HKSAR v. Alvarado Perdomo Edward Alexander

DCCC 1181/2016

[2018] HKDC 369

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1181 OF 2016

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of wounding Franco Paul Jaboneta with intent to do him grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance[1].

Introduction

2.The defendant and Mr Franco came to know each other in 2012 through the introduction of the defendant’s wife Sherry Faller Alvarado, who Mr Franco first met in Shanghai around 2004/2005.  On 16 April 2016 the defendant, his wife and Mr Franco attended the 50th birthday party of Nigel Smith, held at the Isobar on the fourth floor of the International Finance Centre mall[2]. 

3.In summary the prosecution case is that when Mr Franco left the party at about midnight he met the defendant walking up the staircase between the third and fourth floors. The defendant, who was holding a beer bottle, became abusive in the course of which he took hold of Mr Franco’s shirt and bit his ear.  The defendant spat out some flesh which he picked up and then went up the staircase to the fourth floor. 

4.Nobody having witnessed what had happened Mr Franco went back up the stairs to let people know.  On the patio outside the fourth floor Mr Franco accused the defendant of biting his ear.  Mr Franco then went to hospital. 

5.The defendant was arrested at his home in the early hours of that morning.  The police seized the clothing worn by the defendant, including a waistcoat which was stained with the blood of Mr Franco.   

6.The defence case as put in cross-examination is that the defendant did not meet Mr Franco on the staircase; did not bite his ear; that Mr Franco, who is gay, tried to pick up someone at the party who felt uncomfortable by Mr Franco’s inappropriate behaviour and bit his ear; that Mr Franco fabricated the case against the defendant so he could obtain payment of his hospital bills and that the blood stain was as a result of Mr Franco poking the defendant in his abdomen. 

CCTV footage

7.At the beginning of the second day of the trial, before Mrs Panesar continued her cross-examination of Mr Franco, Mr Raffell informed the court that at the end of the first day of the trial Mrs Panesar asked whether there was any CCTV footage.  Mr Raffell believing there was none told Mrs Panesar he would nevertheless check with the police.  The police informed Mr Raffell there was in fact CCTV footage, a copy of which was given to Mrs Panesar on the evening of the first day[3]. Mrs Panesar requiring more time to view the CCTV footage before continuing cross-examination, the trial was adjourned until the afternoon of the second day.

8.Although in the defence written submissions Mrs Panesar questions why the CCTV footage was not disclosed prior to trial, apart from asking for more time to view the CCTV, no application was made by the defence arising out of the failure to disclose the CCTV footage prior to trial[4]. Indeed it is the defence submission that the CCTV footage casts doubt on the evidence of Mr Franco[5].

9.The CCTV footage shows only the top of the staircase and not the location where Mr Franco says his ear was bitten.  Mr Franco is seen leaving the party just before midnight and walking down the staircase.  The CCTV footage next shows a male walking up the stairs who the prosecution say is the defendant.  Shortly after, Mr Franco is seen walking up the stairs holding his left ear followed by a male in a white shirt who talks to people at a table near to the top of the stairs whereas Mr Franco walks out to the patio[6].

Prosecution witnesses

10.The prosecution initially intended to call only one witness Mr Franco (PW1) and tender for cross-examination the exhibit officer DPC 14383 (PW3).  Mr Franco commenced his evidence on 3 October 2017.  Cross-examination commenced that day and continued on 4 October when the case was adjourned to 6 October[7].

11.On 6 October before Mr Franco resumed his evidence Mr Raffell informed the court that Mr Franco had forwarded an email to the police from Rupert Oliver, a potential witness who Mr Raffell believed was the male in the white shirt seen on the CCTV following Mr Franco up the staircase.  Mr Raffell therefore applied for an adjournment to locate and interview the witness to see if he could help either the prosecution or the defence.  Mrs Panesar supported the application for an adjournment. 

12.The case was adjourned to 13 October for mention when Mr Raffell informed the court that Rupert Oliver had been located and a witness statement was to be taken from him later that day.  Mr Raffell also informed the court that contact had been made with Nigel Smith who was also willing to give a statement to the police.  Mrs Panesar agreed that statements should be taken from these two witnesses.  The trial was fixed to resume on 26 October with five days reserved. 

13.On 18 October the case was brought up for mention. Mr Raffell informed the court that during the adjournment Mr Franco had sent to the police a series of WhatsApp messages he had with the wife of the defendant, some of which were in Tagalog.  Mr Raffell was of the view the wife may be able to give relevant and probative evidence and therefore applied for an adjournment to locate the wife and to translate the messages in Tagalog.  The wife was not however in Hong Kong and Mr Raffell was unsure if and when she would next return to Hong Kong.   

14.Mr Raffell further informed the court that Mr Franco also forwarded to the police an email which referred to photographs taken by a guest at the party.  The witness however was said to be working for the BBC in Canada and the photographs were said to be in London.  The prosecution also wished to contact this witness.   

15.I refused the application for adjournment, which was opposed, and confirmed the trial would resume on 26 October.  Mr Raffell then informed the court that the prosecution would be calling Nigel Smith but not Rupert Oliver.  The trial resumed on 26 October with Mr Franco completing his evidence on 27 October. The prosecution then tendered one additional witness for cross-examination DPC 34608 (PW2), the arresting officer and called DPC 14383 (PW3)[8] and Nigel Smith (PW4). 

16.On the morning of 27 October before Mr Franco completed his evidence Mr Raffell informed the court that the wife of the defendant had contacted the police. After all the witnesses had completed their evidence the trial was adjourned to the afternoon of the following Monday[9] for a witness statement to be taken from the wife who was to arrive in Hong Kong that morning. 

17.On 30 October Mr Raffell confirmed that a witness statement had been taken from the wife of the defendant in which reference was made to another potential witness called Pamela Bahre, which witness was of interest to the defence.  The case was adjourned to the afternoon of the next day for Mr Raffell and Mrs Panesar to consider the witness statement of the wife and for Mr Raffell to consult with the advising counsel in the Department of Justice. 

18.The next day Mr Raffell informed the court that the prosecution would not be calling the defendant’s wife but understood that the defence may wish to call the wife.  Mr Raffell also informed the court that Pamela Bahre had not responded to an email sent to her by the police.  Mr Raffell therefore applied for an adjournment to locate the witness and to translate the WhatsApp messages between the wife and Mr Franco which were in Tagalog and which would be relevant if the wife was called as a defence witness. 

19.Mrs Panesar informed the court that the defence intended to call the wife subject to taking a statement from her and showing her the CCTV footage.  Mrs Panesar therefore agreed to the trial being adjourned.  Mrs Panesar also agreed to the adjournment so that the prosecution could locate and take a witness statement from Pamela Bahre and to translate the WhatsApp messages, which she required to see before making the final decision whether or not to call the wife.  

20.The trial resumed on 21 February 2018.  The prosecution called no further witnesses and closed their case on 22 February after facts were admitted pursuant to section 65C of the Criminal Procedure Ordinance[10], including the injuries to Mr Franco’s ear[11]; the arrest of the defendant[12]; photographs (exhibits P1 and P2)[13]; the blood of Mr Franco was found on clothing worn by Mr Franco and on a waistcoat seized from the defendant’s home[14]; and the CCTV footage (exhibit P11) together with still photographs (exhibits P7 and P8)[15].

Defence evidence

21.The defendant elected to remain silent.  No witnesses were called on his behalf. No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  This does not establish his guilt.

22.In response to paragraph 1 of the defence written submission Mr Raffell on behalf of the prosecution orally admitted that the defendant had a clear record. I direct myself as to good character of the defendant in accordance with the decision in HKSAR v Tang Siu Man[16].

23.Admitted in evidence are photographs shown in cross-examination to Mr Franco (exhibit D1 (a-h))[17]; still photographs from the CCTV footage (exhibits D2 and D3)[18]; a floor plan of the fourth floor of the International Finance Centre mall together with four photographs (exhibit D4)[19] and WhatsApp messages shown to Mr Franco in cross-examination (exhibit D5)[20].

24.Mrs Panesar referred Mr Franco to three pages of WhatsApp messages, specifically to messages sent on 22/5/2016; 16/6/2016; 17/6/2016 & 20/6/2016.  Initially when the messages were first shown to Mr Franco there was more than three pages.  At that time the three pages containing the messages shown to Mr Franco were marked “A” for identification.  All other pages were returned to Mrs Panesar. 

25.Later the messages on the three pages shown to and identified by Mr Franco were admitted in evidence as exhibit D5.  Only the messages shown to and identified by Mr Franco were admitted in evidence[21].

26.In the defence written submissions Mrs Panesar specifically refers to WhatsApp messages sent on 17/4//2016; 18/4/2016; 23/4/2016; 26/4/2016; and 29/4/2016[22].  None of these messages were shown to Mr Franco and are not contained in the three pages.  In paragraph 35 of the defence written submissions Mrs Panesar refers to a message sent on 20/6/2016 at 6:33:18.   Although Mr Franco was shown messages sent on that day he was not shown this message.  The last message on that day which was shown to Mr Franco was the message sent at 6:32:52. 

27.Upon the court drawing to the attention of Mrs Panesar that these messages were not shown to Mr Franco and were not admitted in evidence, Mrs Panesar, after further consideration, withdrew all submissions referring to these messages.  

28.The only reference in the defence written submission to a message shown to Mr Franco is at the end of paragraph 52 when Mrs Panesar states that Mr Franco threatened Sherry by claiming his godfather was high up in the Hong Kong police.  This is reference to a message sent on 16/6/2016 at 11:46:45, although the time of the message is not mentioned in the written submission[23].  

Identification

29.The prosecution case depending on the correctness of the identification of the defendant by Mr Franco, which identification the defence allege to be mistaken, I direct myself in accordance with the principles established in R v Turnbull[24]. I warn myself of the special need for caution before convicting the defendant in reliance on the evidence of identification. 

30.I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.  I remind myself of the possibility that a mistaken witness can be a convincing witness and that mistakes in recognition of close relatives and friends are sometimes made[25].

31.When the quality of the identifying evidence is poor unless there is evidence which goes to support the correctness of the identification the accused shall be acquitted.  Odd coincidences can, if unexplained, be supporting evidence[26]. 

32.The defendant having elected to remain silent there is no evidence from the defence to undermine, contradict or explain the evidence led by the prosecution.  As was said by the Court of Appeal in Turnbull[27]:

“An accused’s absence from the witness box cannot provide evidence of anything and the judge should tell the jury so. But he would be entitled to tell them that when assessing the quality of the identification evidence they could take into consideration the fact that it was uncontradicted by any evidence coming from the accused himself.”

33.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict. 

34.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against the defendant as well as one in his favour the adverse inference cannot be drawn.  

35.I have carefully considered all the evidence and the submissions of Mr Raffell and Mrs Panesar. 

Evidence

36.Before summarising the evidence mention must be made of the fact that in the defence written submissions there are a number of factual errors in the recitation of the evidence, including reference to drugs being taken in the party when no such evidence was given and quoting the evidence of Rupert Oliver, who Mrs Panesar submitted did not tell the truth to the court, when Rupert Oliver was not called as a witness.

37.The errors, apart from the reference to the WhatsApp messages mentioned earlier which were not referred to in evidence, are contained in paragraphs 11, 14, 15, 16, 19, 21, 24, 26, 29, 43, 49 & 60.  After reviewing the evidence Mrs Panesar accepted these errors in the recitation of the evidence and apologised to the court.

Mr Franco (PW1)

38.Mr Franco testified that on 16 April 2016 together with the defendant, who he called Edward and his wife, who he called Sherry, he went to the 50th birthday party of Nigel Smith held at the Isobar on the fourth floor of the International Finance Centre mall.

39.Mr Franco met Edward in 2012 through Sherry, who Mr Franco had known since around 2004/2005 after meeting her in Shanghai.   

40.The party was a costume party.  Prior to the party starting Mr Franco went to the home of Edward and Sherry.  While in their home Mr Franco took a selfie with his phone showing the three of them in their costumes (photograph 1, exhibit P1)[28]. Mr Franco is the one wearing the black wig.    

41.The party started at 8 p.m.  Mr Franco said he did not have much interaction with Edward during the party and that he spoke to other people who he met that night. 

42.At about midnight Mr Franco left the party.  Mr Franco left by the staircase which leads from the fourth floor to the third floor, which Mr Franco said was the only way out at that time of night.    

43.As he was walking down the staircase Mr Franco met Edward coming up the stairs.  Mr Franco said he was going home and thanked Edward for having him over to his apartment prior to the party.  In cross-examination Mr Franco said he stopped to talk to Edward.

44.Out of the blue Edward said Mr Franco was a piece of shit and that the next time he went to his apartment he would beat the shit out of him.  Mr Franco asked Edward what was wrong with him.  Edward continued to abuse Mr Franco calling him a stupid Filipino faggot. 

45.Mr Franco told Edward he was drunk and that he would regret this the next day.  In answer to the court Mr Franco explained that he said this so that Edward would be apologetic because Edward had assaulted him before.  In reaching my verdict I have disregarded the reference by Mr Franco to a previous assault[29]. 

46.As Mr Franco tried to walk down the stairs Edward, who was going up the stairs, pulled Mr Franco’s shirt and held onto Mr Franco.  Mr Franco who was wearing high platform shoes was afraid he may fall down the stairs therefore he “grounded” his back against the wall to avoid falling down.  

47.At this time Mr Franco saw Edward holding a beer bottle in his left hand.  When Edward tried to hit Mr Franco with the bottle, Mr Franco used his left hand to hold Edward’s arm.  When Mr Franco was looking at the bottle he felt something bite his ear. Mr Franco saw Edward lean on him and bite his ear.  Edward then spat something on the ground.  Mr Franco saw a piece of flesh on the ground, which Edward picked up and then ran upstairs.  In answer to the court when asked about the lighting Mr Franco said that he remembered seeing blood on the floor.

48.Mr Franco said there was no one else on the staircase at that time and nothing in the proximity which could have caused the injury to his ear.   

49.Mr Franco, scared and in a state of shock, did not know how to react.  The first thing he did was to check how severe the injury was as there was a lot of blood on his shirt.  Mr Franco took out his phone and used the camera function to check the injury.  On seeing part of his ear had been bitten off Mr Franco was scared.    

50.Mr Franco initially thought of running downstairs and going to hospital.  However, as no one had witnessed what happened he went back upstairs to let people know what had happened to him.  Mr Franco went out to the patio on the fourth floor, where he saw some people, including Sherry.  On the way Mr Franco passed Nigel Smith who asked him what had happened. 

51.Sherry asked Mr Franco why he was bloody.  Mr Franco replied that Edward had assaulted him.  After about one minute, while Mr Franco was talking to Sherry, Edward appeared.  Mr Franco accused Edward of assaulting him on the staircase and biting his ear.  Edward replied that he did not do anything.  When asked if he could see whether Edward had the part of his ear which had been bitten off, Mr Franco replied no and said that everyone, including Sherry, was asking Edward where was the ear.  Edward made no response.

52.Afterwards the police were called and Mr Franco was taken to the Queen Mary Hospital. Later Mr Franco went to the Matilda Hospital where he underwent surgery to reconstruct his ear which was sewn to the side of his head.   

53.Mr Franco identified his bloodstained shirt (exhibit P3), trousers (exhibit P4) and handkerchief (exhibit P5) which he used to cover his ear[30].  Mr Franco also identified photographs of his ear taken with his mobile phone (photographs 4-10, exhibit P1) [31].  Mr Franco took some of the photographs whilst others were taken by a nurse or doctor in the hospital.      

Nigel Smith (PW4)

54.Nigel Smith also knew Mr Franco, the defendant and his wife, who he also knew as Edward and Sherry. 

55.In summary Mr Smith testified that at around midnight he saw Mr Franco walk from the stairs to the patio holding a handkerchief to his ear.  Mr Smith followed Mr Franco out to the patio.  On the patio Mr Franco was walking around very agitated saying “You are going to jail for this” or “I am going to sue you for this”.  Mr Smith could not however remember the exact words spoken by Mr Franco. 

56.Mr Smith then looked at Edward who was not saying anything and looked quite distant.  Mr Smith says he probably would have asked Edward what was going on but could not remember exactly and could not remember any answer coming from Edward. Mr Smith says he asked Edward because Mr Franco was screaming at Edward and holding a handkerchief over his ear.  Mr Smith says at this time he would probably have seen the handkerchief was bloodied. 

57.Mr Franco, who seemed to be looking for something, then went back inside.  Mr Smith also went back inside and continued dancing.  Mr Smith did not see Mr Franco leave.  Mr Smith said he seemed to remember Edward and Sherry leaving by walking down the staircase together. 

Police evidence

DPC 34608 (PW2)

58.Admitted in evidence is that the defendant was arrested at his home at 3.55 am on 17 April 2016[32]. DPC 34608, the arresting officer, was tendered for cross-examination.  When DPC 34608 arrived at the defendant’s home the defendant was wearing his pyjamas and was the only person at home.  The defendant said he went home by himself in a taxi at around midnight and that his wife was still having fun. 

59.DPC 34608 asked the defendant a few questions, including whether he had been involved in a fight or an incident.  The defendant replied he had not.  DPC 34608 then declared arrest but did not caution the defendant.  After declaring arrest DPC 34608 seized clothing belonging to the defendant.  This evidence is discussed when considering whether there is any evidence to support the identification of the defendant by Mr Franco.  

DPC 14383 (PW3)

60.DPC 14383, the exhibit officer, testified that he was responsible for sending the exhibits to the Forensic Science Laboratory for testing, which were kept in separate tamperproof exhibit bags.  This evidence is discussed when considering the evidence of a bloodstain found on the defendant’s waistcoat.

CCTV

61.The CCTV footage (exhibit P11) and still photographs from the footage (exhibits P7 and P8 and D2 (Part A and Part B) and D3) have been admitted in evidence[33].  The CCTV footage covers the period from 23:25:07 to 00:40:05.

62.The CCTV footage only shows the top of the staircase and not the area where Mr Franco said his ear was bitten.  There are two main cameras referred to in evidence as camera 1 and camera 2 which show the top of the staircase from different angles and part of the dance floor[34].

63.Camera 1 (channel 9) is positioned looking down the staircase from which persons can be seen walking up the stairs towards the camera.  At the top of the staircase the camera covers the area to the right of the dance floor.  The quality of this footage is very poor.

64.Camera 2 (channel 10) is positioned behind the staircase from which persons can be seen walking down the stairs towards the camera.  At the top of the staircase the camera covers the dance floor, including the door to the patio.  The quality of this footage is better but not sufficient to identify the faces of anyone. 

65.The following description of the CCTV footage lists some key events.  This is not however an exhaustive list of what is shown on the CCTV.  All references are to camera 2.  By switching to camera 1 the viewer can see what is captured at the same time, for example if camera 2 shows someone walking down the staircase the back of that person will be seen on camera 1.  Where more than one person is referred to in a particular shot the best way to view this is by following one person first and then viewing the CCTV footage again to follow the other person. 

66.To be noted is that sometimes the playback jumps two seconds at a time. Repeated viewing in normal time is required to see the relevant parts of the CCTV footage. 

67.23:54:59 – Mr Franco is seen standing at the top of the stairs;

23:56:15 – Mr Franco starts walking down the stairs with his wig on and appears to be carrying a bag in his left hand;

23:58:15 – a male is seen walking up the stairs and going out to the patio. On Mr Franco’s evidence this would be the person who bit his ear;

23:58:26 – Mr Franco is seen walking up the staircase with his left hand on his ear and carrying a bag in his right hand but no longer wearing his wig. Mr Franco walks to the patio;

23:58:38 – a man in a white shirt follows Mr Franco up the staircase and talks to people at a table near to the top of the staircase and appears to point to his ear;

00:00:16 – Mr Franco leaves the patio still holding his left ear and carrying a bag in his right hand and walks down the staircase followed by a lady. Mr Franco could not remember who the lady was;

00:01:21 – the same lady walks back up the stairs and walks to the patio;

00:01:34 – Mr Franco walks back up the staircase still holding his left ear and carrying a bag in his right hand. Mr Franco walks to the patio followed by Mr Smith;

00:05:15 – Mr Franco leaves the patio still holding his left ear and carrying a bag in his right hand and walks down the staircase together with a lady who Mr Franco thinks, by the outfit she is wearing, is Sherry;

00:06:20 – the same lady walks back up the stairs and walks to the patio.

Discussion

68.I have carefully considered all the evidence.  I have viewed the CCTV footage many times.   

69.The defendant is someone well known to Mr Franco and not a stranger.   The prosecution relying on the evidence of Mr Franco, the main issue at trial has been the credibility of Mr Franco. 

70.In R v Beckford the Privy Council held that the need to give a general warning on Turnbull lines was required even in cases of recognition where the main issue at trial is the truthfulness of the witness.  In these circumstances the Privy Council said that the first question to ask is whether the witness is honest and if yes, whether his identification is right or could he be mistaken[35].

Is Mr Franco an honest witness?

71.Mr Raffell submits that Mr Franco gave clear, straightforward and credible evidence[36] whereas Mrs Panesar variously submits that Mr Franco was wrong  or lying, that he lied convincingly; that he deliberately lied; that he acted with zeal when he suddenly came up with new evidence to secure a conviction; that he manipulated the evidence to concoct a story; and that he was a callous and dishonest witness[37].

Was Mr Franco’s ear bitten?

72.Mrs Panesar submits that there is doubt as to whether Mr Franco’s ear was bitten, in particular that Mr Franco concocted the story about the defendant holding a bottle and that it was impossible for Mr Franco’s ear to be bitten[38]. 

73.Mrs Panesar cross-examined Mr Franco extensively on his account of what happened when he walked down the staircase, including what side of the stairs he walked down; what steps he was on at different stages of the assault; and which hand the defendant used to grab his shirt. 

74.I am satisfied in all material respects Mr Franco gave the same account under cross-examination.  Having seen the photographs of the staircase[39] and carefully considered Mr Franco’s evidence, including that there was nothing else in the proximity which could have caused the injury to his ear, I find I am satisfied so I am sure that Mr Franco’s ear was bitten when he walked down the stairs.  I am satisfied on the medical evidence and the photographs that Mr Franco was wounded[40].

Manipulation of evidence

75.Mrs Panesar submits that in the middle of the trial Mr Franco suddenly came up with new evidence, including the name of Rupert Oliver.  This Mrs Panesar submits shows the zeal of Mr Franco to secure the conviction of the defendant[41].

76.I have no hesitation in rejecting this submission.  I have already set out at the beginning of my verdict the circumstances which led to adjournments during the evidence of Mr Franco.  At no time did Mrs Panesar cross-examine Mr Franco on why he had not prior to trial disclosed any of this information to the police.

77.Mention should also be made that in making this submission Mrs Panesar refers to Mr Franco, after the incident, communicating with Mr Smith and Mr Oliver.  This is one example where Mrs Panesar has incorrectly recited the evidence when saying that Mr Franco did not remember their conversations but was able to recall that they did not discuss the incident[42].

78.In cross-examination Mrs Panesar asked Mr Franco who he had contacted after the incident telling them about his injury to his ear and how that may have been caused[43]. Mr Franco replied what he remembered was three persons: Nigel Smith, Donna Mak and Rupert Oliver.  Mrs Panesar only asked Mr Franco about his contact with Nigel Smith and not Rupert Oliver and Donna Mak.

79.Mr Franco said after the party he sent a Facebook message to Mr Smith apologising for what happened on his birthday.  Mr Smith then invited Mr Franco for a drink at the Kee Club.  Mr Franco basically told Mr Smith what happened that night but could not remember much of the discussion which was over eighteen months ago.  Mr Franco said he could not remember if he reminded Mr Smith that he complained to Mr Smith when he walked up the stairs and did not remember if he reminded Mr Smith of how he (Mr Franco) had gone out to the patio and accused Edward. 

80.Mr Franco said he last saw Mr Smith in a business meeting about two months before he gave evidence.  Mr Franco did not talk to Mr Smith about the birthday party during the meeting.

81.Mr Smith gave evidence that after the party he had no real social contact with Mr Franco except one time when they met for a drink.   In cross-examination when asked how many times he had met Mr Franco after the party, Mr Smith replied once socially for a drink and once through business.  Mrs Panesar did not ask Mr Smith anything further about these two meetings. 

82.The fact Mr Franco contacted Mr Smith and Mr Oliver after the incident does not cause me to doubt the honesty of Mr Franco. 

Wig

83.Mrs Panesar submits that the CCTV footage shows that Mr Franco concocted evidence about not wearing his wig when he walked down the stairs; that he was dishonest and manipulated the evidence about wearing the wig and deliberately lied that he was not wearing his wig when he walked down the stairs[44].

84.In cross-examination Mr Franco said that before going down the stairs he had taken off his wig and put the wig in a plastic bag.  Mr Franco said he removed the wig when sitting on the long brown seat/sofa shown in photograph 12, exhibit P2.  Mr Franco disagreed he still had the wig on when he returned to the patio.

85.This evidence was given on the first day of cross-examination before Mrs Panesar was aware of the existence of the CCTV footage.  The CCTV footage shows that when Mr Franco walked down the stairs at 23:56:15 he was wearing his wig. 

86.During the second day of cross-examination and before Mr Franco was shown this part of the CCTV footage, Mrs Panesar again put to Mr Franco that he was wearing his wig when he walked down the stairs[45]. Mr Franco again disagreed.  At the end of cross-examination Mrs Panesar showed Mr Franco the CCTV footage of him walking down the stairs with his wig still on[46]. 

87.When asked at what stage did he take off his wig Mr Franco replied he did not remember the exact point; he knew that he removed the wig as he was leaving and that he had removed the wig before his ear was bitten. 

88.Mrs Panesar then reminded Mr Franco of his earlier evidence that before walking down the stairs he had removed the wig when sitting on the long brown seat and put the wig in a plastic bag.  Mr Franco said he could not remember what he had told the court earlier. When the court explained that Mrs Panesar recited his evidence accurately Mr Franco said he had told the court what he had remembered. 

89.The fact Mr Franco wrongly remembered when he removed his wig does not cause me to doubt his evidence of what happened when he walked down the staircase. Considering Mr Franco began giving evidence almost eighteen months after the incident it is not at all surprising he did not remember correctly the exact point where he removed his wig[47]. I reject the suggestion that Mr Franco manipulated the evidence.

Differences/inconsistencies with the evidence of Nigel Smith

90.Mrs Panesar submits Mr Franco also concocted evidence about saying goodbye to Mr Smith[48]. I have no hesitation in rejecting this submission.

91.Mr Franco testified that before leaving the party he said goodbye to Nigel Smith whereas in cross-examination Mr Smith said Mr Franco did not say goodbye to him before leaving the party.

92.In answer to the court Nigel Smith said he was wearing a silver suit and shiny shoes.  Mr Smith pointed himself out on the CCTV footage when camera 2 was paused at 23:59:24 as the person on the right side of the dance floor with the shiny shoes. 

93.By looking at the CCTV footage between 23:58:49 and 00:00:03 Mr Smith can be seen walking from the patio to the dance floor at 23:58:49; walking back to the patio at 23:59:56 and returning to the dance floor at 00:00:03 when he continues dancing.  Mr Smith is shown dancing at 23:59:22 on the far right of the still photograph on page 47, exhibit D3.  Mr Smith can also be seen on still photograph 16, exhibit P8 standing in the middle of the photograph facing the staircase with his back to the door of the patio at 00:01:34. 

94.When Mr Franco was cross-examined on the CCTV footage between 23:54:55 and 23:56:22 showing him at the top of the staircase Mr Franco repeated that he said goodbye to Mr Smith and pointed out Mr Smith’s shoes on the CCTV footage[49]. 

95. Having looked at the CCTV footage carefully I am satisfied Mr Smith can be seen at this time and that Mr Franco walked towards Mr Smith just before he walked down the stairs.  I am satisfied when Mr Smith said that Mr Franco did not say goodbye to him Mr Smith was mistaken. 

96.Mrs Panesar also draws to the attention of the court another inconsistency in the evidence of Mr Franco and that of Mr Smith namely whether Mr Franco said anything to Mr Smith when he walked up the stairs and out to the patio after his ear was bitten[50].

97.Mr Franco testified that after his ear was bitten he saw Mr Smith as he walked to the patio and told him what had happened whereas in cross-examination Mr Smith said that when Mr Franco emerged from the staircase and walked to the patio Mr Franco did not stop or say anything to him.

98.The CCTV footage shows that at 23:58:26 when Mr Franco walked up the stairs after his ear was bitten and out to the patio he did not pass Mr Smith.  At 00:00:16 Mr Franco leaves the patio and walks down the stairs.  At 00:01:34 Mr Franco walks back up the stairs and out to the patio.  As Mr Franco walks to the patio at 00:01:39 Mr Smith appears to put his hand on the shoulder of Mr Franco and follow Mr Franco out on to the patio.

99.After re-examination when the court played to Mr Franco the CCTV footage showing him return to the patio the second time, Mr Franco explained that he left the patio the first time because Sherry told him to go look for his ear.  Unable to find his ear Mr Franco walked up the stairs and went back to the patio.  In answer to the court Mr Franco said that he accused Edward the first time he went to the patio. 

100.Mr Smith gave evidence on 27 October 2017.  In cross-examination Mr Smith said that he did not speak to the police on the day of the party; was first asked about what happened at the party very recently when asked to go to the police station to give a statement; and that he gave his statement on 17 October 2017. 

101.Considering Mr Smith gave evidence over eighteen months after the incident and had not been approached by the police until October 2017, it is not at all surprising there are differences in the evidence of Mr Franco and Mr Smith.

102.The differences in my view are not material.  Even if Mr Franco did not actually say goodbye to Mr Smith and did not say anything to Mr Smith as he walked to the patio this does not cause me to doubt Mr Franco’s evidence of what happened when he walked down the staircase. 

103.Again considering Mr Franco was giving evidence almost eighteen months after the incident it is also not surprising that Mr Franco omitted to tell the court about returning to the patio a second time.  This omission does not cause me to doubt Mr Franco’s evidence of what happened when he walked down the staircase.  

Alcohol

104.In the defence written submission Mrs Panesar refers to the amount of alcohol drunk by Mr Franco[51]. In oral submission Mrs Panesar submits that memories of acts and words may have been affected by the alcohol taken.     

105.Mr Franco testified that both he and Edward drank alcohol at the party.    Mr Franco did not regard himself as drunk.  In cross-examination Mr Franco agreed that before going to the party he was invited to the home of Edward and Sherry for a glass of wine; in the party he drank mostly champagne, four to five glasses and agreed that he may have drunk more but not much more.  Mr Franco disagreed he drank white wine, whisky or other alcohol repeating that he mostly drank champagne.

106.When Mrs Panesar showed Mr Franco two photographs (photographs (a) & (b), exhibit D1[52]) of him drinking a cocktail, Mr Franco said these photographs were not taken at the party.  Mr Franco disagreed that he had been drinking similar cocktails at the party and said that since the beginning of 2016 he no longer drank vodka based cocktails because of hypertension. 

107.I accept the evidence of Mr Franco that he did not regard himself as drunk.  The fact that Mr Franco had consumed alcohol that night does not cause me to doubt his evidence about what happened when he walked down the staircase. 

108.In the defence written submissions reference is also made to the consumption of drugs[53].  There was no evidence before the court that drugs were taken at the party.  The WhatsApp messages apparently referring to drugs were never shown to Mr Franco and were not admitted in evidence.  Mr Franco was never asked about drugs, whether he took them or whether he saw anybody taking drugs. 

Was the defendant drunk?

109.In the section “PW1’s honesty, credibility and integrity”, Mrs Panesar refers to the evidence of Mr Franco saying that the defendant was drunk whereas when the police arrived at the defendant’s home the defendant smelt of alcohol but was not drunk[54].

110.As summarised earlier Mr Franco testified that when Edward abused him Mr Franco said that he was drunk and would regret this the next day.  In cross-examination DPC 34608 said that when the defendant opened the door of his home although he could smell that the defendant had been drinking, the defendant was sober. 

111.DPC 34608 was the arresting officer.  Admitted in evidence is that the defendant was arrested at his home at 3.55a.m.[55] The evidence of DPC 34608 that the defendant was sober almost four hours after the incident does not cause me to doubt Mr Franco’s evidence of what happened on the staircase.  

Why did Mr Franco go down the staircase?

112.Mrs Panesar submits that Mr Franco lied with regard to whether there was any other way he could have left the party[56]. Admitted in evidence is a floor plan of the fourth floor which shows there is an escalator which is shown in one of the accompanying photographs (exhibit D4) [57].

113.I have no hesitation in rejecting this submission.  This is another instance where the evidence has been incorrectly recited.  At no time did Mr Franco say there was no other exit. 

114.In evidence-in-chief Mr Franco said that he went down the stairs because that was the only way out at that time of night.  In cross-examination when Mrs Panesar put that there was an escalator from the ground floor to the patio Mr Franco replied that there was an escalator from the second or the third floor and not from the ground floor. 

115.Mr Franco explained that he was not sure because he had not used the escalator so much and that when he asked if he could use the escalator that night he was told that it was closed and that the only way out after 12 o’clock was by the staircase.    Mr Franco said he did not know there was a lift on the fourth floor from the bar to the ground floor. 

116.By viewing camera 1, for example at 00:16:47, persons can be seen on the right hand side leaving the dance floor and walking through a door.  In re-examination (after questions asked by the court) Mr Franco said that there may have been an exit there next to a toilet but could not recall as that was the first time he had been to the Isobar.   In evidence Mr Smith said that walking in that direction leads to the Four Seasons Hotel where there are elevators down to the MTR.

117.The fact that there were alternative ways of leaving the bar does not cause me to doubt the reason why Mr Franco went down the staircase was because he was told that was the only way down at that time of night.  Nor does the fact that he used the staircase to leave cause me to doubt his evidence about what happened when he walked down the staircase. 

Fabrication

118.The defence case as put in cross-examination is that Mr Franco was acting inappropriately at the party and had offended another guest who bit his ear and that in order to obtain payment of his hospital bills he falsely accused the defendant of biting his ear. 

Inappropriate behaviour

119.As noted earlier Mr Franco said he did not have much interaction with Edward during the party and that he spoke to other peoplewho he met that night.  In cross-examination Mr Franco said the only people he knew at the party were Nigel Smith and his wife and Edward and Sherry.

120.At the beginning of cross-examination when Mrs Panesar asked Mr Franco if he was gay, Mr Franco immediately replied “Yes”.  When Mrs Panesar showed Mr Franco photographs of him with other men (photographs (c) to (f), exhibit D1) Mr Franco explained where the photographs were taken. 

121.Photographs (c) and (d) were taken outside a bar on Wyndham Street in Lan Kwai Fong during the Rugby Sevens.  Mr Franco knew the person seen kissing him in photograph (c) and knew the person in photograph (d) whose back was to him.  When asked by Mrs Panesar he gave the name of this person.  Photographs (e) and (f) were taken in a bar in Wanchai. 

122.When asked by Mrs Panesar how many males did he have photographs taken with at the party, Mr Franco said he could not remember.  Asked if any of the photographs of the party were still on his phone, Mr Franco replied that all the photographs were still on his phone.  Mr Franco said there was altogether forty-eight photographs and allowed Mrs Panesar to look at the photographs on his phone before she continued her cross-examination[58]. 

123.In the defence written submission Mrs Panesar submits that the CCTV footage clearly shows that Mr Franco was for the majority of the time using his mobile phone and that before he left he was waiting for someone at the top of the stairs. By implication from the questions asked by Mrs Panesar the suggestion was that this was someone gay who Mr Franco had contacted that night on a gay website such as “Grinder”[59].

124.Mr Franco said he did not arrange to meet another gay person at the party and was not waiting for someone before walking down the stairs.  Asked by Mrs Panesar whether at the party he had been on a website called “Grinder”, Mr Franco replied no but could not remember if he had been on the website that night and said he did not use “Grinder” so much and was not a subscriber at that time. 

125.Mr Franco disagreed that he went round the party hugging other males and touching the arms and bodies of other men dressed in roman style toga outfit like the male seen in photographs 2 & 3, exhibit P1.  When Mrs Panesar put that his behaviour at the party was as shown in photographs (c) and (d), exhibit D1, Mr Franco replied that he never touched anyone inappropriately; never kissed anyone, never touched them sexually and that he had never sexually assaulted anyone in his life. 

126.Mr Franco disagreed he was flirting with males at the party and trying to pick up a male.  Mr Franco said he did not touch anyone inappropriately as he walked down the staircase and did not remember upsetting anyone at the party.

127.At no time did Mr Franco try to hide his sexuality.  I accept Mr Franco’s evidence that he never touched anyone inappropriately at the party. 

Payment of the hospital bills

128.In cross-examination Mr Franco said Sherry paid the hospital bills of around $160,000.  In the defence written submissions Mrs Panesar submits that in insisting that Sherry paid the hospital bills Mr Franco is a callous and dishonest person who had no hesitation in making an innocent person who had nothing to do with his injury pay the bill and falsely accusing the defendant of biting his ear because he needed someone to pay the bills[60].

129.I have no hesitation in rejecting this submission.  At no time did Mr Franco say that he insisted on Sherry paying the hospital bills.  In cross-examination Mr Franco said Sherry visited him in hospital and that he asked Sherry to pay because of what her husband did.  Mr Franco disagreed he borrowed the money and said that Sherry had a choice whether to pay or not.  Mr Franco believed Sherry paid thinking he would not press charges.

130.Mrs Panesar then asked Mr Franco whether he blackmailed Sherry into paying by saying if she paid he would not pursue the complaint.  Mr Franco replied that Sherry paid the bill out of her own free will. 

131.Mrs Panesar next asked Mr Franco about his means to pay the bill.  Mr Franco said that he would have been able to pay the bill himself although he did not have that much money in the bank.  Mr Franco disagreed that he wrongly accused the defendant so that Sherry would pay. 

132.Mr Franco further disagreed that when Sherry asked for the money back he threatened Sherry and disagreed he told Sherry that his family had a godfather in the police.  Mrs Panesar then asked Mr Franco if he had sent Sherry a message in which it was said:

“My family’s godfather is the head of Hong Kong Police. I strongly warn you to stop immediately or we will have no further recourse but to contact the authorities and file a formal complaint against your harassment and lies.”

133.Before answering the question, I gave Mr Franco the warning against self-incrimination.  Mrs Panesar then showed a series of messages to Mr Franco (exhibit D5)[61] specifically referring Mr Franco to the message on 16/6/2016 at 11:46:45 AM in which is stated:

“My family’s godfather is the head of Hong Kong Police”[62].

134.The content of this message is referred to in the defence written submission at the end of §52, however the recitation of the evidence that Mr Franco did not deny the threat is incorrect.  Mr Franco disagreed that he told Sherry his family had a godfather in the Hong Kong police and said that he forwarded the message to Sherry from his friend Audrey.  I note the next message states:

“That was from Audrey”.

135.Mr Franco explained that he forwarded the message because during that time his friends were receiving harassing messages from an anonymous number, which messages Mr Franco assumed were sent by Sherry. 

136.Although in the defence written submissions Mrs Panesar has not specifically referred to the other messages shown to Mr Franco in cross-examination, I will nevertheless briefly summarise Mr Franco’s evidence relating to the messages shown to him. 

137.In reaching my verdict I have only considered the messages shown to Mr Franco. Including the message relating to having a godfather who is the head of the Hong Kong Police, Mrs Panesar showed Mr Franco a total of eighteen messages sent between 22/5/2016 at 1:13:08 PM and 20/6/2016 at 6:32:52 PM[63].  

138.The first message contained some Tagalog, which Mrs Panesar asked Mr Franco to translate.  Mr Franco translated the Tagalog as “I hope you do not make this bigger”.  Mr Franco agreed that he received the messages sent by Sherry on 22/5/2016 at 1:13:08 PM and on 16/6/2016 at 10:50:15 and 10:56:01 AM and that he sent the messages on 16/6/2016 at 10:48:23; 10:54:54 and 11:05:52 AM.

139.Mr Franco disagreed that his relationship with Sherry broke down because she demanded repayment of the hospital bills.  Mr Franco explained that he stopped communicating with Sherry on the advice of his lawyers and that he refused to repay Sherry because he did not borrow the money.  

140.When asked how he would have paid if Sherry had not paid Mr Franco replied that he had company insurance but did not ask the company to pay because it was an emergency having happened on a Sunday. 

141.Mr Franco said he was annoyed and angry when Sherry demanded repayment.  Mr Franco said he could not remember if he sent messages to his friends complaining about the unreasonableness or absurdity of Sherry demanding repayment.  Mr Franco agreed he might have said some insulting things about Sherry but could not remember what he said. 

142.Mr Franco disagreed that the message dated 16/6/2016 at 11:05:52 AM was sent to threaten or intimidate Sherry.  Mr Franco sent the next message at 11:12:48 because he was angry about messages sent to his friends and sent the message at 3:28:37 PM because Sherry had sent anonymous messages saying he was spreading rumours about his friend Anna saying she was a high class prostitute in Singapore. 

143.Mrs Panesar next asked about the message sent by Sherry on 17/6/2016 at 8:49:45 PM. Mr Franco explained the message referred to messages he had sent on Facebook about Edward.  When Mrs Panesar asked what he had said about Edward, Mr Franco replied, “That he had assaulted me and bit my ear and that I also said that I was worried about Sherry because Edward gets violent when he is drunk.”

144.Mrs Panesar next asked Mr Franco about eight messages sent on 20/6/2016.  The first at 5:51:48 PM Sherry demands repayment.  Mr Franco responded by sending the message at 6:22:08 PM asking Sherry to send a demand letter and to contact his lawyer.  Sherry replied at 6:28:36 PM that it is ready and at 6:29:00 PM said it was nothing to do with her.  At 6:29:11 PM Mr Franco says Sherry is full of bullshit; at 6:29:44 PM asks for his ear back; and at 6:31:57 said Sherry was crazy.  Mr Franco said he sent this message because he was angry about Sherry lying that the money was borrowed. 

145.The final message Mrs Panesar showed to Mr Franco was at 6:32:52 PM when Mr Franco says Sherry is stupid to say it has nothing to do with her and that his attack had everything to do with her.  Mr Franco said he sent this message to say that the assault was also because of Sherry and disagreed with Mrs Panesar that there was no truth in his allegation that the attack had everything to do with Sherry.

146.In reaching my verdict I have not relied on the content of the messages to support the evidence of Mr Franco and disregarded the evidence adduced in cross-examination that Edward gets violent when drunk. 

147.Having carefully considered all the evidence and the submissions of Mrs Panesar, I am satisfied so I am sure Mr Franco is telling the truth when he says that Sherry paid the hospital bills of her own free will. 

148.I reject that Mr Franco went upstairs to accuse the defendant, someone he had known for around four years and whose home he had been to earlier that night, so that his wife Sherry, who Mr Franco had known for over ten years and who in cross-examination said he regarded as a sister, would pay the hospital bills. 

149.I accept the evidence of Mr Franco that he was scared and in a state of shock when he saw his ear had been bitten and because no one witnessed what had happened he went upstairs to let people know what had happened to him and not to falsely accuse someone so he could get them to pay the hospital bills. 

150.Having carefully considered all the evidence and the submissions of Mrs Panesar, I am satisfied so I am sure Mr Franco is an honest witness.

Is Mr Franco right or is he mistaken that the defendant was the person who bit his ear.

CCTV

151.Photographs found on Mr Franco’s mobile phone have been admitted in evidence (exhibit P1)[64].  Three photographs show the clothing worn by the defendant. A selfie taken in the defendant’s home prior to the party (photograph 1) and two photographs taken at the party (photographs 2 & 3).  These photographs show that the defendant was wearing a dark coloured jacket, dark waistcoat and dark trousers; a white shirt with a bow tie and a hat.  

152.After declaring arrest DPC 34608 seized from the defendant’s home clothing belonging to the defendant.  DPC 34608 seized a jacket (exhibit P9) and a waistcoat (exhibit P6), which he said were hanging on the back of a chair by the dining table,together with a  handkerchief (exhibit P10) which was in the breast pocket of the jacket[65].  Photographs of the jacket; waistcoat and handkerchief have been admitted in evidence (photographs 4, 5 & 6, exhibit P2)[66].

153.DPC 34608 said he seized the jacket because the defendant told him he was wearing the jacket at the party.  DPC 34608 was not asked why he seized the waistcoat[67]. 

154.The photographs of the defendant taken with Mr Franco’s mobile phone at his home and at the party show the clothing the defendant was wearing was consistent with the clothing seized in his home, in particular the red handkerchief can be seen in the photographs in the breast pocket of the jacket, the same position where DPC 34608 seized the handkerchief. 

155.The CCTV footage shows that after Mr Franco walked down the staircase at 23:56:15 the next person on the staircase is seen walking up the stairs at 23:58:15.   On Mr Franco’s evidence this is the person who bit his ear. 

156.The CCTV footage shows this person appears to be wearing lighter coloured jacket and trousers than that worn by the defendant.  Mrs Panesar submits that it is quite apparent from the CCTV footage that this is not the defendant and that the defendant is neither seen going down nor coming up[68].

157.As noted earlier the CCTV footage is of poor quality.  Not only is the footage in black and white there was also flashing lights over the dance floor and a screen over the staircase in which images were projected. 

158.Colour can be affected by the lighting conditions at the time, in particular where there is artificial lighting from different sources.  This is clearly seen by comparing the waistcoat (exhibit P6) with the photograph of the waistcoat (photograph 5, exhibit P2) taken by the police.  The photograph shows that the waistcoat is of a blue/grey colour whereas the actual colour of the waistcoat is black and is darker than the photograph depicts. 

159.The fact that the CCTV footage shows the person walking up the staircase after Mr Franco walked down was apparently wearing lighter coloured clothing than the defendant was wearing, does not cause me to doubt Mr Franco’s evidence that the defendant bit his ear. 

160.This was not a fleeting glance or a longer observation made in difficult conditions.  In answer to the court Mr Franco said that the lighting on the staircase was well lit[69].  I am satisfied that the identification by Mr Franco of the defendant was made in good lighting.

161.Although the incident was short, less than two minutes according to the times on the CCTV footage, Mr Franco had the opportunity of clearly seeing and recognising the defendant, a person he had known for around four years and whose home he had been to earlier that night and at times was with during the party[70].  

162.I am satisfied that the quality of the identification made by Mr Franco is good without the need for supporting evidence.   As was said by the Court of Appeal  in Turnbull[71]:

“In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution.”

163.I am satisfied so I am sure Mr Franco is an honest witness who gave clear, cogent and compelling evidence.  Having warned myself of the dangers of mistaken identification, I am satisfied so I am sure that Mr Franco has correctly identified the defendant as the person who bit his ear.

164.In reaching this finding I have carefully considered the evidence of Nigel Smith given in cross-examination that at the party other men were wearing black-tie - dinner suit with black bow tie, some with waistcoats; some wore black jackets, some wore white shirts and some wore waistcoats.  Mr Smith could not remember whether anyone was wearing light coloured jacket and trousers or wore lighter coloured suits with waistcoats.  Mr Smith went on to say that many gentlemen were in jackets some with waistcoats all of different colours but could not remember whether there was anyone in lighter coloured suits with black or darker coloured waistcoats[72].

165.The evidence of Mr Smith does not cause me to doubt the identification by Mr Franco that the defendant was the person who bit his ear.  Nor does the fact that the person walking up the stairs was not wearing a hat as the defendant had earlier that night.

Supporting evidence.

166.Notwithstanding that I am satisfied so I am sure that Mr Franco has correctly identified the defendant as the person who bit his ear, I have nevertheless gone on to look to see whether there is any evidence supporting the correctness of the identification. 

Blood

167.Admitted in evidence is that a bloodstain was found on the defendant’s waistcoat which was seized from the defendant’s home on the morning of 17 April [73].  The bloodstain was found on the bottom left of the waistcoat and was cut out for forensic analysis.  

168.Mrs Panesar submits that there are other innocent explanations for the blood on the waistcoat and that there may also have been contamination[74].  This submission involves the consideration of what happened on the patio and the police evidence relating to the seizing and handling of the exhibits.

What happened on the patio?

169.The patio is shown in photographs 10 and 11, exhibit P2[75].

170.In cross-examination Mr Franco said that Sherry was standing in the area between the door and the table and chairs seen on the left of photograph 11;he did not go near the table because Edward was standing behind the table and chairs and when he accused Edward he spoke loudly saying “You assaulted me and you’re going to pay for this.  You’re going to go to jail”, which he said in English and not Tagalog to ensure everyone could hear.

171.Mr Franco disagreed he walked near to the table and chairs explaining that he stayed near the door, around 2-3 meters from the door; disagreed that when he reached the patio Edward was already sitting on a chair at the table with Sherry and a person called Pamela; disagreed he walked right up to Edward and poked him on his abdomen; and disagreed that Edward asked him what had happened. 

172.I accept the evidence of Mr Franco that he did not go near Edward and did not poke Edward in the abdomen. 

173.In reaching this finding I have carefully considered the evidence of Nigel Smith. In cross-examination when asked how he would describe the bleeding Mr Smith replied that Mr Franco was covering his ear with the handkerchief and that there may have been some drops but there was no gushing.  Mr Smith could not remember if Mr Franco took his hand off his ear when he was on the patio.

174.When asked whether Mr Franco was close enough to touch Edward, Mr Smith replied that it was hard to answer and then said:

“Well, the first way I would answer is to say yes, perhaps because it’s a small area. So would I agree that he was able to touch him? Perhaps… He was also walking around, as I said earlier, looking for --what seemed to be, like, looking for something, and he wasn’t outside on this occasion for very long, he was moving backwards and forwards. So to answer your question, do I agree, yes, perhaps; perhaps he was close enough.”

175.Mr Smith did not however see Mr Franco poke Edward’s abdomen.  In re-examination Mr Smith said he did not see Mr Franco actually touch Edward or move to touch Edward. 

176.The evidence of Mr Smith does not cause me to doubt the evidence of Mr Franco that he did not go near Edward and did not poke Edward in the abdomen. 

Contamination

177.In cross-examination DPC 34608 said that he put the jacket and the waistcoat into police exhibit bags but did not seal the bags[76]. DPC 34608 later passed the clothing to DPC 14383 (PW3).  DPC 14383 testified that he became the exhibit officer at 5:15 a.m. on 17 April and that he was responsible for sending the exhibits, which were kept in tamperproof evidence bags, to the Forensic Science laboratory for testing. 

178.In cross-examination DPC 14383 said that the defendant’s clothing was contained in plastic bags which he then individually packed; that prior to being given the defendant’s clothing at 5:15 am on 17 April he was not handed any exhibits obtained or gathered at the scene of the crime; he did not receive any exhibits seized from Mr Franco on 17 April; and that he received the clothing of Mr Franco on 22 April.

179.Admitted in evidence is that on 22 April 2016 DPC 14383 took photographs of the exhibits and of locations relevant to the case[77]. In re-examination DPC 14383 said that he photographed the clothing of the defendant and Mr Franco on the same day and that he photographed the clothing one by one, first taking the clothing out of the exhibit bag and after taking the photograph putting the item of clothing back in the exhibit bag and sealing the bag before taking the next photograph. 

180.In cross-examination DPC 14383 explained that he first went to the patio on the fourth floor in the small hours of 17 April at which time his understanding was that the incident took place on the patio.  Only after Mr Franco was discharged from hospital and he took a witness statement from Mr Franco did DPC 14383 realise that the scene of the crime was on the staircase.  DPC 14383 therefore went to the staircase on 22 April.  DPC 14383 said he was not instructed on 17 April to go to the staircase to look for forensic evidence such as blood. 

181.I accept the evidence of the police officers.  On this evidence I am satisfied that there was no contamination between the clothing of Mr Franco and the clothing of the defendant.

182.Although there was only one bloodstain found on the bottom of the waistcoat and none on the jacket, I am satisfied that the finding of the bloodstain supports the evidence of Mr Franco that the defendant was the person who bit his ear.

Where was the defendant’s shirt?

183.In cross-examination DPC 34608 said when he asked the defendant what clothes he had worn at the party the defendant pointed to the garments on the back of the chair.  DPC 34608 could not remember whether there were any trousers on the back of the chair; he did not see a shirt and when he asked the defendant where were his shirt and trousers, the defendant replied he did not know. 

184.This answer was not given under caution.  DPC 34608 said that after arresting the defendant he did not caution the defendant because he spoke to the defendant in simple English; felt he did not have the ability to administer the caution in English; and said that he forgot to make a record of this conversation in his notebook or in his witness statement because at the time he did not think this was important.    

185.DPC 34608 said he searched the home of the defendant.  DPC 34608 looked in the dustbin but not the washing machine.  DPC 34608 did not find any shirt or trousers.  DPC 34608 disagreed there was also a white shirt and trousers together with the jacket and waistcoat and disagreed that he did not ask the defendant where his shirt and trousers were and that the defendant said he did not know.

186.In re-examination DPC 34608 said he did not say or do anything to put pressure on the defendant or persuade the defendant to answer his questions.  The defence case as put in cross-examination was that the questions were not asked and the answers were not given.  No allegation of impropriety having been alleged I ruled that the answers, if said, were said voluntarily and ruled the answers admissible in evidence.

187.I accept the evidence of DPC 34608 that there was no shirt or trousers together with the jacket and waistcoat.  I am satisfied that if the shirt or trousers were also on the chair together with the jacket and waistcoat DPC 34608 would have seized them together with the jacket and waistcoat.   

188.No evidence was placed before the court that the answers were recorded in writing and shown to the defendant.  The Court of Appeal has said that judges and magistrates will need to scrutinise very hard any reliance by the prosecution on alleged oral admissions which are not recorded in writing and shown to the suspect for his acknowledgement[78].

189.Heeding the caution of the Court of Appeal and taking into account that the defendant was not cautioned; DPC 34608 did not record the conversation in either his notebook or witness statement; this evidence was not part of the prosecution case as opened; and DPC 34608 did not look in the washing machine, I am satisfied in the circumstances although adduced in cross-examination that it would be unfair to rely on this evidence and to draw the inference from the fact that DPC 34608 did not find a shirt, that the defendant disposed of the shirt because there was blood on the shirt. 

Who is seen on the CCTV footage leaving between 00:15:40-00:16:48?

190.The CCTV footage between 00:15:40-00:16:48 which shows a male and female leave the patio; walk across the dance floor and down the staircase; immediately walk back up the stairs and walk to the right, was at the request of the court played to Mr Franco after re-examination and also to Mr Smith after re-examination.  By switching to camera 1 the viewer can see where these two people walk to.   

191.The male appears to be the same male who walked up the stairs after Mr Franco’s ear was bitten.  A careful repeated viewing of camera 1 shows that when the male walked up the staircase his inner clothing was darker in colour than the jacket.  The female appears to be the same female who followed Mr Franco down the staircase the first time he left the patio and accompanied him the second time. 

192.In answer to the court Mr Franco said that he believed the female was Sherry; that if the female was Sherry then the male was Edward; and looking at the video he recognised the male was Edward because the suit was the same as the guy who went up earlier[79]. In further cross-examination when Mrs Panesar put that the two persons were not Sherry and Edward, Mr Franco disagreed saying that he could see Sherry’s headband and pearls and sleeveless top and the V-shaped vest (waistcoat) of Edward.

193.In answer to the court Nigel Smith said it was very hard to tell who the two persons were; that he recognised most guests by what they were wearing; that the clothes of the two persons looked like the clothes worn by Edward and Sherry; and that they walked towards the Four Seasons Hotel where there are elevators down to the MTR[80].  In further cross-examination Mr Smith said that based on the video quality he could not be sure the two persons were Edward and Sherry.

194.Having carefully viewed the CCTV footage, although the two persons appear to be the male who walked up the stairs after Mr Franco’s ear was bitten and the same lady who walked down the stairs with Mr Franco and who Mr Franco identified as Sherry, I am satisfied due to the poor quality of the video; that the prosecution do not rely on this part of the CCTV footage and that Mr Franco initially said he believed the lady was Sherry and that if the female was Sherry, the male was Edward and that Mr Smith said he could not be sure, it would be unsafe for the court to rely in anyway on this part of the CCTV footage.  

Verdict

195.For the reasons already given I am satisfied so I am sure that Mr Franco correctly identified the defendant as the person who bit his ear without the need for supporting evidence.  In addition, I am satisfied so I am sure the finding of a small spot of blood on the defendant’s waistcoat supports Mr Franco’s identification.

Wound

196.Admitted in evidence are the medical injuries of Mr Franco, including that approximately one third of the top part of his ear was missing and that there was an extensive open, ragged wound for which Mr Franco underwent plastic surgery at the Matilda Hospital[81]. Photographs of Mr Franco’s ear showing the wound have been admitted in evidence (photographs 4-10, exhibit P1) [82]. I am satisfied so I am sure that Mr Franco was wounded.   

197.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mrs Panesar both individually and collectively, including the lack of motive[83] and that the police did not investigate the case properly[84].  Nothing said by Mrs Panesar causes me to doubt the findings I have made.

198.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  I am satisfied so I am sure the defendant unlawfully and maliciously wounded Franco Paul Jaboneta with intent to do him grievous bodily harm.  The defendant is convicted as charged.