HKSAR v. Ousainou Touray

DCCC 216/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 216 OF 2016

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Reasons for Verdict

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1.The defendant faces one charge of indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance Cap 200, and one offence of wounding, contrary to section 19 of Offences against the Person Ordinance, Cap 212.

2.He is alleged to have committed these offences in a family compound in the district of Siu Lam, the victim being a relative, his aunt-in-law.  The family compound consists of a main two-storey residence which is contiguous with a bungalow, which is in fact a converted storeroom, and between them is a covered communal area.

3.The victim, referred to as “X”, is a church worker who was a former missionary.  She currently is working in and lives in Hong Kong.  She lives in the bungalow.  The defendant lives in an extension part of the two-storey house within the covered communal area.  A relative known as Uncle Stephen and a domestic helper, Clint, also live in the two-storey house.

4.The offences are said to have occurred in the early evening of 13 December 2015 within the bungalow, which is particularised as 7C Siu Lam Village in the New Territories.  It was a Sunday. X had returned home from working after church on Hong Kong Island.  She arrived between 5 and 6 o’clock in the early evening, and sat down to watch the television.  The defendant appeared from behind her, wearing one of her bras. He pushed her to the bed, and then committed the two offences.  Subsequently, he left.

5.The victim reported the matter to her friend, and police attended the scene.

6.The defendant said in a video-recorded interview that he was so drunk at the time he had no recollection of what had occurred.

7.At the time of trial, it was put that the alleged offences did not occur, and that X, who became PW1, had falsified the allegations, partly out of racial enmity and partially out of a desire to see the defendant evicted from what was a family compound.

8.The primary issue at trial was whether PW1 could be relied upon.  It was presented as a question of credibility.  The question of there being some self-induced intoxication was raised in the video-recorded interviews.  However, these are offences of basic intent.

9.The prosecution case was advanced by PW1 in her evidence.  She was the aunt of the defendant’s wife.  Her niece was called Emily, and the defendant known as Papa.  The defendant hails from Gambia.  At the material time, Emily was in the US having their baby.  Papa, the defendant, remained in the family compound in Siu Lam, awaiting a visa from the United States so that he could go and join his wife.  He and Emily lived in a room adjacent to the common area and across from the bungalow, 7C, where PW1 resided.  The defendant had been living there without Emily for some time.  The domestic helper, Clint, also lived in the compound, as did PW1’s brother, Uncle Stephen, but he was an intermittent resident.

10.PW1 originates from Hong Kong.  She works in a Christian church in Hong Kong.  In the past, she had been a missionary in Sierra Leone and Liberia.  She had returned to Hong Kong in around 2005 after living for 17 years in Africa.  She said she had returned as a result of civil war in the country.  She had subsequently returned to Africa, or African nations, on at least three further occasions.

11.As this was a Sunday, she had spent the day working in the church on Hong Kong Island, and had returned to her home in the early evening.  Her home is entered from the side through what should be a locked gate.  This leads to a kitchen and bathroom area at the rear of the bungalow.  A set of keys is located in that area.  From there, there is a further door into the residential section of the bungalow.  She says all these doors were locked when she left.  On her return, she was surprised to find that they were unlocked.

12.She sat down to watch TV, then she heard a noise behind her, and turned around to see the defendant standing inside her house. He wore a hoodie vest and one of PW1’s bras, and she asked him why he took that item of clothing.  He is then supposed to have said, “Aunty, I will show you the way of life,” and grabbed both her arms and pushed her to the bed which was nearby, and then pushed her down onto the bed.  He then lay down on her, with half his body weighing down on her, whilst his hands started to touch her.  All this time, PW1 continued to struggle.  He pushed his hands across her upper chest, then he put one hand inside her top and touched her abdomen.  PW1 grabbed one of his hands and bit it.  She thought she bit the finger.  The defendant then got some tissue paper to stuff into her mouth.  The tissue paper was kept at the head of the bed.  He then stuffed one or two pieces into her mouth, but because PW1 kept shaking her head, he could not do this fully.  He then took a roll of adhesive tape and tried to put some on her mouth.  She continued to struggle forcefully, preventing him from sealing her mouth with the adhesive tape.  PW1 was scolding him, so he covered her face with a pillow, and he used two pillows to do this, but she succeeded in pushing them away.  He tried to cover her with a blanket, or duvet, and tried to separate her legs, using his own legs.  PW1 kept pushing him, and after three to four attempts was able to push the defendant off her.  He asked her not to tell anyone.  PW1 told him to get out of her house.  He then left.

13.PW1 then locked the door and telephoned her cousin.  She complained to her cousin.  The terms of that were, she said, “The black boy was here and he really interfered with me.”  She also called a friend in the village, and the police were summoned.

14.PW2, the cousin, also confirmed that this conversation that PW1 had related took place, and those were the terms of the conversation.

15.In addition to the evidence of PW1 and her cousin, there was evidence of DNA discovered within the premises; that is, within the bungalow.  First, this showed that tissue paper recovered from the scene, which was the bed in the bungalow, had bloodstains that came from both PW1 and the defendant; that the transparent duct tape recovered from the bed had DNA that could have come from the defendant, and hair from PW1; that two pillowcases on the bed had bloodstains that could have come from PW1 and the defendant.  The bed sheet on the bed had bloodstains that could have come from PW1 and the defendant.  The quilt cover on the bed had bloodstains that could have come from PW1 and the defendant.  A bra found in the defendant’s room had DNA that could have come from the defendant.

16.The medical findings of an examination of PW1 were agreed.  She was examined that evening.  She was found to have abrasions over her lip and erythema over her left forehead.

17.PW4, a police officer who had attended the scene, saw that the defendant had a 2-centimetre wound on his right thumb.  He said it looked like a bit of an abrasion.  He also saw bloodstains on the grey hoodie worn by the defendant.

18.The defendant did not give evidence himself.  Of course, no adverse inference can be drawn from this decision.  The defence did, however, place before the court the defendant’s video‑recorded interview.  The main response of the defendant in the interview when the allegations were put to him was that on the day in question he had been very drunk and could not remember what had happened.  He said he generally did not go to his aunt’s room, could not remember when he last saw her, and could not recall how his finger had been injured.  He said more than once that he had been drunk and crazy.  He stated he had suffered a nosebleed after his arrest.  He, however, did not require medical treatment, and refused to allow the police to take photographs of the wound to his finger.

19.The defendant did, however, call a witness, who was a Mr Ibrahim Danso.  He gave evidence that he and the defendant had been out drinking on the previous evening, which would have been Saturday.  On his account, much alcohol had been consumed.  The defendant had apparently been in an argument with another man, and someone had said that Papa was bleeding. Mr Ibrahim Danso did however say that he did not see any injury to the defendant himself.  At around 1 am he had left, and the defendant was still drinking there.  They had arranged to meet at the airport at 9 am on the Sunday. That would be the 13th.  However, the defendant did not show up.

20.The defence case appears to be that the acts of the defendant that PW1 evidenced and complained of did not occur at all.  I do not believe it could be argued that those acts would, if proved, be incapable of proving the offence as charged.  Clearly, the witness, PW1, suffered wounds, as shown by the medical evidence, and the matters she complained of would, I believe, if done with intent, constitute indecent assault.

21.This raises the issue as against PW1 of her credibility.  It is raised by the defence that the defendant certainly was subject to the influence of high alcohol consumption.

22.The prosecution brings the charges.  The burden of proving them lies on the prosecution at all times.  The prosecution must prove those charges beyond all reasonable doubt.

23.The 1st charge requires that the defendant assaulted the victim and did so in circumstances of indecency.  Thus, the prosecution must prove that the accused intentionally assaulted the victim, that the assault, and the circumstances of it, are capable of being considered indecent by right-minded people, and the accused intended to commit such an assault.

24.The 2nd charge requires that the defendant unlawfully and maliciously wounded the victim.  As I have observed, the injuries to PW1’s mouth were sufficient to constitute a wound.  The issue is whether the defendant caused these injuries unlawfully and maliciously.  This requires the defendant to intend such injuries or was so reckless that his acts would cause such injuries.

25.Furthermore, the fact that a person’s mind is affected by drink so that he acts in a way that he would not have done so while sober does not assist him at all if the necessary intention is there.  In any event, a drunken intent is still an intent.

26.The defence say that the key issue is whether PW1 is telling the truth about the defendant’s intention to commit the indecent assault and wounding.  They say that PW1 is racially prejudiced against the defendant.  Such prejudice must of course amount to a desire to give false evidence against him.  They say she is motivated by a desire to remove the defendant from living nearby.

27.It is also submitted that the DNA collected from the scene may have been deposited as a result of the proximity of the living arrangements of PW1 and the defendant and that the injuries that had been seen on the defendant may have been caused at another time.

28.In support of these propositions, they pray in aid reference in PW1’s complaint to her cousin that she referred to the defendant as a “black boy”.  There are also allegations of unequal treatment of the defendant and her niece.

29.It is also noted that PW1’s injuries are quite minor, and it is said they could not be consistent with the struggle she alleges occurred.  She is a small Chinese lady.  The defendant is strongly built.  It is said in such a struggle she would have suffered worse injuries. PW1 wears glasses.  They apparently were on her face throughout the incident and were not damaged.  It is said that is unlikely.

30.As far as the DNA that was found in the investigation, it is said these are all easily transportable domestic items that could have been mixed up in the household, and that could be the reason for their discovery on PW1’s bed.

31.As far as the resolution of this matter is concerned, after considering all of the evidence, I can say that I had no hesitation in fully accepting the evidence of PW1.  I found she was truthful, consistent, reliable and sensible.  I was prepared to place full weight upon what she had told me about what happened that evening.

32.In respect of the defence submissions, I did bear those in mind.  I found that I did not accept that PW1 displayed any racial animosity towards the defendant.  She definitely described him as a “black boy” when complaining to PW2.  However, I attribute this to what I describe as a clumsy use of expression.  She hails perhaps from a generation that has not the same sensitivity about such terminology as present people do. She has spent a large part of her own life in Africa and has returned there since on a number of occasions.  She also, on her own admission, expressed doubts about both mixed-race marriages and parenthood.  This was her own assessment and reflection, which she attributed to incompatible temperaments.

33.Again, I saw no discriminatory attitude in that.  It was just her honest assessment of what she thought the outcome might be.

34.One of course must note the presence of the defendant’s DNA inside the bungalow, inside the bedroom of the bungalow, and on items on the bed.  In the normal course of events, the defendant would not access that area, and naturally, the presence of these items would tend to support PW1’s account.  In reaching this conclusion, I did bear in mind that the items, which are pillowcases, bed sheets, quilt covers, duct tape and tissues, are all easily transportable items.

35.However, the evidence of Clint, who was the domestic helper, was that items such as pillowcases and bed sheets and quilt covers were washed before use, and the forensic scientists have confirmed that a normal wash in a washing machine would eradicate any DNA.  It would not survive the process.  It would therefore seem highly unlikely that any of the DNA found on these items in or on the bed could have come from transference within the domestic operations of the household.  Also, the DNA on the tissue and the items found on the duct tape exactly correspond with the details of the way the assault unfolded given by PW1, and I reject any suggestion that she fabricated this evidence.  To fabricate such evidence would also be not a practical way of excluding the defendant from her household.  He was in the process of trying to obtain a visa for the United States.  Clearly, such allegations would prejudice such an application.

36.I find there is no alternative rational explanation for the presence of the DNA on the duct tape and tissues other than the description given by PW1 in her evidence, and also that will apply to the other domestic items found such as the pillowcase, bed sheet, and quilt.

37.In his video-recorded interview, the defendant had mentioned he had had a nosebleed.  However, the actual timing of this is somewhat confused.  It was not noted at the time of his arrest, and in any event, such an item actually could not account for the defendant’s DNA being in PW1’s bedroom.  It appears to me the reference to a nosebleed by the defendant does appear to be an attempt to explain how his DNA could have been found to be present, but it could only be in PW1’s bedroom if he had accessed it.

38.Further evidence supportive of PW1’s evidence came from the injury to the defendant’s finger that was seen by police at the time of his arrest and in the interview.  The defendant did not permit it to be photographed, but did not ask for medical treatment.

39.DW1, Mr Danso, was called to attempt to provide evidence that the defendant suffered an injury in a dispute the evening before, but he was unable to provide any confirmation of witnessing any injury to the defendant.

40.It is clear to me that the explanation of the injury seen on the defendant’s finger was that it resulted from PW1’s attempt to defend herself by biting the defendant, which provides further supporting evidence of PW1’s account of the events of that evening.

41.The defence has submitted that PW1’s injuries were relatively light and do not support her evidence of an assault by a physically strong man.  However, the main way in which the defendant subdued PW1 was by lying on her and using his body weight.  Where he did use his arms to subdue her was in the use of the tissues, pillows and duct tape to silence PW1, and it is in doing those actions that he inflicted the injuries that were recorded on the mouth.

42.I find, contrary to the defence submission, that PW1’s injuries are completely consistent with her evidence.  I also noted the defendant had said that he was subject to drink at the time, yet his actions were those of a man who was in control of his actions, although possibly disinhibited if he had taken drink.  It is true the defendant had drunk the night before.  DW1, Mr Danso’s, evidence is clear on this, and I see no reason to doubt him on that fact.  The defendant may also have consumed whiskey, as an open, partly-drunk bottle was found in his room.  It is not possible to reach a definite conclusion on this, but it may be that the drink had disinhibited the defendant.

43.But he was clearly in sufficient control to commit these offences.  They were clearly conscious, planned acts that were done intentionally.  Firstly, PW1’s premises had to be entered, and they had been locked, on her account, when she left, but had been opened and unlocked by the time she returned.  The evidence shows therefore the defendant had gained entry by an undisclosed means.  Once he had gained entry and PW1 had returned, he had assaulted her by initially pushing her onto the bed, and had subdued her by lying on her.  Thereafter, his actions had assumed circumstances of indecency by grabbing and feeling the top of her chest and inserting his hand under her clothing to touch her abdomen.  Matters had progressed.  PW1 had kept scolding him, and while attempting to stop her doing this, he pushed tissues into her mouth and tried to put a pillowcase over her face and tried to seal her mouth with tape, all resulting in wounds to PW1’s mouth.

44.These are all clearly deliberate and intentional acts.  The indecency was obviously deliberately intended by the defendant, as was the infliction of the injuries.

45.I find that all elements of both offences have been proved beyond reasonable doubt.  The only conclusion I can reach, therefore, is that the defendant will be convicted of both Charges 1 and 2 on this indictment, and I record such convictions.