HKSAR v. WONG KA LAM

DCCC 250/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 250 OF 2015

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Reasons for Verdict

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1.  The defendant faces one charge, contrary to section 17(a) of the Offences against the Person Ordinance, which is described as causing grievous bodily harm with intent.

2.  The offence allegedly occurred on 7 January this year in an MTR compartment at Mong Kok East MTR Station.  The defendant and the first prosecution witness were both travellers on a busy KCR train. The defendant stood in front of the first prosecution witness, who was seated. At Mong Kok East Station when the defendant sought to leave the train, his umbrella poked into the right eye of the first prosecution witness.

3.  PW1 appeared to say this was done deliberately, whereas the defendant said it was an accident resulting from PW1 grabbing at his arm as he turned away.

4.  The issues at trial were whether the defendant’s umbrella had intentionally or accidentally contacted PW1’s eye and what, if any, was the defendant’s intent when this occurred.  The defence also say that the actual injuries suffered by PW1 do not amount to grievous bodily harm.

5.  The incident occurred on 7 January 2015 in an MTR train compartment at Mong Kok East Station.  This was during the morning rush hour.  PW1 and the defendant had travelled together, the defendant from Shatin.  PW1 sat down.  The defendant stood in front of him in a very close position with his leg inside PW1’s legs.

6.  PW1 gave evidence for the prosecution.  He said that when the train reached Mong Kok East, the defendant turned to leave.  As he did so, the defendant’s umbrella and leg brushed against PW1’s knee.  PW1 moved his foot to push away the defendant’s umbrella.  PW1 said the defendant then picked up his umbrella in both hands and thrust it towards him.  PW1 said this was like a person rowing a boat.  In fact, the motion indicated by the first prosecution witness was like someone paddling a canoe or boat.  The thrust was towards PW1’s face.  PW1 moved his head, and the point of the umbrella thrust into his right eye.

7.  PW1 was wearing glasses.  He surmised that as he lowered his head and turned, the lower point of the umbrella was able to get behind the lens of his glasses.

8.  The defendant left the compartment.  PW1 followed after him and subdued him on the platform.  The police later arrived.

9.  PW1’s injuries were proved by Admitted Facts. Initially, PW1 was found to have suffered an abrasion of the right upper eyelid with tenderness and a subconjunctival haemorrhage of the right eye with oedema over the right conjunctiva.  Later an emergency operation was performed to repair two conjunctival lacerations of the right eye.

10.  As of the trial, PW1 said he had no residual effects from the injury.  The injury had been painful for two days.  Two days’ sick leave had been granted.  A patch had been placed over the eye.  PW1 had taken some time off work in excess of the two days’ sick leave.

11.  PW2, a police officer who came to the scene, gave evidence of things said by the first prosecution witness and the defendant to him at the scene.  PW1 had said to that officer that the defendant did use his right hand to hit with the umbrella.  The defendant had said that he had been careless and that it had been an accident.  He also said the first prosecution witness had grabbed at him.

12.  The defendant’s case was that the injuries caused to PW1 were accidental.  The defendant gave evidence.  His account was that he had stood in front of PW1.  As he turned to leave, his mobile phone, which he had been using to read client information, was in his left hand, and the umbrella had been held in his right hand.  At the time of turning, the point of the umbrella was pointing to the ground.  This was demonstrated.  As he turned, he felt that PW1 had grabbed his right arm above the elbow area. This caused him to turn back towards PW1 and also caused his arm to rise, causing the tip of the umbrella to rise up as well.  As he turned, the umbrella had impact with PW1’s face.

13.  He had left the carriage not to escape, but because he was leaving anyhow.  PW1 had grabbed him and pulled him to the floor on the station.  He had told the MTR staff and the police that what happened had been accidental.

14.  In order to prove the charge the prosecution have brought to a criminal standard, each element of that offence must be proved beyond all reasonable doubt.  Primarily, the prosecution must prove that the first prosecution witness had suffered grievous bodily harm; that such grievous bodily harm was caused by the defendant’s unlawful and malicious act; and that the defendant had the intent to cause the grievous bodily harm to the first prosecution witness.

15.  The defendant is a person of clear record.  The court is required to consider the defendant’s propensity to commit an offence of this nature and the credibility of any evidence given by the defendant, and of course his clear record is particularly relevant to these factors.

16.  I turn to whether grievous bodily harm was caused in this case.  Grievous bodily harm should be given its ordinary and natural meaning of really serious bodily harm.  It is said to be undesirable to attempt any further definition.  It is a question of fact in each case.  It is not conditional upon the injury being permanent or dangerous, provided it was such as to seriously interfere with comfort or health.

17.  In this case, the first prosecution witness received suturing to the two conjunctival lacerations.  The suturing was optional but was recommended, according to PW1, by the doctor.  The injury was painful.  He had received two days’ sick leave.  There was no permanent injury, and the visual acuity returned to normal level by 29 January 2015.  I can see that from the Exhibit P1.

18.  Thus the injury is non-permanent, but effectively amounts to lacerations to the surface of the eyelid and cuts to the cornea.  This, the defence submits, cannot amount to grievous or serious bodily harm.  They say the most it can amount to is a wound, or actual bodily harm.

19.  Nevertheless, this submission does appear to ignore the location of the injury.  There are locations on the body where any injury is likely to cause serious effect or be considered serious.  This is particularly true of areas such as the surface of the eyeball, where the risk of blindness is always possible.  A breaking of the corneal layer is itself serious, even if the effects are not permanent.

20.  I do find that the injuries here do amount to grievous or serious bodily harm, although fortunately permanent trauma was avoided and the injury itself must lie at the lower point of the continuum of serious bodily harm.

21.  The offence of course requires that this be done unlawfully and maliciously and with intent to cause grievous bodily harm.

22.  The present charge requires the prosecution to prove the defendant’s act was done with an intent to cause such harm. Naturally, if such intent existed, then it would be also unlawful and malicious.

23.  The defence submit that such intent cannot be shown from the facts in this case.  The defence submit that the surrounding facts do not support the prosecution case that a deliberate, intentional act of the defendant occurred in which the defendant foresaw serious bodily harm as a result.

24.  It is noted and submitted that the first prosecution witness and the defendant were strangers.  They had never met or spoken before the incident, and there was no evidence of any interaction between them at any time.  The incident would apparently be motiveless.

25.  They submit that the first prosecution witness exaggerated the defendant’s actual acts, saying in evidence that he had struck back with a motion as if holding a paddle with two hands, when earlier, and straight after the incident, he had told the second prosecution witness that the defendant held the umbrella with his right hand.

26.  It was said the defendant was of an exemplary character, and there was evidence of his achievements academically and also of his employment history, and it was submitted this is not the kind of person to assault another person out of the blue without motivation, or in fact not the kind of person who assaults anyone in any event.  The defendant, they said, had immediately told PW2 that it had been an accidental occurrence.  He had also apparently said this to MTR staff.

27.  It was said that he has always been consistent in his evidence.  Furthermore, it was said that it is common knowledge that the eye injures easily.  The injuries to the eye may not require any real degree of force.  If any real force had been used, as said by PW1, then they say the injuries would be much more serious than the ones that actually occurred.

28.  As far as the resolution of these issues is concerned, it is clear that this is an incident that has occurred out of the blue, completely unexpectedly.  PW1 explained that it arose out of a contact between himself and the defendant as the defendant left the train.  He said there was contact.  PW1 said, and demonstrated in court, that his foot came into contact with the defendant’s umbrella.  PW1’s explanation is that the defendant jabbed back at him with the umbrella as the defendant was turning towards the exit of the train.  PW1 had tried to avoid the end of the umbrella, and in doing so, it came between his glasses and his face and poked into his eye.

29.  The defendant says, alternatively, he turned to leave.  PW1 seized his arm, and caused the umbrella to accidentally bump into PW1’s face. 

30.  PW1 says it was a two-handed jab.  It is clear that the evidence posits one version - that is, the version of PW1 and the defendant - against each other, and it is necessary to assess the credibility and reliability of the accounts given by each of these witnesses.

31.  I see that PW1 himself had no reason to dissemble.  I found on seeing him and listening to him that he is recalling the incident as best he can, given that it was these things:  it was sudden, shocking and unexpected.  He is firm in the essential element that from what he saw, the defendant deliberately jabbed the umbrella back towards him as the defendant was leaving and turning, and just after they had had contact together, although of a very brief nature.

32.  Having considered all the evidence in the case, I accept this as being truthful and reliable evidence that the defendant’s act was deliberate and not accidental.  PW1’s position on the seat, although low, would require a considerable raising of the umbrella to achieve contact, and this must have been by way of an intentional movement of the person holding the umbrella.

33.  I reject the defendant’s evidence that this was accidental as a result of being the contact of being grabbed by the first prosecution witness.  Firstly, at the time when PW1 allegedly did that, he would have had no reason to grab the defendant.  Furthermore, he says he did not do so.  Furthermore, the defendant’s evidence about the movement of the umbrella as a result of his action appears to me to be both contrived and highly unlikely.  The movement of the umbrella that actually occurred with the degree of force necessary to impact with PW1’s face and cause some injury would, in my finding, have required a deliberate, not an accidental, movement of the umbrella.

34.  I did take into account, when making these findings about the defendant’s credibility, his good character.  However, I am sure he has constructed a narrative to explain his hasty and out-of-character overreaction to a slight impediment to his progress.  I am sure the defendant did jab his umbrella back towards PW1 as evidenced by PW1, and I am sure the defendant has not told me the truth about this, and I reject his evidence.

35.  Nevertheless, for this charge to succeed as drafted, the prosecution must prove to a criminal standard the defendant did this with an intent to cause grievous or serious bodily harm as opposed to an intent or foresight that some physical harm might result from his actions.

36.  An analysis of how this incident unfolds does not, in my assessment, result in the only conclusion that the defendant had an intent to cause serious or grievous bodily harm as being the only irresistible inference that can be drawn from the primary facts.

37.  The defendant was turning away from PW1 and moved the umbrella with a backhanded action.  It seems unlikely that the defendant actually aimed the point of the umbrella at PW1’s eye.  The act took place very quickly and appears to be reactive to frustration at unwanted contact with PW1.

38.  I find that the circumstances of the incident and the proved facts support to a criminal standard the inference that the defendant will be able to foresee that some physical harm might result from his actions.  Although this does not support the intent necessary to prove the offence under section 17(a) of the ordinance, it does however evidence the existence of an unlawful and malicious infliction of grievous bodily harm pursuant to section 19 of the same ordinance which can be used as an alternative to the existing charge which the defendant faces.

39.  Clearly, on my findings, the prosecution have proved all elements of the offence under section 19, Cap 212, and I accordingly convict the defendant of that offence.