HKSAR v. THAPA RAJU

cacc 343/2008

in the high court of the

hong kong special administrative region

court of appeal

cRIMINAL appeal no. 343 of 2008

(on appeal from dccc NO. 373 of 2008)

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REASONS FOR JUDGMENT

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Hon Stock JA (giving the judgment of the Court):

Introduction

1.  On 16 September 2008 the appellant was convicted after trial by Chief District Judge Li of wounding with intent to cause grievous bodily harm.  The appellant sought leave to appeal against that conviction.

2.  On 1 April 2009 we gave leave, treated the hearing of the application as the appeal, allowed the appeal and quashed the conviction, saying that we would give reasons later.  These are our reasons.

The facts

3.  On 28 October 2007, outside the entrance of the Galaxy Pub and Disco in Hennessy Road, Wan Chai, a security attendant, Gurung Phalman, was attacked by a male wielding a chopper.  The issue in the case was whether Phalman’s subsequent identification of the applicant as the attacker could safely be relied upon to convict the appellant.

4.  The attack took place at about 6:25 a.m. in good lighting conditions.  Phalman was suddenly confronted by a single attacker who struck him on the arm with the chopper and tried to chop him again.  Phalman ran away pursued by the assailant who threw the chopper towards him, but missed, and then left.  The police were called and Phalman was hospitalised.

5.  On the night of 7 November 2007, Phalman entered McDonald’s Restaurant in Johnston Road, Wanchai and he there saw a person whom he said was the one who had attacked him on 28 October.  He called the police but when they arrived the suspect was no longer in the restaurant.  Phalman saw the suspect again later that evening and he informed the same police party of the fact and when he and the police approached the suspect, who was with two others, the suspect ran off.

6.  The appellant was arrested in April 2008 and an identification parade was held at which Phalman identified the appellant as the assailant.

The trial

7.  At trial Phalman said that the night of the attack was not the first time he had seen the assailant.  He recognized him, he said, because the assailant had been one of two young Nepalese men whose access to the disco about two weeks before the attack he had refused, on instructions from his boss, and who were annoyed at the refusal.

8.  CCTV photographs were produced at trial.  One set showed the attack outside the disco.  It does not show the assailant’s face, but it reveals that the assailant has a slim figure with long hair at the back.  Phalman is seen facing the camera and his assailant at the moment of the attack, but it is obvious that the face-to-face sighting was momentary.  The second set shows a similarly built man, also with long hair, in the McDonald’s restaurant on the night when Phalman saw the person whom he asserted to have been his assailant.  One of these photographs shows the identified person’s face.  The judge compared that person, thus shown, with the appellant (in the dock) and concluded that they were the same person.  Although the fact that it is the same person is not conceded by the appellant, the finding is not challenged in this appeal.

9.  The appellant did not testify at trial nor call any evidence on his behalf.  In a statement to the police, he had said that he had been at home on the night of the attack, but no evidence was called in support of that suggestion.

Statements to the police

10.  Phalman made four statements to the police.  The first was made on the night of 29 October 2007, at Wanchai Police Station, the day after the attack.  The terms of that statement are important.  In it he said that when he was outside the disco :

“Suddenly, an unknown Nepalese male who I never met him before approached me.  I saw him took out a chopper from his waist and used it chopped against me without saying a word. … I did not know the reason why I was chopped and I wouldn't have any grudge to others before. The Nepalese male’s age about 20-30, 1.75m in height, dark complexion, long hair covered his shoulder.” ( Emphasis added)

11.  Not surprisingly, both at trial and before this court, counsel for the appellant stressed the importance of that statement.  Her contention was that if the person who attacked Phalman was indeed the one whose anger Phalman had aroused two weeks earlier, that is something Phalman would have known when he made that statement on 29 October.  And he would have known as well precisely what grievance it was that had motivated the attack.  A statement that not only failed to mention the earlier incident but which, to the contrary, asserted that the complainant had never met the attacker before was a factor of high significance which had to be addressed and satisfactorily resolved.

12.  In examination in-chief Phalman was asked by prosecuting counsel :

“Q: Did you know your attacker or not at the time of the attack?

A:  Actually I don’t know him.  It’s just that when police told me that if I know or recognize him and I said I could, you know, if I see him I could recognize him.”   

Then this :

“Q: Did you continue after the attack to think about the incident of the attack in your own mind during your time in hospital on the 28th and 29th?

A: Actually I was thinking about it that why this attack was on me…. … if this attack was actually hit on my neck or maybe somewhere else then who would be taking care of my wife and my son. …  Why was this attack on me while I was on duty.”

13.  In cross –examination, he was shown the photographs of the attack and he said : “I have seen his face and I recognize it,” and he was asked:

“Q: So when you saw this man in front of you, did you recognize him?

A: Yes I did.

Q: Did you know him?

A: No, I did not.  It's just that two weeks ago, he came to that place, so that’s why I recognized his face.”  (Emphasis added).

14.  He was then shown the statement that he had made on 29 October 2007 in which he had said: “Suddenly an unknown Nepalese male who I never met him before approached me.”  He explained what he meant, namely, that “I could recognize the face, but it’s just that I don’t know his name and address. … I did not know his name or the surnames.  Well, I had never seen him before until the two weeks ago when he came to our company.”  He also said that he had told the police that maybe he was attacked because of the incident two weeks prior to the attack, but it is common ground that that was not in his statement of 29 October in which he had said: “I did not know the reason why I was chopped, and I wouldn’t have any grudge to others before.”

15.  Evidence was also adduced in cross-examination of Phalman that after the attack and before the incident in McDonald’s restaurant, he had made inquiries of Nepalese compatriots to ascertain the name and working place of his attacker and was given the appellant’s name.  He went to the place of employment but the appellant was not there.  He insisted that none of his compatriots had shown him any photographs of his assailant.

16.  It is evident from the comprehensive Reasons for Verdict, that the judge had well in mind the points emphasised by Ms Panesar.  He concluded as to the statements made by Phalman to the police to the effect that he did not know the attacker, that this was a turn of phrase used by Phalman.  He accepted the explanation that the witness had provided, namely, that he had meant that, whilst he recognized his attacker, he did not know him in the sense of knowing his name or of being a social acquaintance.  He concluded also that the absence in the October statement of any mention of the earlier incident ‘should not reflect on his credibility.’

Analysis

17.  We have, with respect, some difficulty with this.  It is one thing to accept that Phalman intended to say by the phrase “I never met him before” that he did not know his assailant’s name and did not know him socially.  But this does not explain the omission in that statement of any reference to recognition of the person as one whom he had already seen on a previous occasion, an occasion moreover which, by its very nature, provided the probable reason for the attack.

18.  It is suggested by counsel for the respondent that the previous encounter, two weeks before the attack, was of a harmless kind which, in the complainant’s mind, did not necessarily ring a bell at the time of or shortly after the attack.  This is difficult to accept.  Phalman told the police, in his statement of 29 November, that there had been a “little disturbance” which resulted in the two men looking at him angrily though “we didn’t hit each other… I believe that this incident of my refusal of their entry to the disco is related to the assault on me.”  One may ask: if he made that connection on 29 November 2007, why not on 29 October 2007 when the attack and the identity of the attacker was fresh in his mind?

19.  The chronology of events is noteworthy.  The attack took place on 28 October.  It is not suggested that when the police arrived at the scene of the attack – and Phalman’s evidence is that the police were there when he was placed in the ambulance – that he told them that he recognized his attacker.  That of itself is not significant because we do not know what opportunity he had then to speak to the police and it is in any event likely that he was preoccupied with his injuries.  The statement he gave on 29 October, however, was given more than 36 hours after the attack and it is accepted, for the purpose of the appeal, that Phalman did not tell the police then that he recognized his attacker and he did not tell them of the earlier incident in which the attacker had been refused entry to the disco.  Phalman’s evidence was that before 7 November (the date on which at a McDonald’s restaurant he saw the person whom he asserts to have been his attacker) he had already ascertained from others the identity of the appellant and had been told by others that the appellant was his attacker.  Yet it is not suggested that when he spoke to the police on 7 November, he mentioned to the police the earlier incident of refusing entry to the disco.  The first time, apparently, that he told the authorities that he had recognized his assailant as the person from the earlier incident was in the statement of 29 November.

20.  In a case in which identification was the sole issue, the contents of the statement of 29 October – what it said and what it did not say – take on crucial significance.  Even if one takes fully into account the different ways in which people express themselves, the explanation given in court by Phalman, and the fact that he had some 36 hours before the statement been injured in an incident which must have been frightening, it remains difficult to understand why he did not tell the police on 29 October that he recognized his attacker and had an idea about the reason for the attack.  It is not as if the statement did not to deal with identity and motive.  It was a short statement which specifically dealt with both issues.  Even accepting what Phalman stated in his testimony, namely, that he intended to convey the fact that he had never met his assailant socially and did not know his name, that does not begin to explain why, since he was addressing the issue of identity, he did not qualify that statement by explaining what must have been uppermost in his mind as of importance to the police, that nonetheless he recognized his assailant and why he recognized him.

21.  There is another point which in this case is of some significance.  In his statement of 29 October 2007, Phalman described his assailant as having a “dark complexion.”  In the course of his examination in-chief, he said – without reference to that statement – that he had told the police that the assailant’s complexion was “like white and like the Chinese skins complexions.”  This disparity is of significance in this case because it is evident to us that the appellant’s complexion is pale and is not appropriately described as dark.  This discrepancy or inconsistency was put to the witness in cross-examination and he sought to explain it by saying that he had told the police that the complexion of the assailant was fair, ‘a little bit whitish’, but that it must eventually have been written down incorrectly.  Yet Phalman had signed the statement which asserted that the assailant had a dark complexion and it is not an accurate description of the appellant.  More particularly, there is a stark difference between the two descriptions, and the change of description, when put together with the fact that Phalman had received information from others about his alleged attacker before he ever told the police that he recognized his attacker as a member of a group whom he had annoyed a couple of weeks earlier, is a change that cannot safely be categorised as of no ultimate significance.  Whilst, in his Reasons for Verdict, the judge mentioned the description by Phalman of his assailant having a complexion that was “white like Chinese,” he did not mention the contrary description and, therefore, does not reveal how he resolved the discrepancy.  That is not to say that a judge sitting alone is duty-bound to deal in his Reasons for Verdict with every inconsistency that emerges in a witness’ testimony; far from it.  But in this particular case, in the context we have described, we believe that this particular discrepancy required express attention.  In any event, taken together with the first aspect of the evidence that disturbs us, namely, the matters stated in and omitted from the statement of 29 October, we were driven to the conclusion that the conviction was unsafe.

Result

22.  For these reasons, the appeal was allowed, with costs here and below to the appellant.