HKSAR v. GURUNG SACHIN

DCCC 292/2024

[2025] HKDC 110

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 292 OF 2024

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty before me to one charge of Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212.

2.  Particulars are that he, on 12 July 2021, outside No 362 Lai Chi Kok Road, Sham Shui Po, Kowloon, in Hong Kong, together with a person unknown, unlawfully and maliciously wounded Liu Bing with intent to do him grievous bodily harm.

3.  A trial was necessary to determine whether the defendant is guilty or not guilty of the offence charged.

PROSECUTION CASE IN BRIEF

4.  In the small hours of 12 July 2021, outside a fruits and vegetables shop in Lai Chi Kok Road, PW1 Liu Bing was chopped in the arms by two men each armed with a knife.  The two men then fled.  Not long, PW1 was sent to the hospital for treatment.  He was found to have suffered a laceration of 8-10 cm in length on each arm.

5.  At about 8:45 am the same day, a security guard of a building PW2 found two beef knives in the gutter of a back alley in the vicinity of the crime scene.  He intended to make a report to the police but police came at about 9:50 am to investigate a case of wounding so he told them about the knives.  At about 11:10 am, the police seized the two knives (exhibits P3A and P3B).

6.  Upon DNA examination, defendant’s DNA was found on the handle of exhibit P3A; PW1’s DNA was found on the blade of exhibit P3A.  No results were found on exhibit P3B.

7.  After more than 2 years, the defendant was arrested at his home.  Under cautioned VRI, the defendant said on or about 12 July 2021 he touched one of the subject knives at a restaurant in Jordan but he denied chopping PW1.

DEFENCE CASE IN BRIEF

8.  Defence did not call any evidence but appeared to be relying on the contents of the video recorded interview.

ISSUES IN THE TRIAL

9.  The sole issue in the case is identity: whether one of the two assailants was the defendant.  In this respect, the DNA evidence linking the defendant to one of the knives in question (exhibit P3A)  is most important.

PROCEDURAL HISTORY

10.  The prosecution called 6 witnesses who were PW1 Liu Bing (complainant); PW2 Lai Kwok Ming (security guard of Fu Wa Mansion); PW3 Dr Wun Hau Ling (government chemist); PW4 Ho Siu Hong (forensic scientist); PW5 DPC16057 (exhibits officer); and PW6 Shrestha Mukesh (frequenter of Namaste Hamro Club).

11.  After the prosecution closed its case, defence made half-time submissions on the second limb of Galbraith.  Prosecution replied.  I ruled that there was a prima-facie case.  Defence elected not to call any evidence.  I reminded myself that the defence had a right not to call any evidence such that no adverse inference would be drawn against the defendant for such an election.

12.  The prosecution elected not to make any final submissions.  The defence made final submissions orally.  I have given them due consideration but will not repeat them here.

SUMMARY OF PROSECUTION EVIDENCE

PW1 Liu Bing

13.  He knocked off work at about 2 am on 12 July 2021 from a restaurant in which he worked as a cook.  He was walking along his usual route for home nearby.  When he reached the junction of Lai Chi Kok Road and Kweilin Street, two men charged at him from behind.  They chopped his left upper arm and right forearm with knives.  He was nervous and frightened.  He ran.  The two men did not chase him.  Some passerby called the police for him.  He was taken to Princess Margaret Hospital and underwent surgery.  He stayed in hospital for 2 days.  He underwent physiotherapy and occupational therapy.  He still cannot work and his arms are still hurting.  He identified himself being attacked by two men in the CCTV footage (02:09:03 to 02:10:13)  played in court.  He identified his bloodstains in photos Nos 2, 4, 10, 12, 13 of Photo Album No 1 of 3 (exhibit P5A).  He is still receiving physiotherapy and is taking pain-killer medication every night.

14.  Under cross-examination, he said he was able to say that his attackers were men by their physique and build.

PW2 Lai Kwok Ming

15.  He was the security supervisor of Fu Wah House at 31 Kweilin Street.  He checked the back alley where the back door was at least twice during his daily shift of 7 am to 3 pm.  On 11 July 2021, he found nothing out of the ordinary at the back alley.  On 12 July 2021, at about 8:45 am, he found in the gutter of the back alley two beef knives (identified in court).  He did not touch the knives.  He intended to report to the police but at 9:51 am, the police came to ask if there was CCTV installed at the building in connection with a wounding case so he told them about the two knives and he took the police to them.  He identified the various scenes depicted in photos Nos 1, 2, 3, 4, 5 & 6 of Photo Album No 2 of 3 (exhibit P5B).

PW3 Dr Wun Hau Ling

16.  She worked as Government Chemist in the Government Laboratory.  She gave evidence as expert in DNA matters with no objection from defence.  She was provided by the police with two buccal swabs said to be from same donor.  She therefore simply chose one (lab ref 23DD3795)  of the two buccal swabs for DNA profiling with the remainder unused and treated as a backup.  The DNA profile is as shown in a table on page 2 of her report dated 29 November 2023 (exhibit P7).

17.  She conducted procedures to make sure the buccal swabs containing DNA material were preserved without contamination.

PW4 Ho Siu Hong

18.  Mr Ho worked as Government Chemist in the Government Laboratory.  He adopted his 3 reports (exhibits P8, P9, and P10)  as part of his evidence.  He found the DNA obtained from the bloodstain on the blade of one of the knives (exhibit P3A)  could have originated from the alleged victim with a high figure of RMP; he also found the DNA obtained from the handle of the same knife could have originated from the defendant with a high figure of RMP when using the local Chinese population database.  He had been told that the defendant was a Nepalese but he could not use the database for Nepalese population because it was not made available to him.  However, he said that previous reported studies and simulations showed that even if that was taken into account, the difference in RMP would only be in the region of 10 times to <10 to the power of 4> times ie 10,000 times.  With an extremely large RMP in the case of the defendant vis-à-vis the knife handle in the region <10 to the power of 15>, the difference would not be significant.

19.  Mr Ho was also challenged on the DNA profile of the DNA found on the knife handle in that for 10 of the 26 systems (“the 10 index systems”)  used for profiling, there were 6 inconclusive results and 4 negative results.  There were two aspects in the challenge: (1)  the effect this had on the calculation of the RMP; and (2)  the effect on discovering mismatches on the undisputed premise that where there was even just one mismatch out of the 26 systems when two DNA profiles were being compared, the conclusion would have been the subject DNA could not have come from the donor of the buccal swab DNA.

20.  On (1), Mr Ho said that the related RMP figure had already factored in the fact that only 16 of the 26 systems had positive matches.

21.  On (2), Mr Ho said that although there was insufficient quality and/or quantity of DNA material to provide him with recordable figures in the 10 index systems in the DNA profile chart (relating to the knife handle)  for use in a positive matching exercise with the defendant’s DNA profile, the said material was nonetheless good enough to allow him to reach the conclusion that there was no mismatch between the two batches of DNA in any of the 10 index systems. Defence challenged this conclusion as being unscientific but it was not in a position to provide any concrete suggestions (or evidence)  to support its claim.

22.  Mr Ho could not find any results on the other knife (exhibit P3B).

23.  Mr Ho said that the most likely reason for presence of DNA on an item was direct contact and presence by transfer was less likely.  Mr Ho confirmed that one could not date a DNA material found on an item.

PW5 DPC 16057

24.  He was the exhibits officer but came to the scene of discovery of the knives late at about 11 am on 12 July 2021.  He wore gloves when handling the exhibits.  He took out the two knives one after the other from the gutter for visual examination (first exhibit P3B, then exhibit P3A).

25.  He also took photographs of the scene and the two knives (Photo Album No 2 of 3 ie exhibit P5B).

26.  He removed the dustbin in the vicinity of the knives from its original position before taking out the two knives for visual examination.

27.  He was asked about the sequence in which his examination of the knives and the taking of photographs took place.  Initially he took photos 5 & 6 first, then took out the two knives for examination, and then took the remaining photographs.  When asked whether photo 4 was a reconstruction, he changed his version by saying he took photos 4, 5, & 6 before the visual examination.

28.  When asked about the floor tiles which formed the background of the close-up photos of the knives (eg photo 7), he said that that was part of the back alley but beyond the part shown by the various photographs of the scene.

29.  He participated in the video recorded interview of the defendant and showed him the two knives in the case.  He told the defendant that the latter’s DNA was found on one of them ie exhibit P3A.

PW6 Shrestha Mukesh

30.  He was the cousin brother of Shrestha Santosh who worked at the Namaste Hamro Club Restaurant at the material time.  Mukesh frequented the restaurant often and had never seen the two knives subject of the case.  He denied knowing the defendant at the material time.

31.  He confirmed the depictions of photos 1, 2, 3, 4, 5, 6, 7, 8, 9 and 12 of Photot Album No 3 of 3 (exhibit P5C).

SUMMARY OF VIDEO RECORDED INTERVIEW (“VRI”)

32.  Cautioned VRI conducted on 15 November 2023 (1225 to 1333 hours)  is undisputed as to voluntariness and accuracy.  At the time of the offence, the defendant was having food in a restaurant named Hamro Club in Jordan with a Nepalese friend called Edison Serchan whose phone number the defendant did not have.  He contacted Edison through Instagram.  The defendant worked as a bar tender.

33.  When shown the two knives used for the attack and being told that his DNA was on the handle of one of them, the defendant said he had touched one of the knives (the one on the left ie exhibit P3A)  without gloves once but he did not chop that man.  That time, the knife was wrapped in a newspaper.  There were people in the restaurant that he did not know.  He touched the handle of the knife at the restaurant whose owner was also present and his name was Mukesh.  He touched the knife on the same day as that of the wounding incident.  He even took a selfie with the knife on his previous phone which was later stolen.  Afterwards he left the knife at the same position.

34.  Later in the VRI, the defendant said he went to the restaurant at 7 or 8 pm and maybe left at 12 midnight and then went to a park to sit and talk and drink beer with his friend until 2 or 3 am at which time they went back to their respective homes.

SUMMARY OF DEFENCE EVIDENCE

35.  Defence did not call any evidence.

MY CONSIDERATION

36.  I reminded myself the burden of proof rested on the prosecution, standard being beyond a reasonable doubt.  Defendant needed not prove anything, least so his innocence.

37.  I treated the contents of the cautioned VRI as a mixed statement and look at the whole to determine where the truth lay bearing in mind the burden of proof was on the prosecution.

38.  PW1’s evidence is undisputed.  I gave his evidence full weight.  I found he was attacked in the early morning in question in the place specified in the Charge.  He was wounded in the process.  Looking at the undisputed injuries and the CCTV footage which accompanied his evidence, I found the two unidentified assailants armed with long knives had the joint intention to cause PW1 grievous bodily harm.

39.  PW2’s evidence is largely undisputed.  The only challenge appeared to be whether he was able to see two knives rather than just one on first discovery from his vantage point.  I do not regard the challenge had any force because the relevant photograph ie photo 5 of Photo Album 2 of 3 (exhibit P5B)  used for the challenge was shot at a different angle.  I gave PW2’s evidence full weight.

40.  PW3’e evidence is undisputed.  I gave her evidence full weight.

41.  PW4’s evidence was challenged in some important aspects.  I listed the challenges above in the section relating to the summary of PW4’s evidence.  In the absence of contrary expert evidence, I accepted his explanations.  I gave his evidence full weight.

42.  PW5’s evidence on the whole is credible and reliable save and except the parts about (1)  the place at which the close-up photos of the two knives were taken; and (2)  the sequence in which the visual examination of the two knives and the taking of photos 4, 5, & 6 of Photo Album No 2 of 3 (exhibit P5B)  took place.

43.  In relation to (2), therefore, there is a possibility that there might have been a reconstruction of the scene for photo-taking to take place.

44.  I therefore could only give full weight to PW5’s evidence insofar as they related to the parts other than the two specified aspects above.

45.  PW6’s evidence is undisputed but largely irrelevant.  It is irrelevant because no one not even the defendant in VRI was saying that the two subject knives (beef knives)  were table knives or kitchen knives used at the restaurant.  In any event, insofar as credibility and reliability is concerned, I have no difficulty in giving full weight to PW6’s evidence.

46.  As regards the VRI, the narratives as to date and time are vague. However, when one looked at the contents of the VRI as a whole, one was able to form a picture of what the defendant was talking about.  He was saying that he was not at the crime scene at the relevant time; that in the evening of the previous night, he was having food with his friend Edison at the Hamro Club Restaurant in Jordan (probably the Namaste Hamro Club); that he touched the handle of one of two knives wrapped in newspaper for fun; that he and Edison stayed till 12 midnight before going to a park for fun till 2 or 3 am whereupon they went back to their separate homes.

47.  My view is although the chain of exhibits has been agreed as an admitted fact (para 13 of exhibit P11), there was a large time gap (about 7 hours)  between the wounding incident and the first discovery of the two knives by PW2.  There was also a small time gap (about 2 hours)  between first discovery by PW2 and the subsequent police seizure of the knives during which time there was no evidence of any attempt to preserve the integrity of the chain of evidence of the two knives.  Besides, the knife with the blood stains of the victim and the DNA of the defendant (exhibit P3A)  lay at the bottom of the gutter in which there was water stain (see photo 6 of Photo Album No 2 of 3 (exhibit P5B)).  When one looked at the close-up photo of exhibit P3A at photo 12 of exhibit P5B, it was not difficult to see water stain on the blade of the knife.

48.  During all this period of about 9 hours, there is no evidence of what might have happened to the two knives.  Their integrity and freedom from interference could not be ensured.  Indeed, it would be unknown as to when they were placed in the gutter in the first place.

49.  Another aspect worth mentioning is that PW5 removed the dustbin before he touched the two knives thereby opening up opportunities for transfer of DNA material even before seizure.

50.  Even if the defendant’s DNA was indeed left on the handle of exhibit P3A by direct contact, the time at which this was done would be unknown because DNA technology thus far would not be able to date a DNA presence on an item.

51.  It is here one had to look at the VRI of the defendant.  Defendant admitted touching exhibit P3A but he said he touched it prior to the offence.  Viewed as a whole together with the other evidence in the case, I am of the view that what he said might be true.

52.  Hence, based on the VRI and the other doubts relating to the integrity and freedom from interference of exhibit P3A prior to seizure, I am of the view that there exists reasonable doubts in the prosecution case against the defendant.  As a result, the prosecution could not prove the charge beyond a reasonable doubt.

CONCLUSION

53.  For the above reasons, I found the defendant not guilty of the offence charged.