HKSAR v. LIU MAN WAI

DCCC146/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 146 OF 2012

----------------------

---------------------

Reasons for Verdict

---------------------

1.  The defendant is facing one charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212.  He pleads not guilty to the charge.

Prosecution case

2.  The prosecution called PW1, 2 and 3 to give evidence in court.  The prosecution case depends mainly on the evidence of PW1, the victim, Mr Foo Kai-kit.  Identity is not in dispute.  It is not disputed that the defendant and Mr Foo have known each other for more than 10 years.  Mr Foo has lent some money to the defendant about one year before the incident of attack.  The defendant had tried to evade contacts of Mr Foo. 

3.  In the incident of the alleged attack, Mr Foo sustained very serious injury on his left forearm.  Medical examination revealed that he had a 9 cm transverse laceration over distal volar forearm with complete cut of the radial artery, superficial radial nerve, median nerve and flexors.

4.  Mr Foo’s evidence is that shortly after midnight on 11 October 2011 he learned from a friend that the defendant was in Hang Fa Hotel located at 3rd Floor, 211 Portland Street, Mong Kok.  It is his evidence that when he learned about the whereabouts of the defendant, he happened to be in the vicinity with about 6 to 7 male friends.  Therefore the whole party proceeded to locate the defendant in order to get the money back. 

5.  The party arrived at the hotel at about 1.45 am.  After Mr Foo knocked on the door of Room 7, the defendant opened the door. He looked surprised and closed the door immediately.  When Mr Foo and his friends were stepping back through the corridor until he was outside the glass door at the main entrance of the hotel, the defendant, coming out from Room 7 with a knife in his hand, rushed towards Mr Foo.  The defendant raised the knife as if he was to chop Mr Foo.  Mr Foo moved forward in order to push the knife away.  The knife landed on his left arm.  Mr Foo immediately ran away by the back staircase and eventually went to Kwong Wah Hospital for medical treatment by taxi.  The matter was hence reported to the police at Kwong Wah Hospital.

The defence case

6.  The defendant elects to give evidence.  He tells the court a wholly different story.  He says the victim is a “Ma foo” (undisputedly referring to someone who lives on the earnings of a prostitute) who is also involved in drug trafficking and loan sharking.  The defendant had borrowed from him $40,000 with the condition that he had to repay a total of $60,000, with $20,000 as interest in six months’ time.  The defendant had repaid $40,000 but yet to repay the interest for $20,000.

7.  Shortly after midnight on 11 October 2011 the defendant was by himself at Room 7 of the hotel.  When someone knocked on the door, he opened the door and saw Mr Foo and three other males who all entered into the room.  Mr Foo blamed the defendant for evading from him and instructed the other males to assault the defendant.  Mr Foo said he would give the defendant one more chance if he could repay $20,000 within one hour.  The defendant tried to phone his friends for assistance but to no avail. 

8.  Mr Foo then left Room 7 with two of the three males for about 20 to 30 minutes before he came back with six to seven people. Mr Foo said he would take the defendant away and would find a way to make him pay.  He further said to the defendant that if he did not repay he would have to suffer for a long time.  When the defendant refused to go with Mr Foo, Mr Foo became very angry.  He left Room 7 for a while then returned with a knife in his hand.  He pointed the knife at the defendant and threatened the defendant to go with them.

9.  The defendant complied and walked in the middle of the people.  One of the people put his hand on the defendant’s shoulder from behind.  When the defendant reached the cashier counter he put up struggle in order to free.  Eventually he succeeded in escaping through the staircase.  The defendant says he did not get possession of the knife at any stage, nor did he use it to attack Mr Foo.  

10.  The defence case put simply, the defendant was in self-defence.  If the defendant had hurt PW1 during his struggling it was an accident.

Analysis of evidence

11.  The knife in question was a beef knife, 45 cm in length which was recovered near a rubbish bin at the staircase outside the main entrance of the hotel.  As can be seen the knife’s handle was wrapped by gauze.  It is noted that some newspaper wrapped by a towel which appeared to be a knife cover was found by the police at Room 9 i.e., the room opposite to Room 7. 

12.  PW2, Madam Lau Sin-chi, the cashier and cleaner of the hotel, confirms that the defendant was not occupying Room 9.  However, her evidence as regards the incident cannot be relied upon as she says she was sleeping and not paying much attention to the people.  Apparently she was trying to distance herself from the incident.  Her evidence also departs from her witness statement in some regards. 

13.  The case turns on the credibility of Mr Foo and the defendant.  The defendant lied to the police at the video interview record which took place on 15 October 2011 when the defendant was arrested.  He lied to the police officer that he did not know Mr Foo.  He also said he had not seen the knife used in the attack of Mr Foo in Hang Fa Hotel in Portland Street.  The lie itself, however, cannot prove guilt.  It usually affects only credibility.  Sometimes a lie can be used to strengthen an inference of guilt (see R v Lucas). 

14.  In this case the extent of the defendant’s lie, in my view, is only to a narrow extent that he denied knowing the victim when clearly he did not want to answer the questions of the interviewing officer. It does not go to a material issue in the case.  The probative value of the evidence of lies therefore is very limited. 

15.  It is not disputed and cannot be disputed that the injury on Mr Foo’s arm was caused by the knife.  I find, as the only reasonable inference that Mr Foo’s injury was caused by the knife and the cover found in Room 9 was originally used to cover the knife.

16.  Three forensic scientist’s reports are admitted under Section 65B of the Criminal Procedure Ordinance.  However, in my view, these reports cannot assist the prosecution or the defence.  The DNA found on the gauze wrapping the knife’s handle, cannot conclusively prove that the defendant had held the knife in his hand.

17.  The burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.  The prosecution must rebut the defences raised by the defendant.  The case solely depends on the credibility of Mr Foo.  Is he a credible witness?  The evidence shows that Mr Foo is not a man of simple of background.  He has two previous convictions for possession of dangerous drugs and one conviction of unlawful sexual intercourse with underage girl. 

18.  During cross-examination and upon being suggested that he was a “Ma foo”, loan shark and a drug trafficker, Mr Foo refused to answer the questions.  When the defence case was put to Mr Foo that holding the knife in his hand, he was taking the defendant away against his will, Mr Foo also refused to answer.  Being privileged not to incriminate himself, he is not obliged to answer the questions.  But his refusal to answer is a relevant matter that should be considered in considering his overall credibility and the possibility of the defence. 

19.  Mr Foo’s evidence in court about the incident is also not entirely consistent with his witness statements.  The inconsistencies include whether there was conversation when the defendant opened the room door, the pace how the defendant approached Mr Foo, whether he had struggled with the defendant and whether he fell onto the ground. 

20.  Some of the evidence of Mr Foo are also quite peculiar.  Mr Foo says he went up the hotel to look for the defendant with six to seven people as they happened to be with him when he received information about the defendant.  Yet he could only provide means of contact of only one of these people. I find the presence of Mr Foo’s companions cannot be coincidental.  Mr Foo’s failure to provide means of contacts of his company indicates his reluctance to disclose their identities.  He did not want them to be contacted by the police. 

21.  The purpose of going to the hotel was to demand for the payment of the loan.  When the defendant opened and immediately closed the room door, a more reasonable reaction of Mr Foo’s party should be a persistent demand for entry to the room.  I cannot understand why the defendant’s party would just quietly leave.  Moreover when the defendant rushed out from his room with a knife in his hand, Mr Foo was already outside the glass door at the entrance of the hotel.  Upon seeing the knife in the defendant’s hand, the normal reaction of Mr Foo should be running away instead of going back to the hotel. 

22.  On the other hand in the course of giving his evidence Mr Foo adopted a very casual attitude.  He yawned throughout giving his evidence on the first day of the trial.  He returned to court late in the afternoon.  He even closed his eyes with the explanation that he was tired.  Because of his condition the proceeding was adjourned at 4 pm with the direction given to him that he should arrive at court at 9.30 am the next day.  On the next day he did not come to court at the scheduled time.  I was told that when the police successfully contacted him by his mobile phone at about 10.30 he promised to come.  At 11.10 am he said he was on his way to court.  Eventually he did not turn up.  The proceedings had to be adjourned because of his absence.

23.  On the morning of 30 April when he appeared in court, he explained he suffered from insomnia and overslept.  He said he was under stress and had to see psychologist in the afternoon.  I find his explanations unacceptable.  Mr Foo’s casual and indifferent attitude is not consistent with a witness of genuine grievance.  

24.  Having considered all the circumstances and the peculiarities in the evidence, I am not sure whether Mr Foo is a credible and reliable witness.  I am not sure whether he has told the court the whole truth of the incident and whether he sustained the injuries in circumstances as he described in court.  Forensic evidence in the case cannot advance the prosecution case to the required standard. 

25.  I am not satisfied beyond reasonable doubt that the defendant is guilty of the charge.  The defendant is acquitted accordingly.