HKSAR v. LIMBU BIKASH AND OTHERS

DCCC 443/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 443 OF 2015

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Reasons for Verdict

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1.  All three defendants have been charged with one count of wounding, a section 17 offence.

2.  The victim, an 18-year-old Nepalese male, was ambushed early one evening in February this year by a large group of young Nepalese males.  Some he recognised and knew; others he called “outsiders”.  He had no idea why he was attacked.  He ultimately identified the three defendants and two others, who are wanted.  He knew all three defendants prior to the offence, and says that there was no bad blood between them.  He did not know why he was attacked.

3.  That evening, he was with another male when he was called over by a group of 10 to 15 men.  They then surrounded him.  He said the 1st defendant put his arm around his shoulder and then he was hacked from behind with a khukuri.  His leg was injured.  He ran away, but did not get very far.  His evidence was he was then chased by five to six men.  He said he believed the 2nd defendant was one of those men.  He did not see him, but he heard his voice and heard him swearing.  When he stopped, he was punched by many, and said the 3rd defendant was one of those that punched him.  He did not see the 1st defendant again after he was first chopped.

4.  Clearly, from the medical report, he was chopped more than once.

5.  His evidence in court clearly did not correspond entirely with his witness statement or the prosecution’s opening.  Perhaps he may have been more specific or detailed if questioned with patience, but the end result is his evidence is lacking in strength against all three defendants to prove beyond reasonable doubt that they jointly participated in a common enterprise to wound the victim.

6.  In cross-examination he created a doubt when he was equivocal in answering the 1st defendant’s suggestion that he in fact warned him to leave before he was chopped.  This allegation is supported by the fact PW1 said he did not see the 1st defendant again after he was first chopped.

7.  The 2nd defendant was only known to him for a couple of weeks, yet he was able to recognise his voice and hear him swearing in what must have been a frightening and frantic situation.  However, there is not enough to say that even if it was the 2nd defendant swearing, it was aimed at the victim.

8.  The victim described himself as protecting his head with both his arms raised up to cover his face and head.  That would be a natural instinct.  However, that means his power of observation would become limited.  His glasses were also knocked off at some stage, and his vision became blurry.  When asked if he was confused whether it was the 3rd defendant there, he said he saw someone like him, “So I thought it was him”.  The fact he says he was then sure it was him does negate the earlier discrepancy.

9.  As I said in my earlier ruling that there was a prima facie case to answer, I saw no reason for the victim to lie or incriminate defendants falsely.  I believed his evidence and had my suspicions about the defendants’ innocence despite their clear records.

10.  However, that is not enough to convict an accused.  The prosecution has to prove that there was an agreement between them to commit an offence and prove the defendants intended the victim to suffer grievous bodily harm or that they knew or foresaw that a khukuri would or might be used.  The prosecution must prove they were a party to this joint enterprise, and after they knew or foresaw the use of a khukuri, they still participated in the enterprise.  This must be proved beyond reasonable doubt.

11.  The prosecution’s evidence is not sufficient or strong enough to prove the elements of this offence or that the defendants were sufficiently connected to the offence to have the prerequisite intent.

12.  Accordingly, all three defendants are acquitted of this charge.