HKSAR v. TIDOY, PRIMITIVO ASUNCION

CACC 277/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 277 OF 2013

(ON APPEAL FROM DCCC NO. 55 OF 2013)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the Court):

Introduction

1. The applicant was tried in the District Court before District Judge G Lam (“the judge”) on a Charge Sheet containing one offence of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212. The charge alleged that on 4 November 2012, outside No. 3 Li Yuen Street West, Central, in Hong Kong, the applicant unlawfully and maliciously wounded Mr Khan Shoukat (“Mr Khan”) with intent to do him grievous bodily harm.  On 9 July 2013 the applicant was convicted of this offence and on 26 July 2013 was sentenced to 3 years’ imprisonment.

2. The applicant applied for leave to appeal against his conviction and sentence.  He was granted legal aid for the former application but not the latter.  Thus, in his application for leave to appeal his sentence he was unrepresented.

3. At the hearing of the applications we proceeded only with the hearing of the application for leave to appeal against conviction.  In respect of that application we reserved our judgment and said we would hand it down at a later date.  This we now do.

The Trial

4. It was the prosecution case that at about 10 p.m. on 4 November 2012, the victim, Mr Khan, who was PW1 at trial, was with two Pakistani friends, Mr Wahid Khan (“PW3”) and Mr Nawaz Muhammad (“PW4”), and they were waiting for the arrival of another in the vicinity of No. 5-7 Li Yuen Street West in Central.

5. An unknown person threw a glass bottle which landed near a group of three Filipinos consisting of a woman and two men one of whom was the applicant.  The other male in the group threw a plastic bottle at Mr Khan’s group, apparently believing that it was someone in Mr Khan’s group who had thrown the glass bottle at them.  Mr Khan walked towards the applicant for the purpose, he claimed, of trying to explain that it was not their group that threw the glass bottle.  Mr Khan said that suddenly the applicant took out a knife and struck Mr Khan on his abdomen which caused a long wound.  At this time Mr Khan turned to the right to look at his friends and claimed the applicant then stabbed him again resulting in a second wound, shorter in length than the first wound.  Mr Khan began to bleed and the applicant ran towards Queen’s Road Central.

6. Having seen Mr Khan being attacked, Mr Wahid Khan immediately chased after the applicant and, despite being injured, so did Mr Khan.  In the course of the pursuit Mr Wahid Khan picked up a metal pipe and threw it between the legs of the applicant.  The applicant was tripped up and fell down on his face on Queen’s Road Central.  Mr Wahid Khan said that he then jumped on the applicant and subdued him.  Then PC 9893 Yuen Chun Pan arrived at the scene.  He said he found a foldable knife from the right rear trouser pocket of the applicant and arrested him.  He said that the applicant then said to him “The Pakistani fight me, so I hurt him”.

7. In the course of giving evidence, Mr Khan said that the applicant stabbed him twice on the abdomen at Li Yuen Street West.  Mr Wahid Khan said that when Mr Khan lifted up his shirt he saw two cuts on his abdomen which were bleeding, although he only saw one strike take place.  Mr Muhammad, on the other hand, claimed he saw the victim being struck twice by a man without a cap.

8. Police photographs show blood on the area of Li Yuen Street West where Mr Khan claimed he was stabbed and a blood trail to where the applicant was subdued in Queen’s Road Central.  It was an admitted fact that samples of bloodstains collected both at Li Yuen Street West and Queen’s Road Central belonged to Mr Khan.

9. Mr Khan identified the applicant in court.  Mr Wahid Khan and Mr Muhammad were not asked to identify the applicant in court but both testified that it was the Filipino who did not wear a cap who attacked Mr Khan and it was this person whom Mr Wahid Khan later pursued and subdued at Queen’s Road Central.  In his statement to the police Mr Khan said that his assailant was wearing a cap, but in court said that was not his recollection and he thought that the police may have made a mistake in recording his statement.  Whether Mr Khan was struck by a male wearing a cap or by a bare-headed person assumed greater significance once the defence evidence was called.

10. Mr Khan was taken to the Accident and Emergency (“A&E”) Department of Queen Mary Hospital where he was examined at 11.26 p.m. by Medical Officer Yip Wai-lam (“PW2”).  It was an admitted fact that he described the victim as “repeatedly vomiting upon arrival.  There was a laceration over his left abdomen about 1 cm long.  There was tenderness and guarding over the whole abdomen.  Bedside ultrasound scan of PW1’s abdomen found presence of intra-abdominal free fluid. X-rays and electrocardiogram were unremarkable.  His vital signs were stable and he remained fully conscious.  Resuscitation was performed with the trauma team activated”.

11. It was necessary for an emergency laparotomy to be performed upon Mr Khan. This was referred to in a medical report by Dr Law Yuk dated 24 January 2013 which was the subject of an admitted fact which described Mr Khan’s injuries as follows:

“… a stab wound over the abdomen. Upon arrival at the Accident and Emergency Unit at Queen Mary Hospital PW1 was alert and fully conscious. Emergency laparotomy was performed and he was found to have blood in peritoneal cavity due to bleeding vessel from torn spleen and abdominal muscle, which was repaired. Post operatively transferred to intensive care for observation overnight and then transferred to general ward on 5^th November where he recovered uneventfully. PW1 was discharged on 8^th November.”

12. Dr Law did not testify but Dr Yip explained in his evidence that laparotomy meant the opening up of the abdomen by the surgeon in order to repair the damaged organs and stop internal bleeding.

13. Photographs were taken of the wounds on the victim’s abdomen.  There was a long wound on the front of the abdomen which Dr Yip said was the wound of the laparotomy.  There was a shorter wound on the applicant’s left side which Dr Yip said was the knife wound that he had repaired on the arrival of the victim at the A&E Department.  He said that had the victim arrived at the A&E Department already suffering from the longer wound, he said he would have noticed such a wound.

14. The photographs also revealed the presence of a third wound that was keyhole shaped and which was located at the level of or just below the waistband of Mr Khan’s underpants.  This third wound was not the subject of any questioning of Dr Yip and no reference was made to it by him in his medical report.  However, the medical report showed that Mr Khan was awake and communicating with Dr Yip. It stated:

“Mr Khan claimed to have been physically assaulted with knife on his abdomen.”

In addition, it stated that the victim “remained fully conscious”.

15. The prosecution also produced the video record of interview of the applicant. In it the applicant explained that he was walking on the way to catch a bus to go home. As he passed by some Pakistanis, which he described as more or less 10 in number, they asked if he was a Filipino.  He stated he was and then someone punched him on his back.  Then one by one the Pakistanis approached him and there were many of them.  The applicant ran and about five of them chased him and hit him.  After they hit him he was knocked over and they kicked and punched him.

16. Then, one of the Pakistanis approached the applicant and this person was holding a knife.  He struggled with this person and eventually was able to grab the knife from him and once in possession of it he used it to stab his assailant.  The applicant said that he was on the ground at the time because he had been hit on the leg as he was running away and this caused him to fall to the ground.  When he stabbed his assailant, the assailant was bending over him.  Asked why he stabbed his assailant he said:

“It was out of my anger because they beat me up and kicked me after I was knocked down.” [1]

17. He said that after he stabbed his assailant, his assailant’s companions held his hands and put the knife in the rear pocket of his jeans.  Then, when the police arrived, the Pakistani’s companions shouted to the police that the applicant had a knife.

18. The applicant maintained that he had told the police upon arrest the knife was put inside his rear trouser pocket by the Pakistanis.  He also confirmed that he wore an orange polo shirt at the material time.

19. The applicant elected not to give evidence but called three defence witnesses.  Also relevant to the defence case were admitted facts that the applicant had a clear record and that on admission to Queen Mary Hospital a medical examination of him revealed that he was suffering from bruising to the face, swelling to the face and an abrasion to the face.

20. The first of the defence witnesses was Madam Marilou D Castillo. She testified that she saw a Filipino male in an orange top (a description which matched the clothing of the applicant) being attacked by many Pakistani males at Li Yuen Street West.  She said that she saw that the Filipino male managed to run away towards Queen’s Road Central but that a Pakistani male who was chasing after him picked up a metal pipe and pursued him.  She said many Pakistanis joined in the chase.  Outside Melbourne Plaza she saw the Filipino male was restrained by two Pakistanis and she also saw a Pakistani putting something in the rear pocket of the Filipino male.

21. The second defence witness was Mr Vencito A Laeno and he said he saw a Filipino male in an orange top being assaulted by a group of three to four Pakistanis at Li Yuen Street West.  He said he was scared and so he took a taxi home.

22. The final defence witness was Madam Melcris Andoy Marticio and she testified that she saw a man wearing a cap striking a Pakistani male in a white top (a description which matched the clothing of Mr Khan) with a broken glass bottle at Li Yuen Street West.  Upon being struck, she said the Pakistani male pulled up his shirt and pulled down his trousers to check if he got hit.  She saw that when the Pakistani male bent down there were droplets of blood on the ground.  Soon after that, she saw another Filipino male passing by and being attacked by a group of Pakistanis with one of them holding a metal pipe.  This Filipino male ran away towards Queen’s Road Central.  She said he was punched and kicked by a group of seven Pakistanis outside McDonald’s on Queen’s Road Central.  The Pakistani male in white was, according to her, holding a knife.  The Filipino man struggled with him and managed to snatch the knife.  He then used the knife to stab the Pakistani male in white.  One of the Pakistanis took the knife and put it inside the applicant’s rear trouser pocket.

The Reasons for Verdict

23. The judge commenced his assessment and analysis of the evidence by stating:

“There is no dispute that PW1 was stabbed. What this court needs to decide is who stabbed him at which location. The prosecution says the defendant stabbed PW1 at Li Yuen Street West. The defendant, however, admits that he stabbed PW1, except it took place at Queen’s Road Central; and that he was acting in self‑defence.” [2]

24. Prior to addressing the two issues of who stabbed PW1 and at which location, the judge recognized that it was necessary for him to address the issue of how many times PW1 was stabbed.  This was because of the clear and obvious contradiction within the prosecution case between the evidence of the eye-witnesses and the medical evidence.  The eye‑witnesses claimed either that the victim was stabbed twice (the evidence of Mr Khan), or that two cut wounds were seen (the evidence of PW3) or that two striking movements were seen (the evidence of PW4).  The medical evidence was that there was only one cut wound on Mr Khan’s abdomen when he was seen by the A&E Department treating doctor and that the long wound on his abdomen was created by the surgeon in the course of performing a laparotomy on him.

25. The judge resolved this contradiction by finding as a fact that:

“… the laparotomy performed on PW1 clearly accounts for the long wound on the front of his abdomen. In other words, PW1 had sustained only 1 stab wound, which was the 1 cm laceration on his left abdomen, before admission to the hospital.” [3]

26. The judge then moved on to the question of whether the third wound was caused during the evening of 4 November 2012.  In respect of the third wound the judge found that although this wound was small, it was certainly noticeable.  The judge was satisfied that had it been there prior to the victim’s admission to the hospital, Dr Yip would have noticed it and mentioned it in his medical report. Since it was not mentioned in the medical report, the judge found that Mr Khan did not sustain this wound before he left the care of Dr Yip.  The Judge also found that the shape of this wound was too unusual and symmetric to have been inflicted by a broken glass bottle.  He, therefore, ruled out the possibility that this keyhole shaped wound had been inflicted at Li Yuen Street West by a person striking a broken glass bottle against Mr Khan as had been alleged by the defence.

27. The judge’s finding that Mr Khan sustained only one cut wound produced two consequences.  The first was that the evidence of PW1-PW3 that there were two stabs, two wounds or two striking motions was rejected by the judge.  He said in respect of PW1-PW3:

“They were obviously wrong about that. But I need not speculate on the reasons why they were wrong; I simply attach no weight to this aspect of their evidence.” [4]

28. The second consequence was that the judge decided that he would only accept the evidence of PW1-PW3 “whenever they are corroborated by independent and objective evidence”.[5] This second consequence informed his approach to how he resolved the issues of where Mr Khan was stabbed and who stabbed him.

29. Having found that Mr Khan sustained only one cut wound and having excluded the third wound as having been caused that night, the judge turned to the question of where, that is the geographical location, Mr Khan had been stabbed.

30. He said it was apparent from the police photos of the bloodstains in Li Yuen Street West that they “clearly originated from relatively large-size blood drippings, which formed quite a congested pattern on the ground”.[6] The judge also noted that the bloodstain on the victim’s T-shirt and jeans showed “heavy bleeding concentrated on his left abdominal area”.[7]  The judge then said that based on this evidence there must have been serious bleeding at Li Yuen Street West and continued onto Queen’s Road Central and that “this kind of bleeding must have been the result of a knife-stabbing wound”.[8]

31. He excluded the keyhole-shaped third wound as being the possible source of the blood in Li Yuen Street West by saying that the size and depth of this would “could not possibly have left the amount of blood‑spotting and splatter pattern on the ground at Li Yuen Street West”.[9]

32. By this inferential route he reached the conclusion that Mr Khan was stabbed at Li Yuen Street West.  As a result, the applicant’s assertion that he stabbed Mr Khan at Queen’s Road Central, and the other defence evidence that suggested likewise, was rejected.

33. The issue which the judge said he next had to resolve was who was responsible for stabbing Mr Khan.  He said:

“Since there is medical and forensic evidence showing that PW1 sustained a knife stabbing wound at Li Yuen Street West, I believe PWs 1, 3 and 4 to the extent that it was the defendant who stabbed PW1 there.” [10]

34. The judge also referred to the applicant’s admission when arrested, namely “He fight me, so I hurt him” and also noted his claim in his video record of interview that he stabbed Mr Khan at Queen’s Road Central whilst acting in self-defence.

35. The judge then said that as a consequence of his finding that Mr Khan was stabbed at Li Yuen Street West “the defence evidence on this aspect must therefore be rejected” [11]

36. The judge went onto consider the defence claim that the knife had been planted in the applicant’s pocket just before the police officer arrived at the scene.  He rejected this claim because, he said, it defied common sense and was fanciful.  He said that if, in fact, that is what had happened then the applicant would have immediately complained of that fact to the police officer who arrested him.  However, the applicant said nothing about this at that time.  He only did so in his video record of interview which was conducted about 20 hours after his arrest.  The judge said that he, therefore, “believe the defendant’s admission only to the extent that he had stabbed PW1 with Exhibit 7” [12]

37. Having made these findings of fact in respect of the different issues he addressed he said that it followed from these findings “there could not possibly have been any stabbing of PW1 at Queen’s Road Central as alleged by defence.  It follows logically that the defendant could not possibly have been required to act in self-defence by stabbing PW1 at Queen’s Road Central”.[13]

38. The judge also referred to the admitted facts in respect of the injuries sustained by the applicant.  He said that these injuries were relatively minor and inconsistent with the applicant’s allegation that he was punched and kicked and beaten on the ground by a group of Pakistani males at Li Yuen Street West and Queen’s Road Central.  He rejected the applicant’s account of the events of that night and, therefore, did not go on to consider the applicant’s allegation that he acted in self-defence which flowed from and depended on his account of what had happened.

39. The judge did not accept the evidence of the three witnesses called by the defence.  None of the witnesses claimed to know the applicant but they said they were all contacted by a stranger named Marilou Sebastian to become a witness for the applicant, a fact which the judge said intrigued him.  None of them had made any contemporaneous record of the incident yet they were able to recall many details of the events.

The Grounds of Appeal Against Conviction

40. There are eight grounds of appeal in the applicant’s Perfected Grounds of Appeal Against Conviction.  The first ground of appeal attacks the judge’s finding that there was only one wound inflicted upon the victim.  This ground of appeal complains about the inconsistencies in the evidence and asserts that the judge failed to properly analyse the evidence and reconcile the various inconsistencies in it.

41. The second ground of appeal attacks the judge’s finding that the single wound inflicted upon the victim was so inflicted at Li Yuen Street West.  This ground of appeal asserts that on the evidence before the court and with the material discrepancies on the number of wounds, the judge erred in drawing as the only irresistible inference that the location of the attack must have been at Li Yuen Street West.

42. The third ground of appeal asserts that on the evidence the judge should have concluded that there were two attacks upon the victim: the first attack taking place in Li Yuen Street West by a person other than the applicant and the second attack taking place in Queen’s Road Central by the applicant, acting in self-defence.  In support of this ground of appeal the applicant refers to the keyhole-shaped injury on the victim’s lower abdomen at waistband level and argues that this could have been an injury inflicted by a broken glass bottle administered by a man wearing a cap at Li Yuen Street West and further that these injuries could have been responsible for the blood found in that location.

43. The fourth ground of appeal complains that since the judge had concluded that PW1, PW3 and PW4 were obviously wrong in asserting that there were two attacks and two wounds inflicted by the applicant, he should have rejected their evidence and acquitted the applicant.

44. The fifth ground of appeal complains that the judge erred in concluding that the third keyhole-shaped wound was not sustained by the victim before he left the care of Dr Yip.

45. The sixth ground of appeal complains that the judge erred in failing to consider the defence of self-defence.  Under this ground the applicant argues that the prosecution failed to disprove the defence of self‑defence.

46. The seventh ground of appeal complains that the judge was wrong in rejecting the evidence of the three defence witnesses and not putting any weight on what they had said.

47. Likewise, in respect of the eight ground of appeal, the applicant complains that the judge erred in not placing any weight on the statements by the applicant in his video record of interview which were exculpatory of him, namely his claims that he only stabbed the victim in Queen’s Road Central, with the victim’s own knife, out of self-defence and that subsequently this knife was planted in the applicant’s pocket before the police arrived.

Discussion

48. At the outset it is important to emphasize that this was quite a simple and straightforward case which was unnecessarily complicated by two matters ‑ namely the contradiction between the prosecution witnesses and the medical evidence and the mystery of the third wound.  We shall have more to say about these matters later in this judgment.

49. The reason the case was simple was because the applicant admitted he was the person who stabbed Mr Khan in the abdomen with the knife that was found on him.  Nor was it disputed that the applicant and Mr Khan and his friends were in Li Yuen Street West and that the applicant was chased by Mr Wahid Khan and Mr Khan into Queen’s Road Central where the applicant was ultimately subdued.

50. The only issues were where the stabbing took place and, if that was found to be at Queen’s Road Central, in what circumstances; and whether Mr Khan was attacked by a man wearing a cap who struck him with a broken glass bottle causing him a wound from which blood flowed.

51. The defence case was entirely dependent on the judge resolving these issues by finding that the stabbing took place in Queen’s Road Central and in order to make this finding the judge had to also find that Mr Khan sustained a wound in Li Yuen Street West that could account for his blood being spilt there.  Once the judge found that Mr Khan only suffered one wound that evening, that this wound was inflicted on him in Li Yuen Street West and that the third wound was not sustained by him that night, then the defence evidence would necessarily be rejected.  Once the defence evidence was put to one side there was no evidential basis for the defence of self-defence.

52. The problem the judge faced were the matters that unnecessarily complicated his resolution of these issues and his fact finding process.

53. As mentioned these were the contradiction between the eye‑witness accounts and the medical evidence and the mystery surrounding the third wound. We find it extraordinary that these matters were not addressed in the course of the preparation of this case for trial and the presentation of the evidence.

54. As for the former aspect the judge was left with little option other than to take the course he did; namely to act on the eye-witness evidence only where it was corroborated by other evidence.  As for the latter issue the judge was correct in recognizing that though he may not be able to solve the whole mystery of the third wound he had to at least make a finding as to whether it was caused on the night of 4 November 2012 or some other occasion.

55. The evidence of the third wound from the prosecution eye‑witnesses was very limited.  The following passage appears towards the end of Mr Khan’s evidence-in-chief:

“Q. Could you go through, please, to photograph 24.[14]

…

Q. In reference to the evidence that you gave yesterday in-chief, you described being struck with a knife twice; first across your stomach and then stabbed in the side. In reference to that photograph does those – do those injuries there reflect what you were saying yesterday?

A. That’s correct, your Honour.

Q. Yes. Just so that we’re clear. These photographs were taken post-operatively; this is after you’ve been into surgery, so you are stitched up there, you had an operation.

A. Yes, your Honour.

Q. Can you have a look at photograph 26,[15] please. Could I ask you about -- the injury that you’re showing there is a small – a smaller scar just above the – your – the line of your underwear, what is that?

A. Your Honour, I do not know about this injury because I did not have this injury before the operation.

Q. Yes.

A. So I don’t know whether while …

Q. Yes, that’s why I was asking. Did you have -- do you know whether you had keyhole surgery?

INTERPRETER: Keyhole surgery?

MR HOTTEN: Keyhole surgery, yes.

INTERPRETER: I do not understand that.

MR HOTTEN: Okay. Maybe I …

Q. This -- anyway, this – this injury here is not anything to do with the attack that you suffered on the day.

A. That’s correct, your Honour.

Q. No, it looks like it’s a hospital surgery.” [16]

56. This last comment by the prosecutor was objected to and no further light was shed on the origin of this wound.  From the prosecution’s point of view it was, presumably, no more than a curious side-issue of no great significance. However, once Mr Khan had been cross-examined it must have become apparent to the prosecutor that the defence case depended on Mr Khan sustaining a wound at Li Yuen Street West.  Such a wound was needed to explain the presence of Mr Khan’s blood on the ground there and the blood trail leading to where the applicant was subdued.  Without such a wound the defence case would be in such serious conflict with the uncontestable forensic evidence that it would be unlikely to be believed.  Thus, the prosecution and the defence were ad idem on there being two wounds.  But, whilst the prosecutor did not need there to be two wounds in order to prove its case, the defence case did.

57. The cross-examination of Mr Khan did not, in fact, focus on the third wound as being the source of the blood in Li Yuen Street West.  Rather, the defence accepted Mr Khan’s testimony that there were two assaults on him and that the first wound, the longer one, was the source of the blood.  However, the defence claimed that it was a person other than the applicant who was the cause of this first wound, as is apparent from the following passage in cross-examination:

“COURT: We don’t care -- we are not asking how you were stabbed. Mr Khan, look at photograph 25, please. 25.[17]

INTERPRETER: Yes.

COURT: All right, we -- clearly, we see two wounds, I wouldn’t call it stab wounds, we just – we see two wounds.

A: Yes, your Honour.

COURT: On your body – on your upper body, okay.

A: Yes, your Honour.

COURT: Which wound was inflicted first?

A. The larger – the longer one, your Honour.

COURT: The longer one. And the smaller one was second.

A. Yes, your Honour.

COURT: Continue, please.

Q. I put it to you that your first wound, the bigger one, was inflicted to you at Li Yuen Street West by a man wearing a cap.”[18]

Thus, it was never the defence case that the third wound accounted for the blood in Li Yuen Street West.

58. Consequently, no evidence relevant to the third wound emerged in cross-examination of Mr Khan other than when Mr Khan asserted that at the time he gave his statement to the police, he told them the third wound was not due to the incident but if his statement said otherwise then the police wrote it down wrongly.  There was no re‑examination by the prosecutor of Mr Khan, with the result that Mr Khan was not asked by anyone how he actually came to sustain the third wound, though it appears that the prosecutor may have thought that the third wound was created by the surgeon in the course of performing the laparotomy.

59. The possibility that the third wound might have been caused by the surgery was rejected, by implication, by the next witness, Dr Yip, when he said that the long wound was the laparotomy incision.  This evidence was very damaging to the defence as it pointed to there having been only one wound inflicted on Mr Khan and completely neutralised the efforts of the defence to suggest that the long wound was created by a cap‑wearing assailant attacking Mr Khan with a broken glass bottle.  Despite the destructive impact of this evidence on the defence case, Dr Yip was not cross-examined and so his evidence in respect of the long wound went unchallenged.  However to be fair to the defence, it was their case that there were two assaults and the first assault, by an unknown person, caused an injury to Mr Khan and it was this injury which accounted for the blood on the ground of Li Yuen Street West.  Though the defence initially thought that the laparotomy wound was the first wound that cannot be held against them.  But, once the laparotomy wound was taken out of the equation, the third wound suddenly assumed great significance.

60. Thus, the issue on this appeal becomes one of whether the judge’s twin findings that Mr Khan only sustained one wound that night and that the third wound was not inflicted on him that evening, were soundly and properly made.

61. The starting point is to recognize, as the judge did, that the evidence of PW1, PW3 and PW4 could not be relied on unless it was supported by other evidence.  All that we have from Mr Khan, in any event, is a bare denial of this wound having been inflicted on him prior to his admission from hospital with no further explanation of how he came by this injury.  The only other evidence was evidence of a negative kind, namely that the third wound was not mentioned by Dr Yip.  The third wound seems to have made its first appearance in the police photographs which were taken on 29 November 2012, some two weeks after the assault.  Based on what was shown in these photographs the judge concluded that the wound, though small, is noticeable and went on to infer that had it been there prior to admission, Dr Yip would have both noticed it and also mentioned it in his report.  Based on this inference he made the finding that it could not have been sustained by Mr Khan prior to his admission to the A&E Department.

62. The judge also revealed that he excluded the possibility that this wound could have been caused by a broken bottle.  He reached such a conclusion by relying on the fact of the shape of the wound, which he described as “all too unique and symmetric” [19] and the location of it, namely underneath the waistband of Mr Khan’s underpants.

63. In discussing the issue of where Mr Khan was stabbed he again mentioned the third wound.  He did so when discussing the blood spatter at Li Yuen Street West and the blood trail left by Mr Khan as he pursued the applicant.  He described these bloodstains as originating from “relatively large-size blood drippings⁷ which formed quite a congested pattern on the ground⁸” [20] He then mentioned that Mr Khan’s T-shirt and jeans also showed heavy bleeding concentrated on his left abdominal area.  The judge then made a finding of fact that Mr Khan suffered serious bleeding at Li Yuen Street West and further found that “this kind of bleeding must have been the result of a knife-stabbing wound”.[21]  In respect of the third wound he made a specific finding that in view of its size and depth “even if inflicted in the manners alleged by defence [it] could not possibly have left the amount of blood spotting and splatter pattern on the ground at Li Yuen Street West”.[22]

64. Thus on this crucial issue the judge’s finding is based upon an inference that had the wound been there Dr Yip must have seen it and the judge’s own opinions, in the guise of inferences, about whether, given its shape, the third wound could have been caused by a broken bottle and, given its size and depth, the third would could have left the amount of blood that was found on the ground at Li Yuen Street West.

65. The photographs of this wound were taken on 29 November 2012, just over two weeks after the assault on the victim.  The photographs show a partially healed wound, the surrounding skin of which has been shaved at some time to remove body hair.  An inference that could be drawn is that the wound is of relatively recent origin and may have been subject to medical intervention.  However, because it is only a photograph and because the wound appears to have been the subject of some kind of treatment, it is not possible to say precisely how even or symmetrical the original shape of the wound was or how deep it may have been. In the absence of more evidence on the original state of the wound, or of expert evidence, it does not seem to us to be possible for a lay person to say simply on the basis of these photographs how much blood might have flowed from the wound and what form any bleeding might have taken and to be able to positively exclude the third wound as the source of the blood spatter in Li Yuen Street West.

66. As to whether Dr Yip must have noticed the third wound had it been there, such an inference, it seems to us depends heavily on an assumption that the wound must have been obvious because it was still bleeding or that Mr Khan must have been sufficiently conscious, alert and communicative to have alerted Dr Yip to it.  It seems to us that its location does allow of the possibility that it may simply not have been observed.

67. We have seen the same photographs as the judge and we are not persuaded that the only reasonable view that can be taken of the third wound is that it could not have caused the blood drippings shown in the photographs of Li Yuen Street West.  Furthermore, we do not think that this is a matter on which the judge, unaided by expert evidence or more detail about the third wound, could properly make a finding.

68. On such a crucial issue as this which led, as was inevitable, to the judge rejecting the defence evidence and the claim of the applicant that he acted in self-defence, we are not convinced that the judge’s findings of fact can be sustained.

Conclusion

69. For these reasons we allow the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal we allow the appeal and quash the conviction.  At the hearing of the appeal we invited the parties to address us on retrial but conscious that they were not then aware of our reasons for allowing this appeal we shall allow them a further opportunity, if they so wish, to do so by written submissions.  If the respondent wishes to supplement its oral submissions seeking a retrial it should do so within 7 days of this judgment.  The applicant must file any further submissions he may wish to make within 14 days of this judgment.

[1] Counter 267, page 59 of the Appeal Bundle.

[2] Page 11, paragraph 13 of the Appeal Bundle.

[3] Page 13, paragraph 18 of the Appeal Bundle.

[4] Page 16, paragraph 25 of the Appeal Bundle.

[5] Page 16, paragraph 26 of the Appeal Bundle.

[6] Pages 14-15, paragraph 22 of the Appeal Bundle.

[7] Pages 15, paragraph 22 of the Appeal Bundle.

[8] Ibid.

[9] Pages 15, paragraph 23 of the Appeal Bundle.

[10] Page 16, paragraph 26 of the Appeal Bundle.

[11] Page 17, paragraph 28 of the Appeal Bundle.

[12] Page 17, paragraph 29 of the Appeal Bundle.

[13] Pages 17-18, paragraph 30 of the Appeal Bundle.

[14] Photograph 24 is an image of Mr Khan lying down with his upper garments raised above his breasts to reveal two scars on his abdomen.

[15] Photograph 26 is an image of Mr Khan’s abdomen and of Mr Khan pulling down the waistband of his underpants to reveal the keyhole-shaped third wound.

[16] Pages 131 O-132 I of the Appeal Bundle.

[17] Photograph 25 is an image of Mr Khan’s abdomen and chest with his upper garments raised above his breasts.  It shows the stab wound and the laparotomy wound but not the third wound.

[18] Pages 164O-165C of the Appeal Bundle.

[19] Page 14, paragraph 20 of the Appeal Bundle.

[20] Pages 14-15, paragraph 22 of the Appeal Bundle.  In this quotation the judge inserted two footnotes, footnotes 7 and 8, which referred to photo 8 and photos 9 and 10 in the set of police photographs.

[21] Page 15, paragraph 22 of the Appeal Bundle.

[22] Page 15, paragraph 23 of the Appeal Bundle.