HKSAR v. HOLLU PATHIRAGE JANAKA CHAMINDA KALDERA (also known as PERERA RANASINGHA APACHCHIGE JAYANTHA and PERERA RANASINGHA A J) AND ANOTHER

DCCC 782/2023

[2025] HKDC 1037

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 782 OF 2023

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REASONS FOR VERDICT

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1.  D1 and D2 are jointly charged with one count of wounding with intent, contrary to section 17(a)  of the Offence against the Persons Ordinance, Cap. 212 of the Laws of Hong Kong. They pleaded not guilty to the charge.

2.  It is the prosecution case that on 14^th January 2023, while PW1 was having a gathering in his friend’s home situated in Tai Tong, Yuen Long at night time, a group of 5 persons, including D1 and D2 suddenly arrived.  The prosecution contended that inside the house, PW1 was tied up with belts and tapes and assaulted by the group.

3.  The defence case, as revealed in the cross examination of PW1, is that PW1 was alleged to be a suspect of an indecent assault case whose the victim is the daughter of D2.  D1 and D2 were simply exercising their common law and statutory rights to apprehend PW1.  The injuries that PW1 suffered was a result of the struggles he put up while D1 and D2 were trying to restrain him.

4.  Apart from PW1, the medical officer who examined PW1 (PW2)  and 2 police officers arrived at the scene shortly after the event (PW3 and PW4)  were called as prosecution witnesses.

5.  In gist, PW1 recalled that he arrived the house at around 7:30 pm.  At around 8:30 pm, when he was trying to close the main gate leading to the house as instructed by his friend, D1, D2 together with 3 other men appeared and dashed towards him.  PW1 immediately ran back to the house.  He tried to close the door but someone kicked open it.  While he was inside the living room of the house together with the group and his friend’s wife, someone turned off the lights.  He was pushed to the ground, the clothing that he was wearing were stripped off and handkerchief being put into his mouth.  He was then tied up, and being punched and kicked by someone all over his body.  PW1 added that his forehead and legs were also hit by a metal pipe.  PW1 also mentioned that his penis was pulled and the same metal pipe as mentioned above was used to insert into his anus.

6.  After the assault, D1 made a report to the police and D2 together with the other men left.

7.  PW1 described the assault lasted about half an hour.  When the police officer arrived, only D1 was present inside the house.  The police officer removed his restraint and he was subsequently taken to Pok Oi hospital for treatment.

8.  Under cross examination, PW1 admitted the injury on his forehead was caused by contact with the ground when he was putting up a struggle while D1 and D2 was trying to restrain him.  PW1 agreed that at all times D1 did not assault him, instead it was D2 who punched and kicked him.  PW1 also agreed that he did not mention to PW2 that someone inserted a pipe into his anus.  PW1 initially insisted that he didn’t know why he was arrested by the police at the scene but later admitted that it was related to the indecent assault case.  He also agreed that he was informed by D2 at the scene that the reason why he was being tied up was to wait for police arrival.

9.  PW1 disagreed to the suggestion that when D1 and D2 was trying to apprehend him outside the house, he picked up a wooden pole and swing to D1. He also disagreed that D1 managed to snatch the pole from him.  PW1 however agreed that D1 and D2 told him that he needed to be restrained until the police arrived.

10.  Upon clarification, PW1 agreed that as the lights inside the house were completely off, he could not identify the assailants.  It was only until the police arrived that the lighting inside the house resumed.

11.  PW2 examined PW1 at Pok Oi Hospital at 1:25 am on 15 January 2023. Medical examination revealed that there were abrasions on PW1’s right shin and knee, and laceration at his forehead.  Suturing was done on his forehead and PW1 was discharged on the same day.

12.  PW4 received instruction from the police console concerning a case of seeking police assistance and he met D2, being the informant of said case, at Tai Tong Road at around 11:42 pm.  D2 then led him to the house and during the course of the journey informed PW4 that they had intercepted a suspect in relation to a reported suspected indecent assault case.  When PW4 entered into a room inside the house, he saw PW1 sitting on the floor with his hands and feet tied up by piece of cloth, belts and tapes.  D2 pointed to PW1 and told PW4 that he was the suspect of the case he mentioned to PW4 earlier on.

13.  PW4 observed that PW1’s trousers was lowered to knee level.  He assisted PW1 by holding him to the bed inside the room and untied him.  While doing that PW1 revealed to PW4 that he was assaulted by 2 to 3 men earlier on at the scene, and he identified D1 as one of the assailants.

14.  Subsequently D1 was arrested by PW4.

15.  PW3 attended the scene at around 1 am on 15^th January 2023. He seized the piece of cloth stained with blood, 2 belts and some tapes rolled into a ball shape as exhibits.  He also took some photographs and then contacted the forensic officers for lifting fingerprints and collecting DNA samples.

16.  PW3 then took a statement with PW1 at Pok Oi hospital.  He later called D2 to attend Yuen Long police station and declared arrest on him.

17.  Counsel for D1 advanced a no case submission on the grounds that the prosecution has failed to show that PW1 suffered grievous bodily harm and his evidence is so inconsistent and inherently improbable that it is dangerous to leave the matter to be resolved by the jury.

18.  I find that there is a case to answer against D1 and D2.

19.  D1 and D2 elected not to give evidence nor called any defence witnesses.

20.  I have considered all the oral and written submissions put forward by counsels for the defence.

21.  It is undisputed that PW1 was found inside the bedroom of the house, restrained by belts and tapes and injured when the police arrived.  The only issue in this case is whether he is a credible and reliable witness.

22.  During the course of giving his evidence, there existed numerous occasions that PW1 provided self-contradictory and inconsistent accounts of events, which cannot be reconciled, as to what had happened inside the house. For example:-

(i)  Initially he was adamant that D2 had assaulted him inside the house, yet upon clarification from the Court he confirmed that the assault took place after the lights were off and he did not know who had assaulted him;

(ii)  He confirmed that D1 and D2 was holding metal pipes with them when they entered the house but under cross-examination admitted that they did not; and

(iii)  He recalled that D2 called the police after the group assaulted him but then retracted by saying that he did not know that police was summoned.

23.  In addition, PW1’s evidence that he was punched and kicked by D2 while D1 was doing nothing apart from standing aside was in stark contrast as to what he had told PW4 at the scene that D1 was the assailant, without pinpointing to PW4 that D2, who was present at the scene at the time, was one of the culprits as well.

24.  Further, the fact that PW1 was able to describe in Court that the object used to hit his forehead and legs and inserted into his anus was a metal pipe, and the approximate dimensions of the pipe, in complete darkness as he alleged, defies logic.

25.  One would have assumed if metal pipe was used to insert into PW1’s anus and caused him pain as he testified, he would have related the incident to PW2 for medical examination and treatment.  He agreed that he did not tell PW2 about that.  No explanation was offered by PW1 as to the absence of that.

26.  I find PW1 to be an incredible and unreliable witness.  Apart from the fact that D1 and D2 went to the house when PW1 was gathering with his friend, and he was tied up by belts and tapes inside the house with his trousers pulled down to the knee, I reject his evidence in its entirety.

27.  Having rejected his evidence, there is no need for this Court to deal with the issue whether the force used to restrain PW1, as alleged by the defence that the act of restrain amounts to citizens’ arrest is reasonable and proportional.  However, it should be noted that PW1 was restrained with his trousers lowered to the knee when PW4 arrived. 

28.  Prosecution case depends solely on the evidence of PW1.  Given that his evidence as to what had happened on the material day is not accepted by the Court, the prosecution has failed to prove the case against D1 and D2 beyond reasonable doubt.

29.  D1 and D2 are acquitted of the charge.