HKSAR v. Vergnes Clement Vincent Christophe

DCCC 721/2022

[2023] HKDC 1191

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 721 OF 2022

________________________

________________________

________________________

REASONS FOR VERDICT

________________________

1.The defendant was charged with “inflicting grievous bodily harm”, contrary to section 19 of the Offences against the Person Ordinance, Cap 212 (1^st charge), and “common assault”, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212 (2^nd charge).

2.He pleaded not guilty to both charges. At the close of the prosecution case, this court had ruled that there was no case to answer for the 2^nd charge, and the 2^nd charge was dismissed. Trial continued for the 1^st charge.

Prosecution Case

3.Prosecution case relied on both the Admitted Facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221 (Exhibit P14)  and the evidence of the prosecution witnesses.

Admitted Facts

4.Parties agree that immediately after the alleged incident on 19 June 2021, PW1 (the victim)  was first sent to Accident and Emergency Department of Queen Mary Hospital and later transferred to Pamela Youde Nethersole Hospital. He was later transferred to Canossa Hospital on 23 June 2021 for surgical operation. Medical reports of PW1 at these hospitals were produced as Exhibit P1, P10 and P11 respectively.

5.These medical reports showed the right ankle of PW1 had a fracture of the distal tibia and fibula. The fracture was later fixed with metal plate and screws, and there was no post-operative problem. PW1 had a few follow-ups after the operation and had a few sessions of physiotherapy treatment. X-ray was taken in November 2021 which showed the fracture had healed, and PW1 was ready for removal of the metal plate and screw operation.

6.A photo album consisting of 7 photos with agreed description was produced as Exhibit P15.

7.Parties also agree that the defendant has a clear record.

Prosecution Witnesses

PW1 - Puglia Alessandro Badre

8.PW1 said he used to be a food and beverage manager. He said that on 19 June 2021 at around 3:25 am, he was in the vicinity of Nos 4-8 Arbuthnot Road with his Korean girlfriend, PW4, after leaving a bar called Salon 10. He said he had a few drinks before that time.

9.PW1 said that he remembered being assaulted by the first person and later another person strangled him, pushed him against a metal fence and punched him on the left cheek. He fell and lost consciousness. When he woke up a few minutes later, he realised his left ankle bones was broken and completely shifted aside. He said that it was not clear if the second attacker was still there when he regained consciousness as he felt dizzy and not focusing on who were there at the scene.

10.He said some glass bottles were thrown at them.

11.He said that he thought these two attackers approached him from behind. He did not know the first person but he recognised the second person. He could not remember what was said by the first person before he attacked him. The first person was a Caucasian.

12.PW1 said that photo 4 of Exhibit P15 showed the place where they were at the time of the attack whereas photo 5, 6 and 7 showed his left cheek, right ankle and right elbow respectively after the attack.

13.He said that he knew the second attacker as they had met several times before. They had mutual friend and they had cocktail at the mutual friend’s place various times. He had also attended face-to-face job interview conducted by the second attacker. In the end he did not get the job but he did not have any hard feelings for this second attacker as the second attacker had a better candidate.

14.PW1 said he had plenty of opportunities and time to see clearly the face of the second attacker before the incident. He also identified the second attacker at the identification parade and the second attacker is the defendant here.

15.PW1 also said that at the time of the incident, his girlfriend did not know the defendant but she had a photo of the defendant walking away from the scene.

16.He said that prior to the incident, he had no grudge or bad feelings towards the defendant nor was he aware of the defendant having any bad feelings against him.

17.PW1 said that he was given about 6 months’ sick leave for the injury, and that he spent about $140,000 medical fee and had to undergo another surgery involving $80,000 to remove the screw from the ankle later.

18.PW1 said that up till now, he had not recovered. He could not stand for a long time. He had to switch to another job, changed his shoe and worked in restaurant with carpet. He may have to change his career path such as a private sale which fetched a lower salary.

19.He said that he was still in contact with PW4 and they met quite often.

20.He said that he was assaulted within one to two minutes after he left the Salon 10. He denied having more drinks than one to two before the incident. He said that he did not spend a few hours at Salon 10. He said although he had been to another restaurant and bar before Salon 10, he had not taken any drinks there. He said that he remembered holding a drink at Salon 10 but he did not remember holding a drink at the other restaurant and bar.

21.PW1 said that he felt the people at Salon 10 were being disrespectful to him and his girlfriend.They were surrounded by a lot of people who were very aggressive. In order to avoid dispute, they left Salon 10. PW1 said that they stayed less than one hour at Salon 10 and the dispute was less than 15 minutes. He said that when they left Salon 10, there were people behind him and he was attacked. He denied being kicked out of Salon 10. He said that they left on their own accord.

22.When cross-examined, PW1 said he was punched by the first attacker from behind. PW1 originally agreed to being punched in the face by the first attacker. Later, he corrected himself and said that he was not being punched in the face. He was unsure of the number of times the first attacker hit him, but he remembered being hit once.

23.PW1 said that he turned his head and the defendant then strangled him, and he remembered being punched in the face. He said that when this attacker strangled him with his hand and pushed him towards the metallic fence by the road, his back was bending back to the street and he was facing this attacker. He did not remember if the attacker used one or both hands in strangling him. He said this person was stronger than himself and he could not get away from him.

24.When PW1 was asked whether he defended himself when being attacked by the second attacker, he replied that he was hit in the head and that if he was able to defend or run away, he would have done so. And if he was not able to do so, he was put in a situation that he was not able to do it. He said he was blocking the attack and was a bit shocked at being hit and at what was happening.

25.PW1 said that he was not able to fight back and he got hit in the face and he fell. He said that when he regained consciousness, he was very concerned about the ankle injury and not about the blow to the head. PW1 said that he did not recall any markings on his neck after the incident and that he had no idea whether the two attackers were together.

26.When PW1 was asked why there was no broken bottle at the scene, he said that he heard the bottle bouncing on the floor and it might have rolled down the road, and he would not be able to tell if the glass bottle broke. He said that he did not mention the glass bottle throwing incident in his witness statement to police because at the time he was only concerned about being attacked by the defendant, causing his ankle injury, and the bottle did not hit him.

27.When PW1 was asked if the police did arrive after his girlfriend, PW4, called the police, he replied that he was a bit blurry but he believed so. He said he was shocked and injured with a broken ankle, he could not remember the detail. He also did not remember relating the incident to the police.

28.He said that when he went to hospital, the punch in the face was not his priority concern. He did not remember what he told the doctor or the nurse.

29.In cross-examination, PW1 admitted that he had sent an email on 6 July 2021 to the defendant’s boss, telling the defendant’s boss that police asked him to get in touch with LQV (where the defendant was working)  to locate the defendant in the most discreet way possible, otherwise police would visit each of the company’s premises to arrest the defendant, and that PW1 would like to avoid this and would rather settle the matter amicably because this kind of assault would result in a minimum of 1 to 3 years’ imprisonment after legal proceedings.

30.After warning from this court, PW1 refused to answer further questions put to him regarding what was meant by settling the matter amicably.

31.He also said that he first told PW4 that the second attacker was the defendant when he was hospitalised. He said that he could recognise the defendant, there were also photos taken of the defendant walking away from the scene and he had also received a screenshot of the conversation between the defendant and his friend. PW1 said he had sent PW4 copy of the screenshot.

32.PW1 said when he gave witness statement to the police via the detective’s email address, he gave police the contact details of the defendant as well as his photo. He also said that as far as he remembered, the photo of the defendant leaving the scene was not sent to the police and he was not sure if he sent the screenshot to the police. He said, however, that he sent the photo Exhibit P16, ie photo of the defendant, to police after the witness statement taking, and that was before the identification parade.

33.He admitted both himself and PW4 did see the photo Exhibit P16 before the identification parade.

34.He denied he was drunk at the material times and that he had been causing trouble in Salon 10 and was pushed out of the place. He denied pulling hair of a girl outside Salon 10 and the existence of a young blond male standing beside himself at the time. He also denied the defendant then asked him to calm down, speaking in French, and PW1 turned his aggression towards the defendant. He said he did not remember saying foul language to the defendant, saying that he himself did not care and that the defendant was a piece of shit. He also denied that he tried to punch the defendant and the defendant left the scene. He also denied he had misidentified the defendant as being the second attacker.

PW2 - PC18871

35.PW2 was instructed to go to No 4 Arbuthnot Road, Central at 0347 hours in the morning of 19 June 2021. He found the female who made the police report and a foreigner (PW1)  there. He said there were abrasion on the left side of the face of PW1, abrasion and bleeding of right elbow, and abrasion and swelling of the right ankle of PW1.

36.PW2 said that he mainly made enquiries of the incident from the female who made the police report, and he understood the couple was in a relationship. As a result of what the female told PW2, PW2 and his colleagues tried to find the assailant by searching in Wyndham Street and Arbuthnot Road.

37.PW2 confirmed there were no glass fragments near the couple by the time he arrived at the scene. He confirmed the couple was somewhere in the middle of photo 4 of Exhibit P15, near the left second railings at the time. He also confirmed that PW1 was drunk and there was smell of alcohol from the couple. The female was relatively more sober.

38.PW2 said the victim was also emotional and he had slurry speech. PW2 said at the time, the couple only mentioned one attacker and he was given to understand that they did not know the attacker. PW2 said he was not informed that the couple did take a photo of the assailant. The female described the assailant as a Caucasian, 1.8 metres tall, strong build, wearing blue upper garment and dark-coloured trousers, and that he fled in the direction of Wyndham Street.

39.PW2 said the investigation was conducted in English. He said there were other colleagues at the scene that had better English proficiency and they handled the investigation together.

PW3 - PC22304

40.PW3 was attached to Anti-Triad Squad Team 2 of Central Police Station. At about 4 am on 19 June 2021, PW3 was instructed to investigate the case. He arrived outside Nos 4-8 Arbuthnot Road, Central, and took photos of the scene. Later, he went to Queen Mary Hospital and took photos of the injuries of PW1. He arrested the defendant on 19 October 2021 for wounding.

41.PW3 took witness statements from both PW1 and PW4. He said that he was not told by PW4 that she had taken a photo of the attacker leaving the scene nor was he shown any such photo by either PW1 or PW4.

42.PW3 said he took statements from PW1 only on 4 July because PW1 was injured and was hospitalised. PW3 said he did not ask PW4 to give a witness statement earlier as he did not know that she was a witness to the incident until 4 July. When PW1 came to give the statement, accompanied by PW4, only then that he was told that she was a witness to the incident. He therefore took a witness statement from PW1 followed by a witness statement from PW4 on the same day.

43.PW3 said PW1 gave him a draft handwritten witness statement and there was no paragraph numbers in this draft. He then input the contents in the computer, printed it out, and PW1 made alterations. Although PW4 was present in the same room where witness statement was taken from PW1, she sat on the sofa whilst PW1 sat at the table in the room, and they were 2 to 3 metres apart.

44.PW3 said when he took statement from PW1, PW4 was writing her own witness statement on the piece of blank paper that PW3 gave her. PW3 said that PW4 did not witness the alterations to the witness statement made by PW1.

45.PW3 said after taking witness statement from PW1, he then took statement from PW4. Again, PW4 gave him the handwritten statement, he input it in the computer and printed it out for her. PW3 said he did not witness communication between PW1 and PW4 during statement-taking but he would not rule out such possibility.

46.He said he had also checked the criminal record of PW1 and it was clear.

47.He said that as his English proficiency was not good, there was not much communication between him and PW1 or him and PW4, and there was no question and answer session in the statement-taking.

PW4 - Kim Joohee

48.PW4 said she was in a relationship with PW1 at the material times and they had known each other for 6 months up to the time of the incident.

49.She said that at around 3:20 am on the incident day, they were walking near Nos 4-8 Arbuthnot Road, as in photo 4 of Exhibit P15, after leaving Salon 10. PW4 said she was holding the hand of PW1 and he was putting his hand on her shoulder. She was a bit to the front and he was behind her like a train.

50.Suddenly, she heard a man shouting behind her. She then saw a white blond male wearing a white T-shirt punching with his fists on PW1’s head. PW4 said she screamed and PW1 was defending himself and tried to get away. This white male continued fisting PW1, shouting something she could not hear. PW4 said he appeared drunk. She said she tried to stop the fight and shouted “Don’t do that,” and PW1 did not respond.

51.Then another male, the defendant, was beside her and in front of PW1, strangling PW1 with two hands. PW1 was on PW4’s left, and the defendant was on her right. PW1 was pushed to the metal railings. He was losing his balance and was about to fall over the fence. PW1 was also choking and PW4 was screaming repeatedly, saying he could not breathe, “Please stop.” PW4 said she had to support the head of PW1 to avoid him falling on the ground. She pushed PW1 up and PW1 was stepping few paces towards the inside of the street. Then the defendant punched the left cheek of PW1. PW1 lost his consciousness and he fell on his right side. PW4 supported PW1’s head so that it would not hit the ground. She said that PW1 woke up 10 to 15 seconds later.

52.When PW1 regained consciousness, he started to scream in pain. His ankle was folded on the right side. As the injury was serious, PW4 called the police but these men was shouting and asked PW4 not to call the police. They also tried to snatch the phone of PW4. PW4 said she had no choice as she had to call the ambulance, and they were mad at her. She told them to stay there until police arrived, but they fled.

53.PW4 said she had a long time at the scene, looking at the face of this second attacker. She was just about 30 cm from him and they were very close to each other. She said the lighting at the scene was bright enough and that she also took a photo of the second attacker running down Arbuthnot Road. PW4 said she did mention and show this photo to the police at police station, but they said that they would ask her for it if it was really required.

54.PW4 said the second attacker was a stranger to her at the time of the incident, but PW1 told her the name of this second attacker when he was in hospital. She said that she identified the defendant in the identification parade on 16 December 2021.

55.She said before the incident, PW1 just had one drink in Salon 10 where they stayed for about an hour, and he had no drink at the bar that they went before. PW4 also said at the material times, PW1 was sober.

56.When cross-examined, PW4 said at the scene police asked her about the injuries of PW1, and she told them PW1 was injured by one person as his ankle injury was just caused by one person, although he had been attacked by two persons. Later, PW4 corrected and said that at the scene she did not mention the number of attackers. She also said that she could not remember if she told the police there was one or two attackers. She said as she wanted to find these two attackers, therefore later in the statement to police, she mentioned two attackers.

57.PW4 also said that police at the scene mainly asked her about the ankle injury. They did not ask her further questions. She said police also told her that she could make a full statement later as they were in a hurry then to send PW1 to hospital.

58.When cross-examined, PW4 said at the scene she told the police that PW1 was punched by a guy, he lost consciousness, fell on the ground and hurt the ankle. Later, she corrected herself and said that PW1 was strangled first before being punched.

59.PW4 confirmed PW1 only told her the second attacker was the defendant when he was in Pamela Youde Hospital. She said she was also given the photo Exhibit P16 when PW1 was in the same hospital. PW1 asked her if this was the person she saw, and PW4 confirmed as it had the same face as the second attacker. PW4 said since then, this photo was in her phone.

60.PW4 said at Queen Mary Hospital, she already told police she was willing to give witness statement. She also agreed that she had paid medical fees for PW1.

61.When cross-examined, PW4 said she did not remember PW1 had argument with others at Salon 10. She said she was sitting beside PW1 and if there was any argument, she would have known. She said that PW1 was just having a loud conversation with other people, but she did not consider that as an argument.

62.PW4 denied PW1 was drunk at the time and they were asked to leave Salon 10. She said after they left Salon 10, PW1 was punched at the back of his head by a man who appeared to be drunk for no reasons. After PW1 tried to avoid further attack by moving away, the second attacker came and strangled PW1, again for no reason, for 20 to 30 seconds.

63.PW4 said that she was looking at both the second attacker and PW1 “to make sure they stopped”. PW4 said when PW1 later stepped few paces back to the pavement, the second attacker came to him and gave him a blow in the left face. PW1 lost consciousness and fell. The second attacker just looked down at PW1 who was on the ground and he was standing beside PW4 at the time.

64.PW4 said when she tried to stop the fight, she got the scratches while separating them but these were not intended.

65.PW4 said she was not aware of the contents of the witness statement of PW1 before she made her own. She denied the wordings in her witness statement is similar to that of PW1 as they were just common expressions. She said there was no collusion between herself and PW1 in making witness statements to police. She said she did not remember if there were paragraph numbers in her draft witness statement to police, but she usually does not use paragraph number.

66.She also said that once they left Salon 10, they did not stay but continued walking on Arbuthnot Road. She denied PW1 pulling the hair of a passer-by female. She also denied the defendant asking PW1 to calm down when PW1 turned aggressive towards the defendant and used foul language, asking the defendant to shut up, mentioning the defendant’s name and saying he is a piece of shit, and that PW1 also had tried to punch the defendant. She also denied misidentifying the defendant as the second attacker.

67.This is the case for the prosecution.

68.This court later ruled that there was no case to answer regarding the 2^nd charge and there was a case to answer regarding the 1^st charge.

Defence case

69.The defendant was explained of his rights and elected not to give evidence nor was he calling any defence witness. This is the case for the defendant.

Discussion

70.This court has carefully considered the evidence before the court and the final submission of defence counsel.

71.The defendant has elected not to give evidence. This is his right and the court will not draw adverse inference against him.

72.The defendant also has a clear record and therefore the court has given him due consideration regarding his propensity to commit crime.

73.No doubt from the evidence before this court, PW1 had the injuries as depicted in the various medical reports as well as the photos in Exhibit P15, which amounted to grievous bodily harm as a result of the incident on 19 June 2021.

74.Coming to the issue of identification of the second attacker whom, according to PW1 and PW4, was the defendant. According to PW1, he could recognise the second attacker as the defendant as he had known him for some time before. They had met over a few social gatherings as well as a face-to-face job interview conducted by the defendant.

75.The identification evidence of PW1 is a case of recognition, and this court is aware that sometimes mistakes could be made in recognition for close relative and friends. This court also noted, accepting the evidence of PW2, that PW1 was drunk at the time.

76.This court noted that when defence case was put to PW1 and PW4, the defendant agreed that he was at the scene at the time, asking PW1 to stop making trouble, and when PW1 refused to heed to his advice and said things to him, calling his name in the course, he left.

77.Further, the place where the incident occurred was very near to Salon 10. There was no doubt that the defendant was there at the scene.

78.PW4 said she was very close to the second attacker when he was attacking PW1 and she was by the side of this attacker throughout the incident.

79.This court does not agree to the contention that when PW4 tried to stop the attack on PW1, her attention was solely on PW1 and not on this attacker. Surely, she would also have to pay a lot of attention to the oncoming attacks from the attacker and at the same time fend PW1 from these attacks, also making sure that he did not fall on the ground. She said also that the attacker was standing by her side when PW1 fell unconscious and remained there for a few minutes. Therefore, in the circumstances, PW4 had sufficient time to observe the second attacker. Also, from Exhibit P15, one could see that the place was lit with streetlights.

80.This court has cautioned itself as to whether the identification evidence of PW4 in the identification parade would be tainted by the provision of Exhibit P16 by PW1 to her before the identification parade or affected by the screenshot sent to her by PW1, allegedly from the defendant to his friends.

81.This court has also taken into account the evidence of PW2 which said that PW4 also smelt of alcohol at the time of incident, which suggested that PW4 had some alcoholic drinks before the incident.

82.Medical report said that the injury to PW1 was caused by a stranger. Defence counsel said therefore that actually PW1 could not identify the second attacker. This court has reservation to accept this contention because most probably, the complaint would have come from PW4 who does not know the defendant, and not from PW1 who was then drunk and in deep pain from the sustained injury.

83.After considering even the Turnbull[1] guidelines, this court has no doubt that the quality of identification evidence of PW4 in the circumstances is safe and of good quality.

84.Did PW1 and PW4 mistake the defendant as the second attacker? Despite the mental state of these prosecution witnesses, this court does not accept this contention. This court sees no reason that PW1 and/or PW4 would fabricate against the defendant.

85.Now, coming to the evidence of PW1 and PW4. Both of them said that PW1 only had one or two drinks at Salon 10 before the incident. Both denied PW1 was drunk at the time. Yet PW1 was in a state that he was even unable to tell if the police arrived at the scene.

86.According to PW2 whom I find a truthful and reliable witness, the reason why he made enquiries of the incident with PW4 was because PW1 was drunk, emotional and had slurry speech. If PW1 just had one or two drinks as PW1 and PW4 suggested, how could PW1 get drunk?

87.When PW1 and PW4 were asked if PW1 had an argument in Salon 10 with other customers before they left, PW4 denied but said there was only loud conversation. PW1 however agreed that there was a dispute of about 15 minutes in Salon 10.

88.Further, in witness statement of PW4, she said that the first attacker and the defendant threw a big glass bottle at her and she was almost hit. In court, however, she did not make such allegation against the defendant or the first attacker.

89.On the other hand, PW1 did not in his witness statement to police mention this glass bottle throwing incident against them. But in court, he said at least one glass bottle was thrown in their direction. However, both PW1 and PW4 did not make any allegation against the defendant or the first attacker concerning this glass bottle throwing in court.

90.Police did not find any glass bottle debris in the area. PW1 explained that the glass bottle might have rolled down the slope. However, this could only happen if the glass bottle was rolled on the ground and not thrown. This explanation was a bit difficult to accept.

91.PW4 said PW1 was strangled by the defendant for 20 to 30 seconds with both hands which caused PW1 to choke and had difficulty in breathing. The strangulation was not supported by any complaint to medical personnel or by any photos taken by PW3 (Exhibit P15). In fact, PW1 said he recalled there was no markings on his neck. Photo 5 of P15 did not support existence of markings on neck.

92.It could therefore be safely inferred that even if there were strangulation, the same was not as serious as said by PW4. According to PW2, the evidence of whom the court accepts, PW4 told him that PW1 was pushed down and attacked. Strangulation was not mentioned.

93.Further, according to what the PW1 and PW4 told in their witness statements and in court, PW1 was attacked by two persons. But at the scene, they only told PW2 of the attack by one person. The explanation given by PW4 in this respect is far from satisfactory. It appears to this court that the prosecution witnesses, in particular PW4, are in the habit of tailoring what they considered relevant when giving account of what happened and not necessarily “the whole truth”.

94.When PW4 was cross-examined, she said she got scratches whilst in the course of trying to “stop the fight”. She also said when PW1 was strangled, he could not breathe and she shouted to the second attacker to stop. PW4 said she was looking to the second attacker and PW1 “to make sure they stopped”.

95.According to what PW1 and PW4 said in court, there was no fight, PW1 was just being attacked. But if that were the case, why would PW4 say these things?

96.Given the drunk state of PW1, he was unable to remember what he actually did during the incident. He appeared to say, when cross-examined, that he was unable to fight back, but did he start the fight? Was there a fight? Or was he just trying to fend off the attack?

97.This court must say that on what is before me, although this court is certain that the defendant had caused the ankle injuries and the left face injury to PW1 during their physical encounter, this court, whilst very suspicious of the defendant, could not be certain beyond reasonable doubt what actually transpired during which PW1 sustained these injuries.

98.For this reason, this court rules that the prosecution has failed to prove the charge beyond reasonable doubt. Accordingly, the defendant is acquitted of the 1^st charge.