HKSAR v. WU WAI CHIU AND OTHERS

DCCC 585/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 585 OF 2014

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REASONS FOR VERDICT

1. The defendants plead not guilty to a single charge of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance, Chapter 212.

Introduction

2. On the night of the 27 October 2013 Mr Wu Cheuk Hung was brought to the Accident & Emergency Department of the Tuen Mun Hospital with a head injury.  Mr Wu was then admitted to the Department of Neurosurgery where two laceration wounds over the left side of the head were sutured.  After suturing Mr Wu was stable and discharged from hospital on the 29 October. 

3. The defendants and Mr Wu are all indigenous villagers living in Fung Kong Village in Yuen Long.  The prosecution case in summary is that Mr Wu sustained the wounds when there was a dispute in the village during which Mr Wu was pushed to the ground and attacked by the defendants in the course of which D1 used a chopper to chop the head of Mr Wu.  The defence case in summary is that there was no attack on Mr Wu and that the injuries sustained by Mr Wu were caused when he accidentally fell over a metal trolley. 

Evidence

4. The prosecution called Mr Wu Cheuk Hung (PW1) and three of his family members who witnessed the incident namely Mr Wu Cheuk Hong (PW2) the younger brother of PW1; So Ka Wo (PW3) the brother-in-law of PW1; and Wu Po Shan (PW4) the younger sister of PW1 and PW2 and the wife of PW3.  Dr Wong Kwun Bun (PW12) who attended PW1 on his admission to the Accident & Emergency Department; Dr Ho Nga Sze (PW13) of the Department of Neurosurgery who sutured the wounds and PC 34880 (PW14) who attended the scene in response to a report of fighting, were also called. 

5. Evidence has also been admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibit P3), including the arrest of the defendants and the production of photographs (exhibit P1) showing the location where PW1 sustained the head injury. 

6. Also admitted in evidence is that D2, D4 and D5 have clear records.  In considering good character I direct myself in accordance with the decision in HKSAR v Tang Siu Man [1997-98] 1 HKCFAR 107.

7. The defendants all elected not to give evidence.  No adverse inference is drawn against the defendants for remaining silent.  That is their right.  This proves nothing one way or the other. 

8. Three witnesses were called on their behalf namely Mr Wu Hop Hing (DW1), the village head who was present when PW1 was injured; and Mr Wu Yuk Man (DW2) and Mr Wu Wai Yin (DW3) who are both brothers of PW1, PW2 and PW4’s father.  DW2 said he witnessed the incident from the balcony of his home and DW3 gave evidence as to a lunch meeting in which he said the family mentioned about framing D3.     

9. I have carefully considered all the evidence and the submissions of all counsel.  Clearly there was an incident in which PW1 suffered injuries to his head.  The issue to be determined is how those injuries occurred and who if anyone caused those injuries.

Background

10. In the days prior to PW1 being injured there was another incident concerning PW1’s family and the family of D1 and D5.  This has become known as the dog barking incident. I do not propose to detail this incident save to note that counter allegations of assault were made resulting in the police being called after which the matter was apparently settled.   

11. The significance of this incident is to highlight that there was ill feeling between villagers.  This is also shown by the fact that, the same night, shortly before PW1 was injured, a window of PW3 and PW4’s home was broken followed by a confrontation outside their home. 

12. There would also appear to be ill feeling between members of PW1’s family.  In cross-examination PW2 agreed a few years ago there was a fight between his father and one of his uncles.  The fact two of PW1’s uncles (not those involved in the fight) have given evidence against PW1 also show all is not well within the family. One would not expect close family members to give evidence against other family members, in particular where one has been seriously injured.

13. With this background I am satisfied I must view all the evidence with extreme care and caution.  The defence evidence materially conflicts with the evidence of PW1-PW4.  I was not impressed with the three defence witnesses.  The criticisms made by Mr Kelly of their evidence are in my view valid.  The defence however need prove nothing.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  I direct myself that I must be sure of the guilt of each defendant before I can convict, the case of each defendant to be considered separately. 

Consideration of the prosecution evidence

14. In summary as set out in the introduction the prosecution case is that Mr Wu was pushed to the ground and attacked by the defendants in the course of which D1 used a chopper to chop the head of Mr Wu.  The defence submit there are significant and material discrepancies in the evidence of PW1-PW4 as a result of which the court cannot safely rely on their evidence.  Criticism is also made of the medical evidence, in particular that the medical evidence does not support the attack described by PW1-PW4.   

15. In what was, on anyone’s account, a fast moving incident it is only to be expected that there would be discrepancies between witnesses about exactly what happened.  With this in mind I turn to consider whether the prosecution evidence is both credible and reliable.  There are aspects of the evidence which require careful scrutiny.

PW1

16. In my view an important aspect of the evidence is how PW1 came to fall on the ground for it is after he fell on the ground that the attack is said to have taken place.  In evidence PW1 said he walked over to House 12 to ask D3 why he was shouting and at that time fell down.  PW1 did not see what caused him to fall down.  In cross-examination PW1 was referred to his witness statement in which he said that he ran to the direction of D3 and that while running he bumped into a bicycle and then someone pushed him over. When this discrepancy was drawn to his attention PW1 said that the meaning was the same and that all in all he fell down.

17. PW2, PW3 and PW4 all said that PW1 ran towards D3.  Only PW4 testified in terms similar to what PW1 told the police namely that PW1 first stumbled on a bicycle after which he was pushed and pressed to the ground.  Neither PW2 nor PW3 testified that PW1 was pushed down by someone else.  PW2 testified he could not see what caused PW1 to fall down.  PW3 testified that for some unknown reason PW1 suddenly fell down. 

18. Whilst one could say the evidence is in essence the same in that PW1 fell down this would in my view overlook the importance of this aspect of the evidence for if PW1 was pushed to the ground this would lend support to the fact PW1 was attacked and not that he accidentally fell over causing the injuries to his head.  That PW2 and PW3 could not see what caused PW1 to fall on the ground is surprising considering they were watching what was happening.

19. Aligned to this is the evidence given in cross-examination by PW2 that he told the police in his witness statement that prior to being attacked PW1 had a fierce argument with some of the defendants.  Although no other witness mentioned this argument and PW2 denied there was in fact any argument, let alone a fierce one, the suggestion there may have been an argument prior to the attack throws a different light on the circumstances surrounding the incident. 

The chopper

20. Although PW1 testified he saw D1 holding a chopper he never told the court or the police that he was hit by the chopper.  That PW1 was unable to describe being hit on the head with a chopper may seem surprising.  This however is perhaps explained by the fact PW1 is on the ground being attacked by a number of people and therefore cannot be expected to distinguish how he was attacked.

21. Further as Mr Kelly submits if PW1 and his family wished to fabricate the case against D1 and others all PW1 needed to say was that he was hit on the head with the chopper.  The fact PW1 does not say this can be said to lend credibility to his account of what happened.

22. The chopper was never recovered by the police.  PW3 testified that on seeing D1 wanting to continue chopping PW1 he put his arm round D1’s neck, snatched the chopper and pulled him away.  PW3 then threw away the chopper in a passageway (which he marked on exhibits P2B & P2C) after which he let go of D1.  Thereafter PW3 did not pay attention to D1.  The police arrived approximately five minutes later but were unable to find the chopper.

23. Asked by the court why he did not keep hold of D1 until the police arrived PW3 explained, for the first time, that D1 resisted and therefore it was impossible for him to keep hold of D1 for such a long time.  PW3 also explained that after D1 left he did not recover the chopper to hand over to the police because he wanted to see the condition of his brother-in-law, who might be dying having been chopped twice on the head. 

24. I was not impressed with PW3’s evidence.  Whilst accepting PW3 would be concerned for the well being of his brother-in-law there seems no good reason why the police were unable to find the chopper.  In considering this evidence I also note the evidence of the sister (PW4) that she did not at anytime see a chopper.  I also take into account no one was able to explain from where D1 obtained the chopper only that they saw him holding a chopper. 

Medical evidence

25. I accept the criticisms made of the medical evidence, in particular that the injuries do not support the evidence that PW1 was kicked to the head by at least five assailants. 

Identification

26. The defendants were all well known to PW1, PW2 and PW4 and to a lesser extent to PW3.  Mistaken identity is therefore less likely but mistakes are sometimes made.  In considering the identification evidence I have taken into account the lighting condition prevailing at the time and warned myself of the dangers of mistaken identification in accordance with the principles established inR v Turnbull [1976] 63 Cr App R 132. 

27. Whilst the issue of identification only arises in the event I am satisfied PW1 was chopped and kicked there are aspects relating to the identification which give me real concern as to the reliability and credibility of the prosecution witnesses.

28. In evidence-in-chief PW2 testified that after the incident D1 went to house 18 and stood there whilst the persons who kicked PW1 stood outside house 14.  In answer to the court PW2 said the police arrived approximately five minutes after the incident at which time D1 was still outside house 18 and the others still outside house 14.  PW4 also testified that when the police arrived D1 and D5 were outside D5’s home (house 18) and the others who assaulted PW1 were at the doorway where the incident happened.  If this is correct it seems most surprising none of the culprits were there and then pointed out to the police so that they could be arrested.   

29. Further the names of D2 and D3 were not mentioned to the police when enquiries were made at the scene.  PC 34880 (PW14) testified that he located PW2 and PW3 and in cross-examination agreed that they made no mention of D2 and D3 being involved in the attack.  In cross-examination PW2 agreed together with PW3 he spoke to the police who asked what happened and who was involved.  When put he did not mention the names of D2 or D3 PW2 explained at that time it was just a preliminary statement and only at the police station did he give a detailed statement. 

30. D2 and D3 being well known to PW2 and to a lesser extent PW3 it seems surprising that if they were involved in an attack on PW1 neither PW2 or PW3 mentioned their involvement to the police when enquiries were made at the scene.

31. Similar criticism can also be made in respect of the identification of D4 by PW2.  D4 is a person PW2 had known for a long time and whose name he said he knew.  When put in cross-examination he did not give the full name of D4 in any of his three witness statements PW2 disagreed with this saying that when he first went to the police station he mentioned the nickname of D4 as he did not know the full name. 

32. On being shown his first witness statement PW2 agreed the nickname of D4 was not written in the statement.  When put the nickname was also not in his second witness statement made six weeks later on the 13 December 2013 PW2 explained that after giving the first witness statement he went back to the police station and gave the full name of D4 to the police. 

33. PW2 disagreed that in the second statement he was still telling the police he did not know the full name of the woman involved.  On being shown the statement in which it is stated he does not know the name of the female PW2 disagreed this was because D4 was not involved in the incident.   

34. I was not impressed with the evidence of PW2 regarding his identification of D4.  I do not find credible his answers attempting to explain why in the first two witness statements it is recorded that he did not know the name of the woman involved. 

35. There is also the evidence of PW3 that a young unknown man was involved in the attack. Whilst PW3 had at the time of the incident lived in the village for less than a year he knew the defendants.  This description of a young unknown man not only does not match any of the defendants but no other witness spoke of this person being involved.  All other witnesses saying only the defendants were involved this discrepancy is difficult to reconcile.

36. I have also borne in mind the evidence of PC 34880 (given in cross-examination) that he responded to a call concerning a fight involving 20 something people.  Although evidence has been heard that DW1 telephoned the police it is not known whether it is in response to that call PC 34880 attended the village.  Whoever made the call reporting there was a fight involving 20 something people is very different to what the witnesses have described as happening on that night. 

37. These are some of the aspects of the evidence which give me cause for concern.  I have also considered the many discrepancies drawn to my attention by the defence.  Whilst some of the discrepancies and improbabilities in the evidence are open to explanation when these are looked at cumulatively I find I am left with a doubt that the incident occurred in the way variously described by the witnesses and that PW1 was injured in the way they say.  The benefit of the doubt is given to the defendants and they are acquitted of the charge.