HKSAR v. WONG KIN FAI

DCCC 272/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 272 OF 2015

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Reasons for Verdict
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1. The defendant pleaded not guilty to one offence of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Chapter 212.

The Background

2. The prosecution's case against the Defendant was this. In or about December 2014, the victim, Miss Chan Shing Fong (PW1), was the girlfriend of the Defendant. The alleged attack took place on the morning of 2 January 2015 inside the Defendant’s flat situated at Room 703, Tat Hong House, Po Tat Estate, Sau Mau Ping (“the Premises”).  PW1’s younger sister Miss Chan Man Ha (PW2) and her cousin Miss Wei Lin (“Wei Lin”) were also present in the Premises witnessing the incident. 

3. The defence put forward was that there was no attack on PW1.

Issues raised before the commencement of the trial

A)Non-calling of Wei Lin as witness at trial

4. On the first day of trial, Mr Polson, Counsel for the Prosecution informed the Court that he had just been told by the police that Wei Lin, one of the listed prosecution witnesses, was a Mainlander and she had returned to China before the trial. The police officer was unable to locate her whereabouts. As Wei Lin was unlikely to give evidence at trial, Mr Polson informed the Court that he decided not to call her as a prosecution witness.

5. Mr Allan, Counsel for the Defendant, told the court that he was so shocked to learn about the non-calling of Wei Lin. Mr Allan submitted that even in the Prosecution first Opening signed by Mr Polson himself had included Wei Lin as “PW3”. Mr Polson had constantly referred to the evidence of “PW3” in his first written opening (“MFI-4”). It was submitted that the Defence was misled, whether deliberately or inadvertently, into believing that Wei Lin was going to be called as a material and important witness of the facts at all material times.  

6. Upon seeing the position of the Prosecution case relating to the non-calling of Wei Lin, I stood down the case to allow Mr Allan to take instructions from the Defendant first. On resumption of the hearing, Mr Allan indicated that the Defence basically did not wish Wei Lin to be called but this was subject to the contents of the police investigation report (“Pol 155 ”) which he had still had no chance to read. Mr Allan also confirmed with the court that he was not going to make an application to stay the proceedings.

B)Complaint of non-disclosure of the police investigation Report(Pol 155)

7. Mr. Allan also made a serious complaint that the Prosecution failed to serve the police investigation report on the Defence. It was submitted that the Prosecution had a positive duty to disclose all relevant material to the Defence.

8. Mr Polson replied that the police investigation report was not automatically served unless the Defence had specifically requested to have one. Therefore I ordered the Prosecution to serve the police investigation report on the Defence in the afternoon so that the Defence could have the rest of the day to read through the report. I adjourned the case to the following day.

9. When the hearing resumed in the next morning, Mr Allan complaint to the court that the copy of the police investigation report was not served on the Defence until 9:29 am.  Mr Allan further informed the court that the said report contained 14 pages in total and the contents therein were all written in Chinese. Mr Allan asked for time to be given to the Defence to undertake the translation work which I allowed. In order to save time, I asked to deal with the Prosecution Opening and the Admitted facts first.

Admitted Facts

10. Some facts were admitted pursuant to section 65C Criminal Procedure Ordinance Cap 221 and these were marked as exhibit P1. Pursuant to those facts two medical reports of PW1 (Exhibits P3 and P4) were read into evidence pursuant to Section 65B of the Criminal Procedure Ordinance, Cap 221.

11. Exhibit P3 was dated 2 February 2015 and prepared by Dr Law Chin Mei of the Accident & Emergency Department of United Christian Hospital. There it was stated that PW1 was examined at 8:58 am on 2 January 2015. On examination, the medical findings were as follows: a) right head 2 cm laceration, b) head swelling, c) right chest wall back area swelling, bruises and pain and d) chest X-ray revealed right side multiple ribs fracture and pneumothorax. 

12. Exhibit P4 was dated 20 March 2015 and prepared by Dr Kwan Wai Yin Wilson of the Department of Surgery of United Christian Hospital. The whole body CT scan showed that PW1 was found to have a) fractures over right 6^th to 12^th ribs with flail segments over 7^th to 10^th ribs, b) small amount of right hemopneumothorax with chest drain in-situ, c) liver contusion and tiny laceration over posterior aspect of right upper pole of kidney with thin subcapsular hematoma. PW1 was discharged home on 15 January 2015.

13. Pursuant to the admitted facts, 3 books of photographs (exhibits P2A, P2B and P2C) were produced by agreement. Album Aconsisted of 17 photographs marked 1 to 17. These were photographs of the Premises and in particular Exhibit P2A (4) and (5) the living room where the alleged incident took place. Album B consisted of 9 photographs, marked 1 to 9, and were photographs of the injuries sustained by PW1. Album C consisted of 12 photographs, marked 1 to 12, which were photographs of the jacket that PW1 was wearing on the day of the alleged incident, photographs of empty beer bottles and a red wine bottle. There were also some more photographs of the injuries sustained by PW1 in Album C.

14. The sketch of the Premises, Exhibit P5A was also not challenged.

Disclosure of Wei Lin’s unavailability in the police investigation report

15. Before the calling of PW1 on the third day of trial, Mr Allan informed the court that he had been through the contents of the police investigation report. It revealed that as early as February 2015 that Wei Lin had gone back to China and “would not be a Prosecution witness in Court”. It was submitted that the Prosecution at no time informed the Defence about this until the first day of trial.

16. Mr Polson replied that he actually did not have an opportunity to have a sight of the said report before the trial. He reiterated that he only got a confirmation from the police officer on the first day of trial that Wei Lin could not be located.

17. Without any further objection from the Defence, the trial began.

Summary of prosecution evidence

18. The prosecution called 5 witnesses in support of the charge. They were the victim (PW1), PW1’s younger sister (PW2) an eye-witness who testified as to what had happened, the security guard of the Building in question (PW3) and the arresting officer of the Defendant (PW4) and the exhibit officer (PW5).

The evidence of PW1 (Miss Chan Shing Fong)

19. Basically the evidence of PW1 was not challenged by the Defence.

20. In July 2013, PW1, a divorced woman with a son aged 13, came to know the Defendant through the introduction of friends. In September 2013, they started dating soon afterwards and became intimate. PW2 was PW1’s younger sister. Wei Lin was PW1’s cousin. PW2 and Wei Lin also know the Defendant during previous social gatherings with PW1.

21. Their relationship turned sour around Christmas 2014 as PW1 started to have a slight verbal argument with the Defendant. PW1 said she was getting angry with the Defendant. As some of the Defendant’s personal belongings had been left at her home, she decided to give them all back to him. Sometime in the end of 2014, PW1 went to the Premises to look for the Defendant. As the Defendant was not at home, PW1 then left the Defendant’s personal belongings on the handle of the metal gate of the Premises. The metal gate and wooden door of the premises were shown in the photographs (Exhibit P2A(1) and (2)).

22. PW1 said in the small hours of 2 January 2015, PW1 was told by PW2 that she and Wei Lin were going to the home of Defendant. At about 6 am on 2 January 2015, PW1 received a call from PW2 who told PW1 that she was drunk at the home of the Defendant. She asked PW1 to come over and buy medicines for her being drunk and headache.

23. At about 7:00 am, PW1 arrived at the premises. PW1 pressed the doorbell. The Defendant opened the door and PW1 entered. After entry, the Defendant sat on a sofa in the living room.  PW1 saw Wei Lin sleeping in a small room and PW2 sleeping in a master bedroom. PW1 then woke PW2 up. When PW2 was awakened, she said to PW1 that the Defendant had already given her medicines. She further said she was dizzy and could not walk. PW1 asked PW2 to leave and told her that they would take a taxi. Then PW1 turned around and as she did so, she suddenly lost consciousness.

24. PW1 said she did not know why she suffered a black-out. PW1 said she had lost consciousness for a few days. PW1 said during the course of waking up PW2, the Defendant was in the living room. When she was still conscious, nothing happened between the Defendant and her. When she regained consciousness she was already in United Christian Hospital.

25. With reference to the photographs in Exhibit P2C, PW1 identified the injuries she had sustained on her head as shown in the photographs (Exhibit P2C(9)to(10)). PW1 said in chief she did not know how the injuries were caused but she confirmed she did not have those injuries as shown in the photographs before she entered the Premises on the morning of 2 January 2015.  

26. Album P2A was shown to PW1 and she identified P2A(4) to be the photograph of the living room of the Premises. PW1 also confirmed that the jacket shown in the photograph (Exhibit P2C(1)) was the one she was wearing on the morning of 2 January 2015.

The evidence of PW2 (Miss Chan Man Ha)

27. PW2 was the younger sister of PW1. Through the introduction of PW1, she met the Defendant. The Defendant was PW1’s boyfriend. PW2 said she knew there were some quarrels between PW1 and the Defendant in December 2014.

28. On 1 January 2015, PW1 told PW2 that she had an argument with the Defendant. Later PW2 found out from the Defendant that the Defendant felt very angry as PW1 had lost his belongings.

29. On 2 January 2015, the Defendant invited PW2 to his home for chatting as he said he had a quarrel with PW1. PW2 agreed and Wei Lin who came to Hong Kong for visit also went with PW2. At about 2:00 am on 2 January 2015, PW2 and Wei Lin arrived at his home. They started chatting and drinking beer. During the course of chatting, a pack of 12 bottles of beer had been consumed by three of them. PW2 said the Defendant also drank red wine and she only drank beer. Subsequently Wei Lin said she wanted to sleep and went to sleep in the guest bedroom of the premises.

30. In the early morning of 2 January 2015, PW2 made a call to PW1 at the home of the Defendant. She asked PW1 to come over and apologise to the Defendant so that the matter was going to be fine. PW1 agreed. After making the call, PW2 slept in the master bedroom of the premises.

31. Sometime between 6 am and 7 am, PW1 arrived at the Premises. PW2 was woken up by PW1 who asked her to leave. PW2 told PW1 to say sorry to the Defendant first. After that, PW2 saw PW1 walking out of the master bedroom and going to talk to the Defendant. PW2 went to close the door of the master bedroom and went back to sleep again until she was woken by the sound of shouting outside the master bedroom. PW2 found the door of the master bedroom was already open at that time. When she went out of the master bedroom, she saw the Defendant kicking PW1 with great force. She also saw the Defendant shouting at PW1 who was already lying on the floor bleeding seriously on her head. The Defendant kept on kicking PW1’s body. At the time when PW1 was on the floor, PW1 appeared to be unconscious.

32. Having seen PW1 being attacked, PW2 immediately tried to stop the Defendant from kicking PW1 by holding him with her both arms. However the Defendant did not stop. He kept on shouting and kicking hard on PW1’s body. The kick lasted 5 to 10 minutes. At that time, her cousin Wei Lin was awakened. PW2 saw Wei Lin also trying to stop the Defendant from kicking PW1’s body. PW2 and Wei Lin finally subdued the defendant and held him down on the bed. PW2 said PW1 looked as if she was in a coma. PW2 immediately escorted PW1 to leave the premises and took her to the ground floor. There PW2 saw a security guard who was asked to make a report to the police. An ambulance and uniform police officers arrived shortly. PW1 was then taken to United Hospital for medical attention. PW2 said PW1 did not regain consciousness until a few days after the incident. PW2 said PW1 looked very puzzled when she wake up.

33. In cross-examination, PW2 agreed she told the police that the Defendant had been nice to PW1, PW2 and Wei Lin. PW2 said in fact she had a good chat with the Defendant in that morning. She did not know why the Defendant did such a thing on her elder sister.

The evidence of PW3 (Miss Wu Yim Yung)

34. PW3, Wu Yim Yung, was a security guard at Tat Hong House, Po Tat Estate, Sau Mau Ping.

35. At about 8:30 am on 2 January 2015, PW3 was on duty at the security post. She saw two women. One of them appeared to be injured with blood stain on her forehead and the other woman helped to hold up the injured. PW3 was asked to dial 999 for ambulance and that she did. 

36. There was no cross examination by Mr Allan on this witness.

The evidence of PW4 (PC 15812)

37. PW4 was the arresting officer of the Defendant.

38. At about 8:29 am on 2 January 2015, PW4 was with his team in a police vehicle and responded to a call for assistance.  At about 8:38 am, PW4 arrived at the lobby of Tat Hong House, he saw a woman bleeding on her head. The sister of the injured woman was also present. After a preliminary enquiry, PW4 went up to the Premises for investigation. PW4 knocked on the metal gate and the Defendant answered by only opening the wooden door. PW4 revealed his police identity through the metal gate. The Defendant became emotional when he was asked as to what had happened. He shouted foul languages at PW4 and then slammed the wooden door.

39. At about 9:07 am PW4 called for assistance. At about 9:30 am, two teams of police officers arrived. As the police officers were denied access, they sought assistance from the Fire officers to get into the Premises by force.

40. At about 10:47 am, PW4 arrested the Defendant. Under caution, the Defendant said “I have nothing to say. I got a headache. I need to see a doctor.” The Defendant was subsequently taken to United Christian Hospital.

41. In cross-examination, PW4 confirmed that nothing suspicious was found on the Defendant. When he saw the Defendant, he did not notice as to whether there was any blood stain on the Defendant’s trousers and his shoes.

Application for a mistrial and/or trial de novo in the middle of the Prosecution case

42. After PW4 was called, Mr. Allan indicated to the court that he wished to make an application for a mistrial and/or trial de novo. Reasonable time was then given to Mr Allan to submit a written submission which was subsequently marked as “MFI-2”.

43. The background of this application was that in the course of cross-examination by Mr Allan, PW2 was referred to Album P2A and the photographs (4)and(5) showed that there was no blood splatter or blood stains on the living room floor of the premises. In cross-examination PW2 agreed there was no blood stain shown in the photographs. She explained it was because she was told by Wei Lin that the Defendant had asked her to clean up the living room floor. It was put to PW2 that she was a liar as there was no blood found on the living room floor. It was also put that the Defendant had never kicked PW1 in the manner as she described. PW2 strongly denied.

44. Upon seeing that PW2 was repeatedly challenged by Mr Allan in this aspect, Mr Polson suddenly stood up and revealed to the court about what Wei Lin had said in her witness statement relating to the condition of the living room floor. As I found Wei Lin was not going to be called, I told Mr Polson and Mr Allan that I would disregard Mr Polson’s remark and no weight would be given to what Mr Polson had said in court relating to the contents of the witness statement of Wei Lin.

45. Mr Allan stressed that with the greatest of reluctance the Defence applied to the Court for a mistrial and/or trial de novo. It was submitted that there had been a gross and obvious, serious and material irregularity by the Prosecuting Counsel revealing to the Court the contents of the witness statement of Wei Lin. Even the Court has indicated the ignorance of such a remark, Mr Allan submitted that the Defendant would feel a genuine grievance that such a highly prejudicial remark lead to his conviction if convicted.  This would cause a burning sense of injustice. Therefore any conviction must be unsafe and unsatisfactory.

46. Further criticism was also made by Mr Allan of the failure of the Prosecution to call Wei Lin as a prosecution witness and late disclosure of the police investigation report by the Prosecution.

47. Mr Polson replied in his written submission (“MFI-3”) that it was a fundamental duty of Counsel in court not to deliberately mislead the court. In the present case the evidence of PW2 was that once she and her cousin Wei Lin managed to physically subdue the Defendant, PW2 escorted her injured and bleeding sister PW1 to leave the Premises. She did not re-enter or return to the said premises. There was strong evidence that PW1 was bleeding from a head wound. It would be natural to infer that if she was bleeding and lying on the floor then some blood might be found on the floor. Mr Polson further submitted that Miss Wei Lin, who remained behind in the premises with the Defendant gave a witness statement to the police which was served on the Defence. Wei Lin has returned to the Mainland before the trial and was now unlikely to give evidence as a Prosecution witness.

48. Mr Polson submitted that in cross-examination of PW2 Mr Allan asked her to look at the photograph of the living room floor and purported to suggest that because we did not see any blood on the floor therefore PW2 was deliberately lying (not confused or mistaken but lying). Mr Polson submitted that this was quite improper. This was liable to mislead the witness and more important had the potential to mislead the court. It was further submitted that an explanation was called for which was not evidence and could not be used in any way other than to support the objection to the question.

49. With regard to the matter of the non-calling of Wei Lin, Mr Polson explained to the Court that during the first conference with the police officer in charge on or about 28 May 2015, he had been told that there might be a problem with Wei Lin as she appeared to have left and had gone back to China. Mr Polson had already told the officer to try to get her back to Hong Kong. Mr Polson said he finally got a confirmation from the police on the morning of the first day of trial that Wei Lin could not be located. Mr Polson apologized to the court for having still referred Wei Lin as “PW3” in his first written opening (“MFI-4”).

50. I have carefully considered all the evidence and the written submissions of Counsels. As I found no unfairness or injustice would be occasioned to the Defendant on the matters raised by Mr Allan, I dismissed the Defendant’s application. I found the Defendant’s application for a mistrial and/or trial de novo was unfounded. Upon my ruling, the Prosecution continued to call the last witness PW5.

The evidence of PW5 (PC 54648)

51. PW5 was the exhibit police officer of this case.

52. At about 12:30 pm on 2 January 2015, PW5 arrived at the Premises. He confirmed the seizing of various exhibits there such as empty beer bottles.

53. PW5 said he also took samples as instructed on the red substances appeared on the doorframe of the kitchen of the premises and the wall of the lift lobby of Tat Hong House for forensic examination (Exhibit P2A(14)to(17)). When the samples were taken back to the police station, his superior told him that there was no need to take the samples for forensic examination. No follow-up was then made on the samples.

54. PW5 also gave evidence that on 6 January 2015 at about 10:30am he had viewed the CCTV footage which appeared to relate to the inside of the lift of Tat Hong House captured on the morning of 2 January. This part of evidence was not challenged by Mr Allan.  The CCTV footage showed that

a)At 2:48 am on 2 January 2015, the Defendant, PW2 and Wei Lin were into the lift lobby with the Defendant carrying a box of beers.

b)At 8:14 am on 2 January 2015, PW1 was into the lift lobby of Tat Hong House.

c)At 8:25 am PW1 and PW2 went inside the lift to the ground floor.

Submission of No Case

55. After the close of the Prosecution case, Mr Allan submitted there was no case to answer for the charge. His written submission of no case to answer was marked as “MFI-7”.

56. To put it in a nutshell, the evidence of PW1 was not challenged by the Defence. Mr Allan submitted that the Defence totally accepted the evidence of PW1. As she was the victim in this case, the Court should have accepted her evidence. It was submitted that there were serious and huge differences in the evidence and version of the facts of both sisters PW1 and PW2. The evidence of PW2 was uncorroborated and conflicted.

57. It was also submitted that there had been serious and gross irregularities in that there was no supporting eye witness called by the Prosecution and named by Prosecuting Counsel as “PW3” or Wei Lin in his first signed written Opening (“MFI-4”) and Summary of facts (For plea day only) (“MFI-6”).

58. There was no forensic evidence as to “blood” as described by PW2. No blood analysis of the forensic swabs was ever done. Therefore there was no evidence to support that the red marks appeared on the doorframe of the kitchen and the wall of the lift lobby were blood and belonged to PW1. Exhibit P2A(4) and (5) clearly showed that no blood stain was found on the living room floor of the Defendant’s home.

59. Mr Allan submitted that there was no case for the defendant to answer under the 2^nd limb of R v. Galbraith (1981) 73 Cr App R 124.

60. Mr Polson replied that as from about 8 am or thereabouts on the morning of 2 January 2015 at the Premises, there were only 4 persons present. 3 of those persons were female and related, plus the Defendant. At some stage while 4 persons were inside the said flat PW1 suffered grievous bodily harm. It was submitted that the following possibilities could be eliminated: a) that PW1 self-inflicted her injuries; b) PW2 attacked PW1 and c) Wei Lin attacked PW1. Mr Polson submitted that the only other possibility left on the evidence there must be a prima facie case that the Defendant was responsible for the injuries to PW1.

61. Mr Polson submitted that this proposition was greatly reinforced by the very clear and strong evidence of PW2 who was woken by shouting and went out of the bedroom to witness the Defendant in the act of kicking the bleeding and unconscious body of her sister PW1. The Defendant had to be restrained from continuing. There were graphic photographs of PW1 when she was in United Christian Hospital plus medical reports as to her injuries before the Court. This must result in evidence of grievous bodily harm. The Prosecution therefore invited the Court to rule a case to answer.

62. After considering the evidence, I found a prima facie case has been made out in respect of the charge.

The Defence case

63. The Defendant neither gave evidence nor called any witness on his behalf.

Final Submission

64. Mr Allan adopted his previous submissions made and made supplemental remarks to the court.  These I have taken fully into account when reaching my verdict.

General Directions

65. In reaching my verdict, I direct myself that the prosecution must prove beyond a reasonable doubt that the defendant is guilty of the charge he faces.  The burden is on the prosecution throughout. No onus whatsoever lies on the defendant.

66. The defendant elected not to give evidence. That was his right and I inferred nothing against him for exercising that right. It did nothing to establish his guilt. It does however mean that there is no evidence from the defendant to undermine, contradict or explain the evidence put before the court by the prosecution.

Evaluation of Evidence

67. Clearly there was an incident in which PW1 suffered injuries to her body.  The prosecution must first prove that the Defendant did assault PW1 in the way as described by PW2, and that the assault had caused the injury to PW1 as alleged by PW2 and described in PW1’s medical reports. The prosecution must also prove that the Defendant had intended to cause PW1 grievous bodily harm.

68. The case for the prosecution relied primarily on the evidence of PW2, the younger sister of the victim PW1.  Central to the whole trial therefore was the credibility of PW2. I bear in mind that I have to assess PW2’s evidence with the very greatest care.

69. I have carefully considered all the evidence before me and the submissions made by Mr Polson and Mr Allan. I have also carefully considered all the various criticisms made of PW2’s evidence by Mr Allan in his written submission (“MFI-7”).  I will not reiterate or repeat all the submissions. I have referred to a number of Mr Allan’s submissions in my analysis below but the fact that I have not mentioned anyone of them does not mean that I have not considered it all.

70. I will first deal with the evidence of PW2.

Credibility and reliability of PW2’s evidence

71. At paragraphs 3-26 of his written submission (“MFI-7”) Mr Allan listed a number of reasons why PW2’s evidence should not be accepted or relied upon. In cross-examination Mr Allan repeatedly put to PW2 that she was a liar. PW2 strongly denied. PW2 was examined at length on the inconsistencies between the witness statement which she had given to the police officer and her testimony in Court, for example, 

(1) In her witness statement, she told the police that when she asked PW1 to come over to the Defendant’s home on the phone, PW1 replied “um um um” only. But her evidence in court was that PW1 did respond by saying that she would come over. PW2 explained that she found both answers in fact had the same meaning.

(2) PW2 told PW1 on the phone that if she did not come over, she would be threatened. In cross examination she agreed this statement was not mentioned in her witness statement. PW2 explained that she had already told the statement taker about this. PW2 remembered she told PW1 on the phone that if she wanted to resolve the matter, she had to come over and apologize to the Defendant.

(3) In her witness statement, she told the police that PW1 reached the Defendant’s home at or about 8:00 am, but her evidence in court was that PW1 arrived at sometime between 6 am and 7 am. PW2 explained that she called PW1 to come over at sometime between 6 am and 7 am. It certainly took PW1 some time to travel from Tuen Mun to the Defendant’s flat in Sau Mau Ping. PW2 said she still kept all the calling records on her mobile phone. PW2 said she could show the records to the court if needed.

(4) In her witness statement, PW2 told the police that it was her who told Wei Lin to sleep in a small room. But her evidence in court was that apart from her, the Defendant also asked Wei Lin to sleep in the small room. PW2 explained that it was because Wei Lin still had to obtain the Defendant’s consent before she entered the small room to sleep;

(5) In her witness statement, PW2 told the police that when PW1 woke her up in the master bedroom, she asked PW1 to talk to the Defendant in a friendly manner. But her evidence in court was that she only asked PW1 to apologize to the Defendant. PW2 responded that she saw no difference between two answers; and

(6) In her witness statement, she said PW1 was conscious at the time when she was in the lift lobby waiting for the ambulance, but her evidence in court was that PW1 was unconscious from the time when she saw her lying on the living room floor until the arrival of the ambulance. PW2 explained that it was because whilst waiting for the ambulance, PW1 kept telling her that she was in agony and in pain.

72. Having considered the alleged discrepancies as pointed out above, I found there to be no significant discrepancies in her evidence that were so serious to cause me doubt her credibility. I found PW2 to be an honest and reliable witness. She impressed me as a witness of the truth.  According to the evidence of PW2, the reason why she accepted the Defendant’s invitation to have a chat at his home was that she knew the Defendant had an argument with her elder sister PW1. PW2 said she in fact had a good chat with the Defendant in that morning. PW2 subsequently made a call to PW1 to come over and to say sorry to the Defendant. I found PW2 simply acted as a peacemaker between PW1 and the Defendant and tried to do something for them. She even told the police officer that the Defendant had been treating nicely to PW1 and her family. Having carefully considered all the evidence before me, I failed to see any reason why PW2 had fabricated her evidence against the Defendant.

73. I observed that PW2 might have sometimes appeared a bit emotional in court when she was being subjected to vigorous cross examination by Mr Allan on her credibility. For example, when she was repeatedly put that she was too drunk that she did not know what was going on at the material time, PW2 replied “How did I fabricate?” “If I was fainted how could I chat with the Defendant?”, “Why did my sister stay in the hospital?” PW2 said in cross-examination that she in fact did not want to become embroiled in the quarrel between the Defendant and PW1.

74. I also noted that when approaching the end of cross-examination, it was put to PW2 that the Defendant had never kicked PW1 in the manner as she described. PW2 replied “I agree”. In order to clarify her answer, Mr Polson asked PW2 in re-examination as to whether she did witness the Defendant kicking PW1 on the morning of 2 January 2015. PW2 replied in the affirmative. When she said “I agree”, she meant she had never seen the Defendant kicking her elder sister in the manner as she described before the incident. Having carefully considered all the evidence adduced before me, I was satisfied that PW2 has neither embellished nor fabricated her evidence. I was satisfied that PW2 told the court what she heard and what she saw in a straightforward manner. I did not accept that PW2 had fabricated the story of the Defendant having seriously assaulting PW1 in that morning.

Had PW2 become intoxicated?

75. PW2 was also questioned extensively on her state of mind after consumption of a huge amount of alcohol. Mr Allan submitted that PW2 described herself being “paralytic” by alcohol that she had drunk. It was put to PW2 that as she had drunk a huge amount of alcohol, she did not actually know what was happening. PW2 strongly denied.

76. PW2 said she arrived at the Defendant’s home at sometime between 2 am and 3 am. She was “paralytic” at sometime between 3 am and 4 am and threw up at sometime between 4 am and 5 am. She remembered she gave PW1 a call at about 6:00 am. PW1 asked her on the phone if she had consumed alcohol. She replied “yes”. PW2 did not say to PW1 that she was very drunk. She only told PW1 that she had consumed alcohol and had a headache. PW2 said by the time when PW1 arrived at the premises, she only felt dizzy and sleepy. She was certainly not in a state that she did not know what was going on around her. She went on to say that she had felt much better after she took a nap. PW2 reiterated she clearly saw the Defendant shouting at PW1 and kicking PW1’s body in the living room.

77. Having considered all the evidence before me, I found PW2 to be honest and truthful. I accepted that even she had consumed alcohol, I was sure PW2 had clearly remembered what had happened on the morning of 2 January. I did not find her evidence inherently improbable or inherently incredible.  Nor did I find her evidence in material conflict with any other evidence. 

Discrepancies and contradictions between the evidence of PW1 and PW2

78. It was submitted by Mr Allan that as PW1 was the victim in this case, her evidence should be believed and accepted by the court. In fact, as I understood it, Mr Allan had not challenged the credibility and reliability of PW1’s evidence.

79. Mr Allan submitted that there were a number of the discrepancies between the evidence of PW1 and PW2. It was submitted that these discrepancies in the evidence had undermined the credibility and reliability of PW2’s evidence.

80. It was submitted that the evidence of PW2 and that of PW1 were discrepant. For example, PW1 said when she asked PW2 to leave the premises in the master bedroom, PW2 told her she was dizzy and she could not walk. But in cross-examination PW2 denied she told PW1 that she could not walk. She only told PW1 to have a talk with the Defendant first. I found this discrepancy was minor and immaterial and did not cause me doubt their evidence.

81. I also could not ignore the discrepancy between the evidence of PW1 and PW2 as to where PW1 had in fact lost consciousness as submitted by Mr Allan. According to the evidence of PW1, she should have lost consciousness in the master bedroom. But PW2 said her sister blacked out in the living room. PW1 said after she had a conversation with PW2 in the master bedroom, she turned around and suddenly suffered a black-out.

82. PW1 repeatedly said in court that she did not know what was happening. She even did not know why she had sustained such serious injuries as shown in the photographs (Exhibit P2C(8) to (10)). In fact, I observed PW1 looked nervous and perplexed when giving evidence in court. She even had a difficulty in recognizing herself in the photograph. For example when referred by the Prosecution to the photographs (Exhibit P2C(8)to(10)), PW1 was asked as to whether the one shown in the photographs was her. PW1 replied “I don’t know …… I think so.” When further asked by the Prosecution as to why she had sustained those injuries as shown in the photographs, PW1 said she had already passed out and she did not know anything. In cross-examination, PW1 said the first person that she saw after she regained consciousness at United Christian Hospital was PW2. PW1 said it was only based on her own believe that it was already a few days later when she regained consciousness. She said she in fact had no recollection at all.

83. Based on PW1’s condition as she described, I did not find odd that PW1 was not able to tell the court how her injuries were caused. Though I was satisfied that PW1 was an honest witness doing her best to recollect events that had occurred on the morning of 2 January, I preferred the testimony of PW2 to that of PW1 in all major respects. Despite thorough cross-examination, PW2 remained firm and unshaken as far as the main line of her evidence was concerned.  I accepted PW2’s evidence in its entirety.

84. In fact I found the evidence of PW1 and PW2 corroborated with one another on the following facts which I found the Defence should have agreed as the evidence of PW1 was unchallenged, namely,

a) that on the morning of 2 January 2015, PW1 did go to Room 703 Tat Hong House, the Defendant’s home, to look for her sister PW2;

b) that when PW1 arrived there, it was the Defendant who opened the door for her and PW1 entered the Premises;

c) that apart from PW2 and the Defendant, PW1’s cousin Wei Lin was also inside the premises;

d) After PW1 left the Premises, she was found to be taken to the A & E Department of United Hospital for medical attention;

e) Later PW1 was found to have sustained the injuries as shown in the photographs (Exhibit P2C(8)to(12)).

85. Before she entered the premises, PW1 did not suffer any injuries as shown in the photographs (Exhibit P2C(9) and (10)). This evidence was given by PW1 in chief. As the evidence of PW1 was not challenged by the Defence, that was to say, it was indisputable that the injuries sustained by PW1 must have been caused inside the premises.

86. Mr Allan also challenged the accuracy of the times given by PW2 in her evidence. They were inconsistent with the evidence of PW1 and the CCTV evidence, such as the time of making call to PW1 and the time of PW1’s arrival at the premises. In cross-examination PW2 explained that she did not check the times by her watch on each occasion. Having considered all the evidence before me, I accepted the times that PW1 and PW2 had given in their evidence were purely based on their estimation.

87. On all the evidence before me, I was also satisfied that PW3, PW4 and PW5 were honest and reliable witnesses.

Other relevant issues raised by the Defence

88. Apart from the attack on PW2’s credibility, Mr Allan also made a criticism on the following issues which should have cast a reasonable doubt in this case. 

(a) No blood stain was found on the living room floor or the Defendant’s clothing

89. It was submitted by Mr Allan that PW2 said the attack lasted 5 to 10 minutes with a large amount of bleeding coming from PW1’s head. However, as could been seen from the photographs (Exhibit P2A(4) and (5)), not a drop of blood had been found on the living room floor or on the Defendant’s clothing. He submitted that the evidence of PW2 was unbelievable.

90. I noted the CCTV footage showed that it was about 8:25 am when PW1 and PW2 were seen going inside the lift to the ground floor. PW4 subsequently arrived but he needed to call for assistance at about 9:07 am as he was denied access to the premises. That was to say, the police officers were not be able to enter the premises until the Fire Officer got into the premises by force. PW4 arrested the Defendant at about 10:47 am. It was obvious that all the photo albums submitted by the Prosecution, or perhaps more specifically the photographs (Exhibits P2A (4) and (5)) were only taken by PW5 after PW1 and PW2 had left the premises for a period of time.

91. Having considered all the evidence before me, the fact that the living room floor as shown in the photographs or the Defendant’s clothing was without any blood stain did not cause me any doubt about the credibility of PW2. I did not accept that she had fabricated the case against the Defendant.

92. With regard to the sudden remark made by Mr Polson in court about the contents of the witness statement of Wei Lin, I could see no difficulty in directing myself not to be affected by the remark and I have in fact indicated to the Prosecution and the Defence that such a remark would be ignored by the Court.

(b) Red marks appeared on the doorframe of the kitchen and the wallof the lift lobby

93. I noted that some red marks were seen to be located on the doorframe of the kitchen and the wall of the lift lobby in the photographs (Exhibit P2A(14) to (17)). However I found the samples taken by PW5 on those red marks were not forensically tested. As no forensic evidence was adduced to find out what they were, I found they could be of no assistance to the Prosecution case.

Did the Defendant form the mens rea required?

94. A section 17(a) offence consists of four essential elements:

(1) The defendant had the intent to cause injury to the victim;

(2) The harm the victim suffered was truly grievous bodily harm;

(3) The grievous bodily harm the victim suffered was caused by the defendant; and

(4) The defendant’s act of wounding was unlawful and malicious.

95. A section 17(a) offence requires the prosecution to prove the Defendant unlawfully and maliciously wounded PW1 with intent to do her grievous bodily harm. Grievous bodily harm is given its ordinary meaning and means serious bodily harm. The question was did the Defendant wound PW1 with intent to do this harm to her. To be satisfied the defendant had the requisite intent to cause serious bodily harm to the victim the court should look at all the relevant circumstances and in particular what the defendant did and may have said at the time. The prosecution must prove that the grievous bodily harm was intended. If it was then it must follow that it was malicious.

96. There was no suggestion in this case that the assault was lawful such as in self-defence nor the Defendant was so drunk that he did not form the mens rea required.

97. Despite the fact that there was no suggestion to say the Defendant was so intoxicated that he did not form the necessary mens rea, I still could not overlook the evidence of PW2 that the Defendant had also consumed a considerable amount of alcohol that night. I found there could be no other possibility that the Defendant who was repeatedly kicking on PW1 and had to be forcibly restrained from continuing by PW2 and Wei Lin did not intend to inflict really serious bodily injury on PW1. I found the Defendant also kept shouting at PW1 when he was kicking her. Even if the Defendant had been drinking alcohol before the attack, I was not convinced he was so intoxicated he could not form the required intent.

98. Having carefully considered all the evidence before me, I was sure the defendant had the intent to cause PW1 grievous bodily harm when he had continuously kicked PW1’s body hard, causing her to bleed heavily. I found that PW1 suffered the injuries as described in her two medical reports in Exhibit P3 and P4, which were read into evidence pursuant to s.65B of the Criminal Procedure Ordinance, Cap.221. I found that the injuries listed out in the reports were the injuries caused by the attacks. I found the multiple ribs fracture and pneumothorax coupled with liver contusion and numerous bruises over PW1’s body were really serious bodily harm. Signs of stitches and redness on PW1’s head were also seen on the photographs (Exhibit P2C(8) to (12) and Exhibit P2B(1) to (9)).

99. I have carefully considered everything said by Mr Allan both individually and collectively. Nothing said by Mr Allan caused me to doubt the findings I have made.

100. I was sure the prosecution had established each and every ingredient of the charge beyond reasonable doubt and I convict the Defendant accordingly.