HKSAR v. BARCLAY-GRUNDLER JACQUES CURTIS RICHARD

DCCC 515/2020

[2022] HKDC 154

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 515 OF 2020

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REASONS FOR VERDICT

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1.  The defendant faces one charge of Assault Occasioning Actual Bodily Harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212, and one charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

2.  The defence does not dispute that the actus reus of both offences completed, but contends that the defendant had no idea of what he was doing at the material time because he was in a state of alcohol and cannabis intoxication that caused significant impairment in his capacity to exercise proper judgment, be aware of what he was doing and control his behavior.

3.  The prosecution does not dispute that the defendant was under the influence of alcohol when he did the acts as charged and was found alcohol and cannabis intoxicated when he was admitted into the hospital but alleges that the degree of alcohol and cannabis intoxication did not cause such significant impairment as alleged and the necessary intent for both offences was formed.

4.  The only issue in this case is mens rea.

5.  The defence agreed almost the entire prosecution case.  Certain facts were admitted under section 65C of the Criminal Procedure Ordinance, Cap 221.  The prosecution called 2 live witnesses.  They were the victim in Charge 1, Mr Whitbread (PW1), and the arresting officer, DPC 13602 (PW2).  Their evidence was not challenged.  In fact, the witness statement of Mr Whitbread was admitted into evidence under section 65B of the Criminal Procedure Ordinance, Cap 221.  The prosecution also relied on the CCTV footages that captured the burglary and part of the assault.  All CCTV footages were produced by consent.

6.  The defendant gave evidence and called 2 live witnesses.  Mrs Rainbow (DW2)  told the court of the conduct and behavior of the defendant soon after the alleged offences.  Dr Li Cheuk Wing, a psychiatrist (DW3)  told the court his diagnosis of the defendant and his opinion on the mental state of the defendant at the material time.  The witness statement of the defendant’s mother was also produced by consent.  The prosecution had no cross-examination on her.

PROSECUTION CASE

The facts of Charge 1

7.  As captured by the CCTV footages and according to the admitted facts, on 24 July 2019 at about 6:15 am, the defendant approached Mr Whitbread near DB Plaza, 8-18 Plaza Lane, Discovery Bay.  An altercation ensued and continued as Mr Whitbread was chased by the defendant towards the nearby bus-stop and continued as Mr Whitbread boarded the bus and the defendant followed him onto the bus.  The defendant was on the bus for about 2 to 3 minutes before fleeing from the bus.

8.  It was Mr Whitbread’s evidence that he did not know the defendant before.  He was approached by the defendant who said “hello” to him with no apparent purpose. The defendant began the conversation with him by asking him if he could speak French, while it was the case that they were already conversing in English. They then got into the discussion about the direction of the bus-stop.  Mr Whitbread found the conversation of the defendant did not make any sense to him.  Mr Whitbread could understand what the defendant said but he could not understand why he was saying what he was saying.  Mr Whitbread considered the defendant’s manner a little bit inebriated.  He could smell alcohol on the defendant’s breath.  He believed the defendant was drunk.  The conversation lasted for no more than a minute before the defendant suddenly punched him on his left eye causing him to lose balance a couple of times.  He escaped from the defendant and went towards the bus-stop.  The defendant chased after him and continued to attack him with punches and kicks while he was running away from him.  Mr Whitbread got onto a bus and was followed by the defendant.  On the bus, the defendant continued attacking him.  The defendant even raised himself onto the metal support on the bus and attacked him with karate style kicks.  2 to 3 minutes later, the defendant got off the bus.

9.  Mr Whitbread recalled that a rather strange situation was going on before he had reached the bus-stop area where the defendant intended on pursuing him and continuing the fight with him but also breaking off the conversation to talk with other passersby.  About 30 seconds later, the defendant ran to catch up with him again.  Mr Whitbread also recalled that when he was at the bus-stop area where there were other patrons waiting to get onto the bus and he was trying to avoid the defendant, the defendant said to him “you don’t respect me”.  But at that time, he was not having any discussion with the defendant.

10.  It was admitted as a result of the attack, Mr Whitbread sustained a bruise over his left orbit and mild tenderness over his forearm and both knees.

The facts of Charge 2

11.  Pets Gallery is a pet shop situated at Shop No G11B, Ground Floor, DB Plaza, Discovery Bay.  The CCTV footages from the shop show that the defendant had forced open the locked door at around 7:27 am on 24 July 2019 when the shop was closed for business and no one was inside.  He took those items as particularized in the charge, namely one donation box containing cash of HK$1,820.40, one pack of rabbit food and 3 packs of hamster food, and left the shop.  The CCTV footages of DB Plaza show that the defendant threw away all stolen items, including the donation box and cash contents, on the roadside near DB Plaza soon afterwards.  At around 9:40 am on the same day, the owner of the shop found the door unlocked and those items missing.  She made a report to the police.  The police found no prized mark on the door and all the missing items were recovered on the roadside.  The donation box was not damaged. 

Incidents leading to the arrest of the defendant

12.  At 9:32 am on the same day, the police were summoned to Room B, 17/F, Verdant Court, Discovery Bay for a case of “Attempted Suicide” by the defendant.  The defendant was emotional.  He was conveyed to North Lantau Hospital for medical treatment by ambulance and was escorted by his mother and a police officer.  It is not in dispute that the defendant was later transferred to the Pediatric Ward of Princess Margaret Hospital for further treatment on the same day.

13.  DPC 13602 told the court that he went to Princess Margaret Hospital at around 12:15 pm on the same day and arrested the defendant.  He observed that the defendant was tied to the bed with cable ties by nurses as he had tried to commit suicide.  His eyes were open but he “looked absent-minded”.  He did not give any response to the arrest declared or the caution administered.

14.  It was admitted that on 27 July 2019, the defendant was admitted into the psychiatric ward of Kwai Chung Hospital from Princess Margaret Hospital.  Upon urine toxicology test, the defendant was tested positive for cannabis and midazolam.  The defendant was treated with midazolam previously by the Accident & Emergency Department.

THE DEFENCE CASE

15.  It was the defendant’s evidence that he was first prescribed with Prozac, an anti-depressant, by North Lantau Hospital for depression in early 2019.  Since then, he had been taking Prozac twice a day, once in the morning and once in the afternoon.  He was also prescribed a mild sleeping pill to help him sleep.

16.  On 23 July 2019 at about 4 to 5 pm he doubled up the dose of Prozac because he had forgotten to take the morning dose.

17.  At about 10:15 pm on the same day, he arrived at his friend’s place for a birthday party.  Before leaving home, he had taken a sleeping pill with him because he did not know when he would go to sleep.  After the incidents, he found the sleeping pill missing.  He did not remember whether he had taken it that night or he had lost it.

18.  His friends met at his friend’s place at about 6 pm that night.  As he was late, when he arrived, he had started drinking and was trying to “catch up” with the amount of alcohol that his friends had been drinking.  Therefore, he was drinking faster and more than he normally did.  He recalled that he had drunk approximately ¾ of a 750 ml bottle of whisky, mixed with coke, before his memory “blacked out”.  He remembered that at about 1 or 2 am on 24 July 2019 during the time when he was having the ¾ whisky bottle, he together with 2 of his friends had gone to the DB Plaza to get more drinks and then returned to his friend’s place to continue drinking and finished that amount of ¾ whisky bottle.  That was where his memory “blacked out”.

19.  The next thing he could remember was that at about 7:45 am on 24 July he found himself in his friend’s living room.  His friend told him that he had gotten into a physical altercation with somebody and that he hurt somebody.  Upon hearing this, he became extremely emotional.  He felt very bad about himself.  His friend told him that he was with him when the assault case happened.

20.  The defendant told that he did not contemplate or intend to assault anyone.  He did not contemplate or intend to burgle any premises.

21.  In cross-examination, the defendant said that although he only had the memory of going to DB Plaza once that night and that was at about 1 or 2 am, as the CCTV footages showed the incidents of the charges happened at DB Plaza between 6:15 am and 7:30 am, so he gathered that there had to be some point when he had gone back to DB Plaza and then returned to his friend’s home again.  However, he only had memory about the first trip and did not have memory about the second trip.

22.  Regarding the amount of alcohol he drank that night, the defendant said that he could only remember he had drunk ¾ of a 750 ml bottle of whisky and that was where his memory “blacked out”.  Subsequently his friend told him that he finished the whole bottle and there was also other liquor involved.

23.  Regarding cannabis, the defendant said that he did not remember there was cannabis in his friend’s place.  He did not remember smoking cannabis himself.  But as cannabis was found in his urine sample, he thought it would have gotten there somewhere.  “Perhaps possibly we could have smoked cannabis on that night but I don’t have recollection of it.”  In re-examination, the defendant said that his friend was a frequent cannabis user but he did not see any cannabis in his friend’s place that night.  He did not remember he voluntarily smoked cannabis that night.

24.  According to the defendant’s mother’s unchallenged witness statement made on 25 July 2019, at around 9 pm on 23 July, the defendant left home after dinner.  At around 9 am on 24 July, she received a phone call from Richard, a friend of the defendant, saying that the defendant was trying to kill himself with a knife and by jumping from the window. Richard asked her to go to his place urgently.  When she arrived at Richard’s place, she saw the defendant very drunk and no one could control him.  She was afraid that he would die.  The police were called.  An ambulance came and the defendant was taken to the hospital.  Later she was told by the police that the defendant was involved in a burglary case and she was invited for an enquiry.

25.  She said that in the past the defendant had gotten very drunk and become out of control for 4 times.  On each of those occasions, either the defendant was sent to the hospital or police assistance was called for.

26.  DW2 Mrs Rainbow is an independent witness.  She did not know the defendant before.  She works as a freelance Portuguese interpreter for the courts and the police in Hong Kong.  She lives in the flat adjacent to the defendant’s friend’s place where the defendant had the birthday party.  It was her evidence that in the morning on 24 July 2019, she was taken by surprise when she saw the defendant, who looked “spaced out”, standing in her living room, not responding to her and pointing at the sea saying to himself “it’s beautiful”.  She described the defendant as being gentle and not menacing.  His facial expression did not seem normal to her.  She guided the defendant to go out of her flat.  She saw him go into the adjacent flat.  A few minutes later, she saw a pair of human legs dangling over her window.  She took a closer look and found that they were the defendant’s legs.  The defendant was on the top of the building sitting on the ledge.  She took some photos of the defendant which were produced as exhibits.  The photos show how the defendant was sitting on the ledge and he was pointing at the sea.  She said that soon afterwards an ambulance came and the defendant was taken to the hospital.

27.  DW3 Dr Li is a psychiatrist.  His expertise was not challenged.  His report was produced as an exhibit.  It was Dr Li’s opinion that the defendant had an episode of Major Depressive Disorder.  He was suffering from Alcohol Use Disorder.  His acts at the material time were consistent with retrograde amnesia (blackout)  associated with heavy alcohol intake.  He opined that the defendant had Alcohol Intoxication and Cannabis Intoxication at the time of the alleged offences.  The fact that he was suffering from Major Depressive Disorder and had consumed both alcohol and cannabis increased the probability of severe mental disturbance during intoxication.  The state of alcohol and cannabis intoxication caused significant impairment in the defendant’s capacity to exercise proper judgment, be aware of what he was doing and control his behavior.  It was unlikely that the defendant’s usual psychiatric medications had any effect on his mental disturbance.

ASSESSMENT AND ANALYSIS OF EVIDENCE

The issue

28.  The only issue in this case is whether the defendant knew what he was doing when the alleged offences took place.  According to the defendant’s evidence, he was so intoxicated by drink that he was unaware of what he was doing at the material time.  In other words, he lacked the mens rea to commit both offences because his mind was so affected by drink to a degree that he did not know what he was doing at the time when he did the acts as charged.

Legal principles

29.  Charge 1 involves an offence of basic intent.  The prosecution must prove that the defendant intentionally or recklessly assaulted the victim.  Charge 2 is one of specific intent.  The prosecution must prove that the defendant entered the shop as a trespasser with intent to steal.

30.  I have reminded myself of the legal principles on voluntary intoxication in cases of both general intent and specific intent. 

31.  As the defence also relies on the medical evidence that the defendant was also suffering from cannabis intoxication and the defendant said that he did not remember he took cannabis voluntarily that night, I have reminded myself also of the legal principles on involuntary intoxication.

32.  Where the necessary mental element for an offence existed at the time of the commission of the actus reus thereof, it is no defence that it only existed as a result of involuntary intoxication, for which the accused bore no blame.[1]

33.  Ignorance of the strength of a drink that a person is voluntarily taking does not make his subsequent intoxication other than voluntary.[2]

34.  The fact that a person’s mind is affected by drink so that he acts in a way that he would not have done so while sober does not assist him at all if the necessary intention is there.  In any event, a drunken intent is still an intent.[3]

35.  I am aware that Charge 1 is an offence of basic intent where recklessness would constitute the necessary intent and drunkenness is no defence; and in fact self-intoxication would constitute the necessary mens rea.  However if, from all the evidence, the court concludes that the accused was inebriated to the extent of loss of awareness of what happened when he did the acts of the offence, he should be acquitted for lack of mens rea.

36.  When the question of drunkenness arises, it is not a question of the capacity of the accused to form the particular intent which is in issue; what is in issue is whether he did form such an intent.

37.  In deciding whether the accused had the intent alleged, the court must take into account the evidence in relation to the consumption of alcohol and the defendant’s resultant condition and if the court considers that because of drink he did not or might not have had the requisite intent, he should be acquitted.[4]

Analysis

38.  I have carefully considered all the evidence and submissions.  I have had the benefit of observing the demeanor of the witnesses as they gave evidence.  I am aware that the burden of proof is on the prosecution and the standard of proof is beyond all reasonable doubt.  The defendant has nothing to prove.  The defendant has a clear record which I have taken that into account in the appropriate ways.

39.  I find all prosecution witnesses are impressive witnesses.  They gave clear cogent and compelling evidence.  I am sure that they are honest and reliable witnesses telling the whole truth in court.  In fact, their evidence were not challenged.  I believe them.

40.  The prosecution does not challenge the evidence of DW2 Mrs Rainbow and that of the defendant’s mother, whose witness statement was admitted into evidence by consent.  The evidence of both was straightforward, logical, cogent and compelling.  I am sure that they are honest and reliable witnesses telling the whole truth.  They have tried their best to give an accurate account of what had happened.  I believe them. 

41.  The key issue in this case is whether the defendant is telling the truth about his lack of intention to commit the assault and burglary.  He said that the necessary intent was not formed because he was so inebriated.

42.  The prosecution challenges the evidence of the defendant.  His credibility is in issue.  The prosecution also challenges the expert opinion of Dr Li.  The prosecution did not adduce any expert evidence.

43.  I have considered all the various criticisms made of the evidence of the defendant and that of Dr Li in prosecution submissions.  I do not propose to go through each and every one, save to say I have considered them and that taken individually and collectively they do not in themselves cause me to doubt the evidence of them. Both of them remained unshaken under cross-examination.  The defendant appeared to be honest, truthful and forthcoming.  I accept his evidence.  Dr Li gave full details of his reasoning.  I find him to be honest and experienced.  I accept his evidence, which is supportive of that of the defendant.

44.  In deciding whether the defendant did form the necessary intent for the offences of assault and burglary in the present case, I have borne in mind the following salient points:-

(i)  The defendant is now 18 years old. He has a clear record;

(ii)  In relation to Charge 1, Mr Whitbread was a stranger to the defendant. The defendant approached him with no purpose. The defendant started a conversation with him but the content did not make any sense to him. Soon afterwards the defendant applied violence on him for no reason;

(iii)  Whilst pursuing and continuing the fight with Mr Whitbread, the defendant had stopped to talk briefly to other passersby, who were also strangers to him, and then ran up again to catch up with Mr Whitbread;

(iv)  In relation to Charge 2, the defendant walked in a strange hunched manner in the shop. He looked dazed and his actions seemed unplanned and disorganized as Dr Li described;

(v)  Having taken the items particularized in the charge from the shop, the defendant discarded them entirely on the roadside soon after he had left the shop;

(vi)  The pet food that he took was of no use to him as he did not keep a rabbit or a hamster. The donation box was transparent. There was obviously money in it but the defendant threw it away together with the rabbit and hamster food;

(vii)  These acts of the defendant are inconsistent with an intention to steal;

(viii)  The prosecution did not challenge that the defendant might have taken cannabis without his knowledge that night. The defendant’s evidence about his mental state was supported by the opinion of Dr Li who testified that because the defendant was suffering from alcohol and cannabis intoxication, his capacity to exercise proper judgment was significantly impaired;

(ix)  Dr Li also opined that the defendant suffered “blackout” at the material time and he was not aware of what he was doing at the time of both offences; and

(x)  The defendant’s post-incident behavior as described by Mrs Rainbow causes me to believe that the defendant was inebriated to an extent that he did not know what he was doing at that time.

45.  Based on the evidence before me, I find it possible that the defendant assaulted Mr Whitbread, broke into the pet shop and took away the items as particularized in Charge 2 not knowing what he was doing at that time.

46.  Based on the above analysis, there is a reasonable doubt as to whether the defendant formed the mens rea required for both offences of assault and burglary.  The prosecution has failed to prove the elements of each charge beyond a reasonable.  The defendant is acquitted of both charges accordingly.