HKSAR v. Ko Nga Ching, Victor

DCCC 1102/2018

[2019] HKDC 986

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1102 OF 2018

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REASONS FOR VERDICT

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1.The defendant is charged with one count of wounding with intent, contrary to section 17(a) of the Offences against the Persons Ordinance, Cap 212 (“OAPO”). He pleads not guilty to the charge but intends to plead guilty to a lesser charge of section 19 of the OAPO for which the prosecution does not accept and therefore this case proceed to trial.

Prosecution case

2.The prosecution calls only 1 witness (“PW1”) to testify in court.  He was a security guard and was required to patrol various building, including the one situated at No 9, Yiu Tung Street, Shek Kip Mei, Kowloon, Hong Kong (“the Building”), which was a re-possessed building and nobody was supposed to reside therein.

3.At about 11:30 pm on 13 April 2017, PW1 saw the defendant and a Chinese female (“WP2”) inside a unit of the Building.  PW1 asked them to leave.  The defendant went inside a room of the unit and when he returned, he had a rod with him.  Then, PW1 was attacked by the defendant with the rod. PW1 describes that the defendant used the rod to blow his head and caused him bleeding.  He then used both of his arms to cover his head and some more blows landed on his forearms.  Then, a 3^rd person, who is a Chinese male (“WP3”) also came.  Later on, all of them left.  Later on, PW1 went to a hospital.  A medical report, exhibit P1, particularized his injuries, including:-

“[PW1] had a scalp wound with bleeding. …… two scalp laceration, 2cm over right frontal and 3cm over left parietal… There were abrasions over left forearm and right hand.”

4.PW1 have no idea if the rod was a metal rod.  He only knows it was silver in colour.

The charge

5.Originally, the prosecution proceeds its case on the basis of “joint enterprise” but Mr Hemmings, counsel on fiat, upon the close of prosecution case, amend the particulars of the charge by deleting the words “together with 2 persons unknown”.  In effect, the prosecution’s case is that the defendant was the only assailant.

Defence case

6.The defendant elects to give evidence but does not call any other witness.  He gives a different version of fact.  He says that he knew PW1 prior to the incident.  When he became homeless, he agreed to “rent” the place in question at $5,000 per month.  He paid PW1 the rent for February 2017.  He knew that PW1 was merely the security guard but not the owner of the Building.  He was assured by PW1 that when police arrive, PW1 would tell the police that he was residing there (“the Promise”).

7.There was an occasion when police arrive, PW1 broke the Promise.  Therefore, he stopped paying any rent to PW1.

8.At about 9:00 pm on 13 April 2017, PW1 came and asked if he saw another couple residing in the Building.  He said no but allowed PW1 to stay inside the unit, waiting for the couple.  At about 11:30 pm, when he wanted to go out with his girl-friend (obviously WP2), he asked PW1 to leave together.  PW1 wanted to stay but he refused.  Then, they had an argument over the rental payment.  PW1 even asked them to leave and tried to push them away from the unit.  His girl-friend and he even felt on the ground.  After he got up, he was angry.  When PW1 insisted them to leave, otherwise police would be called, and it so happened that there was a wooden rod there, he picked it up and struck PW1.  He cannot now recall for how many times he struck PW1.  It may be one, or two or even three times.  Also, he does not aware what part of PW1’s body were being hit.  In any event, after he attacked PW1, he ran away.  PW1 even chased after him but finally, he left by getting on a taxi.

9.The defendant admits that he attacked PW1 with a wooden rod.

Issue

10.The only issue of trial is whether or not at the material time, the defendant intended to do PW1 grievous bodily harm.

11.Apart from PW1 and the defendant, there is no other witness who can tell this court what happened at the material time.

Analysis

(1) PW1

12.During cross examination, PW1 was shown his witness statement he gave police on 27 April 2017 (“PW1 Statement”), namely 2 weeks after the incident.  Ms Lai, counsel for the defendant, points out that PW1’s version of fact in court is quite different from what is stated in PW1 Statement, particularly in 3 aspects.

13.Firstly, PW1 Statement states that PW1 did not knock on the door of the unit.  In court, PW1 says he knocked on the door.

14.Secondly, PW1 Statement states that WP3 was also inside the unit at the outset. In court, PW1 says that there were only 2 persons, namely the defendant and WP2, were originally inside the unit.

15.Thirdly, PW1 Statement states that before the attack, WP2 and WP3 grabbed PW1’s left and right arms.  Then, the defendant hit PW1’s head.  In court, PW1 admits that the 2 other persons did not grab his arm, nor in anyway participated in the fight.

16.The incident happened about 2 years ago.  It is possible that due to the lapse of time, PW1 cannot recall all minor details of what happened.  For the 1^st and 2^nd “differences” between PW1 Statement and his version in court, I accept these are merely minor details of the whole incident.  In any event, these “differences” had nothing to do with the main issue.

17.However, I am not satisfactory with the different version as to what happened before PW1 was attacked.  Were both of his arm grabbed or not? I am not sure.  That is not a minor detail of the whole incident.  If he were grabbed, he could not move freely and it would be difficult for him to dodge when the defendant attacked him.  At the time when PW1 gave his statement to the police, there was an interpreter, who should be competent enough to interpret PW1’s version correctly.  I find no reasonable explanation from PW1 to account for such a difference.

18.I find the PW1’s evidence unreliable as to what happened before the attack.  Still, his version that he was attacked by the defendant, who held a weapon, is clear, unequivocal and never subject to any challenge.  Taking all his evidence into account, although I am sure he was attacked by the defendant with a weapon, and that caused him injuries as particularized in the medical report, the other part of his evidence is not reliable.  In particular, I cannot be sure if he was really grabbed by anybody at the material time.  Also, I am not sure if he can recall correctly what kind of weapon was used by the defendant.

(2) Defendant

19.He admits that he attacked PW1 with a wooden rod.  He cannot be sure for how many times he hit PW1 but says that it could be 1, 2 or 3 times.

20.I do not accept he attacked PW1 because of self-defence, nor is it raised as a defence.  Even if I accept the defendant and his girlfriend were once felt on the ground at the material time, they were not subject to any further attack by PW1.  In any event, they have no rights to reside at the unit.  PW1, in exercising his duty, could and should request them to leave.  Even if PW1 had pushed them and caused them felt on the ground, they were not subject to any imminent risk of violence at the time when the defendant picked up the wooden rod.  I find that the defendant intentionally assaulted PW1 by using a rod.

21.The defendant is able to give a fairly detail explanation as to how he started to “reside” at the unit, and the reason for his refusal to pay rent. He is able to tell what triggered his attack on the defendant.  In my view, the defendant gives a possible account of what happened.

22.Taking all the circumstance into account, I find the defendant’s version possible.

Verdict

23.Apart from PW1’s and the defendant’s description, there is no evidence to prove what the “weapon” was.  Even on PW1’s account, he is not sure if the rod was a metal rod or not.  He can only describe it as silver in colour.  On defendant’s version, it was a wooden rod.  I am not sure if the weapon was a metal rod or merely a wooden rod.  The medical report confirms that PW1 sustained injuries.  That kind of injuries consistent with PW1 being hit by a hard object.  However, a hard object can be a metal rod or a wooden rod.  Given the benefit of doubt, I have to proceed on the basis that the defendant attacked PW1 by using a wooden rod.

24.At the end of the day, I have to ask if the defendant had an intention to cause serious bodily harm by taking into account the whole circumstance, including:-

(i) he was using a wooden rod;

(ii) he hit PW1 for a few times;

(iii) the blows landed on the head and arms of PW1, causing him injuries as particularized in the medical report;

(iv) the “ultimate” injuries sustained by PW1 was not very serious.

25.Taking all the evidence into account, I am not sure if the defendant had a specific intent to do a grievous bodily harm to PW1.

26.Still, there is no doubt that the defendant did it unlawfully and maliciously when he used a weapon, even only a wooden rod but not a metal rod, to hit PW1’s head.  Such act, in the absence of any lawful excuse or justification, was unlawful.  Such act must be malicious. 

27.In the circumstance, the defendant is acquitted the charge of section 17(a) of OAPO.

28.However, based upon my finding, the prosecution proves beyond doubt that the defendant unlawfully and maliciously wounds PW1 grievous bodily harm with a weapon, namely a wooden rod.  He is convicted of section 19 of the OAPO, the lesser charge which he intended to plead guilty to before trial.