HKSAR v. Tidoy Primitivo Asuncion

DCCC 55/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 55 OF 2013

____________

____________

REASONS FOR VERDICT

The defendant pleaded not guilty to a charge of "Wounding with intent". The victim was stabbed on his left abdomen by the defendant allegedly at Li Yuen Street West using a foldable knife.

The Prosecution Case

2.About 10:00 pm on 4 November 2012, PWs 1, 3 and 4 (Mr. Shoukat Khan, Mr. Wahid Khan and Mr. Nawaz Muhammad) were waiting for PW1's uncle to come down from his shop situated at 2^nd Floor, No.3 Li Yuen Street West in Central.  Meanwhile, they were minding their own business in the vicinity of Ground Floor, No.3 Li Yuen Street West.

3.Whilst they were waiting for PW1's uncle, there was an altercation between PW1 and a Filipino trio (which consisted of 2 males and 1 female).  A Filipino male of that trio (later identified as the defendant) accused PW1 of throwing glass bottles at them.  PW1 walked towards the defendant trying to explain that they did not throw any bottles.  Suddenly, the defendant took out a knife and struck PW1 on his abdomen.  PW1 started to bleed and the defendant ran towards Queen's Road Central.

4.Having seen PW1 being attacked, PW3 immediately chased after the defendant.  PW1 followed despite being injured.  In the course of the pursuit, PW3 picked up a metal pipe and threw it between the legs of the defendant.  The defendant was tripped and fell down on his face on Queen's Road Central.  PW3 jumped on his back and subdued him.

5.PC 9893 (PW5) soon arrived at the scene.  He found a foldable knife from the defendant's right rear trouser pocket and arrested him.

6.In his evidence, PW1 said the defendant stabbed him twice on his abdomen at Li Yuen Street West.  PW3 said PW1 lifted up his shirt and he saw 2 cuts which were bleeding on PW1's abdomen.[1] PW4 said he saw PW1 being struck twice by the man without a cap.  PW1 admitted that he had consumed 2 cans of beer in that evening but was not drunk.  He said he finished drinking about 8:30 pm.  PW3 claimed that he never drinks or smokes for religious reasons.  PW4 said he had consumed 4 bottles of beer that evening.

7.The prosecution also called PW2 (Dr. YIP) and PW6 (DPC 837) to give evidence.  PW2 treated PW1 in the A&E Department about 11:30 in the same evening.  PW6 collected samples of bloodstains located at Li Yuen Street West and Queen's Road Central shortly after the incident.

The Defence Case

8.The defendant elected not to give evidence, but called3 defence witnesses (Madam Castillo, Mr. Laeno and Madam Marticio). The defendant has the right to remain silent; I drew no adverse inference against him in this regard.

9.DW1 stated in her evidence that she saw a Filipino male in an orange top being attacked by many Pakistani males at Li Yuen Street West. The Filipino male managed to run away towards Queen's Road Central. A Pakistani male who was chasing after him picked up a metal pipe and continued his pursuit. Many Pakistanis joined in the chase. In front of Melbourne Plaza, the Filipino male was restrained by 2 Pakistanis. She also saw a Pakistani putting something in the back pocket of the Filipino male.

10.DW2 said he saw a Filipino male in an orange top being assaulted by a group of 3 to 4 Pakistanis at Li Yuen Street West. DW2 became scared and went to Pedder Street to take a taxi home.

11.DW3 claimed that at Li Yuen Street West, she saw a man wearing a cap striking a Pakistani male with a broken glass bottle. Upon being struck, the Pakistani male pulled up his shirt and pulled down his trousers to check his injury. She saw blood on the ground. Soon after that, she saw a Filipino man being attacked by a group of Pakistanis. The Filipino man ran away towards Queen's Road Central. He was punched and kicked by a group of 7 Pakistanis outside McDonald's on Queen's Road Central. A Pakistani man was holding a knife; the Filipino man struggled with him and managed to snatch the knife. He then used the knife to stab the Pakistani man.

Assessment and Analysis of Evidence

12.The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt. The defendant has a clear record. I have directed myself on his good character accordingly.

13.There is no dispute that PW1 was stabbed. What this court needs to decide is who stabbed him at which location. The prosecution says the defendant stabbed PW1 at Li Yuen Street West. The defendant, however, admits that he stabbed PW1, except it took place at Queen's Road Central; and that he was acting in self-defence.

How many times was PW1 stabbed?

14.PWs 1, 3 and 4 all claimed that PW1 was stabbed twice at Li Yuen Street West or that they saw 2 cuts on PW1's abdomen which were bleeding. On the other hand, DW3 claimed that she saw a man wearing a cap striking a Pakistani male with a broken glass bottle at Li Yuen Street West. Later at Queen's Road Central, she saw the same Pakistani male being stabbed by a Filipino man using a knife. Objective medical evidence, however, seems to suggest otherwise.

15.There is no dispute that upon admission to the hospital right after the attack, only l laceration of about 1 cm long was found on PW1's left abdomen.[2] There is also no dispute that an emergency laparotomy was performed on PW1 in order to stop the internal bleeding in his peritoneal cavity and to repair his torn spleen and abdominal muscle.[3]

16.As depicted in the post-operation photographs[4], PW1 had 2 sutured wounds on his abdomen (one on the left side and the other on the front; the one on the left side is distinctively shorter than the other).

17.In his evidence, Dr. YIP confirmed that the 1 cm laceration which he found on PW1's left abdomen in the A&E Department is the shorter wound depicted in Photo 25, Exhibit P3. Regarding the length of that shorter wound (which appears to be longer than 1 cm), Dr. YIP commented that the 1 cm laceration could have been opened longer during surgery in order to explore the wound.

18.Although there is no evidence explaining what a laparotomy is, it is common knowledge that laparotomy is a surgical procedure which cuts open a person's abdomen. As a juror, I find that the laparotomy performed on PW1 clearly accounts for the longer wound on the front of his abdomen. In other words, PW1 had sustained only 1 stab wound, which was the 1 cm laceration on his left abdomen, before admission to the hospital.

19.I am aware of the keyhole-shaped wound located at the waistband level of PW1's lower abdomen.[5] No evidence (medical or otherwise) was adduced regarding this wound. It is small but certainly noticeable. Had it been there prior to admission to the hospital, I am sure Dr. YIP would have noticed it and mentioned it in PW1's medical report (Exhibit P5). Since it was not mentioned in Exhibit P5, I find, as a juror, that PW1 did not sustain this keyhole-shaped wound before he left the care of Dr. YIP in the A&E Department.

20.Furthermore, the shape of this wound is all too unique and symmetric to have been inflicted by a broken glass bottle. Its location was also covered by the waistband of PW1's underpants. In other words, this keyhole-shaped wound could not have been inflicted at Li Yuen Street West by the man wearing a cap striking a broken glass bottle against PW1 as alleged by defence.

Where was PW1 stabbed?

21.As I have found, based on objective and cogent evidence, that PW1 had sustained only the 1 cm laceration on his left abdomen prior to admission to the hospital, I shall in turn determine where he was stabbed.

22.Apart from the evidence of PWs 1, 3 and 4, according to PW6 and paragraph 3 of the Admitted Facts (Exhibit P1), bloodstains of PW1 were found at both Li Yuen Street West[6] and Queen's Road Central. The bloodstains at Li Yuen Street West clearly originated from relatively large-size blood drippings[7], which formed quite a congested pattern on the ground.[8] PW1's T-shirt and jeans also show heavy bleeding concentrated on his left abdominal area.[9] Based on the above evidence, I find, as a juror, that PW1 must have had some serious bleeding at Li Yuen Street West and continued onto Queen's Road Central. On this basis, I further find that this kind of bleeding must have been the result of a knife-stabbing wound.

23.On the contrary, the size and depth of the keyhole-shaped wound mentioned above, even if inflicted in the manners alleged by defence, could not possibly have left the amount of blood spotting and splatter pattern on the ground at Li Yuen Street West.

24.Based on the above analysis, it is plain and I draw the irresistible inference that PW1 was stabbed on his left abdomen at Li Yuen Street West. Since PW1 had only 1 wound when he was admitted to the hospital and I have already found that the wound was inflicted on him at Li Yuen Street West, it follows logically that the defendant's assertion must be wrong; he could not possibly have stabbed PW1 at Queen's Road Central.

Who stabbed PW1?

25.I do not know why PWs 1, 3 and 4 gave evidence that the defendant struck his knife against PW1 twice or that they saw 2 bleeding wounds on PW1's abdomen at Li Yuen Street West. They were obviously wrong about that. But I need not speculate on the reasons why they were wrong; I simply attach no weight to this aspect of their evidence.

26.On the other hand, I accept the evidence of PWs 1, 3 and 4 whenever they are corroborated by independent and objective evidence. Since there is medical and forensic evidence showing that PW1 sustained a knife-stabbing wound at Li Yuen Street West, I believe PWs 1, 3 and 4 to the extent that it was the defendant who stabbed PW1 there.

27.When PW5 seized the foldable knife (Exhibit P7) from the defendant and said to him "I arrest you", the defendant's first response was "He fight me, so I hurt him." In his video-recorded interview, the defendant admitted that he stabbed PW1 at Queen's Road Central, but claimed that he was acting in self-defence.[10]

28.The prosecution and defence evidence as to where PW1 was stabbed are mutually exclusive. Since the forensic evidence strongly suggests and I have made a finding of fact that PW1 was stabbed at Li Yuen Street West, the defence evidence on this aspect must therefore be rejected.

29.Regarding the defendant's claim that after he had stabbed PW1, he was restrained by several Pakistanis and they put the knife in his back trouser pocket[11], I find it defies common sense and way too fanciful. I agree with prosecuting counsel's submission that if the knife had in fact been planted in the defendant's pocket by someone shortly before the Police arrived, it would have been the most natural reaction for the defendant to protest the "planting" to PW5 the moment PW5 pulled it out of his pocket. However, the defendant said nothing about this until his video-recorded interview which took place some 20 hours after his arrest. As a juror, I believe the defendant's admission only to the extent that he had stabbed PW1 with Exhibit P7.

30.As I have made a finding of fact that PW1 was stabbed by the defendant at Li Yuen Street West using a knife, there could not possibly have been any stabbing of PW1 at Queen's Road Central as alleged by defence. It follows logically that the defendant could not possibly have been required to act in self-defence by stabbing PW1 at Queen's Road Central.

31.The defendant sustained very minor bruising, swelling and abrasion on his face.[12] Such injuries are inconsistent with the allegation that he was punched and kicked and beaten on the ground by a group of Pakistani males at both Li Yuen Street West and Queen's Road Central. The defendant's account of the events as to why and how he stabbed PW1 at Queen's Road Central cannot be true and the defence story simply falls apart (including the evidence of all DWs). In this connection, I need not even consider the legitimacy of the defendant's alleged act of self-defence.

The 3 Defence Witnesses

32.DWs 1 to 3 all claimed that they do not know the defendant. Only DW1 had left her particulars with the Police at the scene, but she did not make any witness statement until she was asked by defence solicitors to go to the police station to give one. Interestingly, all 3 of them were contacted by someone named Marilou Sebastian, who was a stranger to them, asking them to become witnesses for the defendant.

33.Perhaps the Filipino community in Hong Kong is a small and closely knitted one. I do not know. Looking for clansmen who happened to have witnessed the incident several months down the line just reminds me of the idiom "a needle in a haystack".

34.I am intrigued by the fact the 3 DWs were found. Moreover, none of them had made any contemporaneous record of the incident. Yet, they could in their capacity as mere passers-by recall so many details of the events.

Conclusion

35.Based on the reasons stated above, there is not a single doubt in my mind that the defendant stabbed PW1 once at Li Yuen Street West using Exhibit P7. By doing so, the defendant had unlawfully and maliciously inflicted the 1 cm wound on PW1's left abdomen with intent to do him grievous bodily harm (namely all the internal abdominal injuries resulted from that stab wound).

36.The prosecution has proved its case against the defendant beyond reasonable doubt. Accordingly, I find the defendant guilty as charged.

Please refer to CACC277/2013 for the relevant appeal(s) to the Court of Appeal.