HKSAR v. TRAN VAN CANH

DCCC 503/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 503 OF 2014

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REASONS FOR VERDICT

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The charges

1.  The defendant faces two charges.

2.  The first charge is wounding with intent contrary to section 17(a) of the Offences against the Person Ordinance Cap 212. The particulars allege that on 14 April 2014 at Flat A, 10^th Floor, Nos 49 – 53 Fuk Wing Street, Sham Shui Po Kowloon the defendant unlawfully and maliciously wounded Bui Thi Lien with intent to do her grievous bodily harm.

3.  The second charge is indecent assault on another person contrary to section 122(1) of the Crimes Ordinance Cap 200.  The particulars allege that on the same day as the first charge and at the same address the defendant did indecently assault Bui Thi Lien.

4.  The defendant pleaded not guilty to both charges.

5.  At the outset of the case before any evidence was called but before the Opening was read Mr Leung who appeared for the defendant informed the court the defendant would plead to a charge under section 19 or section 39 of Cap 212.

6.  Mr Polson appearing for the prosecution said such plea(s) were not acceptable and the prosecution would proceed with the charges as drawn.

7.  The first charge incorporates a number of elements which the prosecution must prove namely the defendant unlawfully and maliciously wounded Bui Thi Lien with the requisite intent.

8.  The three elements:-

(a) Unlawfully and maliciously

This imports the defences of self defence, defence of others, defence of property or force used for the prevention of crime into the section and if raised the burden of negativing such defences is on the prosecution.

(b) Wound

The word wound includes incised wounds, punctured wounds, lacerated wounds and contused wounds but to constitute a wound the continuity of the skin must be broken such the outer covering of the body (not just the cuticle or upper skin) must be divided – see R v M’Loughlin (1838) 8 C& P 635 and other cases cited in Archbold paragraph 20-205. The division of the internal skin for example within the cheek or the lip is sufficient but the rupture of blood vessels is not.

(c) With intent

To be satisfied the defendant had the requisite intent to cause serious bodily harm to the victim the court should look at all the relevant circumstances and in particular what the defendant did and may have said at the time.

9.  I note the charge as framed is not causing or inflicting grievous bodily harm and therefore the prosecution need not prove there was grievous bodily harm as generally defined just that the defendant intended to cause grievous (or serious) bodily harm.

10.  A section 17 offence can be framed either way and in this case the prosecution has alleged the defendant wounded with intent.  I shall return to this aspect later.

11.  For the second charge the prosecution must prove:-

(a) that the defendant intentionally assaulted the victim;

(b) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; and

(c) that the defendant intended to commit such an assault as referred to in (b) above.

12.  No offence is committed if the man believes the woman is consenting to his conduct whether his belief is based upon reasonable grounds or not however where the assault is indecent in itself there is no need to establish a specific indecent intent.

13.  An assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful physical violence.

The admitted facts

14.  Some facts were admitted pursuant to section 65C Criminal Procedure Ordinance Cap 221 and these were marked as exhibit P1.

15.  Pursuant to those facts a statement of Dr Chiu King Yung (called as PW4) dated 28 August 2014 was read into evidence under section 65B of Cap 221.

16.  The contents of that statement together with the medical report (exhibit P3) set out the injuries as diagnosed and treated when Bui Thi Lien was sent to the Accident and Emergency Department of Caritas Medical Centre at 1936 hours on 14 April 2014.

17.  They show there was a 2 cm laceration wound on the left cheek, 2 cm laceration wound on her left arm, 2 cm laceration on the left middle finger, 2 cm laceration wound on her left thigh, multiple linear abrasion wounds on her left hand, tenderness to the scalp and tenderness and bruise at her back and right buttock.

18.  The wounds were sutered with 3 stitches to the lower lip wound, 2 stitches for each wound on the left arm, left middle finger and left thigh.  The wound on the cheek was closed with steri strip and she was given an anti tetanus toxoid injection.

19.  Madam Bui was discharged after treatment and although attended for follow up on 25 May 2014 disappeared before medical assessment.

20.  The injuries are also shown on the photographs comprising part of the album of photographs produced as an exhibit pursuant to the admitted facts.  They are photographs numbers (1) – (12) of exhibit P4.

21.  I note from the captions in the list of contents to P4 that each of the injuries shown are described as wounds however it would appear the injuries shown in photographs (6) to (11) nasty as they appear do not show a division of the continuity of the skin and the medical report only refers to tenderness and bruising to those areas (as well as the scalp).

22.  Photograph 12 shows the left arm which has distinct abrasions consistent with the multiple linear abrasions referred to in the medical report.

23.  Madam Bui was called by the prosecution as PW1 and at the end of her evidence the court asked about a visible red mark on her cheek and also asked whether there were still any visible signs of the injury to her arm and finger.  PW1 confirmed the mark to her cheek had been caused by the injury she sustained on 14 April 2014.  She also showed a mark to her upper arm which was about 1.5 cm long and visibly red and a mark to her finger of similar length and colour.

24.  The marks on her body correspond with the position of the injuries as shown in the photographs (1), (2), (3) and (4).  PW1 was not asked to show the injury to her thigh for reasons of modesty.

25.  Photographs (13) – (19) show the premises and in particular photograph number (16) the bedroom where the alleged incidents took place.

26.  Photographs (21) and (22) show the wooden bar which, even on the defence case, had been used to hit PW1 at the material time inside the bedroom.  At one end of the bar is a nail protruding from the surface by approximately 2.5 cm.

The witnesses for the prosecution

The evidence of PW1 (Madam Bui Thi Lien)

27.  I have considered all the evidence given by PW1 in examination in chief and cross examination.  I do not propose to recite all the evidence here but high light some of the important aspects.

28.  There was no issue as to identity and PW1 clearly identified the defendant in court as the person who was involved in the incidents which are the subject of these charges.

29.  PW1 came to know the defendant through Le Duc Dung a person she referred to as being an uncle in January 2013.  Shortly thereafter they started living together but by July of the same year the relationship deteriorated to such an extent that PW1 and her daughter moved to live in a refuge.  This followed threats made by the defendant to kill the daughter.

30.  PW1 left the refuge in December and returned to the flat.

31.  The flat in question is at the address stated in the particulars of the two charges.

32.  After she returned PW1 said the defendant would come and bang on her door everyday and generally made a nuisance of himself.  He also made threats to assault and kill PW1.  As a result a number of reports were made to the police.

33.  On 19 March 2014 PW1 returned to Vietnam to visit her mother leaving her daughter in the care of Le Duc Dung (the male referred to as uncle).  Although listed as PW2 on the original list of witnesses he was not called at trial and I shall hereafter refer to him as the uncle.

34.  When PW1 returned to Hong Kong 6 days later the uncle continued living at the premises.

35.  The uncle introduced Le Quang He to PW1.  Le Quang He was called as PW2 at trial and I shall refer to him as such hereafter.

36.  PW1 said at first she and PW2 were only friends and it was only later after the incident on 14 April 2014 did a relationship start between them.

37.  At around 5 pm on 14 April 2014 PW1 had been engaged in handicraft work making plastic bead accessories in her bedroom. The daughter had returned home from school and shut herself in her own room.  The uncle was in the living room.

38.  It was later to emerge after the uncle began living at the premises he occupied the bedroom PW1 called her bedroom and PW1 had shared the room with her daughter.  However on the afternoon of 14April 2014 after the daughter returned from school she had homework to attend to and PW1 had gone into the other bedroom to do her handicraft.

39.  PW1 heard the doorbell ring and she told the uncle to see who it was.  The next thing she knew was the sound of kicking at a door and the defendant rushing into the bedroom.  PW1 was about to put her handicraft down and felt something stab at her face.  She looked up and saw the defendant holding a knife.

40.  In her evidence in chief PW1 described how the defendant first held the knife in his left hand and after stabbing her on the face changed it to his right hand and attempted several other stabs.

41.  The defendant had not said anything and continued to stab her.  PW1 stood up and tried to fend off the knife using her hands held out in front of her intending to push the knife away so it would not touch her body.

42.  The defendant stabbed several times over a period described by PW1 as lasting several minutes.  He then picked up a wooden bar and holding it in both hands used it to repeatedly hit her.

43.  The wooden bar had already been inside the bedroom and had been part of a dismantled bed.  It was identified and produced as exhibit P5.  It is about 90 cm long and has a nail of about 2.5 cm protruding from one end.  PW1 said when the defendant was holding P5 he held it at the end without the nail. 

44.  PW1 said she was hit on the back of the head, on both shoulders and the area of the buttocks just below the waist.

45.  PW1 demonstrated a swinging action diagonally downwards from right to left and described the defendant inflicting the blows with a heavy force.

46.  The blows caused her pain and she screamed.

47.  In the meantime PW1 said the uncle remained seated in the living room and although she heard the defendant say something to him she could not hear clearly what that was.

48.  During the course of the beating the defendant asked her about her relationship with PW3.  PW1 told him they were just friends at which point the defendant took hold of the upper garment she was wearing and took it off and pressed her down.

49.  The upper garment was identified and produced as exhibit P6.

50.  PW1 was wearing another garment underneath which she described as underwear covering her breasts.

51.  She was also wearing a short skirt at the time but the defendant made no attempt to remove this.  The skirt was identified and produced as P7.

52.  P6 and P7 are shown in the photograph no 20.

53.  PW1 described the act of pressing down as pressing his hands onto her shoulders to press her onto the bed.  She did not agree to such action and as a result fell backwards onto the bed.  PW1 then managed to free a leg and kick the defendant and he in turn fell backwards allowing her to escape from the bedroom into the living room.  The uncle gave her an upper garment to put on and she took a pair of jeans from a drawer inside the living room and put them on over her skirt.

54.  She then ran into the toilet.  PW1 heard the doorbell however the defendant told her not to open the door otherwise he would stab her to death.  PW1 said she lied to the defendant and told him the person at the door whom she guessed was PW2 had a key.  PW1 opened the door and PW2 entered.  He asked the defendant why he had beaten PW1 and pushed her into the bedroom where she made a report to the police by telephone.

55.  Shortly after she heard shouts at the door and banging on the door.  At this time she stood outside the bedroom with PW2 in front of her.  The defendant was still holding the knife at this time and would not allow the door to be opened.  PW1 said he tried to rush at her but was prevented by PW2.

56.  She heard the police shout out that if the door was not opened they would break it down whereupon the defendant went into the toilet carrying the knife.  She did not know what the defendant did inside the toilet since the front door was opened and she was pushed out into the corridor.

57.  PW1 was sent to hospital for treatment.

58.  With reference to photographs PW1 identified the injuries she had sustained and clarified in relation to the injury to her lower lip as shown in photographs (1) and (2) this had been caused when the defendant hit her with P5.  There was also a stab wound in that area but it could not be seen in the photograph.

59.  The tissues shown in photographs (23) and (24) had been used to wipe the blood from the injuries.

60.  During the incident the daughter had remained inside her bedroom apparently using earphones and only emerged after the police arrived.

61.  PW1 described the knife wielded by the defendant as being about 20 cm long with an 8 cm blade with a pointed end – the kind of knife used to cut fruit – the blade was metallic and the handle a brown/black colour.

62.  PW1 was cross examined at some length about the contents of the statement she gave to the police as a witness on 15 April 2014 at about 0100 hours.

63.  I have considered carefully all these questions and the answers PW1 provided and in so far at there were any issues arising there from they largely were on peripheral issues.

64.  It was suggested to PW1 that there was an ongoing boyfriend and girlfriend relationship between her and the defendant which continued up until the 14 April 2014 which PW1 denied.

65.  I bear in mind that a relationship may be perceived as existing or otherwise in different ways between two persons but so far as PW1 was concerned any relationship of an intimate nature had come to an end.

66.  PW1 recited various incidents of nuisance including the defendant banging at the door of the premises, urinating at the doorway and throwing faeces at the door.  The defendant had also poured petrol at the doorway.  He had been banned from entering the premises by the management but had on one occasion managed to gain entry to a premises under renovation on a lower floor and thus managed to get to her flat on the 10^th floor.

67.  PW1 denied she had been given $30,000 by the defendant to spend at the Lunar New year.  On the contrary she had been forced to give him $500 when he had followed her to the airport on her way to Vietnam.  She agreed that on the night before her departure the defendant had slept on the same bed as her but had done so not of her own choosing suggesting he had tied her arms and legs with string.

68.  PW1 also said the defendant had attacked PW2 when he and she had bumped into the defendant in the street.

69.  Upon her return from Vietnam the defendant had come to the airport and during the bus journey home had threatened to kill and assault her.  Although this had been witnessed by other passengers she had not reported this to the police because there was no evidence of what he had said.

70.  PW1 agreed she had not reported these incidents to the police.

71.  It was put to PW1 that the defendant remained at the premises for about a week after her return from Vietnam and then went to stay with some friends in Tuen Mun in order to take up some work.

72.  This was denied by PW1 adding that the uncle had already started living at the premises and in any event she would not live with a person who had threatened to kill her daughter.

73.  PW1 was pressed about the number of times she claimed the defendant had been to the premises causing a nuisance and the number of times she had reported such incidents to the police.

74.  PW1 maintained he came often but she could not report every time since the police had advised her to obtain an injunction and in any event even if she called them by the time they arrived the defendant had already left and they could not do anything.  She had however reported the act of pouring petrol to the social worker but could not say how many times she had actually made a report to the police.  On one occasion when the defendant had come with other males kicking at the door and demanding to borrow money from her she had pretended to call the police to scare them off.

75.  It was put to PW1 that she was making these allegations up to get the defendant into further trouble which she denied.

76.  It was further put to PW1 that she never made a report to the police concerning the defendant’s alleged misconduct between February and the 13 April 2014 but PW1 said she had made a report(s) and also told her social worker.

77.  PW1 did change her account and was inconsistent about the number of times she made a report to the police suggesting variously she reported every day, every time he caused serious trouble and when pressed said she could not recall how many times she actually reported and indeed refused to be pressed into giving an answer on the issue.  I found her explanation about not wishing to waste police time after she had been advised to seek an injunction wholly credible and believable.  I do not accept she was fabricating events in order to portray the defendant in a worse light.

78.  The questions posed in cross examination were aimed at discrediting PW1 however notwithstanding the inconsistencies these were not such as to undermine her overall credibility of her account about incidents amounting to nuisance or worse by the defendant prior to the 14 April 2014.

79.  I bear in mind the defendant is not facing any charges arising out of these incidents and is facing only charges relating to events on 14 April 2014.  Whilst such evidence may show a breakdown of the relationship between the parties the court should not infer from such evidence the requisite intent to inflict grievous bodily harm on 14 April 2014 for that the court must look at the actions taken and the words spoken by the defendant on the day in question.

80.  Concerning the incident on 14 April 2014 it was put to PW1 the purpose of the defendant’s visit was to obtain a change of clothes.  Further that it was she not the uncle who had opened the door to the premises to let the defendant in.  PW1 denied this.

81.  It was logical if PW1 had been in the bedroom that when the doorbell rang she would ask the uncle who was in the living room to open the door.

82.  It was suggested after entering the bedroom the defendant began asking PW1 about some male clothing hanging in the room and then asking if she was seeing another man behind his back.  PW1 said he had asked such question but this was only after he had stabbed her and kept asking such questions in between beating her with P5.

83.  It was put to PW1 she had been using scissors to carry out her handicraft work and these scissors were of the spring loaded type.  PW1 said she did not need scissors for the handicraft work and added if she did have some scissors with her at the time she would have used them to stab him back.

84.  This also had a sense of logic about it.

85.  It was put to PW1 that defendant was very angry when asking about whether she was seeing another male and had used his hand to slap her once on the mouth.  He then tried to slap her again and PW1 had used the hand holding the scissors to block the slap as a result the scissors accidentally cut into her face.  A struggle ensued and PW1 kicked the defendant.  The defendant then tried to pin her down on the bed and then snatched the scissors from her hand resulting in the cuts to her finger.  The defendant then threw the scissors onto the bed or the floor.

86.  During this struggle a container with tools for her handicraft including another pair of scissors spilt onto the bed where the struggle was taking place and the injuries to the arm and thigh were a result of her coming into contact with scissors on the bed.

87.  PW1 kicked the defendant in the stomach and he took up P5 and hit her on the waist and buttocks.  PW1 had tried to block the blows and as a consequence she was accidentally hit on the shoulder and arm.

88.  It was put the defendant hit her no more than 5 or 6 times and at no time did he hit her with P5 on the back of the head or on the mouth.

89.  All these propositions were denied by PW1.

90.  After hitting her with P5 the defendant calmed down and obtained some tissue from the toilet to help her clean away the blood.  It was PW1 who removed her upper garment because it had blood on it and the defendant had taken it into the toilet and put it into a laundry basket.  Again PW1 denied this version of events adding there was no need to go into the toilet to get tissue as there was some in the bedroom.  Photograph 16 clearly shows a roll of tissue inside the bedroom.

91.  It was put to PW1 the defendant did not possess any knife or blade at the material time – again PW1 disagreed.

92.  The version of events prior to the entry of the police was also challenged suggesting there had been no attempt by the defendant to jump from the living room window nor did he prevent the door being opened to the police.

93.  Counsel often expect witnesses to have a precise recollection of events step by step and level criticism at witnesses who have given certain details in a witness statement to the police and give a contrary account before the court.  Such inconsistencies can be important if they go to the heart of the issues but issues such as whether a knife was held in the left or right hand at the time of an attack, the number of blows and the degree of force used in the act of stabbing and the rendering of the blows do not go to the heart of the issue.

94.  It is not altogether surprising a witness who is the subject of a sudden violent attack may not be able to give a step by step analysis and when asked repeatedly about such events and may confuse certain points or be unable to recollect with any degree of precision.

95.  Mr Leung repeatedly asked questions with reference to the statement and her evidence in chief about the hand in which the knife was held and whether the defendant had changed the knife from one hand to the other as she explained in chief.  She was also asked repeated questions about the degree of force used and what she had told the police or not told the police about being hit on the mouth.

96.  A perception of events at the time they occurred in the circumstances of a sudden attack and when being asked to give a witness statement at a police station and much later being asked to recount those events in court may differ in degree but I did not find the points raised by Mr Leung in cross examination and later relied upon in his closing submission to significantly undermine PW1’s account such that she was lying to this court or otherwise giving an account which could not be relied upon.

The evidence of PW2 (Mr Le Quang He)

97.  PW2 changed the sequence of events described in evidence suggesting at first the defendant had to be persuaded from jumping out of the window and then going into the bathroom to throw away the knife to reversing that sequence after it was pointed out he had told the police in his statement the defendant went into the toilet first and then tried to jump from the window.

98.  PW2 also suggested the relationship between him and PW1 had progressed further than PW1 had admitted.

99.  Mr Leung in his closing submission suggests the evidence from PW2 that he had persuaded the defendant to throw away the knife was nonsensical.  Mr Leung also says the suggestion to throw away the knife was in contradiction to what PW2 had told the police in his witness statement.

100.  Mr Leung relies also upon the continued relationship between PW2 and PW1 and suggests that he would not have wanted to protect the defendant who had just attacked his girlfriend.

101.  I did find the evidence of PW2 to be slightly odd.  If one accepts his version in evidence that he persuaded the defendant to throw the knife away this would undermine any suggestion the possession of a knife by the defendant was a concoction between PW1 and PW2.

102.  On the other hand there is some force in the submission made by Mr Leung that if PW1 his girlfriend had been attacked with a knife it was nonsensical for PW2 then to persuade the defendant to dispose of the knife.

103.  Moreover if PW2 is to be believed it suggests that he was prepared to assist the defendant in concealing what would otherwise be a vital piece of evidence.

104.  I therefore approach his evidence with caution

The evidence from the police officers PW3 (PC 11552 Lam Yiu Wing) and PW5 (DSI Kwok Kwun Wang).

105.  PW3 said when he and his colleagues arrived at the premises they could hear arguing from within.  He knocked at the door but received no reply.  PW3 continued to knock on the door and announced in a very loud voice revealing they were police.  A few minutes later the door was opened.

106.  I did find the evidence of PW3 about seeking information from PW1 in the presence of the defendant inside the flat as strange.  PW1 said she had been taken out of the flat and asked questions in the corridor and to separate the complainant from the suspect would have been a logical step for the police to have taken.

107.  PW3 said that the complaint made by PW1 was within the hearing of the defendant however it was not established how close the defendant was and what was happening to the defendant at the time.  Accordingly I cannot be sure the defendant overheard any or all of what PW1 was telling the police officer.

108.  Suffice it to say the complaint made by PW1 to the police must have included a complaint she had been attacked by the defendant using a knife.  This is borne out by the fact the police went in search of the knife which was never recovered.  It is also borne out by the reasons given for the defendant’s arrest.  Such reasons were subsequently recorded with the benefit of a Vietnamese interpreter in a post recorded interview under caution after the defendant had been taken to the police station.

109.  The arrest, caution, the defendant’s response under caution and the post record were all admitted as unchallenged evidence.

110.  In the declaration of arrest PW3 told the defendant the allegation was he had attacked PW1 (referred to as his girlfriend) with a knife and a wooden pole causing injuries to her face and arm.  The defendant could have been under no mistake therefore the allegation included the use of a knife.

111.  In response under caution the defendant said “Ah sir she has a love affair with someone I therefore ended up on impulse hit and injured her with a pole”.

112.  PW5’s evidence did contradict the evidence in chief of PW1 she had made repeated reports to the police concerning the defendant.  Only one report was revealed by a computer search and this became the subject of an admitted fact D1 and D1A.  Mr Leung in his closing suggested the report referred to an unknown male.  That is not entirely correct.  The report refers to PW1’s ex boyfriend but PW1 refused to disclose his particulars.

113.  The report however does also support PW1’s claim she had been advised by the police to seek an injunction.

The medical evidence

114.  I have recited the medical findings made by PW4 above.  Mr Leung in his closing refers to the superficial nature of those injuries and how they do not support PW1’s allegation of strong force being applied.

115.  I bear in mind the perception of the degree of force being applied by an attacker at the time of the attack may be very difficult to assess.  Any civilian untrained in combat attacked with a knife and/or pole would be in fear and no doubt would experience great pain where the skin is broken and where blows are rendered such as to produce the degree of bruising as shown in the photographs.  A sudden attack would heighten that perception and I am not surprised PW1 would describe the attack as being with force.

116.  I shall return to the injuries sustained by PW1 later.

117.  After the close of the prosecution case Mr Leung made no submission and I ruled the defendant had a case to answer on both charges.

The defence case

118.  The defendant elected to give evidence.

119.  In essence the defendant recited an account of a continuing boyfriend/girlfriend relationship between him and PW1.  He denied all the allegations of causing a nuisance as described by PW1.  He claimed to have provided PW1 with $30,000 as spending money for the Lunar New Year and had escorted her to and from the airport when she went to Vietnam.

120.  The defendant claimed he had given PW1 no reason to make a report to the police after her return although he did admit that after she returned she would not speak to him when he called her on the telephone.

121.  On 14 April 2014 he had gone to the flat to change his clothes and collect his passport to apply for an extension of stay.  Upon entering the bedroom he saw some items used by a man together with some male clothing.  The defendant asked PW1 about these items but she did not reply.  He persisted in his questions asking whether she was seeing another man.  At the time PW1 was threading the beads and using scissors to cut the thread.

122.  The defendant said he was angry and slapped her on the face.  This he claimed accounted for the laceration to her lip.

123.  He went to slap her again and this time PW1 blocked the slap with the hand holding the scissors and in doing so the scissors cut her face causing her to bleed.

124.  The defendant claimed he did not intend that to happen and had not foreseen that.

125.  The defendant then tried to snatch the scissors and a struggle ensued during which PW1 cut her finger.  He claimed he did not intend to cut her finger and had not foreseen that.

126.  PW1 then kicked him in the private parts which caused him great pain and further enraged him so he picked up P5 and beat her with it 5 or 6 times across the buttock.  However PW1 tried to avoid the blows and turned her body and this accounted for the other bruising.  The defendant denied hitting PW1 on the head or on the mouth.

127.  The defendant speculated the laceration to her arm and thigh were caused during the struggle on the bed when she came into contact with scissors or other tools including needles which had been in a container and which had spilt onto the bed.

128.  Concerning the abrasions shown in photograph 12 the defendant suggested these were caused when PW1’s arm was pressed against some wire which was also used as part of her handicraft work.

129.  The defendant denied carrying a knife.

130.  The defendant claimed he claimed down and helped PW1 wipe away the blood using the toilet paper from the roll in the room.

131.  He denied any indecent assault and suggested that he had asked PW1 where she was bleeding and PW1 had lifted the arm of her upper garment to show the injury after which she went into the toilet and closed the door.  At no time had she removed the upper garment because “there were people sitting around”.

132.  The doorbell rang and the door was opened by the uncle.  PW2 entered and took PW1 into the bedroom.  In the meantime he and the uncle sat and smoked cigarettes in the living room.  The doorbell rang again and this time the defendant intended to open the door but was told by the uncle not to do so.  In the end PW1 opened the door and the police entered.

133.  After being identified by PW1 the defendant was taken into the corridor and questioned.

134.  The defendant denied throwing a knife from the window or attempting to jump from a window.

135.  I found the defendant’s version of events to be contrived.  His denials were unconvincing and his explanation of how PW1 sustained the injuries to her arm and thigh by coming into contact with the scissors or tools inherently improbable.

136.  The defendant’s assertion the laceration to the lip was caused by a slap also was illogical.  A slap to the face suggests an open palm used in a horizontal or near horizontal strike.  This would generally be aimed at the cheek.  A closed hand punch directed to the mouth on the other hand could result in a lacerated lip.  An examination of photograph number two shows the laceration towards the middle of the lip which would not be the region of injury associated with a slap to the face.

137.  I noted there were no tools scattered on the bed as shown in photograph 16 and moreover this was a mattress with bed covers such that if there had been objects on top and a person had pressed down upon them they would sink into the bed covers and mattress.

138.  Whilst the defendant was not under any obligation to provide any explanation he did respond under caution.  He was aware at the time PW1 had sustained injuries to her face and other parts of her body and the allegation was the injuries were caused using a knife and a pole but nevertheless made no mention of any scissors to the police.

139.  I find the reliance upon the scissors causing those injuries to be of recent invention designed for the purpose of defending the charge.

140.  Again an examination of the photographs shows no wire and it is difficult to see how the multiple abrasions as depicted in photograph number 12 could have been caused by PW1’s arm coming into contact with some wire as suggested by the defendant.

141.  Again the defendant made no mention of wire to the police when it must have been obvious to him PW1 had sustained injury.

142.  I find the reliance on wire as the cause of injury to the arm also a recent invention.

143.  I also found the claim by the defendant he had intended to open the door to the police but had been persuaded otherwise by the uncle to be inherently improbable.  This was a conceit by the defendant to explain away the delay in the door being opened to the police during which time he had disposed of the knife.

144.  I also found his account of providing PW1 with $30,000 as spending money when he had been unemployed inherently improbable.

145.  The defendant claimed in cross examination he was not prone to anger but during the course of cross examination I observed flashes of suppressed anger.

146.  I also take into account matters as put to PW1 in cross examination for example PW1 had removed her upper garment which was contrary to the defendant’s claim in evidence the upper garment had not been removed she had only lifted the sleeve to show the injury.

147.  Further it had been put to PW1 the defendant had gone into the toilet to obtain tissue to wipe the blood away.  PW1 had responded pointing out there was tissue in the bedroom and hence no need to go into the bathroom.  The defendant seems to have seen the illogicality of the suggestion he went into the bathroom and said in evidence he used the tissue from the roll in the bedroom.

148.  I found the defendant to be an untruthful and dishonest witness who was prepared to make up an account to distance himself from what had taken place on 14 April 2014 and before.  I reject his account.

149.  The defendant however does not have to prove anything since the burden rests with the prosecution to prove these two charges beyond reasonable doubt.

The closing submissions

150.  As both Counsel said during their closing submissions much depends upon the credibility of PW1.  However in respect of the first charge I must also be satisfied the attack on PW1 was such as to bring it within the meaning and intent of section 17 of Cap 212.

151.  Mr Polson concedes the wounds sustained (and these are the lacerations and the abrasions since the bruising would not fall within the definition of a wound) were not the most serious.  Mr Polson submits the wording of the section is directed at the intent and a person who attacks another with a knife must have the intent to cause grievous bodily harm such that if successfully defended with minor resulting injuries this could still constitute an offence under section 17.

152.  There appears to be some force in this argument provided the injuries caused fall within the definition of a wound.

153.  There seems to be some gradation in cases involving assaults which do not result in the death of the victim with common assault being at the lower end and section 17 offences at the upper end and the determination as to the appropriate charge hinges primarily upon the extent of the injuries sustained.

154.  Mr Leung in his closing submission helpfully referred to the two authorities.

155.  In HKSAR and Lo Tak Chi CACC 269/1999 the Court of Appeal set aside a conviction under section 17 and substituted a conviction under section 39 notwithstanding it was apparent that the appellant had intended to cause grievous bodily harm.  In that case the injuries included multiple abrasions, a cut to the tongue requiring a stitch and a chipped tooth. The victim had also lost consciousness.

156.  I note however the charge in that case was causing grievous bodily harm with intent and the Court of Appeal was concerned the injuries did not amount to grievous bodily harm as generally defined.  The Court of Appeal does not seem to have considered whether the injuries could have amounted to wounds for the purpose of a conviction under section 17 or 19 just that they did not amount to grievous bodily harm.

157.  In HKSAR and Chan Ka Wah CACC 74/2011 the case proceeded on a charge under section 19 where the victim who was alone at home at the time had been beaten over the head with a glass bottle more than 10 times by an intruder who also held a pair of scissors pointing them at the victim.  The injuries sustained by the victim included 3 laceration wounds to the face, two to the scalp, one to the finger and multiple abrasions to the hands and forearms.

158.  I agree with Mr Leung that case illustrates how the section 17 offence should only be applied to the most serious of cases.

159.  In a case which was before this court shortly before the present case the defendant had originally been charged with a section 17 offence (wounding with intent as opposed to causing grievous bodily harm with intent) but the prosecution accepted a plea to a section 19 offence where the injuries included a 10 cm laceration and a stab wound requiring wound exploration – injuries which were more serious than in the present case.  In that case the defendant had attacked the victim with a paper cutter when the victim had been seeking a friend at an adjoining cubicle.

160.  The inconsistency of whether to charge a defendant with a section 17 offence or a section 19 offence may rightly cause a sense of injustice for those convicted of the more serious offence.  To ensure justice there must be some degree of consistency although inevitably in cases such as these to a certain degree each case does depend upon its own facts.

161.  Apart from the seriousness of the injuries one of the major issues in the present case is whether the defendant was using a knife.

162.  I have rejected the defendant’s account of the incident and in particular his suggestion the wound to the face was caused by a pair of scissors held by PW1 at the time he attempted to slap her and the other wounds caused by her accidentally coming into contact with scissors, wire or other sharp objects on the bed during the struggle.

163.  According to PW4 he said the laceration to the lip, cheek, arm and thigh were in his opinion caused by a blunt instrument because the wounds had irregular edges.

164.  Mr Polson submits it is obvious that a knife could cause such wounds as well.  PW4 drew a very clear distinction between wounds caused by a sharp object such as a knife and those caused by a blunt instrument such as P5 but this was in the context of a medical diagnosis and treatment.

165.  When asked in cross examination whether the lacerations particularly the laceration to the thigh was inconsistent with a wound caused by the point of a knife PW4 said it depended upon the force and direction applied.  He further associated the laceration to the finger with a defensive wound from an attack with a knife.

166.  I do not find the medical findings concerning the lacerations inconsistent with wounds caused by a person wielding a knife however they do not reflect a deep penetrating stabbing action with a knife.

167.  As stated above I do approach the evidence of PW2 with caution but he was resolute in his evidence that the defendant had a knife with him and I accept he would not have made this up get the defendant into further trouble – indeed if he did try to persuade the defendant to dispose of the knife before the police entered this would show the contrary.

168.  I take into account all the matters raised in submission concerning the credibility of PW1’s account but I found her to be a witness who was doing her best to recall the events.  Her recollection may have revealed some inconsistencies but she was extensively cross examined and remained resolute she had been attacked by the defendant wielding a knife and I have no reason to disbelieve her on this or to find her account otherwise than credible and reliable.

The 1^st charge.

169.  The wording of section 17 of Cap 212 reads:-

Any person who-

(a) unlawfully and maliciously, by any means whatsoever, wounds or causes any grievous bodily harm to any person; or

(b) shoots at any person; or

(c) by drawing a trigger or in any other manner, attempts to discharge any kind of loaded arms at any person,

with intent in such cases to maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence triable upon indictment, and shall be guilty to imprisonment for life.

170.  It is evident from the wording of the section the word “wounds” is to be read in conjunction with the other injuries or acts so described and the section is aimed at those cases involving very serious harm to the victim or potential harm as a result of the use of a firearm.

171.  This is also reflected by the maximum penalty prescribed by the section.

172.  Although I accept the defendant had used a knife however given the resulting wounds the degree of force used (whether by intention or the result of distance between him and PW1) at the time the knife came into contact with the skin could not have been that great.

173.  I also note at the time the defendant first attacked PW1 he did not say anything about his intentions.

174.  It may follow a person who attacks with a knife (albeit a kitchen knife as opposed to a knife designed to be used as a weapon) may be said to have intended serious bodily harm (which is how grievous bodily harm is generally defined).

175.  The carrying of the knife shows a degree of premeditation however there was no evidence showing the defendant arrived at the premises carrying the knife.  Further if the defendant had intended grievous bodily harm one would have expected the resulting wounds to have been deeper than those diagnosed.

176.  Further despite what appears to have been a number of prior acts of nuisance and threats this appears to have been the first incident involving a direct use of violence on PW1.

177.  Accordingly in all the circumstances of this case I cannot be sure to what extent harm was intended by the defendant.

178.  In any event I do not find the resulting injuries sustained by PW1 to be of sufficient degree of seriousness to warrant a conviction under section 17.

179.  I have considered the alternative verdicts.

180.  Mr Leung in referring to the case of Lo Tak Chi cited above suggested the injuries sustained by the victim were of a more serious nature in that case than in the present case.  I accept the loss of consciousness can be potentially very serious but this would not fall into the category of being a wound per se although the consequences may constitute grievous bodily harm.  The other injuries were multiple bruise marks and abrasions and a small cut wound to the tip of the tongue.

181.  I note in substituting a conviction for a section 39 offence the Court of Appeal commented it was a bad case of an offence under section 39 and the injuries to the victim were not insubstantial.

182.  I disagree with Mr Leung the injuries in that case were more serious than in the present case.

183.  The injuries in the present case are similar to those sustained by the victim in the Chan Ka Wah case which as I have pointed out proceeded on the basis of a section 19 offence.

184.  For a conviction under section 19 the prosecution must prove the defendant unlawfully and maliciously wounded PW1.

185.  PW4 confirmed the lacerations had breached the skin and the subcutaneous tissue.  This diagnosis brings these injuries within the definition of a wound for the purpose of section 19.  There were four wounds which required stitches together with the wound below the eye.

186.  The abrasions to the arm do show a break in the surface of the skin but it is not clear from the photographs and not clarified with PW4 as to whether these also went below the subcutaneous tissue and thus may fall outside the definition of a wound.

187.  There is no doubt the defendant acted with malice and there being no lawful reason for the defendant to have inflicted these wounds I am satisfied beyond a reasonable doubt the defendant did unlawfully and maliciously wound PW1 and as an alternative to the charge as laid before me I find him guilty of an offence contrary to section 19 of the Offences against the Person Ordinance Cap 212.

The 2^nd charge

188.  I have no reason to doubt PW1’s account of her upper garment being forcefully removed against her will by the defendant who at the same time was trying to press her down onto the bed.  There was no exaggeration in her description of the defendant’s actions.  Had PW1 been concocting this evidence one would expect her to have done so incorporating far more allegations of indecency towards her than she related in evidence.

189.  I find such act an intentional act on behalf of the defendant and that it constituted an assault.  I further find the assault in those circumstances would be considered by right minded persons as being indecent.

190.  I have regard to the fact there is no evidence before me that the defendant having successfully removed the garment then touched or attempted to touch PW1’s breasts.  Further there is no evidence that he attempted to remove her skirt.  However PW1 said after he had removed her upper garment she managed to kick him causing him to fall backwards which in turn enabled her to escape.

191.  Had PW1 not managed to kick the defendant away I have no doubt he intended by removing her upper garment to go on and commit further indecent act(s) against PW1’s will.

192.  In the circumstances the defendant by removing the upper garment did so intending it to be an indecent assault.

193.  I find the prosecution has proved beyond all reasonable doubt all the elements of the 2^nd charge and the defendant is convicted of the 2^nd charge.