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DCCC 1197/2023
C [2024] HKDC 2073 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1197 OF 2023
F F
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HKSAR
H H
v
I CHUI SIU LUNG I
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K Before: District Judge Clement Lee K
Date: 9 December 2024
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Present: Ms Whitfort Amanda, counsel on fiat, for HKSAR
M Mr Allan William, instructed by Messrs H. Y. Leung & Co. M
LLP for the defendant
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Offence: [1] Wounding with intent（有意圖而傷人）
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[2] Common assault（普通襲擊）
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REASONS FOR VERDICT
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Charges
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T 1. The defendant is facing two charges. Charge 1 is wounding T
with intent on PW1, contrary to section 17(a) of the Offences against the
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Person Ordinance, Cap. 212. Charge 2 is common assault on PW2,
C contrary to Common Law and punishable under section 40 of the C
Offences against the Person Ordinance, Cap. 212. The defendant pleaded
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not guilty to two charges.
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Prosecution case and issues for trial
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G 2. The prosecution case is that both the wounding and assault G
took place outside Block B, Beautiful Garden, No. 11 Chui Lok Street,
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Tai Po, on 17 April 2020. The alleged victims of Charges 1 and 2 are
I PW1 Mr Chan and PW2 Ms Chung respectively. In gist, on 17 April I
2020 at about 10pm, the defendant, former boyfriend of Ms Chung
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(PW2), made a phone call to PW2 and they had a chat over the telephone,
K follow by a face to face chat at the scene. PW2 thought the defendant has K
left after the chat but shortly thereafter, the defendant returned, shouted
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with angry words, bended forward his upper body inside PW1’s car, hit
M PW1 with a glass cup (Charge 1). PW2 tried to pull the defendant but the M
defendant slapped her face and pushed her onto the ground (Charge 2).
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PW1’s right face was bleeding. At that time, PW1 was PW2’s boyfriend.
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3. The prosecution case relies on the recognition at the scene of
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the defendant by PW2 who gave dock identification in the court, at the
Q close of her evidence in chief. The defence objected to dock Q
identification. Having heard the parties’ submissions, I allow dock
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1
identification by PW2 in court .
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4. It must be noted that the defence did not challenge someone
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1
See Appendix 1 of the reasons for ruling on dock identification
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attacked PW1 at the time, PW1 sustained injuries to his right face, and
C received sutures as part of his medical treatment. From the defence’s C
extensive cross examination, the defendant raised challenges as to (i)
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PW1 should have recognized the face of the assailant and yet he failed to
E provide positive identification evidence; (ii) although PW2 was a former E
lover of the defendant and she is a familiar witness with the defendant
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and the fact that PW1 was assaulted at the time, she purposely and
G wrongly accused the defendant as the assailant, especially PW2 owed the G
defendant a debt of HK$200,000 before the incident; (iii) although PW1
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has not met the defendant before the incident and did not give positive
I identification evidence against the defendant, Mr Allan, counsel for the I
defence, cross examined PW1 extensively on PW1’s estimation of the
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time of the sequence of events before and after the assault; the estimated
K age of the assailant, the alleged discrepancy between PW1’s oral K
testimony and his written statement2.
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M 5. It is beyond debate that PW1 was assaulted at the time, the M
main issues are who assaulted him, whether PW2 is a credible and
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reliable witness who identified the defendant as the assailant on PW1 and
O herself? O
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Testimonial and documentary evidence
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6. P1 is the Admitted Facts admitted by prosecution and
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defence pursuant to section 65C of the Criminal Procedure Ordinance,
S Cap 221 3 . P1 covers P2 and P3. P2 is the medical notes of PW1’s S
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Such as PW1 describes in the written statement that the estimated age of assailant was around 40
while in his oral testimony PW1 elaborates about 34 to 35, of similar age of PW1.
3
See Appendix 2.
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injuries and treatment at the time. P3 is a batch of 6 photographs
C including depiction of PW1’s injuries and his condition after receiving C
suturing. Parties also subsequently agreed to the second set of admitted
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facts P5 covering P6 regarding the issue of “unexplained missing of the
E original of an initially unused material” 4. E
F F
7. Prosecution called three witnesses to give evidence, Mr
G Chan (PW1), Ms Chung (PW2) and the exhibit police officer (PW3). G
Below is the substance of the prosecution’s evidence. However, in the
H H
light of the line of defence raised by Mr Allan, it is inevitable that I need
I to give a more detail account of the main witnesses’ evidence in Evidence I
Analysis below. I now give a brief account to avoid issues being side
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tracked.
K K
8. PW1 is the alleged victim in this assault regarding Charge 1.
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He testified that sometime around 10pm on 17 April 2020, he was in his
M private car SZ3961 on the street near Beautiful Garden, Tai Po. PW2 was M
in the vicinity and outside the car. A Chinese male (for convenience sake,
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the Chinese male is hereinafter referred as Mr X) walked towards his car,
O bended forward his upper body into the car, he brandished a glass cup to O
the right of PW1’s face and hit PW1 for around 15 seconds. Mr X then
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4
P2 is the medical report for PW1 dated 28 July 2022 and admitted. During the course of trial, the
Q prosecutor became aware of a copy of an earlier medical report for PW1 dated 25 July 2020 (P6) and Q
the contents of the two reports are almost identical. The prosecution provided the copy to the defence
at his request and became P6. The prosecution failed to retrieve the original of P6. From the relevant
R memo and PW3’s evidence, it is apparent that because of the change of responsible exhibit officers, 2 R
memo of different dates have been issued to the relevant hospital to obtain the medical report regarding
the treatment on PW1 on 17 April 2020. This resulted in having two medical reports of almost
S identical contents except the dates. P2 is the original medical report dated 28 th July 2022 tendered at S
first while P6 is a copy dated 25 July 2020 (see P2, P6-P9). Except conspiracy theory and fanciful
assertions, Mr Allan failed to challenge reasonably the loss of P6 original and the findings of the doctor
on PW1’s treatment on 17 April 2020. Be that as it may, should the defendant claim the loss of P6
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original is material to his case, the law requires him to point to evidence that would assist his case: The
Queen v Chu Kam-to [1995] 1 HKCLR 179. I found that there is no prejudice to the defence for the
loss of P6’s original.
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walked away and returned with an advertisement stand. PW2 tried to
C stop Mr X by grabbing him. Mr X slapped PW2’s face and pushed her on C
the ground. Mr X fled. PW1 had 3 laceration wounds on his right face
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requiring suturing. P3 photograph 12 depicts clearly the immediate
E injury (deep lacerations) and extent of medical suture required. E
F F
9. PW2 and the defendant were former lovers. At about
G 9:50pm on 17 April 2020, PW2 and PW1 went to the scene to handle G
minor collision of vehicles. At the scene, PW2 received a phone call
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from the defendant and they had a chat nearby. A few minutes later,
I PW2 saw the defendant returning to the scene and walked towards the left I
door of PW1’s car. The defendant bended his upper part of his body
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inside PW1’s car where he hit PW1with a glass cup for about 15 seconds.
K PW1’s right face was bleeding. The defendant then walked away and K
returned with an advertisement stand. PW2 tried to stop the defendant by
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grabbing him. The defendant slapped PW2’s face and pushed her on the
M ground. M
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10. PW3/DPC 19713 came to investigate at about 11pm on 17
O April 2020 and found glass fragments inside PW1’s car. He considered it O
might be relevant to the investigation and took photo of the glass
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fragments on the driver’s seat. He did not seize the glass debris as he
Q considered photographs are sufficiently clear. Q
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11. The defendant was arrested on 3 May 2020 for the offence of
S “wounding” and was arrested again on 12 October 2023 at Lok Ma Chau S
Spur Line Control Point for the offence of “wounding”5.
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5
See P1 admitted facts
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C Submission on no case to answer C
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12. After the prosecution closed her case, the defence submitted
E no case to answer. After I ruled a case to answer on both charges, the E
defendant elected not to give evidence nor call any defence witness. That
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is the defendant’s right as the duty to prove its case lies on the
G prosecution. On the other hand, it means there is no evidence from the G
defence to undermine, contradict or explain the evidence put before me
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by the prosecution.
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Legal requirements
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K 13. The prosecution must prove the case against a defendant K
beyond a reasonable doubt. The burden of proof remains upon the
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prosecution at all times.
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14. Even if the defendant’s version is not accepted, it may be the
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case that the defence failed to undermine the prosecution case, the duty to
O prove still rests on the prosecution. O
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15. Where an inference needs to be drawn to establish a fact.
Q That fact must be proved beyond a reasonable doubt. Q
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16. Any inference drawn must be the only reasonable inference
S that can be drawn. S
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Defence
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17. The defence case as disclosed from the defence’s cross
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examination is that while PW1 was assaulted at the time, PW2 wrongly
E and maliciously accused the defendant as the assailant. It must be noted E
that those assertions remain allegations put to the witness only.
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G Defence’s final submissions G
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18. Mr Allan has prepared a detailed written final submissions
I where he also adopts his “half-way” submissions. I attempt to summarise I
his half-way submissions as follows.
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K 19. The trial took place after 4 years and there are too many K
peculiar aspects. There is no positive identification evidence from PW1.
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It was confirmed by PW1 that he did not know the defendant but PW3
M (investigating officer) relayed what PW1 said in hospital he did not M
intend to pursue because the defendant was an acquaintance. PW3
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explained that different people may have different understanding of
O “knowing”. There were too many discrepancies e.g. whether Au (a lorry O
driver involved in a minor collision before the assault incident) has left
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when the assault took place. There were conflicting evidence on how the
Q assault took place between PW1 and PW2. PW2 did not take the Q
initiative to hand over her phone to police for investigation. It was the
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prosecution’s duty to prove identity and that triggers “Turnbull” guideline.
S Further, PW1 and PW2 are still together, they were prone to collaborate. S
PW1 had discrepancies per se on the estimated age descriptions of the
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assailant, yet there was no other descriptions such as clothes. The glass
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debris inside the car was not seized. PW3 left the crime scene after
C taking photos and the crime scene might be contaminated. Dock C
identification by PW2 after 4 years was unreliable. The worst part is that
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PW2 said in her first witness statement that PW1 was hit by the defendant
E with glass and was bleeding, but no reliable evidence of glass, blood, ad E
stand was ever found and exhibited. There was delay at least 2.5 years in
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progress of investigation. The defence has put the suggestion of demand
G of repayment from PW2 by the defendant, her evidence was provided G
with malice. An earlier but almost identical medical report is missing.
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The defendant made no admission. PW2, being the only eye witness, was
I not credible as her evidence failed to satisfy the Galbraith test. I
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20. Mr Allan re-organised his final submissions with main
K points as follows. Firstly, the main issue is one of identification by PW2, K
whose evidence was a fabrication and/or mistaken. Secondly, both PW1
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and PW2 are not a credible or reliable witnesses as there are “bizarre”
M facts and suspicious area. PW1 and PW2 might have discussed the case M
as a couple. The evidence of PW1 and PW2 have discrepancies per se
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and inter se. Only PW3, the exhibit officer is credible and reliable as he
O was instructed by the officer to conduct ID parade and none was O
eventually held. Thirdly, there is no apparent motive for the defendant to
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attack PW1. Fourthly, there is no blood found in the car, no CCTV
Q footage for the scene, no advertising stand was seized, no sketch plans Q
and photos of the area, lack of exhibits and missing medical report.
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Fifthly, PW1 and PW2 might have discussed the case before the trial.
S Sixthly, delay of 2.5 years from PW2’s 1st statement and 2nd statement or S
PW2 changed from not pursuing to pursuing against the defendant after a
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delay of 2.5 years.
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C Applicable laws C
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21. The elements of the offence of Charge 1 “wounding with
E intent” are set out in Archbold Vol 2 from paragraphs 20-257 to 20-273, E
paragraph 20-257 reads:
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G “Any person who unlawfully and maliciously, by any means whatsoever, G
wounds or causes any grievous bodily harm to any person; or in any
manner … with intent in any such cases to maim, disfigure, or disable any
H person… shall be guilty of an offence.. .” H
I I
22. In essence, “with intent” includes direction in the following
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or very similar terms6: J
K “You must feel sure that the defendant intended to cause serious bodily harm K
to the victim. You can only decide what his intention was by considering all
L the relevant circumstances and in particular what he did and what he said L
about it”: R v Purcell (1986) 83 Cr App R 45 CA.
M M
Evidence analysis
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23. Any submissions from the defence must be viewed against
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the following factual matrix. Firstly, the defence did not take issue of the
P fact that PW1 was assaulted at the material time. Secondly, the admitted P
facts covering the medical report show that after the assault incident,
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PW1 was found to have 3 laceration wounds over his right face requiring
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suturing. Thirdly, the agreed photographs depict the extent of those
S
wounds and suturing. Fourthly, the defence did not challenge that the S
defendant and PW2 were lovers for about 6 years before the incident,
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6
Archbold Vol 2: 20-271
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hence PW2 is an identifying witness familiar with the accused.
C C
24. In essence, I accept the evidence of all prosecution witnesses,
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in particular, PW1 and PW2, they remain unshaken despite prolonged,
E repeated and sometimes unfair questions. Despite serious attacks during E
cross examination, the witnesses have tried their best to give an account
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of the events. They are credible and reliable witnesses.
G G
PW1’s evidence
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I 25. PW1 described how the assailant (Mr X) assaulted him. On I
17 April 2020, at about 5pm, PW1 parked his car outside Beautiful
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Garden, Tai Po. At about 9pm on the same day, he received a phone call
K from a driver who said his vehicle had collided with PW1’s car. PW1 K
and PW2 went downstairs to handle the situation. The traffic incident
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was settled swiftly. PW1 continued to check his car. The right front door
M of driver’s seat was damaged to the extent that it could not be opened. He M
had to get into his car via the left front door. At about 10pm, while
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inspecting the condition of his car, PW1 noticed his girl-friend PW2 was
O having conversation with a male about 10 meters away. He estimated the O
male’s age was about “thirty something”. Shortly thereafter, the male
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seemed to have left. While PW1 moved his body from the driver’s seat
Q to the left front seat, the male appeared again and asked “You are her Q
boyfriend?”. He bended his upper part of his body and had his upper part
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inside the car. The male was holding something and hit PW1’s head for
S about 15 seconds. PW1 came to know thereafter the male held a glass S
cup. PW2 tried to pull the male away. PW1 found himself bleeding and
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left the car. He then heard loud noise and the male came back with an
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advertising stand and PW2 tried to obstruct the male. The male dropped
C the stand. The male slapped PW2’s face and pushed her onto the ground. C
PW1 shouted to the male not to hit woman. The male asked PW1 to fight
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back. PW1 did not respond and the male left the scene at a swift pace.
E PW1 went to hospital same evening for treatment of his 3 laceration E
wounds with suturing.
F F
G PW2’s evidence G
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26. PW2 described how the defendant assaulted PW1 and her.
I On 17 April 2020, at about 5pm, PW1 parked his car outside Beautiful I
Garden, Tai Po. PW1 and PW2 went to PW2’s residence in Beautiful
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Garden. At around 9:45pm on the same day, PW1 received a phone call
K from a driver about vehicle collision issue. They went downstairs K
together and found the caller driver. PW1 handled the vehicle collision
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issue and PW2 waited aside. Whilst waiting, PW2 received a phone call
M from the defendant. She recognized the defendant’s voice and caller ID. M
While talking on the phone for about 15 minutes, she saw the defendant
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approaching her. She was then about 4 meters from the defendant. PW2
O and the defendant then had a face to face chat (about half a meter distance) O
for a few minutes about their relationship. After the chat, PW2 saw the
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defendant walked towards direction to Tai Wo Estate. Shortly thereafter,
Q while PW2 was waiting PW1’s checking his car, she saw the defendant Q
approaching PW1’s car. PW1 was inside the car on driver’s seat. When
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the defendant was near the car, he shouted with foul language and said
S “you are her boyfriend?” The defendant bowed down and crawled inside S
the car. The defendant used a glass cup to hit PW1’s right face. PW1’s
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was bleeding. PW2 tried to pull the defendant away. The defendant then
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seemed to walk towards a nearby bar called Cozy. PW1 and PW2 left the
C car area. The defendant picked up an advertising stand from a place near C
Cozy and came to them. When PW2 and the defendant was about 4
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meters away, PW2 guessed the ad stand was too heavy and the defendant
E dropped the advertising stand. The defendant continued to approach E
them. PW2 tried to pull the defendant but the defendant hit her face with
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his right hand. He also pushed PW2 and she fell onto the ground. She
G felt pain on her face and buttock. PW1 and PW2 went to the residence G
nearby and the security guard there assisted to call the police. She added
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that after having together with the defendant for 6 years, they broke up in
I December 2019, the last time they met was on 31 December 2019. She I
denied owing the defendant HK$200,000. She denied wrongly or
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mistakenly accused the defendant as the assailant.
K K
PW3’s evidence
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M 27. PW3 told the court that on 17 April 2020, at about 1030pm, M
he received instructions to investigate into a complaint of wounding. He
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arrived at the scene at about 11pm. He confirmed P3 were the 6
O photographs that he took. He marked on P3(10) as where the glass O
fragments were detected. On 3 May 2020, PW2 brought PW3 and his
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team to identify the exact address in a Tai Po village where the defendant
Q resided. PW2 mentioned he would seize exhibits when necessary. He Q
found the photograph taken was clear and hence he did not seize the glass
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fragments on the driver’s seat. PW3 was crossed examined on what he
S wrote in his statement about a sentence to the effect that “eventually AP S
was an acquaintance, he would not take follow up action.” PW3
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explained different people may have different understanding of
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“knowing” or “acquaintance”, meaning one might know the existence of
C another does not mean the latter knows the former. The officer in charge C
has once instructed him to arrange an ID parade. He recalled he has
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prepared memo to ask for a medical report and he kept the original in the
E drawer (the copy dated 25 July 2020 now marked as P6). He left the E
team and he did not know where was the original.
F F
G Reply to defence’s submissions G
H H
28. Mr Allan’s submissions were misconceived because firstly,
I he overlooked the legal principles on dock identification. Secondly, he I
put too much emphasis on immaterial matters and hence overlooked
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material evidence. Thirdly, he might have overlooked the admitted facts
K and their implication. K
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Identification Issue
M M
29. In replying to Mr Allan’s submissions that there was no
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positive identification from PW1, I note that there was positive
O identification evidence from PW2, former lover of the defendant for O
about 6 years before the incident, in addition to face to face chat between
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PW2 and the defendant for at least a few minutes, PW2 gave evidence as
Q to much interaction between PW2 and the defendant before, during and Q
after the assault incident. I see no reason why Turnbull guidelines are
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7
necessary . Even if Turnbull guidelines are necessary, I have considered
S and reminded myself on those guidelines, including the fact that PW2 and S
the defendant had a face to face chat before the assault incident with
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7
Archbold Vol 1: 14-20
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sufficient lighting condition and at a close distance, similar encounter
C during the assault and thereafter (the defendant came back with an C
advertising stand). In such circumstances and according to case law,
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identification parade is not necessary. Dock identification is safe.
E E
PW1 and PW2 are not credible or reliable
F F
They have discrepancies per se and inter se
G They might have discussed the case G
2.5 years delay from PW2’s 1st and 2nd statement and change to pursuing
H H
against the defendant
I I
30. Mr Allan submitted that PW1’s evidence contains material
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discrepancies per se. I do not agree. PW1’s material evidence remained
K the same despite repeated and prolonged cross examination. The K
strenuous attacks by Mr Allan on PW1’s estimation of the assailant’s age
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and timing were far from fair. Mr Allan thought the estimation of age of
M about 34-35, around 40 or age similar to PW1 were material M
discrepancies. He made similar comments on estimation of the time of
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the assault. Mr Allan again thought PW1’s answers on the timing of
O going downstairs “at about 9:30pm”, “about 9:50pm”, “around 10pm” O
were material discrepancies, bearing in mind that there is no dispute PW1
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was assaulted at the material time and the issue is one of mistaken
Q identity or malicious prosecution by PW2. I do not agree those are Q
material discrepancies. The witness is trying his best to answer despite
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repeated questions on the same episode.
S S
31. PW2 explained that she did not request to see a doctor in
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hospital because she only felt pain and it was minor injuries. I accept her
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explanation. After all, the charge is one of common assault and the main
C issue is whether I accept PW2’s evidence on her description of the attack C
on her.
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E 32. The facts are not bizarre. This case is straightforward but it E
is being complicated with conspiracy theory, mixing up of irrelevant
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matter, disregard of material facts, overstatement of the effect of absence
G of certain evidence. The traffic issue preceding the assault incident was G
said to be suspicious and the defence asked: “how did the defendant know
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PW1 and PW2 were there”. Although no one can answer on behalf of the
I defendant bear in mind the defendant does not need to prove anything, be I
that as it may, I do not think that is a material matter so long as PW1 was
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really assaulted. Even if the defence makes a change of front and the fact
K that PW1 was assaulted at the time is belatedly disputed, the powerful K
evidence show the only irresistible inference that PW1 was hit by a glass
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object resulted in the wounds as found.
M M
33. PW2 was criticized of change of evidence in that at first, she
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said PW1 and she never discussed the case but later agreed that they had
O discussed about the injuries. That is an unfair comment again as all along, O
it is PW2’s evidence that after the assault, she assisted PW1 on injuries,
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they went to an apartment to look for assistance, she was also on
Q ambulance to accompany PW1 to go to hospital. It is understandable Q
they talked about injuries, it would be odd if her answers were the other
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way round. I remind myself of the danger on collaboration but bearing in
S mind the objective facts and unchallenged evidence, except fanciful S
assertion, I do not agree that they concocted stories to frame up the
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defendant.
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C 34. Mr Allan submitted that there were conflicting evidence C
between PW1 and PW2 on how the assaults took place while they were
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still together and hence prone to concoct evidence together. I see no
E discrepancies between the material evidence of PW1 and PW2, even if E
there are discrepancies, they are not material. Each witness might have
F F
different descriptions on minor details. They tended to explain more
G from the substance because they were asked to give more details. Any G
immaterial discrepancies, cannot outweigh the substance of their
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evidence in totality.
I I
35. Mr Allan said there was delay of 2.5 years from PW2’s first
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to the second statement. In my views, it is not uncommon where a
K witness gave evidence in substance in early statement and was asked to K
clarify more upon legal advice or closer to trial.
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M 36. Regarding PW3, I do not see how PW3’s evidence may avail M
the defence. He confirmed the photographs are clear and considered not
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necessary to seize glass fragments. Although officer in charge has once
O instructed him to arrange ID parade, as a matter of law explained in this O
verdict, I do not see it as a must. Regarding the loss of the original of the
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earlier medical report dated 25 July 2020 (P6), I do not see how the
Q defence could explain away the subsequently obtained of almost identical Q
medical report (dated 28 July 2022: P2) and the admitted facts in support
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of the injuries and treatment.
S S
Defendant has no apparent motive attack
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C 37. The defence might have overlooked the evidence of C
PW1/PW2 to the effect that shortly before the assault, the defendant said
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loudly “you are her boyfriend?” It is obvious that the assault by the
E defendant came with hostility. E
F F
No blood, no CCTV footage, no advertising stand seized, no sketch plans,
G no glass debris seized G
H H
38. Mr Allan submitted that police investigation in this case was
I the worst in Hong Kong history and in his 39 years’ practice as a barrister, I
he has never seen such a sub-standard investigation. There was no real
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exhibit on blood, no glass debris, no ad stand, no call log record about the
K relevant conversations etc to support the versions of PW1 and PW2. K
PW3 was so unprofessional and failed to seize the glass debris and ensure
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the scene was not contaminated after taking photographs (including P3),
M but Mr Allan praised him in his final submission as the only truthful M
witness. Again, Mr Allan might have overlooked the fact that PW1 was
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undisputedly assaulted at the time. There were photographs showing his
O deep cut wounds and requiring suturing. There were photographs O
showing crystal clear glass debris on the driver’s seat. He also
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overlooked PW3’s explanation that he considered photographs showing
Q glass debris was good enough. He was the investigation and exhibit Q
officer and after his role on taking photographs, I do not see his duty to
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ensure the scene was cordoned off. All in all, Mr Allan’s submissions
S lack substance and ring hollow. He failed to address on the main points S
on the prosecution’s evidence. The doubts Mr Allan, raised, if any, are
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fanciful doubts, they are far from reasonable.
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C 39. Mr Alan also submitted dock identification after 4 years C
was undesirable and unreliable. He again overlooked the unchallenged
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evidence that PW2 was an identifying witness familiar with the accused.
E The last time they met was shortly before the assault incident in a face to E
face chat circumstances. Furthermore, PW2 and the defendant had so
F F
much interaction before, during and after the assault incident.
G G
40. I do not intend to quote all unfair comments by the defence.
H H
I 41. I found PW1 and PW2 credible and reliable. Further, there I
are so many objective facts that support Charge 1 of wounding with intent
J J
on PW18. As a result, regarding both Charge 1 and Charge 2 (common
K assault on PW2)9, I found that the prosecution has discharged its duty to K
prove its case beyond reasonable doubts.
L L
M Verdict M
N N
42. The defendant is found guilty on Charges 1 and 2.
O O
P P
( Clement Lee )
Q District Judge Q
R R
S 8
S
PW1 had 3 laceration wounds to his right face sutured at the hospital on the evening of 17 April 2020.
PW1 and PW2 gave evidence on how PW1 received those deep cut/wounds: the defendant wounded
PW1 unlawfully and maliciously with the intent to do him grievous bodily harm: DPP v Smith [1961]
T T
AC 290.
9
As assault is any act by which a person intentionally or recklessly causes another to apprehend
immediate and unlawful personal violence: R v Ireland; R v Burstow [1998] AC 147.
U U
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A A
B B
Appendix 1: Reasons for ruling on dock identification
C C
1. The prosecution intended to ask PW2 to identify the accused
D D
in court (dock identification). The defence objected on the grounds that
E (i) prejudicial effect outweighs probative value and the trial judge should E
disallow dock identification; (ii) no ID parade was ever held; (iii) break
F F
of chain of evidence 4 months as PW2 last saw the alleged accused in
G December 2019 and it was too long to allow dock identification; (iv) G
other points Mr Allan raised seems calling credibility and reliability in
H H
issues and the factual matrix/the circumstances he said was peculiar.
I PW2 and PW1 are still lovers and there is risk for collaboration. He cited I
the classic Turnbull guideline but he seemed to have overlooked the
J J
applicable legal principles on dock identification.
K K
2. Ms Whitfort, counsel for the prosecution, is very helpful in
L L
making a post ruling record/submissions on issues of dock identification
M and the defence’s request for disclosure of the original copy of an unused M
material10. I agree with her submissions.
N N
O 3. According to Archbold Hong Kong 2024 edition para 14-20, O
dock identification is permissible in an actual recognition case or where
P P
identifying witness was familiar with the accused. The defence might
Q have overlooked material evidence, the prosecution has led evidence on Q
identifying witness PW2 who has been the accused’s former lover for 6
R R
years preceding the incident. This remains unchallenged. They broke up
S in December 2019. The incident happened in April 2020. Shortly before S
the assault, PW2 talked to the alleged accused face to face in short
T T
10
Regarding duty of disclosure, I have briefly described what happened above.
U U
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A A
B B
distance with sufficient light condition. I see no compelling reasons,
C legal or factual to refuse dock identification. C
D D
4. Ms Whitfort cited 3 local cases to support the admission of
E the dock identification: HKSAR v Chu Man Fai CACC 372/2004; AG v E
Lau Chi-tin [1989] 2 HKLR 15 and HKSAR v Lo Man Kam CACC
F F
212/2001. Ms Whitfort cited 2 well known cases where the basis of the
G identification is testimony that a witness recognized a person known to G
him and a Turnbull warning is not necessary: Beckford v R (1993) 97 Cr
H H
App R 409; R v Cape and Ors [1996] 1 Cr App R 191 at 97.
I I
5. Applying the above legal principles into the present case, the
J J
unchallenged fact that PW2 has been the lover of the defendant for 6
K years preceding the incident. 4 months after their break up, on 17 April K
2020, they saw each other shortly before, during and after the assault
L L
incident. This is a typical example where identifying witness was
M familiar and dock identification was allowed. M
N N
O O
P P
Q Q
R R
S S
T T
U U
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A A
B B
Appendix 2 (P1 Admitted Facts)
C C
1. On 17 April 2020, Mr Chan (PW1) went to the A&E
D D
Department of the Alice Ho Miu Ling Nethersole Hospital. A medical
E report pertaining to his examination and treatment is tendered as Exhibit E
P2 showing he was attended at 2256 hours and was found to have 3
F F
laceration wounds over his face requiring suturing.
G G
2. At 1805 hours on 3 May 2020 at 57B Chuk Hang Village,
H H
San Wai Tsai, DPC 19713 arrested and cautioned the defendant for the
I offence of “wounding”. I
J J
3. At 2245 hours on 12 October 2023 at Lok Ma Chau Spur
K Line Control Point, PC 15757 arrested and cautioned the defendant for K
the offence of “wounding”.
L L
M 4. Correct procedures were used in the arrests of the defendant. M
N N
5. The chain of evidence, in relation to the exhibits in this case,
O was unbroken. O
P P
6. Four photographs of the injuries to PW1 and two
Q photographs of his car are tendered as Exhibit P3. Q
R R
S S
T T
U U
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A A
B B
DCCC 1197/2023
C [2024] HKDC 2073 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1197 OF 2023
F F
G ------------------------------------ G
HKSAR
H H
v
I CHUI SIU LUNG I
------------------------------------
J J
K Before: District Judge Clement Lee K
Date: 9 December 2024
L L
Present: Ms Whitfort Amanda, counsel on fiat, for HKSAR
M Mr Allan William, instructed by Messrs H. Y. Leung & Co. M
LLP for the defendant
N N
Offence: [1] Wounding with intent（有意圖而傷人）
O O
[2] Common assault（普通襲擊）
P P
--------------------------------------
Q Q
REASONS FOR VERDICT
R -------------------------------------- R
Charges
S S
T 1. The defendant is facing two charges. Charge 1 is wounding T
with intent on PW1, contrary to section 17(a) of the Offences against the
U U
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A A
B B
Person Ordinance, Cap. 212. Charge 2 is common assault on PW2,
C contrary to Common Law and punishable under section 40 of the C
Offences against the Person Ordinance, Cap. 212. The defendant pleaded
D D
not guilty to two charges.
E E
Prosecution case and issues for trial
F F
G 2. The prosecution case is that both the wounding and assault G
took place outside Block B, Beautiful Garden, No. 11 Chui Lok Street,
H H
Tai Po, on 17 April 2020. The alleged victims of Charges 1 and 2 are
I PW1 Mr Chan and PW2 Ms Chung respectively. In gist, on 17 April I
2020 at about 10pm, the defendant, former boyfriend of Ms Chung
J J
(PW2), made a phone call to PW2 and they had a chat over the telephone,
K follow by a face to face chat at the scene. PW2 thought the defendant has K
left after the chat but shortly thereafter, the defendant returned, shouted
L L
with angry words, bended forward his upper body inside PW1’s car, hit
M PW1 with a glass cup (Charge 1). PW2 tried to pull the defendant but the M
defendant slapped her face and pushed her onto the ground (Charge 2).
N N
PW1’s right face was bleeding. At that time, PW1 was PW2’s boyfriend.
O O
3. The prosecution case relies on the recognition at the scene of
P P
the defendant by PW2 who gave dock identification in the court, at the
Q close of her evidence in chief. The defence objected to dock Q
identification. Having heard the parties’ submissions, I allow dock
R R
1
identification by PW2 in court .
S S
4. It must be noted that the defence did not challenge someone
T T
1
See Appendix 1 of the reasons for ruling on dock identification
U U
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A A
B B
attacked PW1 at the time, PW1 sustained injuries to his right face, and
C received sutures as part of his medical treatment. From the defence’s C
extensive cross examination, the defendant raised challenges as to (i)
D D
PW1 should have recognized the face of the assailant and yet he failed to
E provide positive identification evidence; (ii) although PW2 was a former E
lover of the defendant and she is a familiar witness with the defendant
F F
and the fact that PW1 was assaulted at the time, she purposely and
G wrongly accused the defendant as the assailant, especially PW2 owed the G
defendant a debt of HK$200,000 before the incident; (iii) although PW1
H H
has not met the defendant before the incident and did not give positive
I identification evidence against the defendant, Mr Allan, counsel for the I
defence, cross examined PW1 extensively on PW1’s estimation of the
J J
time of the sequence of events before and after the assault; the estimated
K age of the assailant, the alleged discrepancy between PW1’s oral K
testimony and his written statement2.
L L
M 5. It is beyond debate that PW1 was assaulted at the time, the M
main issues are who assaulted him, whether PW2 is a credible and
N N
reliable witness who identified the defendant as the assailant on PW1 and
O herself? O
P P
Testimonial and documentary evidence
Q Q
6. P1 is the Admitted Facts admitted by prosecution and
R R
defence pursuant to section 65C of the Criminal Procedure Ordinance,
S Cap 221 3 . P1 covers P2 and P3. P2 is the medical notes of PW1’s S
T 2 T
Such as PW1 describes in the written statement that the estimated age of assailant was around 40
while in his oral testimony PW1 elaborates about 34 to 35, of similar age of PW1.
3
See Appendix 2.
U U
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A A
B B
injuries and treatment at the time. P3 is a batch of 6 photographs
C including depiction of PW1’s injuries and his condition after receiving C
suturing. Parties also subsequently agreed to the second set of admitted
D D
facts P5 covering P6 regarding the issue of “unexplained missing of the
E original of an initially unused material” 4. E
F F
7. Prosecution called three witnesses to give evidence, Mr
G Chan (PW1), Ms Chung (PW2) and the exhibit police officer (PW3). G
Below is the substance of the prosecution’s evidence. However, in the
H H
light of the line of defence raised by Mr Allan, it is inevitable that I need
I to give a more detail account of the main witnesses’ evidence in Evidence I
Analysis below. I now give a brief account to avoid issues being side
J J
tracked.
K K
8. PW1 is the alleged victim in this assault regarding Charge 1.
L L
He testified that sometime around 10pm on 17 April 2020, he was in his
M private car SZ3961 on the street near Beautiful Garden, Tai Po. PW2 was M
in the vicinity and outside the car. A Chinese male (for convenience sake,
N N
the Chinese male is hereinafter referred as Mr X) walked towards his car,
O bended forward his upper body into the car, he brandished a glass cup to O
the right of PW1’s face and hit PW1 for around 15 seconds. Mr X then
P P
4
P2 is the medical report for PW1 dated 28 July 2022 and admitted. During the course of trial, the
Q prosecutor became aware of a copy of an earlier medical report for PW1 dated 25 July 2020 (P6) and Q
the contents of the two reports are almost identical. The prosecution provided the copy to the defence
at his request and became P6. The prosecution failed to retrieve the original of P6. From the relevant
R memo and PW3’s evidence, it is apparent that because of the change of responsible exhibit officers, 2 R
memo of different dates have been issued to the relevant hospital to obtain the medical report regarding
the treatment on PW1 on 17 April 2020. This resulted in having two medical reports of almost
S identical contents except the dates. P2 is the original medical report dated 28 th July 2022 tendered at S
first while P6 is a copy dated 25 July 2020 (see P2, P6-P9). Except conspiracy theory and fanciful
assertions, Mr Allan failed to challenge reasonably the loss of P6 original and the findings of the doctor
on PW1’s treatment on 17 April 2020. Be that as it may, should the defendant claim the loss of P6
T T
original is material to his case, the law requires him to point to evidence that would assist his case: The
Queen v Chu Kam-to [1995] 1 HKCLR 179. I found that there is no prejudice to the defence for the
loss of P6’s original.
U U
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A A
B B
walked away and returned with an advertisement stand. PW2 tried to
C stop Mr X by grabbing him. Mr X slapped PW2’s face and pushed her on C
the ground. Mr X fled. PW1 had 3 laceration wounds on his right face
D D
requiring suturing. P3 photograph 12 depicts clearly the immediate
E injury (deep lacerations) and extent of medical suture required. E
F F
9. PW2 and the defendant were former lovers. At about
G 9:50pm on 17 April 2020, PW2 and PW1 went to the scene to handle G
minor collision of vehicles. At the scene, PW2 received a phone call
H H
from the defendant and they had a chat nearby. A few minutes later,
I PW2 saw the defendant returning to the scene and walked towards the left I
door of PW1’s car. The defendant bended his upper part of his body
J J
inside PW1’s car where he hit PW1with a glass cup for about 15 seconds.
K PW1’s right face was bleeding. The defendant then walked away and K
returned with an advertisement stand. PW2 tried to stop the defendant by
L L
grabbing him. The defendant slapped PW2’s face and pushed her on the
M ground. M
N N
10. PW3/DPC 19713 came to investigate at about 11pm on 17
O April 2020 and found glass fragments inside PW1’s car. He considered it O
might be relevant to the investigation and took photo of the glass
P P
fragments on the driver’s seat. He did not seize the glass debris as he
Q considered photographs are sufficiently clear. Q
R R
11. The defendant was arrested on 3 May 2020 for the offence of
S “wounding” and was arrested again on 12 October 2023 at Lok Ma Chau S
Spur Line Control Point for the offence of “wounding”5.
T T
5
See P1 admitted facts
U U
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A A
B B
C Submission on no case to answer C
D D
12. After the prosecution closed her case, the defence submitted
E no case to answer. After I ruled a case to answer on both charges, the E
defendant elected not to give evidence nor call any defence witness. That
F F
is the defendant’s right as the duty to prove its case lies on the
G prosecution. On the other hand, it means there is no evidence from the G
defence to undermine, contradict or explain the evidence put before me
H H
by the prosecution.
I I
Legal requirements
J J
K 13. The prosecution must prove the case against a defendant K
beyond a reasonable doubt. The burden of proof remains upon the
L L
prosecution at all times.
M M
14. Even if the defendant’s version is not accepted, it may be the
N N
case that the defence failed to undermine the prosecution case, the duty to
O prove still rests on the prosecution. O
P P
15. Where an inference needs to be drawn to establish a fact.
Q That fact must be proved beyond a reasonable doubt. Q
R R
16. Any inference drawn must be the only reasonable inference
S that can be drawn. S
T T
U U
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A A
B B
Defence
C C
17. The defence case as disclosed from the defence’s cross
D D
examination is that while PW1 was assaulted at the time, PW2 wrongly
E and maliciously accused the defendant as the assailant. It must be noted E
that those assertions remain allegations put to the witness only.
F F
G Defence’s final submissions G
H H
18. Mr Allan has prepared a detailed written final submissions
I where he also adopts his “half-way” submissions. I attempt to summarise I
his half-way submissions as follows.
J J
K 19. The trial took place after 4 years and there are too many K
peculiar aspects. There is no positive identification evidence from PW1.
L L
It was confirmed by PW1 that he did not know the defendant but PW3
M (investigating officer) relayed what PW1 said in hospital he did not M
intend to pursue because the defendant was an acquaintance. PW3
N N
explained that different people may have different understanding of
O “knowing”. There were too many discrepancies e.g. whether Au (a lorry O
driver involved in a minor collision before the assault incident) has left
P P
when the assault took place. There were conflicting evidence on how the
Q assault took place between PW1 and PW2. PW2 did not take the Q
initiative to hand over her phone to police for investigation. It was the
R R
prosecution’s duty to prove identity and that triggers “Turnbull” guideline.
S Further, PW1 and PW2 are still together, they were prone to collaborate. S
PW1 had discrepancies per se on the estimated age descriptions of the
T T
assailant, yet there was no other descriptions such as clothes. The glass
U U
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A A
B B
debris inside the car was not seized. PW3 left the crime scene after
C taking photos and the crime scene might be contaminated. Dock C
identification by PW2 after 4 years was unreliable. The worst part is that
D D
PW2 said in her first witness statement that PW1 was hit by the defendant
E with glass and was bleeding, but no reliable evidence of glass, blood, ad E
stand was ever found and exhibited. There was delay at least 2.5 years in
F F
progress of investigation. The defence has put the suggestion of demand
G of repayment from PW2 by the defendant, her evidence was provided G
with malice. An earlier but almost identical medical report is missing.
H H
The defendant made no admission. PW2, being the only eye witness, was
I not credible as her evidence failed to satisfy the Galbraith test. I
J J
20. Mr Allan re-organised his final submissions with main
K points as follows. Firstly, the main issue is one of identification by PW2, K
whose evidence was a fabrication and/or mistaken. Secondly, both PW1
L L
and PW2 are not a credible or reliable witnesses as there are “bizarre”
M facts and suspicious area. PW1 and PW2 might have discussed the case M
as a couple. The evidence of PW1 and PW2 have discrepancies per se
N N
and inter se. Only PW3, the exhibit officer is credible and reliable as he
O was instructed by the officer to conduct ID parade and none was O
eventually held. Thirdly, there is no apparent motive for the defendant to
P P
attack PW1. Fourthly, there is no blood found in the car, no CCTV
Q footage for the scene, no advertising stand was seized, no sketch plans Q
and photos of the area, lack of exhibits and missing medical report.
R R
Fifthly, PW1 and PW2 might have discussed the case before the trial.
S Sixthly, delay of 2.5 years from PW2’s 1st statement and 2nd statement or S
PW2 changed from not pursuing to pursuing against the defendant after a
T T
delay of 2.5 years.
U U
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A A
B B
C Applicable laws C
D D
21. The elements of the offence of Charge 1 “wounding with
E intent” are set out in Archbold Vol 2 from paragraphs 20-257 to 20-273, E
paragraph 20-257 reads:
F F
G “Any person who unlawfully and maliciously, by any means whatsoever, G
wounds or causes any grievous bodily harm to any person; or in any
manner … with intent in any such cases to maim, disfigure, or disable any
H person… shall be guilty of an offence.. .” H
I I
22. In essence, “with intent” includes direction in the following
J
or very similar terms6: J
K “You must feel sure that the defendant intended to cause serious bodily harm K
to the victim. You can only decide what his intention was by considering all
L the relevant circumstances and in particular what he did and what he said L
about it”: R v Purcell (1986) 83 Cr App R 45 CA.
M M
Evidence analysis
N N
23. Any submissions from the defence must be viewed against
O O
the following factual matrix. Firstly, the defence did not take issue of the
P fact that PW1 was assaulted at the material time. Secondly, the admitted P
facts covering the medical report show that after the assault incident,
Q Q
PW1 was found to have 3 laceration wounds over his right face requiring
R R
suturing. Thirdly, the agreed photographs depict the extent of those
S
wounds and suturing. Fourthly, the defence did not challenge that the S
defendant and PW2 were lovers for about 6 years before the incident,
T T
6
Archbold Vol 2: 20-271
U U
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A A
B B
hence PW2 is an identifying witness familiar with the accused.
C C
24. In essence, I accept the evidence of all prosecution witnesses,
D D
in particular, PW1 and PW2, they remain unshaken despite prolonged,
E repeated and sometimes unfair questions. Despite serious attacks during E
cross examination, the witnesses have tried their best to give an account
F F
of the events. They are credible and reliable witnesses.
G G
PW1’s evidence
H H
I 25. PW1 described how the assailant (Mr X) assaulted him. On I
17 April 2020, at about 5pm, PW1 parked his car outside Beautiful
J J
Garden, Tai Po. At about 9pm on the same day, he received a phone call
K from a driver who said his vehicle had collided with PW1’s car. PW1 K
and PW2 went downstairs to handle the situation. The traffic incident
L L
was settled swiftly. PW1 continued to check his car. The right front door
M of driver’s seat was damaged to the extent that it could not be opened. He M
had to get into his car via the left front door. At about 10pm, while
N N
inspecting the condition of his car, PW1 noticed his girl-friend PW2 was
O having conversation with a male about 10 meters away. He estimated the O
male’s age was about “thirty something”. Shortly thereafter, the male
P P
seemed to have left. While PW1 moved his body from the driver’s seat
Q to the left front seat, the male appeared again and asked “You are her Q
boyfriend?”. He bended his upper part of his body and had his upper part
R R
inside the car. The male was holding something and hit PW1’s head for
S about 15 seconds. PW1 came to know thereafter the male held a glass S
cup. PW2 tried to pull the male away. PW1 found himself bleeding and
T T
left the car. He then heard loud noise and the male came back with an
U U
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A A
B B
advertising stand and PW2 tried to obstruct the male. The male dropped
C the stand. The male slapped PW2’s face and pushed her onto the ground. C
PW1 shouted to the male not to hit woman. The male asked PW1 to fight
D D
back. PW1 did not respond and the male left the scene at a swift pace.
E PW1 went to hospital same evening for treatment of his 3 laceration E
wounds with suturing.
F F
G PW2’s evidence G
H H
26. PW2 described how the defendant assaulted PW1 and her.
I On 17 April 2020, at about 5pm, PW1 parked his car outside Beautiful I
Garden, Tai Po. PW1 and PW2 went to PW2’s residence in Beautiful
J J
Garden. At around 9:45pm on the same day, PW1 received a phone call
K from a driver about vehicle collision issue. They went downstairs K
together and found the caller driver. PW1 handled the vehicle collision
L L
issue and PW2 waited aside. Whilst waiting, PW2 received a phone call
M from the defendant. She recognized the defendant’s voice and caller ID. M
While talking on the phone for about 15 minutes, she saw the defendant
N N
approaching her. She was then about 4 meters from the defendant. PW2
O and the defendant then had a face to face chat (about half a meter distance) O
for a few minutes about their relationship. After the chat, PW2 saw the
P P
defendant walked towards direction to Tai Wo Estate. Shortly thereafter,
Q while PW2 was waiting PW1’s checking his car, she saw the defendant Q
approaching PW1’s car. PW1 was inside the car on driver’s seat. When
R R
the defendant was near the car, he shouted with foul language and said
S “you are her boyfriend?” The defendant bowed down and crawled inside S
the car. The defendant used a glass cup to hit PW1’s right face. PW1’s
T T
was bleeding. PW2 tried to pull the defendant away. The defendant then
U U
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A A
B B
seemed to walk towards a nearby bar called Cozy. PW1 and PW2 left the
C car area. The defendant picked up an advertising stand from a place near C
Cozy and came to them. When PW2 and the defendant was about 4
D D
meters away, PW2 guessed the ad stand was too heavy and the defendant
E dropped the advertising stand. The defendant continued to approach E
them. PW2 tried to pull the defendant but the defendant hit her face with
F F
his right hand. He also pushed PW2 and she fell onto the ground. She
G felt pain on her face and buttock. PW1 and PW2 went to the residence G
nearby and the security guard there assisted to call the police. She added
H H
that after having together with the defendant for 6 years, they broke up in
I December 2019, the last time they met was on 31 December 2019. She I
denied owing the defendant HK$200,000. She denied wrongly or
J J
mistakenly accused the defendant as the assailant.
K K
PW3’s evidence
L L
M 27. PW3 told the court that on 17 April 2020, at about 1030pm, M
he received instructions to investigate into a complaint of wounding. He
N N
arrived at the scene at about 11pm. He confirmed P3 were the 6
O photographs that he took. He marked on P3(10) as where the glass O
fragments were detected. On 3 May 2020, PW2 brought PW3 and his
P P
team to identify the exact address in a Tai Po village where the defendant
Q resided. PW2 mentioned he would seize exhibits when necessary. He Q
found the photograph taken was clear and hence he did not seize the glass
R R
fragments on the driver’s seat. PW3 was crossed examined on what he
S wrote in his statement about a sentence to the effect that “eventually AP S
was an acquaintance, he would not take follow up action.” PW3
T T
explained different people may have different understanding of
U U
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A A
B B
“knowing” or “acquaintance”, meaning one might know the existence of
C another does not mean the latter knows the former. The officer in charge C
has once instructed him to arrange an ID parade. He recalled he has
D D
prepared memo to ask for a medical report and he kept the original in the
E drawer (the copy dated 25 July 2020 now marked as P6). He left the E
team and he did not know where was the original.
F F
G Reply to defence’s submissions G
H H
28. Mr Allan’s submissions were misconceived because firstly,
I he overlooked the legal principles on dock identification. Secondly, he I
put too much emphasis on immaterial matters and hence overlooked
J J
material evidence. Thirdly, he might have overlooked the admitted facts
K and their implication. K
L L
Identification Issue
M M
29. In replying to Mr Allan’s submissions that there was no
N N
positive identification from PW1, I note that there was positive
O identification evidence from PW2, former lover of the defendant for O
about 6 years before the incident, in addition to face to face chat between
P P
PW2 and the defendant for at least a few minutes, PW2 gave evidence as
Q to much interaction between PW2 and the defendant before, during and Q
after the assault incident. I see no reason why Turnbull guidelines are
R R
7
necessary . Even if Turnbull guidelines are necessary, I have considered
S and reminded myself on those guidelines, including the fact that PW2 and S
the defendant had a face to face chat before the assault incident with
T T
7
Archbold Vol 1: 14-20
U U
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A A
B B
sufficient lighting condition and at a close distance, similar encounter
C during the assault and thereafter (the defendant came back with an C
advertising stand). In such circumstances and according to case law,
D D
identification parade is not necessary. Dock identification is safe.
E E
PW1 and PW2 are not credible or reliable
F F
They have discrepancies per se and inter se
G They might have discussed the case G
2.5 years delay from PW2’s 1st and 2nd statement and change to pursuing
H H
against the defendant
I I
30. Mr Allan submitted that PW1’s evidence contains material
J J
discrepancies per se. I do not agree. PW1’s material evidence remained
K the same despite repeated and prolonged cross examination. The K
strenuous attacks by Mr Allan on PW1’s estimation of the assailant’s age
L L
and timing were far from fair. Mr Allan thought the estimation of age of
M about 34-35, around 40 or age similar to PW1 were material M
discrepancies. He made similar comments on estimation of the time of
N N
the assault. Mr Allan again thought PW1’s answers on the timing of
O going downstairs “at about 9:30pm”, “about 9:50pm”, “around 10pm” O
were material discrepancies, bearing in mind that there is no dispute PW1
P P
was assaulted at the material time and the issue is one of mistaken
Q identity or malicious prosecution by PW2. I do not agree those are Q
material discrepancies. The witness is trying his best to answer despite
R R
repeated questions on the same episode.
S S
31. PW2 explained that she did not request to see a doctor in
T T
hospital because she only felt pain and it was minor injuries. I accept her
U U
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A A
B B
explanation. After all, the charge is one of common assault and the main
C issue is whether I accept PW2’s evidence on her description of the attack C
on her.
D D
E 32. The facts are not bizarre. This case is straightforward but it E
is being complicated with conspiracy theory, mixing up of irrelevant
F F
matter, disregard of material facts, overstatement of the effect of absence
G of certain evidence. The traffic issue preceding the assault incident was G
said to be suspicious and the defence asked: “how did the defendant know
H H
PW1 and PW2 were there”. Although no one can answer on behalf of the
I defendant bear in mind the defendant does not need to prove anything, be I
that as it may, I do not think that is a material matter so long as PW1 was
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really assaulted. Even if the defence makes a change of front and the fact
K that PW1 was assaulted at the time is belatedly disputed, the powerful K
evidence show the only irresistible inference that PW1 was hit by a glass
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object resulted in the wounds as found.
M M
33. PW2 was criticized of change of evidence in that at first, she
N N
said PW1 and she never discussed the case but later agreed that they had
O discussed about the injuries. That is an unfair comment again as all along, O
it is PW2’s evidence that after the assault, she assisted PW1 on injuries,
P P
they went to an apartment to look for assistance, she was also on
Q ambulance to accompany PW1 to go to hospital. It is understandable Q
they talked about injuries, it would be odd if her answers were the other
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way round. I remind myself of the danger on collaboration but bearing in
S mind the objective facts and unchallenged evidence, except fanciful S
assertion, I do not agree that they concocted stories to frame up the
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defendant.
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V V
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A A
B B
C 34. Mr Allan submitted that there were conflicting evidence C
between PW1 and PW2 on how the assaults took place while they were
D D
still together and hence prone to concoct evidence together. I see no
E discrepancies between the material evidence of PW1 and PW2, even if E
there are discrepancies, they are not material. Each witness might have
F F
different descriptions on minor details. They tended to explain more
G from the substance because they were asked to give more details. Any G
immaterial discrepancies, cannot outweigh the substance of their
H H
evidence in totality.
I I
35. Mr Allan said there was delay of 2.5 years from PW2’s first
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to the second statement. In my views, it is not uncommon where a
K witness gave evidence in substance in early statement and was asked to K
clarify more upon legal advice or closer to trial.
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M 36. Regarding PW3, I do not see how PW3’s evidence may avail M
the defence. He confirmed the photographs are clear and considered not
N N
necessary to seize glass fragments. Although officer in charge has once
O instructed him to arrange ID parade, as a matter of law explained in this O
verdict, I do not see it as a must. Regarding the loss of the original of the
P P
earlier medical report dated 25 July 2020 (P6), I do not see how the
Q defence could explain away the subsequently obtained of almost identical Q
medical report (dated 28 July 2022: P2) and the admitted facts in support
R R
of the injuries and treatment.
S S
Defendant has no apparent motive attack
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U U
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A A
B B
C 37. The defence might have overlooked the evidence of C
PW1/PW2 to the effect that shortly before the assault, the defendant said
D D
loudly “you are her boyfriend?” It is obvious that the assault by the
E defendant came with hostility. E
F F
No blood, no CCTV footage, no advertising stand seized, no sketch plans,
G no glass debris seized G
H H
38. Mr Allan submitted that police investigation in this case was
I the worst in Hong Kong history and in his 39 years’ practice as a barrister, I
he has never seen such a sub-standard investigation. There was no real
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exhibit on blood, no glass debris, no ad stand, no call log record about the
K relevant conversations etc to support the versions of PW1 and PW2. K
PW3 was so unprofessional and failed to seize the glass debris and ensure
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the scene was not contaminated after taking photographs (including P3),
M but Mr Allan praised him in his final submission as the only truthful M
witness. Again, Mr Allan might have overlooked the fact that PW1 was
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undisputedly assaulted at the time. There were photographs showing his
O deep cut wounds and requiring suturing. There were photographs O
showing crystal clear glass debris on the driver’s seat. He also
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overlooked PW3’s explanation that he considered photographs showing
Q glass debris was good enough. He was the investigation and exhibit Q
officer and after his role on taking photographs, I do not see his duty to
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ensure the scene was cordoned off. All in all, Mr Allan’s submissions
S lack substance and ring hollow. He failed to address on the main points S
on the prosecution’s evidence. The doubts Mr Allan, raised, if any, are
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fanciful doubts, they are far from reasonable.
U U
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A A
B B
C 39. Mr Alan also submitted dock identification after 4 years C
was undesirable and unreliable. He again overlooked the unchallenged
D D
evidence that PW2 was an identifying witness familiar with the accused.
E The last time they met was shortly before the assault incident in a face to E
face chat circumstances. Furthermore, PW2 and the defendant had so
F F
much interaction before, during and after the assault incident.
G G
40. I do not intend to quote all unfair comments by the defence.
H H
I 41. I found PW1 and PW2 credible and reliable. Further, there I
are so many objective facts that support Charge 1 of wounding with intent
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on PW18. As a result, regarding both Charge 1 and Charge 2 (common
K assault on PW2)9, I found that the prosecution has discharged its duty to K
prove its case beyond reasonable doubts.
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M Verdict M
N N
42. The defendant is found guilty on Charges 1 and 2.
O O
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( Clement Lee )
Q District Judge Q
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S 8
S
PW1 had 3 laceration wounds to his right face sutured at the hospital on the evening of 17 April 2020.
PW1 and PW2 gave evidence on how PW1 received those deep cut/wounds: the defendant wounded
PW1 unlawfully and maliciously with the intent to do him grievous bodily harm: DPP v Smith [1961]
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AC 290.
9
As assault is any act by which a person intentionally or recklessly causes another to apprehend
immediate and unlawful personal violence: R v Ireland; R v Burstow [1998] AC 147.
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A A
B B
Appendix 1: Reasons for ruling on dock identification
C C
1. The prosecution intended to ask PW2 to identify the accused
D D
in court (dock identification). The defence objected on the grounds that
E (i) prejudicial effect outweighs probative value and the trial judge should E
disallow dock identification; (ii) no ID parade was ever held; (iii) break
F F
of chain of evidence 4 months as PW2 last saw the alleged accused in
G December 2019 and it was too long to allow dock identification; (iv) G
other points Mr Allan raised seems calling credibility and reliability in
H H
issues and the factual matrix/the circumstances he said was peculiar.
I PW2 and PW1 are still lovers and there is risk for collaboration. He cited I
the classic Turnbull guideline but he seemed to have overlooked the
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applicable legal principles on dock identification.
K K
2. Ms Whitfort, counsel for the prosecution, is very helpful in
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making a post ruling record/submissions on issues of dock identification
M and the defence’s request for disclosure of the original copy of an unused M
material10. I agree with her submissions.
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O 3. According to Archbold Hong Kong 2024 edition para 14-20, O
dock identification is permissible in an actual recognition case or where
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identifying witness was familiar with the accused. The defence might
Q have overlooked material evidence, the prosecution has led evidence on Q
identifying witness PW2 who has been the accused’s former lover for 6
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years preceding the incident. This remains unchallenged. They broke up
S in December 2019. The incident happened in April 2020. Shortly before S
the assault, PW2 talked to the alleged accused face to face in short
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10
Regarding duty of disclosure, I have briefly described what happened above.
U U
V V
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A A
B B
distance with sufficient light condition. I see no compelling reasons,
C legal or factual to refuse dock identification. C
D D
4. Ms Whitfort cited 3 local cases to support the admission of
E the dock identification: HKSAR v Chu Man Fai CACC 372/2004; AG v E
Lau Chi-tin [1989] 2 HKLR 15 and HKSAR v Lo Man Kam CACC
F F
212/2001. Ms Whitfort cited 2 well known cases where the basis of the
G identification is testimony that a witness recognized a person known to G
him and a Turnbull warning is not necessary: Beckford v R (1993) 97 Cr
H H
App R 409; R v Cape and Ors [1996] 1 Cr App R 191 at 97.
I I
5. Applying the above legal principles into the present case, the
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unchallenged fact that PW2 has been the lover of the defendant for 6
K years preceding the incident. 4 months after their break up, on 17 April K
2020, they saw each other shortly before, during and after the assault
L L
incident. This is a typical example where identifying witness was
M familiar and dock identification was allowed. M
N N
O O
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Q Q
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S S
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A A
B B
Appendix 2 (P1 Admitted Facts)
C C
1. On 17 April 2020, Mr Chan (PW1) went to the A&E
D D
Department of the Alice Ho Miu Ling Nethersole Hospital. A medical
E report pertaining to his examination and treatment is tendered as Exhibit E
P2 showing he was attended at 2256 hours and was found to have 3
F F
laceration wounds over his face requiring suturing.
G G
2. At 1805 hours on 3 May 2020 at 57B Chuk Hang Village,
H H
San Wai Tsai, DPC 19713 arrested and cautioned the defendant for the
I offence of “wounding”. I
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3. At 2245 hours on 12 October 2023 at Lok Ma Chau Spur
K Line Control Point, PC 15757 arrested and cautioned the defendant for K
the offence of “wounding”.
L L
M 4. Correct procedures were used in the arrests of the defendant. M
N N
5. The chain of evidence, in relation to the exhibits in this case,
O was unbroken. O
P P
6. Four photographs of the injuries to PW1 and two
Q photographs of his car are tendered as Exhibit P3. Q
R R
S S
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V V