ---------------------------------------- K L L Before: Deputy District Judge Alice Chan M Date: 25 August 2025 M Present: Mr Edward Fan, Counsel on Fiat, for HKSAR N N Mr James Sherry, instructed by Messrs Mohnani & O O Associates, for D1 and D2 P Offence: Wounding with intent（有意圖而傷人） P Q Q -------------------------------------------------- R REASONS FOR VERDICT R -------------------------------------------------- S S T T U U V V  -2- A A B B 1. There are 3 defendants in this case who are jointly charged C with one count of wounding with intent, contrary to section 17(a) of the C Offences against the Person Ordinance, Cap. 212. D3 pleaded guilty to the D D charge while D1 and D2 pleaded not guilty, so only D1 and D2 stood trial E in this matter. E F F 2. Needless to say, D3’s plea has no bearing on the innocence or G guilt of either D1 or D2. In this trial, the prosecution has to prove beyond G reasonable doubt that D1, and likewise, D2, is guilty before any conviction H H can be entered against any of them. The case of each defendant is to be I considered separately. I J J THE PROSECUTION CASE K K (1) Overview L L M 3. The prosecution case in summary is that on 23 April 2023, at M LRT Hong Lok Road Station (“Hong Lok Station”) and its vicinity, Castle N N Peak Road, Yuen Long, SUNWAR Nabin (“PW1”) was attacked by a O group of men, resulting in PW1 sustaining injuries to various parts of his O body. P P Q Q 4. At trial, the prosecution only called PW1 to testify. R R 5. The injuries of PW1 were agreed by way of admitted facts. S S T 6. D1 and D2 were arrested on 19 June 2023 and 11 August 2023 T respectively and they both remained silent under caution. PW1 positively U U V V  -3- A A B B identified D1 and D2 in the identification parade respectively held on 23 C June 2023 and 18 August 2023. C D D 7. The defence initially indicated their challenge to the E admissibility of both identification parades on the basis that they were E conducted in a way that was unfair to the defendants. However, such F F objections were subsequently withdrawn after PW1 had testified and G before the close of the prosecution’s case. The admissibility of such was, G therefore, no longer in issue. H H I (2) The 1st part of the attack I J J 8. PW1, now aged 28, was born in Nepal. He came with his K parents to settle in Hong Kong in 2012. He is a construction worker. K L L 9. On 23 April 2023, PW1 went to a bar in Yuen Long for a M drink. At around 8:30 p.m. he was on the stairs of the building leading up M to the bar and a group of about 5 to 6 men surrounded him. They were all N N wearing masks and most of them were holding knives. O O 10. When PW1 came down the stairs onto the road, the men P P followed him and pointed at him saying “that’s the one, that’s the one”. Q Q The men then attacked PW1 with knives and stabbed him on his thighs and R arms. PW1 could only recognize 2 or 3 of the men in the group, including R one he said to be D2. S S T 11. PW1 tried to make escape and headed towards Hong Lok T Station while 2 or 3 men followed him. U U V V  -4- A A B B (3) The 2nd part of attack C C 12. When PW1 reached the track of Hong Lok Station, those D D following him, together with a few other men, surrounded him. There were E 4 to 5 attackers and most of them were holding knives, including one whom E PW1 later identified as D1 in the subsequent identification parade. The F F assailants attacked him with knives for about 1 minute injuring his hands, G thighs and back. PW1 agreed that all assailants were wearing masks G throughout the attack and some of them were in hooded upper clothing. H H I 13. After the attack, the men fled and PW1 sought help from some I Nepalese in the vicinity. He was then sent to the hospital. J J K 14. In cross-examination, PW1 agreed that he had been drinking K around 8 p.m. that night. He said he was not much intoxicated though he L L was unable to recall the exact amount of beer he had consumed. M M 15. PW1 was also cross-examined on the inconsistencies between N N his testimony in court and what he had stated in his witness statements in O respect of the number of persons who had attacked him. PW1 explained O that due to the lapse of time he was unable to recall everything. Although P P st he was sure that there were 2 to 3 assailants with knives in the 1 part of Q Q the attack, he agreed that he did not know the exact number of attackers at R Hong Lok Station. R S S T T U U V V  -5- A A B B (4) The role of D1 and D2 in the incident C C 16. PW1 did not know D1 but said he had “seen him around”. D D Upon clarification, PW1 said he used to see D1 in the park in Yuen Long E and in places where he drank beer for about 10 to 15 times over a period E of 1 to 1 & 1/2 years. F F G 17. PW1 initially said he was sure D1 was one of the masked men G who had attacked him with a knife at Hong Lok Station although he did H H not see D1 in the 1st part of the attack. I I 18. While the attacks took place at nighttime, PW1 said there was J J sufficient light. He said when D1 was attacking him with a knife, he was K facing D1 and was able to see the front of him for about 1 minute. The K distance between them was about 2 meters and lighting was sufficient. L L M 19. Under cross-examination, PW1 agreed that he was in panic M during both parts of the attack and he only recognized some of the N N attackers, including D1. He agreed that in all the circumstances, including O that all attackers were masked while some were in hooded clothing and that O the second part of the attack took place frantically after the first one, PW1 P P did not have a chance to pay sufficient attention to identify D1. Q Q R 20. When PW1 was asked about the identification parade R regarding D1, it was suggested that he made the identification without S S seriously considering all the faces of the people in the parade. His reply T was “maybe”. T U U V V  -6- A A B B 21. As for D2, PW1 said D2 first appeared amongst the group of C men surrounding him at the stairs of the building leading to the bar that C evening. He then also saw D2 on the ground floor of the building where D D the 1st part of the attack took place and D2 was holding something like a E bottle. D2 did not attack PW1 but was also wearing a mask at that time. E F F 22. When questioned as to whether he knew D2, PW1 said he had G seen D2 around but did not elaborate further in this regard. G H H (5) Injuries of PW1 I I 23. It is not disputed that PW1 suffered grievous bodily harm after J J both parts of the attack. PW1 was sent to Tuen Mun Hospital at 2249 hours K that night. He was conscious and there were multiple chop wounds over K his bilateral upper limbs, 3 cm deep laceration wound over his upper back L L and superficial laceration wound over his right thigh. The mode of injury M was compatible with trauma by sharp object. Doctors in the Department M of Orthopedics & Traumatology of the hospital also found lacerations on N N various parts of PW1’s forearms, left wrist, hands, right shoulder and right O thigh. Emergency operation was performed for the repair of the tendon O and muscle of PW1’s right index finger. Medical reports are produced as P P exhibit P5 and P6 in the trial. Q Q R Case to Answer R S S 24. Upon the closing of the prosecution’s case, I ruled that there T was a case to answer in respect of the charge against each defendant. T U U V V  -7- A A B B The Defence Case C C 25. Both defendants elected not to testify. This is entirely their D D rights and that no adverse inference is drawn against them for remaining E silent. E F F 26. Documents and video recordings in relation to the G identification parade of the defendants respectively held on 23 June 2023 G and 18 August 2023 were admitted and produced as defence exhibits. H H These include the identification parade book of D1 (exhibit D-1), the video I recordings of the parades (exhibit D-2 and D-4), and police form Pol. 279A I in relation to D1 and D2 (exhibit D-6 and D-3). J J K 27. Both recordings were played and it was drawn to the Court’s K attention that in the identification parade of D1, all participants were L L wearing masks and that their pants and shoes were covered by a black rug. M Likewise in the identification parade of D2, each participant was wearing M a shower cap, a mask and the shoes were also covered. N N O THE ISSUES O P P (1) Identification of the defendants by PW1 Q Q R 28. Like every criminal trial, it is for the prosecution to prove the R charge against the defendants. Only if the prosecution can prove beyond a S S reasonable doubt that any of the defendants was involved in a joint T enterprise to wound PW1 with intent to cause him grievous bodily harm T U U V V  -8- A A B B can he be found guilty of the offence. The defendants do not bear any C burden of proof and they do not need to prove their innocence. C D D 29. The main issue in this case is identification. The prosecution E case depends on the correctness of the identification of both defendants. I E direct myself in accordance with the principles established in R v Turnbull F F [1977] 1 QB 224. I warn myself of the special need for caution. G G 30. Apart from PW1’s identification of both defendants, there is H H indeed no further evidence to link each of the defendants with the attack I against PW1. PW1 said he had seen both defendants before and I accept I this part of his evidence. Thus, if PW1’s identification is unmistaken, this J J is a case of recognition. However, I have also to bear in mind that K recognition of acquaintances can be mistaken even if a witness appears to K be honest or convincing. While PW1 subsequently made positive L L identification of the defendants in the respective identification parade, the M Court has to examine closely the circumstances under which he observed M his attackers when deciding as to whether the identification, both at the N N time of the attack and at the identification parades, was reliable. O O 31. I have also carefully considered the closing submissions of P P defence counsel in which he highlighted the weaknesses in the quality of Q PW1’s identification evidence during the attack, as well as matters which Q R he considered diminishing the weight of the subsequent identification R parades. These included the manner the parades had been conducted and S S recorded and the apparent casual attitude adopted by PW1 in the process T (the identification parade of D1 in particular). T U U V V  -9- A A B B 32. In the case of D1, while PW1 said he was sure that D1 was C one of the assailants who had attacked him with a knife at Hong Lok C Station, he also admitted that he did not have a chance to pay sufficient D D attention for the identification of D1 at the scene. This, together with the E following matters, renders it possible that his recognition of D1 was E mistaken. F F G 33. I accept that PW1 was an honest witness who tried his best to G tell the truth at Court what he said had happened. However, I cannot be H H sure that PW1’s claim that D1 as one of the attackers that night was I reliable. I was particularly concerned that all the assailants were wearing I masks and that the attack at Hong Lok Station, which took place shortly J J after the first attack and followed by a chase, happened within a minute. K Throughout that time PW1 did not deny that he was under a state of panic, K and this no doubt affect the quality of his identification. L L M 34. Under such chaotic situation, despite sufficient lighting, it M would be quite impossible for PW1 to observe the face of the masked N N attackers closely, especially because there were a few of them, not just a O lone attacker. Even though he was facing the front of them, he was O undoubtedly busily avoiding their attack at the same time. Indeed, I find P P that PW1 must be truthful when he agreed with defence counsel that under Q Q such confusing situation, he did not have a chance to pay sufficient R attention to the identification of D1. R S S 35. If PW1’s identification of D1 during the attack may be T inaccurate, needless to say, such subsequent identification in an T identification parade cannot be relied on, for PW1 might have picked out U U V V  - 10 - A A B B D1 merely because he thought he saw D1 at the scene, not that he was sure C that D1 was at the scene. Since there is no other evidence in support of the C identification of D1, I find that it would be unsafe to rely on the D D identification of D1 by PW1. E E 36. In the case of D2, apart from the quality of the identification F F evidence, the defence also took issue as to the whether the presence of D2 G at the scene of the 1st part of the attack amounted to taking part in the joint G enterprise with D1 and others to wound PW1 that night. H H I 37. Before analyzing D2’s role or participation in the incident, I I first deal with the issue of identification. J J K 38. While PW1 said D2 was present with other men at the ground K level of the building of the bar, it is unclear from the evidence as to the L L lighting condition and the distance between them. There is also no M evidence as to the length of time of this encounter, let alone the time of the M actual observation and details of any interactions between them. N N Importantly, PW1 did say that D2, like the other attackers, was wearing a O mask that night. O P P 39. Since PW1 said he had seen D2 around before, if his Q Q identification of D2 at the scene was correct, this is a case of recognition. R However, PW1 made no further elaboration as to the circumstances under R which they had previously met. Therefore, when I come to assess the S S quality of PW1’s identification of D2 in the incident pursuant to the T guidelines as set out in R v Turnbull, I am unable to be sure PW1’s claim T st that D2 was present with the other men at the scene of the 1 part of the U U V V  - 11 - A A B B attack was reliable. This inability stems from the fact that such was an C identification in difficult circumstances – a sudden attack by a group of C masked men at nighttime when PW1’s observation was made after the D D consumption of alcohol. With the identification at scene not being reliable, E for the reason given above, it follows that the subsequent identification E parade also cannot be relied on. F F G (2) Was D2 part of the joint enterprise ? G H H 40. Although I am not satisfied that PW1’s recognition of D2 as I one of the men present in the incident was accurate, for the sake of I completeness, I also deal with the issue as to whether the man alleged to J J be D2 was part of the joint enterprise to wound PW1 that night. K K 41. The prosecution alleges that D1 and D2, together with others, L L were involved in a joint enterprise to wound PW1 with intent to cause him M grievous bodily harm. While it is undisputed that PW1 suffered grievous M bodily harm in the incident, it has to be proved to the required standard that N N the circumstances would be sufficient to infer each defendant shared a O common intention to cause PW1 grievous bodily harm and participated in O it. P P Q 42. PW1’s evidence in respect of D2’s involvement that night was Q R brief. He merely mentioned D2 was amongst the group of men who had R surrounded him at the staircase outside the bar and that he saw D2 again S S when PW1 came down the building. D2 did not attack him. He was T holding something like a bottle but there is no further evidence as to how T D2 was holding it, whether he was doing anything with it and / or whether U U V V  - 12 - A A B B there was any other interaction between D2 and PW1 and between D2 and C the other assailants. It also appears that D2 did not take part in the chase C nor was he present in the attack at Hong Lok Station. D D E 43. While the circumstances under which the man alleged to be E D2, wearing a mask and present throughout the 1st part of the attack was F F highly suspicious, I find that it cannot be inferred that he shared the G common intention with D1 and other assailants to cause PW1 grievous G bodily harm. H H I 44. The prosecution is unable to prove the charge beyond I reasonable doubt. I acquit both D1 and D2 of the charge. J J K K L L M M N N ( Alice Chan ) O Deputy District Judge O P P Q Q R R S S T T U U V V