HKSAR v. Thapa Manish and Another

DCCC 611/2019

[2021] HKDC 1164

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 611 OF 2019

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REASONS FOR VERDICT

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Charge

1.D1 pleads not guilty to wounding with intent (Charge 1).  D2 pleads not guilty to common assault (Charge 2). 

Prosecution case in brief

2.PW1 was a customer of a bar where D1 and D2 were bartenders.  He went there with his wife PW2 just before the time of the offence.  He put down his credit card to open a tab.  When he went to pay up, the bar could not find his credit card.  There was a difference in opinion between PW1 and the bar staff as to where the card was and what should be done.  PW1 went out of the bar to use his phone.  When he stepped outside, he was attacked by D1 at his front and D2 at his back.  D1 hit his forehead with a glass object.  D2 hit him from behind.  After the attack, D1 and D2 ran away.  His wife and a passer-by PW4 saw the attack. 

3.The prosecution rely on D1’s and D2’s VRIs and notebook entries of their house-searches.   D1 and D2 object to the admissibility of the aforesaid as the police and the management staff of the Bar had induced them to cooperate. After the hearing on the special issue, the VRIs and notebook entries are ruled admissible.    

4.D1 and D2 also object to the admissibility of the ID Parade which they say the police had not conducted in a fair manner.  After the hearing on the special issue, the evidence of their being identified at the ID Parade is ruled admissible.       

Prosecution evidence

Prosecution witnesses’ evidence

5.PW1 and PW2 were man and wife.  They went for dinner at a restaurant in Soho, Central.  They consumed some alcohol.  After that they went to a wine bar on the ground level of Staunton Street (“the Bar”).  He put down his credit card at the cashier’s counter to open a tab.  He ordered beers for himself and his wife for consumption at the table outside the Bar.  There were two males who joined him there.  As it was about time to go home, he entered the Bar to pay. The staff could not find his credit card.  There was a search by various staff members, including D1, D2 and others.  The staff asked for his identity card but he refused until his credit card was found.  He wanted to cancel the credit card and call the police.  He went out of the Bar to use his phone. 

6.PW1 says, when stepping out of the exit, he was attacked by D1 on the left side of his forehead with something (which he could not tell what it was at that time but later came to infer it was a glass object after glass fragments were retrieved from the wound).  D2 tried to hold him (PW1)  from behind.  At one point he fell over the steel railing on the road.   

7.PW2 says she was screaming behind D1, as she was behind the one who was attacking PW1’s front.  She tried to pull the man away from PW1 but without success.  

8.PW4 W - -, who ran a shop near the Bar, happened to pass by on errand. At about 2.5 metres away and illuminated by street-lights, he first saw D2, who was behind PW1, hitting the back of PW1’s head 3 – 4 times whilst D1, who was in front of PW1, used his hands to grab the front or collar of PW1’s top garment, making PW1 bend over his upper body.  PW1 was also grabbing the front or collar of D1’s top garment at the same time. 

9.He went up to D2 and patted D2, saying “Calm down”.  D2 stopped.  When PW1 stood upright again, D1 smashed a glass object on PW1’s face, followed by the sound of broken glass.  D1 then pressed his spreading fingers on the remaining part of the glass object on PW1’s face for 6 – 10 seconds.  He did not know from where D1 got the glass object.  He cannot tell whether the glass object was thrown at PW1’s face or held in D1’s hand when it smashed on the PW1’s face.  Blood gushed down PW1’s face.  PW1 did not fall down, or fight back.  He (PW4)  was 2 – 3 feet from D1.  PW2 was screaming around.  He did not pay attention to anything else PW2 was doing.  People unrelated to the action had dispersed.   

10.He returned to his shop to get some water and tissue for PW1 to dab on his wound.  The ambulance arrived.  The police also arrived. 

11.PW4’s witness statement of 22/10/2018 stated that the shorter one (D1)  was with “a fringe” and “tattoo on neck and ear”.  According to his sketch drawn it court[1] he was facing the left side of the shorter one.  He saw a tattoo on the left side of the shorter one’s face under and behind the ear.  It was pointing upward or diagonal.  He did not know if the tattoo was complete in itself or part of some larger tattoo.  He says he had only told the statement-taker that the shorter one’s hair was “blonde, all back and undercut” and the tattoo was only on the neck.  As he read and then signed the statement, he did not notice those mistakes. 

12.PW1 was examined by Dr. LEUNG, at A & E of QMH at 0045 hours on 21/10/2018, with a finding of left forehead laceration. A computer tomography showed left frontal scalp hematoma and few hyperdense linear densities up to 9mm at the left frontal scalp region, probably foreign bodies.  PW1 was admitted to the QMH Neurosurgery Unit on the same day with the following findings:

(a)  A 5cm long laceration, a 3 cm long laceration, and a 1cm long laceration over his left forehead with 2 pieces of glass retrieved;

(b)  His right fourth finger was found deformed and swollen with decreased movement;

(c)  X-ray of his right hand showed a proximal phalanx fracture.

13.He was admitted to the Hong Kong Sanatorium and Hospital on 22/10/2018. He was treated by Dr LAM, a specialist in plastic surgery, who made the following findings[2]:

(a)  X-ray of the skull on 22/10/2018 revealed some glass fragments in the forehead wound;

(b)  There were at least 12 wounds on the forehead and scalp. Various in size, shape and depth. The longest and deepest one was semi-circular in shape and about 10cm in length and full-thickness cut to skull bone, which was also impinged by the striking glassware. The rest ranged from superficial cuts to deep cuts and skin loss;

(c)  At least 6 pieces of glass fragments were retrieved, the biggest one was 1.5 mm in size;

(d)  Six of the wounds had to close surgically by stitching. Totally 12 inner stitches and 38 outside stitches were inserted.

14.As PW1 appears in court, it can be seen that his forehead still bears the vestige of a round scar (like part of a circle)  which conforms to the round base of a glass cup or bottle.    

15.In the ID Parade on 16/12/2018, PW1 identified D1 from a lineup of 14. He could pick him out as he could recognize his appearance, not because of his being a Nepalese.  He denies that it was because there were only a few Nepalese to choose from.  He did not regard Nepalese looking any different from Filipinos, a few of whom were actually in the Parade. 

16.PW4 viewed the parade after PW1.  He says he picked out D1 and D2 as he could recognize D1’s and D2’s appearances.  He could see some of the actors were Nepalese and some others were Indian/Pakistani. 

17.PW6 was DSSgt MA.  He led the investigation team.   

18.PW12 DPC 16906 was the investigation officer of the case.  On 23/10/2018, he went to the Bar to investigate.  He had talked to M – , the boss of the Bar.  She told him that a customer by the name of “Michael” might have seen the fight outside the Bar.  He was given Michael’s phone number.  He spoke to Michael on the phone.  Michael told him that he saw the fight but no glass object had been used in it.  He did not consider Michael reliable as PW4 had already given a witness statement that a glass object had been used.  He did not take a witness statement from Michael because he thought PW4’s evidence represented what happened. 

D1’s VRI

19.D1’s VRI[3] stated that PW1 was angry and insulted the staff when they could not find his credit card.  D1 went out to smoke cigarette and called the bouncer to go inside to control PW1.  D2 also went out of the Bar.  Suddenly PW1 came out and tried to choke D2’s neck from behind.    When PW1 was choking D2’s neck, he pulled back PW1 from behind to separate PW1 from D2.  Meanwhile PW2 pulled his (D1’s)  hair from behind.  Then PW1 elbowed him (D1)  on his (D1’s)  right eye. PW1 fell down and also pulled him (D1)  down.  When they both got up, PW1 tried to catch hold of D2 again.  He (D1)  held PW1 from behind.  PW2 came again to pull his (D1’s)  hair from behind.  He lost his temper.  There was a broken glass a little further away.  He threw it at PW1.  After that PW1 began to bleed.  He (D1)  felt afraid.  His (D1’s)  eyes could not see properly at that time.  D2 said, “Go home.”  They went away together.  The Buddha amulet with necklace and the nametag printed with “Max” outside the Bar seized by the police belonged to him[4].     

D2’s VRIs

20.D2’s VRIs[5] stated that PW1 tried to catch him by the throat.  PW1 pulled him down and tore his vest.  When PW1 was on him on the floor, PW1 started pulling his hair.  He did not know what to do.  His friend D1 came to save him.  He fought back PW1 a little bit for self-defence.  They went home afterwards.  He went to the hospital the following day as his whole body ached.  His superior told him that there was a case filed against him and D1.  She asked them to surrender to the police. 

21.D1 was his friend.  The part of a black vest seized by PW3 DPC 22340 outside the Bar belonged to him (D2).  It was torn off by PW1.  The (other)  part of the black vest seized by PW9 WDPC 8041 in the house-search also belonged to him (D2). 

22.PW3 DPC 22340 arrived at the scene to seize exhibits and take photos. He talked to a staff member who provided him with the identity card names, phone numbers and addresses of the 2 suspects (D1 and D2).  He passed the contact information to his team.   

Defence case

23.D1 and D2 elect not to give evidence.  DW1 R gives evidence in D1’s case.  D2 has no defence witness.

24.DW1 says that she was in the Bar when PW1 wanted to pay the bill but the Bar did not have his credit card.  D2 was the one who kept his card in the cashier’s drawer when PW1 opened the tab.  She tried to look for his credit card everywhere.  D1 was working inside the bar counter and tried to help her. D1’s duty hours would end at 2 a.m. the following day.  D2 was already off duty but came down from their restaurant upstairs to help with her too.  PW1 refused to produce his identity card to identify himself and became aggressive.  He used abusive languages.  Other customers were around.  The bouncer was called inside to control PW1.  The bouncer walked PW1 out of the Bar.   

25.When she continued with her work inside, she heard some loud sound or noise.  She ran out at once and saw D2 lying on the ground, his neck held by PW1, who seemingly sat on D2, while D1 was pulling PW1’s hands away in order to separate PW1 from D2.  PW2 was pulling D1’s hair from behind D1.  She saw PW1 bleeding but did not know of the reason.  She called her superiors M – and B -. 

26.In cross-examination, she is asked why she stated in her witness statement dated 21/10/2018 that she did not see what happened before PW1 was injured.  She explains that she was nervous at that time. 

27.She is also asked why, when she made a witness statement on 29/1/2020 about handing over the CCTV footage of the Bar to the police, she did not mention the course of the fight.  She says the police on 29/1/2020 did not ask her to describe the details of the fight.  She agrees that it was important to tell the police about that but it might be that she had gone to the police station between lunch hours. 

My view of the case

28.I have considered the oral and written submissions made by the parties. I think that none of the people who were present inside or outside the Bar who gives evidence in this court can give a complete account of what happened. After assessing the evidence based on the CCTV footage, the exhibits seized, the injuries of PW1, D1 and D2, the credibility and reliability of witnesses, in my judgment the incident happened as follows:

(1)  PW1 entered the Bar to settle his bill. The Bar staff could not find his credit card. He was angry at D1 and D2 in particular for their unfriendly attitude. This affected other customers inside. The bouncer was called inside to control PW1. The bouncer walked PW1 out of the Bar. I adopt DW1’s version here;

(2)  PW1 said he wanted to go out to make phone calls to cancel his credit card and report to the police. I adopt PW1’s and PW2’s version here;

(3)  When he was outside the Bar, PW1 saw D2. He held D2’s neck. I adopt D2’s version in his VRI here. That became “tenderness over his neck” as stated in D2’s medical report[6];

(4)  He pulled D2 down and tore D2’s vest. That became 2 parts of a torn vest, one part seized as exhibit on the road and the other part later in D2’s home[7]. PW1 got on to D2 on the floor. That became “tenderness over his lower back” as stated in D2’s medical report[8]. When PW1 was on top of D2, D1 tried to save D2 by pulling PW1 from behind. PW1 elbowed D1’s right eye area. That became “mild tenderness and swelling with superficial abrasion over D1’s right periorbital area” as stated in D1’s medical report[9]. I adopt the version of D1 and D2 in their VRIs here;

(5)  PW1 fell back and got D1 down as well. I adopt the version of D1 in his VRI here;

(6)  When both stood up, they grappled with each other by holding the front or collar of each other’s top garment. PW4 passed by and saw what went on until the end. D1’s necklace and nametag, then seized as exhibits on the road[10], were being dislodged from him as he was grappling with PW1. At the same time D2 struck the back of PW1’s head from behind 3 – 4 times. PW4 patted on D2’s shoulder and asked D2 to calm down. D2 stopped. I adopt PW4’s version here;

(7)  PW2 tried to pull D1 away by holding on to D1’s ponytail without success. PW4 did not pay attention to what PW2 was doing. I adopt the similar version of PW2 and D1’s VRI here;

(8)  D1 was angry when he hit PW1’s forehead with a glass object. Blood gushed down PW1’s face. I adopt the similar version of PW4 and D1’s VRI here;

(9)  PW4 saw D1 press the remainder of the broken glass object on PW1’s forehead for 6 – 10 seconds. D1 and D2 ran away. I adopt the version of PW4 here;

(10)  PW1’s injury was caused by glass fragments. Glass fragments were retrieved from his forehead wound as stated in his medical reports[11].

Basis of the findings

29.PW4 is an impartial witness.  I find his evidence credible and reliable but his account is limited to what happened after he appeared outside the Bar.

30.PW2 is not attentive to some of the happenings as she was in fright and focused on pulling D1 away from PW1.  I believe her evidence.      

31.PW1’s account of events cannot explain why D1 and D2 were injured, why D1’s necklace and nametag were dislodged, or why D2’s vest was torn.  I think that he has not told the whole truth and he was a bit drunk, as well as became confused and panicky upon being hit by the glass object, causing the blood to gush down his face.

32.I believe DW1’s evidence on what happened inside the Bar.  I do not find her a reliable witness of the incident outside the Bar, though.  Her witness statement of that night stated that she did not see it. 

33.D1 stated in his VRI what happened inside and outside the Bar.  I believe what he stated there except that, curiously, he did not touch on how his necklace and nametag came to be dislodged from him.  He did not explain why he left the scene before off-duty time.     

34.D2 stated in his VRI that PW1 held his neck and he later fought back a little. I find these credible.   There was no mention of how he fought back, though. 

Defence submissions

35.They can be summarized as follows:

(1)  ID Parade to be attached no weight;

(2)  D1’s and D2’s VRIs to be attached no weight;

(3)  PW1 grew very aggressive because of the Bar staff losing his credit card and D1’s and D2’s unfriendly attitude, so that he attacked D1 and D2 when he saw them outside the Bar;

(4)  The police investigation was biased as an eye-witness, Michael, who did not see any glass object used was not asked to give a witness statement;

(5)  PW4 could not have seen the incident as he says he passed by the Bar at about 10:45 p.m. whereas the CCTV time stamp was 10:56 p.m. when PW1 left the Bar;

(6)  Although D1 did not have a fringe hairstyle and only got tattoo on the neck, PW4’s description of him in his witness statement was with “a fringe” and “ear neck tattoo”;

(7)  PW1’s injury was not from glass object but from pre-existing glass shards on the ground as PW1 tumbled;

(8)  D1’s flight from the scene.

Submissions (1): ID Parade to be attached no weight

36.In my judgment the ID Parade was conducted in a fair manner.  The degree of resemblance of appearance between the actors and the defendants was acceptable.  The breach of the Manual in having the investigation officer PW12 DPC 16096 handle the witnesses before the ID Parade, did not cause any actual prejudice to the defence.  PW1 says that he identified D1 based on his recognition of D1’s appearance.  PW4 says that he did so based on his recognition of D1’s and D2’s appearance.  Such evidence shall be given full weight.       

Submissions (2): D1’s and D2’s VRIs to be attached no weight

37.D1’s and D2’s VRIs were conducted voluntarily.  There was nothing unfair for the prosecution to adduce them as evidence.  Such evidence shall be given full weight. 

Submissions (3): PW1 grew very aggressive because of the Bar staff losing his credit card and D1’s and D2’s unfriendly attitude, so that he attacked D1 and D2 when he saw them outside the Bar

38.I believe D1’s and D2’s version in their VRIs that PW1 was the aggressor. 

Submissions (4): The police investigation was biased as an eye-witness who did not see any glass object used was not asked to give a witness statement

39.Michael’s version was not put into a statement by the police.  However, the defence do not approach Michael to give a statement or call him as a witness either, despite his phone number being taken down by the police and available to the defence.  It indicates that the defence do not rely on Michael’s evidence.    

Submissions (5): PW4 could not have seen the incident as he says he passed by the Bar at about 10:45 p.m. whereas the CCTV time stamp was 10:56 p.m. when PW1 left the Bar

40.PW4’s timing was only an estimate.  Besides, there is no proof that the CCTV time stamp was the correct timing.    

Submissions (6): Although D1 did not have a fringe hairstyle and only got tattoo on the neck, PW4’s description of him in his witness statement was with “a fringe” and “ear neck tattoo”

41.PW4 says that he did not pay attention to these mistakes although he had read the statement before signing.  I believe his evidence.   

Submissions (7): PW1’s injury was not from glass object but from pre-existing glass shards on the ground as PW1 tumbled

42.I reject this argument.  If PW1’s forehead had been cut by the glass shards on the ground as he tumbled, he would have some injury at the same time, at least bruising or swelling, on his nose or cheek as he tumbled.  PW1 did not tumble on his face but fell back according to D1’s VRI. 

Submissions (8): D1’s flight from the scene

43.DW1’s evidence is that D1’s duty would end at 2 a.m. the following day. D1’s VRI stated the same.  D1 did not inform the Bar staff as he left the scene at about 11 p.m. 

44.According to the Specimen Directions to Jury, at 43.1, Issued September 2013, entitled “DEFENDANT’S FLIGHT (AFTER CRIME OR ON BAIL)”:

The position where a defendant absconds is analogous to lies. See HKSAR v Mo Shiu-shing [1999] 1 HKC43 at page 60. It is alleged (admitted)  that the defendant deliberately (ran away)  (disappeared)  after (the crime)  (he had been bailed). You are entitled to consider whether this supports the case brought against him by the prosecution. You will need to consider:

(1)  Whether it has been established that the defendant did (run away)  (disappear)  after (the offence was committed)  (he was bailed).

If you are sure he did, then next consider:

(2)  Why did he (run away)? The mere fact that a defendant acts in this way is not in itself evidence of guilt. There are many innocent reasons why a person may do so.

…

If you think his explanation is or may be true, then you should take no notice of the fact that he chose to (run away). It is only if you are sure that he did not (run away)  for an ‘innocent’ reason that his actions (in running away)  can be regarded as evidence which supports the prosecution’s case.

Note: In order for flight to be capable of providing support for the prosecution’s case, there must be some evidence to establish a connection between the defendant’s conduct (his flight)  and the offence in question. See Mo Shiu-shing [1999] 1 HKC43 at p.60.

45.I can see no reason for D1 to leave the scene there and then except for his fear of being arrested for wounding PW1. 

D1’s and D2’s charges considered

46.I believe that PW1 was the aggressor.  He assaulted D2 first.  D1 managed to separate him from D2 but fell down with PW1.  When they stood up, they grappled with each other while D2 hit PW1 from behind 3 – 4 times.  In a temper, D1 used a glass object a little further away to hit on PW1’s forehead and caused grievous bodily harm to PW1.  I think he did not have the intent to cause grievous bodily harm at the spur of the moment. 

47.PW1 should have been guilty of common assault but he was not charged. The prosecution have proved beyond reasonable doubt that D2 was guilty of common assault as charged here, and that D1 was guilty of wounding contrary to section 19 of the Offences against the Person Ordinance, Cap. 212[12].