區域法院（刑事）Deputy District Judge K Lo16/9/2024[2024] HKDC 1549
DCCC389/2022
A A
B B
DCCC 389/2022
C [2024] HKDC 1549 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 389 OF 2022
F F
G --------------------------- G
HKSAR
H H
v
I KHAN IJAZ AHMED (D1) I
----------------------------
J J
K Before: Deputy District Judge K Lo K
Date: 17 September 2024
L L
Present: Mr Jeevan Hingorani, counsel on fiat, for HKSAR
M Mr David Boyton and Ms Elizabeth Herbert, instructed by M
Francis Kong & Co, for the 1st defendant
N N
Offence: [1] to [7] Common assault (普通襲擊)
O O
[8] Assault occasioning actual bodily harm (襲擊他人致造成
P 身體傷害) P
[9] Doing an act or a series of acts tending and intended to
Q Q
pervert the course of public justice (作出一項或一連串傾向
R R
並意圖妨礙司法公正的作為)
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR VERDICT C
-----------------------------------------
D D
E 1. D1 was charged with 7 counts of “common assault”, contrary E
to Common Law and punishable under section 40 of the Offences against
F F
the Person Ordinance, Cap 212 (Charges 1 to 7), a count of “assault
G occasioning actual bodily harm”, contrary to Common Law and punishable G
under section 39 of the Offences against the Persons Ordinance, Cap 212
H H
(Charge 8), and a count of “doing an act or a series of acts tending and
I intended to pervert the course of public justice”, contrary to Common Law I
and punishable under section 101I(5) of the Criminal Procedure Ordinance,
J J
Cap 221 (Charge 9).
K K
2. D1 pleaded not guilty to all charges.
L L
M Prosecution case M
Admitted Facts (Exhibit P14)
N N
O 3. PW1, Naseer Ramzan, was employed by D1 as a foreign O
domestic helper under foreign domestic helper contract dated 6 January
P P
2007 and 25 March 2009.
Q Q
4. D1 notified the Immigration Department of the termination of
R R
PW1’s employment as from 7 December 2010 by a letter dated 9 December
S 2010. S
T T
U U
V V
-3-
A A
B B
5. Movement records of PW1 provided by Immigration
C Department indicated that PW1 left Hong Kong on 7 December 2010 C
through the Hong Kong International Airport checkpoint.
D D
E 6. D1 has a clear record in Hong Kong. E
F F
Evidence from prosecution witness
G G
7. PW1 is the only prosecution witness in this case.
H H
I 8. He was aged 40 at trial. He was born in Pakistan. His family, I
including his parents and siblings, lived in Faisalabad, Pakistan. He got
J J
married in Hong Kong in 2013 and has a daughter. PW1 had received
K education in Pakistan up to primary 5. He was able to speak Punjabi, a K
little Urdu, but he could not read or write. He said he only started to learn
L L
a bit of English since his arrival in Hong Kong.
M M
9. PW1 identified D1 in court. He said he first come to know
N N
D1 in Pakistan and they lived in the same village. PW1 had worked as a
O labourer in the construction of D1’s home for over a year. Later, when the O
house was completed, D1’s family continued to hire PW1 to work in his
P P
home. Later, D1 applied for PW1 to work in Hong Kong as a foreign
Q domestic helper. Q
R R
10. He arrived Hong Kong on 1 May 2007. After delivery of
S goods to D1’s home on the first day upon arrival, he was sent to D1’s S
office. PW1 admitted that he knew he had to work in D1’s office before
T T
he came to Hong Kong.
U U
V V
-4-
A A
B B
C 11. PW1 said he worked in an office and slept in a dormitory C
arranged by D1 in Yau Ma Tei. PW1 said he mainly worked with phones
D D
in the office. In the beginning his hands shook when he touched the phones
E because he was used to handling bricks. He said his work included packing E
and repacking of phones and running other errands.
F F
G Charge 1 G
H H
12. PW1 said 3 days after his arrival in Hong Kong, he was trying
I to strap a carton. As he had no experience, he had difficulty in doing so. I
On seeing this, D1 used his right hand and slapped him 3 times whilst
J J
teaching him how to strap.
K K
13. In court, PW1 demonstrated his face being slapped on the left
L L
side 3 times.
M M
Charge 8
N N
O 14. PW1 told of another incident when PW1 mixed up different O
phone models. When D1 learned of this, he came to the office and kicked
P P
PW1’s right leg with his right leg. In court, PW1 demonstrated the position
Q of the right trouser pocket. Q
R R
15. He said at the time, the transformer of the light tube installed
S in the office was out of order and PW1 was asked to buy a new “tester” to S
be put in the tube to fix the problem. The tester was inside the right trouser
T T
pocket when D1 kicked him. The nail of the tester got into his leg. PW1
U U
V V
-5-
A A
B B
agreed to the description of the tester as “a small piece of object”. He
C agreed that some sharp part of that object went into his leg, hurt his skin C
and there was bleeding. PW1 said that he then went to the toilet and
D D
cleaned the wound.
E E
16. PW1 said he was assaulted by D1 on many occasions.
F F
G Charge 6 G
H H
17. PW1 said one day when he was on holiday, he was washing
I his clothes while sitting on the toilet, he heard bells ringing again and again. I
He thought maybe someone had come to collect some goods. It was
J J
actually D1 calling him. PW1 came from the toilet wearing his shorts. He
K ran to the door and tried to open it, but he could not. PW1 said apparently K
he was trying to open the door from inside whilst D1 was opening the door
L L
from outside using a key.
M M
18. D1 became very angry and PW1 said D1 was swearing at him
N N
from outside and threatening to kill him whilst kicking the door. Later,
O PW1 used tools to remove the screws to the lock of the door. After D1 O
entered the office, he slapped PW1 once with force using his right hand.
P P
PW1 said D1 then told him to get out of his eyesight and locked the door.
Q Q
Charge 7
R R
S 19. PW1 then told of another incident when a customer from S
South Africa bringing a large quantity of goods packed in big boxes. There
T T
was not enough room in his office for packing. D1 said to PW1 that after
U U
V V
-6-
A A
B B
certain cartons were shipped, there would be space for packing the new
C shipment. But as the goods were still there, there was no space for packing. C
PW1 therefore sat on the sofa. When other workers came, they also sat on
D D
the sofa. In the meantime, PW1 fell asleep.
E E
20. D1 later returned. He was angry. He asked other workers to
F F
leave for lunch and asked PW1 to go inside his office. He closed the door
G from inside and he took off his shoe and beat PW1 wherever he could on G
his body. Then he opened the door and asked PW1 to leave. PW1 said D1
H H
also called PW1’s home and complained about PW1.
I I
Charge 4
J J
K 21. PW1 told of another incident involving Blackberry model K
phones. He said these phones were checked before customers came, and
L L
when they came, they found that 10 pieces of these phones not working.
M PW1 said actually there were no problem with these phone except some M
scratches on them, and PW1 had earlier told D1’s brother about the
N N
scratches.
O O
22. PW1 said D1 asked him to go into his office. D1 asked PW1
P P
how many pieces of phone were damaged. PW1 replied “10.” He said D1
Q then took his landline office phone on the table and threw it at PW1. PW1 Q
ducked and the phone hit the wall inside the office.
R R
S 23. Then there was a “stapler” which was used for punching S
papers. D1 threw that “stapler” to hit PW1. In court, PW1 demonstrated
T T
holding the object in his right hand, lift his right forearm and made a
U U
V V
-7-
A A
B B
throwing action. PW1 said the “stapler” came towards his leg and he used
C his right hand to fend off the attack at the front of his leg. C
D D
24. In court, he demonstrated stretching his hand, palm outwards
E and downwards, to fend off. PW1 said three of his fingers in his right hand E
got into contact with the “stapler”. He said the fourth finger was most
F F
painful.
G G
25. He said although D1 looked like a gentleman, he was a very
H H
fierce man when he got angry.
I I
Charge 5
J J
K 26. PW1 then told of an early morning incident when he was K
sleeping on the sofa in the office. The doorbell rang and he saw in the
L L
video camera there was a Pakistani male. He thought the goods from China
M had arrived, so he opened the door and instead saw police officers there. M
PW1 got scared because D1 had asked him not to open the door if police
N N
came. Police then were trying to enter but though the wooden door was
O open, the iron gate was still closed. O
P P
27. PW1 said he was afraid to call D1 for help in fear that D1
Q would abuse him, but as the police were becoming more and more Q
impatient, he rang D1 and informed him police were there. PW1 said D1
R R
abused him on the phone and asked PW1 to give the phone to police. D1
S further asked PW1 not to open the door for the police and should wait until S
he returned.
T T
U U
V V
-8-
A A
B B
28. Later, D1 arrived, he talked to the police outside the office.
C PW1 did not understand what was said by D1 as D1 spoke in English. Then C
D1 threatened PW1 in their own language. D1 entered the office. He took
D D
PW1 towards the toilet side, to the place near the corner of corridor outside
E the toilet and slapped PW1 with his right hand. PW1 said that at the time, E
police were not within sight of PW1, although they were entering the
F F
office. PW1 said D1 threatened him even in presence of police, though in
G their own language. G
H H
29. After that, police came and asked PW1 to show his ID card.
I PW1 fetched his ID card from his wallet in the general office area. Police I
checked the ID card of PW1. They also checked the office. They spoke to
J J
D1 and left. PW1 said after police left, D1 slapped him again. He said D1
K slapped him two times during this incident. K
L L
30. PW1 said he did not make any mistake. In fact, police came
M for D1’s younger brother. M
N N
Charge 3
O O
31. PW1 told of another incident when PW1 was asked to pack
P P
goods in the office. The cargo collection people said one carton of goods
Q was missing and there was an extra label for the carton. PW1 informed D1 Q
of the same and D1 called the cargo collection people. D1 asked PW1
R R
where the missing carton was. PW1 said he did not know. D1 also said
S that PW1 would have to pay for the 100 pieces. S
T T
U U
V V
-9-
A A
B B
32. When PW1 went to the storeroom, D1 slapped him from
C behind. D1 also slapped PW1 and swore at him when he was in the hall C
area in the office. Later, D1 asked PW1 to check other goods to see if the
D D
missing goods were mixed up in there. PW1 then found the missing box.
E PW1 said all these boxes looked similar. None of the goods was missing. E
PW1 said he felt pain after the slapping, but there is no injury.
F F
G Charge 9 G
H H
33. Then PW1 told of the incident when D1 threatened him inside
I the courtroom. I
J J
34. PW1 said during his employment with D1, he did leave Hong
K Kong two times, on 9 February 2010 and 7 December 2010. The first time K
D1 brought PW1 to the wedding of D1’s brother, and PW1 assisted in the
L L
preparation of the wedding. Before his second trip to Pakistan, PW1 said
M he was fed up with the beatings and he asked D1 to pay him. However, he M
was not paid and D1 arranged him to go back to Pakistan and terminated
N N
his contract.
O O
35. PW1 said as he could not get D1 to pay what was due to him,
P P
he returned to Hong Kong illegally and went to court to claim from D1.
Q PW1 said the judge asked PW1 to discuss with D1 for a settlement. PW1 Q
and D1 went into a room in the court. D1 then said to PW1 that he would
R R
hang his parents upside down and flay them, and that they would suffer
S because of PW1. S
T T
U U
V V
- 10 -
A A
B B
36. PW1 said D1 had done a lot to his parents and siblings. As a
C result of the threat, he became scared. He said in the end he settled for C
HK$32,500.
D D
E Half-time submission E
F F
37. At the close of the prosecution case, Defence counsel made a
G submission of no case to answer on Charge 2. G
H H
38. The court later ruled that there is a case to answer by D1 in
I respect of all charges except Charge 2. I
J J
Defence case
K K
39. D1 had been explained of his rights and he elected not to give
L L
evidence, nor call any defence witness.
M M
Discussion
N N
O 40. This court has carefully considered submissions by defence O
counsel.
P P
Q 41. This is a case where PW1 is the only prosecution witness. Q
There is no medical evidence, photographs of injury or admission by D1.
R R
The court will, therefore, need to consider and assess the evidence of PW1
S with extra caution. S
T T
U U
V V
- 11 -
A A
B B
42. This court reminds itself that the burden of proof lies on the
C prosecution to prove the charges beyond reasonable doubt. It is not the C
duty of the defence to prove their case.
D D
E 43. D1 is a man of clear record and due consideration regarding E
his propensity to commit crime has been given. D1 has been explained of
F F
his rights and he elected not to give evidence. This is his right and this
G court would not draw adverse inference against him by reason of his G
election.
H H
I 44. The matters complained of happened between 14 and 17 years I
ago. There is therefore years of delay between the alleged offences and
J J
trial. The court warns itself of the impact which this may have on the
K memories of the witnesses, and as to difficulties which may have resulted K
for the defence.
L L
M 45. There might be a danger of real prejudice to a defendant and M
the court must have this in mind when the court decides whether the
N N
prosecution has made the court sure of the defendant’s guilt. The court
O must make allowance for the fact that from the defendant’s point of view, O
the larger the time since an alleged incident, the more difficult it might be
P P
for him to address.
Q Q
46. In court, PW1 has impressed this court to be a man of
R R
unusually small stature. He had only received limited education and was
S unable to read or write Urdu or Punjabi, although he could speak Punjabi S
and a bit of Urdu. He only started learning a bit of English since his arrival
T T
U U
V V
- 12 -
A A
B B
in Hong Kong. He obviously came from a poor family in Pakistan as he
C worked as a construction labourer, or as a servant doing household chores. C
D D
47. According to him, since his arrival in Hong Kong, he has
E worked for D1 and was travelling daily between the office in Tsim Sha E
Tsui and his dormitory in Yau Ma Tei. He would be summoned to do
F F
errands after office hours. Although PW1 was employed as a foreign
G domestic helper, D1 had arranged PW1 to work in his office. PW1 frankly G
admitted that he knew this arrangement before his arrival in Hong Kong.
H H
PW1 had to yield to requests and directions of D1 even in late evening.
I I
48. PW1 was clearly not a smart person, probably due to limited
J J
education and exposure. When asked in court what his height was, he was
K unable to tell. Even when asked if he was 5 feet 4 inches tall, he replied he K
did not know, but he agreed that D1 was a lot bigger, taller and heavier.
L L
PW1 was obviously not good in expressing himself.
M M
49. As defence has pointed out in court, PW1 said D1 threw a
N N
“stapler” at him, but he further described the “stapler” as something used
O to punch holes. Later PW1 corrected himself and said it was used to make O
pins. He was clearly not familiar with the names and the use of these office
P P
equipment.
Q Q
50. PW1 also said when he first worked for D1 and had to handle
R R
phones, his hands shook as he was unfamiliar with handling these items in
S the past. S
T T
U U
V V
- 13 -
A A
B B
51. Defence said if the alleged assaults had happened as PW1 told
C the court, why would PW1 not report the case to the police? PW1 in court C
did explain that he did not understand English. Even when he was
D D
intercepted by police for jaywalking, he had to ring his colleagues for the
E latter to speak to the police in order to understand what the police was E
asking or trying to do. Of course, he could not have risked and asked his
F F
colleagues, who were relatives of D1 or related to D1 or dependent on D1,
G to report the assaults by D1 to police on his behalf. G
H H
52. One must not forget that PW1 was of the view that D1 and his
I family were very influential in their village in Pakistan and could do things I
harmful to his family. There was vast discrepancy in social status and
J J
financial standing of PW1 as opposed to that of D1. This is not disputed,
K and this court has no doubt that these things matter a lot in Pakistan. PW1 K
and his family are still residing in the same village as D1’s family.
L L
M 53. This court agreed that PW1 disliked D1 for the things that D1 M
did to him and always described D1 as having destroyed him. Despite this
N N
dislike of D1, PW1 did not exaggerate in his evidence against D1.
O O
54. For example, regarding the shoe incident, PW1 could have
P P
lied and said that he had bruises all over his body after the attack. Instead,
Q he said he just felt pain in the back and therefore presumed he had bruises Q
on the back. He frankly admitted that he could not see his own back
R R
himself to check if there was actually noticeable bruises after the attack.
S He explained he did duck and avoid the attacks by D1 which obviously S
minimised the harm to him.
T T
U U
V V
- 14 -
A A
B B
55. For the stapler incident, PW1 could have said all fingers were
C swollen after the incident, but instead he said two or three fingers were hit C
by the stapler and they were painful.
D D
E 56. In court, PW1 was seen to be at various times very upset and E
he said things to D1 like “I curse on you that your son should suffer the
F F
same.” Defence said this showed the animosity that PW1 has against D1.
G But this curse, in the view of the court, would not be threatening had there G
not been assaults on PW1 by D1 because there would not be suffering.
H H
I 57. Defence criticised PW1 for not directly answering questions I
in cross-examination. In fact, in examination-in-chief, PW1 also said
J J
things not directly pertaining to the important issues or the questions asked.
K He spent time telling detailed background information. For example, he K
would tell D1 always stay in the office overnight after disco on Saturday,
L L
or D1’s friends asked PW1 to buy yoghurt and Blue Label whiskey during
M their visit. These are matters not relevant and not asked by the prosecuting M
counsel.
N N
O 58. This court opined that PW1 was a man, far from smart, partly O
due to his limited education and exposure.
P P
Q 59. The matters complained of by PW1 happened between 14 and Q
17 years ago. It is not disputed that PW1, although having received limited
R R
education, was illiterate. He was unable to and did not refresh his memory
S by reading the transcript or watching the video-recorded interviews S
conducted by the police years ago before he came to court. His evidence
T T
was therefore solely based on his recollection of the events.
U U
V V
- 15 -
A A
B B
C 60. Whilst this court agrees that if one is painful after the assault, C
one is injured. However, it is clear and this court accepts that in the mind
D D
of PW1, he was honestly of the view, though wrongly so, that if there was
E no bleeding, there would be no injury. He told police of the assaults by D1 E
using his shoe, yet he said he was not injured when he said he felt pain in
F F
his back. It is obvious to anyone that if one was hit by a shoe as PW1
G mentioned, he would in the least feel pain and, therefore, one is injured. G
H H
61. Defence said that PW1 evaded the question of whether PW1
I did make a torture claim based on complaints against D1. Actually, PW1 I
did say he told of his experience on his arrival in Hong Kong and
J J
subsequent thereto. Therefore, he has actually clearly answered the
K question. He answered though not directly. K
L L
62. Nevertheless, PW1 said that there was no longer any torture
M claim lodged by him. It is an undisputed fact that since PW1’s return to M
Hong Kong, he has married and has obtained status as a Hong Kong
N N
resident. There is therefore no purpose served for PW1 to further his
O torture claim. O
P P
63. Defence said that had D1 threatened PW1 as PW1 told the
Q court in the Labour Tribunal, then PW1 should have accepted any offer by Q
D1 subsequent to the threat. This court disagreed to the assertion. The
R R
threat, if it existed, would definitely work on the mind of PW1, but not
S necessarily to the extent of accepting any offer for settlement from D1. S
T T
U U
V V
- 16 -
A A
B B
64. As PW1 explained, he had really worked for D1 and should
C be entitled to the amount claimed by him as advised by the Labour C
Department.
D D
E 65. This court has reservation to adopt the stance taken by the E
presiding officer in the Labour Tribunal, when there was no dispute that
F F
PW1 did work for D1 during that period of time, that PW1 himself has to
G support his claim for outstanding wages with evidence. Would it not be on G
the burden of D1 to show evidence of payment?
H H
I 66. After carefully and cautiously assessing the evidence of PW1, I
this court finds PW1 a truthful witness. However, the quality of his
J J
evidence was at times affected by his inability to fully and accurately
K express himself with words and possible memory difficulties/confusion, K
probably due to effluxion of time. When in doubt as to what inference
L L
should be drawn, this court would adopt an inference favourable to D1.
M M
Charge 1
N N
O 67. In the first police interview, PW1 told police that during the O
first assault incident, D1 used his right hand and slapped PW1’s right face.
P P
But as defence counsel pointed out, in fact on video, PW1 had
Q demonstrated his left face being slapped. This discrepancy between his Q
words and demonstration justified the clarifying question by the
R R
interviewer. Then PW1 corrected at once and said he was slapped on the
S left face. S
T T
U U
V V
- 17 -
A A
B B
68. This court accepts that the incident did happen as PW1 told
C this court. The prosecution has proved Charge 1 beyond reasonable doubt C
and D1 is convicted of the charge.
D D
E Charge 3 E
F F
69. Whilst this court is satisfied that PW1 was assaulted by D1 in
G circumstances said by PW1, ie by slapping in the storeroom and in the hall G
of the office which caused pain to PW1, this assault could not be described
H H
as “D1 hitting the back of PW1’s head” as prosecution in their
I supplemental opening stated. There is also no evidence that the assault I
happened in the evening. As such, this court, whilst accepting PW1’s
J J
evidence, the evidence did not support this particular charge as depicted in
K the supplemental opening. K
L L
70. The charge as depicted was not proved. Therefore, this court
M finds D1 not guilty of this charge. M
N N
Charge 4
O O
71. PW1 frankly admitted that he did not mention D1 throwing
P P
the landline phone at him in his video-recorded interview, and he explained
Q that he had forgotten to tell at the time of interview. In any event, PW1 Q
said that he dodged, the phone did not actually hit him as it hit the wall,
R R
and he was only hit by the “stapler”. Although PW1 did in the interview
S say the stapler hit his two fingers and was painful, in court he said three S
fingers were hit and they felt painful.
T T
U U
V V
- 18 -
A A
B B
72. This court accepts beyond doubt the incident that a “stapler”
C object was thrown at PW1 at the time, and when PW1 fended off the attack C
with his right hand, the stapler hit his fingers and he felt painful. There
D D
was no blood which in the mind of PW1 meant there was no injury.
E E
73. This court did not agree with the speculation of the defence
F F
that bones would be fractured if the stapler got in contact with the
G defendant’s hand in such fending action. G
H H
74. It did not matter whether two fingers or three fingers got in
I contact with the stapler. The discrepancy in the evidence of PW1 was I
understandable in view of the lapse of time. This court is convinced that
J J
the incident did occur.
K K
75. This court finds the charge proved beyond reasonable doubt
L L
and D1 is convicted of this charge.
M M
Charge 5
N N
O 76. In the supplemental opening of the prosecution, the time of O
offence was described as at around 2:00 am to 2:30 am. PW1, when giving
P P
evidence, said that he went to the dormitory after work. At around 1 am,
Q he had his dinner from the fridge. Afterwards, D1’s uncle said something Q
to PW1 and PW1 returned to the office and laid on the sofa. Then he heard
R R
the ringing of the bells. The assault incident occurred later on.
S S
77. Although PW1 in court told of the slapping by D1 outside the
T T
toilet near the corner of the corridor, and not as described in the
U U
V V
- 19 -
A A
B B
supplemental opening as inside the washroom, this court did not find the
C discrepancy material. C
D D
78. PW1 when cross-examined said once he opened the door, D1
E quickly entered the office ahead of PW1, and he swore at PW1 while E
pushing him towards the toilet and slapped PW1. Police then could not see
F F
what happened because there was a corridor.
G G
79. PW1 said in the interview dated 9 June 2017 from 0950 hours,
H H
“After that he immediately bring the police in, and police saw everything.”1
I Obviously, PW1 did not mean the police witnessed the assault incident as I
they were not yet inside the office and within sight at that time.
J J
K 80. In paragraph 24 of defence counsel’s submission, PW1 was K
quoted as saying in the video-recorded interview that “there is our store, he
L L
just pushed me to the toilet.” In fact, according to the transcript of the
M video-recorded interview, it should be “he just pushed me towards the M
toilet.” This entry is consistent with PW1’s evidence in court that he was
N N
outside the toilet in the corner of the corridor when he was slapped.
O O
81. PW1 in court said D1 was already abusing and swearing at
P P
him in their language before he entered the office. This was not disputed
Q by the defence. The court failed to see how the police could have acted as Q
defence suggested in the submission, when they heard the swearing in
R R
Punjabi, a language that the police officers failed to comprehend.
S S
T T
1
Entry 635
U U
V V
- 20 -
A A
B B
82. Defence counsel queried the possibility that D1 would slap
C PW1 when police were present. Although this is not the evidence before C
the court, this court has noted numerous cases when people assault another
D D
even in the presence of police. This is something not sensible, but these
E things do happen. E
F F
83. Further, according to PW1, police should be after D1’s
G brother at the time and thought PW1 was D1’s brother. Police were not G
afraid that PW1 could escape as PW1 did not escape even before police
H H
were not able to enter the office. Therefore, there was no urgency for them
I to apprehend PW1 at a fast speed. I
J J
84. This court is satisfied beyond reasonable doubt that the
K assaults by D1 against PW1 did happen in the manner as PW1 told the K
court. D1 is convicted of Charge 5.
L L
M Charge 6 M
N N
85. PW1 maintained, when cross-examined, that D1 was orally
O abusing him, swearing at him and kicking the door even when he was O
outside the office because he thought PW1 had locked the door from within
P P
when PW1 did not. After entering the office, D1 slapped PW1 once with
Q his right hand forcefully. Q
R R
86. This court accepts the evidence of PW1 that D1 did slap PW1
S during this incident. Charge 6 is proved beyond reasonable doubt and D1 S
is convicted of the charge.
T T
U U
V V
- 21 -
A A
B B
Charge 7
C C
87. When PW1 was asked if he was attacked by D1, a much
D D
bigger built man than PW1, how could he not suffer any injury? PW1
E replied “I suffer hits, but I dodged,” and he demonstrated in court how he E
dodged. He said he suffered no injury, but he felt painful for two or three
F F
days. He said there should be bruises on his back as he felt pain for two or
G three days, but he could not see his own back. He said as there was no G
bleeding, there was no injury.
H H
I 88. He confirmed that in his statement to police in the night of 9 I
June 2017, when asked by police “Did you get hurt?” he replied “No.” In
J J
court, PW1 said he felt painful, at the same time, he said he was not hurt
K because there was no bleeding. If PW1 really thought “hurt” would include K
“feeling painful”, by giving the answer that he was not hurt, even though
L L
he is not a smart person, he would have known that his evidence would
M became unbelievable. M
N N
89. In the circumstances, the court accepts his explanation that he
O really thinks that “no bleeding” means “not hurt”. It was noted that PW1 O
was not asked at any stage if he felt anything after the shoe incident.
P P
Q 90. This court is satisfied the incident occurred as PW1 told the Q
court. Charge 7 is proved beyond reasonable doubt and D1 is convicted of
R R
the charge.
S S
T T
U U
V V
- 22 -
A A
B B
Charge 8
C C
91. PW1 said in court he was wearing jeans on the day and the
D D
“tester” (or “fuse”) was inside the pocket of the jeans. PW1 said that
E sometimes he wore a shalwar, sometimes he wore jeans in the office. He E
also said that he remembered the fuse was inside the trouser pocket. PW1
F F
also admitted that the pocket of shalwar would be in the front.
G G
92. PW1 said D1 kicked him so hard that the fuse went into the
H H
skin and hurt him and there was bleeding. He agreed that the object at the
I time looked like Exhibit D3 produced in court. I
J J
93. On inspection of the fuse (Exhibit D3), there are nail-like
K components on the sides. This court agreed that if large force was applied K
on the fuse against skin, the fuse could easily break the skin and cause
L L
bleeding.
M M
94. Defence counsel put to PW1 that in PW1’s statement to police
N N
on 22 June 2017, PW1 said he was wearing Pakistani clothing at the time
O and was squatting whilst packing, and the fuse was in his right pocket when O
D1 kicked him. PW1 said for the kameez and shalwar that he had, there
P P
were pockets on the side. PW1, however, maintained in court that he was
Q wearing jeans on that day. Q
R R
95. Defence counsel said pockets of shalwar were always in the
S front, not at the side. This court takes the view that if PW1 was wearing a S
shalwar at the time with the fuse in the front pocket, and PW1 was in a
T T
squatting position when the kick occurred, if the size of the pocket is big
U U
V V
- 23 -
A A
B B
enough, the item in the pocket could be easily displaced to the side of the
C hip causing the injury as PW1 told the court. If the shalwar pocket is tight, C
then that would prevent the item in the pocket being displaced when
D D
squatting.
E E
96. Whilst this court accepts the evidence of PW1 that an item in
F F
PW1’s pocket, be it pocket of his jeans or shalwar or kameez, got into his
G skin causing him to bleed when D1 kicked him. In view of the vagueness G
in PW1’s evidence as to where exactly the item was placed at the material
H H
time, and given PW1 did accept in the cross-examination that usually the
I pocket of shalwar was in the front, and this court not knowing the looseness I
or tightness of this pocket of the shalwar, the court will give the defendant
J J
the benefit of doubt, and the charge is therefore not proved.
K K
97. D1 is acquitted of Charge 8.
L L
M Charge 9 M
N N
98. PW1 said the amount he claimed from D1 was as advised by
O the Labour Department. He told of the threat uttered by D1 when they O
were alone inside the room within the court building when the court asked
P P
them to negotiate possible settlement for this civil claim lodged by PW1 in
Q the Labour Tribunal. According to PW1, it was said by D1 that PW1’s Q
parents would be hanged upside and skinned.
R R
S 99. Whilst this court accepts the threat was uttered as deposed to S
by PW1, on the evidence before the court, the prosecution has failed to
T T
elicit from PW1 in detail, that when D1 uttered the threat, the conditions
U U
V V
- 24 -
A A
B B
under which D1 would implement the threat, and whether the same
C constituted an act which has the tendency and is intended to pervert the C
2
course of justice .
D D
E 100. It appears that PW1 was saying that D1 made the threat so that E
PW1 would accept the offer for settlement. Did D1 mean that PW1 should
F F
withdraw the whole claim? Or did D1 say that he would inevitably carry
G out the threat as PW1 had brought the case? G
H H
101. This court finds the charge is not proved beyond reasonable
I doubt. D1 is found not guilty of Charge 9. I
J J
Conclusion
K K
102. D1 is convicted of Charges 1, 4, 5, 6 and 7, and acquitted of
L L
Charges 3, 8 and 9. This court has earlier ruled there is no case to answer
M on Charge 2, Charge 2 was dismissed. M
N N
O O
P P
( K Lo )
Q Deputy District Judge Q
R R
S S
T T
2
HKSAR v Wong Chi Wai (2013) 16 HKCFAR 539
U U
V V
A A
B B
DCCC 389/2022
C [2024] HKDC 1549 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 389 OF 2022
F F
G --------------------------- G
HKSAR
H H
v
I KHAN IJAZ AHMED (D1) I
----------------------------
J J
K Before: Deputy District Judge K Lo K
Date: 17 September 2024
L L
Present: Mr Jeevan Hingorani, counsel on fiat, for HKSAR
M Mr David Boyton and Ms Elizabeth Herbert, instructed by M
Francis Kong & Co, for the 1st defendant
N N
Offence: [1] to [7] Common assault (普通襲擊)
O O
[8] Assault occasioning actual bodily harm (襲擊他人致造成
P 身體傷害) P
[9] Doing an act or a series of acts tending and intended to
Q Q
pervert the course of public justice (作出一項或一連串傾向
R R
並意圖妨礙司法公正的作為)
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR VERDICT C
-----------------------------------------
D D
E 1. D1 was charged with 7 counts of “common assault”, contrary E
to Common Law and punishable under section 40 of the Offences against
F F
the Person Ordinance, Cap 212 (Charges 1 to 7), a count of “assault
G occasioning actual bodily harm”, contrary to Common Law and punishable G
under section 39 of the Offences against the Persons Ordinance, Cap 212
H H
(Charge 8), and a count of “doing an act or a series of acts tending and
I intended to pervert the course of public justice”, contrary to Common Law I
and punishable under section 101I(5) of the Criminal Procedure Ordinance,
J J
Cap 221 (Charge 9).
K K
2. D1 pleaded not guilty to all charges.
L L
M Prosecution case M
Admitted Facts (Exhibit P14)
N N
O 3. PW1, Naseer Ramzan, was employed by D1 as a foreign O
domestic helper under foreign domestic helper contract dated 6 January
P P
2007 and 25 March 2009.
Q Q
4. D1 notified the Immigration Department of the termination of
R R
PW1’s employment as from 7 December 2010 by a letter dated 9 December
S 2010. S
T T
U U
V V
-3-
A A
B B
5. Movement records of PW1 provided by Immigration
C Department indicated that PW1 left Hong Kong on 7 December 2010 C
through the Hong Kong International Airport checkpoint.
D D
E 6. D1 has a clear record in Hong Kong. E
F F
Evidence from prosecution witness
G G
7. PW1 is the only prosecution witness in this case.
H H
I 8. He was aged 40 at trial. He was born in Pakistan. His family, I
including his parents and siblings, lived in Faisalabad, Pakistan. He got
J J
married in Hong Kong in 2013 and has a daughter. PW1 had received
K education in Pakistan up to primary 5. He was able to speak Punjabi, a K
little Urdu, but he could not read or write. He said he only started to learn
L L
a bit of English since his arrival in Hong Kong.
M M
9. PW1 identified D1 in court. He said he first come to know
N N
D1 in Pakistan and they lived in the same village. PW1 had worked as a
O labourer in the construction of D1’s home for over a year. Later, when the O
house was completed, D1’s family continued to hire PW1 to work in his
P P
home. Later, D1 applied for PW1 to work in Hong Kong as a foreign
Q domestic helper. Q
R R
10. He arrived Hong Kong on 1 May 2007. After delivery of
S goods to D1’s home on the first day upon arrival, he was sent to D1’s S
office. PW1 admitted that he knew he had to work in D1’s office before
T T
he came to Hong Kong.
U U
V V
-4-
A A
B B
C 11. PW1 said he worked in an office and slept in a dormitory C
arranged by D1 in Yau Ma Tei. PW1 said he mainly worked with phones
D D
in the office. In the beginning his hands shook when he touched the phones
E because he was used to handling bricks. He said his work included packing E
and repacking of phones and running other errands.
F F
G Charge 1 G
H H
12. PW1 said 3 days after his arrival in Hong Kong, he was trying
I to strap a carton. As he had no experience, he had difficulty in doing so. I
On seeing this, D1 used his right hand and slapped him 3 times whilst
J J
teaching him how to strap.
K K
13. In court, PW1 demonstrated his face being slapped on the left
L L
side 3 times.
M M
Charge 8
N N
O 14. PW1 told of another incident when PW1 mixed up different O
phone models. When D1 learned of this, he came to the office and kicked
P P
PW1’s right leg with his right leg. In court, PW1 demonstrated the position
Q of the right trouser pocket. Q
R R
15. He said at the time, the transformer of the light tube installed
S in the office was out of order and PW1 was asked to buy a new “tester” to S
be put in the tube to fix the problem. The tester was inside the right trouser
T T
pocket when D1 kicked him. The nail of the tester got into his leg. PW1
U U
V V
-5-
A A
B B
agreed to the description of the tester as “a small piece of object”. He
C agreed that some sharp part of that object went into his leg, hurt his skin C
and there was bleeding. PW1 said that he then went to the toilet and
D D
cleaned the wound.
E E
16. PW1 said he was assaulted by D1 on many occasions.
F F
G Charge 6 G
H H
17. PW1 said one day when he was on holiday, he was washing
I his clothes while sitting on the toilet, he heard bells ringing again and again. I
He thought maybe someone had come to collect some goods. It was
J J
actually D1 calling him. PW1 came from the toilet wearing his shorts. He
K ran to the door and tried to open it, but he could not. PW1 said apparently K
he was trying to open the door from inside whilst D1 was opening the door
L L
from outside using a key.
M M
18. D1 became very angry and PW1 said D1 was swearing at him
N N
from outside and threatening to kill him whilst kicking the door. Later,
O PW1 used tools to remove the screws to the lock of the door. After D1 O
entered the office, he slapped PW1 once with force using his right hand.
P P
PW1 said D1 then told him to get out of his eyesight and locked the door.
Q Q
Charge 7
R R
S 19. PW1 then told of another incident when a customer from S
South Africa bringing a large quantity of goods packed in big boxes. There
T T
was not enough room in his office for packing. D1 said to PW1 that after
U U
V V
-6-
A A
B B
certain cartons were shipped, there would be space for packing the new
C shipment. But as the goods were still there, there was no space for packing. C
PW1 therefore sat on the sofa. When other workers came, they also sat on
D D
the sofa. In the meantime, PW1 fell asleep.
E E
20. D1 later returned. He was angry. He asked other workers to
F F
leave for lunch and asked PW1 to go inside his office. He closed the door
G from inside and he took off his shoe and beat PW1 wherever he could on G
his body. Then he opened the door and asked PW1 to leave. PW1 said D1
H H
also called PW1’s home and complained about PW1.
I I
Charge 4
J J
K 21. PW1 told of another incident involving Blackberry model K
phones. He said these phones were checked before customers came, and
L L
when they came, they found that 10 pieces of these phones not working.
M PW1 said actually there were no problem with these phone except some M
scratches on them, and PW1 had earlier told D1’s brother about the
N N
scratches.
O O
22. PW1 said D1 asked him to go into his office. D1 asked PW1
P P
how many pieces of phone were damaged. PW1 replied “10.” He said D1
Q then took his landline office phone on the table and threw it at PW1. PW1 Q
ducked and the phone hit the wall inside the office.
R R
S 23. Then there was a “stapler” which was used for punching S
papers. D1 threw that “stapler” to hit PW1. In court, PW1 demonstrated
T T
holding the object in his right hand, lift his right forearm and made a
U U
V V
-7-
A A
B B
throwing action. PW1 said the “stapler” came towards his leg and he used
C his right hand to fend off the attack at the front of his leg. C
D D
24. In court, he demonstrated stretching his hand, palm outwards
E and downwards, to fend off. PW1 said three of his fingers in his right hand E
got into contact with the “stapler”. He said the fourth finger was most
F F
painful.
G G
25. He said although D1 looked like a gentleman, he was a very
H H
fierce man when he got angry.
I I
Charge 5
J J
K 26. PW1 then told of an early morning incident when he was K
sleeping on the sofa in the office. The doorbell rang and he saw in the
L L
video camera there was a Pakistani male. He thought the goods from China
M had arrived, so he opened the door and instead saw police officers there. M
PW1 got scared because D1 had asked him not to open the door if police
N N
came. Police then were trying to enter but though the wooden door was
O open, the iron gate was still closed. O
P P
27. PW1 said he was afraid to call D1 for help in fear that D1
Q would abuse him, but as the police were becoming more and more Q
impatient, he rang D1 and informed him police were there. PW1 said D1
R R
abused him on the phone and asked PW1 to give the phone to police. D1
S further asked PW1 not to open the door for the police and should wait until S
he returned.
T T
U U
V V
-8-
A A
B B
28. Later, D1 arrived, he talked to the police outside the office.
C PW1 did not understand what was said by D1 as D1 spoke in English. Then C
D1 threatened PW1 in their own language. D1 entered the office. He took
D D
PW1 towards the toilet side, to the place near the corner of corridor outside
E the toilet and slapped PW1 with his right hand. PW1 said that at the time, E
police were not within sight of PW1, although they were entering the
F F
office. PW1 said D1 threatened him even in presence of police, though in
G their own language. G
H H
29. After that, police came and asked PW1 to show his ID card.
I PW1 fetched his ID card from his wallet in the general office area. Police I
checked the ID card of PW1. They also checked the office. They spoke to
J J
D1 and left. PW1 said after police left, D1 slapped him again. He said D1
K slapped him two times during this incident. K
L L
30. PW1 said he did not make any mistake. In fact, police came
M for D1’s younger brother. M
N N
Charge 3
O O
31. PW1 told of another incident when PW1 was asked to pack
P P
goods in the office. The cargo collection people said one carton of goods
Q was missing and there was an extra label for the carton. PW1 informed D1 Q
of the same and D1 called the cargo collection people. D1 asked PW1
R R
where the missing carton was. PW1 said he did not know. D1 also said
S that PW1 would have to pay for the 100 pieces. S
T T
U U
V V
-9-
A A
B B
32. When PW1 went to the storeroom, D1 slapped him from
C behind. D1 also slapped PW1 and swore at him when he was in the hall C
area in the office. Later, D1 asked PW1 to check other goods to see if the
D D
missing goods were mixed up in there. PW1 then found the missing box.
E PW1 said all these boxes looked similar. None of the goods was missing. E
PW1 said he felt pain after the slapping, but there is no injury.
F F
G Charge 9 G
H H
33. Then PW1 told of the incident when D1 threatened him inside
I the courtroom. I
J J
34. PW1 said during his employment with D1, he did leave Hong
K Kong two times, on 9 February 2010 and 7 December 2010. The first time K
D1 brought PW1 to the wedding of D1’s brother, and PW1 assisted in the
L L
preparation of the wedding. Before his second trip to Pakistan, PW1 said
M he was fed up with the beatings and he asked D1 to pay him. However, he M
was not paid and D1 arranged him to go back to Pakistan and terminated
N N
his contract.
O O
35. PW1 said as he could not get D1 to pay what was due to him,
P P
he returned to Hong Kong illegally and went to court to claim from D1.
Q PW1 said the judge asked PW1 to discuss with D1 for a settlement. PW1 Q
and D1 went into a room in the court. D1 then said to PW1 that he would
R R
hang his parents upside down and flay them, and that they would suffer
S because of PW1. S
T T
U U
V V
- 10 -
A A
B B
36. PW1 said D1 had done a lot to his parents and siblings. As a
C result of the threat, he became scared. He said in the end he settled for C
HK$32,500.
D D
E Half-time submission E
F F
37. At the close of the prosecution case, Defence counsel made a
G submission of no case to answer on Charge 2. G
H H
38. The court later ruled that there is a case to answer by D1 in
I respect of all charges except Charge 2. I
J J
Defence case
K K
39. D1 had been explained of his rights and he elected not to give
L L
evidence, nor call any defence witness.
M M
Discussion
N N
O 40. This court has carefully considered submissions by defence O
counsel.
P P
Q 41. This is a case where PW1 is the only prosecution witness. Q
There is no medical evidence, photographs of injury or admission by D1.
R R
The court will, therefore, need to consider and assess the evidence of PW1
S with extra caution. S
T T
U U
V V
- 11 -
A A
B B
42. This court reminds itself that the burden of proof lies on the
C prosecution to prove the charges beyond reasonable doubt. It is not the C
duty of the defence to prove their case.
D D
E 43. D1 is a man of clear record and due consideration regarding E
his propensity to commit crime has been given. D1 has been explained of
F F
his rights and he elected not to give evidence. This is his right and this
G court would not draw adverse inference against him by reason of his G
election.
H H
I 44. The matters complained of happened between 14 and 17 years I
ago. There is therefore years of delay between the alleged offences and
J J
trial. The court warns itself of the impact which this may have on the
K memories of the witnesses, and as to difficulties which may have resulted K
for the defence.
L L
M 45. There might be a danger of real prejudice to a defendant and M
the court must have this in mind when the court decides whether the
N N
prosecution has made the court sure of the defendant’s guilt. The court
O must make allowance for the fact that from the defendant’s point of view, O
the larger the time since an alleged incident, the more difficult it might be
P P
for him to address.
Q Q
46. In court, PW1 has impressed this court to be a man of
R R
unusually small stature. He had only received limited education and was
S unable to read or write Urdu or Punjabi, although he could speak Punjabi S
and a bit of Urdu. He only started learning a bit of English since his arrival
T T
U U
V V
- 12 -
A A
B B
in Hong Kong. He obviously came from a poor family in Pakistan as he
C worked as a construction labourer, or as a servant doing household chores. C
D D
47. According to him, since his arrival in Hong Kong, he has
E worked for D1 and was travelling daily between the office in Tsim Sha E
Tsui and his dormitory in Yau Ma Tei. He would be summoned to do
F F
errands after office hours. Although PW1 was employed as a foreign
G domestic helper, D1 had arranged PW1 to work in his office. PW1 frankly G
admitted that he knew this arrangement before his arrival in Hong Kong.
H H
PW1 had to yield to requests and directions of D1 even in late evening.
I I
48. PW1 was clearly not a smart person, probably due to limited
J J
education and exposure. When asked in court what his height was, he was
K unable to tell. Even when asked if he was 5 feet 4 inches tall, he replied he K
did not know, but he agreed that D1 was a lot bigger, taller and heavier.
L L
PW1 was obviously not good in expressing himself.
M M
49. As defence has pointed out in court, PW1 said D1 threw a
N N
“stapler” at him, but he further described the “stapler” as something used
O to punch holes. Later PW1 corrected himself and said it was used to make O
pins. He was clearly not familiar with the names and the use of these office
P P
equipment.
Q Q
50. PW1 also said when he first worked for D1 and had to handle
R R
phones, his hands shook as he was unfamiliar with handling these items in
S the past. S
T T
U U
V V
- 13 -
A A
B B
51. Defence said if the alleged assaults had happened as PW1 told
C the court, why would PW1 not report the case to the police? PW1 in court C
did explain that he did not understand English. Even when he was
D D
intercepted by police for jaywalking, he had to ring his colleagues for the
E latter to speak to the police in order to understand what the police was E
asking or trying to do. Of course, he could not have risked and asked his
F F
colleagues, who were relatives of D1 or related to D1 or dependent on D1,
G to report the assaults by D1 to police on his behalf. G
H H
52. One must not forget that PW1 was of the view that D1 and his
I family were very influential in their village in Pakistan and could do things I
harmful to his family. There was vast discrepancy in social status and
J J
financial standing of PW1 as opposed to that of D1. This is not disputed,
K and this court has no doubt that these things matter a lot in Pakistan. PW1 K
and his family are still residing in the same village as D1’s family.
L L
M 53. This court agreed that PW1 disliked D1 for the things that D1 M
did to him and always described D1 as having destroyed him. Despite this
N N
dislike of D1, PW1 did not exaggerate in his evidence against D1.
O O
54. For example, regarding the shoe incident, PW1 could have
P P
lied and said that he had bruises all over his body after the attack. Instead,
Q he said he just felt pain in the back and therefore presumed he had bruises Q
on the back. He frankly admitted that he could not see his own back
R R
himself to check if there was actually noticeable bruises after the attack.
S He explained he did duck and avoid the attacks by D1 which obviously S
minimised the harm to him.
T T
U U
V V
- 14 -
A A
B B
55. For the stapler incident, PW1 could have said all fingers were
C swollen after the incident, but instead he said two or three fingers were hit C
by the stapler and they were painful.
D D
E 56. In court, PW1 was seen to be at various times very upset and E
he said things to D1 like “I curse on you that your son should suffer the
F F
same.” Defence said this showed the animosity that PW1 has against D1.
G But this curse, in the view of the court, would not be threatening had there G
not been assaults on PW1 by D1 because there would not be suffering.
H H
I 57. Defence criticised PW1 for not directly answering questions I
in cross-examination. In fact, in examination-in-chief, PW1 also said
J J
things not directly pertaining to the important issues or the questions asked.
K He spent time telling detailed background information. For example, he K
would tell D1 always stay in the office overnight after disco on Saturday,
L L
or D1’s friends asked PW1 to buy yoghurt and Blue Label whiskey during
M their visit. These are matters not relevant and not asked by the prosecuting M
counsel.
N N
O 58. This court opined that PW1 was a man, far from smart, partly O
due to his limited education and exposure.
P P
Q 59. The matters complained of by PW1 happened between 14 and Q
17 years ago. It is not disputed that PW1, although having received limited
R R
education, was illiterate. He was unable to and did not refresh his memory
S by reading the transcript or watching the video-recorded interviews S
conducted by the police years ago before he came to court. His evidence
T T
was therefore solely based on his recollection of the events.
U U
V V
- 15 -
A A
B B
C 60. Whilst this court agrees that if one is painful after the assault, C
one is injured. However, it is clear and this court accepts that in the mind
D D
of PW1, he was honestly of the view, though wrongly so, that if there was
E no bleeding, there would be no injury. He told police of the assaults by D1 E
using his shoe, yet he said he was not injured when he said he felt pain in
F F
his back. It is obvious to anyone that if one was hit by a shoe as PW1
G mentioned, he would in the least feel pain and, therefore, one is injured. G
H H
61. Defence said that PW1 evaded the question of whether PW1
I did make a torture claim based on complaints against D1. Actually, PW1 I
did say he told of his experience on his arrival in Hong Kong and
J J
subsequent thereto. Therefore, he has actually clearly answered the
K question. He answered though not directly. K
L L
62. Nevertheless, PW1 said that there was no longer any torture
M claim lodged by him. It is an undisputed fact that since PW1’s return to M
Hong Kong, he has married and has obtained status as a Hong Kong
N N
resident. There is therefore no purpose served for PW1 to further his
O torture claim. O
P P
63. Defence said that had D1 threatened PW1 as PW1 told the
Q court in the Labour Tribunal, then PW1 should have accepted any offer by Q
D1 subsequent to the threat. This court disagreed to the assertion. The
R R
threat, if it existed, would definitely work on the mind of PW1, but not
S necessarily to the extent of accepting any offer for settlement from D1. S
T T
U U
V V
- 16 -
A A
B B
64. As PW1 explained, he had really worked for D1 and should
C be entitled to the amount claimed by him as advised by the Labour C
Department.
D D
E 65. This court has reservation to adopt the stance taken by the E
presiding officer in the Labour Tribunal, when there was no dispute that
F F
PW1 did work for D1 during that period of time, that PW1 himself has to
G support his claim for outstanding wages with evidence. Would it not be on G
the burden of D1 to show evidence of payment?
H H
I 66. After carefully and cautiously assessing the evidence of PW1, I
this court finds PW1 a truthful witness. However, the quality of his
J J
evidence was at times affected by his inability to fully and accurately
K express himself with words and possible memory difficulties/confusion, K
probably due to effluxion of time. When in doubt as to what inference
L L
should be drawn, this court would adopt an inference favourable to D1.
M M
Charge 1
N N
O 67. In the first police interview, PW1 told police that during the O
first assault incident, D1 used his right hand and slapped PW1’s right face.
P P
But as defence counsel pointed out, in fact on video, PW1 had
Q demonstrated his left face being slapped. This discrepancy between his Q
words and demonstration justified the clarifying question by the
R R
interviewer. Then PW1 corrected at once and said he was slapped on the
S left face. S
T T
U U
V V
- 17 -
A A
B B
68. This court accepts that the incident did happen as PW1 told
C this court. The prosecution has proved Charge 1 beyond reasonable doubt C
and D1 is convicted of the charge.
D D
E Charge 3 E
F F
69. Whilst this court is satisfied that PW1 was assaulted by D1 in
G circumstances said by PW1, ie by slapping in the storeroom and in the hall G
of the office which caused pain to PW1, this assault could not be described
H H
as “D1 hitting the back of PW1’s head” as prosecution in their
I supplemental opening stated. There is also no evidence that the assault I
happened in the evening. As such, this court, whilst accepting PW1’s
J J
evidence, the evidence did not support this particular charge as depicted in
K the supplemental opening. K
L L
70. The charge as depicted was not proved. Therefore, this court
M finds D1 not guilty of this charge. M
N N
Charge 4
O O
71. PW1 frankly admitted that he did not mention D1 throwing
P P
the landline phone at him in his video-recorded interview, and he explained
Q that he had forgotten to tell at the time of interview. In any event, PW1 Q
said that he dodged, the phone did not actually hit him as it hit the wall,
R R
and he was only hit by the “stapler”. Although PW1 did in the interview
S say the stapler hit his two fingers and was painful, in court he said three S
fingers were hit and they felt painful.
T T
U U
V V
- 18 -
A A
B B
72. This court accepts beyond doubt the incident that a “stapler”
C object was thrown at PW1 at the time, and when PW1 fended off the attack C
with his right hand, the stapler hit his fingers and he felt painful. There
D D
was no blood which in the mind of PW1 meant there was no injury.
E E
73. This court did not agree with the speculation of the defence
F F
that bones would be fractured if the stapler got in contact with the
G defendant’s hand in such fending action. G
H H
74. It did not matter whether two fingers or three fingers got in
I contact with the stapler. The discrepancy in the evidence of PW1 was I
understandable in view of the lapse of time. This court is convinced that
J J
the incident did occur.
K K
75. This court finds the charge proved beyond reasonable doubt
L L
and D1 is convicted of this charge.
M M
Charge 5
N N
O 76. In the supplemental opening of the prosecution, the time of O
offence was described as at around 2:00 am to 2:30 am. PW1, when giving
P P
evidence, said that he went to the dormitory after work. At around 1 am,
Q he had his dinner from the fridge. Afterwards, D1’s uncle said something Q
to PW1 and PW1 returned to the office and laid on the sofa. Then he heard
R R
the ringing of the bells. The assault incident occurred later on.
S S
77. Although PW1 in court told of the slapping by D1 outside the
T T
toilet near the corner of the corridor, and not as described in the
U U
V V
- 19 -
A A
B B
supplemental opening as inside the washroom, this court did not find the
C discrepancy material. C
D D
78. PW1 when cross-examined said once he opened the door, D1
E quickly entered the office ahead of PW1, and he swore at PW1 while E
pushing him towards the toilet and slapped PW1. Police then could not see
F F
what happened because there was a corridor.
G G
79. PW1 said in the interview dated 9 June 2017 from 0950 hours,
H H
“After that he immediately bring the police in, and police saw everything.”1
I Obviously, PW1 did not mean the police witnessed the assault incident as I
they were not yet inside the office and within sight at that time.
J J
K 80. In paragraph 24 of defence counsel’s submission, PW1 was K
quoted as saying in the video-recorded interview that “there is our store, he
L L
just pushed me to the toilet.” In fact, according to the transcript of the
M video-recorded interview, it should be “he just pushed me towards the M
toilet.” This entry is consistent with PW1’s evidence in court that he was
N N
outside the toilet in the corner of the corridor when he was slapped.
O O
81. PW1 in court said D1 was already abusing and swearing at
P P
him in their language before he entered the office. This was not disputed
Q by the defence. The court failed to see how the police could have acted as Q
defence suggested in the submission, when they heard the swearing in
R R
Punjabi, a language that the police officers failed to comprehend.
S S
T T
1
Entry 635
U U
V V
- 20 -
A A
B B
82. Defence counsel queried the possibility that D1 would slap
C PW1 when police were present. Although this is not the evidence before C
the court, this court has noted numerous cases when people assault another
D D
even in the presence of police. This is something not sensible, but these
E things do happen. E
F F
83. Further, according to PW1, police should be after D1’s
G brother at the time and thought PW1 was D1’s brother. Police were not G
afraid that PW1 could escape as PW1 did not escape even before police
H H
were not able to enter the office. Therefore, there was no urgency for them
I to apprehend PW1 at a fast speed. I
J J
84. This court is satisfied beyond reasonable doubt that the
K assaults by D1 against PW1 did happen in the manner as PW1 told the K
court. D1 is convicted of Charge 5.
L L
M Charge 6 M
N N
85. PW1 maintained, when cross-examined, that D1 was orally
O abusing him, swearing at him and kicking the door even when he was O
outside the office because he thought PW1 had locked the door from within
P P
when PW1 did not. After entering the office, D1 slapped PW1 once with
Q his right hand forcefully. Q
R R
86. This court accepts the evidence of PW1 that D1 did slap PW1
S during this incident. Charge 6 is proved beyond reasonable doubt and D1 S
is convicted of the charge.
T T
U U
V V
- 21 -
A A
B B
Charge 7
C C
87. When PW1 was asked if he was attacked by D1, a much
D D
bigger built man than PW1, how could he not suffer any injury? PW1
E replied “I suffer hits, but I dodged,” and he demonstrated in court how he E
dodged. He said he suffered no injury, but he felt painful for two or three
F F
days. He said there should be bruises on his back as he felt pain for two or
G three days, but he could not see his own back. He said as there was no G
bleeding, there was no injury.
H H
I 88. He confirmed that in his statement to police in the night of 9 I
June 2017, when asked by police “Did you get hurt?” he replied “No.” In
J J
court, PW1 said he felt painful, at the same time, he said he was not hurt
K because there was no bleeding. If PW1 really thought “hurt” would include K
“feeling painful”, by giving the answer that he was not hurt, even though
L L
he is not a smart person, he would have known that his evidence would
M became unbelievable. M
N N
89. In the circumstances, the court accepts his explanation that he
O really thinks that “no bleeding” means “not hurt”. It was noted that PW1 O
was not asked at any stage if he felt anything after the shoe incident.
P P
Q 90. This court is satisfied the incident occurred as PW1 told the Q
court. Charge 7 is proved beyond reasonable doubt and D1 is convicted of
R R
the charge.
S S
T T
U U
V V
- 22 -
A A
B B
Charge 8
C C
91. PW1 said in court he was wearing jeans on the day and the
D D
“tester” (or “fuse”) was inside the pocket of the jeans. PW1 said that
E sometimes he wore a shalwar, sometimes he wore jeans in the office. He E
also said that he remembered the fuse was inside the trouser pocket. PW1
F F
also admitted that the pocket of shalwar would be in the front.
G G
92. PW1 said D1 kicked him so hard that the fuse went into the
H H
skin and hurt him and there was bleeding. He agreed that the object at the
I time looked like Exhibit D3 produced in court. I
J J
93. On inspection of the fuse (Exhibit D3), there are nail-like
K components on the sides. This court agreed that if large force was applied K
on the fuse against skin, the fuse could easily break the skin and cause
L L
bleeding.
M M
94. Defence counsel put to PW1 that in PW1’s statement to police
N N
on 22 June 2017, PW1 said he was wearing Pakistani clothing at the time
O and was squatting whilst packing, and the fuse was in his right pocket when O
D1 kicked him. PW1 said for the kameez and shalwar that he had, there
P P
were pockets on the side. PW1, however, maintained in court that he was
Q wearing jeans on that day. Q
R R
95. Defence counsel said pockets of shalwar were always in the
S front, not at the side. This court takes the view that if PW1 was wearing a S
shalwar at the time with the fuse in the front pocket, and PW1 was in a
T T
squatting position when the kick occurred, if the size of the pocket is big
U U
V V
- 23 -
A A
B B
enough, the item in the pocket could be easily displaced to the side of the
C hip causing the injury as PW1 told the court. If the shalwar pocket is tight, C
then that would prevent the item in the pocket being displaced when
D D
squatting.
E E
96. Whilst this court accepts the evidence of PW1 that an item in
F F
PW1’s pocket, be it pocket of his jeans or shalwar or kameez, got into his
G skin causing him to bleed when D1 kicked him. In view of the vagueness G
in PW1’s evidence as to where exactly the item was placed at the material
H H
time, and given PW1 did accept in the cross-examination that usually the
I pocket of shalwar was in the front, and this court not knowing the looseness I
or tightness of this pocket of the shalwar, the court will give the defendant
J J
the benefit of doubt, and the charge is therefore not proved.
K K
97. D1 is acquitted of Charge 8.
L L
M Charge 9 M
N N
98. PW1 said the amount he claimed from D1 was as advised by
O the Labour Department. He told of the threat uttered by D1 when they O
were alone inside the room within the court building when the court asked
P P
them to negotiate possible settlement for this civil claim lodged by PW1 in
Q the Labour Tribunal. According to PW1, it was said by D1 that PW1’s Q
parents would be hanged upside and skinned.
R R
S 99. Whilst this court accepts the threat was uttered as deposed to S
by PW1, on the evidence before the court, the prosecution has failed to
T T
elicit from PW1 in detail, that when D1 uttered the threat, the conditions
U U
V V
- 24 -
A A
B B
under which D1 would implement the threat, and whether the same
C constituted an act which has the tendency and is intended to pervert the C
2
course of justice .
D D
E 100. It appears that PW1 was saying that D1 made the threat so that E
PW1 would accept the offer for settlement. Did D1 mean that PW1 should
F F
withdraw the whole claim? Or did D1 say that he would inevitably carry
G out the threat as PW1 had brought the case? G
H H
101. This court finds the charge is not proved beyond reasonable
I doubt. D1 is found not guilty of Charge 9. I
J J
Conclusion
K K
102. D1 is convicted of Charges 1, 4, 5, 6 and 7, and acquitted of
L L
Charges 3, 8 and 9. This court has earlier ruled there is no case to answer
M on Charge 2, Charge 2 was dismissed. M
N N
O O
P P
( K Lo )
Q Deputy District Judge Q
R R
S S
T T
2
HKSAR v Wong Chi Wai (2013) 16 HKCFAR 539
U U
V V