HKSAR v. GURUNG RAM KRISHNA

HCMA 743/2015

MAGISTRACY APPEAL NO 743 OF 2015

(ON APPEAL FROM KTCC 1104 OF 2015)

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REASONS FOR JUDGMENT
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1.  The appellant appealed against his conviction and sentence. At the conclusion of the hearing I dismissed both appeals. These are my reasons for doing so.

2.  The appellant was convicted after trial of an offence of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap 212 by Deputy Magistrate, Mr Edward Wong sitting at Kwun Tong Magistrates’ Courts on 20 November 2015.  He was sentenced to 7 months’ imprisonment.

Background facts

3.  It was not in dispute that on a fine sunny day at about 9:30 a.m. on 13 September 2014, a quarrel, which later led to a fight, arose between a group of 8-9 gardening workers and a group of about 20 scaffolding workers outside a construction site at Lohas Park, Tseung Kwan O.  Itongi Koli the victim in the charge and Lui Man Ho his colleague (PW1 and PW2 respectively at the trial) were gardening workers and the appellant was a scaffolding worker. 

4.  During the fight, punches and kicks were exchanged and a number of scaffolding workers used bamboo knives in the assault against the gardening workers. 

5.  In the course of the fight, Itongi was hit by a number of people and at one point his right thigh and back was injured.  A report was made to the police.  Upon arrival at the construction site some of the group of scaffolding workers and gardeners, including Itongi, Lui and the appellant were brought back to the police station and detained in the police cells.

6.  Prior to being taken to the police station Itongi went to the hospital for treatment.  The injuries as revealed in the medical report (P2) sustained by him was a 1.5 cm V-shaped laceration at left upper back, with 1-2 mm depth and gapping but there was no active bleeding and no sign of infection.  The laceration was sutured. 

Prosecution case

7.  It was the prosecution case that Itongi was stabbed in the back with a knife by the appellant.  Neither Itongi nor Lui had seen the appellant stab Itongi however both identified the appellant as the only one person standing close to the appellant and a person who was holding a knife instantly after Itongi was stabbed. 

Defence case

8.  It was the defence case that the appellant did not take part in the fight and did not stab Itongi with the knife.  He was working at the construction site as one of the scaffolding workers however whilst working he was told that there was a fight and went to see what was happening.  By the time he arrived at the scene the fight had started and some people had run away.  He was at the scene merely as an innocent on-looker.  He had a knife in his possession when he was arrested as it was required for his work.

Issue at trial

9.  The main issue at trial was one of the reliability and correctness of the identification of the appellant by Itongi and Lui as the one who was holding a knife immediately after Itongi felt pain on his back.  The other issue was whether there was an irresistible inference that it was the appellant who had stabbed Itongi causing the laceration on his back. 

Prosecution evidence

10.  Whilst Itongi was pulling one his colleagues away from the fight, he suddenly felt pain at his back and shrieked.  He instantly turned around and saw the appellant holding a knife at a distance of about 1 metre from him on his left rear side.  The appellant was the only person behind him.  Itongi kept looking at him for 30 seconds until that person left in the direction of the construction site.  During those 30 seconds Itongi yelled at the appellant using abusive language saying “do you have to use a knife?”

11.  About 10-20 minutes after Itongi left, when the police arrived at the construction site, Itongi identified the appellant from a group of many people.  The appellant was one of two South Eastern Asians there.

12.  Later on the same day at the police station, Itongi pointed the appellant out to police officers on two separate occasions when the latter was in a group at the cell adjacent to Itongi’s cell.  At that time the appellant was the only Nepalese in the group detained in the cell.  Itongi again identified the appellant at the trial, in court.

13.  Lui testified and gave an account which led to the fight.  He said that immediately before Itongi was attacked with a knife, Lui was at the material time standing on Itongi’s left rear side of about 2-3 person’s length and he could see Itongi’s back.  As soon as he heard a cry from Itongi, he saw the appellant holding a bamboo knife behind Itongi at a distance of less than one person’s length and at that time there was no other person there. 

14.  Upon the arrival of the police at the construction site, Lui identified persons out of the group of attackers, one of them was the appellant.  At the police station shortly after, he identified the appellant as Itongi’s assailant who had used the knife.  He again identified the appellant at trial. 

15.  Lui stated that the knife (P5) shown to him and produced in court was not the one used to attack Itongi.  He said that the one used to attack Itongi was a curved bamboo knife.

Admitted facts

16.  A set of Admitted Facts (P1) was submitted to Court.  The following amongst others were agreed:

(i) At about 1020 hours on 13 September 2014, Itongi pointed out the appellant to a police officer;

(ii) A 17-cm long curved bamboo knife (P5) was seized from a bag hung on the appellant’s belt on his waist;

(iii) Upon analysis of the knife (P5), no presence of blood or human DNA was found.

Grounds of appeal

17.  The appellant’s grounds of appeal were essentially a repeat of his evidence he gave at the trial.  In essence, those were that he was an innocent on-looker, he did not stab Itongi and he was wrongly identified.

Findings by the magistrate

18.  In his Statement of Findings the magistrate comprehensively set out the identification evidence of both Itongi and Lui.  In evaluating the identification evidence he said[1] :-

“30. Defence[2] argued that the identification evidence of Pw1 and Pw2 were incredible or unreliable because they had only seen for respectively 30 seconds and 5 seconds the person who held the knife before that person left. I did not consider that these raised any reasonable doubt in their evidence. This was because, apart from looking at that person, Pw1 also talked to him by asking him whether he had to use knife. Besides, PWs’ respective descriptions about that person were consistent with each other and matched D10[3]. Further, both Pws identified D10 as that person and so their evidence supported each other.”

Discussion

19.  The magistrate was well aware that the issue at trial was the correctness of the visual identification.  The magistrate examined closely the circumstances in which the identification of the appellant was made by Itongi and Lui.  The magistrate took into account the quality of the identification.  He considered the length of observation of Itongi and Lui, the distance the appellant was from each of them at the material time, the lighting at the scene and the time lapse between the original observation and that both Itongi and Lui later identified the appellant to the police as the assailant with the knife.  The magistrate specifically took into account the fact that Itongi spoke to the appellant during those 30 seconds. 

Conclusion

20.  The identification evidence given by Itongi, supported by Lui, was not made under difficult conditions.  The magistrate reached a conclusion based on the proper evaluation of the case, and had shown himself to be properly mindful of the Turnbull considerations.  He was correct in finding that although neither witness saw how Itongi’s back was injured the only irresistible inference was that he was stabbed with a knife by the appellant, as the appellant was the only person standing behind Itongi and was at that time the only one holding a knife immediately after Itongi felt pain on his back. 

21.  In the circumstances the conviction is therefore not unsafe and unsatisfactory.  The appeal against conviction is dismissed.

Remarks

22.  At the appeal hearing on 13 January 2016 matters arose which led to an application for an adjournment by the respondent for obtaining the full transcripts of the hearing and for the respondent to make enquiries regarding matters, inter alia, the knife (Exhibit P5) produced in the trial by the admitted facts.

23.  Prior to the hearing on 13 January 2016, when Counsel Ms Catherine Ko SADPP (Ag) for the respondent examined the knife (P5), it transpired that P5 produced in the trial could not have been the one referred to in the Admitted Facts because there was a marked difference between the length of the exhibit and that described in the Admitted Facts.  Enquiries made by Ms Ko with the relevant parties concerned later revealed that the incorrect knife was exhibited and had been produced in the course of the trial.  In the Admitted facts it referred to a 17 cm bamboo knife whilst the knife P5 was a 38 cm knife.

24.  Having given careful consideration to the production of the wrong knife at trial I was satisfied that despite the fundamental error no prejudice was caused to the appellant.

(i) it was not in dispute that the appellant had a knife in a bag hung on his waist when he was located and arrested by the police;

(ii) except that a different knife was produced, the correctness of what was stated in the Admitted Facts, namely, that the appellant had a knife, and that, no blood or DNA could be detected on the knife upon analysis by a Government Chemist is not affected; and

(ii) the magistrate did not take into account the 38 cm knife produced, nor the 17 cm knife referred to in the Admitted Facts in convicting the Appellant. He said:[4]

“According to the Admitted Facts, a bamboo knife (P5) was seized from D10, and no blood or human DNA was found from it. But Pw2 said that P5 was not the knife related to the attack on Pw1. Thus P5 was irrelevant to the Charge.”

25.  It is of utmost importance that counsel for the prosecution and defence ascertain the correctness of an exhibit and act with prudence before it is produced into evidence.  A fundamental error like the one in this case should not have occurred.  In the present case, if the knife (P5) was shown to the appellant by his counsel before it was the subject of an admitted fact, the error should have come to light.  Counsels’ duty and responsibility to both the court and the accused is to ensure that the correct exhibit is produced. 

Appeal against sentence

26.  The appellant appeals against the sentence of seven months’ imprisonment.  His ground of appeal is that his sentence is too severe.  

27.  There is no tariff for offences of this type, as circumstances vary from case to case and there are very few cases where the facts are identical.  Each case must be decided on its own facts see HKSAR v MA Man-ho CACC 252/1999.

28.  The magistrate took into account the mitigation advanced by the appellant’s counsel.  The appellant has four previous convictions none of which are similar.  One is for possession of an offensive weapon to which he was sentenced to two months’ imprisonment. 

29.  When sentencing the appellant the magistrate said:

“This was a serious case of Wounding because during a group fight D10 used a knife to stab Pw1’s upper back resulting in 1.5 cm laceration with 1-2mm depth and gapping which required suture with 2 stitches and 7 days’ sick leave. Therefore a term of imprisonment was called for.”

30.  Although the appellant had the knife upon his person for legitimate purposes of cutting the netting of the scaffolding when he was working shortly before the fight, the magistrate rightly observed that the facts of this case warranted an immediate term of imprisonment. 

31.  The sentence of seven months’ imprisonment imposed upon the appellant is neither manifestly excessive nor wrong in principle.  The appeal against sentence is dismissed.