HKSAR v. TIDOY PRIMITIVO ASUNCION

DCCC 55/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 55 OF 2013

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REASONS FOR VERDICT
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1.  This is a retrial of D, who pleads not guilty to a charge of wounding with intent, contrary to section 17 (a) of the Offences against the Persons Ordinance, Cap.212. It is alleged that D on 4 November 2012, outside No 3 Li Yuen Street West, Central, he unlawfully and maliciously wounded Mr Shoukat Khan (PW1) with intent to do him grievous bodily harm.

Undisputed Facts

2.  There are two sets of Admitted Facts, respectively marked as P11 and P12.

3.  The course of arrest of D by PC 9893 (PW3) in the vicinity of 33 Queens Road Central is not challenged.  It is admitted that at the crime scene blood stains belonged to Mr Khan were found outside No 3 Li Yuen Street West. 

4.  The video recorded interview in respect of D is not challenged: master disc P4, certified English transcripts P5 and working disc P6.  A set of 52 photographs P10 and a sketch P2 are produced by consent.  2 medical reports, one prepared by Accident and Emergency (A&E) doctor Dr Yip Wai-lam (PW6) who firstly attended to Mr Khan and another by Dr Law Yuk (PW7) attached to the Department of Surgery, are also admitted into evidence by consent, albeit both doctors have later come to court to give evidence.

5.  D also suffered some injuries which included bruising, swelling/haematoma and abrasion to his face.  It was forensic scientist’s opinion that DNA on the back of D’s jeans could have come from Mr Khan.

6.  The court also heard that D has a clear criminal record.  He is therefore entitled to the usual beneficial treatment when the court assesses his credibility and propensity.

7.  The second set of admitted facts P12 was prepared by the defence where the following facts are considered in its favour:-

(i) No blood was found on the knife P1 which only contained DNA of Mr Khan (found on the blade) but not that of D.

(ii) D’s pair of jeans had bloodstains that contained his DNA.

(iii) Mr Khan’s T-shirt and jeans had bloodstains that contained his DNA. D’s DNA was not found on any of Mr Khan’s clothing.

Prosecution case

8.  The Prosecution called a total of 7 prosecution witnesses.  Mr Khan is the key witness who told the court that at around 10 pm on 4 November 2012, he and Wahid Khan (“Wahid”) were sitting on the steps at Nos 3-5, Luen Yuen Street West: see photo P10 (2) waiting for a friend.  Not long after he saw his another friend Mr Nawaz Muhammad (PW2; “Nawaz”) in the vicinity.  Whilst they were still waiting, 3 Filipinos consisting of a female and 2 males passed by.  Suddenly, someone dropped glass bottles behind them and Mr Khan heard sound of breaking glasses. 

9.  One of the male Filipinos, later identified to be D, returned and approached Mr Khan.  Feeling the need to explain about the bottles, Mr Khan stood up and walked towards D.  He spoke to D in a nice way: “Friends, we didn’t throw the bottle behind you.  Who threw the bottle behind me? We don’t know.”  D did not make a reply, and suddenly he took out a knife and stab Mr Khan’s left abdomen.  Mr Khan demonstrated D’s stabbing action as a horizontal motion from D’s right to left.  Mr Khan then felt a burning sensation at his abdomen, and he immediately turned his head towards his friends.  At that juncture, the three Filipinos including D ran away towards Queens Road Central.  Wahid gave chase but Mr Khan could not run in full speed as he felt pain in his abdomen which was bleeding.  He confirmed that P2 showed the escape route of the AP, ie D.  When D reached No 33 Queen’s Road Central, he tripped and fell: photo P10 (14).  Wahid managed to subdue him alone and Mr Khan did not participate in the struggle.  Mr Khan then went blank and did not know what happened afterwards.  As far as he could recall, Nawaz and his friend were also there when D was being held down by Wahid.  Later he was taken to Queen Mary Hospital for treatment.

10.  Mr Khan was invited to look at photos P10 (25) and (26) to see if he could identify which wound was caused by D.  He replied that he could not.  P10 (25) shows 2 stitched wounds, one diagonal which is longer, whereas the other one is vertical and is visibly shorter.  In P10 (26) shows a third hole-shaped wound located below the waistband.  Mr Khan said he had no idea why it existed.

11.  In cross-examination, Mr Khan’s testimony was tested in several ways: First, it is said to be different from his witness statement MFI 2; Secondly, it is different from the evidence he gave in the first trial: see extracts of transcripts of proceedings MFI 1; Thirdly, it is contradicted by other evidence such as photographs, medical evidence of Dr Yip and Dr Law, testimony of the arresting officer PC 9893 who arrived at the scene and the uncontested DNA evidence. 

12.  Defence counsel suggested that neither wound as shown in P10 (25) was a result of horizontal slashing motion.  In reply Mr Khan said that he was not sure, adding that both wounds were inflicted by D.  In his statement to the police, Mr Khan did say that D had stabbed him twice.  In the present trial he initially insisted that he was stabbed only once, but later conceded that he could no longer remember whether it was once or twice. 

13.  In his witness statement, Mr Khan said D blamed him for throwing the bottle and said foul language.  In the present trial, however, Mr Khan testified that D did not utter a word before the attack. Another major inconsistency would be about D’s clothing: In the statement Mr Khan described the assailant as a man wearing a cap, whereas in this trial he said D did not wear any.  Regarding the chase, Mr Khan told the police that he ran ahead of Wahid, but in this court he said he had difficulty in walking and he could only follow.

14.  At this point, it is perhaps convenient to relate the evidence of the statement taker SGT 9927 (PW5) and Urdu interpreter Mr Tufail Mohammad (PW4).  Both of them confirmed that Mr Khan did not complain that he was feeling unwell and that he wanted the statement taking to be postponed.  The Urdu interpreter Mr Mohammad confirmed that he diligently translated the words spoken between SGT 9927 and Mr Khan, and Mr Khan did not make any request to amend the statement in the end.

15.  Nawaz gave evidence that he met Mr Khan by chance at Li Yuen Street West.  He just witnessed part of the incident.  All he could tell was that a fight erupted between two parties, with Mr Khan later being attacked.  He heard Mr Khan scream and bent over but he could not see the actual stabbing.  He then saw Wahid chasing the assailant who tried to run away.  He did not join in the pursuit himself.  Eventually he walked to the place where Wahid subdued the assailant, and saw Mr Khan standing at a nearby railing covering his abdomen with his hand.

16.  PC 9893 was the first batch of officers who arrived at the scene.  He saw two men struggling with each other so he went up to separate them.  He then searched D and found a folding knife P1from his right rear trousers’ pocket.  Upon seeing that Mr Khan was injured by a knife and D was in possession of P1, he declared arrest to D.  D’s immediate response was this: “The Pakistani fight me, so I hurt him.”

17.  In cross-examination, PC 9893 conceded that his testimony this time was different from that in the first trial: MFI 4. Previously he said he saw several people struggling together, three people to be precise.  In particular, he told the court last time that he firstly separated Mr Khan from the trio.  In re-examination, he confirmed that the evidence he gave earlier, ie in the first trial would be more accurate.

18.  Dr Yip was the A & E doctor who firstly attended Mr Khan.  He referred to the medical report he prepared in respect of Mr Khan P7 and confirmed that there was only one laceration over Mr Khan’s left abdomen which was about 1 cm long.  He looked at photos P10 (25) & (26) and confirmed that the long diagonal wound as well as the hole-shaped wound was not there when he examined Mr Khan.  Surgeon Dr Lam also looked at photo P10 (25) and he opined that the longer wound was a result of emergency laparotomy.  Like Dr Yip he could not explain about the hole-shaped wound.

19.  The prosecution also adduced D’s video-recorded interview as evidence.  Both sides agreed that this court could work on the certified transcripts P5.  In the interview D explained that at the material time he passed by Li Yuen Street West where he met a group of about 10 Pakistanis, who asked if he was Filipino.  He was then punched on his back and later hit by other Pakistanis.  He then tried to run away but the Pakistanis kept chasing him from behind.  Later he tripped and fell to the ground in Queen’s Road Central, where he was being punched and kicked continuously.  In the course of the assault ne of the Pakistanis produced a knife.  He then struggled with that Pakistani and he managed to grab hold of the knife and stabbed him.  That Pakistani then bent over.  At that time, other Pakistanis came along and held D’s hands, retrieved the knife from him and put it in his rear jean pocket. Not long after, police officers arrived and the Pakistanis accused D of having a knife.

20.  The reasons for D stabbing the Pakistani were two-fold: First, he felt angry; and secondly, he was punched and kicked after he was knocked down. Whilst provocation is not a defence, the second reason may give rise to the issue of self-defence.

Defence case

21.  D exercised his right to silence.  He did not give evidence and did not call any defence witness.  The defence case put to Mr Khan is by and large consistent with what D told the police under caution.

Issues before the court

22.  The issues before the court are purely factual.

Findings of facts

23.  I bear in mind the onus of proof always rests on the prosecution.  The standard of proof is beyond reasonable doubt.  D has nothing to prove whatsoever.  I remind myself once again of D’s clear record.

24.  I deal firstly with the evidence of Mr Khan who is the key witness in this case.  I accept Mr Dunn’s submissions that he is not a credible and reliable witness for the following reasons:-

(i) He has given two, sometimes three different versions in his witness statement, during the first trial and in the present trial. Those matters include whether or not D spoke anything prior to the attack, whether D was wearing a cap (which goes to the fundamental issue of identity of the assailant), how many stabs, and whether he ran ahead of Wahid in chasing D.

(ii) PC 9893’s evidence conflicts with Mr Khan’s in that there were two people instead of Wahid alone struggling with D. This is a major inconsistency which cannot be resolved.

(iii) The medical evidence, together with the photos depicting Mr Khan’s wounds, contradict Mr Khan’s claim that the attack was a horizontal slashing motion. Mr Khan later conceded that he was unsure how he got those wounds.

25.  The evidence of Nawaz cannot assist the prosecution as he did not witness the actual attack.  Most importantly he had no idea which Filipino, with or without a cap, inflicted the stab wound on Mr Khan.

26.  The prosecution tried to rectify the problems in Mr Khan’s witness statement by calling the statement taker and the Urdu interpreter.  With respect, I fail to see how it could work.  The prosecution cannot undermine the evidence of its own witnesses, both of whom maintained that they made no mistake to the best they could during the whole process.  If I were to accept their evidence, it means Mr Khan was telling lies when he tried to lay blame on others by claiming that he was not feeling well and that he had proposed to delay the taking of the statement.  Upon assessment, I find both SGT 9927 and Mr Mohammad to be credible and honest witnesses and reject Mr Khan’s claim that they did not perform their duties professionally.

27.  As mentioned above the medical evidence of Dr Yip and Dr Law stood unchallenged so I accept it in its entirety.  As to the scientific DNA evidence, it is at best neutral because no expert has been called to explain about why certain DNA was found in one place but not the other, under what circumstances would a physical contact leave one’s DNA on an object, etc.  The court simply cannot speculate on area that requires expert’s assistance.

28.  The remaining part is D’s video recorded interview.  In closing submissions I did raise with the prosecution as to how to deal with D’s mixed statements, where D admitted stabbing the assailant, ie Mr Khan on Queen’s Road Central out of self-defence.  Other than saying generally that the court should rely on the inculpatory parts and reject self-defence, Mr Donald for the prosecution does not press on this alternative basis very forcefully.  In reply, Mr Dunn argues that if Mr Khan is found to be unreliable, the whole case must collapse.

29.  A trial judge could as a matter of law refuse to accept the prosecution’s election in the conduct of a trial.  In some instances, a judge may consider or even convict on a basis different from that presented by the prosecution, provided that the alternative basis is open on the indictment and the evidence, and parties are given full opportunity to address the court.  See Hau Tung-ying v HKSAR (2011) 14 HKCFAR 453.  The Court of Final Appeal stressed, however, that such situation must be rare and exceptional.

30.  In my judgment, this is not an appropriate case where I should convict D solely on his admissions.  My reasoning is simple: First of all, D’s alleged admissions are not consistent with other evidence adduced by the prosecution.  This court cannot be absolved of the responsibility of resolving the discrepancies and/or inconsistencies in evidence even if I rely on D’s record of interview.  The situation in which the stab took place is in stark difference between Mr Khan’s version on one hand and D’s version on the other.  Not only the location is different, how D came by with the knife is also different.  It is a classic situation where the tribunal of facts is unsure where the truth lies, and it would be unsafe to convict an accused person under those circumstances.

Verdict

31.  Having carefully considered all the evidence and submissions of counsel, I find that the prosecution has failed to prove the charge against D beyond reasonable doubt.  I hereby return a verdict of not guilty.