HKSAR v. DA SILVA SANTOS ALEXANDRO

CACC 83/2023, [2023] HKCA 1007

On Appeal From [2023] HKDC 396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 83 OF 2023

(ON APPEAL FROM DCCC NO 1009 OF 2021)

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D E C I S I O N

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1.  The applicant was convicted after trial of one charge of ‘wounding with intent’, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212 (17 March 2023) and was sentenced to 12 months’ imprisonment (31 March 2023). Having filed his notice of appeal against conviction (28 April 2023), the applicant applied for bail pending appeal (7 August 2023). I refuse his application. These are my reasons.

The Case

2.  Annex I is the prosecution’s opening. It summarises the facts and background giving rise to the case. The CCTV footages hence chronology of events mentioned therein were unchallenged. There was also no challenge to the applicant’s video interview containing his admissions of (a) acquiring for himself a makeshift weapon and (b) attacking Bali. The applicant having elected to remain silent, the only real issue was whether he had acted in self-defence. The trial judge rejected that defence ([2023] HKDC 396).

The Ground of Appeal

3.  Annex II is the applicant’s perfected grounds of appeal. They were settled by Mr Kamlesh Sadhwani. In the application before me, Mr James Sherry acted as his counsel.

Discussion

4.  Annex III is the part of Mr Sherry’s written submissions which described the physical layout of the alleged scene of crime and what the CCTV on site captured before, during and after Bali’s attack. Even on that description, “the men” were running away from the applicant who had just made it through the fire door. It is perfectly consistent with what the judge said about the applicant obviously scaring a man and security guard off and going straight for Bali. It was only after the quick attack that he was pushed back out of the fire door by PW5 and other men. Before the attack, the applicant even had the time and safety to pace the LG floor where the main exit of the building was located and got himself a metal bar for a weapon. See paragraphs 43, 60, 61, 62 and 63 of the Reasons for Verdict. In the circumstances, whatever prior fight or quarrel might have taken place between Bali and the applicant, I can see no basis for raising the defence of self-defence. He could have left the building but did not and instead, went looking for trouble. R v Rashford [2005] EWCA Crim 3377 on revenge attack turned self-defence has no application because there was no evidence that “the violence offered by [Bali and/or his associates] was so out of proportion to the [applicant’s] own actings as to give rise to the reasonable apprehension that [the applicant] was in an immediate danger from which he had no other means of escape” (paragraph 19 of the judgment). The key issue thus falling away, the rest of the applicant’s complaints (e.g. the judge failing to direct herself on the onus of proof with reference to self-defence) are but red herrings.

Conclusion

5.  The applicant’s appeal is not in my judgment reasonably arguable. It follows that the time factor (12 November 2023 being his earliest release date) is of no assistance to him and I refuse him bail.

Annex I

The Incident

1.  At :30am or thereabouts on 22 April 2021, a dispute arose between the Defendant and Bali Sharan Pal Singh (“Mr Bali”) at the “Port LKF Bar situated at 3/F, Ho Lee Commercial Building, Nos. 38-44 D’Aguilar Street, Central, Hong Kong (the “Building”).

2.  Shortly thereafter, the Defendant left the Bar. Mr Bali and his friends also left the Bar and went down the staircase to the UG Floor of the Building. The CCTV recording of the Building depicted the Defendant to be on LG Floor of the Building where the exit was located.

3.  At about 1:37am the same day, the Defendant returned to UG Floor with a metal pipe in his hand, with which he stabbed Mr Bali’s left forehead several times. The incident was captured by the CCTV camera of the Building. (1^st Charge)

4.  The Defendant then rushed towards the exit on LG Floor of the Building. …… The Defendant then left the Building. This incident was also captured by the CCTV camera of the Building. (2^nd Charge)

……

Video-Recorded Interview

9.  On 23 April 2021, a video-recorded interview was conducted with the Defendant. Under caution, the Defendant admitted that:-

11.  Under caution, the Defendant also positively identified himself in the CCTV footage which captured him assaulting Mr Bali with the metal pipe at UG Floor of the Building and knocking down Madam Yan with his hands in the lobby of the LG Floor of the Building.

……

Annex II

1.  The Learned Deputy Judge erred in that arriving at the conclusion that the Applicant did not act in self defence, the need for self defence was not present and the Applicant initiated the attack without any immediate threat to himself: AB 35K-39C, RFV 21K-25C; AB 37P-R, RFV 23P-R; AB 38O-S, RFV 24O-S, in that:-

(a)  The Learned Deputy Judge in her RFV did not direct herself as to the law of self defence, particularly in relation to the burden and standard of proof, honest/genuine belief and the partly objective and partly subjective tests.

(b)  The Learned Deputy Judge did not take into account or did not place sufficient weight to the incidents that occurred in PORT (where the Applicant was assaulted) at UG, LG levels and outside the Building (where the Applicant was once again assaulted) thereby giving the Applicant cause to act in self defence: AB 21M-O, FRV 21M-O, particularly in regard to the nearness of time in between all these incidents.

(c)  The Learned Deputy Judge erred in finding the Applicant targeted Bali and had returned with a weapon to attack Bali AB 36E-I, RFV 22E-I. The Learned Deputy Judge failed to consider that Bali had assaulted him with a bottle just before the Applicant apparently attacked Bali and that it was reasonable to infer the Applicant would be dizzy and there was no way out of the building for the Applicant.

(d)  The Learned Deputy Judge in her RFV found the Applicant returned to locate Bali specifically to initiate an attack on him: AB 36O-Q, RFV 22O-Q. She did not direct herself as to the mere fact that when a defendant goes somewhere in order to exact revenge from the victim (which is denied by the Applicant), that does not in itself rule out the possibility that if any violence that ensues, self defence is necessarily not available as a defence: R v Rashford [2006] Crim LR 547.

(e)  The Learned Deputy Judge erred in finding the Applicant could have safely left the building and therefore the need for self defence was not present: AB 37P-R, RFV 23P-R & 38E-G, RFV 24E-G. The Applicant in his VRI stated there was no other way out and he could not run away and could not escape, which remain uncontradicted: AB 320, VRI 83 counters 842 & 848.

(f)  The Learned Deputy Judge erred in finding the Applicant was not fleeing for his life and the Applicant and had ample time to walk out of the building.

(g)  The Learned Deputy Judge erred in finding there were no circumstances the Applicant was forced to fight for his life, choosing to return, to find and attack Bali: AB 38O-S, RFV 24O-S. The Learned Deputy Judge in this regard did not take into account the Applicant (in the VRI) felt there was no way out and could not run away anymore and he was going to die: AB 319-320, VRI counters 827-848, which remains uncontradicted.

(h)  The Learned Deputy Judge erred misunderstanding that just because the Applicant had been to PORT on a number of occasions he must have been familiar with his way around the Building: AB 38E-G, RFV 24E-G.

2.  The Learned Deputy Judge erred in giving full weight to the inculpatory statements (namely the Applicant’s VRI) and not giving any weight to the exculpatory statements: AB 27G-I, RFV 13G-I. In Li Defan v HKSAR [2002] HKCFA 40 the whole of the statement can be taken into account as to where the truth lies.

3.  The Learned Deputy Judge erred in accepting the evidence of PW5 [AB 34H-L, RFV 20H-L] for the following reasons:-

(a)  The Learned Deputy Judge failed to take into account or place sufficient weight in that PW5 and Bali were in an employer and employee relationship which casts doubt about PW5’s independence as a witness.

(b)  The Learned Deputy Judge wrongly accepted that PW5 did not know the men who were at the fire escape with him and Bali before the attack and did not hear or could not recall the conversations between Bali and the men: AB 39D-J, RFV 15D-J. The same is applicable as to PW5 not being able to explain the presence of the men at UG floor: AB 30I-N, RFV 16I-N. Given the proximity of PW5 to these men and Bali at the fire escape and given these men were in PORT with Bali and PW5 before going to the fire escape, the Learned Deputy Judge’s reasoning in this regard is erroneous.

(c)  The Learned Deputy Judge erroneously accepted that PW5 and Bali did not chase after the Applicant: AB 29K-Q, RFV 15K-Q. The chasing is evident from the CCTV footage.

Annex III

21.  For context, there are two staircases in Ho Lee Commercial Building. The staircase which the Applicant used to come down from the bar led to the UG floor, which is the end of that staircase. There is a corridor on UG floor. On one end of the UG floor is an exit of the building. At other end of the UG floor there are two fire exit doors. The end of the staircase used by the Applicant is close to the two fire doors. Behind the fire doors is the UGA area. The UGA area is just another side of the UG floor but in the trial the District Court adopted the term UGA to distinguish the two areas on the UG floor divided by the fire exit doors. There is a corridor in the UGA area. At the end of the corridor of the UGA area is the other staircase of the building. The staircase leads to LG floor. There is another exit, being the main entrance and exit of the building, on LG floor.

22.  At paragraph 72 of her RFV, the Learned Judge refers to the CCTV of the UGA floor at Ch8 01:37:10. This CCTV shows the Applicant following two other males who were associated with Mr Bali. They can be seen running from the Applicant, no doubt to inform Mr Bali of where he was.

23.  In the CCTV of the UG Floor at Ch5 from 01:37:00 onwards the Applicant can be seen coming through the door where he encountered Mr Bali along with several other men. This is where the Applicant says that following from the previous attack inside Port, when he was confronted with the same group again, he had to face them and defend himself. It could be seen from the CCTV that the Applicant ran towards the person who was obviously blocking the corridor in his way for leaving the building. The person happened to be Mr Bali. However, the Applicant was pushed back and therefore he could not leave the building with the exit of the UG floor. The Applicant eventually left the building using the exit of the LG floor.