HKSAR v. Balakrishnan Mahendran

DCCC88/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 88 OF 2015

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Reasons for Verdict

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1.The defendant faces 3 charges for the respective offences of criminal damage [1] (Charge 1), wounding [2] (Charge 2), and wounding with intent [3] (Charge 3). He pleads not guilty to all charges.

The Background

2.Mr. Liyana Arachchige Naveen Roshan Gunathilaka (PW1) is a Sri Lankan.  He came to Hong Kong in about 2005 and made a claim to be classified as a refugee.  At the time of the alleged offences, he was living in a village house located at Ground Floor, No. 97 Fuk Hang Tsuen, Tuen Mun (“the House”).  There were 5 rooms in the House.  PW1 occupied Room 5. 

3.Miss Yuliani Larasati (PW2) is an Indonesian working as a domestic helper in Hong Kong.  She was PW1’s girlfriend at the material times.  She visited PW1 at the House from time to time.

4.The defendant was born in Tamil Nadu, India, in 1988.  He came to Hong Kong in 2009.  He was at the material times making a claim under the Convention Against Torture.  He was released from custody and allowed to stay in Hong Kong upon his entering into a recognizance in the terms specified in Form No. 8 of the Immigration Ordinance (Exhibit D1).  He had lived in the House for 4½ years. He occupied Room 1.  He started living there before PW1 moved in.  They had been neighbours for a period of time.

5.Inside the House, there was a kitchen to be used by all occupants.  Some plates and cups placed inside the kitchen were for common use.

The prosecution case

6.The prosecution alleges that on 31 August 2014, while PW1 and PW2 were having lunch inside Room 5, the defendant went into the room and damaged the door curtain, one table, one cup and one dish belonging to PW1 (Charge 1), and broken glass from the damaged glass top of the table hit PW2 and wounded her (Charge 2). The prosecution further alleges that the defendant used a metal pole to hit PW1 on his head, face and legs, and wounded him with the intent to do him grievous bodily harm outside the House shortly after the incident inside Room 5 (Charge 3).

Charge 3

7.At the end of the prosecution case, Mr. Alex Ng, learned counsel for the defendant, submitted that the defendant had no case to answer in respect of this charge, but Mr. Jonothan Abbott, learned counsel on fiat for the prosecution, argued the contrary.

8.I accepted the submissions of Mr. Ng.  I found it impossible when I exercised my function as a properly directed jury to convict the defendant of Charge 3 because PW1 admitted under cross-examination that he was not sure that the defendant was his assailant, and the oral testimony of PW1 was the only evidence supporting that charge.

9.Mr. Ng did not argue that the defendant had no case to answer in respect of Charges 1 and 2.  Having considered the evidence at the close of the prosecution case, I found that the defendant had to answer these charges.

The defence case on Charges 1 and 2

10.The defendant denies that he had damaged anything inside PW1’s room or wounded PW2 in the presence of PW1.  He says that the table that had its glass top broken was in fact his property.  The defendant further says that he moved out of the House on 1 August 2014, and that he was with his friends inside the premises at No. 19 Nam Long Tsuen, Lung Kwu Tan, Tuen Mun (“the No. 19 address”) on 31 August 2014 at the time of the alleged offences.  He has duly given a notice of alibi before trial.

The prosecution evidence

11.PW1 and PW2 gave evidence in Court.  The written statements of the other prosecution witnesses were produced by agreement between the parties pursuant to section 65B of the Criminal Procedure Ordinance, Chapter 221.  All exhibits referred to in these witness statements including the defendant’s record of interview were also admitted into evidence by consent.

PW1

12.PW1 testified that on 31 August 2014, PW2 visited him in the House.  She prepared their lunch in the kitchen.  They then had their meal inside his room.  They were sitting on the same sofa.  Their meal plates were put on the coffee table in front of them when they were having lunch.

13.According to PW1, when PW2 and he were having lunch, the defendant came into the room. He did not remember whether the defendant had said anything when he came in, but the defendant broke the glass top of the table with his leg.  Their lunch plates fell onto the ground.  The glass of the table was broken and fell onto the ground too.  PW2’s leg was injured by the broken glass and bled.  PW1 was not injured.

14.Upon being asked what had happened thereafter, PW1 testified that there was an argument between PW2 and the defendant.  The defendant accused PW2 of having broken a plate in the kitchen, but PW2 denied.  They were shouting during the argument.  PW1 could not remember how long the shouting had last.  He joined PW2 in the argument against the defendant.

15.When PW1 was asked whether anything else was damaged apart from the glass, he replied in the negative.

16.PW1 further testified that he later left the House to receive a friend of PW2. When he was leaving, he saw the defendant inside the defendant’s room.  When he was on a by-lane outside the House, he was assaulted and injured.  This formed the subject matter of Charge 3.  It is not necessary to give an account of this incident since Charge 3 has already been dismissed.

17.According to PW1, he made a report to the police by phone in a public telephone booth after the assault.  The police went there and took him back to the House but he did not go inside.  He saw PW2 with her friend by the road side.  The police later took him and PW2 to Tuen Mun Hospital.  He was examined by a doctor and his injuries were treated.

18.PW1 said that after the medical treatment, he returned to the House.  He could not remember the time when he went back, but it was already dark.  He did not see the defendant in the House.  He also did not see the defendant the following day.  Nor did he see the defendant again after the incident.

19.PW1 was shown photographs in Album 2 (Exhibit P1).  Amongst the photographs shown to him, PW1 testified that photograph 13 showed that the door curtain to his room was lying on the floor in front of his room, but he could not remember how the door curtain was broken; that photograph 14 showed the plates he and PW2 were eating at the time of the incident, and that photographs 14, 15 and 16 showed the table with its glass top broken.

20.PW1 described his relationship with the defendant as friends and he had never argued with the defendant before the incident.  However, he was involved in the argument between PW2 and the defendant on that day.

21.Under cross-examination, PW1 admitted that his recollection of the incident inside his room regarding the table was not very clear, but he denied that the defendant had moved out of the House on 1 August 2014.  He maintained that he had seen the defendant in the House after that day.

22.PW1 admitted that when he was imprisoned for 7 months about two years ago, the defendant had paid upon his request the rent for his room in the House at $1,000 per month for 3 months to ensure that he could return to his room after his release from prison.  He admitted that the defendant had asked him to repay the $3,000 debt but he had not yet repaid.

23.After PW1 had completed his evidence, he was recalled to be further examined by defence counsel upon the defendant’s request.  Under further cross-examination, PW1 testified that the table damaged by the defendant was in fact given to him for use in his room by the defendant about 2 years ago.  He agreed that the table still belonged to the defendant.

PW2

24.PW2 testified that in the afternoon of 31 August 2014, she had prepared some food in the kitchen inside the House.  She then had the meal with PW1 inside his room.  When they were having their meal, they were sitting on the same sofa, and their food and dish plates were put in front of them on the table in front of the sofa.

25.PW2 further testified that while she and PW1 were having the meal, the defendant came.  He stood in front of the door of the room and accused her of breaking some cup and plate in the kitchen.  She denied.  They then had an argument over this matter.  The defendant got angry.  He stamped on the table with his right foot and broke the glass top of the table. 

26.According to PW2, when the glass broke, the glass hit the middle finger of her left hand[4], her right shin just below her right knee, and the big toe joint of her right foot on the side, and she was injured on these parts as shown in photographs 23, 24 and 25 respectively in Album 2 (Exhibit P1).  She bled a lot from these injuries.  She covered the injuries with tissue and cloth but blood was still coming out.  She confirmed that these injuries required stitching when she received medical treatment.

27.PW2 further testified that she was panic after she got injured.  She used her phone to call the police.  After she had called the police, the defendant went away. When the defendant was about to go out, he pulled down the “small small thing for the door to make it nice”[5] which was then left lying on the top of the door mat outside the doorway of PW1’s room as shown in photograph 13 of Album 2 (Exhibit P1). 

28.It was the evidence of PW2 that she never saw the defendant again after he had left PW1’s room on that day.

29.PW2 also testified that at the time when the glass top of the table was broken, the cups and plates on the table were also broken.  PW2 said that these cups and plates belonged to the defendant and PW1.

30.PW2 further testified that after the glass had been broken, PW1 helped her inside the room, but he went out later.  She did not know why he went out.  About an hour later, the police arrived when she was still inside PW1’s room.  She saw PW1 again only after the police had arrived. 

31.In his cross-examination of PW2, Mr. Ng asked PW2 whether she would accept that there was a possibility that she was mistaken when she said it was the defendant who broke the table.  PW2’s answer was “maybe”.

32.Mr. Ng further suggested to PW2 that the defendant could be just trying to step closer to her and PW1 at the time when she said the defendant was stamping on the glass top of the table since the two of them were sitting down on the sofa.  PW2 agreed with the suggestion.

33.PW2 agreed that although the defendant had pulled down “the small small thing” which she had put on the door when he left the room, that “small small thing” was not damaged at all in the sense that she could simply hang it up again. She said that “the small small thing” was just hung with a nail on the top of the door, and she had not checked what if anything had happened to the nail.

34.PW2 also agreed that the two dishes of food as shown in Photograph 16 of Album 2 (Exhibit P1) were not damaged, but she thought they were.  She agreed that the cup and plate that she said to have been broken were normally placed inside the kitchen and belonged to the defendant and PW1.

35.In Re-examination, PW2 testified that she visited PW1 in the House approximately once a week, and that when she visited PW1 in the House, it was not so often that she met the defendant.

Witness statement made by Dr. Wong Sai-hang (Exhibit P6)

36.Doctor Wong testified that he examined PW2 at 5:31 p.m. on 31 August 2014 in Tuen Mun Hospital.  The chief complaint of PW2 to him was limb injury.  He examined PW2 and found her to have sustained a 0.5 cm laceration wound over her right knee, and a 1 cm laceration wound over her left middle finger.  PW2 was treated and discharged. 

Witness statement made by PC17097 (Exhibits P8 & P8A)

37.PC17097 testified that he arrested the defendant on 30 October 2014 for assaulting PW1 and PW2.

Witness statement made by DPC33409 (Exhibits P9 & P9A)

38.DPC33409 testified that he had taken a record of interview from the defendant with the help of a Tamil interpreter and an English interpreter on 30 October 2014 between 3:20 p.m. and 7:35 p.m. 

39.DPC33409 further testified that he escorted the defendant home, and they arrived at the No. 19 address[6], and it was confirmed that this was the residential address of the defendant.

The defendant’s record of interview (Exhibits P10 & P10A)

40.The defendant did not challenge the admissibility of his record of interview as part of the prosecution evidence.

41.After the defendant had been informed of the offences for which he was arrested, he said under caution that he had no connection with this case.  He stated that he had lived in the House for more than 4½ years, and that he lived in Room 1.  He moved out of the House on 1 August 2014, and started to live in Lung Ku Tan. He could not remember clearly the street name, but the house number was 19.  He rented that place, and ISS paid the rent for him.  He admitted that he knew PW1 who was his former neighbour in the House.  He also knew PW2 who was PW1’s girlfriend.

Photo Album 1 (Exhibits P5) and Photo Album 2 (Exhibit P1)

42.Amongst all the photographs produced, the table in question after it had been allegedly damaged was shown in photographs 13 to 17 of Album 2; and the injuries sustained by PW2 were shown in photographs 23 to 27 of Album 2 and photographs 1 to 4 of Album 1.

Criminal record of PW1 (Exhibit P13)

43.According to the criminal conviction summary prepared by the Hong Kong Police Force for PW1, PW1 had 7 previous criminal convictions involving a total of 8 charges, including one charge of attempting to mislead a police officer by false information, and 5 charges of theft, all of which were or could be regarded as offences of dishonesty.

The defence evidence

44.The defendant elected to testify and called two witnesses, i.e. Mr. Vaithilingam Sivaraj (DW2) and Mr. Lakshmanan Gopalakrishnan (DW3).  The defendant referred to DW2 as “Siva”, and DW3 as “Sathish”.  The defendant had duly stated in his alibi notice that these two witnesses would be called to give evidence.

The defendant

45.The defendant testified that his place of residence in Hong Kong was provided by International Social Service (“ISS”) in that after he had entered into his tenancy agreement with his landlord, ISS would pay the rent due each month to his landlord directly.  In addition, ISS would also pay $200 each month directly to his landlord to cover his water and electricity charges, but he had to pay for the balance if any.  ISS would also supply him with food provisions so that he needed not buy food.  ISS would give him $200 each month for travelling.  Other than that, he had no other source of income in Hong Kong.

46.The defendant further testified that he had lived in the House for 4½ years but he moved out to live with his friends DW2 and DW3 at the No. 19 address from 1 August 2014 onwards.  He wanted to move away for two reasons.  First, when it rained heavily, water dropped and leaked into the House.  Second, the water and electricity charges were very high.  He had written a letter to ISS to inform ISS that he had moved out of the House.

47.As to how it came about for him to stay with DW2, the defendant testified that there were 4 rooms with 4 occupants in the No. 19 address.  About two weeks prior to 1 August 2014, DW2 told him that one of the occupants was going to move out but DW2 did not know when.  He then agreed with DW2 that he would share DW2’s room before that occupant moved out, and that he would pay $1,000 a month inclusive of water and electricity charges to DW2 for sharing his room. The intention apparently was that he would take over the room of that occupant once he moved out.

48.The defendant produced a tenancy agreement for the No. 19 address (Exhibit D2).  It was for a term of one year and one day from 1 February 2015 to 1 February 2016.  He testified that the tenancy began on 1 February 2015 because the original occupant moved out only on 31 January 2015.

49.The defendant maintained that about 3 p.m. on 31 August 2014, he was inside DW2’s room at the No. 19 address with DW2 and DW3.  They were watching a movie on the internet after they had their meal.  He denied he was inside the House at all at the time of the alleged offences.

50.According to the defendant, when he moved out of the House, he only took away his computer, his television and some of his clothes from his room, and he had not taken away anything else.  He did not know whether his room was locked up after he had moved out.  He had left a mattress, a cupboard where the television was kept, and a showcase inside the room.

51.Concerning the table said to have been damaged inside PW1’s room, the defendant testified that this table belonged to him.  He said that about two years ago, a showcase was taken to his room and he did not have enough space.  He therefore asked PW1 to keep the table inside PW1’s room.  He further told PW1 that when he needed the table, he would take it back.

52.The defendant agreed that PW1 was his neighbour when he was living in the House. He had known PW1 for 4 to 5 years.  He said that when PW1 was serving a term of 7 months’ imprisonment two years ago, ISS did not pay rent for PW1 since he was in jail, but PW1 had a lot of things inside his room.  He therefore helped PW1 by paying rent for PW1 for 3 months at $1,000 a month.  PW1 however failed to repay him the $3,000 even though he asked PW1 for repayment every month or very frequently.  Furthermore, since he needed money for moving to his new address, he asked PW1for repayment when he moved out on 1 August 2014.  He could not recall whether he asked PW1 again on 31 August 2014.  He had however made 3 to 4 phone calls to PW1 in between but PW1 did not answer his calls.

53.Under cross-examination, the defendant admitted that he had signed a tenancy agreement for the address at DD130, Lot 309 Hong Po Road, Tuen Mun (“the Hong Po Road address”) for a term of one year from 1 September 2014 to 31 August 2015.  He also admitted that he had provided that tenancy agreement to ISS, but he maintained that he had never lived there.

54.The defendant further testified that he could remember he was inside DW2’s room together with DW2 and DW3 in the afternoon of 31 August 2014 because they had an argument as to how to pay the electricity bill since all of them had no money.  He said that he was asked to pay the $1,000 to DW2, and 31 August 2014 was the due day for the first payment to be made to DW2.  However, he had no money, and he had to pawn his gold chain.

DW2

55.DW2 testified that he came to Hong Kong in 2007 from Tamil Nadu as a refugee and a torture claimant.  He was living in a room at the No. 19 address.  There were 4 rooms there.  He had known the defendant for 3 years.

56.DW2 further testified that he could remember that at about 3 p.m. on 31 August 2014, he was inside his room in the No. 19 address with his friends, i.e. the defendant and DW3. 

57.According to DW2, the defendant started staying with him in his room from 1 August 2014 onwards.  He further said that one or two weeks before the defendant came to stay with him, the defendant called him on the phone and asked him to find a room for him.  He told the defendant that he was unable to pay the electricity and water bills, and he asked the defendant to pay him $1,000 and shared his room.  He asked the defendant to come and stay with him since the defendant was his friend.  He also told the defendant that a person living in that address was moving out, and when that person moved out, he would “put an agreement” for the defendant for that room.

58.DW2 testified that he could remember what had happened in the afternoon of 31 August 2014 because he and the defendant were discussing about payment of rent at that time.  He said that he and the defendant had discussed before that the defendant had to pay his rent at the end of the month.  He testified that the defendant pawned his jewellery and paid him the rent two days later.  He said DW3 was also present in the discussion.

DW3

59.DW3 was also a holder of Form 8 with the Immigration Department.  He came to Hong Kong on 15 August 2013.  He was a torture claimant.  He lived in the No. 19 address.  He had known DW2 since May 2014.  He had his own room in the No. 19 address.  DW2’s room was next to his room.

60.DW3 testified that he came to know the defendant when the defendant moved into the No. 19 address to stay with DW2.  It was his evidence that the defendant moved into his house on 1 August 2014.

61.DW3 further testified that he remembered that around 3 p.m. on 31 August 2014, he was at home.  In that afternoon, he was together with the defendant and DW2 in DW2’s room watching a movie.  He could remember what had happened in that afternoon because they had to pay the house rent to the landlord the following day and they discussed about the money. 

62.Under cross-examination, DW3 testified that they had decided in the discussion on 31 August 2014 that they would pawn the defendant’s chain to pay for the water and electricity bills.

The directions

63.I direct myself that the burden is on the prosecution to prove each and every element of each charge against the defendant beyond reasonable doubt.  Although the defendant had given evidence and called witnesses, it does not mean that he has the burden to prove what he and/or what his witnesses had testified are true or might be true.  It is trite law that he is not required to prove anything.  However, since the defendant and his witnesses had testified, I must take into account everything that had been said by them when I am considering the issues of fact that have to be determined. 

64.The burden and the standard of proof remain unchanged even though the defendant has raised the defence of alibi specifically.  He is not required to prove that his alibi is true or may be true.  On the contrary, it is for the prosecution to disprove the alibi beyond reasonable doubt, and if it fails to do so, the defendant must be acquitted.

65.There are two charges to be determined.  I must consider the verdict for each charge separately according to the evidence pertaining to that charge.  I am well aware that these two charges do not stand or fall together except that if the prosecution fails to disprove the defendant’s alibi beyond reasonable doubt, the defendant must be acquitted of both charges.

Evaluation of the evidence

66.The evidence of PW1 and PW2 that the glass top of the table was damaged and that PW2 was injured inside PW1’s room in the House in the afternoon of 31 August 2014 is not really in dispute.  Nor is the evidence disputable.  The photographs taken by the police that afternoon provided an incontrovertible record that the glass top of the table had been broken into pieces.  The police photographs also showed blood on the floor of the room.  A piece of tissue or cloth soaked with blood was also lying on the ground.  The police photographs likewise documented the wounds sustained by PW2 on her left middle finger, her right shin and her right foot both before and after these wounds had been stitched.  There was also evidence from Doctor Wong on his medical examination of PW2.  In my view, the evidence was overwhelming that an incident had occurred in the afternoon of 31 August 2014 inside PW1’s room during which the glass top of the table inside the room was broken and PW2 was wounded.

67.Before I deal with the core issues in this case, I wish to point out that while the particulars of Charge 1 had alleged that the defendant had damaged not only the table but also other property belonging to PW1 including one door curtain, one cup and one dish, there was no evidence from PW1 that such other property had been damaged.  On the contrary, PW1 had said during cross-examination that the defendant had only broken the glass.  He had also been referred specifically to photograph 13 of Album 2 (Exhibit P1) which showed that the door curtain to his room was lying on the floor, but he could not remember how that came about.

68.As far as the evidence of PW2 on the property damaged inside PW1’s room was concerned, PW2 described the door curtain as “the small small thing for the door” which was hung on a nail on the top of the door.  It was the evidence of PW2 that the defendant pulled down the door curtain when he left PW1’s room after she had called the police.  She however agreed under cross-examination that she had not examined the door curtain after it had lain on the floor, and that the door curtain could just be hung up again.  There was therefore no or no clear evidence from PW2 that the door curtain had been damaged.  PW2 had also testified that some cup and plate on the table top had been damaged. However, photographs 14 to 16 of Album 2 (Exhibit P1) showed the two plates containing dishes were intact, and all police photographs did not show any fragments that could be attributed to a broken cup or plate.  I find PW2’s evidence insufficient to prove beyond reasonable doubt that a cup or a plate had been damaged in the incident.

69.For these reasons, I find that amongst all the items particularized in Charge 1, the prosecution has only managed to prove that the glass top of the table but not any other items had been damaged in the incident.  However, it is trite law that the prosecution is not required to prove all the items particularized in Charge 1 had been damaged by the defendant before he could be convicted of that charge, provided that he had criminally damaged at least one of the items referred to in the charge.

70.In light of these findings, the remaining issues that fall for determination are:

(1) Was the defendant present inside PW1’s room?

(2) Did he damage the glass top of the table, and/or wound PW2?

(3) Did he commit the offence of criminal damage?

(4) Did he commit the offence of wounding?

Was the defendant present?

71.Both PW1 and PW2 testified that the defendant was present inside PW1’s room during the incident on 31 August 2014, whereas the defendant, DW2 and DW3 testified that the defendant was inside the No. 19 address. 

72.It is common ground that when the incident occurred on 31 August 2014, the defendant was not a stranger to PW1 and PW2.  By that time, PW1 had been the next door neighbour of the defendant for 4 years, and PW2 had known him for 2 years.  In addition, it was the evidence of PW1 and PW2 that, at the time of the incident, they had engaged in verbal argument with the defendant.  While there was no direct evidence of how long the incident had lasted, it was clear from the evidence of PW1 and PW2, if they were telling the truth, that the incident did not happen within split of a second but had lasted for some length of time during which they were in close quarter and had direct verbal interaction with the defendant who was known to them for years.  There was therefore no room for PW1 and PW2 to make an honest but mistaken identification of the defendant, and this is a case where PW1 and PW2 had either told the truth or lied.  This is an issue that can only be resolved by assessing the credibility of various witnesses and the reliability of their evidence.  Of course, even if I find PW1 and PW2 to be honest and reliable, but if I cannot say for sure that the evidence of the defendant and his witnesses were untrue and could not possibly be true, I must find that the prosecution has failed to disprove the defendant’s alibi.

73.In considering the evidence of PW1, I note that he had asked on more than one occasion, both outside and inside court, to withdraw the case against the defendant.  He explained his request on the basis that he did not want to cause hardship on the defendant because they were fellow refugees. 

74.In my view, PW1’s request to withdraw the case against the defendant does not shed light one way or the other on whether he was giving truthful or untruthful evidence.  On the one hand, it may be said that if he did not want the defendant to be convicted, there would be no reason for him to give untrue evidence to implicate him.  On the other hand, it may also be said that he was just using a splendid excuse to withdraw a case which he knew was built upon his false or unreliable evidence, and that when he failed in his request, he was forced to stick to his untrue version of events when he testified.  In light of these two conflicting but equally likely possibilities, I am of the view that I should ignore PW1’s requests to withdraw the case completely in my deliberation exercise, and that I must assess his evidence in the same way as any other witnesses, be he for the prosecution or the defence, as if he had never made those requests.

75.Mr. Abbott submitted that it had never been suggested by the defence that PW1 had maliciously implicated the defendant in these alleged offences.  But the defendant did say during cross-examination that there might be a reason for the defendant making deliberate and wrongful accusation against him, and that the reason was he had frequently requested or demanded PW1 to repay him a debt of $3,000 and PW1 had consistently failed to do so.

76.I have considered the evidence of PW1 and that of the defendant on this point very carefully.  I remind myself that the defendant was under no duty whatsoever to explain why PW1 had given evidence against him.

77.When Mr. Ng asked PW1 whether the defendant had paid rent for him for 3 months amounting to $3,000 when he was serving a term of 7 months’ imprisonment two years ago, I note that PW1 admitted his debt without any hesitation.  He also admitted right away upon being asked that he had not yet repaid the loan.  I find that PW1 was completely candid and truthful in this part of his evidence, and I detect no sign that he had attempted to hide his indebtedness towards the defendant.   His answers to Mr. Ng’s questions, and the demeaour in which he answered them, did not give me any impression that he was using the criminal prosecution as a means to evade or delay his liability to repay the debt he owed to the defendant.

78.As to the defence evidence, it is true that the defendant had testified that he had asked PW1 to repay him frequently and yet PW1 still failed to do so. However, what the defendant had done to obtain repayment from PW1, according to his own evidence, was simply that he asked PW1 for the money once a month, but whenever he asked, PW1 said he would pay in the following month, and the defendant would then just wait for another month before he asked PW1 for repayment again.  He had therefore granted indulgence from time to time to PW1, and he explained his tolerance of PW1 on the ground that they had been friends for 4 to 5 years.  He also maintained under cross-examination that he had not become impatient with PW1 despite PW1’s repeated failures to repay.  It is therefore clear from his evidence that even though PW1 had consistently failed to repay him, he had not done, and had not even threatened to do, anything unpleasant and indeed anything at all to press for repayment from PW1.  Under these circumstances, it was just inherently improbable for PW1 to do anything to avoid or delay the repayment to the defendant since it was wholly unnecessary for him to do so, not to mention the even more improbable possibility for PW1 to pervert the course of justice by fabricating evidence against the defendant, thereby committing a criminal offence himself.

79.In light of the defendant’s evidence, Mr. Abbott therefore asked the defendant how this loan could have been a reason for PW1 making false accusation against him.  The defendant answered that after he had left the House on 1 August 2014, he phoned PW1 to ask for repayment 3 to 4 times but PW1 did not answer his calls. Assuming his evidence to be true, it just meant that after he had moved out, he had never spoken to PW1 at all.  If so, it meant that PW1 might not even know that the defendant was chasing after him for repayment, and hence he would not have done anything about it.  Even if he knew, he had by not receiving the defendant’s phone calls already avoided or delayed the repayment, and he needed to do nothing else.  I note that the defendant had never testified that he had done anything else to press PW1 for repayment other than making those alleged phone calls.

80.Having considered the evidence as a whole, I am sure that there was no basis upon which I could hold or infer that PW1’s indebtedness to the defendant had or might have caused PW1 to fabricate evidence against the defendant.  I reject the defendant’s evidence in this regard.

81.In assessing the credibility of PW1 and the reliability of his evidence, I also note the inconsistencies within his evidence. 

82.The first major inconsistency was that when PW1 testified in chief, he said that PW2 had an argument with the defendant after the defendant had broken the glass top of the table; but his evidence during cross-examination was that these two events happened in the reverse order.  When Mr. Ng confronted PW1 of the inconsistency, PW1 explained that he just said what he could remember when he was questioned by Mr. Ng and he did not recall what he had said earlier in Court.  I find this inconsistency minor and immaterial.  In any event, the version of events given by him under cross-examination was consistent with the evidence given by PW2.  In addition, it appeared to me that PW1 was just testifying from his memory.  Had he discussed and agreed with PW2 as to what false evidence to give, it would be most unlikely that he would have given an inconsistent account on this major factual point of the incident.

83.The second inconsistency was that PW1 had testified in chief that it was the defendant who hit him with a metal pole on his forehead outside the House but he admitted under cross-examination that he was not sure that his assailant was the defendant.  His admission of course benefitted the defendant and it was on the basis of this piece of evidence that Charge 3 was dismissed.  I note however that his admission in favour of the defendant did not come about as a result of rigorous or searching cross-examination that gave him no alternative but to admit that he was not sure of his identification.  On the contrary, once Mr. Ng put his case on this point to PW1, PW1 made the admission at once and explained further that he was not sure of his identification because he got the shot on his forehead.  I also note he had said in his evidence-in-chief that his assailant was coming from the behind of him.  I am of the view that there was no ground to hold PW1 to be a discredited liar.  Nor do I think that he was a person who made reckless accusation regardless of the truth.

84.I also note Mr. Ng’s criticisms of PW1 that he could not remember many details of the incident inside his room in the afternoon of 31 August 2014.  It is clear that, apart from the inconsistent accounts he had given about whether the defendant broke the table first or argued with PW2 first, he admitted under cross-examination that he could not remember details including how the glass top of the table was broken, for how long the defendant had shouted during the argument, how the door curtain of his room came to be lying on the ground, whether there was a piece of cloth soaked with blood on the floor, and whether his assailant outside the House had carried anything.  Mr. Ng summarized his cross-examination of PW1 by asking PW1 whether he would accept that his recollection of the entire incident involving the glass top inside his room and the hitting of him on his forehead was not clear.  PW1 replied, “Yes, I cannot remember.”

85.As to the last answer given by PW1, I am of the view that I should be very cautious to find out what exactly that PW1 could not remember.  To say the least, this question of Mr. Ng was a double barrel question in that Mr. Ng suggested to PW1 that he could not remember two matters, firstly, the entire incident involving the glass top of the table, and secondly, the incident involving hitting his forehead.  It was not clear whether PW1 agreed that he did not remember one or both of these two matters.  Of course, when this question was put, PW1 had already said he was not sure if the defendant was his assailant outside the House. Hence, PW1 might not mean he could not remember about the incident involving breaking of the glass table top at all.

86.Furthermore, before this wrapped up question was put by Mr. Ng, Mr. Ng in fact started off this line of cross-examination by referring to PW1 to his evidence-in-chief, during which PW1 said “I cannot remember” in response to Mr. Abbott’s question, “You said he came in and broke some glass, would you just tell us how that happened please?  Did he say anything?”  The same ambiguity from an answer to a double barrel question arose.  It was not clear whether PW1 meant to say that he could not remember how the defendant broke the glass top of the table, or he could not remember whether the defendant had said anything when he came into PW1’s room.  If he meant the latter, that was in fact consistent with another part of his evidence when he mixed up the sequence of events concerning whether the defendant broke the glass top of the table first or argued with PW2 first. As to whether PW1 meant the former, I note that Mr. Ng put to PW1, “You told the court yesterday when you were asked how the glass top was broken and you said you could not remember?”, and PW1 agreed.  In my view, the weight to be attached to PW1’s answer, which appeared to be favourable to the defence case, was detracted heavily by the very question put by Mr. Ng.  In his question, Mr. Ng purported to refer to PW1’s evidence-in-chief, but I note when I consider the evidence that Mr. Ng had not quoted PW1’s evidence correctly because Mr. Ng was in fact referring to PW1’s ambiguous answer to the double barrel question of Mr. Abbott.  Of course, PW1 agreed with Mr. Ng when Mr. Ng specifically put to him that he had said earlier in Court he could not remember how the glass top was broken.  However, it would not be easy for a witness to disagree with counsel when counsel purported to quote his earlier evidence because it would be easy for a witness to presume that counsel was quoting the evidence correctly.  In fact, I had assumed at the time when the question was put that Mr. Ng had quoted the evidence correctly.

87.In any event, I am sure that, even if PW1’s recollection of the entire incident involving the glass top inside his room was not clear, he could still give some details about the incident and I could detect no sign that he had not personally witnessed the incident.  After he had answered that double barrel question from Mr. Abbott, just two questions later, Mr. Abbott asked PW1 again how the defendant damaged the table.  PW1 replied, “From his leg.”  He was telling the Court in no ambiguous term that the defendant used his leg to damage the glass top of the table, although he had not elaborated how the defendant used his leg, but he had never been asked to give those specific details.  In cross-examination by Mr. Ng, after PW1 admitted that he was not sure the defendant was the assailant outside the House, Mr. Ng asked PW1 whether he was likewise unsure that it was the defendant who broke the table inside his room, PW1 was adamant that it was the defendant. 

88.Having considered the whole of PW1’s evidence, I am sure that even if PW1 could not remember some or even many specific details of the incident involving breaking of the glass top of the table, he did remember clearly that it was the defendant who came into his room and broke the glass top of the table with his leg.  He was consistent throughout in this part of his evidence which had not been shaken under cross-examination.

89.In addition, it appears to me that it was inherently improbable for PW1 to fabricate the presence of the defendant inside his room in the afternoon of 31 August 2014.  It was because if PW1 was making up the evidence, he would be running a huge risk of having his lie uncovered because he simply did not know where the defendant was at that point of time, who the defendant was together with, and whether the defendant could produce incontrovertible evidence that he was elsewhere, like the defendant’s presence inside a convenience shop might be captured by the CCTV installed there.

90.Having considered the evidence of PW1 as a whole, I have no room for concern that his evidence about the defendant entering his room in the afternoon of 31 August 2014 and breaking the glass top of the table as being untrue or unreliable.

91.As to the evidence of PW2, Mr. Ng submitted that PW2 had accepted in her evidence that she might be mistaken as to the identity of the person who had entered PW1’s room and broke the table.

92.I have considered the evidence of PW2 very carefully.  In my view, the question and answer referred to by Mr. Ng, when they were considered on the face of them, did support Mr. Ng’s submission, but the weight to be given to this answer of PW2 has to be assessed in its context.  When Mr. Ng started off his cross-examination of PW2, Mr. Ng told PW2 right away that the defendant’s case was that he was not inside the room when the event happened.  PW2 asked back, “He was not inside the room?”  PW2 was clearly puzzled by what Mr. Ng had said when it had been her evidence all along that the defendant was inside PW1’s room.  Mr. Ng then asked PW2 whether she could be mistaken when she said it was the defendant who broke the table.  PW2 asked, “What do you mean?”  Mr. Ng put his case again, and PW2 asked, “You mean [the defendant] did not break the table?”  After Mr. Ng had replied in the affirmative, PW2’s response was, “I am confused.”  Mr. Ng then said, “Let me try again.  You told the court that [the defendant] came into the room and broke the table.”  PW2 said, “Yes.”  By that response, she was merely telling Mr. Ng that she was listening to what Mr. Ng was saying to her.  Mr. Ng went on to say, “[The defendant] through me told you that he did not do it.  He was not there.  Do you accept there was a possibility that you were mistaken when you said [the defendant] did it?”  It was only after that PW2 replied, “May be.”  This was the very answer of PW2 upon which Mr. Ng made his submissions.  However, from the exchanges between Mr. Ng and PW2, it is clear to me that PW2 did not really understand why Mr. Ng kept on saying to her that the defendant had not broken the table when it was her evidence that it was the defendant who did it.  She was under that confusing state of mind when she said “may be” in answer to Mr. Ng.  I do not consider PW2 was really accepting that she was or might be mistaken in her identification of the defendant.  She just did not want to entangle with Mr. Ng on this issue.  In any event, I do not regard this answer of PW2 cast doubt on the evidence of PW1.

93.Having considered the evidence, I cannot find any motive for PW1 and/or PW2 to make up false evidence against the defendant.  On the contrary, with or without the support of PW2’s evidence, I find that PW1 had provided convincing evidence that the defendant was present inside his room in the afternoon of 31 August 2014 when the incident occurred.

94.I now turn to the defence evidence. 

95.It is readily apparent that there are a number of points in favour of the defence evidence.  First, when the defendant was arrested on 30 October 2014 and was first confronted with the prosecution allegations, the defendant said immediately under caution that he was not present inside PW1’s room at the material times.  He further stated that he was living at the No.  19 address. He also took the police to the No. 19 address and it was the evidence of DPC33409 that the No. 19 address was confirmed to be the defendant’s residential address. Second, his evidence in Court was entirely consistent with what he had said under caution.  Third, the evidence of DW2 and DW3 fully supported that of the defendant.  All of them provided the same version of events to this Court, namely, the defendant had moved to stay in the No. 19 address to share a room with DW2 on 1 August 2014, and that all of them were staying inside DW2’s room watching a movie via the internet in the afternoon of or about 3 p.m. on 31 August 2014.

96.On the other hand, I note that the defendant was not arrested until about 2 months after the event in question had occurred.  This was therefore not a case where the defendant had no opportunity to prepare for an alibi in advance of his arrest.  Of course, I am only referring to the possibility at this stage as I have not yet started my evaluation of the evidence.  Likewise, the defendant and his witnesses certainly had time available for them to discuss their evidence if they wanted to before they testified in Court.  Again, whether or not they had done so is a matter to be decided.  For the sake of record, I am of the view that, even if they had discussed their evidence, I see nothing wrong so long as they had not collaborated to give false evidence. 

97.All in all, I am of the view that the mere fact that the defence evidence had been consistent throughout does not necessarily mean that it was true or that it might possibly be true, though consistency in evidence was a matter that I needed to take into account in favour of the defendant.  On the other hand, I am duty bound to decide the credibility and reliability of the defence evidence on the basis of its inherent credibility and/or probability. 

98.The defendant, DW2 and DW3 had testified that the defendant moved out of the House on 1 August 2014 and started to share a room with DW2 from that day onwards in the No. 19 address.  The following background facts are in my view crucial in the assessment of the defence evidence.

99.First, the defendant accepted in evidence that his accommodations in Hong Kong were provided by ISS.  In respect of each accommodation, he entered into his own tenancy agreement with his landlord, and ISS paid rent directly to his landlord each month.  In addition, ISS also paid directly to his landlord $200 a month to cover the whole or part of his water and electricity charges, with the balance if any to be paid by him.  In other words, the defendant was not required to pay out of his own pocket any money for his accommodation, and he needed not pay at all or paid $200 less a month to his landlord for his water and electricity charges so long as he was living in the accommodation provided by ISS.

100.Second, the defendant was given $200 cash each month to be used as travelling expenses by ISS.  He was given no other sum of cash.  He was not given money to buy food because he was not required to do so as ISS gave him food provisions.  He had no other source of income.  In other words, he had at most $200 cash to spend each month, assuming that he did not use that sum of money in travelling at all.

101.Third, the defendant testified under cross-examination that he entered into his tenancy agreement with his landlord for his room in the House on 14 May 2010[7].  When Mr. Abbott put to him that this tenancy would continue up to 14 November 2014, he replied, “Yes, maybe.”  The defendant also admitted in the later part of his cross-examination that ISS had paid rent on his behalf for his room in the House until the end of the tenancy on 14 November 2014 although he had entered into another tenancy agreement for another premises (which was the Hong Po Road address) before that day with another landlord.  I shall go into more details on this matter later.

102.In assessing the veracity of the defence evidence, the evidence of the defendant and his witnesses on the following matter is also revealing.  The defendant had testified that he moved out of the House on 1 August 2014 to stay in the No. 19 address and share the room of DW2 because he wanted to take over the room to be left behind by one of the occupants there.  It was also the evidence of the defendant and his witnesses that at the time when the defendant moved out of the House on 1 August 2014, he was well aware that while that occupant would move out sometime in the future, it was unknown when that occupant would actually move out.  I note that it was the evidence of the defendant that the outgoing occupant eventually moved out of the No. 19 address by the end of January 2015, and that he produced in evidence a tenancy agreement for renting the No. 19 address for one year and one day with the tenancy commencing on 1 February 2015 (Exhibit D2).  It meant that the defendant had paid out of his own pocket a total of $6,000 to DW2 for the period from 1 August 2014 to 31 January 2015 if the evidence of the defendant and his witnesses were true.  The quantum of the payment was therefore crystallized at $6,000 by the end of January 2015, but at the time when the defendant moved out of the House on 1 August 2014, he would not have known how much that sum would be, since he did not know when the outgoing occupant of the room would move away.

103.On the basis of this factual background and the defence evidence, the defendant and his witnesses were therefore saying that on 1 August 2014 when the defendant gave up his accommodation in the House, what he had done was that, although the tenancy agreement for his accommodation in the House had not yet expired, he preferred to give up this accommodation for which he was not required to pay a single cent for rent and in which he occupied a room entirely of his own, for the sake of taking up another accommodation in the No. 19 address in which he had to share a room with DW2, and for which he had to pay $1,000 a month out of his own pocket for an unspecified period of time.

104.In my view, such an accommodation arrangement allegedly entered into by the defendant simply did not make sense at all because, as a matter of money spending, nobody would have made the kind of choice allegedly made by the defendant, i.e. spending money on something when it was unnecessary to do so (i.e. paying rent out of his own pocket when ISS was paying his rent) but getting a return poorer than before (i.e. using a shared room instead of one whole room all by himself).

105.If the evidence of the defendant and/or that of his witnesses were true, or might be true, there ought to be at least one reason that could explain why the defendant would have taken this course of action.

106.Although the defendant did not specifically say how many reasons he had that justified his decision to move out of the House on 1 August 2014 to share a room with DW2 at the No. 19 address, he had put forward 4 reasons according to my understanding.

107.The first reason he gave was the water leakage problem in the House.  He said that when it rained heavily, water dropped into the House and leaked from the sides, but it was also his evidence that he had lived in the House for 4½ years.  It meant that, in my view, even if there were such a water leakage problem, he had already tolerated the problem for a very lengthy period of time, and that it was not and could not be such a hardship that would have caused him to move out of the House forthwith at all cost before proper arrangement was put in place first.  As the person to be directly affected financially if ISS did not pay for his rent, the defendant clearly knew that before he moved out of the House, he ought to have first entered into another tenancy agreement to replace the existing one, and obtained the approval of ISS to the new tenancy, so that his new rent as well as the $200 monthly subsidy for water and electricity charges would be paid continuously by ISS for him.  It did not make sense financially or otherwise why he had to pay for his accommodation when ISS had paid and would pay for him, not to mention that he had no or insufficient income to pay $1,000 a month to DW2 for an indefinite period of time.  However, according to his evidence, the defendant had moved out of the House before he made any arrangement for ISS to pay for his new accommodation.

108.The second reason referred to by the defendant was the very high electricity and water charges for living in the House.  The defendant testified under cross-examination that electricity for the common area, the hall light, the toilet light, and the light in the walking area out of the House were paid by the house owner, and he was only required to pay for electricity in his room. He also said everyone in the House had a separate electricity meter.  It followed that the amount of electricity charges he had to pay each month depended entirely upon the quantity of electricity he had consumed.  He said that there was only one light bulb in his room, but he had to pay electricity charges as high as between $700 and $900 a month.  In my view, it seems not credible that he needed to pay such a large sum of money for electricity.  While there was no direct evidence from the prosecution as to how much he had paid, it appears to me, as a juror using my daily experience of life, it was most unlikely that the electricity charges for one light bulb would be as high as $700 to $900 a month even if the light bulb had been turned on round the clock.  It is also most unlikely for the landlord to charge him more than the amount of electricity actually consumed by him as he had separate electricity meter, and he could always ask for the electricity bill for his own meter for verification.  Furthermore, since ISS paid only $200 a month to the landlord directly to cover part of his water and electricity bills and the defendant had to pay the balance himself, it was just inherently impossible for him to be able to pay for a high amount of electricity charges from time to time, and it would have been unreasonable for ISS to require him to do so either.  His evidence was that he received only $200 cash a month from ISS with no other source of income.  If his evidence about the quantum of the electricity charges were true, he would not be able to pay the balance of the electricity charges for any one month, not to mention that he had to do so continuously for 4½ years before he moved out of the House.  There was no evidence at all that he owed his landlord of the House any electricity charges.  In my view, the defendant’s evidence on the amount of electricity charges he had to pay was inherently untrue even though there was no direct evidence on how much that amount was.  In any event, it did not make sense that in order to avoid payment of electricity charges of $700 to $900 a month, the defendant would have agreed to pay $1,000 a month out of his own pocket.  In my judgment, this account was simply improbable and incredible.

109.The third reason put forward by the defendant was that he intended to take over the room to be vacated by one of the 4 occupants in the No. 19 address.  By moving into that address on 1 August 2014, he said he could rent the room immediately after that occupant had left.  However, in my view, he could still have that renting priority without giving up his existing accommodation in the House and paying $1,000 a month out of his own pocket.  He could have contacted the landlord of the No. 19 address before that occupant moved out, and made it clear that he wanted to rent the room to be left behind by the outgoing occupant once that room was available.  If the landlord agreed, he got the priority.  He needed not give up his existing accommodation in the House; if the landlord refused, it was pointless for him to give up that accommodation. If the landlord said he would only deal with the tenancy matter after the outgoing occupant had actually moved out, it was again pointless for him to move out of the House on 1 August 2014.  In order to gain priority over other would-be tenants, he could simply ask DW2 to watch out for him when that outgoing occupant was moving out, and I have no doubt that DW2 would have agreed to help him, since their relationship was so close that they could share a room with one another.  Once the defendant was provided with the information when this occupant was going to move out, he could discuss with the landlord forthwith to rent that room, and he would not lose his priority in renting the room.  In short, in none of the scenarios was there such a necessity for the defendant to move out of the House on 1 August 2014.  I do not believe at all that the defendant did not know or could not have envisaged these options were available to him if his evidence were true.  The fact that he had not taken up any of these options led to the only reasonable and irresistible conclusion that the alleged wish to get priority in renting the room to be left behind by the outgoing occupant of the No. 19 address could not be the true reason for him to move out of the House on 1 August 2014.

110.The fourth reason put forward by the defendant was that he would like to stay with his friends.  Mr. Ng submitted that the company of kinsmen should also be considered in the defendant’s circumstances.  That was of course a factor to be considered.  However, DW2 had known the defendant for 3 years, and they had not lived together for a period of time.  There was simply no reason why the defendant could not have waited until after that occupant had moved out before he joined DW2.  Besides, it was inherently incredible that the defendant would have, for the sake of staying together with his clansmen, entered into the accommodation arrangement with the financial implications as stated above.

111.All in all, I find that none of the reasons put forward by the defendant, whether each on its own or in combination of one another, could have been the reason to cause the defendant to move out the House on 1 August 2014.

112.There was also the question whether the defendant’s alleged choice of moving out of the House on 1 August 2014 to share a room with DW2 was financially feasible. He received only $200 cash a month from ISS, which was not even sufficient to pay off DW2, not to mention that he undoubtedly needed some money for travelling, and the $200 were given to him for that very purpose.  He admitted that he had no source of income in Hong Kong.  While it was not known how much capital reserve he had in Hong Kong, it was apparent that he had little money. It was the evidence of the defendant and his witnesses, if their evidence were true, that when the defendant had to make the first payment of $1,000 to DW2 for his stay in the No. 19 address, they had to hold a discussion on 31 August 2014 in the afternoon, and it was decided that the defendant should pawn his gold chain for that purpose.  The defendant said he did pawn his gold chain at $10,000 to pay DW2.  It meant that the defendant did not even have the money to make the first payment to DW2 at the time when he moved out of the House on 1 August 2014.  Furthermore, it was inherently incredible for the defendant to enter into financial obligations of the kind for an indefinite period of time.  He had been staying as a torture claimant in Hong Kong since 2009, and it was not known when his application would be determined one way or the other.  For living in Hong Kong, he needed to have money as much as possible in his reserve to pay for whatever that was not provided by ISS on a long term basis.  It was simply nonsensical that he would have agreed to pay $1,000 a month to DW2 for an indefinite period of time just for the sake of waiting for the availability of a room, when he had already had a room for him to use in the first place, and when his financial resources could not allow him to spend money indiscriminately.

113.Furthermore, there was another piece of evidence that was very telling against the defendant.  He admitted under cross-examination that he had signed a tenancy agreement with the landlord of the Hong Po Road address for a term of one year commencing on 1 September 2014.

114.I note that when the defendant was first asked about this tenancy agreement, he admitted it without any reservation, although he also said that he had never lived in this address.  However, when he was asked further about this tenancy agreement, he started to say that he was not sure when he signed this agreement, and he could not recall when this tenancy agreement started to run. He also said that the landlord of the Hong Po Road address had made some mistake in the tenancy agreement so that ISS did not approve it.  I find the defendant evasive in this part of his evidence.  I find his initial admission under cross-examination, i.e. he had signed a tenancy agreement for the Hong Po Road address with the term to commence on 1 September 2014 to be true.  I find the commencement date of this tenancy agreement, irrespective whether or not the defendant had actually lived in that premises, detrimental to the defence case for the following reasons.

115.First, if the evidence of the defendant were true, there was no reason whatsoever for him to sign this tenancy agreement for the Hong Po Road address for one year commencing on 1 September 2014 because, according to his evidence and that of his witnesses, he had already moved into the No. 19 address on 1 August 2014 to share DW2’s room, and he would not have the slightest intention of terminating that sharing and looking for another room elsewhere because he was at that time waiting for the outgoing occupant of the No. 19 address to move away so that he could rent that room.  He would also not be benefitted financially by entering into this tenancy agreement because even if ISS had approved the tenancy, ISS would have paid the rent directly to the landlord of the Hong Po Road address and not to anybody else.

116.Second, the commencement date of this tenancy agreement coincided exactly with the evidence of PW1 and PW2 who both testified that after the defendant had damaged the table inside PW1’s room and injured PW2 in the afternoon of 31 August 2014, the defendant was never seen in the House again.  The necessary implication of their evidence was that the defendant needed to find another place to live after he had left the House on 31 August 2014, and the fact that the defendant signed a tenancy agreement to commence exactly on 1 September 2014 was entirely consistent with their evidence.  There was no question that PW1 and/or PW2 had tailored their evidence in this respect because there was no evidence, and indeed no suggestion, that PW1 and/or PW2 were aware of the fact that the defendant had signed this tenancy agreement for the Hong Po Road address.

117.Having considered all the evidence in this case, for the reasons that have been explained, I have no doubt whatsoever that the defence evidence that the defendant had moved out of the House on 1 August 2014 and shared a room with DW2 in the No. 19 address from that time onward to be untrue, and might not possibly be true.  My finding is supported by the fact, as testified to by the defendant, that when he left the House, he had not taken away from his room in the House all his property.  He said he had left behind a mattress, a cupboard and a show case inside his room, and he did not know whether his room had been locked up after he had moved out.  His conduct led to the only reasonable and irresistible inference that he had never personally surrendered vacant possession of his room in the House to the landlord.  If he had vacated from the House in the circumstances as he had alleged, there was simply no reason why he would not have done so either on the day he left or shortly thereafter.  The fact that he had vacated from the House without knowing what happened to his property inside tended to show that he moved away from the House in a hasty manner which was also entirely consistent with the evidence of PW1 and PW2.

118.Since I have no doubt whatsoever that the defendant had not moved out of the House on 1 August 2014 and shared a room with DW2 in the No. 19 address from that day onwards, it follows that I do not believe it to be true or might be true that the defendant, DW2 and DW3 had a discussion in the afternoon of 31 August 2014 as to how the defendant should have made the alleged payment of $1,000 to DW2 for sharing DW2’s room.  I am sure that the defendant had not incurred such a liability to pay DW2 on 31 August 2014.  I do not rule out the possibility that the defendant started sharing a room with DW2 in the No. 19 address after 31 August 2014, but it was not necessary for me to make a specific finding here. This was not the evidence of the defendant or that of his witnesses.  Suffice for me to say that I have no doubt whatsoever that the defendant did not start to live in the No. 19 address on 1 August 2014, and that he had not incurred the alleged liability to make the first payment of $1,000 to DW2 on 31 August 2014.

119.For these reasons, I have also no doubt whatsoever that the alleged alibi put forward by the defendant with the support of DW2 and DW3 was a concocted one without any degree of truth in it.  I reject the defence evidence in this respect completely.

120.I remind myself that the fact that I rejected the defence evidence does not mean that the prosecution has proved its case.  In particular, I note that Mr. Abbott had not submitted to me that the prosecution is relying upon lies told by the defendant and/or his flight from the alleged scene of the crime to be evidence probative in proving any of the charges against the defendant.  I remind myself that whether the prosecution succeeds in proving any of the charges against the defendant depends entirely upon whether this Court is satisfied beyond reasonable doubt that PW1 and/or PW2 was truthful and reliable in their evidence.

121.Having considered the evidence of PW1 and PW2, and despite the fact that PW1 had previous convictions for offences of dishonesty, I have no doubt that each of PW1 and PW2 was an honest witness who was trying his or her very best to tell the Court what had happened on the day in question.

122.I have warned myself that an honest witness could make mistaken identification even when he purported to identify someone whom he knew or was familiar with, and that a number of such witnesses could all be mistaken.  Despite the fact that PW1 could not remember a number of details of the events in question, I have no doubt whatsoever that PW1 was giving truthful and reliable evidence when he testified that the defendant was present inside his (PW1’s) room at the material times, and that the defendant was the person who damaged the glass top of the table inside the room, and caused injuries to PW2.  I have no doubt whatsoever that the identification was correct because PW1 was identifying a familiar face, since he and the defendant were next door neighbours and they had known each other for a long period of time prior to the occurrence of the incident in question, and that at the time when the incident occurred, PW1 was in a position to observe the defendant under optimal conditions.  They were in close quarter of one another, and the incident had taken place for some length of time during which there were verbal interactions between PW1 and the defendant.  I note the evidence given by PW2 when she was examined by Mr. Ng that she said “maybe” when Mr. Ng suggested to her that there was a possibility that she was mistaken in her identification of the defendant.  However, for reasons that I have earlier explained, I am sure that her evidence did not cast any doubt on the identification evidence of PW1.  On the basis of the evidence of PW1 alone, I am satisfied beyond reasonable doubt that the defendant was present inside PW1’s room when the incident in question occurred in the afternoon of 31 August 2014.

123.In light of the finding I have made in relation to PW1’s evidence on the issue of identification of the defendant, it is not necessary for me to make a finding in respect of the same issue regarding PW2’s evidence.  Nevertheless, for the sake of completeness, I shall state that I am also satisfied beyond reasonable doubt from the evidence of PW2 that she had correctly identified the defendant to be present inside PW1’s room at the time when the incident in question occurred.  Like PW1, PW2 knew the defendant before the incident and she was also in a position to observe the defendant under optimal conditions at the time when the incident occurred.  In relation to the “maybe” answer given by PW2 when it was suggested to her that she might be mistaken about her identification of the defendant, I find that PW2 was just confused when the defence case was put to her many times (due to her inability to appreciate that Mr. Ng was putting the defence case to her), and that she just did not want to entangle in the issue with Mr. Ng rather than she genuinely accepted that she had or might have made a wrong identification of the defendant.  In any event, I find that the prosecution needs not rely on her evidence to prove the presence of the defendant.

Did the defendant damage the table and/or wound PW2?

124.As to what the defendant had done inside PW1’s room at the material times, since the defendant had alleged that he was not present at the scene, PW1 and PW2 were the only witnesses who gave evidence on this aspect.  I am well aware that even under these circumstances, I am still not bound to accept their evidence to be true, but the fact of the matter was their evidence had not been contradicted by any evidence.  Having carefully considered the evidence of PW1 and PW2, I am sure that each one of them was trying their best to tell this Court what had happened at the material times according to what each of them could remember.

125.Mr. Ng submitted that PW1 had accepted that he was unclear as to how the glass top of the table had been broken.  I have already analyzed this part of PW1’s evidence.  I note that PW1 said he could not remember in answer to a double barrel question put by Mr. Abbott who asked PW1 how the defendant came in and broke the glass as well as whether the defendant had said anything, and PW1’s answer might mean only that he could not remember if the defendant had said anything; and hence when Mr. Ng had purported to quote this part of PW1’s evidence, and put to PW1 that he had told the Court that he could not remember how the glass top was broken, I find that Mr. Ng had not quoted the evidence correctly, and for that reason, I find that although PW1 agreed with Mr. Ng’s quotation of his evidence, the weight to be attached to this piece of evidence was reduced considerably. 

126.In any event, PW1 had testified that the defendant had damaged the glass top of the table, and when he was asked how the defendant damaged it, he answered, “From his leg.”  I have considered PW1’s evidence carefully.  I cannot find a reason for him to lie.  His evidence was consistent with that given by PW2, and I detect no sign that they had collaborated to give false evidence.  I find PW1 to be an honest witness.  I agree that PW1 had not said a lot about how the defendant damaged the table, but his evidence that the defendant had used his leg to damage the glass top of the table was clear and true.  I agree that he had not described how the defendant used his leg to do the damage, but he had not been asked to give such specific details either.  I also note that it had not been suggested to PW1 specifically that the defendant might have damaged the glass top of the table accidentally.   

127.As far as the evidence of PW2 was concerned, she had been asked to and she did provide more details about the incident.  I have considered her evidence carefully.  I do not find any reason for her to give untruthful evidence, and there was no sign that she had collaborated with PW1 to give false evidence.  I find PW2 to be an honest witness who gave evidence as best as she could in accordance with her memory of the incident in question.

128.Mr. Ng submitted that PW2 had agreed that the defendant might be just trying to step closer to approach her and PW1 when she said that the defendant had stamped on the glass top of the table since the two of them were sitting down on the sofa by the side of the table at that time.  I take it that Mr. Ng was submitting that there was a possibility that the defendant stepped on the glass top of the table accidentally when he tried to advance towards PW1 and PW2, and that PW2 had agreed with him.  It appears to me that Mr. Ng was in fact asking PW2 to express her opinion on the intention of the defendant for his action. In the exercise of my function as a jury, I am at liberty to decide what weight can be attached to her evidence, and what inference can be properly drawn from the proven facts.

129.In my view, whether the defendant had advanced to approach PW1 and PW2, and whether he had damaged the table deliberately were two different matters that could happen at the same time.  It was clear from the evidence of PW2 that the defendant had advanced towards the direction of her before he stamped on the glass top of the table.  It was because PW2 had testified that while she and PW1 were sitting on the sofa by the side of the table and having their meal, the defendant came, stood in front of the room door, and accused her of breaking some cup and plate in the kitchen.  It was only after they had engaged in an argument and the defendant got angry that he stamped or stepped on the glass top of the table with his right foot.  From this sequence of events as described by PW2, it had to be the case that when the defendant stamped or stepped on the table top, he had to be by the side of the table, and in order to be in that position, he had to move himself from the room door towards the table, and when he did so, he was of course advancing towards the direction of PW1 and PW2 who were sitting on the sofa by the side of the table.  Hence, it was just natural for PW2 to agree with Mr. Ng that it was possible that the defendant was approaching PW1 and her at that point of time.  However, once the defendant got near the table, whether he stepped on the table top by accident or whether he stamped on it deliberately was of course a different matter.  To resolve this issue, I am of the view that it was important to note the particular features of the table in question.  I just wish to add that the defendant could form the intention to stamp on the glass top of the table only at the time when he got to the side of the table.  It was not necessary for him to have that intention before he approached the table before he could be convicted of criminal damage.

130.The table in question was shown in photographs 13 to 17 of Album 2.  Although the table shown in the photos had its glass top already damaged, it was easy to infer that before it was damaged, the glass top of the table was not in contact with the white wooden surface of the table, but it was resting on 4 short metal rods each of a few inches tall, and these rods were installed at the 4 corners of the wooden surface of the table.  There was therefore some empty space equivalent to the height of the metal rods between the wooden surface of the table and the glass top.  It therefore meant that if force was applied directly onto the glass top, the force would not be dissipated through anything immediately underneath it.  The photos also showed that the table was a low table, and PW2 had testified that the height of the table was about knee high, and the height referred to by PW2 was measured and was found to be about 19 inches tall.  PW2 had also agreed with Mr. Ng that the glass top of the table was quite thick, and she estimated that the glass had a thickness of about 2 cm.  She also agreed that the table was very solid and sturdy.  I have no doubt that the descriptions given by PW2 of the table were correct because her evidence was clearly supported by the photographs.

131.When these particular features of the table were taken into account, I have no doubt whatsoever that the defendant could not have damaged the glass top of the table accidentally when he approached PW1 and PW2.  Bearing in mind the height of the table top, if the defendant merely stumbled and bumped into the table, he would only hit the table out of its resting position but its glass top would not be broken.  In order to damage the glass top of the table, force had to be applied onto the glass top, and that would require the defendant to lift up his right foot to above knee height, i.e. for at least 19 cm, before he could step or stamp on it.  If the defendant was merely approaching PW1 and/or PW2 without the intention to step or stamp onto the glass top, there was absolutely no need for him to lift up his foot to that height.  In addition, the glass top that was damaged was solid and sturdy with a thickness of about 2 cm.  A jury using its daily living experience and knowledge as well as common sense could tell without the assistance of expert evidence that it required hard and strong force to break a glass top of this kind and nature.  If the defendant was merely approaching PW1 and PW2, he would not need to step on the glass top at all or with the force of a magnitude sufficient to break this glass table top.   For these reasons, I have no doubt whatsoever that when the defendant stepped or stamped on the glass table top, he did not do so because he wanted to approach PW1 and PW2.  On the contrary, I am satisfied beyond reasonable doubt that PW2 was giving truthful and reliable evidence when she said that the defendant got angry after arguing with her, and that the defendant stamped on the table with his right foot and broke its glass top.  I had no doubt whatsoever that the defendant had stamped on the glass top with force, or else the glass top would not have been broken into pieces, and the only reasonable and irresistible inference to be drawn from the magnitude of the force used by the defendant was that he applied the force deliberately to the glass top with his right foot and damaged the glass top of the table as a result.

132.I had no doubt whatsoever that PW1 and PW2 were truthful and correct in their evidence that PW2 was injured after the defendant had damaged the glass top of the table.  In my view, the only reasonable and irresistible inference to be drawn was that when the glass top of the table was broken, the broken glass hit PW2 and injured her, causing her to sustain the wounds as stated in her evidence and the evidence of Doctor Wong, and as shown in the photographs. Although the defendant did not apply force directly or personally on PW2, I had no doubt at all that the wounds suffered by PW2 were all caused to her by the defendant when he stamped on and broke the glass top of the table.

133.Having considered the evidence of PW1 and PW2, even though PW1’s evidence contained lesser details of what had happened inside PW1’s room in the afternoon of 31 August 2014, I find that each of them had given truthful and reliable evidence of the incident in question.  I find as a fact that the incident in question happened in the manner as they had testified.

Did the defendant commit the offence of criminal damage?

134.Before the defendant can be convicted of the offence of criminal damage, the prosecution must prove beyond reasonable doubt that the table that he had damaged was a “property belonging to another”: see section 60(1) of the Crimes Ordinance.  In the particulars of Charge 1, the table was alleged to be the property belonging to PW1.

135.Section 59(2) of the same Ordinance provides specifically inter alia that property shall be treated for the purposes of this Part as belonging to any person having the custody or control of it.  In other words, a property can belong to not only the owner of the property but also any person having custody or control of it for the purpose of section 60(1) of the Crimes Ordinance.  In other words, there can be more than one owner for the purpose of section 60(1) of the Ordinance.

136.In HKSAR v Wong Sui Ching [8], the Court of Final Appeal considered the wordings of section 59(2) of the Crimes Ordinance, and considered that it was irrelevant that the offender might enjoy superior proprietary rights under the law of property, and hence the owner could commit an offence of criminal damage under section 60(1) even if he was the owner of the property.  The Court of Final Appeal made it clear that the owner committed no offence unless, without lawful excuse, he damaged or destroyed his property in which someone else also had a protected proprietary interest.

137.It was common ground in evidence that the table in question belonged to the defendant, and that the defendant gave the table to PW1 for use inside PW1’s room about 2 years ago.  PW1 admitted that at the time of the incident, the table still belonged to the defendant.  The defendant also said that he had told PW1 that when he needed the table, he would take it back.

138.Mr. Ng argued that section 59(2) of the Crimes Ordinance was not engaged on the evidence.  He said that PW1 admitted that the table was the defendant’s and that it was simply left in PW1’s room for him to use.  Mr. Ng argued that on the evidence, it was not a custody or control situation.

139.I do not accept the submissions of Mr. Ng.  In Wong Sui Ching, Riberio PJ gave the following example to illustrate the meaning of “property belonging to another” under section 59(2) of the Crimes Ordinance.  His Lordship said the following in paragraph 32 of the judgment:

“An item of property may be regarded as simultaneously belonging to more than one person. To take a commonly cited example, where A, the owner of a book, lends it to B who hands it to C to examine, A owns, while B has possession and C has custody or control of the book. Should D damage the book in C’s hands with the necessary intent and without lawful excuse, D commits the offence in respect of property which may be regarded as simultaneously belonging to A, B and C within the meaning of section 59(2).”

140.In the present case, I have no doubt whatsoever that PW1 had custody or control of the table in question.  The defendant owned the table, but he lent it to PW1 for use two years prior to the time of the incident, and he had never taken back or indicated his intention to take back the table from PW1 ever since.  It was also clear beyond doubt that PW1 was having custody or control of the table when the incident occurred because he and PW2 were at that point of time actually using the table to have their meal.  I find that the prosecution has proved beyond reasonable doubt that the table which glass top had been damaged was property belonging to PW1 for the purpose of section 60(1) at the time of the incident in question.

141.I have already found, with reasons explained, that the defendant had stamped on the glass top of the table with force and broke it.  I have no doubt whatsoever that the defendant did stamp on the table, and that he did so with intention. I also found that he had used and intended to use strong force on the glass top of the table, and as a result of his action, he damaged the glass top of the table.  For these reasons, I find that the prosecution has proved beyond reasonable doubt that the defendant had committed the actus reus of the offence of criminal damage.

142.Even so, the defendant will not be guilty of the offence of criminal damage unless the prosecution has also proved beyond reasonable doubt that the defendant either intended to damage the glass top of the table or he was reckless as to whether it would be damaged.  Even if the prosecution has proved the mens rea of the offence beyond reasonable doubt, it still has to prove that the defendant had no lawful excuse to damage the property.

143.In order to prove that the defendant was acting recklessly, the prosecution has to prove beyond reasonable doubt that the defendant foresaw and was aware of a risk that the glass top of the table would be broken if he stamped on the glass top of the table with force, and yet he went ahead with this action, and that in the circumstances which was known to him at that time, it was unreasonable for him to take the risk.

144.In light of the fact that the defendant was the actual owner of the table, I find that there was a possibility that he did not intend to damage the table, even though it might be argued that the defendant no longer treated himself to be the owner of the property and hence he did not mind damaging it at all.  I note that the defendant had given the table to PW1 for use for 2 years and he never indicated to PW1 any intention to take it back, and in fact, the issue of ownership had never been raised with PW1 when he was first cross-examined by Mr. Ng, and PW1 had to be recalled for further examination on this particular issue after he had already completed his evidence.  In making the finding that the prosecution had not proved that the defendant intended to damage the glass top of the table reasonable doubt, I am in fact evaluating the evidence in the most generous way for the benefit of the defendant.

145.I am however satisfied beyond reasonable doubt that he was acting recklessly.  It has been proved beyond doubt that after the defendant got angry when he had argument with PW2, the defendant went forward to the side of the table, lifted up his right foot to more than knee height or about 19 cm from the ground, and stamped on the glass top with the magnitude of force that was sufficient to break the glass top which was about 2 cm in thickness.  From these proven facts, the only reasonable and irresistible inference to be drawn was that he was acting intentionally when he stamped on the glass top of table with considerable force.  I find that even if he did not intend to break the glass, he foresaw and was well aware that his actions had the risk of breaking the glass top of the table, and yet he just ignored that risk and went ahead with his actions as demonstrated by his acts.  I also find that in the circumstances which were known to him, in particular, he knew that he was stamping on a glass top with considerable force, that it was unreasonable for him to take that risk.  For these reasons, I find that the prosecution has proved beyond reasonable doubt that he was acting recklessly when he damaged the glass top of the table.

146.I am also satisfied beyond reasonable doubt that the defendant had no lawful excuse in his action.  The proven facts showed that the defendant got angry after PW2 denied his accusation and argued with him, and that the defendant went towards the direction of PW1 and PW2 and stamped on the glass top of the table where PW1 and PW2 were putting their meals.  I draw the only reasonable and irresistible inference that the defendant wanted to vent his anger at that point of time.  While this explained why he had acted in the way he did, it did not amount to a lawful excuse for him to damage the glass top of the table, even though the table belonged to him.

147.For the reasons explained, in so far as the table in question was concerned, I am satisfied that each and every element of the offence of criminal damage has been proved beyond reasonable doubt by the prosecution against the defendant. I therefore find Charge 1 has been proved beyond reasonable doubt, of course this finding is made on the basis that the defendant had criminally damaged only one of the items particularized in the charge.  The defendant is convicted of Charge 1 accordingly.

Did the defendant commit the offence of wounding?

148.For reasons already explained, I find that the defendant had caused PW2 to sustain the wounds as disclosed in the prosecution evidence even though he had not applied force directly or personally on PW2.  I find that the prosecution has proved beyond reasonable doubt that the defendant had committed the actus reus of the offence.

149.Even so, the defendant would not be guilty of the offence of wounding unless the prosecution has also proved beyond reasonable doubt the requisite mens rea of the offence.  In other words, the prosecution must prove to the requisite standard that the defendant either intended to cause physical harm to PW2, or actually foresaw and was aware of the risk that his act might cause physical harm to PW2, and yet he ignored that risk but went ahead and did his act, and that in the circumstances which was known to him at that time, it was unreasonable for him to take the risk.

150.In my view, since I have found that the prosecution has not proved beyond reasonable doubt that he intended to damage the glass top of the table, it must follow that I cannot be satisfied beyond reasonable doubt that he intended to produce broken glass from the glass top of the table so that the broken glass would hit and wound PW2.  I find that the prosecution has failed to prove the intention limb of the requisite criminal intent of the offence beyond reasonable doubt.

151.As to whether the defendant was acting recklessly, I have found the defendant foresaw the risk of damaging the glass top of the table, but I do not think the evidence was cogent enough to prove further to the required standard that he also foresaw at the same time that there was a risk that the broken glass that might be produced might hit and wound PW2.  I am of the view that the defendant should be given the benefit of the doubt.  For these reasons, I find that the prosecution has also failed to prove the reckless limb of the requisite criminal intent of the offence beyond reasonable doubt.

152.For these reasons, I am not satisfied that each and every element of the wounding charge has been proved beyond reasonable doubt.  Charge 2 is therefore dismissed and the defendant is acquitted of this charge.

[1]  contrary to section 60(1) of the Crimes Ordinance, Chapter 200.

[2]  contrary to section 19 of the Offences against the Person Ordinance, Chapter 212.

[3]  contrary to section 17(a) of the Offences against the Person Ordinance, Chapter 212.

[4] PW2 originally testified that the middle finger of her right hand was injured, but after she was shown Photograph 23 of Album 2 (Exhibit P1), she testified that it was the middle finger of her left hand that was injured.

[5]  PW1 called it the door curtain.

[6]  In the witness statement of DPC33409, the defendant’s address was described to be “1/F., No. 19, Lung Kwu Tan, Tuen Mun”, but the alibi notice and the defendant’s evidence did not refer to “1/F”.  The prosecution took no issue and I regarded them to be the same address.

[7]  The defendant testified that he had stayed in the House with his friend prior to the time he entered into his tenancy agreement with the landlord.

[8]  (2012) 15 HKCFAR 199.