DCCC782/2023

DCCC782/2023

A A B B DCCC 782/2023 C [2025] HKDC 1037 C D IN THE DISTRICT COURT OF THE D HONG KONG SPECIAL ADMINISTRATIVE REGION E E CRIMINAL CASE NO 782 OF 2023 F F ---------------------------- G G HKSAR H v H HOLLU PATHIRAGE JANAKA CHAMINDA 1st Defendant I I KALDERA (also known as PERERA RANASINGHA J APACHCHIGE JAYANTHA and PERERA J RANASINGHA A J) K K nd SIVANETHTHI CHITHRANANDA ABERUWAN 2 Defendant L ---------------------------- L M M Before: Deputy District Judge W H Ko N N Date: 20 June 2025 O Present: Ms Amanda Whitfort, Counsel on fiat, for HKSAR O Mr John Patrick Marray, instructed by B Manek & Co, P P assigned by the Director of Legal Aid, for the 1st defendant Q Mr Peter Pannu, instructed by Heung Massie & Clement, Q assigned by the Director of Legal Aid, for the 2nd defendant R R Offence: Wounding with intent（有意圖而傷人） S ------------------------------------ S REASONS FOR VERDICT T T ------------------------------------ U U V V  -2- A A B B C 1. D1 and D2 are jointly charged with one count of wounding C with intent, contrary to section 17(a) of the Offence against the Persons D D Ordinance, Cap. 212 of the Laws of Hong Kong. They pleaded not guilty E to the charge. E F F 2. It is the prosecution case that on 14th January 2023, while G PW1 was having a gathering in his friend’s home situated in Tai Tong, G Yuen Long at night time, a group of 5 persons, including D1 and D2 H H suddenly arrived. The prosecution contended that inside the house, PW1 I was tied up with belts and tapes and assaulted by the group. I J J 3. The defence case, as revealed in the cross examination of K PW1, is that PW1 was alleged to be a suspect of an indecent assault case K whose the victim is the daughter of D2. D1 and D2 were simply exercising L L their common law and statutory rights to apprehend PW1. The injuries that M PW1 suffered was a result of the struggles he put up while D1 and D2 were M trying to restrain him. N N O 4. Apart from PW1, the medical officer who examined PW1 O (PW2) and 2 police officers arrived at the scene shortly after the event P P (PW3 and PW4) were called as prosecution witnesses. Q Q R R S S T T U U V V  -3- A A B B 5. In gist, PW1 recalled that he arrived the house at around 7:30 C pm. At around 8:30 pm, when he was trying to close the main gate leading C to the house as instructed by his friend, D1, D2 together with 3 other men D D appeared and dashed towards him. PW1 immediately ran back to the house. E He tried to close the door but someone kicked open it. While he was inside E the living room of the house together with the group and his friend’s wife, F F someone turned off the lights. He was pushed to the ground, the clothing G that he was wearing were stripped off and handkerchief being put into his G mouth. He was then tied up, and being punched and kicked by someone H H all over his body. PW1 added that his forehead and legs were also hit by a I metal pipe. PW1 also mentioned that his penis was pulled and the same I metal pipe as mentioned above was used to insert into his anus. J J K 6. After the assault, D1 made a report to the police and D2 K together with the other men left. L L M 7. PW1 described the assault lasted about half an hour. When M the police officer arrived, only D1 was present inside the house. The police N N officer removed his restraint and he was subsequently taken to Pok Oi O hospital for treatment. O P P 8. Under cross examination, PW1 admitted the injury on his Q forehead was caused by contact with the ground when he was putting up a Q struggle while D1 and D2 was trying to restrain him. PW1 agreed that at R R all times D1 did not assault him, instead it was D2 who punched and kicked S him. PW1 also agreed that he did not mention to PW2 that someone S inserted a pipe into his anus. PW1 initially insisted that he didn’t know T T U U V V  -4- A A B B why he was arrested by the police at the scene but later admitted that it was C related to the indecent assault case. He also agreed that he was informed C by D2 at the scene that the reason why he was being tied up was to wait for D D police arrival. E E 9. PW1 disagreed to the suggestion that when D1 and D2 was F F trying to apprehend him outside the house, he picked up a wooden pole and G swing to D1. He also disagreed that D1 managed to snatch the pole from G him. PW1 however agreed that D1 and D2 told him that he needed to be H H restrained until the police arrived. I I 10. Upon clarification, PW1 agreed that as the lights inside the J J house were completely off, he could not identify the assailants. It was only K until the police arrived that the lighting inside the house resumed. K L L 11. PW2 examined PW1 at Pok Oi Hospital at 1:25 am on 15 M January 2023. Medical examination revealed that there were abrasions on M PW1’s right shin and knee, and laceration at his forehead. Suturing was N N done on his forehead and PW1 was discharged on the same day. O O 12. PW4 received instruction from the police console concerning P P a case of seeking police assistance and he met D2, being the informant of Q said case, at Tai Tong Road at around 11:42 pm. D2 then led him to the Q house and during the course of the journey informed PW4 that they had R R intercepted a suspect in relation to a reported suspected indecent assault S case. When PW4 entered into a room inside the house, he saw PW1 sitting S on the floor with his hands and feet tied up by piece of cloth, belts and T T U U V V  -5- A A B B tapes. D2 pointed to PW1 and told PW4 that he was the suspect of the case C he mentioned to PW4 earlier on. C D D 13. PW4 observed that PW1’s trousers was lowered to knee level. E He assisted PW1 by holding him to the bed inside the room and untied him. E While doing that PW1 revealed to PW4 that he was assaulted by 2 to 3 men F F earlier on at the scene, and he identified D1 as one of the assailants. G G 14. Subsequently D1 was arrested by PW4. H H I 15. PW3 attended the scene at around 1 am on 15th January 2023. I He seized the piece of cloth stained with blood, 2 belts and some tapes J J rolled into a ball shape as exhibits. He also took some photographs and K then contacted the forensic officers for lifting fingerprints and collecting K DNA samples. L L M 16. PW3 then took a statement with PW1 at Pok Oi hospital. He M later called D2 to attend Yuen Long police station and declared arrest on N N him. O O 17. Counsel for D1 advanced a no case submission on the grounds P P that the prosecution has failed to show that PW1 suffered grievous bodily Q harm and his evidence is so inconsistent and inherently improbable that it Q is dangerous to leave the matter to be resolved by the jury. R R S 18. I find that there is a case to answer against D1 and D2. S T T U U V V  -6- A A B B 19. D1 and D2 elected not to give evidence nor called any defence C witnesses. C D D 20. I have considered all the oral and written submissions put E forward by counsels for the defence. E F F 21. It is undisputed that PW1 was found inside the bedroom of the G house, restrained by belts and tapes and injured when the police arrived. G The only issue in this case is whether he is a credible and reliable witness. H H I 22. During the course of giving his evidence, there existed I numerous occasions that PW1 provided self-contradictory and inconsistent J J accounts of events, which cannot be reconciled, as to what had happened K inside the house. For example:- K L L (i) Initially he was adamant that D2 had assaulted him inside the M house, yet upon clarification from the Court he confirmed that M the assault took place after the lights were off and he did not N N know who had assaulted him; O O (ii) He confirmed that D1 and D2 was holding metal pipes with P P them when they entered the house but under cross- Q examination admitted that they did not; and Q R R (iii) He recalled that D2 called the police after the group assaulted S him but then retracted by saying that he did not know that S police was summoned. T T U U V V  -7- A A B B C 23. In addition, PW1’s evidence that he was punched and kicked C by D2 while D1 was doing nothing apart from standing aside was in stark D D contrast as to what he had told PW4 at the scene that D1 was the assailant, E without pinpointing to PW4 that D2, who was present at the scene at the E time, was one of the culprits as well. F F G 24. Further, the fact that PW1 was able to describe in Court that G the object used to hit his forehead and legs and inserted into his anus was H H a metal pipe, and the approximate dimensions of the pipe, in complete I darkness as he alleged, defies logic. I J J 25. One would have assumed if metal pipe was used to insert into K PW1’s anus and caused him pain as he testified, he would have related the K incident to PW2 for medical examination and treatment. He agreed that he L L did not tell PW2 about that. No explanation was offered by PW1 as to the M absence of that. M N N 26. I find PW1 to be an incredible and unreliable witness. Apart O from the fact that D1 and D2 went to the house when PW1 was gathering O with his friend, and he was tied up by belts and tapes inside the house with P P his trousers pulled down to the knee, I reject his evidence in its entirety. Q Q 27. Having rejected his evidence, there is no need for this Court R R to deal with the issue whether the force used to restrain PW1, as alleged by S the defence that the act of restrain amounts to citizens’ arrest is reasonable S T T U U V V  -8- A A B B and proportional. However, it should be noted that PW1 was restrained C with his trousers lowered to the knee when PW4 arrived. C D D 28. Prosecution case depends solely on the evidence of PW1. E Given that his evidence as to what had happened on the material day is not E accepted by the Court, the prosecution has failed to prove the case against F F D1 and D2 beyond reasonable doubt. G G 29. D1 and D2 are acquitted of the charge. H H I I J J K K ( W H Ko ) L Deputy District Judge L M M N N O O P P Q Q R R S S T T U U V V