HKSAR v. ROKA SIJAN

DCCC 436/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 436 OF 2016

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Reasons for Verdict

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1.  The defendant has pleaded not guilty to two counts of wounding with intent, contrary to Section 17 of the Offences against the Person Ordinance, Cap 212.

2.  The defendant is a 22-year-old Nepalese man with a clear record.  The prosecution case is that he attacked PW1 and PW2, two victims, with a kukri knife outside a bar in the Lan Kwai Fong area, seriously wounding both men.

3.  The attack is caught to some extent on CCTV footage and the defendant was identified by PW1 to the police as his attacker. PW1 positively identified the defendant six months later in an identification parade.  He also says the man seen on CCTV footage from two shops is the defendant attacking him and fleeing the scene.

4.  The defence says the defendant was at the scene earlier, but was not the man who attacked either PW1 or PW2.  He is being framed for this attack. 

5.  Identification and credibility is the issue in this case.

The prosecution case

6.  The case against the defendant is that on 18 July 2015 PW1, PW2, PW3 and another finished work in a bar in Central after 6 am and went for a drink together in the Buddha Lounge on Hollywood Road. 

7.  They were together in the bar when the defendant and some friends came in and approached the victims.  The defendant was the ex-boyfriend of PW3.  Without warning or a word, he slapped PW3 across the face.  PW1 and others in the bar jumped to her defence.  The defendant wanted to strike her a second time, but PW1 pushed him away.  PW1 and others then left the bar by the backdoor to avoid further confrontation.  They were all Nepalese.

8.  Not long after, PW1 and PW2 put PW3 in a taxi. They then walked back towards the front door of that same bar.  There they saw the defendant and his friends outside the bar. 

9.  There was a confrontation and the defendant attacked PW1 with a kukri, a Nepalese knife with an inwardly curved blade usually 40 to 45 centimetres long.  At that moment, PW2 and another man were trying to restrain PW1 and in the attack PW2 was also chopped once on the arm. PW2 then immediately retreated in pain and in fear.  The defendant then chopped PW1, who tried to retaliate with his bare hands and protected his head with his arms.  He is chopped until he falls to the ground.  He does manage to get up and run away.  The defendant went to chase him, but was restrained by two men and led away immediately.

10.  PW1 and PW2 were sent to hospital by ambulance.

11.  The defendant then boarded a flight to Nepal later that same day, only returning six and a half months later, when he was arrested at the airport.

PW1’s evidence

12.  PW1’s evidence was that he knew the defendant from working with him in the past.  They were not strangers.  This is a case of recognition.  At the time of the offence, PW1 worked with PW3, the defendant’s ex-girlfriend.  They only broke up when the defendant discovered PW3 had secretly married in February 2015 without his knowledge.  PW1 and PW3 were only colleagues and nothing more. 

13.  That morning in the bar, when the defendant slapped PW3, PW1 leapt to her defence automatically.  He stood between PW3 and the defendant and used both of his hands to push the defendant’s shoulders to stop him slapping her a second time.  Immediately, other people pulled them apart and PW1 thought it best that they leave. 

14.  He said four of them left together to a park near the rear door.  There, they had a cigarette and put PW3 in a taxi to go home.  He thought it was about 9.45 am by then.  They then walked towards the front entrance of the bar.  PW1 said when the defendant, who was outside the bar with four or five people, saw him, he shouted, “Give me kukri, kukri,” and PW1 saw a man take one out of a bag and hand it to the defendant.

15.  PW1 said when he got to the top of the stairs, the defendant attacked him with a kukri.  At the time, PW2 was next to him. The defendant chopped PW1 continuously.  He did put up his arms to protect his head.  He says the defendant’s friends also attacked him with hands and bottles.  At first, he did not feel the pain, but when he saw his injuries, he ran away down the stairs.  He did not see the defendant again.  He then saw PW2, who was also injured. 

16.  PW1 was sent to hospital.  He had two surgeries and remained in hospital for some days.

17.  In cross-examination, his witness statement was put to him.  It was suggested there was a discrepancy.  In it, he said the defendant was holding a knife but he did not know where he got it from; maybe someone passed it to him:  “I guess one of his friends passed it to him.”

18.  It was suggested to him his evidence in court was different.  PW1 disagreed and adamant he saw someone pass a kukri to the defendant, but did not know that person’s name, so guessed it was one of the defendant’s friends.  He explained that is what he meant by the use of the word “guess”.  He said the statement-taker may have misunderstood him.

19.  PW17, the statement-taker, was then called later to say he did record that statement from PW1 four days after he was attacked and operated on twice.  He was in a hospital bed at the time.  There was no interpreter and PW1 spoke to him in English and he wrote the gist down as best he could.  One can see how there may be inaccuracies, but the question is whether they are material or serious.

20.  It was put to PW1, and he denied it, that he had identified the wrong person as his attacker.  Other than that, his evidence was not materially challenged.

21.  To discredit him, it was put to him that at the time he was a drug-abuser and had been to drug rehabilitation.  He agreed and said he had checked in voluntarily, but on that material morning he was not under the influence of drugs, because he had worked all through the night.  He is now a recovering addict.

22.  In cross-examination, PW1 agreed that he and the defendant did not bear each other any grudges nor was there bad blood between them. 

PW2’s evidence

23.  PW2 was younger than PW1 and worked together with him as a second job on weekends.  He is now at college in Nepal.  He recalls after work on the morning of 18 July 2015 they all went to the Buddha Lounge for a drink.  He recalls an incident in the bar between PW3 and two to three Nepalese people that he did not know. 

24.  He does recall later, after leaving and putting PW3 into a taxi, there was a dispute between PW1 and some other Nepalese men. He, PW2, tried to separate PW1 from those men when he was suddenly chopped on the forearm.  He did not see who did it, but felt a metal object strike him once.  He knew he had been hurt, clutched his arm and retreated.  He was scared.  He said it all happened very fast.  He said PW1 joined him not long after and had sustained serious injuries.  People called the police and for an ambulance.  He did not identify his attacker nor did he know the reason for the confrontation in front of the bar.

PW3’s evidence

25.  PW3 was the defendant’s ex-girlfriend.  I repeat that she married in February 2015 without telling the defendant.  In about June 2015, he came to her address in Kowloon with several men to confront her.  He found her together with her husband.  Despite breaking up with each other in this manner, the defendant and PW3, according to her, would still talk on the phone.

26.  She tells the same story as PW1, of them all having a drink after work in the Buddha Lounge, when the defendant came in and, without a word, slapped her.  She said PW1 came to her defence and thinks PW1 pushed the defendant away.  She took PW1 and the others out of the backdoor to avoid further trouble and a fight.  Not long after, PW1 and PW2 put her in a taxi to go home. 

27.  She said the defendant was with two or three other men in the bar.  She had no idea why he slapped her that morning.  Since they had broken up, they had chatted on the telephone and had even met up before that morning.  She heard later that day that the defendant, her ex-boyfriend, had attacked PW1 and PW2.

28.  PW4 was a saleslady in a bread shop close to the Buddha Lounge.  In fact, there is CCTV footage from her shop’s camera (Exhibit P5).  That morning she heard men arguing outside her shop window.  She got worried and lowered her shop gate for her own safety. 

29.  She said she saw a man with a long knife, who was shorter and smaller than most, rush out and chop someone.  She pointed him out on the CCTV footage (P5) played in court.  She specifically recalled a tall, thin man being chopped on the elbow whilst fending off the chopper swung at him.  On CCTV, she points to a man in what looks like a checked or patterned shirt wielding a knife.  He is then restrained by others, including a man with dyed blond hair.  He is prevented from chasing PW1 down the stairs.  He is then led upstairs. 

30.  The defendant elected to give evidence, but after that the defence wished to call PW17, a police officer, as a defence witness.  He should have been tendered for cross-examination at the request of the defence before the close of the prosecution’s case.  There was no such request.  His evidence related to the fact he took a statement from PW1 four days after he had been attacked, from his hospital bed.  PW1 had said perhaps there was a misunderstanding in the translation or communication between them. If PW17 was called as a defence witness, defence counsel could not have cross-examined him.

31.  The prosecution, Mr Wong, proposed reopening the prosecution’s case to call PW17 and tender him to the defence to be cross-examined.  This would be the fairest course of action for the defence case.

32.  PW17’s evidence was short.  He took a statement from PW1, as I have said, from his hospital bed, without an interpreter. English was the language used between them, clearly not either man’s mother tongue.  PW17 said he had written the gist of PW1’s words or, as he said, “It was words to that effect,” not a dictation.

The defence case

33.  As I have said, the defendant elected to give evidence. He is a man with a clear record.  On the morning of 18 July 2015, he too had just finished work as a “DJ” in a bar in Central.  He had gone to the Buddha Lounge with friends to have drinks.  His evidence was he had had two beers when he saw PW3, his ex-girlfriend, sat in a bar.  He suffered some sort of flashback of their breakup and relationship and did slap her out of anger.  He said they did talk before he slapped her.  Then, other people, including his own friend, pulled him away.  He said PW1 did not do anything to him; he did not defend PW3.

34.  The defendant said they then left the bar and went to wait for a taxi.  When they got one some 30 to 40 minutes later, they went to Jordan on Kowloon side.  He said goodbye to his friends, as he had booked a trip back to Nepal later that day to get married.  That trip and ticket had been booked on 10 July 2015 in advance.  He left Hong Kong at 5.44 pm through the airport.

35.  The defence case is that they do not dispute PW1 and PW2 suffered grievous bodily harm that morning, but it was not inflicted by the defendant.  He had left the scene, so PW1 was either framing an innocent man or it was a case of misidentification.  He did not flee the jurisdiction because he had chopped PW1 and PW2, but because it was a pre-planned flight to go back to Nepal and get married. 

36.  The prosecution has the duty to prove the charges beyond reasonable doubt.  The defendant has nothing to prove.  He has a clear record and I have warned myself accordingly.  I have considered the propensity and likelihood of this man committing these offences, as well as directed myself in accordance with the decision in Tang Siu Man v HKSAR No 2 (1997-1998) 1 HKCFAR 107.

37.  The medical reports of PW1 and PW2 were exhibited at P6 to P9 and P11 for PW1, and P10 for PW2.  The photo album P1(4) contains photographs of two victims after initial treatment on the day of the attack.  Photo album P1(5) contains photos of PW1’s injuries taken on 18 September 2015, some time after the attack.  There were 20 photos of close-ups of his scars.  Photo album P1(6) contained a further 14 photos of PW1’s injuries taken in February 2016, seven months after the attack.

38.  The admitted facts, P13, describe the multiple wounds suffered by PW1 and the deep cut to PW2, which fractured his ulna bone and cut through all his muscles. 

39.  Both have not fully recovered to date from the injuries suffered to their arms.  PW1 cannot move three of his fingers on his left hand properly and PW2 cannot carry heavy things with his right arm.

The law

40.  There is no dispute that the two victims of both charges did suffer grievous bodily harm.  The question is:  did the attacker unlawfully and maliciously wound them with the intent they suffer such harm? 

41.  I must be sure that the defendant intended to cause such harm to both PW1 and PW2.  This will require careful consideration of all the relevant circumstances, in particular, what he said and what he did.  Foresight of the obvious consequences of the defendant’s actions, swinging a kukri knife at a man, can go towards proving the existence of the intent.

My findings

42.  I have considered all the evidence of all witnesses, the photographic evidence, admitted facts, and the CCTV footage, as well as, lastly, final submissions. 

43.  I have reminded myself of the prosecution’s burden of proof and the defendant’s clear record.

44.  I will first refer to the CCTV footage, P2 to P5, all taken from different cameras in the area.  Exhibit P2 is from a camera outside the Marouche bar which is next to the Swissbeck Bakery, from where P5 came from.  It is not far from the Buddha Lounge entrance where the attack took place.  Photo album P1(7), photograph 4, shows the proximity of all three venues I have just mentioned.  In that same photograph, blood splatters from PW1’s injuries can be seen on the ground and surrounded by police tape to protect the evidence.

45.  In the footage of Exhibit P2, at a stated time of 10.18.39 am, PW1 and PW2 can be seen at the door of the Marouche bar.  PW1 is trying to go upstairs and looks very agitated.  PW2 is trying to prevent him and push him downstairs.  PW2 said PW1 insisted on going up to talk to the three Nepalese men.  PW2 thought there was a possibility of a fight, which he wanted to prevent and avoid.  In the footage, he is not successful and PW1 pushes him away and over, then runs upstairs.  PW2 then can be seen getting up to follow PW1 with another male.

46.  At 10.18.56, clearly PW2 and that other male again try to push PW1 downstairs, away from what must be a confrontation. 

47.  At 10.19.02, a man runs at these three men with a knife.

48.  At 10.19.19, a male with dyed blond hair PW1 called “Loche” runs up past the Marouche bar towards the confrontation (he is later seen restraining the attacker wielding a knife).

49.  At 10.19.21, a group of people can be seen moving about, but only their feet and legs are visible.  However, PW1’s evidence is that he was chopped until he fell to the ground.  In this footage, a man can be seen falling to the ground.

50.  At 10.19.30, PW1 gets up off the ground and runs away to the right side of the path downwards.

51.  In Exhibit P5, at 10.18.58 of that footage, one can see PW1 with PW2 to one side of him and a Mr Limbu on his other side. These two men are tugging at PW1, as if to prevent him going up.  PW1’s evidence is that at this point, he saw the defendant holding a kukri, and his own friends were saying, “Let’s go.  Let’s go.”

52.  At 10.19.03, it can be seen that a man runs straight at PW1, PW2 and Limbu.  He is swinging his arm.  PW4 says she saw him swinging a knife.

53.  At 10.19.10, PW2 is hurt and can be seen clutching his arm, moving away from PW1.  That same man can then be seen swinging at PW1.  That man is wearing a patterned shirt, dark trousers and shoes with a very obvious white sole. 

54.  The man with dyed blond hair called ““Loche”” can be seen going towards the group, running upstairs at 10.19.20.  The men are then in and out of the camera frame, but some can be seen scattering as if avoiding something.

55.  PW1 is then seen running downstairs and at 10.19.37 one can see the dyed blond-haired man “Loche” and another holding or restraining the man seen carrying the long object, the knife, who clearly wants to follow PW1 downstairs.  The two men have hold of him and lead him back upstairs.

56.  Exhibit P3 is CCTV footage from 37 Hollywood Road, a shop, and is footage of three men running past the entrance.  One is the man “Loche” with the dyed blond hair, but the faces of the other two men are not clear.  At 10.21.47 to 49, on this CCTV footage, one can see the man “Loche” holding a garment-like object in his hand.  It is clearly patterned and looks very similar to the pattern worn by the attacker seen in the Swissbeck Bakery footage, P5.  One of the men with “Loche” is not wearing a shirt.

57.  P4 is a clip from 45A Hollywood Road, a shop, and is clear footage of three men.  I can see “Loche” with the dyed blond hair, with a male without a shirt on, whose soles of his shoes are very white.  There is also a third man.  The shirtless man is held and guided by “Loche” and then by the third man. 

58.  PW1 identifies the shirtless man as the defendant.  I find it looks very much like him.  Even the defendant says in evidence, “It must be someone else that looks like me.”  The three men in the footage double-back on themselves and cross the road to go up some stairs and disappear from view.

59.  It is clear from P4 the shirtless man is being led and led away by the other two men.  In this P4 footage, “Loche” is no longer holding anything in his hands. 

60.  The prosecution rely on the CCTV footage, when coupled with the identification evidence of PW1, to prove the defendant attacked the men with a knife with intent to really hurt them.

61.  The prosecution rely on PW4’s evidence that the long object seen in the CCTV footage held by the man was a knife.

62.  PW1 knows the defendant from working together in the past.  I am sure he would have no problem or issue with identifying the defendant.  He would, I am sure, recognise him.  He has identified the defendant as the attacker. 

63.  There is no bad blood or any grudges according to either the defendant or PW1.  However, I am sure PW1 did step in to defend PW3 from the defendant in the Buddha Lounge bar not long before the attack with the kukri.  That is not challenged. 

64.  I see no reason for PW1 to frame the defendant. Having considered his evidence, I find it credible.  There are no material discrepancies in his evidence so serious that I doubt he is telling the truth. He was not evasive nor did he exaggerate his evidence. 

65.  PW2 and PW3, where materially relevant, supported his evidence.

66.  The defence do not disagree there was an incident inside the bar where the defendant slapped PW3 and others stepped in to prevent a further assault.  I am sure thereafter the prosecution witnesses left the bar and put PW3 in a taxi to leave.

67.  From the CCTV footage, I can see that PW1 was agitated by something or someone near the Buddha Lounge entrance.  I believe it was the defendant and other Nepalese men.  PW2 said there were several Nepalese men there. 

68.  I am satisfied CCTV footage supports the evidence of PW1 and PW2.  I am sure it was the defendant that rushed at them with a long object in his hand I am sure was a kukri knife.  The image of that man may not be so clear, but his clothes, shoes and build can be seen, in particular, in the P5 footage.  “Loche”, the dyed blond hair male, I am sure with the help of another, restrains the defendant when PW1 runs away injured.

69.  I am sure from the CCTV footage of P3 and P4 “Loche” is with the defendant but by then the defendant had taken his shirt off.  In P3, I am sure “Loche” is holding the defendant’s shirt.  I imagine it is blood splattered.  In P4, the clearest footage, that shirtless man I find to be the defendant.

70.  I would say from observing him in court and seeing the CCTV footage it was not just someone who resembles him, as the defendant himself suggests, but it is the defendant.  He is shirtless but in long, dark trousers and wearing shoes with obvious white soles.  I am sure it is the same man wielding the knife seen in P5.  I am sure in P3 and P4 he is fleeing the scene with the help of “Loche” and a third man.

71.  I am satisfied the CCTV footage supports PW1’s identification of the defendant.  The evidence is strong and irrefutable. 

72.  I reject the defendant’s evidence that he was framed by PW1.  I do not believe he slapped PW3 and then immediately left the area, looking for a taxi.  I am sure he was outside the Buddha Lounge when PW1 and PW2 reappeared and then a fight was brewing.  I am sure he did take up a kukri and run at PW1 with the intention of wounding him.

73.  The evidence is he left Hong Kong within hours of the attack.  This fact is not indicative of guilt per se.  The defendant did try and obtain proof from Nepal of the fact his ticket was booked on 10 July 2015.  He could not, unsurprisingly, locate his actual e-ticket due to the passage of time.  There was a receipt allegedly from a travel agent in Nepal, but not admissible in that form or as produced by the defendant himself.

74.  His evidence was a marriage was to be arranged after his aunt in Nepal heard how he had broken up with PW3.  After he arrived, he met several girls and a marriage was arranged.  Exhibit D1 is a translation of a marriage certificate showing the date of that marriage to be 16 November 2015. 

75.  I do not doubt his marriage nor do I place any weight on the fact he left Hong Kong on that same day.  It is not proof of guilt and I ignore it.  It may very well be that because he was leaving that day he confronted PW3, lost his temper, became emotional, and slapped her.

76.  The prosecution must prove the defendant intended to wound PW1 and PW2 to succeed with both charges under Section 17. I have no difficultly finding just that, as far as PW1 is concerned, but has this been proved for PW2? 

77.  From the evidence I have no difficulty whatsoever in finding PW1 was the defendant’s intended target.  I am sure PW1 was restrained by his friends from approaching the defendant.  The defendant, from the CCTV footage, at that same time rushed at the three men with a kukri. He was aiming at PW1, but PW2 had his arm around or very near PW1 at that time.  The defendant chopped PW2 once, who then retreated.  The evidence is that he then attacked PW1 indiscriminately.  He wields the kukri at PW1.  PW1 sustains really serious injuries, hence why I am sure he was the defendant’s intended target.

78.  I do not have to find what the motive was, but I suspect it was linked to the earlier incident, when PW1 pushed the defendant away from PW3 inside the bar.

79.  As for Charge 2 and PW2, Mr Wong for the prosecution suggests if I find the defendant the attacker, I could apply the doctrine of transferred malice.  To give an example, if a man shoots at A with intent to kill him and kills B by mistake, it is still murder.  The defence submits that it is not necessary to apply that principle or doctrine in this case if I find the defendant is the attacker. 

80.  I can see why Mr Wong for the prosecution submits this, but after consideration I do not find it necessary to apply that doctrine here.  The defendant could see PW2 was restraining PW1, his intended target.  I can find there is an intent to harm PW2 to get to PW1. 

81.  A generalised intent to do grievous bodily harm can be sufficient to prove the elements of a Section 17 offence.  I do find it proved here.

82.  Defendant, please stand up.

83.  To conclude, I find the prosecution can prove beyond reasonable doubt it was the defendant who unlawfully and maliciously wounded both PW1 and PW2 with a kukri knife, with intent to do them both grievous bodily harm. 

84.  Despite the defendant’s clear record, I find him guilty of Charges 1 and 2.  He is convicted of both charges.