HKSAR v. LI KA LUN, ALAN

DCCC 178/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 178 OF 2014

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Reasons for Verdict

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1.  The defendant has pleaded not guilty to a charge of unlawfully and maliciously causing grievous bodily harm to a Mr Lo Chi-sum (PW1) at about 4.35 am on 22 September 2013 at the south-bound shuttle bus drop-off area at the Lok Ma Chau Border Crossing Control Point.

2.  PW1 had been a passenger on the shuttle bus proceeding towards the Lok Ma Chau Border Crossing.  The defendant was also a passenger on the bus together with three friends.  PW1 complained to the defendant about the noise the defendant and his friends were making.

3.  There is no dispute that after PW1 and the defendant alighted from the bus, there was an incident in which both men sustained injuries.  The injuries sustained by PW1 were serious.  He had a fracture of the lower bone of his eye-socket which may affect his vision in the future.  He also sustained head and other injuries.  The defendant sustained relatively minor bruises.  

4.  The defendant and PW1 gave very different accounts as to how they came about their injuries.  PW1 said that he was attacked from behind, fell to the floor and was kicked and punched whilst on the floor.  The defendant said that he got off the bus before PW1 and he asked PW1 to move out of the way as he was standing in a position to obstruct persons leaving the bus.  He said that the defendant attacked him.  There was a struggle during which PW1 banged his head against the metal railing.  The defendant said that PW1 at one stage took off his sock and shoe and while standing on one leg fell backwards to the floor.

5.  After the struggle, PW1 made his way through the immigration electronic booths and after going through the booth he heard PW1 shouting, “Robbery.”  So he stopped to confront him to explain that this was just a fight and not a robbery.  Both men were later arrested for assault.

6.  Upon arrest, the defendant said, “I wanted to take him aside to talk, but he pushed my face with his hands.  We punched and kicked each other and we had a struggle and fought with each other.” 

7.  The defendant elected to give evidence.  He had a minor matter recorded against him several years ago and I treated him as a person of clear record.  Notwithstanding his clear record, I have no doubt whatsoever that the defendant lied to the court about what occurred.  Much of what he said was inconsistent with the case as put by his counsel to PW1 and inconsistent with what he told the police upon arrest. 

8.  In cross-examination the defendant denied after exiting the bus that he wanted to take PW1 aside to talk.  He denied that he kicked and punched PW1 notwithstanding that that is what he told the police. 

9.  In a criminal prosecution, the onus is on the prosecution to prove the guilt of the defendant beyond a reasonable doubt. There is no burden on the defendant.  If I were to reject his evidence, that does not mean he is guilty of the offence.  It means that I have to examine the evidence that I do accept and decide that that satisfies with the guilt of the defendant to the required standard. 

10.  The only eye-witness for the prosecution was PW1, and there was no corroboration of his evidence as to what happened at the scene.  He frankly admitted that he had been drinking the night before.  The shuttle bus journey to Hong Kong Checkpoint is short, it takes about 10 minutes.  However, PW1 found it necessary to remonstrate with the defendant and his three friends about the noise they were making.  He agreed that not only did he ask them to stop being noisy, but there were further words spoken by him.

11.  PW1 claimed that whilst he was on the ground, he was being kicked and punched and he used his arms to protect himself.  There were no injuries found to his arms.  He was somewhat vague about exactly what happened and as to the circumstances in which his toe nail was injured.

12.  The defendant faces a very serious charge.  The burden of proof, as I have said, is on the prosecution.  It is very high.  I think it is highly probable that this incident occurred in the manner described by PW1.  I was sure the defendant lied to the court about what happened.  I was sure that on exiting the bus, it was the defendant who took the initiative to approach PW1 and that thereafter there was an altercation.  However, I cannot be sure as to precisely what happened.  I am not satisfied that the prosecution have satisfied me of the guilt of the defendant to the required standard and he is entitled to be acquitted.