HKSAR v. LAM WAI HO

DCCC1266/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1266 OF 2011

----------------------

---------------------

Reasons for Verdict

---------------------

1.  The 1st, 2nd and 3rd defendant in this case were jointly charged with one count of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Persons Ordinance, Cap.212. They were accused of jointly, unlawfully and maliciously causing grievous bodily harm to a Kong Chi-kit, Johnny, with intent for him to suffer serious bodily harm. The 1st and 2nd defendant pleaded guilty on the first day of the trial and have been sentenced. The 3rd defendant pleaded not guilty and he indicated that he would plead to the lesser wounding charge, a section 19 offence.

The Prosecution Case

2.  The prosecution case is that on 29 June 2011 at about 6.30 am, the victim was brought to Kwong Wah Hospital by the 1st defendant unconscious.  He was certified dead at about 8 am. Prosecution allege the victim was beaten by the 1st to the 3rd defendant just prior to his death, it is not alleged he was beaten to death.  The cause of his death was “Adverse effects of Methamphetamine”, Ice. 

3.  Although there was no physical evidence he was a chronic Ice abuser, he had enough Ice in his blood that could be fatal.  The doctor opined it was likely that the victim had taken a high dosage of Ice shortly prior to his death.  He had injuries in the form of bruises, a laceration, an abrasion, incision wound and fractured ribs.  There was no evidence that the significant trauma found in the form of recent injuries could have caused the death of the victim, hence the joint wounding charge and not a more serious charge.  The prosecution say the victim was beaten, kicked and abused by all three defendants jointly.

4.  Prosecution called three prosecution witnesses who were present that night or in the early hours of the morning when the victim was beaten and then ultimately driven to the hospital in the 1st defendant’s vehicle.  Exhibit P9 is the facts admitted by all parties during the course of the trial.  Paragraphs 1 to 7 refer to the state of the victim when he was taken to the hospital and later declared dead.  Paragraphs 8 to 16 refer to the seizure of the 1st defendant’s vehicle and the arrest of the 1st to the 3rd defendant at different times.  Paragraphs 17 to 23 refer to the exhibits seized and the sketch P3 drawn.  Paragraphs 24 and 25 refer to the photographs taken at the scene.  Paragraph 26 refers to the positive identification of the 3rd defendant by PW1, 2 and 3 at a subsequent identification parade.  Paragraphs 27 to 29 refer to the statements of the doctor, pathologist and forensic scientist, Exhibits P6, 7 and 8.

5.  P7 is Doctor Ying Ho-wan’s, the pathologist’s, statement.  He identifies recent injuries described as “marks of violence”.  He lists bruises of various shapes and sizes on the victim’s head, face, chest area, back, loin and knee.  He lists an abrasion of the lower lip, a superficial incised wound across the left middle front of his neck and a V-shaped laceration located on the inner lining of the right side of his upper lip.  He finds two linear fractures of the left seventh and eighth rib and comminuted fractures of the 10th and 11th ribs at the back.  There are other injuries he refers to as a result of medical intervention and resuscitation attempts.  He noted that there was no evidence in the victim’s heart that suggested he was a chronic Methamphetamine user. 

6.  The recent injuries or wounds suffered by the victim can be described and defined as grievous bodily harm.  The defence accept this fact.  The fractured ribs coupled with numerous bruises and wounds over his body are really serious bodily harm I find suffered as a result of a physical attack. 

7.  Prosecution called three witnesses who were all present that early morning in the shop in Temple Street.  They all gave evidence that implicated the 3rd defendant in the joint attack of the victim. I intend to refer to the evidence relevant or against the 3rd defendant only and not against the other two defendants who pleaded guilty.  It is simply not necessary or practical for me in the course of these reasons for verdict to repeat their evidence in full or to identify individually every discrepancy real or perceived. 

8.  I have borne in mind all of the evidence of all of the witnesses, their strengths, the weaknesses, the contradictions, the discrepancies and the support that is to be found amongst their evidence for one another and all of the points that have been made about, for and against by the prosecution and the defendant.  That I do not mention a particular piece of evidence or answer does not mean that I have not considered it or factored it into my decision-making.

9.  PW1 was in the shop that material evening repairing a motorbike inside the premises with the 1st defendant.  At about dawn, he saw the 2nd defendant arrive with the victim.  The 2nd defendant had his hand on the victim’s shoulder guiding him into the shop.  He saw the 1st and 2nd defendant assault the victim.  He saw the 3rd defendant enter the shop.  He describes the 2nd defendant assaulting the victim with a hook, a caribiner, to hook his mouth.  He saw the 2nd defendant gag the victim with a strap.  Both items had the victim’s DNA found on them.  He describes the 1st defendant punching the victim.  He describes the 3rd defendant hitting the victim on his head area with an extendable baton about five times.  He saw the 3rd defendant hold a multipurpose knife to the victim’s throat for about 10 seconds.  He did not see if the knife touched the victim’s throat but he heard the victim shouting.  The victim later curled up on the ground and he saw the 3rd defendant kick the victim whilst on the ground a few times with his heel.  He later saw the 3rd defendant try and resuscitate the victim by doing CPR and mouth to mouth resuscitation.

10.  When he was cross-examined, he admitted there were some discrepancies between his evidence in court and his witness statement.  For example, he described the extendable baton as black but in his statement he said it was silver.  He said it was hard when extended but not an antenna.  He said it was thicker than a pen and as thick as the base of the microphone on the witness stand.  He admits he referred to the 3rd defendant’s shoes as black boots in oral evidence but said he wore white sports shoes in his witness statement.  He admits in his oral evidence he may have mixed up the sequence of events and assaults on the victim.  He is sure his statement must be the correct version of events.  He said he was telling the truth but was not recalling the sequence of events accurately.  He admits there were people there that evening who took Ice inside the shop.

11.  PW2 knew the shop well and often hung out there.  He received a call from the 3rd defendant and left home at about 4 to 5 am to go to the shop.  The 3rd defendant told him to go there and said the 2nd defendant would be there too.  He arrived and saw the 1st, 2nd and 3rd defendant, the victim and others already there.  He describes the 3rd and 2nd defendant accusing the victim of stealing, of causing trouble between brothers and cheating the 2nd defendant.  He describes the 3rd defendant as accusing the victim when both were almost nose to nose.  He describes there being pushing and bumping and says they were so close there should have been bodily contact. He said the 3rd defendant spoke but the victim kept denying everything. The 3rd defendant was not happy with the repetitive denials.  He saw the 3rd defendant push the victim’s chest but does not recall other assaults.  He saw the 1st defendant assault the victim, he saw the 2nd defendant assault the victim by pretending to hook up his mouth and did use a strap to gag his mouth.  When the victim was on the ground, he saw the 3rd defendant use his foot to prod the victim’s lower back and side telling him to “Get up”.  The 3rd defendant was close to the victim when others assaulted him.  He saw the 1st and 3rd defendant try to resuscitate the victim before taking him to hospital in a vehicle.  He denies he lied when he said the 3rd defendant told him to meet him at the shop.  He did not see the 3rd defendant use an antenna to hit the victim nor threaten him with a knife. 

12.  The third prosecution witness went to the 1st defendant’s shop at about 1 to 2 am and saw the 1st defendant, PW1 and others there already.  She played on the computer there.  The 1st defendant went out of the shop and returned with the 2nd defendant, the victim and one or two Pakistani gentlemen that subsequently left soon after.  She heard the 2nd defendant threaten the victim with violence.  She saw the 2nd defendant assault the victim intermittently and the victim was not allowed to react or make any noise when he was hit. 

13.  She saw the 3rd defendant arrive who she did not know.  She saw the 1st, 2nd and 3rd defendant then go out the back of the premises to chat before returning.  She saw the victim stood in the middle of the shop in front of the glass cabinet counter.  She heard the 2nd defendant point at the victim and say “What about this thing here” and then the men moved the motorbike away as if clearing space around the victim.  PW3 felt there was something wrong by then.  The 1st, 2nd and 3rd defendant moved to the victim and all shouted at and scolded him.  When this happened, PW3 moved away from that group. 

14.  She saw the 3rd defendant point at the victim and shout at him accusing him of losing all credibility amongst brothers.  The 3rd defendant grabbed the victim’s chin or jaw and pointed at his nose whilst scolding him.  He kept scolding the victim vehemently and relentlessly.  She described the 2nd defendant getting a hook and act as if he was going to hook up the victim by his mouth.  She heard the victim shout at the 1st defendant to help him or save him.  The 2nd defendant then gagged the victim’s mouth with a strap.  She saw the 3rd defendant loosen the gag whilst scolding the victim.  She saw the 3rd defendant slap him lightly when he did not answer him.  She describes all three defendants surrounding the victim at one stage and assault him together using arms and legs.

15.  She watched the 1st defendant and the 2nd defendant assault the victim separately.  She said he was kicked whilst on the ground, punched and prodded by the 3rd defendant using his foot, telling the victim not to pretend.  She described the atmosphere as “tense” and she felt they were being cruel to the victim. She said the three men left the victim on the ground and moved away to talk. 

16.  The 3rd defendant came back after a while and realised that the victim was not conscious.  He tried mouth to mouth resuscitation and CPR.  PW3, realising that the victim was in trouble, told them to take him to hospital.  PW3 then said it got very chaotic.  She agreed the 3rd defendant told the 2nd defendant to stop kicking after the victim fell to the ground and was unresponsive. 

17.  The 3rd defendant found it difficult to give evidence and was frustrated by having to stop every sentence to have her evidence translated.  The procedure confused her and agitated her.  She wanted to talk uninterrupted.  Ultimately she repeated her evidence again.  She also refreshed her memory by reading her witness statement made over six months before the trial.  She had not read it once since she made it.  She did not see an extendable baton nor anyone use or hold a knife.  In cross‑examination she was taken to her statement in her evidence and taken to a discrepancy in her description of the assault.  She did not agree there was a discrepancy.  She said her statement could not express all that she had to say or all she saw. It was the statement-taker that composed the statement as she spoke. 

18.  She said her oral evidence was in more detail and the truth.  She did not see anyone take Ice, dangerous drugs.  She did not see the 3rd defendant hit the victim with a silver-coloured antenna, as it was put to her.  She was sure all three did at one stage surround the victim and hit him at the same time, describing legs and arms moving, meaning he was assaulted by kicks and punches.  At that time he was curling up and crouching over, obviously to protect himself.  He then fell to the ground.

The Defence Evidence

19.  The defendant elected to give evidence.  He had arranged to meet the 1st and 2nd defendant at the 1st defendant’s shop and arrived at about 5 am to chat and have tea.  When he arrived, the 1st defendant was fixing his motorbike inside the shop.  The 2nd defendant was at the glass cabinet and the victim was stood quietly in front of that cabinet with his head bowed.  The victim had his hands behind his back and glanced at the 3rd defendant when he came in.  The victim looked guilty.  He did not look like he was in any pain at that stage. 

20.  He heard the 1st and 2nd defendant accusing the victim of stealing and the victim denying all accusations repeatedly.  He then approached the victim to ask if he had done, had stolen.  The defendant did it to act as a mediator, a peacekeeper.  The defendant wanted to resolve the issue so got involved.  He describes the 1st and 2nd defendant’s actions but for his part when the victim denied stealing, all he did was pat him on the head lightly and ask him if he did it.  The 3rd defendant did pick up a bendy silver antenna and tap the victim’s shoulder lightly with it.  The 3rd defendant stopped when the victim warded the antenna away. 

21.  Then the 3rd defendant left the 1st and 2nd defendant to it.  He went to the toilet after saying he did not care what was going on.  When he was in the toilet he heard noises and shouts.  When he re-entered the shop, he saw the victim on the ground with the 1st and 2nd defendant stood over him.  The 1st defendant kicked the victim twice; the 2nd defendant had a strap in his hand and was pulling on it.  The 3rd defendant yelled at them to stop.  The victim was motionless on the ground so the 3rd defendant prodded him to get a reaction and told him to get up.  He did not kick him to hurt him.

22.  When the victim did not respond, the 3rd defendant tried to help him by performing CPR and mouth to mouth resuscitation.  The 3rd defendant suggested taking the victim to hospital and told the 1st defendant to fetch his vehicle. 

23.  The 3rd defendant did not ever hold a knife to the victim’s throat nor did he foresee the victim suffering any grievous bodily harm.  He himself did not intend to cause grievous bodily harm to the victim.  He was not there to hurt the victim nor did he plan to meet others there to hurt the victim.  He did see the 1st defendant, PW3 and PW1 take dangerous drugs whilst he was in the shop.  He did not see anyone use any weapons against the victim.  He denied that he got angry when the victim denied the theft allegations.  He just wanted to resolve the issue, stop the whole scenario, which is why he joined in.  Later, he went to the toilet when he realised it had nothing to do with him.  He believed the victim was beaten when he was inside the toilet but said “No one but the deceased can tell you this”.  He denied he accused the victim of making trouble between brothers or losing credibility. He does not recall if he called PW2 to meet him at the shop with the 2nd defendant.  That is the crux of the 3rd defendant’s evidence.

The Law

24.  The prosecution has the burden to prove all elements of the 1st charge against the 3rd defendant beyond reasonable doubt. The 3rd defendant does not deny there was some physical contact between himself and the victim.  He does not deny that the victim ultimately suffered grievous bodily harm.  He does deny he had the intention to cause grievous bodily harm to the victim.  He does deny there was a joint enterprise between the three defendants to take part in a course of criminal conduct, here to wound the victim.  He was prepared to plead to the lesser charge, a section 19 offence.

25.  In defence counsel’s final submissions, it was submitted if I did not find enough evidence to show the 3rd defendant had the necessary intent, I could consider a section 19 charge in the alternative proved beyond reasonable doubt. 

26.  Prosecution have to prove the defendant unlawfully and maliciously caused grievous bodily harm to the victim.  The 3rd defendant denies he did cause grievous bodily harm to the victim.  He does not dispute the grievous bodily harm suffered was as a result of a physical beating.  He did not see the beating nor take part in the beating nor agree to jointly beat the victim. 

27.  This charge requires proof of an unlawful and malicious act.  The 3rd defendant does not argue or dispute there was no such act, only he did not participate in the act.  It is not challenged the victim suffered grievous bodily harm, he suffered multiple injuries of varying degrees of seriousness with the fractured ribs defining and constituting really serious bodily harm.  On any commonsense view, his four rib injuries alone are capable of being really serious injuries. 

28.  The intent required can be inferred from the whole of the circumstances.  Prosecution must prove the defendants jointly intended to do the victim some grievous bodily harm.  The circumstances of the assault must be enough to infer the defendants intended by their acts to cause him grievous bodily harm.  I must find the 3rd defendant intended to cause serious bodily harm to the victim.  I must consider all the relevant circumstances.  Is there the necessary foresight of the consequences to infer the necessary intent?

29.  Prosecution say all three defendants together inflicted the injuries on the victim.  In a case of joint enterprise, it is the totality of the injuries which are to be considered in relation to a section 17 charge.  If there is a joint enterprise to commit the offence then each participant will be criminally liable for all acts done in pursuance of the joint enterprise.  It will not matter which participant struck the blow that fractured one or more of the victim’s ribs in this case.  The issue is whether they were all a party to a joint enterprise. 

30.  The 1st and 2nd defendant pleaded guilty to a joint enterprise.  Their admissions and pleas are not evidence against the 3rd defendant.  They are not to be taken into account as an indication of the 3rd defendant’s guilt or participation in the joint enterprise.  I have only taken into account the evidence of PW1, 2 and 3 against the 3rd defendant. Ultimately the issue is whether there was a joint enterprise that included the 3rd defendant to intend to cause grievous bodily harm to the victim. 

My Findings

31.  I have considered the evidence of each prosecution witness and I do find that each prosecution witness does not give the exact same account of the events in the shop premises.  PW3 would be the most detailed witness.  However, when I compare their evidence, I do not find any material or serious discrepancies but omissions or gaps.  I do not find contradictions, more omissions.  I do not reject one and believe another just because their evidence is not similar or supportive.  It is not surprising in a situation such as this.

32.  The incident took place at around dawn when there were obviously many people inside the shop.  Most were spectators or merely present.  The witnesses were viewing the assaults from different vantage points and probably not at all times or the same time. 

33.  PW3 was the most descriptive.  I find her evidence indicates a concerted and calculated attack on the victim.  When I re-read her evidence, I find her evidence is that the three men were against the victim as one.  Once all three were together in the shop, they dealt with the victim together.  It began by the 2nd defendant saying “What about this thing here”, referring to the victim stood before them.  The bike was then moved as if in anticipation of a physical attack or struggle.  All three left and returned as if they had conferred before the verbal and physical abuse of the victim.  She described the situation as tense and that preceded the attack and blows which ended in the victim collapsing. 

34.  Clearly, all three prosecution witnesses are sure that the 3rd defendant was the verbal and aggressive accuser.  In this aspect they agree.  The 3rd defendant is described as accusing the victim nose to nose in a very close proximity by PW2.  PW3 describes the 3rd defendant holding the victim’s jaw or chin with one hand and using a finger of the other hand to poke his nose whilst scolding him.  That action suggests the 3rd defendant knew the victim would not retaliate.  I am sure because it was three against one and the victim would not have dared.

35.  All three prosecution witnesses’ evidence although not without their weaknesses do not smack of fabrication, in my opinion.  There is a common denominator and that is that the 3rd defendant along with the others did as a unit accuse verbally and physically assault the victim.  The degree of participation of the 3rd defendant does vary with each prosecution witness but the fact is they all gave evidence he did join in the attack on the victim.  Only PW1 saw the 3rd defendant hit the victim with a baton that extended.  However, the defendant admitted he did this albeit with a pliable extendable antenna, not a hard baton-like weapon.

36.  It was also PW1 who saw the 3rd defendant hold a knife to the victim’s throat when the others did not say they saw this, yet the Pathologist’s report reports a fresh, recent superficial incised wound across the victim’s left middle front neck.  That would be consistent with a knife held to his neck as demonstrated by PW1 in the witness-box.

37.  I do find from the prosecution witnesses’ evidence that there was a planned abuse of the victim.  I do find I can infer from the evidence as a whole that it was the three defendant punishing the victim and it was both verbal abuse as well as physical abuse that led to serious bodily harm.  I am satisfied that despite some discrepancies and some confusion in the sequence of events that night in June last year, in particular in PW1’s evidence, they were not serious enough for me to doubt the reliability and credibility of the prosecution witnesses.

38.  As I have indicated, PW3 was the better of the three witnesses and she did not know the victim nor the 3rd defendant well, therefore having no reason to exaggerate or embellish her evidence.  I placed weight on her evidence.

39.  I have considered defence counsel’s submission relating to the weaknesses of the prosecution witnesses’ evidence.  He suggests the witnesses, in particular PW1, may have taken drugs that evening, PW1 because he refused to answer a question that may have implicated him.  Nevertheless, I do not reject the prosecution witnesses’ evidence but in fact find and infer from their evidence there was a joint enterprise between the 1st, 2nd and 3rd defendant to beat and assault the victim. 

40.  I reject the defendant’s evidence as an attempt to distance himself from the 1st and 2nd defendant’s actions.  He fails in his attempt to place all blame on the 1st and 2nd defendant whilst portraying himself as a mediator or peacemaker, a term he readily adopted when it was suggested quite ironically by the prosecution in cross-examination.  He repeated several times thereafter that that was the role he intended to play, not a role in any joint agreement to punish and beat the victim. 

41.  His evidence that the victim was obviously beaten badly whilst he was in the toilet for a few minutes is desperate.  It is not believable.  I do not accept his role was passive and he only spoke to and tapped the victim on the head and shoulder to help him resolve his issue with the 1st and 2nd defendant.  I am sure his role was anything but passive and mediatory.  I am sure that it was not his intention to help the victim resolve the issue but in fact the opposite.

42.  The fact he applied CPR and tried to help the victim after he collapsed is not any indication of his innocence.  The fact that the told the 2nd defendant to stop kicking when the victim was on the ground is also too late.  These are facts after the event, after the commission of the offence. 

43.  Defence counsel submitted that the prosecution witnesses do not describe the 3rd defendant’s violence towards the victim as harsh or forceful suggesting he did not contribute to his serious injuries. However, as I said earlier, where the doctrine of joint enterprise is concerned, if there is a joint agreement between two or more persons to take part together in the furtherance of a crime then each participant is criminally liable for all the acts done in pursuance of that agreement.

44.  I referred myself to the authority of HKSAR v Sze Kwan Lung FACC Nos. 5 & 6 of 2004 where Mr Justice Bokhary PJ discusses the doctrine of joint enterprise.  It is a discussion I took into account and quote from now, in particular paragraphs 33 to 35.

“33. Joint enterprise is an expression used to denote the conduct of two of more persons who take part together in a course of criminal conduct. So many and varied are the circumstances in which the doctrine of joint enterprise operates that no single case can be expected to provide an occasion for discussing every aspect of the doctrine. One such set of circumstances by no means uncommon in the experience of our courts is where multiple injuries are inflicted on a victim set upon by a group of assailants. Many injuries are inflicted, only one injury proves fatal and the evidence does not show which assailant inflicted the fatal injury. The circumstances of the present case are comparable since the prosecution is unable to say which particular person actually started the fire.

34. While this is not the occasion for giving a definitive decision on the entirety of the doctrine of joint enterprise, it is my view, as indicated above, the doctrine is distinct from the common law principles of aiding, abetting, counselling or procuring. Each participant is criminally liable for all the acts done in the pursuance of the joint enterprise and whether or not he intended it, he will be criminally liable for any such act if it was of a type which he foresaw as a possible incident of the execution of the joint enterprise and he participated in the joint enterprise with such foresight. This may be traced at least as far back as Alderson B’s famous direction to the jury in Macklin and Murphy’s case [1838] 168 ER 1136 and it is the effect of our law as it has been clearly understood at least since the decision of the Privy Council on appeal from Hong Kong in Chan Wing-siu v R [1985] AC 168 which involved murder and wounding with intent. I have particularly in mind what Sir Robin Cooke, as Lord Cooke of Thorndon then was, said at page 175 G to H and 177B in the course of delivering their Lordship’s advice in that case.

35. After examining the authorities in Australia and New Zealand as well as in England Sir Robin Cooke said this at pages 177G to 178B.

”The test of mens rea here is subjective. It is what the individual accused in fact contemplated that matters. As in other cases where the state of a person’s mind has to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time, including of course any explanation that he gives in evidence or in a statement put in evidence by the prosecution. It is no less elementary that all questions of weight are for the jury. Prosecution must prove the necessary contemplation beyond all reasonable doubt, although that may be done by the inference as just mentioned.”

45.  Firstly, from the evidence of the prosecution witnesses, I find I can infer from the 3rd defendant’s conduct that he foresaw at the material time that the conduct of all three defendants would cause the victim grievous bodily harm.  To be kicked and punched by three men over a period of time both individually and at the same time will foreseeably cause really serious injury.  Secondly, I infer from the prosecution’s evidence that there was a joint enterprise of all three defendants to hurt and punish the victim.  With these findings, the 3rd defendant is as criminally liable as the 1st and 2nd defendant for all the acts done and the consequences that followed, in this case grievous bodily harm. 

46.  Defendant, please stand up.  Accordingly, I find the prosecution can prove beyond reasonable doubt that the 3rd defendant had the intention to cause the victim grievous bodily harm, therefore I find the 3rd defendant guilty of charge 1 after trial and convicted.