A A
B B
DCCC 292/2024
C [2025] HKDC 110 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 292 OF 2024
F F
G ---------------------------------- G
HKSAR
H H
v
I GURUNG SACHIN I
----------------------------------
J J
K Before: His Honour Judge Tam K
Date: 16 January 2025
L L
Present: Mr Wong Kevin K W, counsel-on-fiat for HKSAR
M Mr Lee Pak Chau, instructed by Raymond Chan Solicitors, M
assigned by the Director of Legal Aid, for the defendant
N N
Offence: Wounding with intent（有意圖而傷人）
O O
P
-------------------------------------- P
REASONS FOR VERDICT
Q Q
--------------------------------------
R R
S S
T T
U U
V V
-2-
A A
B B
1. The defendant pleaded not guilty before me to one charge of
C Wounding with intent, contrary to section 17(a) of the Offences against the C
Person Ordinance, Cap 212.
D D
E 2. Particulars are that he, on 12 July 2021, outside No 362 Lai E
Chi Kok Road, Sham Shui Po, Kowloon, in Hong Kong, together with a
F F
person unknown, unlawfully and maliciously wounded Liu Bing with
G intent to do him grievous bodily harm. G
H H
3. A trial was necessary to determine whether the defendant is
I guilty or not guilty of the offence charged. I
J J
PROSECUTION CASE IN BRIEF
K K
4. In the small hours of 12 July 2021, outside a fruits and
L L
vegetables shop in Lai Chi Kok Road, PW1 Liu Bing was chopped in the
M arms by two men each armed with a knife. The two men then fled. Not M
long, PW1 was sent to the hospital for treatment. He was found to have
N N
suffered a laceration of 8-10 cm in length on each arm.
O O
5. At about 8:45 am the same day, a security guard of a building
P P
PW2 found two beef knives in the gutter of a back alley in the vicinity of
Q the crime scene. He intended to make a report to the police but police came Q
at about 9:50 am to investigate a case of wounding so he told them about
R R
the knives. At about 11:10 am, the police seized the two knives (exhibits
S P3A and P3B). S
T T
U U
V V
-3-
A A
B B
6. Upon DNA examination, defendant’s DNA was found on the
C handle of exhibit P3A; PW1’s DNA was found on the blade of exhibit P3A. C
No results were found on exhibit P3B.
D D
E 7. After more than 2 years, the defendant was arrested at his E
home. Under cautioned VRI, the defendant said on or about 12 July 2021
F F
he touched one of the subject knives at a restaurant in Jordan but he denied
G chopping PW1. G
H H
DEFENCE CASE IN BRIEF
I I
8. Defence did not call any evidence but appeared to be relying
J J
on the contents of the video recorded interview.
K K
ISSUES IN THE TRIAL
L L
M 9. The sole issue in the case is identity: whether one of the two M
assailants was the defendant. In this respect, the DNA evidence linking the
N N
defendant to one of the knives in question (exhibit P3A) is most important.
O O
PROCEDURAL HISTORY
P P
Q 10. The prosecution called 6 witnesses who were PW1 Liu Bing Q
(complainant); PW2 Lai Kwok Ming (security guard of Fu Wa Mansion);
R R
PW3 Dr Wun Hau Ling (government chemist); PW4 Ho Siu Hong
S (forensic scientist); PW5 DPC16057 (exhibits officer); and PW6 Shrestha S
Mukesh (frequenter of Namaste Hamro Club).
T T
U U
V V
-4-
A A
B B
11. After the prosecution closed its case, defence made half-time
C submissions on the second limb of Galbraith. Prosecution replied. I ruled C
that there was a prima-facie case. Defence elected not to call any evidence.
D D
I reminded myself that the defence had a right not to call any evidence such
E that no adverse inference would be drawn against the defendant for such E
an election.
F F
G 12. The prosecution elected not to make any final submissions. G
The defence made final submissions orally. I have given them due
H H
consideration but will not repeat them here.
I I
SUMMARY OF PROSECUTION EVIDENCE
J J
K PW1 Liu Bing K
L L
13. He knocked off work at about 2 am on 12 July 2021 from a
M restaurant in which he worked as a cook. He was walking along his usual M
route for home nearby. When he reached the junction of Lai Chi Kok Road
N N
and Kweilin Street, two men charged at him from behind. They chopped
O his left upper arm and right forearm with knives. He was nervous and O
frightened. He ran. The two men did not chase him. Some passerby called
P P
the police for him. He was taken to Princess Margaret Hospital and
Q underwent surgery. He stayed in hospital for 2 days. He underwent Q
physiotherapy and occupational therapy. He still cannot work and his arms
R R
are still hurting. He identified himself being attacked by two men in the
S CCTV footage (02:09:03 to 02:10:13) played in court. He identified his S
bloodstains in photos Nos 2, 4, 10, 12, 13 of Photo Album No 1 of 3
T T
U U
V V
-5-
A A
B B
(exhibit P5A). He is still receiving physiotherapy and is taking pain-killer
C medication every night. C
D D
14. Under cross-examination, he said he was able to say that his
E attackers were men by their physique and build. E
F F
PW2 Lai Kwok Ming
G G
15. He was the security supervisor of Fu Wah House at 31
H H
Kweilin Street. He checked the back alley where the back door was at least
I twice during his daily shift of 7 am to 3 pm. On 11 July 2021, he found I
nothing out of the ordinary at the back alley. On 12 July 2021, at about
J J
8:45 am, he found in the gutter of the back alley two beef knives (identified
K in court). He did not touch the knives. He intended to report to the police K
but at 9:51 am, the police came to ask if there was CCTV installed at the
L L
building in connection with a wounding case so he told them about the two
M knives and he took the police to them. He identified the various scenes M
depicted in photos Nos 1, 2, 3, 4, 5 & 6 of Photo Album No 2 of 3 (exhibit
N N
P5B).
O O
PW3 Dr Wun Hau Ling
P P
Q 16. She worked as Government Chemist in the Government Q
Laboratory. She gave evidence as expert in DNA matters with no objection
R R
from defence. She was provided by the police with two buccal swabs said
S to be from same donor. She therefore simply chose one (lab ref 23DD3795) S
of the two buccal swabs for DNA profiling with the remainder unused and
T T
U U
V V
-6-
A A
B B
treated as a backup. The DNA profile is as shown in a table on page 2 of
C her report dated 29 November 2023 (exhibit P7). C
D D
17. She conducted procedures to make sure the buccal swabs
E containing DNA material were preserved without contamination. E
F F
PW4 Ho Siu Hong
G G
18. Mr Ho worked as Government Chemist in the Government
H H
Laboratory. He adopted his 3 reports (exhibits P8, P9, and P10) as part of
I his evidence. He found the DNA obtained from the bloodstain on the blade I
of one of the knives (exhibit P3A) could have originated from the alleged
J J
victim with a high figure of RMP; he also found the DNA obtained from
K the handle of the same knife could have originated from the defendant with K
a high figure of RMP when using the local Chinese population database.
L L
He had been told that the defendant was a Nepalese but he could not use
M the database for Nepalese population because it was not made available to M
him. However, he said that previous reported studies and simulations
N N
showed that even if that was taken into account, the difference in RMP
O would only be in the region of 10 times to <10 to the power of 4> times ie O
10,000 times. With an extremely large RMP in the case of the defendant
P P
vis-à-vis the knife handle in the region <10 to the power of 15>, the
Q difference would not be significant. Q
R R
19. Mr Ho was also challenged on the DNA profile of the DNA
S found on the knife handle in that for 10 of the 26 systems (“the 10 index S
systems”) used for profiling, there were 6 inconclusive results and 4
T T
negative results. There were two aspects in the challenge: (1) the effect
U U
V V
-7-
A A
B B
this had on the calculation of the RMP; and (2) the effect on discovering
C mismatches on the undisputed premise that where there was even just one C
mismatch out of the 26 systems when two DNA profiles were being
D D
compared, the conclusion would have been the subject DNA could not
E have come from the donor of the buccal swab DNA. E
F F
20. On (1), Mr Ho said that the related RMP figure had already
G factored in the fact that only 16 of the 26 systems had positive matches. G
H H
21. On (2), Mr Ho said that although there was insufficient quality
I and/or quantity of DNA material to provide him with recordable figures in I
the 10 index systems in the DNA profile chart (relating to the knife handle)
J J
for use in a positive matching exercise with the defendant’s DNA profile,
K the said material was nonetheless good enough to allow him to reach the K
conclusion that there was no mismatch between the two batches of DNA
L L
in any of the 10 index systems. Defence challenged this conclusion as
M being unscientific but it was not in a position to provide any concrete M
suggestions (or evidence) to support its claim.
N N
O 22. Mr Ho could not find any results on the other knife (exhibit O
P3B).
P P
Q 23. Mr Ho said that the most likely reason for presence of DNA Q
on an item was direct contact and presence by transfer was less likely. Mr
R R
Ho confirmed that one could not date a DNA material found on an item.
S S
T T
U U
V V
-8-
A A
B B
PW5 DPC 16057
C C
24. He was the exhibits officer but came to the scene of discovery
D D
of the knives late at about 11 am on 12 July 2021. He wore gloves when
E handling the exhibits. He took out the two knives one after the other from E
the gutter for visual examination (first exhibit P3B, then exhibit P3A).
F F
G 25. He also took photographs of the scene and the two knives G
(Photo Album No 2 of 3 ie exhibit P5B).
H H
I 26. He removed the dustbin in the vicinity of the knives from its I
original position before taking out the two knives for visual examination.
J J
K 27. He was asked about the sequence in which his examination of K
the knives and the taking of photographs took place. Initially he took
L L
photos 5 & 6 first, then took out the two knives for examination, and then
M took the remaining photographs. When asked whether photo 4 was a M
reconstruction, he changed his version by saying he took photos 4, 5, & 6
N N
before the visual examination.
O O
28. When asked about the floor tiles which formed the
P P
background of the close-up photos of the knives (eg photo 7), he said that
Q that was part of the back alley but beyond the part shown by the various Q
photographs of the scene.
R R
S 29. He participated in the video recorded interview of the S
defendant and showed him the two knives in the case. He told the
T T
defendant that the latter’s DNA was found on one of them ie exhibit P3A.
U U
V V
-9-
A A
B B
C PW6 Shrestha Mukesh C
D D
30. He was the cousin brother of Shrestha Santosh who worked at
E the Namaste Hamro Club Restaurant at the material time. Mukesh E
frequented the restaurant often and had never seen the two knives subject
F F
of the case. He denied knowing the defendant at the material time.
G G
31. He confirmed the depictions of photos 1, 2, 3, 4, 5, 6, 7, 8, 9
H H
and 12 of Photot Album No 3 of 3 (exhibit P5C).
I I
SUMMARY OF VIDEO RECORDED INTERVIEW (“VRI”)
J J
K 32. Cautioned VRI conducted on 15 November 2023 (1225 to K
1333 hours) is undisputed as to voluntariness and accuracy. At the time of
L L
the offence, the defendant was having food in a restaurant named Hamro
M Club in Jordan with a Nepalese friend called Edison Serchan whose phone M
number the defendant did not have. He contacted Edison through
N N
Instagram. The defendant worked as a bar tender.
O O
33. When shown the two knives used for the attack and being told
P P
that his DNA was on the handle of one of them, the defendant said he had
Q touched one of the knives (the one on the left ie exhibit P3A) without Q
gloves once but he did not chop that man. That time, the knife was wrapped
R R
in a newspaper. There were people in the restaurant that he did not know.
S He touched the handle of the knife at the restaurant whose owner was also S
present and his name was Mukesh. He touched the knife on the same day
T T
as that of the wounding incident. He even took a selfie with the knife on
U U
V V
- 10 -
A A
B B
his previous phone which was later stolen. Afterwards he left the knife at
C the same position. C
D D
34. Later in the VRI, the defendant said he went to the restaurant
E at 7 or 8 pm and maybe left at 12 midnight and then went to a park to sit E
and talk and drink beer with his friend until 2 or 3 am at which time they
F F
went back to their respective homes.
G G
SUMMARY OF DEFENCE EVIDENCE
H H
I 35. Defence did not call any evidence. I
J J
MY CONSIDERATION
K K
36. I reminded myself the burden of proof rested on the
L L
prosecution, standard being beyond a reasonable doubt. Defendant needed
M not prove anything, least so his innocence. M
N N
37. I treated the contents of the cautioned VRI as a mixed
O statement and look at the whole to determine where the truth lay bearing in O
mind the burden of proof was on the prosecution.
P P
Q 38. PW1’s evidence is undisputed. I gave his evidence full weight. Q
I found he was attacked in the early morning in question in the place
R R
specified in the Charge. He was wounded in the process. Looking at the
S undisputed injuries and the CCTV footage which accompanied his S
evidence, I found the two unidentified assailants armed with long knives
T T
had the joint intention to cause PW1 grievous bodily harm.
U U
V V
- 11 -
A A
B B
C 39. PW2’s evidence is largely undisputed. The only challenge C
appeared to be whether he was able to see two knives rather than just one
D D
on first discovery from his vantage point. I do not regard the challenge had
E any force because the relevant photograph ie photo 5 of Photo Album 2 of E
3 (exhibit P5B) used for the challenge was shot at a different angle. I gave
F F
PW2’s evidence full weight.
G G
40. PW3’e evidence is undisputed. I gave her evidence full
H H
weight.
I I
41. PW4’s evidence was challenged in some important aspects. I
J J
listed the challenges above in the section relating to the summary of PW4’s
K evidence. In the absence of contrary expert evidence, I accepted his K
explanations. I gave his evidence full weight.
L L
M 42. PW5’s evidence on the whole is credible and reliable save and M
except the parts about (1) the place at which the close-up photos of the two
N N
knives were taken; and (2) the sequence in which the visual examination
O of the two knives and the taking of photos 4, 5, & 6 of Photo Album No 2 O
of 3 (exhibit P5B) took place.
P P
Q 43. In relation to (2), therefore, there is a possibility that there Q
might have been a reconstruction of the scene for photo-taking to take place.
R R
S 44. I therefore could only give full weight to PW5’s evidence S
insofar as they related to the parts other than the two specified aspects
T T
above.
U U
V V
- 12 -
A A
B B
C 45. PW6’s evidence is undisputed but largely irrelevant. It is C
irrelevant because no one not even the defendant in VRI was saying that
D D
the two subject knives (beef knives) were table knives or kitchen knives
E used at the restaurant. In any event, insofar as credibility and reliability is E
concerned, I have no difficulty in giving full weight to PW6’s evidence.
F F
G 46. As regards the VRI, the narratives as to date and time are G
vague. However, when one looked at the contents of the VRI as a whole,
H H
one was able to form a picture of what the defendant was talking about. He
I was saying that he was not at the crime scene at the relevant time; that in I
the evening of the previous night, he was having food with his friend
J J
Edison at the Hamro Club Restaurant in Jordan (probably the Namaste
K Hamro Club); that he touched the handle of one of two knives wrapped in K
newspaper for fun; that he and Edison stayed till 12 midnight before going
L L
to a park for fun till 2 or 3 am whereupon they went back to their separate
M homes. M
N N
47. My view is although the chain of exhibits has been agreed as
O an admitted fact (para 13 of exhibit P11), there was a large time gap (about O
7 hours) between the wounding incident and the first discovery of the two
P P
knives by PW2. There was also a small time gap (about 2 hours) between
Q first discovery by PW2 and the subsequent police seizure of the knives Q
during which time there was no evidence of any attempt to preserve the
R R
integrity of the chain of evidence of the two knives. Besides, the knife with
S the blood stains of the victim and the DNA of the defendant (exhibit P3A) S
lay at the bottom of the gutter in which there was water stain (see photo 6
T T
of Photo Album No 2 of 3 (exhibit P5B)). When one looked at the close-
U U
V V
- 13 -
A A
B B
up photo of exhibit P3A at photo 12 of exhibit P5B, it was not difficult to
C see water stain on the blade of the knife. C
D D
48. During all this period of about 9 hours, there is no evidence
E of what might have happened to the two knives. Their integrity and E
freedom from interference could not be ensured. Indeed, it would be
F F
unknown as to when they were placed in the gutter in the first place.
G G
49. Another aspect worth mentioning is that PW5 removed the
H H
dustbin before he touched the two knives thereby opening up opportunities
I for transfer of DNA material even before seizure. I
J J
50. Even if the defendant’s DNA was indeed left on the handle of
K exhibit P3A by direct contact, the time at which this was done would be K
unknown because DNA technology thus far would not be able to date a
L L
DNA presence on an item.
M M
51. It is here one had to look at the VRI of the defendant.
N N
Defendant admitted touching exhibit P3A but he said he touched it prior to
O the offence. Viewed as a whole together with the other evidence in the O
case, I am of the view that what he said might be true.
P P
Q 52. Hence, based on the VRI and the other doubts relating to the Q
integrity and freedom from interference of exhibit P3A prior to seizure, I
R R
am of the view that there exists reasonable doubts in the prosecution case
S against the defendant. As a result, the prosecution could not prove the S
charge beyond a reasonable doubt.
T T
U U
V V
- 14 -
A A
B B
CONCLUSION
C C
53. For the above reasons, I found the defendant not guilty of the
D D
offence charged.
E E
F F
G ( Isaac Tam ) G
District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 292/2024
C [2025] HKDC 110 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 292 OF 2024
F F
G ---------------------------------- G
HKSAR
H H
v
I GURUNG SACHIN I
----------------------------------
J J
K Before: His Honour Judge Tam K
Date: 16 January 2025
L L
Present: Mr Wong Kevin K W, counsel-on-fiat for HKSAR
M Mr Lee Pak Chau, instructed by Raymond Chan Solicitors, M
assigned by the Director of Legal Aid, for the defendant
N N
Offence: Wounding with intent（有意圖而傷人）
O O
P
-------------------------------------- P
REASONS FOR VERDICT
Q Q
--------------------------------------
R R
S S
T T
U U
V V
-2-
A A
B B
1. The defendant pleaded not guilty before me to one charge of
C Wounding with intent, contrary to section 17(a) of the Offences against the C
Person Ordinance, Cap 212.
D D
E 2. Particulars are that he, on 12 July 2021, outside No 362 Lai E
Chi Kok Road, Sham Shui Po, Kowloon, in Hong Kong, together with a
F F
person unknown, unlawfully and maliciously wounded Liu Bing with
G intent to do him grievous bodily harm. G
H H
3. A trial was necessary to determine whether the defendant is
I guilty or not guilty of the offence charged. I
J J
PROSECUTION CASE IN BRIEF
K K
4. In the small hours of 12 July 2021, outside a fruits and
L L
vegetables shop in Lai Chi Kok Road, PW1 Liu Bing was chopped in the
M arms by two men each armed with a knife. The two men then fled. Not M
long, PW1 was sent to the hospital for treatment. He was found to have
N N
suffered a laceration of 8-10 cm in length on each arm.
O O
5. At about 8:45 am the same day, a security guard of a building
P P
PW2 found two beef knives in the gutter of a back alley in the vicinity of
Q the crime scene. He intended to make a report to the police but police came Q
at about 9:50 am to investigate a case of wounding so he told them about
R R
the knives. At about 11:10 am, the police seized the two knives (exhibits
S P3A and P3B). S
T T
U U
V V
-3-
A A
B B
6. Upon DNA examination, defendant’s DNA was found on the
C handle of exhibit P3A; PW1’s DNA was found on the blade of exhibit P3A. C
No results were found on exhibit P3B.
D D
E 7. After more than 2 years, the defendant was arrested at his E
home. Under cautioned VRI, the defendant said on or about 12 July 2021
F F
he touched one of the subject knives at a restaurant in Jordan but he denied
G chopping PW1. G
H H
DEFENCE CASE IN BRIEF
I I
8. Defence did not call any evidence but appeared to be relying
J J
on the contents of the video recorded interview.
K K
ISSUES IN THE TRIAL
L L
M 9. The sole issue in the case is identity: whether one of the two M
assailants was the defendant. In this respect, the DNA evidence linking the
N N
defendant to one of the knives in question (exhibit P3A) is most important.
O O
PROCEDURAL HISTORY
P P
Q 10. The prosecution called 6 witnesses who were PW1 Liu Bing Q
(complainant); PW2 Lai Kwok Ming (security guard of Fu Wa Mansion);
R R
PW3 Dr Wun Hau Ling (government chemist); PW4 Ho Siu Hong
S (forensic scientist); PW5 DPC16057 (exhibits officer); and PW6 Shrestha S
Mukesh (frequenter of Namaste Hamro Club).
T T
U U
V V
-4-
A A
B B
11. After the prosecution closed its case, defence made half-time
C submissions on the second limb of Galbraith. Prosecution replied. I ruled C
that there was a prima-facie case. Defence elected not to call any evidence.
D D
I reminded myself that the defence had a right not to call any evidence such
E that no adverse inference would be drawn against the defendant for such E
an election.
F F
G 12. The prosecution elected not to make any final submissions. G
The defence made final submissions orally. I have given them due
H H
consideration but will not repeat them here.
I I
SUMMARY OF PROSECUTION EVIDENCE
J J
K PW1 Liu Bing K
L L
13. He knocked off work at about 2 am on 12 July 2021 from a
M restaurant in which he worked as a cook. He was walking along his usual M
route for home nearby. When he reached the junction of Lai Chi Kok Road
N N
and Kweilin Street, two men charged at him from behind. They chopped
O his left upper arm and right forearm with knives. He was nervous and O
frightened. He ran. The two men did not chase him. Some passerby called
P P
the police for him. He was taken to Princess Margaret Hospital and
Q underwent surgery. He stayed in hospital for 2 days. He underwent Q
physiotherapy and occupational therapy. He still cannot work and his arms
R R
are still hurting. He identified himself being attacked by two men in the
S CCTV footage (02:09:03 to 02:10:13) played in court. He identified his S
bloodstains in photos Nos 2, 4, 10, 12, 13 of Photo Album No 1 of 3
T T
U U
V V
-5-
A A
B B
(exhibit P5A). He is still receiving physiotherapy and is taking pain-killer
C medication every night. C
D D
14. Under cross-examination, he said he was able to say that his
E attackers were men by their physique and build. E
F F
PW2 Lai Kwok Ming
G G
15. He was the security supervisor of Fu Wah House at 31
H H
Kweilin Street. He checked the back alley where the back door was at least
I twice during his daily shift of 7 am to 3 pm. On 11 July 2021, he found I
nothing out of the ordinary at the back alley. On 12 July 2021, at about
J J
8:45 am, he found in the gutter of the back alley two beef knives (identified
K in court). He did not touch the knives. He intended to report to the police K
but at 9:51 am, the police came to ask if there was CCTV installed at the
L L
building in connection with a wounding case so he told them about the two
M knives and he took the police to them. He identified the various scenes M
depicted in photos Nos 1, 2, 3, 4, 5 & 6 of Photo Album No 2 of 3 (exhibit
N N
P5B).
O O
PW3 Dr Wun Hau Ling
P P
Q 16. She worked as Government Chemist in the Government Q
Laboratory. She gave evidence as expert in DNA matters with no objection
R R
from defence. She was provided by the police with two buccal swabs said
S to be from same donor. She therefore simply chose one (lab ref 23DD3795) S
of the two buccal swabs for DNA profiling with the remainder unused and
T T
U U
V V
-6-
A A
B B
treated as a backup. The DNA profile is as shown in a table on page 2 of
C her report dated 29 November 2023 (exhibit P7). C
D D
17. She conducted procedures to make sure the buccal swabs
E containing DNA material were preserved without contamination. E
F F
PW4 Ho Siu Hong
G G
18. Mr Ho worked as Government Chemist in the Government
H H
Laboratory. He adopted his 3 reports (exhibits P8, P9, and P10) as part of
I his evidence. He found the DNA obtained from the bloodstain on the blade I
of one of the knives (exhibit P3A) could have originated from the alleged
J J
victim with a high figure of RMP; he also found the DNA obtained from
K the handle of the same knife could have originated from the defendant with K
a high figure of RMP when using the local Chinese population database.
L L
He had been told that the defendant was a Nepalese but he could not use
M the database for Nepalese population because it was not made available to M
him. However, he said that previous reported studies and simulations
N N
showed that even if that was taken into account, the difference in RMP
O would only be in the region of 10 times to <10 to the power of 4> times ie O
10,000 times. With an extremely large RMP in the case of the defendant
P P
vis-à-vis the knife handle in the region <10 to the power of 15>, the
Q difference would not be significant. Q
R R
19. Mr Ho was also challenged on the DNA profile of the DNA
S found on the knife handle in that for 10 of the 26 systems (“the 10 index S
systems”) used for profiling, there were 6 inconclusive results and 4
T T
negative results. There were two aspects in the challenge: (1) the effect
U U
V V
-7-
A A
B B
this had on the calculation of the RMP; and (2) the effect on discovering
C mismatches on the undisputed premise that where there was even just one C
mismatch out of the 26 systems when two DNA profiles were being
D D
compared, the conclusion would have been the subject DNA could not
E have come from the donor of the buccal swab DNA. E
F F
20. On (1), Mr Ho said that the related RMP figure had already
G factored in the fact that only 16 of the 26 systems had positive matches. G
H H
21. On (2), Mr Ho said that although there was insufficient quality
I and/or quantity of DNA material to provide him with recordable figures in I
the 10 index systems in the DNA profile chart (relating to the knife handle)
J J
for use in a positive matching exercise with the defendant’s DNA profile,
K the said material was nonetheless good enough to allow him to reach the K
conclusion that there was no mismatch between the two batches of DNA
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in any of the 10 index systems. Defence challenged this conclusion as
M being unscientific but it was not in a position to provide any concrete M
suggestions (or evidence) to support its claim.
N N
O 22. Mr Ho could not find any results on the other knife (exhibit O
P3B).
P P
Q 23. Mr Ho said that the most likely reason for presence of DNA Q
on an item was direct contact and presence by transfer was less likely. Mr
R R
Ho confirmed that one could not date a DNA material found on an item.
S S
T T
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V V
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A A
B B
PW5 DPC 16057
C C
24. He was the exhibits officer but came to the scene of discovery
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of the knives late at about 11 am on 12 July 2021. He wore gloves when
E handling the exhibits. He took out the two knives one after the other from E
the gutter for visual examination (first exhibit P3B, then exhibit P3A).
F F
G 25. He also took photographs of the scene and the two knives G
(Photo Album No 2 of 3 ie exhibit P5B).
H H
I 26. He removed the dustbin in the vicinity of the knives from its I
original position before taking out the two knives for visual examination.
J J
K 27. He was asked about the sequence in which his examination of K
the knives and the taking of photographs took place. Initially he took
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photos 5 & 6 first, then took out the two knives for examination, and then
M took the remaining photographs. When asked whether photo 4 was a M
reconstruction, he changed his version by saying he took photos 4, 5, & 6
N N
before the visual examination.
O O
28. When asked about the floor tiles which formed the
P P
background of the close-up photos of the knives (eg photo 7), he said that
Q that was part of the back alley but beyond the part shown by the various Q
photographs of the scene.
R R
S 29. He participated in the video recorded interview of the S
defendant and showed him the two knives in the case. He told the
T T
defendant that the latter’s DNA was found on one of them ie exhibit P3A.
U U
V V
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A A
B B
C PW6 Shrestha Mukesh C
D D
30. He was the cousin brother of Shrestha Santosh who worked at
E the Namaste Hamro Club Restaurant at the material time. Mukesh E
frequented the restaurant often and had never seen the two knives subject
F F
of the case. He denied knowing the defendant at the material time.
G G
31. He confirmed the depictions of photos 1, 2, 3, 4, 5, 6, 7, 8, 9
H H
and 12 of Photot Album No 3 of 3 (exhibit P5C).
I I
SUMMARY OF VIDEO RECORDED INTERVIEW (“VRI”)
J J
K 32. Cautioned VRI conducted on 15 November 2023 (1225 to K
1333 hours) is undisputed as to voluntariness and accuracy. At the time of
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the offence, the defendant was having food in a restaurant named Hamro
M Club in Jordan with a Nepalese friend called Edison Serchan whose phone M
number the defendant did not have. He contacted Edison through
N N
Instagram. The defendant worked as a bar tender.
O O
33. When shown the two knives used for the attack and being told
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that his DNA was on the handle of one of them, the defendant said he had
Q touched one of the knives (the one on the left ie exhibit P3A) without Q
gloves once but he did not chop that man. That time, the knife was wrapped
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in a newspaper. There were people in the restaurant that he did not know.
S He touched the handle of the knife at the restaurant whose owner was also S
present and his name was Mukesh. He touched the knife on the same day
T T
as that of the wounding incident. He even took a selfie with the knife on
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V V
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A A
B B
his previous phone which was later stolen. Afterwards he left the knife at
C the same position. C
D D
34. Later in the VRI, the defendant said he went to the restaurant
E at 7 or 8 pm and maybe left at 12 midnight and then went to a park to sit E
and talk and drink beer with his friend until 2 or 3 am at which time they
F F
went back to their respective homes.
G G
SUMMARY OF DEFENCE EVIDENCE
H H
I 35. Defence did not call any evidence. I
J J
MY CONSIDERATION
K K
36. I reminded myself the burden of proof rested on the
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prosecution, standard being beyond a reasonable doubt. Defendant needed
M not prove anything, least so his innocence. M
N N
37. I treated the contents of the cautioned VRI as a mixed
O statement and look at the whole to determine where the truth lay bearing in O
mind the burden of proof was on the prosecution.
P P
Q 38. PW1’s evidence is undisputed. I gave his evidence full weight. Q
I found he was attacked in the early morning in question in the place
R R
specified in the Charge. He was wounded in the process. Looking at the
S undisputed injuries and the CCTV footage which accompanied his S
evidence, I found the two unidentified assailants armed with long knives
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had the joint intention to cause PW1 grievous bodily harm.
U U
V V
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A A
B B
C 39. PW2’s evidence is largely undisputed. The only challenge C
appeared to be whether he was able to see two knives rather than just one
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on first discovery from his vantage point. I do not regard the challenge had
E any force because the relevant photograph ie photo 5 of Photo Album 2 of E
3 (exhibit P5B) used for the challenge was shot at a different angle. I gave
F F
PW2’s evidence full weight.
G G
40. PW3’e evidence is undisputed. I gave her evidence full
H H
weight.
I I
41. PW4’s evidence was challenged in some important aspects. I
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listed the challenges above in the section relating to the summary of PW4’s
K evidence. In the absence of contrary expert evidence, I accepted his K
explanations. I gave his evidence full weight.
L L
M 42. PW5’s evidence on the whole is credible and reliable save and M
except the parts about (1) the place at which the close-up photos of the two
N N
knives were taken; and (2) the sequence in which the visual examination
O of the two knives and the taking of photos 4, 5, & 6 of Photo Album No 2 O
of 3 (exhibit P5B) took place.
P P
Q 43. In relation to (2), therefore, there is a possibility that there Q
might have been a reconstruction of the scene for photo-taking to take place.
R R
S 44. I therefore could only give full weight to PW5’s evidence S
insofar as they related to the parts other than the two specified aspects
T T
above.
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V V
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A A
B B
C 45. PW6’s evidence is undisputed but largely irrelevant. It is C
irrelevant because no one not even the defendant in VRI was saying that
D D
the two subject knives (beef knives) were table knives or kitchen knives
E used at the restaurant. In any event, insofar as credibility and reliability is E
concerned, I have no difficulty in giving full weight to PW6’s evidence.
F F
G 46. As regards the VRI, the narratives as to date and time are G
vague. However, when one looked at the contents of the VRI as a whole,
H H
one was able to form a picture of what the defendant was talking about. He
I was saying that he was not at the crime scene at the relevant time; that in I
the evening of the previous night, he was having food with his friend
J J
Edison at the Hamro Club Restaurant in Jordan (probably the Namaste
K Hamro Club); that he touched the handle of one of two knives wrapped in K
newspaper for fun; that he and Edison stayed till 12 midnight before going
L L
to a park for fun till 2 or 3 am whereupon they went back to their separate
M homes. M
N N
47. My view is although the chain of exhibits has been agreed as
O an admitted fact (para 13 of exhibit P11), there was a large time gap (about O
7 hours) between the wounding incident and the first discovery of the two
P P
knives by PW2. There was also a small time gap (about 2 hours) between
Q first discovery by PW2 and the subsequent police seizure of the knives Q
during which time there was no evidence of any attempt to preserve the
R R
integrity of the chain of evidence of the two knives. Besides, the knife with
S the blood stains of the victim and the DNA of the defendant (exhibit P3A) S
lay at the bottom of the gutter in which there was water stain (see photo 6
T T
of Photo Album No 2 of 3 (exhibit P5B)). When one looked at the close-
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V V
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A A
B B
up photo of exhibit P3A at photo 12 of exhibit P5B, it was not difficult to
C see water stain on the blade of the knife. C
D D
48. During all this period of about 9 hours, there is no evidence
E of what might have happened to the two knives. Their integrity and E
freedom from interference could not be ensured. Indeed, it would be
F F
unknown as to when they were placed in the gutter in the first place.
G G
49. Another aspect worth mentioning is that PW5 removed the
H H
dustbin before he touched the two knives thereby opening up opportunities
I for transfer of DNA material even before seizure. I
J J
50. Even if the defendant’s DNA was indeed left on the handle of
K exhibit P3A by direct contact, the time at which this was done would be K
unknown because DNA technology thus far would not be able to date a
L L
DNA presence on an item.
M M
51. It is here one had to look at the VRI of the defendant.
N N
Defendant admitted touching exhibit P3A but he said he touched it prior to
O the offence. Viewed as a whole together with the other evidence in the O
case, I am of the view that what he said might be true.
P P
Q 52. Hence, based on the VRI and the other doubts relating to the Q
integrity and freedom from interference of exhibit P3A prior to seizure, I
R R
am of the view that there exists reasonable doubts in the prosecution case
S against the defendant. As a result, the prosecution could not prove the S
charge beyond a reasonable doubt.
T T
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A A
B B
CONCLUSION
C C
53. For the above reasons, I found the defendant not guilty of the
D D
offence charged.
E E
F F
G ( Isaac Tam ) G
District Judge
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