HKSAR v. Sanoh Ibrahima

DCCC 48/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 48 OF 2015

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REASONS FOR VERDICT

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1.The defendant pleads not guilty to a charge of wounding with intent, contrary to section 17 (a) of the Offences against the Persons Ordinance, Cap 212. It is alleged that the defendant on 16 November 2014, at Room No 10, Wing Cheong Yuen, DD130, Lot 2296, Tuen Mun, New Territories, unlawfully and maliciously wounded Ms Yuanita Tri (PW1) with intent to do her grievous bodily harm.

Undisputed facts

2.The Admitted Facts, marked as P16, essentially produce a pile of documentary exhibits which both sides do not have serious disputes, save and except medical reports that are admitted under section 65B of the Criminal Procedure Ordinance, Cap 221[1]. The documents comprise a book of photographs: P1; a sketch plan: P2 & P2A; Forensic Scientist Dr Wai Wing Kong’s (PW17) report (DNA matching): P14; and Mr Yau Shun Kit’s (PW16 on the list, who is not called) two reports (DNA typing): P15A & P15B.

3.Last but not least, the court heard that the defendant has a clear record: See para 7 of the Admitted Facts.  In this connection, the defendant is entitled to the usual beneficial treatment when the court assesses his credibility and propensity.

Prosecution case

4.The prosecution called a total of nine prosecution witnesses: PW1, PW2, PW3, PW5, PW9, PW13, PW17, PW18 and PW19[2].  Ms Tri, the alleged victim, has been turned hostile.  I have previously given oral reasons, which I now recap for the sake of completeness.  Ms Tri has on a number of occasions demonstrated that she is “reluctant to say anything or professes to have forgotten what happened”[3], despite after giving a witness statement[4] to the police shortly after the incident.  She claimed that the event happened a long time ago and she had already forgiven him (the defendant).  She wanted to forget about everything and did not wish to talk about it anymore.  As to the incident itself, she said she could not recall any police officer coming to her residence in the night in question, whether or not an ambulance came, etc.  She declined to refer to her statement for refreshment of memory upon invitation.  Later when being cross-examined by Mr Polson on her statement, she simply replied that she could not recall anything.  

5.Having found Ms Tri as a hostile witness, her sworn evidence in court becomes negligible.  Her previous statement, MFI-1, is not admitted into evidence, so it could never substitute for her testimony in court.  The end result is that this court must disregard her evidence in its entirety.

6.Mr Diablo Ibrahima (PW2), a Guinean native, could be described as the first batch of people who rushed to the scene where he discovered Ms Tri lying in blood.  He however did not witness the actual assault, if any.  He confirmed that the defendant co-habited with Ms Tri and their baby boy.  The defendant, Bobo (another Guinean male) and he were close friends.  At around 10:40 pm on 16 November 2014, Bobo came to his residence asking for help.  Two of them then rushed to the defendant’s home.  The door was open at that time so they could gain access without difficulty.  Inside the bedroom he saw the baby boy sitting on the bed crying and Ms Tri lying on the floor bleeding profusely from her neck.  The mattress and the bedroom were covered with blood.  He then pulled the defendant out of the room to the corridor and controlled him.  Bobo then called the police and not long after, police officers and ambulance men came to the rescue.  He said he saw something on Ms Tri’s neck but he could not recall what it was.

7.As his close friend Mr Ibrahima was able to say that the defendant had a bit of drinking problem.  The defendant also took “weed”, ie marijuana/cannabis regularly.  In cross-examination, he agreed that the defendant was not an alcoholic.

8.PC 3466 (PW3) is the arresting officer.  He was amongst the first police party that arrived at the scene.  Precisely he arrived at 10:58 pm.  Inside the bedroom he saw Ms Tri lying in blood, with a fork stuck into the right side of her neck.  Ms Tri appeared to be conscious at the time, and she was able to use her right hand to point to the fork.  She also pointed to the direction of the living room, where PC 3466 arrested the defendant.  The defendant was sitting on the floor, and he was wearing a white vest which was blood-stained.  PC 3466 described the defendant as “dull looking” on his face, and also he noticed the middle of his right palm bleeding.  PC 3466 then proceeded to declare arrest on the defendant for wounding.  When being asked whether he wished to wear a black hood, the defendant answered: “No”.  What followed was the arrival of two ambulances, which took Ms Tri and the defendant to hospital for treatment.

9.In cross-examination, it was suggested to PC 3466 that Ms Tri was unconscious and hence she did not say anything or point anywhere.  PC 3466 disagreed.

10.Madam Yu Ah Lee (PW9) represented her husband who was and still is the landlord of the premises where the incident occurred. To her best knowledge Room 10 was only occupied by the defendant, Ms Tri and her baby.  Madam Yu was familiar with Bobo, Mr Ibrahima and the defendant’s whole family as she also lived nearby.  At about 10:40 pm, Bobo held Ms Tri’s baby and rushed to her residence.  She saw blood on the baby’s clothing and realised that something bad might have happened.  She immediately took the baby from Bobo.  Later police officers came and she led them to Room 10 where the defendant, Ms Tri and the baby resided.

11.DPC 12828 (PW5) is the exhibit officer.  He seized a number of exhibits either by himself or from Dr Chow Yuk Yin (PW13) and his colleagues[5]. He produced the following evidence in court: a broken knife handle and blades: P17(tip of the knife P21 seized from Dr Chow after he performed operation on Ms Tri); a table fork: P18; a black vest worn by Ms Tri: P19;a blood-stained white vest worn by the defendant: P20.  He was also responsible for delivering the samples to Government Laboratory for DNA examination.

12.WSGT 56958 (PW19) was responsible for taking buccal swab from Ms Tri.  Her evidence stood unchallenged.

13.Dr Wai Wing Kong (PW17) is DNA expert.  He prepared a report which has been admitted as P14.  The results of the examination is set out at p 3 of his report as follows:-

“(i) The DNA obtained from the selected bloodstains on the tines of the fork, the front of the vest, the two bloodstains on the front right leg and front left leg of the trousers could all have originated from the alleged victim, Ms Tri.

(ii) The DNA obtained from the bloodstain on the blade and handle were both mixtures and each from at least two sources, and the major source could have been Ms Tri.

(iii) The DNA obtained from the bloodstain on the handle of the fork was a mixture of at least two sources, one from Ms Tri and another from D.

(iv) The DNA obtained from the bloodstain on the front of the vest worn by Ms Tri was a mixture of at least three sources, with the predominant source from Ms Tri, and one possible minor source from D.”

14.Dr Wong further explained the meaning of “could have” that was used in his report.  He said in mathematical terms it means 1 in 16.9 x 10¹⁵.  Dr Wong was cross-examined about the procedure in DNA typing but it seems that nothing untoward has come out from his evidence.  In re-examination, Dr Wong elaborated on (iv) above in that if Ms Tri held a baby, the baby could have left some of its DNA on her vest. 

15.Dr Chow Yuk Yin (PW13) is one the surgeons who operated on Ms Tri.  His two reports were admitted into evidence as P3 & P4.  He described Ms Tri as fortunate as the injuries on her neck could be lethal.  As to the tip of the ceramic blade: P12 that he removed from Ms Tri’s neck, Dr Chow opined that a significant amount of force would be required to nail it in.  Literally he said he would need a hammer to hit on the ceramic knife.

16.Professor Tang Wai Kwong (PW18) is the last witness called by the prosecution.  He is an expert in psychiatry.  His report was admitted into evidence as P13.  In compiling his report he had the opportunity to refer to a number of medical reports, of which Dr Wong Yee Him, John’s report is particularly important.  He disagreed with Dr Wong’s diagnosis that the defendant’s state of mind at the time of the offence could have been affected by cannabis intoxication, assuming that the defendant’s last shot was taken on 15 November 2014, a day before the alleged incident.  He stood by his conclusion that the defendant had the necessary capacity to commit the alleged act. 

Defence case

17.The defendant exercised his right to silence.  He did not give evidence and did not call any defence witness.  

Issues before the court

18.I am grateful for both Mr Polson and Mr Chan for their assistance in providing written final submissions[6].  The issues before the court are purely factual, which are two-fold:-

(i) Whether or not the prosecution can establish beyond reasonable doubt that it was the defendant who committed the actus reus and if so, under what circumstances?

(ii) If the answer to (i) is in the affirmative, did the defendant have the requisite mens rea, hence the capacity to form an intent to commit the actus reus for wounding?

Findings of facts

19.I bear in mind the onus of proof always rests on the prosecution.  The standard of proof is beyond reasonable doubt.  The defendant has nothing to prove whatsoever.  I remind myself once again of the defendant’s clear record.

20.Since this case turns purely on circumstantial evidence so if I am to convict the defendant, the inference of guilt must be the only irresistible inference: Kwan Ping Bong v R [1979] HKLR 1.  That applies to all elements of the offence that the prosecution is required to prove.

21.I find that the prosecution case stands unchallenged by the defence.  All prosecution witnesses (inclusive of all expert witnesses) are honest and credible, and I attach full weight to their evidence.  The only clash is between the defence expert Dr Wong’s report[7] and the evidence of Professor Tang, and after careful consideration I accept Professor Tang’s evidence as being fair and accurate.  Dr Wong did not come to court to give evidence and therefore he is unable to explain to me his difference in opinion, and also why he did not view the defendant’s video-recorded interview (which Professor Tang did), etc.  In a nutshell, Dr Wong’s evidence has never been subjected to scrutiny by cross-examination.

22.In my judgment, however, given the fact that Ms Tri has been declared hostile, there is NO direct evidence to prove what actually happened inside the bedroom, after which Ms Tri got some serious injuries, predominately on her neck.  Is there any possibility of self-inflicted injury?  Was it a result of a nasty fight that was started by Ms Tri, whereby the defendant reacted reasonably or unreasonably?  Any possibility of self-defence, albeit not specifically raised by the defence?

23.I fully appreciate that this is a case where the defence decided not to put his case to any of the prosecution witnesses.  It does not have to as Ms Tri is already a hostile witness.  In this regard, it is instructive to refer to the Court of Appeal judgment in HKSAR v Wong Ho Man & Anor CACC 223/2008, where Hartmann JA (as he then was) said these at para 22:-

“22…the first applicant had made a brief response when arrested and cautioned, he had not later made any statement explaining his version of events. Nor at trial did he choose to give evidence or call witnesses. In practical terms, therefore, there was no defence, not one based on any positive assertion or explanation. That being the case, as this Court, differently constituted, has said in HKSAR v Suen Yung Yung & Anor CACC 509/2001, it was not part of the judge’s duty to build up a defence for someone who had chosen not to give the jury the benefit of his version of material circumstances and events. Nor, in the absence of a defence, was there a duty placed on the judge indirectly to construct one by listing each and every perceivable weakness in the prosecution case.”

24.I shall make it very clear that the concerns raised in para 22 above are not defence(s) built by me.  Quite the contrary, they are the perceivable weaknesses in the prosecution case before me, which now rests entirely on circumstantial evidence.  After careful consideration, I fail to draw the irresistible inference that it was the defendant who committed the actus reus, ie he slashed Ms Tri with the ceramic knife and stuck the table fork into her neck. Specifically I am uncertain about the circumstances under which she sustained those injuries.

25.That being the case, I must answer Issue (i) as set out in para 18 above in the negative.  It follows therefore that I do not need to consider Issue (ii) which deals with the defendant’s mens rea.

Verdict

26.Having carefully considered all the evidence and submissions of counsel, I find that the prosecution has failed to prove the charge against the defendant beyond reasonable doubt.  The defendant is highly suspicious in the circumstances but I have no choice.  I hereby return a verdict of not guilty.