HKSAR v. BROWN JAMES MCCREADIE

DCCC 471/2020

[2021] HKDC 169

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 471 OF 2020

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REASONS FOR VERDICT

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1.  The defendant faced 3 charges, namely, 1) Causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212, 2) Indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200 and 3) Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  The defendant pleaded not guilty to all these charges.  At the outset of the trial, however, the Defence made it clear that the defendant is guilty of “section 19 Wounding or inflicting grievous bodily harm” under Cap 212 and indicated such plea on record. 

3.  It is therefore clear that there is no dispute in this case that the defendant had assaulted the victim and there is no issue of identity.  The CCTV (Exhibit P1) also shows the assault and the acts of the defendant regarding Charge 2 and Charge 3. 

4.  The Prosecution called 5 witnesses and also relied on a set of Admitted Facts (Exh P7), two medical reports concerning the injuries of the victim (Exh P3 and P4), a set of photos (Exh P5) and a video-recorded cautioned interview (Exh.P6 (the “VRI”) with transcripts and translations Exh.P6A-C).

5.  Of some significance is that, in the Admitted Facts, it was admitted by the parties that “examination of the CCTV footage revealed the D had not taken any action whatsoever to avoid being identified: he had not made any attempt to avoid cameras, did nothing to change his clothes did not avail himself of a hat or other means of defeating the cameras”[1].

6.  It was further admitted that upon being investigated, the defendant told the arresting officer DPC24260 (PW2) about the case which supports his version in the VRI and certain parts of his testimony in court.  The defendant also elected to give evidence and I will come to that in the below.

The Prosecution Case

7.  The victim has been referred to as “X” in the trial. 

8.  PW2 was the arresting officer and DPC5052 (PW5) and SGT1072 (PW6) were the officers who handled the VRI with the assistance of a translator.  Dr Chan K T Jenny (PW9) was called to testify on her medical report (Exh P4). 

Madam X (PW1)

9.  Madam X was a female sex worker, and she offered her service at a room where she lived.  She met the defendant on the ground level near Building A[2] at the material time and the defendant approached her by making hand gesture to ask if she could offer him sex service.  She said people there would know that she was a sex worker because of how she and her fellows dressed themselves. 

10.  Since X spoke Putonghua and did not understand English other than “Ok”, “Yes” and “No”, she communicated with the defendant by hand gesture in return. She indicated to the defendant that the service fee would be $500, and the defendant replied “OK”.  Then X took the defendant to her room upstairs.  They took the lift and passed the public corridor on the 11^th Floor.  There was a gate for Flat 8 and after that there was a private corridor leading to various rooms, one of which was Room 3A. 

11.  X testified that after she opened the door to Room 3A, the defendant went into the washroom inside.  When he came out, X took out her right hand and rubbed her fingers with the hand open to indicate to the defendant that she wanted the money first. The defendant replied “No! No!”.  X then said in Putonghua “If you do not give money first, you go”.  Then she turned to the doorway to open the door of Room 3A[3] and asked the defendant to leave.  They passed a corridor[4] and proceeded to the public corridor on the 11^th Floor.  There was nothing eventful until they had passed the gate of Flat 8.  What happened after that was all captured by the CCTV mentioned above (Exh P1) to which I shall refer.

12.  In the words of X, what happened outside the gate was this:-

(a) she received text messages when she got to the public corridor. Whilst she was looking at the messages, the defendant gave her an utterance in English that she did not understand. She replied “I do not understand” in Putonghua.

(b) All out of a sudden, the defendant punched her at her left eye corner near the temple area. This punch had thrown away in a distance her mobile phone on the floor which was in her hand at that time.

(c) This punch had caused her dizziness, but she still managed to walk to retrieve her phone. When she picked up her phone, she said to the defendant “why did you hit me” in Putonghua.

(d) She then tried to dial 999 with her phone and all she could remember is that when she was holding the phone by her ear with the view to making the report to the Police, she had lost consciousness suddenly.

(e) Since then, she was lying on the floor of the corridor until her neighbour found her and woke her up at a later stage.

13.  When she regained her consciousness, she was told by her neighbour that her eye was injured, and her ear was bleeding.  X felt dizzy and wanted to vomit.  She then asked about her handbag and shortly afterwards, she found that her money had gone.  She recalled that she had $400 cash earlier on and because she had 3 customers that day, she had received $600 in total and therefore there should have been about $1,000 cash in her handbag before the assault.

14.  A report to the Police was then made and she was sent to Kwong Wah Hospital on the same day.  Her injuries can be found in the Medical Reports (Exhibits P3 & P4).  Suffice it to say, X suffered from the injuries as a result of the incident and those injuries include “tenderness of head and face, blood clot in right ear and suspected right hemotympanum[5]” and “linear fracture of the right temporal bone associated with effusion in the right middle ear, fracture at base of 5^th metatarsal without significant displacement, and right concha was blood stained …over the inferior deep external auditory canal.  Pure tone audiometry showed right conductive hearing loss”[6].

15.  Under cross-examination, X identified the camera for the CCTV installed by her neighbour as depicted in Photo (21) and she also confirmed that there was no camera or CCTV installed inside her Room 3A.  

16.  X explained that she came from the Mainland China in May 2019 and she received education up to Primary 5 level.  She did not learn English there, nor did she then learn English in Hong Kong.  Other than “Ok”, “Yes” and “No”, she did not understand any English words or phrases.  X explained that she would normally charge local people for $200 but foreigners for $500.

17.  It was suggested to X that she would be angry about the defendant for wasting her time when the defendant refused to pay her before they started to have sex.  X said she was not and if the defendant did not pay, he should go.  X said the defendant did not give her any money and he did not count any money in front of her.  X denied that she had asked for another $500 and she also denied that she had scratched the hand of the defendant and she did not know what had caused the injuries to the right hand of the defendant as shown in Photos (15) and (16). 

18.  It was put to X that there were conversations between them inside Room 3A and that she had spatted and kicked the defendant.  X denied.  She also disagreed that the defendant had to wait for her behind the gate at the private corridor because he was not able to unlock the gate. 

19.  X, on the other hand, confirmed that after she regained consciousness, she could find her handbag and mobile phone.  In other words, the defendant did not take her handbag and mobile phone.  X insisted that she had lost about $1,000. 

PC24260 (PW2)

20.  PW2 (PC24260) was the arresting officer in this case.  He found and investigated the defendant and during the conversation they had, the defendant, inter alia, told him that he had paid a $1,000 banknote for sex and the victim suddenly asked for an extra of $500.  Under-cross examination, PW2 said that the defendant’s English is within his scope of understanding and it was after about 2 hours that PW2 had managed to make a written record of the gist of the conversations he had with the defendant.  PW2 repeated that the defendant had told him that the former had claimed to have paid a $1,000 banknote to the victim.  Nevertheless, PW2 accepted that there would be some misunderstanding of some of the details of the words of the defendant.  

DPC5052 (PW5)

21.  PW5 (DPC5052) was the Investigation Officer.  He was the one who took the photos (Exh P5).  He was also one of the officers who took part in the VRI. 

22.  Under cross-examination, PW5 said he took photos of the right hand of the defendant because the defendant showed him certain injuries on it.  It was put to him that in his presence, Sgt1072 (PW6) said “It’s ridiculous. It’s pathetic” to the defendant.  PW5 testified that at no time did anyone tease or say this kind of words to the defendant in his presence.  He disagreed that PW6 had asked the defendant to say in the VRI that he is a “professional fighter” (as he did at §554) or to offer certain explanations. 

SGT1072 (PW6)

23.  PW6 participated in the VRI and after that, a photo taking session was arranged for PW5 to take photos of the defendant.  PW6 denied having chit chat with the defendant.  The conversations they had were all about the photo taking.  PW6 said that it lasted for 1-2 minutes and it was normal that they did not speak much.  PW6 denied to have said to the defendant “It’s pathetic. You’re a big man.  You scratched a woman” or words to that effect. 

24.  PW6 also said after knowing about the injuries on the hand of the defendant and the allegation he made during the VRI that X had scratched his hand, PW6 had asked PW5 to investigate further.  He learnt that PW5 had made enquiries with X and she had denied the allegations.  It was revealed that, however, no such question and answer had been recorded in the any of the witness statements of X. At the end, PW5 had only reported orally to him that X had denied having scratched the defendant. 

25.  It was put to PW6 that he had suggested, before the VRI started, the defendant to mention in the VRI about his girlfriend and that he had done some boxing because the judge will buy these points.  PW6 denied. 

Dr Chan K T Jenny (PW9)

26.  PW9 was Dr Chan K T Jenny.  Her expertise was not subjected to dispute and her evidence was mainly about certain terms used in the medical report. Under-cross examination, Dr Chan agreed that sometimes patients do not turn up for medical follow-up because they are fully recovered, and they do not need such follow-up.  Dr Chan added that it is also quite common.  She also confirmed that according to the record, the victim could walk “unaided” when she was discharged on 20 April 2020.

27.  After these witnesses, the Prosecution formally closed their case. There was “No Case” submissions on Charge 1 (wounding with intent).  I ruled that there is a case for the defendant to answer on all the charges.  After that, the defendant elected to give evidence. 

28.  What happened then was unfortunately quite unusual: the defendant made allegations against PW5 and PW6 and those allegations went directly to the root of the issue of voluntariness of the VRI albeit that the Defence had made it clear repeatedly that there is no dispute about the admissibility of the VRI.

The Special Issue (Reopening of the Prosecution Case)

29.  The Defence insisted that there was no issue of voluntariness about the VRI during and after the cross-examination of PW5 and PW6.  It was said to have been produced by way of the Admitted Facts under section 65C, Criminal Procedure Ordinance, Cap 221.  Nevertheless, when the defendant testified on the general issue, he repeatedly made complaints against the police officers i.e. PW5 and PW6.  His evidence went to the root of voluntariness rather than the mere question of weight of his VRI.  It turned out necessary for the court to consider the question of voluntariness and the exercise of the residual power to exclude the VRI or part thereof in spite of the fact that the Defence wanted to rely on the contents of the VRI and insisted that no voire dire was necessary.

30.  It is necessary to highlight the relevant part of the evidence of the defendant when he was testifying on the general issue on this matter:-

(a) The defendant said on oath that before the VRI took place, PW6 in the presence of PW5 had a long conversation with him and “they coached (the defendant) what best to say in the VRI” [7].

(b) The defendant said the photo taking session took place before the VRI was taken and during that time he had requested PW6 to take note of his injuries on his hand and asked to have his shirt taken for DNA test for saliva of X (as he said X spat on him when they were inside Room 3A).

(c) The defendant said that PW6 reminded him what to say and what not to say in the VRI. He then said that PW5 and PW6 had repeated 5-6 times that if he wanted to get bail, he had to get a good interview or otherwise he would go to prison. By that the defendant said he knew that he had to omit certain things or add certain things. He stressed that he did not take on board everything PW5 and PW6 had said and he felt uncomfortable to follow their instructions. But then the defendant said he trusted the young one (PW5) and believed that PW5 would not mislead him.

(d) The defendant claimed that the officers had asked him not to mention about football and that he was looking for friends at the material time. They suggested to him that many tourists do look for sex and it is no big deal for him to say that he was looking for paid sex. The defendant said he had told the officers that he had a fiancé and therefore he would not do so and he could not tell lies. In reply, the officers told him not to mention that but merely refer her as his girlfriend and the judge will believe him. The defendant said although he lied in the VRI, he was desperate to follow the way the officers had coached him in order to get bail.

(e) The defendant further explained on oath that, as a result of these conversations, he decided not to mention about his friends and that he was looking for sex but a bar where he was going to meet with his friends. There was no argument between he and his girlfriend and he made that up in the VRI because of the words of the officers. He did so with a view to getting bail.

(f) The defendant also said on oath that the officers had asked him to say that he was a trained fighter. He explained that it was false when he said he had been involved in “professional fight” in the VRI.

(g) In light of all these, he thought at the very least, he needed a good interview in order to get bail. He described that it was very tempting for him to lie under those circumstances in order to get bail.

(h) Despite all these evidence, he said at the end of his examination-in-chief that he participated in the VRI voluntarily. He said he was happy to participate.

31.  Many of these allegations were not put to PW5 and PW6 and I therefore referred the parties to two cases[8]and invited for submissions on the need to reopen the Prosecution Case in order to deal with the issue of admissibility. 

32.  Before the Prosecution Case was reopened, the Defence stressed that the parties were happy with having the VRI admitted into evidence.  The Defence assured this court that there will not be any objection to the admissibility. 

33.  Another key argument of the Defence was that the VRI was admitted into evidence by way of section 65C according to the instructions of the defendant and therefore, no voire dire nor a decision on admissibility would be required. 

34.  I find it necessary to pinpoint that the admissibility of a piece of evidence cannot be admitted by way of “Admitted Facts” under section 65C.  The reason is simple: admissibility of evidence is a question of law. 

35.  As it transpired, the defendant on the one hand claimed that he participated in the VRI voluntarily, his evidence did not merely go to the question of pure weight.  In my judgment, expressing that there is no issue of voluntariness on the one hand and introducing evidence that disputes voluntariness is an inconsistent approach. 

36.  Based on what the defendant had said in his evidence purportedly on and only on the general issue, the defendant was clearly disputing the voluntariness of the VRI and hence its admissibility.  As I see it, procedural justice is of paramount importance.  The court cannot subscribe to the wish of the parties when it comes to a question of law.

37.  Having fully considered the submissions of the parties, I found that the admissibility of the VRI was a live issue and in order to ensure that the case of the defendant was assessed fairly and properly, I ordered that the Prosecution be allowed to reopen their case to address the issues of voluntariness and admissibility and more importantly, for the Defence to deal with them.  The Prosecution Case was reopened for the special issue to ensure that the right of the defendant to have his complaint considered is protected.

38.  PW5 and PW6 were recalled.  In short, they denied the allegations in their further examination-in-chief.  The Defence took the same position and did not further cross-examine any of them.  There was no grounds of objection and the defendant elected not to give evidence on special issue.  The Defence made it clear again that there was no issue of admissibility.  The Defence did not want the VRI to be ruled out and no cross-examination was further done saved that the Defence remarked that what had been put to them when they first gave evidence were still relied on. 

39.  Based on what the defendant had said in his evidence on the general issue, I noted his complaints.  Yet, there was no evidence called to undermine the evidence of PW5 and that of PW6 on the special issue at that stage.  I, however, reminded myself that the burden of proof rested on the Prosecution to prove beyond reasonable doubt that the VRI was participated by the defendant voluntarily. Even so I still had to be satisfied that there is no basis to exercise my residual power to exclude the whole or part of the VRI.

40.  Independent from what approach the Defence had adopted, the burden of proof remained on the Prosecution.  That said, PW5 and PW6’s evidence are clear and remain unshaken.  I found PW5 and PW6 truthful and reliable on the special issue.  Having carefully considered the contents of the VRI and the demeanor of the defendant in it, I have no reservation in rejecting the case of the defendant. I did not see any truth in his claim that the officers had coached him to say anything or not to say anything.  I did not accept that his case is true or may be true. 

41.  Since the parties took a common stance that the VRI should be admitted into evidence, the analysis might not be viewed as important as it is worth. For the sake of completeness and more importantly, ensuring that procedural justice has been observed, I shall briefly explain. 

42.  It is clear from the VRI that the defendant is a person of strong will power.  He repeated a number of times in the interview that he was honest and he was prepared to tell everything.  He volunteered a lot of details in the interview regarding the topics that he took issue, and these details could not simply come from the coaching of the police officers.  I found as a matter of fact that the defendant would not follow the words of those officers.  Further, there is no point for the officers to ask the defendant not to mention about the so-called true relationship between the defendant and his girlfriend.  I also do not see any reason for the defendant to take the advice of the officers to describe himself as a professional fighter in such an interview nor does it make any sense for the officers to coach the defendant in such a way.  In so far as the allegations the defendant had put to or made against the officers, I found that they are nothing but a pack of lies.   

43.  I was satisfied that the Prosecution had proved beyond all reasonable doubt that the VRI was taken voluntarily and I saw no basis to exercise my residual discretion to exclude it or any part thereof.  Accordingly, the VRI was admitted into evidence.  The Prosecution then closed their case and after hearing submissions, I ruled again that there was a case for the defendant to answer for all the charges.

44.  The defendant returned to the witness box and he was given an opportunity to reopen his examination-in-chief which was declined by the Defence.

45.  The defendant was then cross-examined at that stage.

Evidence of the Defendant

46.  There were two parts of his evidence.  First, the VRI, saved those areas he said that were said as a result of the coaching of the officers, has been essentially adopted by the defendant in the witness box. The defendant is credited for any consistency in his words.  He is also a person of clear criminal record.

47.  It would be helpful to first highlight his version in the VRI here. 

The Video Recorded Interview (VRI – Exhibit P6)

48.  To his credit, the defendant said, “I will answer all of the questions” and “if I want to explain anything that hasn’t been asked, I will let you know.” (§§124 and 126).  He sounded very forthcoming especially when he in the early part of the interview said “Okay.  To begin, on that day, I visited (a place in Sha Tin)” and continued with his story.

The encounter

49.  He said a lady (ie X) approached him outside Building A and told him “there were many girls and asked (the defendant) if (he) wanted to see them” (§140).  The defendant’s reply was “Okay, I will take a look”. 

50.  I noted that this is totally different from his version in court.  His case is that he was not looking for girls but a pub to meet his friends.

In the Room 3A

51.  The defendant then said X asked for $500 when they got inside Flat 8.  The defendant then said to X, “I want to see the girls before I pay you.” (§158). X then said, “You pay me and then you can choose any girl you want.” (§160).  The defendant then paid her $500. (§162)

The First Conversation

52.  When they got into the room (Room 3A), the following conversations took place:-

X: “500 only for my company. Another 500 for sex” (§180 - when X asked for another $500)

D: “Sex with who?” (§182)

X: “Me.” (§184)

D: “No.” (§186)

X: “Why?” (§188)

D: “Too Old” (§190) and “No, no sex. No sex.” (§198)

X: “American asshole. You waste my time.” (§§194 & 198)

D: “Can I have my money back?” (§198)

X: “No.” (§198) “500, no sex. Just my time.” (§200)

D: “That’s ridiculous. Give me my money back.” (§202)

53.  Then the defendant said to the translator for the interview, “this is very difficult to explain.  Please say that.” (§204)

Hiding the money

54.  The defendant then described that X turned around and lifted her skirt in order to put the money in her underwear.  When she turned around, she was still holding some money in her hand.  She then put the money in her bra. (§§206 & 208)

X spat on the Defendant

55.  The defendant continued to demand for his money back.  X did not do so but spat on the defendant (§214).  The defendant said that he said to X, “What are you doing? Give me my money” (§222) at that time. The defendant also said, “I reached for her” and said, “Give me the money. And when (he) pulled, (the defendant) said, “Give me the money.” (§232)

The Scratch & Injuries

56.  When he said the second time, “Give me the money”, X scratched him. (§236) I note that the injuries shown in the photos and those injuries could be consistent with a scratching.  I shall come to that in the below.

57.  The defendant then said his hand was bleeding and X started to say something in a yelling manner in the language of, perhaps, Thai that he could not understand. (§242)

58.  The defendant then described that he “became very angry” (§248).  He said he looked at the blood and “was very tempted to hit (X).  I looked and I went, like was ready to hit her.” (§252). The defendant then told the police that, he said, “No more business today. You give me my money, or I don’t leave.” to X. (§259)

The Kicking

59.  X apparently refused.  The defendant then said in the VRI that “You leave.” And (X) kicked me in my shin.” (§261)

60.  The defendant described that at that time he “became very, very angry.” (§265).  But he chose to “walk out because (he) was very angry.” (§267).  He said he thought to himself, “$500. No big deal.  No problem.” I was very angry, but $500. Okay.” (§273)

61.  What followed, in his words in the VRI, was that he could not open the gate and he had to wait and ask X to come out to open it for him. (§§275 - 289).

The Threat of X

62.  When X opened the door, the defendant said to her, “You cut me.” (§291)

63.  Then they had these exchanges in English when they were at the public corridor:-

X: “I hope you die.” (§293)

D: “Shut up.” (§295)

X: “I call my boss. He will kill you.” (§297)

Smacking the Phone

64.  Upon hearing “I will call my boss.  He will kill you.”, the defendant smacked the phone out of the hand of X.  It is worth repeating that what had happened outside the gate of Flat 8 at the corridor was all captured and recorded by the CCTV, nevertheless, the CCTV record does not come with a corresponding audio record.

65.  When X managed to pick her phone, the defendant said that he said to X, “Are you going to give me my money?” (§307).  The response of X was that she repeated her words “I call my boss. He will kill you.” to the defendant. (§309).  X repeated, “I will call my boss.  He will kill you. He will fucking kill you.” (§311)

66.  That is at that time, the defendant said he used his elbow to hit X (§§337 - 359 at approx. from 17:19:38 to 17:21:25 in the VRI) causing her to lose her consciousness instantly.

Other salient points and features

67.  There are a number of salient points and features mentioned by the defendant during the VRI: “I did not want to punch her, because I had blood on my hand.” (§339) and “It is normal for me to hit someone with an elbow, not a punch.” And “...knee someone, not kick them.” (§§343 & 345)

68.  He repeated that:-

“(X) stole my money.” (§361)

“(X) hit me three times.” (§363)

“(X) (spat) on me.” (§365)

“So I don’t feel bad that I hit her.” (§367) “But I feel bad that I hurt her so much.” (§369)

“I didn’t mean to hurt her so badly.” (§371)

69.  He further admitted that he had checked the inside of her bra to get his money (§375) and he also checked her skirt (§385).  The defendant said he “touched to feel (his) money, but (he) couldn’t (feel his) money.” (§387. See also §§665, 667, 669).  He then checked the purse, thinking that “maybe ... (X) put the money in her purse”. (§389)  He took the money and later he found out that there was $340.

70.  It can be seen that the defendant continued with telling his story from Entry 130 until Entry 439 with almost no intervention of a question.  In these over 200 answers, the defendant spoke very slowly and articulated his pronunciation carefully, seemingly with a view to making sure that the interpreter and the police could understand him.  He reiterated that X had lied and took his money (§§485 & 487); spat on him (§489); scratched him (§491 see also how he described in details how he was scratched §§506- 528); kicked him (§493); and said she was going to tell her boss to kill him (§495).

71.  PW6 then asked him questions and the following answers are worthy of being reproduced here:-

Q: So can we say that the reason that you followed (X) is that you want to pay for sex? Is that true? (§470)

A: “Possibly. It’s - - I have a very serious girlfriend. I have a girlfriend.” (§471)

72.  The defendant volunteered these answers at a later stage of the cautioned interview.  The defendant said, “Why would I hurt this woman for no reason? (§1048).  “Because if I want to have sex with this woman, I can. I can pay her.” (§1050) “If the woman says she didn’t want to have sex with me, that’s ridiculous, because she took me upstairs to have sex with me. (§1052)

73.  The defendant then said, “If the woman says I didn’t have money that’s ridiculous, because I have lots of money.”  These were said with the clear intention to undermine the credibility of X because he said “What I am concerned about is because she is a woman, people will believe her.  And because I am a man, they will call me a liar. (§1038).  It is under this concern that the defendant offered the answers in §§1048, 1050 & 1052 in paragraph 72 above. 

74.  The defendant also mentioned that he had been in professional fights (§554).  This topic was volunteered by the defendant (at §550) when he said, “No (about whether he wanted to wake up X when she was lying on the floor), I want you to translate because I’m going to give you a big answer.”  Pausing here.  The way the defendant volunteered the topic of “professional fight”, coupled with his tone and demeanor when he gave these answers, clearly shows that he was not subjected to any coaching.

75.  The defendant then said, “Because I was - - I was afraid that I hurt her very badly.” (§552) And he continued, “In my life, I have - - I have been in professional fights, and when I hit me (sic) with my elbow, it causes a lot of damage.” (§554) “So for a woman, I knew that she would be hurt. And I was - - I was very upset because I didn’t want to hit her.” (§556).  Then he explained, “If (X) didn’t steal my money, and she didn’t threaten me, and she didn’t hit me, and she didn’t spit on me, and she didn’t say she was going to call her boss to kill me, I wouldn’t have hit her.” (§564). “Just because I caused more damage does not mean that I am more guilty.” (§566).

76.  And then he repeated what X had done to him (§§568 - 580 and again from §§600 - 612 and also §§895 - 901).  He stressed again, “If she doesn’t do all of these things, then I don’t do anything to her.” (§584).  He regretted he went to a prostitute because he loved his girlfriend and he said that they were engaged.  At that juncture, PW6 reminded him that part was not related to the case and he did not have to talk much about that. (See §§614 - 642).

77.  Regarding Charge 2, the defendant said, “I would feel my money.” (§665) and “I didn’t touch her breasts.  I just touched the outside of the bra to try and feel where my money was.” (§667).  He then went on to say, “... I did the same with her skirt.” (§669) “because she definitely put money in her underwear.” (§§671 & 673) That is “the panties” of X but he could not feel anything (§697).

78.  The defendant described that “(he) think maybe twice.  I don’t know. (§701 as to how many times he had reached the breast and panty area of X).  He said, “because I was trying to do it very quickly, because I wanted to leave” (§703).  He did not know if he could feel the money by just touching the outside of X’s underwear (§779) but nonetheless, he “tried” (§781).  “Maybe (X’s) tights were too thick, and I couldn’t feel it.  Or maybe the money wasn’t there.” (§785) then he offered an explanation that X was alone for about one minute or more when he was unable to open the gate. 

79.  When relevant photo of the capture of the CCTV was shown to him, the defendant said, “I didn’t want to touch her vagina or her breasts.  I just wanted my money back” (§967).  He said he did not know if he had touched the genital of X because “(he) wasn’t thinking about where (he) was touching, because (he) was looking for (his) money.” (§971).  He continued, “So if - - I very careful not to touch her breasts or her vagina, because I didn’t want to touch it.  I wanted my money.” (§971) “But I’m pretty certain that when I touched her skirt, I did not touch her vagina.  I think I touched higher than her vagina.  It was more like her pelvis area.” (§973).  All in all, the defendant denied having any intention to indecently assault X (§1030).

80.  Regarding Charge 3, he corrected himself and explained that the $500 he gave X was given in small notes (§§713 - 751).  He also explained that he had counted the notes in front of X (§753).

81.  The defendant had also made certain remarks during the interview which support his general credibility, such as “to tell you something honestly, I was going to hit her right there ......I was going to elbow her in the face right there. And I stopped” when he mentioned that X spat on him when they were inside the room.  (See §§224-228).

82.  As mentioned above, he also described that he “became very angry (§248). He also said that “I don’t feel bad that I hit her (because of what X had done to him).” (§367) “But I feel bad that I hurt her so much.” (§369). He stressed (at §371), “I didn’t mean to hurt her so badly.” (Also at §§481 & 483). He said, “Because I am in trouble, because I am bigger and stronger. That’s bullshit.” (§795). And he also said, “I did not commit assault. I retaliated.” (§806). He further said, “And I’m being honest about everything, because I am very embarrassed. But I’m being honest.” (§808).

83.  Again, when he was reminded that he was under caution at a later stage of the interview, the defendant acknowledged his right to remain silent by saying, “Of course. But I want to be honest.” (§1015).  He repeated that again at §1060, saying “And I’ve - - honestly, honestly, I feel bad that I hurt her. I don’t want to hurt her”.

84.  Going back to the general issue, The defendant’s evidence can be summarized as follows:-

The Defendant’s Evidence in Court

85.  The defendant is 35 years of age.  He came from Scotland.  He is a Degree holder and before he came to Hong Kong as a visitor, he had been a personal trainer for the last 14 years.  He was engaged to his fiancé who is currently trapped in the Middle East because of the covid-19 pandemic.  The defendant came to Hong Kong on 5 March 2020 and his plan was to have a tour in the Asian countries nearby. 

86.  On 15 April 2020, he first went to a temple in Shatin.  He later disembarked at the Mongkok MTR station and he intended to go back to his apartment in Tsim Sha Tsui on foot.  He then received messages from his friends and they were about to meet at a bar at around 6pm.  He therefore went there on his own first and it happened that it was a place at the building in question.  The defendant said he had gone to the same place a week ago with his friends.  But he did not figure out where he was going.  Therefore, he asked a woman who turned out to be X who was standing at the front entrance of the building.

87.  The defendant said he approached her and raised his eyebrows giving her an expected look to talk to him.  The following exchanges then took place:-

X: Need help?

D: I was looking for a bar upstairs.

X: Girls?

D: Yes, the Bar with girls, football, basketball, drinking bar or alcohol (and the Defendant raised his hand to convene the message that he was looking for a bar).

88.  The defendant thought that she may or may not understand him clearly.  X repeated “many girls, beautiful girls” and suggested to the defendant that he could choose any girls he picks.

89.  The defendant described that X knew certain key terms in English and she made a hand gesture by pointing to show the way to the defendant.  He then followed the direction indicated by X. Before they departed, he also saw that X had certain eye contact and gesture exchanges with a black man standing nearby the entrance of the building.  At that time, that black man was standing there with another two black men.

90.  The two of them then arrived at the 11^th Floor of the building.  Then they had a conversation:-

D: “Bar”, “Drinking” (repeated for 5 times)

X: “Many girls, beautiful girls”

D: “You know the bar?”

X: “Beautiful girls, beautiful girls, many beautiful girls”.

91.  They walked down a public hallway and arrived at a silver gate ie Flat 8.  When they passed the gate, they had this conversation:-

X: “$500”

D: “Entry fee”

X: “$500 you pay”

D: “Can I see the girls first?[9]”.

92.  X shook her head whilst the defendant insisted seeing the girls before he would pay.  X insisted as well.  Lastly, the defendant complied with the request of X and paid the $500.

93.  The defendant said he took out his wallet and did the counting.  He said X reacted happily when she saw his money.  She even tried to touch the back of the money and pointed at a $500 banknote which was in The defendant’s hand.  The defendant then gave her a variety of small notes in the total sum of $500.

94.  What follows was by and large consistent with the version he gave in the VRI.  In gist, the defendant said X demanded for another $500 whereas he did indicate to X that he was not looking for sex and he wanted his money back. 

95.  In the heat of the moment, X called the defendant “American Asshole.”  X also spat on the defendant.  When he tried to retrieve his money, X scratched him causing him to bleed.  He referred to the photos (Exh P5) to show his injuries.  When he withdrew his hand, he saw that X turned around and lifted up her skirt.  She then pulled up her skirt and down her tights and then she inserted the money in her panty.  After that She pulled her tights back up and down the skirt right down.

96.  When she turned back, the defendant still saw that she still had some money in her hand and then she put some, but not all of the money, into her bra.  X also kicked his shin.  At that time, X said “Get Out” to the defendant. 

97.  The defendant said that when she was stuffing the money, he just kept asking for his money back.  He gave up after a moment and left Room 3A.  When he reached the gate, he found that he was not able to open it.  He therefore had to wait for X and asked for her help.

98.  The two of them then left the gate and what had happened was depicted by the CCTV.  The defendant said at that time, he was not angry.  Nevertheless, he raised his hand and said to X, “What have you done to me? Look at what you have done to me”.

99.  At this point, the defendant said that X said to him, “I hope you die.”  He felt frustrated by her words.  The defendant also said that they began walking together away from the CCTV.  Suddenly, X said, “I tell my boss to kill you he is going to kill you”.

100.  The CCTV shows that X then went to retrieve her mobile phone that was already on the floor in a distance.  The defendant followed her and X repeated the phrase “I will tell my boss to kill you.  He is going to kill you.” 

101.  The defendant then said, “Enough!” and “Look, is this not enough, you spat on me.” He looked down and found his hand bleeding.  “I am bleeding” he said, “You kicked me and you stole from me and you are still threatening me.  Enough is enough!”

102.  X replied in an angry tone, “He will kill you. My boss will fucking kill you”.  That is at that moment, the defendant struck X.

103.  X collapsed immediately.  The defendant was a few steps away.  When he turned, he realised that X was lying on the ground.  The defendant said he was in a panic immediately.  He gave her face a shake and said, “Are you okay?” and X appeared to be half or partly unconscious (or partly awake).

104.  The defendant then checked her body for his money.  And then he found in a compartment in her purse a bunch of notes.  He took these banknotes and left.

105.  The defendant stressed that he had no sexual intent when he searched the body of X.  His intention was to retrieve his money.  The defendant felt the top of the pelvis and not the vagina and he did not insert his hand under her underwear. 

106.  The defendant also said that he had never involved in a fight because it gives him horrible feelings.

107.  He then moved on to explain some of the answers he gave in the VRI and those are the areas concerning the special issue I have referred to in the above.

108.  Regarding the investigation, he said he was totally cooperative.  He explained in details and the police officer (PW2) had given an accurate account of what the defendant had told him.  What was incorrect is about the $1,000 banknote.  The defendant said that he did not tell the officer that he had given a $1,000 banknote to X – he said X had asked for $1,000 and there was seemingly an error in the communication because of his accent or English standard of the officer. 

109.  Under cross-examination, the Prosecution questioned the defendant why he did not use Whatsapp to ask his friend about the exact location of the bar when he did not figure out where it was.  The defendant said he could not disagree with this as it was a more sensible option.  Nevertheless, under the circumstances, the idea of confrontation did not occur to his mind.

110.  It was also suggested to the defendant that by the time he went with X, he would have realized that he was not taken to a bar.  The defendant explained that it did not come to his mind and he thought it was normal for him to ask people in the vicinity for direction.  He simply asked and it happened that X indicated, at the least he thought at that time that she could show him the way.  He further explained that the bar he went was on a higher floor of the building and the public area outside the bar looked just the same as what he saw on the 11^th Floor.

111.  The defendant also said he did not find it abnormal for X to ask for $500 from him at the private corridor because according to his past experience, someone outside the bar would ask for payment of entry fee and therefore, he thought that the $500 was an entry fee and he was taken to the bar he had in his mind.

112.  The defendant said it did not come to his mind to call the police when X was lying on the floor. 

113.  He repeated that he did not touch the vagina of X and he did not expose her body.  He said had he had the intention to have sex, he could have paid X inside Room 3A and received the service.  He said his intention was to retrieve his money and he had no intention to steal.  All in all, he denied the case put to him by the Prosecution.

Analysis and Consideration

114.  The burden of proof rested firmly on the Prosecution throughout the trial.  I have considered the charges individually even though the facts pertaining to these charges do somewhat overlap. 

115.  The defendant is a person of clear criminal record and in this regard, I have reminded myself of the advantage that he is entitled to regarding credibility and propensity.  The VRI is a piece of mixed statement and I shall consider the contents in accordance with the case of R v Sharp [1988] 1 WLR 7.

116.  As mentioned above, the defendant had indicated through his counsel of his guilty plea to section 19 for which grievous bodily harm is an element of offence.  Yet there was an argument on whether the injuries suffered by X amount to grievous bodily harm.  In my judgment, based on the medical findings, the injuries suffered by X were more than clear to be grievous bodily harm.  To say the least, there was fracture at the right temporal bone.  Therefore, for Charge 1, the material issue is in fact whether the defendant unlawfully and maliciously assaulted the victim X in the present case with intent to do grievous bodily harm to her.  The Prosecution stressed that the defendant intended to hit X and the CCTV has clearly showed and supported that.  I do not see any issue in that regard.  What is important is whether the defendant did it with that specific intent.

117.  Regarding Charge 2, the focus is whether the defendant indecently assaulted X.  Although it is not disputed that the defendant had touched the body of X, it might not amount to an assault in the first place if, as he claimed, he did it only for the purpose or in the course of finding his money. This requires a contextual examination of the conducts of the defendant and his intention in so doing.  It is worth noting that if his case is true or may be true, it could equally undermine the case of the Prosecution.

118.  Regarding Charge 3, put briefly, the Defence Case is that the intention of the Defendant at that time was to take back only his money and this similarly requires a contextual examination of the intention of the Defendant, in particular, regarding the element of dishonesty.

119.  The CCTV is an important evidence in the present case.  By and large, it supports the evidence of X.  What the CCTV does not tell, however, is the conversation the defendant and X had at the corridor because it does not come with an audio record and more importantly, the defendant and X were wearing a facial mask when they were at the public corridor.  There was also no CCTV installed inside Room 3A.

120.  X impressed me to be a straightforward witness.  She was unshaken under cross examination.  But for the high criminal standard of proof, I tend to accept that she was telling the court the truth.  I have also carefully considered the evidence of the other prosecution witnesses.  I find them truthful and reliable with the only exception that PW2’s misunderstanding of the words of the defendant has made him unreliable.

121.  On the other hand, the defendant had made a lot of allegations against X. The defendant also showed his injuries on his hand to the police officers and had them recorded in the form of photo.  However, it is clear from the CCTV that there was no blood on the back of the right hand of the defendant (See CCTV - 17:31:38 - 17:31:42).  The fact that he had injuries on his hand before the police came is immaterial.  He could have an accident after leaving Building A.  He could have introduced those injuries to himself before the police came.  What is clear is that X did not scratch and cause injuries to his right hand as alleged by the defendant otherwise the injuries would be seen in the video.  The defendant described that his hand was bleeding at that time and he even showed his right hand to X to tell her that he had those injuries on his hand and that he was bleeding.  The video shows clearly that these are untrue.  I find it as a matter of fact, the defendant was making up a story and trying to victimize himself.  I have no hesitation in rejecting the evidence of the defendant regarding the physical violence he claimed X had done to him.  I also reject his evidence regarding his allegations against PW5 and PW6.

122.  That said, the burden of proof remains on the Prosecution.  Whilst it is clear that X is a victim of violence, her reactions to cross-examination suggest that her English standard is not as weak as she described. 

123.  Having carefully considered the Prosecution Case, I have reservation about the verbal exchanges between the defendant and X.  I find that there exists a reasonable doubt in whether the defendant had been verbally irritated.

124.  Regarding Charge 1, I accept the submissions of the Defence that there must be a reason for the defendant to assault her.  The evidence of X does not explain why the defendant, a person of a clear criminal record, would assault her.   

125.  The Prosecution repeated in their closing submissions that the defendant knew that the blow with his elbow (or fist) would cause serious injury to the victim.  I have no hesitation in agreeing with that observation. The defendant was huge as compared to X physically.  Nevertheless, a distinction, and it is an important one, has to be drawn between knowledge and intent. 

126.  Whilst it is common ground that the defendant did intend to hit X at the material time, the ultimate issue is whether the defendant had the specific intent to cause grievous bodily harm to X.  The Prosecution submitted that the defendant had such requisite intent.  They emphasized that the defendant knew serious injury would be caused by his act.  They also submitted that the only irresistible inference could be drawn is one of guilt.  That is clearly the position of the Prosecution, but they still failed to address the issue of intent and support it with evidence.  In any event, I am not satisfied that when the defendant attacked X with his elbow (17:32:00), the defendant harboured an intention to cause her grievous bodily harm. 

127.  It does not matter how many times the defendant had hit X in the present case; nor is it determinative with reference to the use of weapon or not.  Each case depends actually on its own facts.  From the video, it is rather clear that the defendant was withholding his fist (17:31:57) before he finally took the blow with his elbow to hit the face of X.  That is consistent with someone who was trying to resist the driving force of anger before it was too late to stop oneself from putting that into action.  Unfortunately, the defendant did it and gave a hard strike and injured X.  X fell onto the ground and instantly lose consciousness as well.  Without an intent to cause grievous bodily harm to X, what remains are the attack and the requisite mens rea for a section 19 offence (or even less). 

128.  Having carefully considered all the evidence before me, I am satisfied beyond reasonable doubt that the defendant had unlawfully and maliciously inflicted grievous bodily harm to X.  He intended to hit X at the material time and the defendant was fully aware at that time that his act would cause grievous bodily harm to X.  The defendant is convicted of the offence under section 19 accordingly. 

129.  Regarding Charge 2, the Defence referred to the case of R v Court [1989] AC 28.  I have also considered the case of HKSAR v Fok Ka Shing (2013) 16 HKCFAR 413 and HKSAR v Choi Wai Lun (2018) 21 HKCFAR 167.

130.  The Defence also submitted that had the defendant wanted to touch X, he could have paid X because she was a sex worker; or alternatively, he would have indecently assaulted X inside Room 3A (outside the camera). 

131.  First of all, I am prepared to accept the point that the presence of the CCTV camera would be easily noted by any person at the corridor had that person ever looked to the direction where the CCTV was installed.  However, the video clearly shows that the defendant did not look at the camera and as a matter of fact, I find that the defendant was simply not aware of the CCTV at all material times. 

132.  Sexual gratification is not an element of offence (see HKSAR v Jeffrey Savage [1997] HKLRD 428).  Nor is premeditation a pre-requisite of the offence.  Whether the defendant had opportunity to commit the offence in a safer place (in the sense that the commission is less likely to be detected) or much earlier is neither here nor there. 

133.  The video is a powerful evidence in this case.  It vividly shows that the defendant was not touching the pelvis area but the pubis region of X.  The defendant claimed that he did not touch the vagina of X; the video clearly shows that he did.  The defendant claimed that he was checking for his money. But the video shows clearly that his actions were not consistent with such a claim.  The movement of his hand and the way he positioned his fingers have clearly rebutted his case.  Besides, he had already taken money out of the purse of X and had put the money into his own pocket without counting how much he had got.  It was after that that he touched the pubis region of X for the second time.  On the strength of the video recording (17:32:06 – 17:32:08 & 17:32:38 – 17:32:41), one could not fail to see that the touching is not consistent with any intention to search for money.  The defendant had made it clear in his evidence that he was looking for a bar to meet with his friends.  From what I have highlighted in paragraphs 71 - 73 and 91 above, it is clear that in fact the defendant was looking for sex.  The defendant also described that he was in a panic when X fell onto the ground (see paragraph 103 above) and he had horrible feelings about fighting (see paragraph 106 above).  The video, however, shows that the defendant was very clam. I have no doubt that the defendant is not a truthful witness. His evidence had been crafted with a view to explaining his acts under the camera. I have absolutely no doubt that the defendant was not doing it for the purpose of searching for the money.  It was clearly a molestation.  It was clearly an assault. 

134.  Having carefully considered the available evidence, I am sure that the touching of X’s pubis is not only capable of being considered by right-minded persons as indecent, I am satisfied beyond reasonable that it is clearly indecent per se.  The defendant was unconscious as a result of the attack and there was no basis to suggest that X had consented to it; nor it is possible that the defendant could have a mistaken belief of consent.  I am not sure where did the hand of the defendant land on the upper body of X but the indecent assault on the pubis area of X alone would support the charge in Charge 2.

135.  I am satisfied that the Prosecution has proven all elements of the offence and therefore the defendant is convicted of the Charge 2 accordingly.   

136.  Lastly, regarding Charge 3, I am not sure if the defendant had paid X any money before they came out of the flat.  It is because I have reservation about the conversations between the defendant and X.  Should there be any argument between these strangers, it is possible that it was about money.  I must make it clear that I rejected that X had inserted money into her underwear or tried to do so whatsoever.  I do not accept that she would put part of these money into her panty, some under her bra and a portion into her handbag.  However, I am prepared to give the benefit of doubt to the defendant on the basis that he might have paid X certain amount of money and therefore when he returned to X after the attack, it is possible that he was trying to retrieve his money.  When I said, “the defendant returned to X”, I refer to 17:32:04 of the video.  It can be seen that after the attack, the defendant walked away from the camera and for 4 seconds, there was no indication that the defendant was looking for an opportunity to further attack X or hasten to search her handbag.  Based on this observation, I am not sure if the defendant had attacked X in order for him to indecently assault or steal from X.  The defendant was not charged with robbery in this case.  And had he wanted to indecently assault X by way of an attack in the first place, it would have been done when they were inside Room 3A.  For the purpose of retrieving his money, it would have been enough for him to look at the handbag of X.  He did so and he did pocket the money. Therefore, there is a doubt as to whether he was stealing money from the handbag of X at that time. 

137.  For this reason, one might think that there could also be a doubt about whether the defendant was searching for his own money when he touched X’s pubis area.  It must be made clear that the two charges are separate, and they do not necessarily follow one another.  I find as a matter of fact that when the defendant took the money, he might be retrieving his the money whereas when on each occasion he touched the pubis area of X, he was indecently assaulting X without any intention of searching for the money.  That is why the possibility that he was merely retrieving his money does not undermine at all the Prosecution Case on Charge 2.  

138.  In conclusion, the defendant is acquitted of Charge 1 but convicted of a lesser charge of section 19.  The defendant is convicted of Charge 2 Indecent Assault but acquitted of Charge 3.