HKSAR v. WONG PUI NAM RYAN AND ANOTHER

DCCC 486/2018

[2019] HKDC 353

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 486 OF 2018

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REASONS FOR VERDICT

1.  The defendants plead not guilty to one joint charge of wounding Ma Cheng Kan with intent to do him grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance[1] (charge 1) and one joint charge of assaulting Ma Pok Man, Kenneth thereby occasioning him actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance (charge 2).

Introduction

2.  Ma Cheng Kan is the grandfather of Ma Pok Man, Kenneth.  The Ma family reside at Rooms 1531 and 1532 on the 15th floor of Lei Yee House in Ap Lei Chau Estate. 

Prosecution case

3.  The prosecution case in summary is that at around 7:45 p.m. on 10 May 2017 the Ma family were having dinner in Room 1531 when they heard the sound of someone banging on the door of Room 1532 and a male saying “Ma Yuk Sang, come out and repay money, don’t hide”.  Ma Yuk Sang is the uncle of Kenneth Ma and used to live with the family but moved out before Kenneth Ma was born.

4.  The grandfather opened the door to see what was happening.  The defendants were standing outside room 1532.  Kenneth Ma turned on the camera on his mobile phone to video record the incident.  The grandfather went out to ask what happened. 

5.  When the defendants realised that Kenneth Ma was video recording they became abusive. Kenneth Ma was pulled out of Room 1531 and assaulted (charge 2).  When the grandfather tried to stop the defendants he was also assaulted (charge 1). 

6.  Both Kenneth Ma and his grandfather fell on the ground.  When the grandfather started bleeding the defendants ran away.  The defendants were arrested later the same evening.

Defence case

7.  The defence case is that when D1 and D2 went to collect a debt they were attacked by the Ma family and injured; no one punched Kenneth Ma or his grandfather and that after the defendants left they reported the attack to the police. 

Evidence

8.  The prosecution called two witnesses Kenneth Ma (PW1) and Ms Ma Mei Ling (PW2), the mother of Kenneth Ma who witnessed what happened.  The grandfather, aged 83, was not called as a witness[2].

9.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[3], including identification of the defendants by Kenneth Ma in an identification parade[4]; photographs[5]; the arrest of the defendants[6]; and medical evidence[7]. I will refer to the admitted evidence as I review the evidence. 

10.  One statement from Dr Yim was read pursuant to section 65B of the Criminal Procedure Ordinance[8].

11.  The defendants elected to remain silent.  No witnesses were called on their behalf.  No adverse inference is drawn against the defendants for remaining silent.  That is their right.  This proves nothing one way or the other.   This does not establish their guilt.   

12.  The defendants rely on the evidence that they went to the Aberdeen Police Station and made a report claiming they were assaulted; on arrest they denied having hit anyone; D1 explained in a record of interview what happened and that they both sustained injuries[9].

13.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have nothing to prove.  I direct myself that I must be sure of the guilt of the defendants on each charge before I can convict, the case of each defendant being considered separately and each charge being considered separately. 

14.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

15.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

Prosecution evidence

The Ma family

16.  Ma Cheng Kan is the grandfather of Ma Pok Man, Kenneth and the father-in-law of Ma Mei Ling, the mother of Kenneth Ma.  The grandfather was born in 1936[10].  Kenneth Ma is aged 24 and is a make-up artist[11]. The Ma family resided at Rooms 1531 and 1532 on the 15th floor of Lei Yee House in Ap Lei Chau.  Kenneth Ma lived in Room 1532 together with his mother and father (Ma Chun Hing) and younger brother (Ma Ho Man).  The grandfather lived together with the grandmother in Room 1531. 

10 May 2017

17.  In summary at around 7:45 p.m. on 10 May 2017 Kenneth Ma, his mother and grandparents were having dinner together in Room 1531 when they heard the sound of banging on the door of Room 1532 and someone saying “Ma Yuk Sang, come out and repay money, don’t hide”.  This was said more than once. 

18.  Ma Yuk Sang is the paternal uncle of Kenneth Ma.  Kenneth Ma said that since his birth his uncle never lived there.

19.  Kenneth Ma immediately reported the matter to the police.

20.  Since the banging went on for quite a long time the grandfather opened the door to see what happened.  Two males were outside.  The mother, who was standing behind her father-in-law, described the two men as fierce and that she was afraid. 

21.  Kenneth Ma turned on the camera on his mobile phone to video record the incident.  Kenneth Ma produced two screen captures taken from the video he recorded[12].  Screen capture one shows one of the males and screen capture two shows both males and the back of his grandfather. 

22.  Admitted in evidence is that Kenneth Ma identified D1 and D2 in an identification parade[13].  Kenneth Ma said that he identified them in the parade because he remembered they were the two debt collectors.  The defendants at the time were aged 28 and 26 respectively[14].

23.  The grandfather went out to ask what happened.  The defendants told the grandfather that they were looking for Ma Yuk Sang to collect a debt.  The grandfather told them Ma Yuk Sang had not lived there for a long, long time and asked them to leave.

24.  When the defendants realised that Kenneth Ma was video recording they asked him what he was doing and dashed forward to grab his phone.  In answer to the court Kenneth Ma said only one of the defendants dashed forward to grab his phone[15].

25.  Since the grandfather was standing in front of Kenneth Ma he blocked their way.  The defendants scolded Kenneth Ma with abusive language and also used a pile of debt collection papers they were holding in their hands to hit him on his head.

26.  Although the grandfather was blocking their way the defendants caught hold of Kenneth Ma and grabbed him out of the room.  Very quickly they struck Kenneth Ma once on his eye.  Kenneth Ma right away felt dizzy and was hit again.

27.  At the end of examination-in-chief when Mr Tracy asked whether throughout the confrontation he remained on his feet Kenneth Ma explained that after he was grabbed out of the room he fell onto the ground and was pulled once causing the injuries on his leg. In answer to the court Kenneth Ma said he fell to the ground as a result of being punched when he was grabbed out of the room[16].

28.  After about ten seconds Kenneth Ma opened his eyes and saw his grandfather trying to stop them.  The mother also testified that she saw her father-in-law trying to stop the defendants pulling her son.  

29.  Kenneth Ma saw one of the defendants use his fists to hit his grandfather two to three times on his right eye and nose.  The male who hit Kenneth Ma, causing him to be dizzy, moved over to the side of his grandfather to help in hitting his grandfather. 

30.  Kenneth Ma stood up and grabbed hold of the arms of one of the defendants.   At this stage Kenneth Ma saw his mother come out to stop the defendants.  In answer to the court Kenneth Ma said that the male who moved over to the side of his grandfather was stopped by his mother before he could hit his grandfather[17].

31.  The mother testified that one of the men used abusive language telling her son to delete the video.  When her son did not delete the video the man used the debt collection papers to hit her son on the head and forcefully grabbed him out of room 1531. 

32.  The mother saw her father-in-law trying to stop the two males pulling her son. When describing the situation as very noisy and very chaotic the mother said “then, don’t know how, my father-in-law and also my son were caused to be on the floor by them”. 

33.  Asked by Mr Tracy if she saw how the two men caused her father-in-law and her son to be on the floor, the mother replied that she saw them using fists, one hitting her father-in-law and one hitting her son.

34.  The mother was very afraid and could not tell how many times her son was hit or how many times her father-in-law was hit but saw that his eye, nose and mouth were bleeding.  The mother told them to stop hitting.

35.  The mother further testified that after her father-in-law had fallen on the ground the two men went to hit her son.  The mother went forward to pull them away when one of them kicked her on the left side of her waist.

36.  Kenneth Ma described witnessing his grandfather being hit byat least three blows, one of which caused his grandfather to fall onto the ground.  The grandfather was not hit again after falling onto the ground.  The grandfather was bleeding at which time the defendants ran away.  Kenneth Ma’s mother helped the grandfather up. 

37.  Kenneth Ma used his mobile phone and called 999.  The police arrived later.  Admitted in evidence is that WDPC 56382 found on the floor of the corridor of the 15th floor a round gold pendant; a silvery and golden Buddha amulet; a gold necklace, three debt collection papers; a white Nokia phone and a battery of a LG mobile phone[18].

38.  During the assault Kenneth Ma saw the debt collection papers (photograph 14) fall onto the ground and also saw that a mobile phone (photograph 16) and a gold necklace (photograph 18) had fallen off.Kenneth Ma said the gold pendant seen in photograph 20 should have been attached to the necklace.  Kenneth Ma did not see how the other items fell to the ground. 

39.  In answer to the court Kenneth Ma said the mobile phone should have dropped to the ground during the stage he was pushing and pulling the male to stop the male walking over to his grandfather and said that the mobile phone fell out of the trouser pocket of the male[19].

40.  Kenneth Ma and his grandfather were sent to Queen Mary hospital.  Admitted in evidence are the medical findings of the doctors and photographs of the injuries[20].  Kenneth Ma said the photographs show the injuries sustained in the assault. 

Discussion

41.  I have carefully considered all the evidence and the oral and written submissions of Mr Tracy and Mr Davies[21].

42.  The defendants rely on the admitted evidence that they went to the Aberdeen Police Station and made a report claiming they were assaulted and that on arrest they denied having hit anyone.

Police report

43.  Admitted in evidence is that sometime between 19:53 hours and 21:10 hours on 10 May 2017 the defendants went to the Aberdeen Police Station and made a report claiming to have been assaulted in the corridor near rooms 1531 and 1532 of Lei Yee House [22].

Arrest/records of Interview

D1 (exhibit P2)

44.  Admitted in evidence is that under caution D1 said, “I did not beat anyone.  I only went to the flat to look for the person surnamed Ma to ask him to contact the finance staff”[23].

45.  Admitted in evidence is a record of interview[24]. In summary D1 told the police that:

Answer 4 - together with D2 he went to collect a debt from Ma Yuk Sang on behalf of Prosperous Financial Company; after knocking on the door of Room 1532 nobody answered; somebody aged 22 walked out of Room 1531 and started video-recording with his mobile phone; he asked the male to stop video-recording; the male stopped and at the same time a male, aged around 80, also walked out of Room 1531;

Answer 5 - he told the two males that he was looking for Ma Yuk Sang and asked what the matter had to do with them; the male aged 22 said they were also surnamed Ma and that Ma Yuk Sang did not live there any longer; the male aged 80 then grabbed the copy of the debt contract from his hand; he argued with the two males and grabbed the contract; D2 helped him get the contract; they pushed and shoved each other for two to three minutes during which time his elbow bumped someone and then he fled together with D2;

Answer 6 - when the 80-year old male grabbed the contract he wanted to snatch back the contract therefore he pushed the male once; the 22-year old male then grabbed him tightly therefore he raised his elbow and moved from side to side; and he felt he bumped against someone but was not sure who he bumped against;

Answer 8 – after sitting in a pavilion for a while he discovered he had dropped some property; D2 also discovered he had dropped some property; and together with D2 he took a taxi to Aberdeen police station to make a report;

Answer 9 – he did not directly punch anybody, only his elbow accidentally bumped against someone when pushing and shoving;

Answer 10 – D2 only tried to separate him and did not hit anyone and both he and D2 were scratched and injured accidentally during the pushing and shoving; and

Answer 11 – he identified the mobile phone, battery and three dunning notes as property belonging to him.

D2 (exhibit P10)

46.  Admitted in evidence is that under caution D2 said, “I only pursued debt payment.  They struck first. I did not make a single strike”[25].

47.  Admitted in evidence is a record of interview[26]. In response to the questions asked by DPC 1557 about what happened D2 had nothing to say.  D2 only answered one question, question 14 in which he identified as his property one gold and silver Buddha pendant; one gold medal and one gold necklace found at the scene[27].

48.  Mr Davies submits that the defendants’ version of events given to the police is wholly believable, which version is supported by their attendance at the police station and that they both sustained injuries.  Mr Davies submits that it would be unreasonable for any person to go to a police station if that person had carried out the assault alleged[28].

49.  I have carefully considered the denials made by both defendants on arrest and the explanations given in the record of interview by D1 about what happened in accordance with the principles in R v Sharp[29].

50.  I have no hesitation in rejecting the denials made on arrest and D1’s explanations in the record of interview about what happened, which denials and explanations were not made on oath, have not been repeated on oath and have not been tested by cross-examination[30]. 

51.  I reject that the defendants did not hit anyone and that only D1’s elbow accidentally bumped against someone. 

52.  Admitted in evidence are the medical findings of the grandfather, Kenneth Ma, D1 and D2[31].  In reaching my verdict I have not relied on the medical findings relating to the grandfather’s attendance at the United Christian Hospital on 11 June 2017 when a CT scan of the brain revealed a Subdural Intracranial haematoma.  Dr Yim was of the opinion that it was possible such haematoma was caused by an external force exerted on the head but could not rule out the possibility of natural causes[32].  I have relied only on the medical findings on the grandfather’s admission to Queen Mary Hospital on 10 May 2017[33].

53.  The medical findings together with the photographs clearly show that both Kenneth Ma and his grandfather were injured on their head and face.  Kenneth Ma’s injuries include abrasions over the right side of his forehead as shown in photographs 6, 33 & 34 and on the right side of his lower lip as shown in photographs 5 & 32.  These injuries are entirely consistent with Kenneth Ma being punched on the right side of his forehead and on his mouth.  I reject these injuries were caused accidentally.

54.  The grandfather’s injuries include multiple lacerations over his right upper eyelid and the right cheek as shown in photographs 10, 12 & 37 and fracture of the right infraorbital floor with involvement of infraorbital foramen and the right lateral maxillary wall, which are fractures below the right eye and to the right of the nose.  These injuries are also entirely consistent with the grandfather being punched on the right side of his face.  I reject these injuries were caused accidentally.

55.  Mr Davies submits that the prosecution witnesses were unable to explain why both defendants sustained injuries[34].  The injuries of the defendants are largely scratches on the neck and the face.  These injuries are in my view inconsistent with the defendants being attacked by the Ma family and consistent with injuries sustained when Kenneth Ma and his mother tried to stop the attack. 

56.  I remind myself that the rejection of the defence evidence is not determinative of the issues in the case.  The defendants have to prove nothing.  The burden is on the prosecution to prove the guilt of the defendants beyond reasonable doubt. 

57.  I am satisfied so I am sure Kenneth Ma and his mother are honest witnesses who tried their best to recall what happened in May 2017, over twenty-one months ago. Unless otherwise stated I accept the evidence of Kenneth Ma and his mother.

Joint enterprise

58.  Mr Davies submits that the assaults on Kenneth Ma and his grandfather were separate assaults and cannot be described as part of a joint enterprise and that it is therefore necessary to identify which defendant was involved in which assault[35]. 

59.  Mr Davies submits that the witnesses were unable to positively identify which particular defendant committed which act and refers to the evidence of Kenneth Ma and his mother describing a chaotic situation in which they variously said “one of the two”, “the other person”, “the other one” and “one of the persons coming for collection of debt”[36].   

60.  Mr Davies then specifically recites examples in the evidence of Kenneth Ma and his mother where they are unable to identify which of the males committed the acts[37].  

61.  For example  Mr Davies relies on the evidence of Kenneth Ma that when asked whether both of the assailants struck him he answered “I don’t quite recall exactly here” [38]. 

62.  This quote is only part of the answer given by Kenneth Ma.  The full answer was, “I don’t quite recall exactly here but in any event they hit”. The evidence of Kenneth Ma is to be looked at as a whole.  I will therefore set out in more detail Kenneth Ma’s evidence relating to the attack.

Examination-in-chief

63.  Starting from the stage where the defendants realised that Kenneth Ma was video recording them the evidence was as follows:

Q. So what happened in connection with that?

A. Well they had a big reaction and said what are you doing?

Q. And what happened then?

A. They wanted to dash forward to grab my phone but since my grandfather was standing in front of me so he blocked them.

Q. What happened next?

A. They scolded me with abusive languages and they also used the piles of papers that they were holding in their hands, those debt collection papers, to hit on my head.

Q. And what followed?

A. My grandfather was blocking them but they caught me and grabbed me out.

Q. Then what happened?

A. Very quickly they strike me once on my eye and I felt dizzy right away.

Q. You say that you were struck once in the eye. Apart from your grandfather there were two persons present. Which of them struck you, can you say?

A. Can’t recall because it was quite a chaotic situation at the time.

Q. Did one of them strike you once or both of them strike you once?

A. Both hit me at least once, so they hit me more than once.

Court Q. You are being asked at this stage, the first time you are hit, you say very quickly they strike me once on my eye and I felt dizzy right away, at that stage had you been hit by one or both of them?

A. Struck me once and I felt dizziness and during that period I was hit again.

Q. You say they struck you once. Do you mean by that one of the two struck you once or each of the two struck you once?

A. I don’t quite recall exactly here but in any event they hit.

Q. Now you have told us you felt dizzy. How long did that dizziness last?

A. 10 odd seconds. Once I opened my eyes I saw my grandfather trying to stop them.

64.  Kenneth Ma’s evidence then continues to describe the attack on his grandfather which I have summarised earlier[39]. Apart from identifying the two males on the still photographs taken from the video recording (exhibit P17) and identifying the defendants in an identification parade as the two debt collectors, Kenneth Ma was not asked to say which defendant did which act. 

Cross-examination

65.  In cross-examination Kenneth Ma said he did not know which man hit him in the eye; did not know who hit him next and did not know which man hit his grandfather. When asked if it was fair to say he cannot say which man hit his grandfather Kenneth Ma replied: “Well because at that time they were wearing similar clothing, the only difference was that one was wearing a cap and the other not, so it is a chaotic situation”.  Kenneth Ma also said he could not remember which one he grabbed hold of.

Court Questions

66.  After cross-examination I sought to clarify whether one or both defendants did the acts described by Kenneth Ma.  The evidence was as follows:

Q. In your evidence this morning you told the court that “they wanted to dash forward to grab my phone”. This is when you say you were video recording. Was it one of them wanted to dash forward to grab your phone or both of them?

A. One of them wanted to dash forward and grab the phone but both of them did ask why I took out the phone to have a video recording.

Q. And you said, following through, “they scolded me with abusive language”. One scold you with abusive language or both scold you with abusive language?

A. Both of them.

Q. And you then go on to say “they used a pile of papers to hit me on the head”. One or both of them used a pile of papers to hit you on the head?

A. The one without wearing a cap hit me with the pile of papers.

Q. “They caught me and grabbed me out”. One or both caught you and grabbed you out?

A. The one wearing a cap caught me and grabbed me out.

67.  This was the first time in evidence that Kenneth Ma identified who did what by reference to whether that person was wearing a cap.  I therefore asked Kenneth Ma if he was able to say who hit his grandfather and who hit him first by reference to whether that person was wearing a cap.  Kenneth Ma said that the man wearing the cap hit him first and the man without a cap hit his grandfather. 

68.  In further cross-examination arising from the court questions Kenneth Ma agreed that in his witness statement made on 10 May he told the police that both men hit him with the debt collection papers and that he did not see which one hit him or his grandfather. 

69.  Kenneth Ma confirmed that in his witness statement he described one man in a cap but did not say this man hit him.  Kenneth Ma explained that he had just been assaulted and was confused so he was unable to tell the police in such a clear manner.  Kenneth Ma also confirmed that he did not tell the police in his witness statement made the next day that the man in the cap hit him.  Kenneth Ma explained that at that point he still had not remembered[40].   

70.  Mr Davies submits that there is no evidence whether D1 or D2 is the person seen wearing a cap on the still photographs taken from the video recording (exhibit P17)[41].Mr Davies however accepts that the court may compare the photographs with the appearance of the defendants in court[42].  Still photograph 2 has a very clear view of the face.  Directing myself in accordance with the guidelines in R v Turnbull[43], I am satisfied the person wearing the cap is D2. 

71.  Mr Davies submits that as Kenneth Ma did not mention that the one who assaulted him was wearing a cap until almost two years later his recollection of events may not be as accurate as purported and that it is dangerous for the court to rely on this evidence[44].

72.  I am satisfied Kenneth Ma having told the police he did not see which one hit him or his grandfather and in cross-examination agreed he did not know which man hit him first, who hit him next and did not know which man hit his grandfather, it would be unsafe to rely on his evidence in answer to the court that the one wearing the cap hit him first and the one not wearing a cap hit his grandfather. 

73.  This does not however cause me to doubt Kenneth Ma’s evidence of how he was grabbed out of his home and attacked and that his grandfather was also attacked. 

74.  The evidence of Kenneth Ma is supported by the medical evidence.  As discussed earlier the injuries sustained by Kenneth Ma and his grandfather are entirely consistent with Kenneth Ma and his grandfather being punched on the head and face[45].

75.  Mr Davies submits that the evidence of Kenneth Ma and his mother is unreliable because neither could explain the injuries sustained by the defendants[46].  As discussed earlier the injuries sustained by the defendants are in my view inconsistent with the defendants being attacked by the Ma family and consistent with injuries sustained when Kenneth Ma and his mother tried to stop the attack[47]. 

76.  The fact that Kenneth Ma and his mother cannot explain when and how the defendants sustained these injuries does not cause me to doubt their evidence that the defendants attacked Kenneth Ma and his grandfather. 

77.  The evidence of Kenneth Ma that he was hit by both men; that his grandfather tried to stop them hitting him and that one of the men then hit his grandfather is also supported by the evidence of Kenneth Ma’s mother who witnessed her father-in-law trying to stop the two men pulling her son and that one used fists to hit her son and one used fists to hit her father-in-law causing them to both fall on the ground[48].

78.  Mr Davies submits that Kenneth Ma and his mother were not honest and reliable witnesses, in particular that the evidence of the mother contradicted the evidence of Kenneth Ma[49].

79.  Kenneth Ma testified that after he was hit he saw one of the men hit his grandfather causing the grandfather to fall on the ground whereas the mother testified that the two men hit her son after the grandfather had fallen on the ground[50]. 

80.  Both Kenneth Ma and his mother said the situation was chaotic.  The mother repeatedly said she was frightened.  In the circumstances it is only to be expected that there would be discrepancies between witnesses about exactly what happened and the sequence of events.   This submission does not cause me to doubt the evidence that the defendants attacked Kenneth Ma and his grandfather. 

81.  Mr Davies also submits that the evidence of the mother that she was kicked once[51] was implausible and a clear indication that she was not being honest because there was no record of her making any previous complaint of assault[52].

82.  In cross-examination Mr Davies asked the mother if she had any physical contact with anyone, the mother replied as follows:

A. At the time when my son was hit I grab hold of their clothes and pulled them away.

Q. Why did not you tell the police that?

A. I was still in a state of panic at that time.

Q. When make statement five days later why not tell the police?

A. I could not sleep a few days. Well, all in all I just recalled that it was really chaotic.

Q. The truth is you join in the fight and scratch the neck of one of them?

A. It was very chaotic. Not clear about it.

Q. You never mentioned in your statement that you were kicked?

A. When the police asked me questions I was very panic, so I couldn’t remember.

Q. Why can you remember nearly two years later?

A. When you ask me in the beginning I start to have memory back.

83.  I accept the evidence of the mother that she did not tell everything to the police because she was in a state of panic and could not sleep for a few days. The mother described the defendants as fierce and that she was frightened.  It is not surprising that she was frightened on seeing her 80-year-old father-in-law being hit and knocked to the ground. 

84.  It is also not surprising the mother could not sleep for a few days.  The father-in-law was in hospital for six nights[53]. The photographs of the father-in-law in hospital showing the injuries to his face must have left the mother and all the family very worried[54].   

85.  The fact that the mother did not tell the police that at the time when her son was hit she grabbed hold of their clothes and pulled them away and that she was kicked once does not cause me to doubt her evidence that she saw the two men hit her son and her father-in-law. 

Necklace

86.  I have also carefully considered the evidence of Kenneth Ma as to how the necklace came to be left behind on the corridor[55]. In examination-in-chief Kenneth Ma said that he saw the necklace fall on the ground[56].

87.  In cross-examination when asked how the necklace came to land on the ground Kenneth Ma replied that it should be during the pushing and shoving that the necklace fell off and that the necklace just fell by itself.  When Mr Davies put that he pulled off the necklace Kenneth Ma replied that he could not recall this.  In answer to the court Kenneth Ma said he could not recall whether he had pulled the necklace off and whether he had been in touch with the necklace. 

88.  Mr Davies then referred Kenneth Ma to his witness statement made on 11 May 2017 at 16:05 hours.  Kenneth Ma said he had read his witness statement before coming into court. 

89.  Mr Davies asked Kenneth Ma if he remembered whether he said to the police, “I held him and we had a scuffle during which time I pulled off his necklace”.  Kenneth Ma replied yes and said he now remembered that he did pull the necklace off his neck. 

90.  When asked by the court what stage he pulled off the necklace Kenneth Ma replied during the pushing and pulling.  Kenneth Ma explained that when his mother came out to stop them he stood up and moved forward to stop them.  He then  grabbed hold of one of them and during the pushing and pulling should be when he pulled the necklace off his neck[57].

91.  The fact that Kenneth Ma only remembered pulling off the necklace after being referred to his witness statement does not cause me to doubt his evidence about what happened.

92.  Taking into account that both defendants went to collect a debt; both used abusive language when seeing Kenneth Ma video recording them; one hit Kenneth Ma with debt collection papers; one grabbed Kenneth Ma out of the room; both men hit Kenneth Ma at least once and that the grandfather was hit by one of them when he tried to stop them hitting Kenneth Ma and the other one moved over to help hitting the grandfather but was stopped before he could hit him, I am satisfied so I am sure the only inference to draw is that the defendants were party to a joint enterprise to assault Kenneth Ma and the grandfather when the grandfather tried to stop them hitting Kenneth Ma.  It is therefore not necessary for me to determine which defendant did which act. 

Verdict

Charge 1 - wounding with intent to do grievous bodily harm

Wound

93.  As noted earlier when the grandfather attended the United Christian Hospital on 11 June 2017 a CT scan of the brain revealed a Subdural Intracranial haematoma[58].  Dr Yim was of the opinion that it was possible such haematoma was caused by an external force exerted on the head but could not rule out the possibility of natural causes[59]. 

94.  Mr Davies submits that although the grandfather did sustain injuries, they are not of such a serious nature to justify a charge under section 17 and do not amount to grievous bodily harm[60].

95.  I have no hesitation in rejecting this submission.  The defendants are charged with wounding Ma Cheng Kan with intent to do him grievous bodily harm and not with causing Ma Cheng Kan grievous bodily harm.  Proof of grievous bodily harm is not an element of the offence. 

96.  In oral submissions Mr Davies accepted this to be correct and that the prosecution need only prove that Ma Cheng Kan was wounded. 

97.  I am satisfied so I am sure on the admitted evidence that the grandfather sustained multiple lacerations over his right upper eyelid and the right cheek which were sutured under local anaesthetic, the grandfather was wounded[61].

98.  I would add that in my view multiple lacerations over the right upper eyelid and the right cheek and fracture of the right infraorbital floor with involvement of infraorbital foramen and the right lateral maxillary wall, amount to grievous bodily harm.

With intent to do grievous bodily harm

99.  In oral submissions Mr Davies submitted that what he intended to say was that this being a spontaneous attack the court cannot be satisfied that the defendants intended to cause the grandfather grievous bodily harm.

100.  On the evidence I accept this was a spontaneous attack when the defendants saw Kenneth Ma videotaping them.  The grandfather was hit when he tried to stop the defendants.  In the circumstances I give the benefit of the doubt to the defendants that their intention was to cause the grandfather really serious harm. 

101.  I am satisfied so I am sure for the reasons already given the defendants were party to a joint enterprise to assault the grandfather, intending to harm the grandfather.

102.  I find the defendants not guilty of wounding Ma Cheng Kan with intent to do him grievous bodily harm and guilty of unlawfully and maliciously wounding Ma Cheng Kan, contrary to section 19 of the Offences against the Person Ordinance. 

Charge 2 - assault occasioning actual bodily harm

103.  I am satisfied so I am sure on the admitted evidence that Kenneth Ma sustained abrasions over the right side of his forehead and on the right side of his lower lip, Kenneth Ma occasioned actual bodily harm. 

104.  I am satisfied so I am sure for the reasons already given the defendants were party to a joint enterprise to assault Kenneth Ma, intending to causing him unlawful personal violence.

105.  I find the defendants guilty of assaulting Ma Pok Man, Kenneth thereby occasioning him actual bodily harm,

106.  In reaching my verdict I have carefully considered everything said on behalf of the defendants by Mr Davies both individually and collectively.  Nothing said by Mr Davies causes me to doubt the findings I have made.

107.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of each charge beyond reasonable doubt, each charge considered separately and the case of each defendant separately.