HKSAR v. DA SILVA SANTOS ALEXANDRO

DCCC 1009/2021

[2023] HKDC 396

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1009 OF 2021

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REASONS FOR VERDICT

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A.  Introduction

1.  The defendant was charged with one count of Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212, Laws of Hong Kong[1] (Charge 1)  and one count of Inflicting grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance, Cap 212, Laws of Hong Kong[2] (Charge 2).

2.  The defendant pleaded not guilty to all charges.

B. Evidence

3.  The Prosecution and the Defence admitted, inter alias, the facts stated in the Admitted Facts, P27; Further Admitted Facts, P27A and the Defence Admitted Facts, D3, pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221: -

(a)  At 0147 hours on 22 April 2021, PC 15802 arrived outside Ho Lee Commercial Building, Nos 38-44 D’Aguilar Street, Central (hereinafter referred to “the Building”). PC 15802, PC 20312 with other police officers intercepted the defendant outside No 22 D’Aguilar Street and took him outside the Building for enquiries. At 0235 hours or thereabouts on 22 April 2021, PC 15320 arrested the defendant for the offence of Assault Occasioning Actual Bodily Harm;

(b)  At 0230 hours or thereabouts on 22 April 2021, PC 15802 arrested Bali Sharan Pal Singh (hereinafter referred as Bali)  for the offence of Assault Occasioning Actual Bodily Harm; Upon examination in the Accident and Emergency Department of the Queen Mary Hospital, Bali was found to have sustained injuries including a 3 cm laceration on his left forehead deep to the bone[3].

(c)  Shortly after 0137 hours on 22 April 2021, Mr Mall Man Bahadur found Madam Yan, the substitute night shift guard of the Building, on the ground unconscious and unresponsive. He reported the case to the Police. Madam Yan was taken on board an ambulance to the Accident and Emergency Department of the Queen Mary Hospital. The findings and follow up treatment are stated in the medical reports written by Dr Wong Wei Wade (Exhibit P2, P3 and P4). Medical report written by Dr Cheung Kwun Lok (P5), Dr Sum Hiu Fung Christopher (P6), Dr Lee Cassandra Yuen Yan (P7)  and Dr Mak Hoi Kwan Calvin (P8).

(d)  Mr Cheung Chi Ying (PW7)  was employed by Unimax Property Consultancy Limited as a security officer of the Building and was responsible for the security and supervision of the closed-circuit television system (hereinafter referred to as the “CCTV”)  on 22 April 2021. On 26 April 2021, Mr Cheung found the CCTV system in good working order and function with no discrepancy in the time. He copied the images from the CCTV of LG/F to 3/F of the Building for the period between 0100 hours and 0300 hours of 22 April 2021[4]. Exhibit P10 has been kept in safe custody by DPC 18579 from its collection on 27 April 2021 to its production in court as an exhibit.

(e)  Mr Lo Wai Hon was employed by Jones Lang LaSalle Management Services Limited as a senior property officer. He was responsible for the security and supervision of the closed-circuit television system (hereinafter referred to as the “CCTV”)  of The Plaza Lan Kwai Fong. On 26 April 2021, he copied the images from The Plaza’s CCTV system for the period between 2230 hours and 0300 hours of 22 April 2021[5]. Exhibit P11 has been kept in safe custody from its collection to its production in court as an exhibit.

(f)  Between 1152 to 1402 hours or thereabouts on 23 April 2021, DPC 18065 with the assistance of Portuguese Interpreter Madam Da Rocha Maria, conducted a Video Recorded Interview (hereinafter referred to as “VRI”)  with the defendant inside Room 629 of the Central Police station. The defendant was not threatened, assaulted, induced or oppressed in any manner and he voluntarily gave the said interview. The VRI produced as Exhibit P12 has not been interfered with, amended or altered.

(g)  On 23 April 2021 buccal swab from the defendant and Bali were taken, the buccal swabs were kept in safe custody and had not been unlawfully interfered with.

(h)  On 22 April 2021, PC 25423 seized one metal pipe (P15), one metal frame of a folding chair (P16), one plastic seat of a chair (P18)  and one plastic back of a chair (P17).

(i)  Upon examination of Exhibits P15, P16, P17 and P18, Mr Lam Tze Tsun, Forensic Scientist, found apparent bloodstaining on the sampled areas by visual examination and a presumptive test for blood. The DNA obtained from the bloodstains from the said exhibits could all have originated from the defendant.

4.  The Prosecution called 10 prosecution witnesses.

B.1 The Prosecution Case

Prosecution Witness 1 - Dr Cheung Kwun Lok, (“PW1”)

5.  PW1 gave evidence that Madam Yan had decreased level of consciousness but did not need advanced support. CT scan revealed that she had left temporal scalp haematoma and subdural haematoma over the right temporal region. PW1 believed the first injury to be the left temporal scalp haematoma. Subdural haematoma over the right temporal region could be a rebound injury, a contra coup injury caused when the brain hit against the skull. PW1 stated that it was highly unlikely that the injuries were existing injuries especially since Madam Yan was on duty before the incident.

Prosecution Witness 2 - Dr Wong Wei Wade, (“PW2”)

6.  PW2 gave evidence that he was Madam Yan’s case doctor when she was admitted to neurosurgery for 3 months. Madam Yan was conscious and could respond during first admission, but was in a confused state. She suffered from left frontal bruise swelling and mild abrasion which were consistent with impact fall hitting the ground. She was able to move her limbs according to instructions but did not open her eyes. She could not convey to PW2 the events that led to her hospitalisation. PW2 saw Madam Yan daily during her hospitalisation at Queen Mary Hospital, but did not observe much improvement. It was one month before there was a change in her Glasgow Coma Score.

Prosecution Witness 3 - PC 15320, (“PW3”)

7.  PW3 is PC 15320. When he arrived on the scene at 0147 on 22 April 2021 he saw Bali had sustained injuries. Bali was with 10 or more people who claimed to be his friend. They were emotional and informed PW3 that Bali’s assailant fled towards Wellington Street and Queen’s Road Central. PW3’s colleague went to intercept the assailant with a male. PW3 was notified by a passerby that someone had collapsed in the lobby of the Building. PW3 saw a female laying on the floor of the lobby near the entrance of the Building and did not show any response.

8.  The defendant was located and was arrested by PW3. The defendant had blood on his face, head and shirt, his elbows and knees were injured and his hands were bleeding. PW3 confirmed he could understand the defendant. He handcuffed the defendant as the defendant was emotional.

Prosecution Witness 4 - PC 15802, (“PW4”)

9.  PW4 is PC 15802. When he arrived at the scene there was a crowd and a local Hong Kong person from the crowd told him that a person involved in the case ran down D’Aguilar Street. PW4 saw a person leaving the scene and was walking at a quick pace. He intercepted the male, later identified as the defendant, and brought him back to the Building. The defendant had sustained injuries to his head, elbow, knees and hands and was bleeding. The defendant told PW4 that he was attacked by a number of people including Bali.

Prosecution Witness 5 - Mohani Dheeraj Suresh, (“PW5”)

10.  PW5 is a solicitor and Bali was a litigation clerk employed by him. At around midnight, he went with Bali and some female companions to PORT, a bar in the Building. PW5 left the bar premises to go to the toilet located next to the fire exit. When he exited the toilet he heard Bali yelling at the common area of the 3^rd floor. They decided to leave and walked down the stairs from the 3^rd floor. When they reached UG floor, Bali was still angry and upset. They stopped for a couple of minutes for PW5 to comfort Bali. A male came hurriedly through the door with a metal rod in his hand, he stabbed Bali near the left eye once and left via the same door. The attack was aimed at Bali, the male did not attack PW5. Bali bled profusely and PW5 described the wound as serious. When PW5 and Bali walked down the stairs they saw an unconscious woman on the LG floor at 1 to 2 metres from the staircase.

11.  PW5 recognised the male from PORT as the male who was sitting on the sofa at no more than 2 metres distance. PW5 had direct view of the male and could see his face clearly. PW5 saw him for 30 to 45 minutes. The male was of African region descent, he had short hair and was more than 6 feet tall. He saw this male attack Bali on the UG Floor, the male was at less than 6 inches from PW5 when he saw his face. Although the attack lasted only seconds, the observation was done under good lighting. PW5 saw the male again on D’Aguilar Street and at the hospital.

12.  PW5 confirmed that he did not know the men that were at the staircase. Bali did not give instructions to the men. As Bali was well known in the Pakistani community, the men might have come to know Bali from other walks of life.

Prosecution Witness 6 - Lam Tze Tsun Leo, (“PW6”)

13.  PW6 is a forensic scientist with the Government Laboratory. He conducted examination on a metal rod (P15), a metal frame (P16)  and 2 plastic boards (P17 and P18)  provided by DPC 18579 for the presence of blood and/or human DNA.

14.  Upon examination, apparent bloodstaining on sampled areas was found by visual examination and a presumptive test for blood for P15 to P18. P15 to P18 also tested positive for human DNA. According to DNA typing analysis, DNA obtained from the bloodstains on P15 to P18 could all have originated from the defendant.

Prosecution Witness 7 - Cheung Chi Ying, (“PW7”)

15.  PW7 is the security supervisor of the Building. PW7 confirmed that on 22 April 2021 only one female security guard, Madam Yan Wai Mun, was on night duty. She was the only female security guard who was found injured on that night.

Prosecution Witness 8 - PC 25423, (“PW8”)

16.  PW8 is PC 25423. He gave evidence that he seized a metal rod which he confirmed to be P15 from the position shown in photo P9(8). He confirmed that there were bloodstains on the left end of P15.

Prosecution Witness 9 - PC 20312, (“PW9”)

17.  PW9 is PC 20312. PW9 gave evidence that he had to control the scene when he first arrived because around 10 males of foreign ethnicity were emotional and rowdy. A male named Mohani Sharan Sureej pointed out another male at about 10 metres’ distance walking from D’Aguilar Street to Queen’s Road Central. PW9 intercepted the male, later identified as the defendant. PW9 saw Bali sitting on the ground covering injuries sustained at the left corner of his eye and there was a significant amount of blood on his shirt.

Prosecution Witness 10 - DPC 18065, (“PW10”)

18.  PW10 conducted a video recorded interview with the defendant on 23 April 2021. PW10 arrested a male who together with Bali and the defendant were later charged with fighting in public place.

B.2 Defendant’s video recorded interview “VRI”

19.  Prosecution relied on the video recorded interview of the defendant[6]. The interview was conducted with the assistance of Madam Da Rocha Maria, a Portuguese interpreter. It was agreed that the defendant gave the interview voluntarily[7].

20.  In the interview, the defendant described in detail the fight that happened at PORT. He explained that everything started at PORT and claimed that he was beaten up by a number of men. He pointed out Bali as the man who instigated the fight. He fled PORT but there were men who chased after him down the stairs and was trying to kill him. He was afraid for his life.

21.  He explained that he was bleeding heavily and he saw some men so he didn’t leave the Building. He returned because he believed he had no way out, that he must fight or die, he could not run away anymore. He took a piece from a chair, believing he had to fight for his life, he needed to protect himself from the men.

22.  He stated that he knew Madam Yan and would not hurt her. His intention was to move her away and not to attack her. He was running away from men whom he believed was trying to kill him. He admitted, upon viewing the CCTV images, that it seemed like he was the one who touched her, but he did not pull or push her he only tried to get her out of the way. He claimed to be very out of control and was dizzy from the bleeding.

B.3 The Defence Case

23.  The defendant elected not to give evidence and did not call any defence witness.

C. Analysis of the law

24.  I directed myself that the burden rests throughout with the prosecution to prove the charges, and the standard of proof is one of beyond reasonable doubt. The defendant need not prove anything. The charges must be proved to my satisfaction so that I am sure of the defendant’s guilt before I can convict. Otherwise I must acquit the defendant.

25.  The defendant is of clear record. I give myself the Berrader direction on the defendant’s propensity and credibility. The defendant is more likely to tell the truth and less likely to commit any offence.

26.  The defendant is charged with 2 offences, I must consider the evidence in support of the 2 offences separately, I must be satisfied that all elements of both charges are proved beyond reasonable doubt before I may convict the defendant.

27.  The defendant elected not to give evidence. The defendant elected to exercise his right, the court will not make adverse inference against him.

28.  In relation to Charge 1, the Prosecution relied on the evidence of PW5 who was the only witness called to give evidence on the assault. I remind myself to be careful when considering PW5’s evidence.

29.  I remind myself of the Turnbull guidelines. I remind myself that a mistaken witness can be a convincing witness and that a number of witnesses can be mistaken. I direct myself to examine closely the circumstances in which each identification was made including the lighting and distance at which the identification was made, and of the relationship between the person making the identification and the person being identified.

30.  I remind myself that should inferences be made, they should be the only reasonable and irresistible inference.

31.  The video recorded interview of the defendant is a mixed statement. I can give full weight to the inculpatory statements contained therein and not give weight to exculpatory statements.

D. Analysis of Evidence

D.1 Issues in dispute

32.  In its closing submission, the Defence indicated that it accepted the evidence of PW1, PW2, PW3 and PW6, and that the witnesses’ evidence should be given full weight.

33.  The main issues in dispute were: -

(1)  the reliability of the evidence of prosecution witnesses 4, 5, 8 and 10;

(2)  the identity of Bali’s assailant;

(3)  whether the defendant attacked Bali;

(4)  whether the defendant acted in self defence in attacking Bali; and

(5)  whether the defendant inflicted grievous bodily harm on Madam Yan.

D.1.1 Evidence of PW4, PW5, PW8 and PW9

34.  The defence agreed that full weight should be given to PW4 and PW9’s evidence except for their exaggerated claims that they had been able to communicate with the defendant. The defence based its allegation on the evidence of PW3 and PW4 who claimed that the defendant had a poor command of the English language, and on PW8’s inability to ascertain the defendant’s English skills due to their short interaction.

35.  PW4 gave evidence that he only conducted brief investigations with the defendant and had supplemented with body language when there were communication difficulties. PW4 was a form 7 graduate, he only conducted brief investigations with the defendant, I do not find it inherently improbable that PW4 could effectively communicate with the defendant under the circumstance.

36.  PW9 disagreed with the defence’s suggestion that the defendant’s English was poor. He gave evidence that his conversation with the defendant involved ten sentences at most and he could understand and communicate with the defendant without the assistance of body language. PW9 was able to repeat part of the content of the conversation he had with the defendant and such content was not disputed by the defence.

37.  The defence criticized PW5 for failing to recall conversations between Bali and the men that were present at the fire escape. PW5 gave evidence that he did not know the men and he had no idea why they were present or had followed them. From the CCTV footages at Ch5, PW5 had at all times tried to calm Bali, and was leaving the building with him. At UG floor, PW5 was seen standing right in front of Bali trying to calm him. It is clear that PW5’s main focus was on Bali at all times. The men were not his concern, it is not unreasonable that he would not pay attention or have any recollection of what was said by the men.

38.  The defence suggested that there were discrepancies in PW5’s evidence when he claimed that neither he nor Bali chased the defendant, however PW9 gave evidence that PW5 told him they did chase the defendant. In cross-examination PW9 stated “he only told me that he hit my friend and he’s leaving now that’s why we chased after him immediately”. It is obvious that PW5 was indicating that the defendant was “leaving now” and at the same time pointing out the defendant to PW9. It is not clear whom PW5 was referring to when he said “that’s why we chased after him immediately”, as according to PW9, Bali was sitting on the ground and PW5 was at the Building when PW5 made the statement.

39.  PW5 was criticised for not remembering he had seen the CCTV footages until he viewed them in court. PW5 confirmed that he was Bali’s representing solicitor for the fighting in PORT case. He reiterated that he only viewed the CCTV footages relevant to the fighting in public place charge, which were footages capturing incidents that occurred inside PORT. The charge preferred against Bali was fighting in public place which concerned the events that occurred inside PORT. According to the defence, the police served 13 hours of CCTV footages on Bali, it is not improbable that PW5 only concentrated on the footages capturing the events that related to the allegations against Bali. The defence claimed that PW5 had “muddled up” knowledge of all the evidence of the case with what he actually saw as an eyewitness. I find no evidential basis for this allegation.

40.  The defence criticised PW5 for not being able to explain the presence of the men at the stairs and at UG floor, especially when the men were seemingly trying to find something. PW5 gave evidence that he did not know the men that were present at the stairs or at UG floor. From Ch5 of the CCTV footages, it could be seen that PW5 was at all times comforting Bali and was holding onto Bali’s neck for a long period of time. It is not improbable that he did not know who the men were or what the men were doing.

41.  He was also critised for not being able to accurately give evidence on the duration of his toilet break. PW5 could not have foreseen the events that occurred in PORT or that he would have to give evidence on the duration of his toilet break. He would not have timed himself. I do not find a discrepancy between 5-10 minutes and 18 minutes to be material.

42.  PW5 was further criticised for not being able to give an explanation as to why Bali did not give a statement to the police. PW5 explained that it was for the police to decide if they needed a statement from Bali. There is no fault in PW5’s explanation.

43.  PW5’s identification evidence of the defendant as the assailant of Bali was considered unreliable by the defence. The defence suggested that PW5 could not clearly identify the assailant from the position where he was standing at the time of the attack, and within the short duration of the attack. Ch5 CCTV footages showed that PW5 was standing at a close distance to Bali before the assailant walked through the fire door exit. At 01:37:13 PW5 was standing in front of Bali as men rushed in from the fire door, at 01:37:16 a male dressed in a green short sleeved T-shirt rushed through the fire door towards PW5 and Bali. The male was standing at close proximity to PW5, there was no obstruction between PW5 and the male and PW5 could no doubt see the male’s face clearly. The male then attacked Bali. At that juncture PW5 stepped to his right, again there was no obstruction between the male and PW5, the male’s face could clearly be observed by PW5. Although the duration of the attack was short, there was no obstruction between the male and PW5 until Bali pushed the male towards the fire door exit.

44.  PW5 agreed that his view was blocked by Bali and by other men pushing the defendant towards the fire door exit. However, it could be seen from the footages that he did have a clear view before Bali pushed the defendant towards the fire door exit.

45.  PW5 gave evidence that he had seen the defendant inside PORT for 30 to 45 minutes, and he was able to see the defendant’s facial features. PW5 had seen the defendant inside PORT shortly before the attack. Although the observation was conducted in a social setting and not uninterrupted, it was for a duration of 30 to 45 minutes which was not a short period of time. He was able to observe his facial features. I have also considered the quality of PW5’s observation during the assault, including the distance between PW5 and the assailant, and the duration in which PW5 could observe the assailant without obstruction. I find the identification evidence of PW5 at UG floor during the attack to be reliable.

46.  The defence questioned PW5’s character based on his actions as a solicitor. The defence claimed that PW5 allowed Bali to sign the attendance form in the Magistrate’s court case when PW5 was the instructing solicitor. I do not find this to be of relevance to the present case.

47.  The defence suggested that the evidence of PW7 should be given full weight with the exception of his identification of Madam Yan on the CCTV recording on P10 Cam 14. P10 Cam 14 at 01:37:28 showed the back of a person walking away from the CCTV camera. I agree, considering the quality of the CCTV footage, the position of the person as reflected in the recording i.e. walking away from the camera with his/her back to the camera, that identification made under such quality of evidence could not be safely relied upon and should not be given weight.

48.  The defence suggested PW8 was not a reliable witness because he could not remember details of the bloodstains on P15. PW8 clearly indicated that he had seen bloodstain on P15 but could not remember if there were bloodstains at the ends of the metal rod during examination in chief. He was shown P9(8)  depicting P15 at the location where it was found by PW8 and he confirmed that there was blood on the left end of P15.

49.  From photo P9(8), blood stains could be seen on the sill on which P15 was placed. PW8 explained that seeing the photo had prompted his memory. Although the defence disputed as to when the photo was shown to PW8, PW8 was shown the photo to ascertain the location where the metal rod was placed. He was not at that juncture asked to give evidence on the bloodstains. When he admitted that he could not remember the details of the bloodstains, he was asked to review the photo again specifically on the bloodstains. PW8 gave evidence that it assisted in the recollection of his memory.

50.  PW8 was the officer responsible for seizing P15 as evidence. He did refer to P9(8)  to assist his memory, however the bloodstain on the sill at one end of P15 was clearly captured in the photo and corroborated PW8’s evidence. I find PW8 to be a reliable witness.

51.  The defence suggested that PW10’s evidence on matters outside the scope of his witness statement should be considered carefully as he stated that his memory was blurry. It was however suggested that evidence relating to his statement should be given full weight.

52.  PW10 stated that he could not recall details on matters regarding which colleague or how many colleagues had attended the police briefing on 22 April 2021, preparation work done and events that transpired 26 hours before the defendant’s VRI. PW10 was instructed to conduct the VRI with the defendant. It was agreed that the defendant gave the interview voluntarily. The defence made no allegations of impropriety against PW10. I have carefully considered the matters that PW10 stated that he could not recall and find that they do not affect the credibility and reliability of PW10.

53.  I have considered the evidence of PW1, 2, 3 and 6. The defence agreed that their evidence should be given full weight. I accept their evidence.

54.  I have also carefully considered the evidence of PW4, 5, 7, 8, 9 and 10, and the defence’s criticisms of their evidence. Although I did not accept PW7’s identification evidence, it was only on account of position of the person captured in the CCTV footage. It did not affect the general credibility and reliability of PW7. I find that there were no discrepancies or inherent improbabilities in the witnesses’ evidence. I find them to be credible and reliable witnesses. I accept their evidence.

D.2 Issue: The identity of the male who attacked Bali.

55.  I accept PW5’s identification evidence that the defendant was the male who attacked Bali.

56.  CCTV footages showed the assailant wearing a khaki green short sleeved T-shirt that was similar to the defendant’s attire at the material time. At Ch5 01:37:17, it was shown that the assailant was wearing blue jeans with a black belt, red and white colored sports shoes. The back of the sport shoes had a distinct red pattern surrounded by white material and red color at the bottom. The details of the attire worn by the assailant were similar to the attire worn by the defendant as depicted in P22(2), the photo of the defendant taken after his arrest.

57.  The defendant was captured by CCTV to be at LG floor at Ch14 01:35:51 and returned to UGA at Ch8 01:37:14. Shortly after at Ch5 01:37:17 CCTV recording showed a male in identical attire attacking Bali at UG floor.

58.  Although the face of the assailant was not captured by the CCTV footages, it was inherently improbable that within seconds a second male in identical attire appeared in the Building and attacked Bali. I accept PW5’s identification evidence and find that the CCTV footages supported PW5’s identification of the defendant being Bali’s assailant.

D.3 Issue: Did the defendant act in self defence?

59.  The defence invited to court to consider the incidents that occurred in PORT, at UG, LG level and outside the Building as one linked incident thereby giving cause to the defendant to act in self defence.

60.  From the image captured by CCTV, it showed on Ch14 that the defendant was pacing at LG floor at Ch14 01:35:51. At that material time he was not chased by anyone. He had ample opportunity to walk out of the Building. However, he chose to obtain a weapon (P15)  and returned to find and attack Bali.

61.  On Ch8 at 01:37:13 which showed the corridor of UGA, a male and a security guard holding a torch were seen walking towards a door. They quickly turned around and ran in the opposite direction. The defendant could be seen entering the corridor through the same door, he walked closely behind the two men, raising his arm and pointing at the two men at 01:37:14.

62.  Ch5 recording clearly showed that the defendant did not attempt to attack other men who were running away from him. He did not attack PW5 who was standing next to Bali, the defendant aimed at and attacked Bali. It was obvious that his target was Bali and he had returned with a weapon with the intent to attack Bali.

63.  The defendant claimed that he was dizzy from being attacked and was bleeding profusely. It could be seen from the CCTV images that the defendant had blood on his shirt. However, the images showed that defendant had within seconds located a weapon (P15)  and Bali. It was obvious he had a clear idea where he was headed with the weapon and why he obtained the weapon. His actions did not support the contention that he was confused or dizzy at the time.

64.  If he was confused or dizzy he could have kept walking at LG floor and left the Building. He had a clear mind to find a weapon, to return and locate Bali specifically to initiate an attack on him.

65.  It was suggested that from the moment the incident started at PORT, the defendant was attacked by a gang of men and was outnumbered, he was alone without any assistance. It was therefore reasonable for the defendant to think that he had to act in self defence.

66.  However in Ch8 at 01:37:13 clearly showed that it was the defendant who chased after a male and a security guard. The men were seen fleeing from the defendant. It was obvious that the defendant was not in any danger from the alleged gang. He did not need to fear for his life or defend himself from any men.

67.  I have also considered the matters raised by the defendant in his record of interview. He claimed that he was in fear for his life and he needed to fight or die. It was clear from the CCTV footages that no one was chasing the defendant at the time when he decided to return with a weapon to find Bali. The circumstances captured on Ch14 and Ch8 did not support the allegation that the defendant needed to fight or die at the material time, nor that he was under any immediate threat and needed to defend himself. He was the one chasing after the men.

68.  The events that occurred in PORT did show the defendant, Bali and a number of men engaging in a fight. The CCTV recording did capture the defendant being chased down the stairs and caught by two men. However, the men let the defendant leave and they went back upstairs.

69.  The defendant reached LG floor without any men chasing him and the CCTV recording showed that Bali and some men congregated at the UG Floor without any contact with the defendant. The defendant could have safely left the Building. The need for self defence was not present.

70.  The Defence invited the court to interpret the footage recorded on Ch8 at 01:35:00 depicting the defendant walking around UGA until he reached the lobby as the defendant not knowing where he was in the Building. In his video recorded interview, he stated that he had been to PORT on a number of occasion. I do not accept that the defendant did not know his way around the Building.

71.  The defendant was seen immediately returning to the direction he came from at LG floor, if he was in fear for his life and was trying to distance himself from the men that were allegedly chasing after him, he would have left the Building via the nearest exit and not turned back.

72.  Although the defence alleged that the men appeared to be looking for something in Ch5, it could not be ascertained if they were trying to locate the defendant. When a male encountered the defendant at UGA floor at 01:37:10 he ran from the defendant.

73.  I do not accept the circumstance and evidence support the contention that the defendant acted in self defence when he was captured chasing after some men on UGA floor and attacked Bali at UG floor.

74.  The defence suggested that the defendant had no duty to run away or retreat, he elected at that moment to fight for his life. However, the CCTV footages clearly showed at Ch8 01:35:50 that there were no circumstances which forced the defendant to fight for his life. He chose to return, to find and attack Bali. It was obvious the defendant initiated the attack without any immediate threat to himself.

75.  PW5 gave evidence that he saw Bali injured after the assault and PW9 gave evidence that he saw injuries on Bali when he arrived on the scene. The medical report of Bali[8] stated that he sustained laceration deep to the bone on his left forehead and had required suture.

D.4 CCTV footages

Charge 1

76.  It is suggested that 2 males found the defendant and the defendant, having been found, followed the men. If the defendant had been fleeing for his life, it is inherently improbable that he would willingly follow his possible attackers unless forced by the men. However, there was no evidence that he was forced to follow them. In fact, the recording showed the defendant attacking Bali and the men were running away from the armed defendant, trying to find a hiding place.

77.  The defence claimed that CCTV footages did not reflect any weapon making contact with Bali or reflect any injuries on Bali.

78.  On reviewing the CCTV images of Ch5, it was shown that at 01:37:15, the defendant came through the fire door exit. His left arm was raised above his head in front of him and a metal rod was seen raised to the level of his head on his right and his right body was pulled back. From 01:37:15 to 01:37:16 the defendant rushed forward towards the direction of PW5 and Bali, he struck at Bali with his right arm, his right hand clearly holding a metal rod. His right hand was raised to the level of Bali’s shoulder and his forearm struck at Bali’s head. The metal rod was held sideways, one end could be seen at close proximity to Bali’s face. Bali struggled with the defendant and pushed him towards the fire door exit. The defendant retreated backwards but at 01:37:18, his right hand, holding the metal rod, struck at Bali again. Bali pulled his head backwards to avoid the metal rod. At 01:37:18, one end of the metal rod was angled at the left cheek of Bali near his left ear. At 01:37:20, Bali, with the assistance of other men, pushed the defendant towards the fire door exit. At 01:37:23 PW5 could be seen inspecting Bali’s left face. PW5 gave evidence that Bali had sustained injuries from the attack and was bleeding.

E. Conclusion

79.  I find that the CCTV recording showed the defendant did attack Bali, using exhibit P15 held in his right hand. Even if the defence suggested that the images were not clear enough to ascertain the exact moment of contact, having considered that Bali was not injured until after the defendant had struck at him with exhibit P15, I find that the only reasonable and irresistible inference was that Bali’s injury was caused by the attack on him by the defendant.

80.  I find that the defendant did unlawfully and maliciously wound Bali with intent to cause him grievous bodily harm.

81.  I find that the prosecution has proved beyond reasonable doubt all elements of Charge 1. I find the defendant guilty of Charge 1.

F. Charge 2

82.  The defence suggested that the injuries sustained by Madam Yan was a result of accident. It was suggested that the defendant was running away from men chasing him and he wanted to move Madam Yan out of his way.

83.  It was agreed that Madam Yan Wai Mun was the substitute night shift security guard on duty inside the lobby of the Building on 22 April 2021. Mr Mall Man Bahdur subsequently found Madam Yan unconscious and unresponsive in the lobby.

84.  In her witness statement Madam Yan stated that she had no recollection of the events of 22 April 2021. She was not aware of the reason for being admitted into hospital[9].

85.  Prosecution relied on the CCTV footages that captured the defendant running from two men on the LG floor. At Ch14 at 01:37:30 the defendant was shown running towards the exit of the Building. Madam Yan was walking slowly towards the same exit. At 01:37:31, the defendant ran up behind Madam Yan. It could be seen on the footage that he raised his arms to the level of Madam Yan’s shoulders. Madam Yan could be seen moving to the right and the defendant to the left. At 01:37:31 Madam Yan fell to the ground. The defendant ran past Madam Yan and exited the Building with 2 men following closely behind.

86.  The men eventually attacked him outside the Building.

87.  The precise actions of the defendant were not captured by the CCTV as both the defendant and Madam Yan were facing away from the camera. It could not be ascertained whether the defendant had pushed Madam Yan out of the way or as suggested by the defence that the defendant had tried to protect Madam Yan by putting up his hands preventing himself from running straight into her with his full bodyweight.

88.  The defendant explained in his video recorded interview that he had wanted to move Madam Yan out of the way. He gave various explanation including that he might have bumped into her or that his elbow might have accidently touched her.

89.  The defence agreed that the CCTV captured the defendant raising his hand as he approached Madam Yan’s back, but it was submitted that the defendant did not have any intention to hurt Madam Yan and was not acting unlawfully or maliciously.

90.  It was shown from the CCTV capturing LG floor that the distance between the Madam Yan and the defendant running up behind her was a very short one. The defendant was escaping from men who were in close pursuit. The evidence did not support the defendant harming Madam Yan intentionally.

91.  The court must consider whether the defendant’s act was reckless. The defendant was being chased by a number of men, he had just attacked Bali and revenge from these men could be expected if he was caught by them. At that juncture he was escaping from possible serious harm.

92.  Although the defendant was seen raising his arm, the precise act could not be ascertained because of their respective positions and the quality of the video footage.

93.  The distance between the defendant and Madam Yan during the encounter was very close, the defendant was escaping imminent harm. He was suffering from injuries at the time.

94.  The prosecution suggested that the defendant’s action was reckless. I find that at such a short distance, in such a short duration of time, it could not be ascertained at what point and at what distance the defendant realized Madam Yan’s presence. Especially having considered the defendant’s mental state at the time when he was escaping from 3 men who were in very close pursuit.

95.  I have carefully considered the evidence relied upon by the prosecution for Charge 2. I cannot exclude the possibility of the incident being an accident and the evidence could not support the contention that the defendant had acted recklessly. I acquit the defendant of charge 2.

G. The Defence’s criticism

96.  The defence criticised the prosecution’s conduct of its case and questioned the trustworthiness of the entire case.

97.  The basis of the defence’s complaint was that a statement was not taken from Bali by the police or the prosecution, and that Bali was not called as a witness in the present case.

98.  The prosecution stated that it is the decision of the police whether a statement is to be taken from certain individuals and the prosecution has the prerogative to decide on which witness to call. I accept the explanation given by the prosecution.