HKSAR v. WRIGHT JAMES MICHAEL

DCCC 862/2023

[2024] HKDC 2087

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 862 OF 2023

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REASONS FOR VERDICT

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The Charge

1.  The Defendant pleaded not guilty to a single charge of wounding contrary to section 19 of Cap. 212. The particulars allege the defendant unlawfully and maliciously wounded X outside HK Forest Adventures on 15 April 2023.

Introduction

2. On 15 April 2023, the victim X a three years old child attended his birthday party at HK Forest Adventures “HKFA” which had a premise at No. 12D Tai Shui Hang North Street, Ma On Shan.

3. The party ended at around 12:50 hrs on that day. X then left with his family. They packed their belongings and whilst walking towards the exit. X was struck by an arrow. The arrow went through X’s right cheek and entered into his mouth. Causing a 1 cm laceration on X’s right cheek.

4. There is no dispute that the defendant fired that arrow from a bow used by him and that the arrow caused X to be wounded.

5. The prosecution say that when the defendant fired that arrow he was reckless in that he did foresee a risk of injury yet unreasonably took that risk a result of which was the wound to the victim. The defendant submits that the injury to X was the result of an accident and that he had not acted recklessly that day.

Background

6. HKFA provides courses and adventure activities to children and young persons from premises in Tai Shui Hang, Ma On Shan.

7. The premises lead onto a forested area and is a starting point for their activities. The premises is on the outskirts of the village and consists of a house at the entrance. To the side of the house is a staircase which leads to a platform which is government land.

8. The defendant is an employee of HKFA and works as an instructor. On the material day, he was in charge of X’s party. The party included hiking, building raft and other group activities. There was no archery activities. In fact. HKFA has not conducted any archery activities since 2022. The archery materials were stored in the loft of the house.

9. After the completion of the activities, the defendant went up to the platform area and decided he would dispose of some of the balloons used at the party by shooting an arrow at it. In order to do so, he retrieved a bow and arrow. He fixed a balloon to a tree by a string to provide a target.

10. The tree overlooked the staircase and house. The defendant then moved about 10 metres away from the tree and fired the arrow towards the balloon. The arrow missed the target took a deflection possibly from the tree or the staircase and then travelled down to where X was with his family. The arrow then struck X on the right cheek pierced the skin and lodged in X’s mouth. When the arrow struck X there was no suction cap attached to the arrow.

11. X’s position at the bottom of that staircase is estimated to be about 20 metres away from where the defendant fired the arrow. The platform and tree are about 3 metres above X’s location.

12. X was despatched by ambulance to the Prince of Wales Hospital. He was eventually discharged on 17 April 2023. There is no dispute that the injury caused to X constitutes a wound.

The Prosecution Evidence

13. Most of the prosecution evidence was admitted. In particular it was admitted that:

(a) The defendant did shoot the arrow at the material time

(b) The arrow shot through X’s right face and

(c) X was hospitalized for two days following an operation under general anesthesia.

14. The prosecution produced photographs of the scene a schematic diagram of the site and there was a site visit. At trial, two witnesses were called and one tendered by the prosecution. The defendant’s video recorded interviews were admitted by consent.

15. PW1 was Y, the father of X. He evidenced that it was X’s 3^rd birthday they had booked a programme at HKFA. The party was completed and they were leaving the site. As they were packing to leave, he saw an arrow come from his right hand side and go towards X. He was at the time walking along with X to his front and his wife and PW2. Y put his location at the bottom of the stairs. Y said that X was near a direct line towards the staircase with the right side of his face towards the staircase.

16. PW2 has worked at HKFA since 2016. She was present there full time. She said the bows and arrows had been purchased in 2019 following a trip overseas. They had been last used in 2022 when HKFA had an instructor. When the instructor left HKFA no longer offered this as part of their activities and the bows and arrows had been put away and stored on the loft of the house.

17. PW2 said that the party of her, Y’s wife and X had been walking in a line with Y’s wife in the lead. PW2 confirmed the defendant was full time staff at HKFA and that he had access to the loft. PW3 was a colleague of the defendant. He was with the defendant at the time he fired the arrow. They had fired arrows together in the past at the open space by the platform but had fired towards the wall which backed on the hillside.

18. On the day in question. The defendant had tied a balloon to the tree. He could see no one in the defendant’s line of sight. He did not consider there to be any risks in shooting the arrow.

19. The defendant provided an explanation of his conduct in a video recorded interview. He said when X’s party was finished he went to the workshop and took away the bow and arrow to fire at a balloon hanged on the tree.

20. The arrow was green with a suction head. He shot once from about 10 metres away from the tree. The arrow missed flew out of sight. The arrow had a suction head on it before he fired it. He had checked the area to confirm there was no other person there beside PW2. He did not expect to hit a child at a distance of twenty five metres.

21. He had taken the bow and arrow from the storeroom (a different location to the loft) without telling the company. He had checked the space around the place when he shot. The patch behind the tree and the upper part of the staircase next to the tree before firing the arrow. He admitted he did not check the bottom part of the staircase.

The Defence Evidence

22. The defendant gave evidence. He is aged twenty four. A person of clear record. He said he stood by his explanation given in his video recorded interview. He had previously fired the arrows towards the stone wall with his back to the workshop from a distance of some twelve metres.

23. He had been some ten metres from the balloon when he shot. He was at some distance so he fired an arcing shot at about 30 degrees so the arrow would be descending when it reached the balloon. He thought if he misses the arrow would not go far and no further than the back of the house.

24. The defendant did say he did not anticipate that the arrow could injure anyone even in a minor way if the suction cup was on the arrow. He did look around to see if there was anyone else in order not to bother anyone by shooting the arrow.

25. The defendant said that from his shooting position he could see if anyone was walking up the ramp to the staircase. He thought that with this visibility his shooting would not be a bother to anybody. He knew the characteristic of the bow as he had fired it previously.

The legal approach

26. The defendant faces a single charge of wounding contrary to section 19 of Cap 212. The prosecution must prove to a criminal standard that is beyond reasonable doubt that defendant did wound and did so with intent or acted recklessly that is that the defendant consciously saw that there was an obvious and significant risk of injury to others and unreasonably went ahead with his actions in any event.

27. It is therefore not necessary that the defendant should have forseen that his conduct might cause a wound it is enough that the defendant should have forseen that some physical harm, albeit of a minor character might result.

28. In R v G (HL(E)) [2004] 1 AC 1034, Lord Bingham described the mens rea element of recklessness as follows:

“The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.”

29. The defendant is of clear record that is relevant to consideration of the defendant’s propensity to commit an offence of this nature and the credibility and reliability of an explanation offered by him.

Resolution of the issue

30. Most of the evidence was undisputed the sole issue left for consideration was the defendants culpability. It was common ground that the defendant fired the arrow and that arrow missed its target (the balloon) and travelled totally some 20 metres to penetrate X’s cheek.

31. There is no evidence to support this was an intentional act on the defendants part. The issue that remains is whether the defendant fired the arrow recklessly within the formulation set out in the case of R v G.

32. Thus was the defendant himself subjectively aware of the risk that somebody may be injured by the firing of the arrow and did the defendant then unreasonably take that risk.

General consideration

33. The bow and arrow set was referred to by PW3 and the defendant as toys. This is not the case. The bow and arrow were capable of projecting the arrow some 20-25 metres and gaining sufficient momentum to pierce and go through the cheek of the victim at that distance.

34. It may be a device designed for use by children and young persons but it is better described, as a potential weapon capable of causing severe injury on unprotected flesh at a distance, as such it needs to be handled with care and attention. It cannot be treated as a toy. It can have a recreational purpose but it needs to be carefully used and monitored especially in inexperienced hands.

35. Support for this can be seen from the fact that HKFA only offers archery as an activity when an instructor was present and discontinued it as an activity when the instructor left.

36. Furthermore, the location is simply unsuited to such activity having regard to the inherent risks of firing projectiles. The platform where D shot from on the day and when D and PW3 had shot from previously is on government land to which the public had access.

37. The staircase leading up to the platform was used by hikers to access the forest and hills beyond the platform. In the direction in which the arrow was shot was not only the staircase but also the house used by HKFA for storage and activities, the entrance to HKFA, and also housing which formed part of the village.

38. This was not an archery butts. There was no protective fencing or berm onto which stray arrows could land.

39. It is firstly necessary to determine whether there was a risk to a person who may be injured by shooting the arrows and was the defendant himself aware of that risk.

40. Clearly the use of the bow and arrow creates a risk of injury to others. That can be seen by the injury which in fact resulted. This archery set was capable of causing severe injury. Firing towards the tree which overlooked a slope increased the risk considerably.

41. The bow and arrow set comes with a protective sucker for the fiberglass arrow it was the defendant and PW3 evidence that this detached in flight. Nevertheless it must be the case that even with the sucker attached the arrow once fired could gain sufficient momentum to cause injury of some sort to unprotected skin or and an organ such as the eyeball.

42. The question remains was the defendant subjectively aware of the risk that someone may be injured by him shooting the arrow. The defendant himself denied foresight of such risks. This is however contradicted by the fact that the defendant checked the area and insisted he fired the arrow with the suction cup attached. The defendant said he checked because he did not want to annoy others comparing it to playing football or throwing a paper plane.

43. I consider the defendant was minimizing the risk in his attempts at explanation. It is clear that he did have subjective awareness of the risk that this arrow could cause some injury even with a sucker attached especially if it missed the target and was on a descent towards the staircase where it would accelerate under the effects of gravity, otherwise why check the staircase and hillside.

44. Having appreciated that risk did the defendant unreasonably take that risk by firing the arrow? The defendant said firstly that he did not think that the bow and arrow set had the power to project the arrow to where X was standing, that the arrow had a protective sucker which could prevent injury and that he was confident in his ability to hit the target. Having used the bow and arrow five times before firing at targets on the hillside.

45. The reality is of course that an arrows flight cannot be so accurately predicted given that it is subject to wind conditions and acceleration on descent. Furthermore, those are factors that will affect the accuracy of the arrow which meant the defendants confidence in hitting the target was misplaced.

46. I find that it was not reasonable in the circumstances of the defendant to fire the arrow towards a target suspended on a tree without an adequate barrier behind it and where, should the arrow miss the target. It was open for the arrow to descend and accelerate towards the area where people frequented such as the staircase, the house and the entry to HKFA.

47. It was also unreasonable to rely upon the attaching of the sucker to the arrow as even with the sucker attached, there is some risk of injury and in any event it can be seen that the sucker will detach if the arrow strikes any obstruction.

48. Therefore, I conclude that the charge is proved beyond reasonable doubt and the defendant is convicted accordingly.