HKSAR v. BUI VAN TUAN

DCCC 1127/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1127 OF 2012

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REASONS FOR VERDICT

1.  Charge

The defendant pleaded not guilty to the offence of wounding with intent contrary to section 17 (a) of the Offences against the Person Ordinance cap 212.

2.  Overview

PW1 was assaulted and attacked by a group of about 7-8 males on the evening of 16 March 2012. During the course of the attack he was kicked, hit with a chair and chopped. He sustained serious injuries. Immediately prior to the attack he was seated at a table near the entrance of a restaurant with the defendant and PW2 discussing matters about a debt the defendant owed to PW1’s girlfriend.

3.  It was the prosecution’s case that the defendant was part of a joint enterprise of a group of males attacking PW1.  PW1 had seen that the defendant used a knife to chop at his leg.

4.  The defendant admitted to being at the restaurant that evening with PW1 immediately prior to the attack.  He however denied he assaulted PW1 with the group of males or that he had used a knife to chop him.

5.  Issue

The principal issue here is whether the defendant was one of the attackers who PW1 had seen use a knife to chop PW1’s leg in the course of the attack.

6.  A resolution of the above issue is to be decided on the credibility and reliability of PW1. 

7.  Summary of the prosecution case

The defendant and PW1 are both Vietnamese. They were known to each other for many years. They had arranged to meet other on the evening of the 16 March 2012 to discuss matters relating to a debt owed to PW1’s girlfriend. They met at a Vietnamese restaurant in Mong Kok Road and sat at a table near the entrance of the restaurant talking about the debt.

8.  PW2 had gone to the restaurant with the defendant, but did not join them at the table immediately.  He stood at the entrance of the restaurant. 

9.  After about 10 minutes PW1 noticed 6-7 Chinese males standing together further down the road about 30 feet away.  One of those Chinese males approached PW2 and had a brief chat with him then left. 

10.  Thereafter PW2 joined in the discussion with the defendant and PW1.  A short while later the same Chinese male (the first Chinese male) approached the table, roared out saying to PW1 “what is there is to discuss?”  The first Chinese male then scolded and shouted at PW1 and pushed him.  As soon as PW1 was pushed the other Chinese males came rushing over to the table.  PW2 shouted at the group of males “don’t do anything” or “don’t move your hands.”  Fearing for his safety PW1 ran away but was chased after by the defendant and the other 6-7 Chinese males. 

11.  Whilst running away, PW1 slipped and fell to the ground.  The group of Chinese males and the defendant then caught up with him. The defendant chopped his leg and then he was assaulted with kicks and a chair.  During the attack PW1 saw the defendant use a knife to chop him once on his leg but was unable to recognise any of the other assailants or see their faces.  

12.  After PW1 was assaulted for a few minutes the group of males and the defendant fled from the scene of the attack. 

13.  PW2 did not witness the attack on PW1 but went over to the aid of PW1 after he was attacked. 

14.  The witnesses and burden of proof

The prosecution called two witnesses PW1 and PW2. The remainder of the prosecution case was admitted by the defence.

15.  The defendant elected not to give evidence or call any witnesses.  I drew no adverse inference on the defendant’s right to remain silent.  No burden lies with the defendant to prove anything.  It is for the prosecution to prove beyond all reasonable doubt that it was the defendant who chopped PW1 with a knife.

16.  The evidence

PW1’s evidence

The victim (PW1) aged 39, and the defendant are both Vietnamese. They had met each other about 17 years ago whilst they were living at the Pillar Point Refugee Camp. PW1 and his co-habitant girlfriend and the defendant had been friends but not close friends for many years.

17.  Whilst PW1 was serving a prison term, the defendant rented a room at the home of PW1 and his girlfriend between January 2010 and December 2010.  The defendant left their abode in January 2011.

18.  It was PW1’s evidence that his girlfriend had told him the defendant owed her a total of $30,000 for non-payment of rent and loans of various sums in cash inclusive during the year that the defendant lived at their abode.

19.  When PW1 was released from prison he sought the return of the money owed by the defendant on behalf of his girlfriend. 

20.  On 13 March 2012, three days before PW1 was chopped, PW1 called the defendant asking for repayment of the money.  The defendant assured PW1 that he would be able to repay the defendant 3 days later on 16 March.

21.  On 16 March PW1 called the defendant.  The defendant told PW1 he did not have any money and could not make any repayment.  The defendant further informed PW1 that if he continued to chase the defendant for the money he would not pay at all.  PW1 was annoyed that the defendant said if he continued to chase his for the money the defendant would not repay any sum.  He asked the defendant to meet up with him for a talk about the debt later that evening.  The defendant agreed to meet PW1.

22.  Later that day the defendant and PW1 met each other at a Vietnamese restaurant near the Esso petrol Station in Mong Kok Road at about 9 pm.  They sat together on a table at the entrance of the restaurant.

23.  The defendant had come to the restaurant together with PW2.  Initially PW2 did not join PW1 and the defendant at the table but stood near the entrance of the entrance at about a distance of 7-8 feet away talking on the phone.  Later on PW2 joined in the discussions with PW1 and the defendant. 

24.  PW2, who PW1 knew as a Vietnamese, was an acquaintance of PW1’s.  PW1 believed PW2 was a friend of the defendant’s as they went to the restaurant together. 

25.  Initially PW1 and the defendant alone discussed about the debt.  PW1 asked the defendant “how come it turned out like this? as all along we had treated you (the defendant) very nicely.”  PW1 asked the defendant why the defendant refused to pay as the defendant had found a job and he had promised to pay.  At that time PW1 noticed the defendant sitting at the table with his right hand inserted inside his denim jacket over his left waist area.

26.  Approximately 5 - 10 minutes later PW1 saw a group of about 6-7 Chinese males standing together at a distance of about 30 feet away. 

27.  One of the Chinese males (the first Chinese males) from the group then went over to speak to PW2 who was still standing at the entrance of the restaurant.  When the first Chinese male approached PW2, he spoke to PW2 in Cantonese.  PW1 spoke and understood Cantonese.  That first Chinese male said “Lo Biu, how is the situation?”  PW1 was unable to hear what was said between PW2 and that first Chinese male after that. 

28.  When PW1 heard the words “lo biu” PW1 assumed that this Chinese male therefore knew PW2 as it was a term of endearment in Cantonese. After a short encounter with PW2 the first Chinese male then left the restaurant.

29.  When the first Chinese male left, PW2 went to the table to join PW1 and the defendant.   PW2 told PW1 that the defendant was residing with PW2.  PW2 told PW1 that the defendant was going to start work with him and that since the defendant had just started work he would be paid $200 per day.  PW2 undertook from next month onwards the defendant would repay $1,000 each week to PW1.  The defendant also agreed to do so. 

30.  PW1 accepted the repayment terms and the discussion ended.  However despite this, suddenly the first Chinese male approached the table where the three of them were seated and roared “what is there to discuss - discuss what?”  PW1 replied to the first Chinese male in Cantonese “nothing much, we are just talking about it to make it clear, it is not that we don’t know each other.”  The first Chinese male then pointed at PW1 and scolded him.  Everybody at the table then stood up and PW1 stepped a little back. 

31.  When PW1 stepped back the Chinese male approached PW1 and pushed him.  As soon as the Chinese male pushed PW1 the other Chinese males standing nearby rushed over to the table.  PW2 shouted at them and said “don’t do anything” or in Chinese “um ho yuk sau” don’t move your hands.  At that moment the defendant saw a male holding a chair and another carrying a brick.  He did not see the first Chinese male who approached him with any weapon but he was carrying a bag which could be slung over his shoulder and as soon as the males rushed over he inserted his hand into the bag to take something but PW1 was unable to see what he got hold of. 

32.  As PW1 feared for his safety he immediately ran across the road towards the petrol station.  The Chinese males and the defendant immediately chased after him.  When he reached the area just outside of the petrol station he slipped and fell.  Despite his attempt to get up he could not. Suddenly the defendant ran over and chopped him with a knife on his leg.  At that time he was lying prone on the ground, with his face down, he turned his head sideways and saw the defendant had chopped him. 

33.  After his leg was chopped he was unable to get up from the ground.  Thereafter he was kicked and hit, at some point also struck with a chair.  As he covered his head with his hands to protect his head, his vision from that moment on was compromised.  He felt that he was bleeding.

34.  The attack lasted a few minutes and thereafter he saw the defendant and the group of Chinese males run away from the scene. 

35.  During the attack PW1 was able to see that knife that the defendant struck him with had a blade of about 12 inches long and was silver in colour. 

36.  When the attackers had fled, he again tried to stand up but was unable to do so as his leg had been so severely injured.  PW1 saw PW2 walk over from the restaurant and hand to him some tissue to wipe the blood from his face. PW2 and another Vietnamese person whom PW1 was acquainted with then asked if he needed to call the police.  They supported him to walk back to his home which was close by.

37.  When PW1 reached the ground floor of his building he however could not walk any further or longer.  He called his girlfriend to come down to assist him.  When his girlfriend came down, PW2 and the other Vietnamese acquaintance then left.  The police and ambulance were called and PW1 was taken to the hospital. 

38.  PW1 had several operations and a fractured leg.  He was discharged from hospital on 20 March 2012.  He was diagnosed to have suffered from: -

a) 1 cm cut wound over left frontal head region;

b) 4 cm deep cut wound over the left flank region;

c) 5 cm wound over left lateral knee;

d) 3 cm superficial wound over right anterior thigh;

e) reduced sensation over left lateral leg and foot dorsum and inability to dorsiflex the left foot;

f) 6 cm left knee deep laceration over fibular head region with underlying open fracture of the fibula neck;

g) complete cut of common personal nerve and fibular collateral ligament and posterolateral knee capsule;

39.  PW2’s evidence

PW2 aged 43 is a fellow Vietnamese and is a long time friend of the defendant’s. PW2 was unable to recall when he met PW1 but regarded him as an acquaintance. PW2 seldom saw PW1, when he did see him however he never spoke to him but only exchanged greetings.

40.  PW2 said he did not go to the restaurant with the defendant.  PW2 said he and his wife were walking on the opposite side of the road to the restaurant when he saw PW1 and the defendant sitting at the restaurant.  He told his wife to stand and wait for him while he crossed the road to go over to talk to PW1 and the defendant.

41.  PW2 saw the defendant and PW1 were talking so he just stood close by at about a distance of about three feet away.  He did not talk to them nor did he pay attention to their conversation.  After standing there for about 10-15 minutes a group of males rushed towards PW1 and the defendant, in doing so they bumped into him and his mobile phone fell on to the ground.  He saw them chasing after PW1 however the next thing he knew was that PW1 was bleeding and injured whilst all those males had run away. 

42.  PW2 saw PW1 sitting on the ground just outside the petrol station.  He therefore went over to PW1.  He realised PW1 could not walk and that he was bleeding.  PW2 gave some tissues to PW1 to wipe the blood from PW1’s head then supported PW1 to walk him back to his house.  When PW1 reached the ground floor of PW1’s house, PW1’s girlfriend went downstairs and he PW2, left.

43.  PW2 said that the defendant was living with him at his home since the beginning of 2012.

44.  The defence case

There was no dispute by the defendant that PW1 was attacked. The defendant disputed any allegation that he had attacked PW1 with a knife or that he had ever used a knife to chop PW1’s leg.

45.  When the defendant was arrested on 10 July 2012 for the offence of wounding he replied “Ah Sir, I did not chop Ah Shing (PW1) with a knife.  I do not know the group who hit him.”

46.  From the cross-examination put to PW1 and PW2, the defendant did not challenge the evidence that :-

(a) he rented a room from PW1’s girlfriend at their home for approximately a year in 2010,

(b) he owed PW1’s girlfriend money,

(c) he alleged he owed only $8,000 and not $30,000,

(d) he arranged to meet PW1 at the restaurant that evening,

(e) he discussed the debt he owed to PW1’s girlfriend with PW1 and

(f) that he lived with PW2 since the beginning of 2012.

47.  It was the defendant’s case that PW1 was mistaken in his identification of the defendant chopping him.  PW1 was chopped by the others present at the scene but not the defendant.  In any event it was not possible for PW1 to have seen that it was the defendant who chopped him as all along PW1’s vision was compromised as PW1 was covering his head with his hands protecting himself from the attack after he fell to the ground.

48.  Submissions

Mr Phil Chau Counsel for the defendant made detailed submissions. I will not reiterate all his submissions. I have given consideration to all his submissions made and the evidence before me. In summary Mr Chau submitted that PW1 was not a credible or reliable witness. PW1 and PW2 were persons of bad character both with numerous criminal convictions including many for dishonesty offences. He accepted that PW1 had been attacked however he submitted there was a motive to blame the defendant, as the defendant owed PW1’s girlfriend a debt and the defendant had not repaid it.

49.  Analysis

In considering the evidence I bear in mind that PW1 and PW2 have extensive criminal records and have spent a considerable amount of time in prison. PW1 has nineteen previous convictions whilst PW2 has fourteen. I have directed myself regarding the propensity of PW1 and PW2 of committing crimes particularly that they are predisposed to acts of violence and dishonesty. This evidence is relevant to their credibility and reliability.

50.  I turn first to deal with the inconsistencies in the evidence of PW1 and PW2. 

PW1	PW2
PW2 had gone to the restaurant together with the defendant.	He approached the defendant and PW1 after PW1 and the defendant had already met, as he was walking in the street with his wife when he saw them at the restaurant and went over to talk to them.
When they first met PW2 stood aside and did not join in the conversation with them initially but did join in the conversation with the defendant and PW1 later and assisted in the settlement	He stood about 3 feet away from the defendant and PW1 and he never talked to them nor joined in their conversation
The first Chinese male addressed PW2 as “Lo Biu”	He never spoke to any Chinese Male and no Chinese male ever addressed him as “Lo Biu” that night
PW2 told PW1 that he would guarantee the defendant’s payment of $1,000 a week	No conversation with PW1 or the defendant
After the males rushed over to PW1, PW2 told them “don’t do anything” or “don’t move your hands”	PW2 never said anything to those males that rushed over.

51.  PW2’s evidence on why he crossed the road and approached the defendant and PW1 and what he did afterwards was senseless and incredible.  It was apparent from PW2’s evidence that he crossed the road and approached the defendant and PW1 because he wanted to talk to them.  However, peculiarly after crossing the road, he just stood close by and never talked to them. 

52.  I found it unbelieving that the whole time PW2 was there he did not talk to them when his purpose of crossing the road was to do just that.  Even if, after crossing the cross he decided not to talk to them, why did he not leave but stand there allegedly doing nothing for 10-15 minutes? Over and above his wife was apparently waiting for him on the opposite side of the road.  Why keep her waiting for him or why ask her not to wait for him but keep her waiting there for such a long time?

53.  I found it to be far fetched that quite coincidentally while PW2 was standing there a group of males would appear suddenly and rush towards PW1.

54.  On all the evidence before me I was satisfied PW2 was trying to distance himself away from any conversation or association with PW1, the defendant or the Chinese males that evening.  I found his account that he did not speak to PW1 or the defendant to be incredible.  

55.  I was satisfied that he was a friend of the defendant’s and he constructed his evidence so as to remain neutral about not witnessing the attack on PW1.  I was doubtful of his account that quite fortuitously while standing there for 10-15 minutes a group of males rushed forward and in so doing, his phone was bumped out of his hand onto the ground.  Further that because PW2 was picking his phone up from the ground he did not see what happened to PW1 until all the males including the defendant had fled from the scene and when PW1 was left on the ground alone bleeding. 

56.  PW2 was shown to be unreliable in that his oral evidence and statements made to the police in witness statement were materially inconsistent.  In cross-examination Mr Chau put to PW2 the statements he made in the witness statement.  They were that PW2 :-

(a) told the police that he had chatted with the defendant and PW1 when they were at the restaurant and

(b)he had heard that they were discussing about repayment.

57.  PW2 denied the above (a) and (b) were true.  He excused these statements by saying that it may have been written that way in the statement as the interpreter might have misunderstood him or that there was a translation error. 

58.  I do not accept that there was such a material translation error.  I was for the reasons above satisfied that PW2 in his oral evidence was trying to disassociate himself with the defendant and PW1 at the scene.  I was satisfied that PW2 went to the restaurant together with the defendant and he had talked to the defendant and PW1 facilitating a settlement between them.  He was familiar with the first Chinese male.  He had an inkling there was going to be an attack on PW1 when they came rushing over, therefore he tried to prevent it by telling them not to do anything.

59.  PW1’s evidence

Mr Chau submitted that PW1’s evidence was unreliable as he gave inconsistent accounts in his oral evidence and his witness statement as to the sequence of the attack upon him. Mr Chau pointed out that in PW1’s oral evidence PW1 said he was chopped on the leg by the defendant then attacked with kicks and the chair and the first Chinese male did not use a chair to hit him. Whilst contrarily in PW1’s witness statement PW1 said he was kicked and hit first and then chopped on the leg by the defendant and it was the first Chinese male who hit him with the chair.

60.  In answer to Mr Chau on the inconsistent accounts PW1 said in the witness statement he was not telling the police his account of the attack in sequence.  He went on to explain that the attack happened very quickly and it was very chaotic at the time.  He agreed with Mr Chau that the first Chinese male did not hit him with a chair. 

61.  It is apparent that the attack came all of a sudden and it was very chaotic.  PW1’s witness statement was taken 4 days after the attack when he was still at the hospital.  At that time his injuries which were serious, were still fresh and raw.  I accept PW1’s explanation that at the time he gave the police his account in his witness statement he was not giving a sequential account of the attack.  Utmost was that he gave an account of an attack and what had happened during the attack. 

62.  The fact that there was an inconsistency as to who used a chair to attack him was not material. 

63.  Having given careful consideration and warned myself of PW1’s credibility and motive in blaming the defendant for the attack, I nevertheless found that PW1 was an honest and reliable witness.  Telling of PW1 not having any motive to blame the defendant or fabricating his account was PW1’s apparent surprise that he was attacked despite the fact that they had settled the terms of repayment of the debt and the discussion with the defendant had in fact finished.  

64.  PW1 was content that he had reached a settlement with the defendant.  I do not believe there was any motive for PW1 to frame the defendant.  Further if PW1 wanted to frame or fabricate any of his evidence he could have implicated PW2 in the attack.  PW1 believed PW2 was a friend of the defendant’s as well as of the first Chinese male that addressed him as “Lo Biu.”  He knew the defendant was living with PW2.  However despite all the evidence associating PW2 with the defendant and the group of Chinese males, PW1 did not implicate PW2 in the attack upon him. 

65.  I was further satisfied that PW2 had spoken to PW1 and the defendant at the restaurant as PW1 had said during the conversation PW2 told PW1 that the defendant was living with him.  How could PW1 have known this if PW2 did not tell him at the time?

66.  There was no evidence from PW2 that the defendant remained at the scene after PW1 was attacked.  PW1’s evidence was that he had seen the defendant flee the scene after the attack together with the group of Chinese males. 

67.  The defendant is not to be criticised for exercising his right not to give evidence but the lack of any explanation as to why he fled the scene make inferences easy to draw. 

68.  I was satisfied that the defendant flight with the Chinese males demonstrated he had an association with the Chinese males who attacked him and the defendant’s running away was deliberate and was an act consistent with escaping from the scene because he had chopped PW1. 

69.  The defendant’s conduct of fleeing was wholly contrary to PW2’s who did not partake in the attack and remained at the scene.

70.  The fact that the defendant’s fingerprints or traces of DNA were not found on any of the exhibits found at the scene after forensic examination is of no assistance to the defendant’s case.  In any event a knife was not found at the scene after the attack. 

71.  I found the account of PW1 to be credible and reliable.

72.  Conclusion

I was satisfied that PW2 went together with the defendant to meet PW1 at the restaurant. Discussions took place between PW1, PW2 and the defendant about the debt owed by the defendant to PW1’s girlfriend. A settlement was reached between PW1 and the defendant with the assistance of PW2 immediately prior to the attack on PW1.

73.  PW2 was familiar with the first Chinese male as that male addressed him as “Lo Biu.”  PW2 had an inkling that PW1 was going to be attacked when the Chinese males rushed over and that is why he ordered the Chinese males not to do anything or ‘move their hands. ’ However despite his demand, the group of males including the defendant unfortunately did not obey him and they attacked PW1.  It was likely that the knife the defendant used was produced from inside his denim jacket or at his waist area. 

74.  At the time of the attack I was satisfied that the lighting was bright.  PW1 was able to see clearly at a close distance that the defendant, whom he was well acquainted with, use a knife to chop his leg.  At that time PW1 was able to see the defendant as he had just slipped over and was not covering his head with his hands.  However thereafter his view was compromised as he was covering his head with his hands and protecting himself from further assaults.

75.  PW1’s injuries as noted in paragraph 38 above consisted of a number of “cut wounds” of varying lengths.  From these cut wounds there is a reasonable inference that a sharp object or a knife was used to cause these other injuries apart from the leg. 

76.  I was satisfied that the prosecution had proved beyond all reasonable doubt that the defendant had intentionally wounded PW1 by using a knife with about a 12 inch long blade to chop at PW1’s leg together with a group of about 6-7 Chinese males who kicked and a struck PW1 with a chair causing PW1 very serious injuries.   

77.  In the circumstances I find the defendant guilty of the charge and the defendant is convicted of the charge accordingly.