HKSAR v. Gurung Chij-kaji

DCCC 1071/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1071 OF 2012

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Reasons for Verdict

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1.The defendant has pleaded not guilty to three charges.  Charges 1 and 2 are wounding, contrary to section 17, and Charge 3 is assault occasioning actual bodily harm, section 39, all three offences are contrary to the Offences against the Persons Ordinance, Cap.212. All three offences occurred at the same time on 20 November 2011 at the junction of Shanghai Street and Ning Po Street, Yau Ma Tei, Kowloon.

2.The prosecution relied on the evidence of three witnesses, the three victims of the three charges, PW1 to PW3.  The prosecution say that three victims met the defendant who then called for reinforcements and a number of men arrived and as a group they attacked all three prosecution witnesses.  PW1 and PW2 suffered serious injuries and a knife and a glass bottle were used in the course of the attack to wound them. 

3.The defendant’s evidence is that the defendant himself was a victim and stabbed by PW1; in addition he was further assaulted by others.  He ran away after he was injured and does not know how PW1, PW2 and PW3 were injured and by whom.

4.The issue in this case is the credability of the witnesses and their evidence.  There is no other independent evidence to support their evidence.  Other evidence available in the course of this trial was either neutral, or not challenged.  I will summarise the evidence without regurgitating it as it is unnecessary to do that in this case.

5.In August of 2011 there is no dispute that PW1 had an altercation with some other Nepalese males at a Devali party in Wanchai.  He said he was blind drunk at the time and was ejected from the party, but not before there was some pushing and shoving.  In November 2011, some months later, on 19 November, PW1 was alone at the I-ONE cyber bar in Yau Ma Tei when some Nepalese males, in particular one of the party organisers from the Devali party in Wanchai, came into the cyber bar and invited PW1 to go downstairs. He refused.  Two men then beat him with fists and kicks.  The defendant arrived and put his arm around PW1 but clearly left when some words were spoken.  This incident and the actions I have just described were captured on CCTV and exhibited at P17.   It was watched during the course of the trial.

6.The defendant said that one of the males that punched PW1 that night on the 19th was called Bishal and, as a result, PW1 on the next day was walking around Shanghai Street with PW2 and PW3 to exact revenge for his beating.  In short he was looking for Bishal.  When they saw the defendant on Shanghai Street PW1 asked the defendant where Bishal was.  The defendant says that the prosecution witnesses were the aggressors.  The prosecution witnesses deny this proposition and say that they bumped into the defendant who was the one who instigated their talk by calling PW1 over to where he was standing.

7.The prosecution witnesses gave evidence that that morning on the 20th they had met very early at about 6.00 am.  What they did between 6.00 am and about 9.15 am when they met the defendant is not entirely clear.  There are discrepancies.  They saw the defendant on Shanghai Street next to a park; he called PW1 over and they discussed the altercation between the two groups of Nepalese men that had taken place at the party in Wanchai some months prior, then two men joined the defendant and they attacked PW1, PW2, and PW3.  One of the two men held a knife and the other a wooden broom handle.  PW1’s evidence was that he was stabbed several times, PW2’s evidence was that he was hit on his back with a beer bottle and received several wounds that required stitches.  PW3’s evidence was that he was punched and hit as well but suffered only bruising and swelling. 

8.Besides these three attackers a third group of Nepalese men arrived, about nine to 10, who joined in the attack.  PW1 ran away and found a police officer on Nanking Road who called an ambulance for him. Separately PW2 and PW3 fled the scene when a police officer arrived at the fight.  They ran because the attackers told this police officer that they were the culprits and should be arrested.  They took themselves off to PW2’s house to rest, but several hours later had to go to hospital as PW2’s wounds would not stop bleeding.  The prosecution witnesses’ wounds can be seen in photograph albums P4, P5 and P6, and their medical reports were exhibited as P1, P2 and P3 respectively.

9.The prosecution allege the attack on all three prosecution witnesses was a joint enterprise by the defendant and others. 

10.The defendant was also admitted into hospital early that morning. A defence witness said that he took the defendant there by taxi at about 9.00 to 9.30 am after he saw him bleeding outside a food shop on Reclamation Street.  Exhibit P18, a witness statement, says that by 10.35 am the defendant had been seen to by medical staff, obviously his wound had been stitched up and his wound dressed.  The nurse told the police officer and the statement taker of Exhibit P18 that the defendant’s wound on his arm looked suspiciously like a knife wound because a piece of flesh was missing. 

11.The defendant’s evidence is that he was stabbed by PW1 before PW1, PW2 and PW3 were attacked by others.  By the time they were attacked he had been stabbed and had fallen to the ground.  He felt, but did not see, further assaults to his back before he managed to get up and flee towards Reclamation Street.

12.DNA from bloodstains found at the scene of the fight on a broken wooden handle and a nearby wall belonged to the defendant, and this was not challenged.  In fact, what this piece of evidence does is support the defence case that he was stabbed at the scene and bled at the scene.

13.The sketch, P7, and photographs, P15, show the location and exhibits clearly.  Photographs Exhibit D1 and D2 show the defendant’s scar after it had healed. 

14.The defendant is seen in the 7-Eleven shop very close to the location of the fight on CCTV footage; this is Exhibit D6.  From D6 at 9.13 and as displayed on the CCTV footage the defendant entered this 7-Eleven shop and goes to the back of the store to the refrigerators and chooses a bottle of beer.  From the video footage it seems he is unsteady on his feet and spends some time chatting to some males who were drinking at the back of this 7-Eleven. He then leaves the 7-Eleven at 9.15 am after paying for a beer and having it opened by the cashier. 

15.At 9.25 am the cashier is heard telling a customer that there was fighting again after he had left the shop to look along the street obviously after hearing some commotion.  At 9.27 am police sirens can be heard in the background. 

16.The defendant says that he was on his way home with a beer when he saw PW1, PW2 and PW3.  He offered PW3 a beer, PW3 took the beer and the defendant said “cheers” to him.  PW3 agreed that the defendant was drunk.  At that stage he, the defendant, was alone and had been alone from when he entered 7-Eleven unsteady on his feet.  All three prosecution witnesses agreed the defendant offered a beer to PW3. 

17.The defendant said in evidence that they discussed the incident of the night before at the cyber bar.  He said that he had told PW1 to forget the matter and told PW1, or reminded PW1, that he had not hit him.  PW1 then asked where Bishal was as he was looking for him; that is when the defendant offered a beer to be friendly.  PW3 was happy to take it, but PW1 was not happy to let the matter go.  The defendant’s evidence was that he then got aggressive, started swearing, and pushed the defendant.  At this stage the defendant dropped the beer he was holding and pushed back.  Then, he says, all three prosecution witnesses jumped him with PW1 stabbing him, hitting his arm with a knife.  

18.As I have said, the main issue is credibility. There are several versions of events before the court.  Both counsel have written submissions highlighting discrepancies and contradictions. 

19.The prosecution has the burden of proof having to prove beyond reasonable doubt that the defendant wounded PW1 and PW2 with intent to do them grievous bodily harm.  He did also assault PW3 occasioning him actual bodily harm. 

20.The prosecution has to prove there was a joint enterprise between the defendant and the other Nepalese men who arrived at the scene.  Joint enterprise means two or more persons together taking part in a course of criminal conduct, it need not be at the same moment.  The prosecution must prove they had a common purpose to commit this offence.  The prosecution say that the defendant called for the attackers to come and together they beat PW1, PW2 and PW3.  The defence say the defendant was alone, and was alone when he was stabbed and the others arrived without his knowledge nor at his request. 

21.I have considered the evidence of each prosecution witness and the defence witness separately.  I have considered carefully the final submissions of both the prosecution and the defence.

22.The prosecution acknowledge there are some discrepancies between PW1, PW2 and PW3’s evidence and their evidence in their witness statements, but they are not serious, relevant or material enough to doubt they are telling the truth.  They are credible despite some anomalies and differences; in fact the prosecution’s submission is that the defendant’s version is so far-fetched to be incredible and therefore should be rejected.  The defence obviously submit the very opposite.  I will highlight the main discrepancies.  I have considered them all, but do not see the need to address them all here in full.   

23.The three prosecution witnesses met very early in the morning at approximately 5.30 am to 6 o’clock and the assault was around 9.20 am.  Where they were in between these times is not entirely clear.   If they did have breakfast before bumping into the defendant, it was a very long one.  Their evidence orally and their witness statements were contradictory.  Defence counsel submitted it was because the reality was they were walking around this area looking for Bishal who had assaulted PW1 the night before.  PW1 was out for revenge and therefore had a knife on his person.  Ironically, PW2 said in evidence that if they had been out looking for revenge they would have carried weapons with them.  PW1, having a knife, explains possibly how the defendant suffered such a serious cut to his arm.  Somebody had a knife and that is how the defendant sustained such an injury.  That I will accept.

24.Defence counsel says the contradictory evidence of all three prosecution witnesses as to their whereabouts for several hours before the incident is relevant and material, and I agree. 

25.The three prosecution witnesses made out the defendant called them over, had a chat, called for backup, and attacked them when his friends arrived.  Yet it can be seen from the CCTV footage of 7-Eleven that the defendant was alone when he went in and out of 7-Eleven.  He was unsteady on his feet and PW3 agreed the defendant appeared drunk.   He offered a beer, which is a friendly gesture, and said “cheers”, proposing a toast.  It was not what one would expect of a pre-meditated attack with backup very close by.  Not one prosecution witness said in their police statements, unlike their oral evidence, that the defendant had telephoned for backup. 

26.The credibility of the prosecution witnesses has been successfully exposed by defence counsel. 

27.PW1 denied he had been involved since this attack in another altercation at a bar a year later, whereas PW2 said he had heard from PW3 that there was such an altercation.  PW3 denied having told PW2 this after a long pause when this matter was put to him.  It is obviously not proof of the truth of the matter, but it creates doubt where credibility is the issue.  Additionally, all three have discussed the incident between them before making statements to the police. 

28.On such matters as the identity of the defendant and the acts of the attackers has certainly led to me doubting PW2’s oral evidence that he saw the defendant hit him with a glass bottle.  PW3 said he told PW2 before they were interviewed by the police that the defendant was the one who hit him with a glass bottle.  PW2 identified the defendant at an ID parade obviously as an attacker, but said he did not see who had hit him with a bottle, yet in court he clearly said he saw the defendant hit him with a bottle as others held him down.

29.PW1 said he ran away from the attack when he could, heading towards the hospital knowing he needed medical attention.  He said the defendant chased him as he fled, yet the police officer that attended to him did not see any pursuers, nor did PW1 tell him his attacker was following him.  In any event, the defendant was hurt and stabbed himself.  I find it hard to believe that he would have chased after PW1 instead of tending to his own wound.  The evidence is his blood was found in the opposite direction to where PW1 fled on Reclamation Street outside a food store where a defence witness went to his aid.  That is more likely to be the scenario, that he fled himself from the scene and whoever attacked him whilst he was on the ground. 

30.The fact a badly injured PW1 ran from the scene I can understand, but I do not understand why PW2 and PW3 fled from a police officer who arrived at the scene, especially when PW2 was also badly hurt and presumably bleeding heavily.  As victims they should have been pleased to see this police officer and salvation.  Their actions make me doubt their version of events.

31.All these issues cumulatively considered lead me to the finding that the prosecution cannot reach the required burden of proof. The prosecution witnesses were not good witnesses, and I doubt their version of events was the entire truth.  Having said that, I do not believe the defendant was as innocent a bystander as he alleges, but I do not need to make a finding as to exactly what happened.  There are a number of possibilities I can see.  I only have to decide if all elements of the offences have been proved against the defendant beyond reasonable doubt, and after considering the evidence and submissions, I cannot do that.  Accordingly, the defendant is acquitted of all three charges.