HKSAR v. Tanachattarakul Napak

DCCC 1094/2017

[2018] HKDC 850

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1094 OF 2017

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of causing grievous bodily harm to Kham Nan Kyaing with intent to do her grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance[1].

Introduction

2.In September 2017 the defendant and Ms Kham (“the complainant”) resided in different bedrooms of Room 131A on the 9th floor of Koon Mei Building, 127-131 Lockhart Road in Wanchai (“the flat”). 

3.The prosecution case in summary is that in the early hours of 21 September the defendant threw hot oil over the complainant.  The defendant then ran into the kitchen and grabbed a knife.  When the complainant tried to push the defendant away her left elbow was cut by the knife.  The defendant dragged the complainant by her hair into her bedroom where she pushed the complainant on the floor and continued to hit her.

4. The defendant then went to her room, grabbed her bag and left the flat.  The defendant was stopped the next day at the Hong Kong International Airport when trying to leave Hong Kong. 

5.The defence case in summary is that while the defendant was cooking French fries in the kitchen she accidentally spilt the hot oil on the complainant when the complainant grabbed hold of her left shoulder and pulled her.   The defendant left the flat and went to the airport the next day because she was scared the complainant’s husband would find her and kill her.

Evidence

6.The prosecution called three witnesses named on the prosecution schedule of witnesses attached to the prosecution opening[2]: the complainant (PW1); DPC 16397 (PW3), who attended the flat and seized exhibits and took photographs and WPC 4679 (PW2), who took over the custody of the defendant after she was stopped at the airport.  The prosecution rely on the defendant’s flight as supporting the evidence of the complainant.

7.The evidence of DPC 13365 (PW4), who drew a sketch of the flat and the photographers (PW5 and PW6) was admitted pursuant to section 65C of the Criminal Procedure Ordinance[3] (exhibit P11).  Also admitted in evidence is two medical reports (exhibits P3 and P4) detailing the injuries sustained by the complainant.  The prosecution also called Dr Ko Wai Shan, Sophia (PW7) to explain medical terms used in the reports[4].

8.The defendant elected to give evidence.  No witnesses were called on her behalf. 

9.Admitted in evidence is that the defendant has a clear record in Hong Kong[5].  I direct myself as to good character of the defendant in accordance with the decision in HKSAR v Tang Siu Man[6].

10.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 nothing to prove.  I direct myself that I must be sure of the guilt of the defendant before I can convict.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

11.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.  

12.I have carefully considered all the evidence and the submissions of Mr Hemmings and Mr Tse.   

Prosecution evidence

13.In summary the complainant testified that she was born and educated in Myanmar. The complainant came to Hong Kong in 2011 and lived with her husband in Kwun Tong.  The complainant moved into the flat in September 2017, about two weeks before the incident, so she would be closer to where she worked in Sheung Wan.

14.In cross-examination the complainant agreed that the defendant introduced her to go to the flat but disagreed that she knew the defendant previously and that she moved into the flat in July 2017. 

18 September 2017

15.On 18 September the complainant had a quarrel with the defendant. The complainant had bought some oil from the supermarket for cooking which the defendant was spilling all over the floor of the living room.  The complainant told the defendant she had bought the oil for cooking and asked the defendant not to waste the oil.  The defendant did not say anything in response.

16.In cross-examination the complainant disagreed that when she moved to live in the flat she agreed to share the cooking oil and condiments she bought with everyone in the flat.  The complainant said she only agreed to share the cooking oil and condiments with the defendant.

17.Prior to 18 September the complainant said she would talk to the defendant and go out for meals with her.  The complainant said she loved the defendant like a relative or sibling. 

18.In cross-examination the complainant said that she did not know the reason why the defendant spilt the cooking oil over the floor.

21 September 2017

19.Around 1:00-2:00 a.m. on 21 September the complainant woke up to go to the toilet.  The complainant noticed the defendant was in the kitchen.  In cross-examination the complainant agreed that the defendant was cooking French fries.

20.After going to the toilet the complainant walked back to her bedroom.  As the complainant was about to enter her bedroom she heard the defendant call her name.  The complainant turned round.  The defendant said “I am going to make you die” and splashed hot oil on the complainant. 

21.The complainant said the oil was inside an old rice cooker pot which she identified as the inner pot of a rice cooker (exhibit P6).  The complainant demonstrated the defendant holding the inner pot with both hands and throwing the pot containing the oil over her.  Asked by Mr Hemmings whether the oil came into contact with her body, the complainant replied “The oil was all over me and I couldn’t see anything”.  

22.After splashing oil on the complainant the defendant ran into the kitchen and grabbed a knife (exhibit P8).  When the complainant tried to push the defendant away with her arms her left elbow was cut by the knife.  The defendant then grabbed the complainant’s hair and dragged the complainant into the complainant’s bedroom where she pushed the complainant on the ground and continued to hit the complainant with her knees.  When the complainant pleaded to be taken to the hospital the defendant said “I make you die today”.

23.In cross-examination the complainant agreed that at that time her roommate and the daughter of the landlord were sleeping in the flat and that the daughter told them to stop fighting with each other.

24.In answer to the court the complainant said she did not see what happened to the knife. 

25.The defendant then went into her room, grabbed her shoulder bag and left the flat. The complainant tried to stop the defendant from leaving but because of her injuries the defendant easily pushed her away. 

26.The complainant picked up her phone and ran after the defendant, calling the police on the way.  The complainant did not see the defendant again.  After the police arrived the complainant was first taken to the Accident & Emergency Department of the Ruttonjee Hospital and later the same day transferred to the Surgical Ward of the Queen Mary Hospital.  On 26 September the complainant was transferred to the Tung Wah Hospital to continue wound management.

27.Admitted in evidence are the medical reports from the Ruttonjee Hospital and the Tung Wah Hospital (exhibits P3 & P4)[7] and photographs of the injuries (exhibit P1(c) )[8].  Dr Ko also produced a medical report detailing the injuries and treatment (exhibit P5).

28.The complainant told the court that scars remained on all the areas of her body where the oil landed and that the biggest scar was on her right chest as shown in photograph 30, exhibit P1 (c).  The complainant explained that this scar was more severe because this was where the defendant used her knee to hit her.  The complainant showed the court the scar remaining on her right shoulder and confirmed that photograph 27, exhibit P1 (c) showed the injury to her left elbow which was caused by the knife and which was treated by stitching.

29.In cross-examination the complainant said that she had thought about why the defendant did this to her but up to the day she gave evidence in court she could not think of any reason why the defendant harmed her.

Seizure of exhibits

30.At 4:00 a.m. on 21 September DPC 16397 (PW3) went to the flat.  In answer to the court DPC 16397 said that he was not the first police officer to attend the flat and that when he arrived two uniform police officers were in the flat.

31.In the presence of DPC 16397 police photographer Chu Kong took photographs of the flat (exhibit P1 (b))[9]. DPC 16397 also took photographs of the flat (photographs 1-18, exhibit P1 (a)).  The photographs show different views of the flat, including the living room and the kitchen.

32.DPC 16397 said he seized from the living room the inner pot (exhibit P6) shown next to some French fries in photograph 9 (exhibit P1 (b))[10] and seized from the kitchen a plastic bottle of oil (exhibit P10) shown in photograph 19 (exhibit P1 (b))[11].

33.In answer to the court DPC 16397 said he seized the inner pot (exhibit P6) because the pot was placed on the floor and at the time there was oil inside.  The police therefore believed the pot had something to do with the case.  At that time DPC 16397 said he was only aware that oil had been poured on the complainant. 

34.Also admitted in evidence is a sketch of the premises (exhibit P2) showing, inter alia, the location where the inner pot and the plastic bottle of oil were found[12].

35.DPC 16397 also found a blood stain on the refrigerator as seen on photographs 15 and 16 (exhibit P1 (b)).  No swab of the blood was taken because it was believed that the complainant may have bumped against the refrigerator. 

36.DPC 16397 thought that the two red stains shown in photograph 14 (exhibit P1 (b)) were melted candle and not blood.  DPC 16397 believed that the stains on the door of the complainant’s bedroom as shown in photograph 6 (exhibit P1 (b)) was caused by liquid being splashed against the door.  DPC 16397 said that the flat smelt of oil.

Interception of the defendant at the airport

37.At 6:10 p.m. on 22 September WPC 4679 (PW2) was on duty at the Airport Police Station when she received a message to go to the Immigration Duty Officer’s Office on the 7th Floor of Terminal 1, Departure North, which was in the restricted area of the airport, to take over custody of the defendant who had been stopped. 

38.The defendant was in possession of a boarding pass for a flight to Bangkok departing at 7:50 p.m.  In answer to the court WPC 4679 explained that the defendant had already passed security and was “airside’ where only authorised persons and passengers with valid boarding passes could enter. 

39.WPC 4679 took over custody of the defendant and took the defendant to the Airport Police Station. 

40.In the police station DPC 16397 seized from inside the defendant’s belongings a black dress which had a strong smell of oil.  DPC 16397 seized the black dress because the complainant had told him the defendant was wearing this dress.  

41.In answer to the court DPC 16397 said he was told this by the complainant when he interviewed her on the night of 22 September.  In questions arising DPC 16397 further explained he seized the dress because the dress matched the description given by the complainant[13].

42.The next day, 23 September, DPC 16397 returned to the flat together with the defendant at which time he took photographs 25-30, exhibit P1 (a)[14] and seized the knife (exhibit P8) and the saucepan (exhibit P9). 

43.In answer to the court DPC 16397 said he seized the knife and the saucepan because the complainant had told him there was a knife and a pot.  DPC 16397 said the complainant mentioned the size of the pot but he did not ask her whether the pot had a handle.  In further cross-examination DPC 16397 disagreed that he seized the saucepan because the defendant pointed out the saucepan to him saying that she used the saucepan to cook French fries. 

Defence evidence

44.In summary the defendant testified that she was born in Thailand and first came to Hong Kong in 2014 as a domestic helper.  The defendant said she first met the complainant three to four years ago and when the complainant married a Hong Kong resident. 

45.The defendant started residing in the flat on 9 May 2017.  When the complainant was looking for somewhere to rent the defendant introduced the complainant to stay in the flat.  The complainant moved into the flat on 16 July 2017. 

46.When the complainant moved into the flat to live agreement was reached that everyone in the flat would take turns to buy the cooking stuff which everyone could use.

47.The defendant would see the complainant every day and described their relationship as friends, cooking and eating together.

18 September 2017

48.Around 10:00 -11:00 a.m. on 18 September the defendant went out to the supermarket to buy some French fries.  When the defendant returned one of her roommates said that the complainant had been scolding them asking who had poured fish sauce in the kitchen making everywhere in the flat stink. 

49.When the roommate was telling this to the defendant, the complainant appeared from her room.  The defendant apologised saying that it was not fish sauce but pickled fish water and that she had already cleaned up the water with a towel. The complainant did not accept the apology and scolded the defendant.  The defendant then walked into her own room. 

21 September 2017

50.The defendant did not see the complainant again until the early morning of 21 September.  When the defendant returned home that morning she went to the kitchen to cook French fries.  The defendant used the saucepan (exhibit P9) to cook the French fries. 

51.While cooking the French fries the defendant heard the voice of the complainant.  The defendant turned round and saw the complainant standing by the door of the kitchen.  In cross-examination the defendant demonstrated that while still holding the saucepan (exhibit P9) she turned her body slightly to the left to look over her shoulder.

52.The complainant accused the defendant of using her cooking oil.  The defendant replied saying that if the complainant did not agree she would buy a new one the next day.  The defendant then turned back to continue cooking the French fries. 

53.The complainant walked into the kitchen and said she would not let the defendant use her cooking oil.  At the same time the complainant grabbed the bottle of oil with one hand and used her other hand to grab the left shoulder of the defendant.  When the complainant pulled the defendant the oil in the saucepan spilt on the complainant.   

54.In cross-examination the defendant said the complainant grabbed the bottle of oil with her left hand from the top shelf shown on photograph 18 (exhibit P1(b)) and with the other hand grabbed and pulled her shoulder.  Asked by Mr Hemmings to demonstrate how the oil spilt on the complainant, the defendant demonstrated that she turned her body about 90º to the left and that the right hand holding the saucepan was raised upwards towards the head and turned outwards[15].    

55.The defendant was in shock because she did not intend to spill the oil on the complainant.  The complainant said she was going to call her husband and that the defendant was going to die. 

56.The defendant and the complainant then grabbed each other’s hair and pulled each other into the living room.  One of the roommates of the defendant opened the door of the bedroom and told them to stop quarrelling and not to disturb the other residents.  The roommate then shut the door.

57.The complainant and the defendant continued pulling each other’s hair.  The complainant bumped into everything in the living room, including the refrigerator and the shelves. The complainant pulled the defendant into her room. 

58.Inside the bedroom the complainant tried to call her husband.  When the defendant grabbed hold of the complainant and pulled her back, the defendant fell on the bed of the complainant’s roommate.  The roommate woke up and scolded the complainant asking why she needed to go out and look for trouble again and told them to go outside and fight. 

59.The defendant then grabbed the complainant’s hair and used her feet to kick the complainant out of the bedroom after which the defendant managed to run to her bedroom.  On seeing the complainant call her husband to come the defendant left the flat because she was afraid that the husband would come and hit her or even kill her.

60.The defendant went to the place of a Thai friend which was the closest to the flat.  The defendant did not tell her friend what had just happened in the flat and only told her later.  The defendant asked her friend if she could borrow some money.   When asked by Mr Tse for what purpose she asked to borrow money, the defendant replied “My mum is sick.  I would like to borrow your money to buy the air ticket back to Thailand”.

61.On the way to the airport the defendant told her friend something had happened in the flat the night before and that she was scared of the complainant’s husband. The defendant did not tell her friend that the complainant had been injured.  

62.When asked by Mr Tse why she did not tell her friend before she went to the airport, the defendant replied “Because on that day in the morning that day was my friend’s son’s birthday.  So there were many people in the place. So I don’t know how to tell her”. 

63.The defendant said the real reason she wanted to go back to Thailand was because she was scared the complainant’s husband would find her and kill her. 

64.In cross-examination the defendant said that at that time she was employed as a domestic helper and that her employer was Mr Wong but she did not inform her employer that she was leaving Hong Kong.  Asked by Mr Hemmings whether it occurred to her to tell her employer she was scared and did not want to go back to the flat, the defendant replied “At the time I was in shock but very scared. I don’t think about telling anybody.  I only think, what in my head is I only want to go away from this place”. 

Discussion

65.I have carefully considered all the evidence and the submissions of Mr Hemmings and Mr Tse.

66.The main issue is one of credibility, the evidence of the complainant and the defendant materially conflicting as to the circumstances the complainant was injured.

67.I have no hesitation in rejecting the defendant’s evidence.  I do not find the defendant’s evidence credible, for example I do not find credible the defendant’s evidence that while she was cooking French fries in the kitchen with the saucepan (exhibit P9) she accidentally spilt the oil on the complainant.    

68.This evidence is inconsistent with the photographic evidence and the unchallenged evidence of DPC 16397 that the inner pot (exhibit P6) had oil inside[16]. 

69.In cross-examination the defendant said that she was cooking the French fries with the saucepan (exhibit P9) on the gas burner shown in photograph 17 (exhibit P1(b))[17] and demonstrated how she accidentally spilt the oil on the complainant when the complainant grabbed her shoulder while she was cooking the French fries[18].  Asked by Mr Hemmings what happened immediately after that, the defendant replied that the saucepan and things inside the saucepan fell on the floor.  

70.The photographs of the kitchen only show the plastic bottle of oil (exhibit P10) on the floor (see photograph 13 (exhibit P1(a)) and photographs 18-20 (exhibit P1(b)) whereas the photographs of the living room show French fries on the floor and the inner pot (exhibit P6) which DPC 16397 said had oil inside (see photographs 6, 9, 10, 11 and 12 (exhibit P1(a) and photographs 5, 6, 9, 10, 11, 12, 13, 15 and 17 (exhibit P1(b)).

71.When asked in cross–examination if she could explain why French fries were found just in front of the door of the complainant’s bedroom as shown in photograph 12 (exhibit P1(b))[19], the defendant said she did not know.  Similarly, the defendant said she could not explain why French fries were found in the living room near the refrigerator as shown in photograph 10 (exhibit P1(b))[20], and repeated that the incident happened in the kitchen. 

72.The defendant also said she could not explain why the inner pot was found in the living room as shown in photograph 10 (exhibit P1(b))[21] and said the oil in the pot had nothing to do with her. 

73.I reject the defendant’s evidence that while she was cooking French fries in the kitchen with the saucepan (exhibit P9) she accidentally spilt the oil on the complainant.  I reject the defendant’s evidence that when she was taken to the flat she pointed out the saucepan to DPC 16397.  I accept the evidence of DPC 16397 that he seized the saucepan because the complainant told him there was a pot[22].

74.I remind myself that the rejection of the defendant’s evidence is not determinative of the issues in the case.  The defendant has to prove nothing. A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

75.I am satisfied so I am sure that the complainant is a witness of truth upon whose evidence I can safely rely.  

76.The photographic evidence and the unchallenged evidence of DPC 16397 that the inner pot (exhibit P6) had oil inside[23] is wholly consistent with the evidence of the complainant that in the living room the defendant threw the inner pot with the oil inside over her, in particular the photographs of the living room showing the inner pot and French fries on the floor (see photographs 6, 9, 10, 11 and 12 (exhibit P1(a) and photographs 5, 6, 9, 10, 11, 12, 13, 15 and 17 (exhibit P1(b)).

77.I accept the complainant’s evidence about what happened on 18 September and in the early morning of 21 September, in particular that in the living room the defendant threw the inner pot with the oil over her; the defendant then went to the kitchen and grabbed a knife; when the complainant tried to push the defendant away her left elbow was cut; and that the defendant pulled the complainant’s hair, dragged her into her bedroom and continued to kick her. 

78.In reaching my findings on credibility I have carefully considered the evidence of  DPC 16397 that he was not the first police officer to arrive at the flat[24].  The fact two uniform police officers arrived at the flat before DPC 16397 does not cause me to doubt the findings I have made.

79.I have not relied on DPC 16397’s evidence that a blood stain was found on the refrigerator door or his belief that oil had been spilt on the door of the complainant’s bedroom, the complainant not having been asked about either the blood stain or the condition of her bedroom door.   

80.I have considered the submission of Mr Tse that the complainant was not telling the truth about what happened on 18 September because at one stage in cross-examination she agreed with Mr Tse that she was very angry because of the bad smell from the fish sauce and therefore scolded the defendant.

81.I have no hesitation in rejecting this submission.  Prior to this question the complainant disagreed with Mr Tse that the quarrel on 18 September was because of a bad smell in the kitchen.  I therefore immediately clarified with the complainant what she was agreeing with.  The complainant said she was confused. 

82.After the QA was replayed in court the complainant said she had not understood the question.  Asked again what she was agreeing with the complainant said she disagreed, saying she mentioned the oil not the fish sauce. 

83.Mr Tse then continued to put his case with regard to what happened on 18 September including that the complainant scolded the defendant for the bad smell and that the quarrel was over the bad smell in the kitchen.  The complainant disagreed with Mr Tse.   

84.The fact that the complainant at one stage in cross-examination appeared to agree with Mr Tse that she was very angry because of the bad smell from the fish sauce and therefore scolded the defendant does not cause me to doubt the complainant’s evidence about what happened on that day or on 21 September. 

Flight.

85.In addition, I have also considered the evidence of the defendant’s flight from the flat and from Hong Kong.  The mere fact that a defendant attempts to flee is not in itself evidence of guilt.  There are many innocent reasons why a person may do so[25].

86.The evidence of flight may be supportive of the prosecution’s case where the court is satisfied there is no innocent reason for the defendant’s flight[26].  The defendant has explained that she was scared the complainant’s husband would find her and kill her[27]. If this explanation is true or may be true, the flight of the defendant is not supportive of the prosecution case. 

87.I have no hesitation in rejecting the defendant’s explanation.  I do not find this explanation credible, for example I do not find credible that the defendant only told her friend something had happened in the flat when they were on the way to the airport and not when asking to borrow money for the air ticket.  I do not find credible the defendant’s evidence in cross-examination that she did not tell her employer because she was very scared and did not think about telling anybody. 

88.I am satisfied the defendant’s evidence is entirely contrived in an attempt to try explain why she left the flat and was stopped the next day at the airport when leaving Hong Kong. 

89.I am satisfied so I am sure that there is a clear nexus between the defendant’s flight and what happened in the flat; that the only inference to draw is that the defendant’s flight from the flat and her interception at the airport the next day when trying to leave Hong Kong was because the defendant was trying to evade arrest for throwing hot oil over the complainant; and that the only reasonable explanation for the defendant’s flight was that she was trying to evade arrest for throwing hot oil over the complainant. 

90.I am satisfied so I am sure the defendant’s flight supports the evidence of the complainant. 

Grievous bodily harm

91.The complainant suffered burns to 10% of her body including her face; arms and abdomen and a one cm laceration on her left elbow as particularised in the medical reports from the Ruttonjee Hospital and the Tung Wah Hospital (exhibits P3 & P4). 

92.Dr Ko (PW7) who also prepared a medical report of the injuries (exhibit P5) but did not herself examine the complainant, gave expert evidence on the medical injuries. Dr Ko explained that 10% of the complainant’s body surface was burnt and that the outer skin and part of the inner skin were burnt.  Dr Ko described this as ‘partial thickness’ and explained that was the same as second degree burns used in the medical report from the Ruttonjee Hospital.   

93.Dr Ko also explained that no corneal involvement meant that the outer layer of the eyeball was not injured and therefore according to the ophthalmologist the complainant’s eyesight was not adversely affected. 

94.I am satisfied the injuries sustained by the complainant amount to grievous bodily harm and that in throwing hot oil on the complainant the defendant intended to do the complainant grievous bodily harm.

Verdict

95.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Tse both individually and collectively, including that there was no apparent motive for the defendant to harm the complainant[28]; it was against common sense that the defendant would attack the complainant for no good reason at all and that if the complainant was attacked as she described why did she not ask the other residents of the flat to call the police for her.  Nothing said by Mr Tse causes me to doubt the findings I have made.

96.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 caused grievous bodily harm to the complainant with intent to do the complainant grievous bodily harm.  The defendant is convicted as charged.