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R v Di [2010] TOLawRp 2; [2010] Tonga LR 13 (25 February 2010)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 179/2009

R

v

Di

Ford CJ

4, 5, 8, 9, 12, 19, 23, and 25 February 2010; 25 February 2010

Criminal law – charges of assault and bodily harm – self-defence rejected – convicted

The 32 year old accused first arrived in Tonga from China on 1 September 2009. On the night of 16 October 2009 the accused was alleged to have caused harm to the three complainants by slitting the hand and forearm respectively of the two female complainants and cutting the stomach of the male complainant. The weapon allegedly used was a razor sharp utility knife. He was charged with one count of common assault and three counts of bodily harm involving the three Chinese complainants. The accused pleaded not guilty and defended himself. Neither he nor any of the other Chinese witnesses could speak English or Tongan. The accused challenged the Crown's allegation that he had caused the knife wounds to the three complainants. He admitted causing injury to one of the complainants but argued that that was in self-defence after they attacked him. He submitted that the injuries to the other complainants were caused by glass from broken beer bottles in the karaoke room at the restaurant.

Held:

1. The essential elements of the offence of causing bodily harm were not in dispute. There was ample evidence that each of the three complainants suffered bodily harm. The only real issue was whether there was any substance in the accused's allegation that at all material times he was acting in self-defence.

2. The court was in no doubt that the accused carried out the assault and bodily harm offences described in the indictment. The court was also convinced that there was no element of self-defence. The accused was the initiator and perpetrator. No one had attacked or attempted to attack him.

3. The accused was convicted on all counts.

Cases considered:

R v Fanua anor [2005] Tonga LR 264

R v Makafilia [2005] Tonga LR 448

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown : Ms Puloka and Mr Sisifa
The accused appeared in person

Oral judgment

The charges

[1] The 32 year old accused first arrived in Tonga from China on 1 September 2009. He is charged with one count of common assault and three counts of bodily harm involving three Chinese complainants -- one male and two females. The offences are alleged to have been committed at the Green Island Restaurant in Ma'ufanga where the accused worked as a handyman and waiter. One of his duties was to look after the karaoke equipment.

[2] The incident occurred on the night of 16 October 2009. The accused is alleged to have caused harm to the three complainants by slitting the hand and forearm respectively of the two female complainants and cutting the stomach of the male complainant. The weapon allegedly used was a razor sharp utility knife. The accused pleaded not guilty and defended himself. Neither he nor any of the other Chinese witnesses could speak English or Tongan and the court is obliged to the Chinese interpreter who assisted throughout the trial.

[3] The accused challenged the Crown's allegation that he had caused the knife wounds to the three complainants. He admitted causing injury to one of the complainants but argued that that was in self-defence after they attacked him. He submitted that the injuries to the other complainants were caused by glass from broken beer bottles in the karaoke room at the restaurant. He conducted his defence with some skill and gave and called evidence on his own behalf. This morning he took just under one hour in presenting his very detailed closing submissions to the court.

Background

[4] In order to understand the accused's alleged motive it is necessary to explain a little about the background to the first complainant, 34-year-old Du Chun Juen. She told the court that she arrived in Tonga on 23 June 2009 but she was in the Kingdom because a woman, Liu Li Rong, had lied to her back in China about a job. Juen explained to the court that she had met Rong in China through a mutual friend and Rong had offered her a job in her restaurant in Tonga as a waitress at a salary of US $1500 per month. Juen had to pay Rong ¥40,000 to secure the job and she then had to pay for her own airfares to Tonga. When Juen arrived in the Kingdom she was met at the airport by Rong who immediately seized her passport explaining that she needed to arrange a work permit. Rong then took her to a house in Ha'ateiho where she was told that she would not be working in a restaurant but her job was to sleep with men and if she refused then she would be thrown into the sea.

[5] Juen said in evidence that she worked as a prostitute for approximately 1 month and then, by making an advance to Rong of $3000, she was able to retrieve her passport and she immediately left Rong's house. She told the court that she is a cook by occupation but she has no job at the present time and she is still awaiting an extension of her visa. Rong had told her that she could go and work as a waitress in her restaurant which opened on 6 September 2009 but her wages would be less than what she had been told they would be and she would still have to sleep with men. Juen told her that she did not want to work for her.

The Crown case

[6] The night of 16 October 2009 was the first occasion Juen had visited the Green Island Restaurant. Her friends had persuaded her to go to the restaurant for a fun karaoke night. The restaurant has a special karaoke room which is closed off from the main restaurant and bar area. During the trial the court took a view of the layout of the restaurant facility at Ma'ufanga. On the night in question, the accused was working as a waiter at the restaurant. In his statement to the police he said that Lui Li Rong is his sister-in-law but in his evidence he said that she was really just a neighbour of his back in China.

[7] It appears that at one point the accused tried to sing a karaoke song and Juen, the first complainant, objected on the grounds that the accused was a waiter and she and her friends were paying for the karaoke service. She, therefore, apparently either unplugged the karaoke or cancelled the particular song the accused was trying to sing. Juen and her friends, including the two other complainants, remained in the karaoke room drinking beer and/or tea. The incident giving rise to the charges happened approximately 20 minutes after Juen had unplugged the karaoke on the accused.

[8] Juen said she had never seen the accused before the night in question but when he later brought in a pot of tea and placed it on the table he turned to her and asked if she would go back to work for Liu Li Rong because this was her last opportunity. Juen said that she would not do that and the accused then grabbed her around the throat with one hand and punched her on the side of her head with his other hand. A scuffle ensued with Juen trying to defend herself. She described how the accused took a knife from the pocket of his trousers and swung it towards her head. She used her left arm to protect herself and she felt a cut on the palm of her hand. The two continued to struggle and the accused kicked Juen and she fell over on a sofa. In cross-examination the witness, in answer to a question from the accused, described him as acting "like a crazy dog".

[9] It is not possible from the evidence to ascertain the precise sequence of events and movements of the various parties but the second complainant, 30-year-old Hong Yu Yang, told the court that she had gone out to the toilet and on her way back she opened the door to the karaoke room and saw the accused holding Juen by the throat and punching her. She rushed into the room where the struggle was taking place and tried to separate the pair but she suddenly felt something cutting into her left forearm and blood started spilling out. She grabbed some tissues from the table to try and stop the bleeding. Later, at the hospital, she became aware that she had also suffered another much smaller cut below the right elbow.

[10] Both the first and second complainants told the court how the third complainant, Chung Fang Wu, had entered the karaoke room about the same time telling the accused that "men don't beat woman" and he joined in and tried to separate the accused from the others. In his own evidence, 52-year-old Mr Wu said that he was also returning from the toilet when he saw the accused beating one of the girls. He tried to separate the accused from the girls but he noticed that they were already bleeding. He told the accused not to beat the women and he tried to push him away but suddenly he felt something cut across his stomach and he realised that the accused had cut him with a knife and he immediately backed away.

[11] The Crown also called evidence from 45-year-old Li Xiao Ging. He has been in Tonga since 2004 and he had organised the function at the Green Island Restaurant on the night of 16 October 2009. Ging said that he had been in the bar area talking to the manager when the incident occurred in the karaoke room. He recalled seeing the accused coming out of the karaoke room brandishing the utility knife and he noted that he had blood stains on his shirt. He then saw the three complainants come out of the karaoke room and he told the court that they were "bleeding heavily". He described the nature of their injuries. He did not think that the accused had been injured.

[12] Another witness called by the Crown was 48-year-old Mei Jian Huang. Mr Huang has been in Tonga since 1995. On the night in question he was with the group in the karaoke room when the incident began. He said that he had been seated at the end of the room furthest from the karaoke equipment. He described what he had witnessed. He told the court that he had tried to stop the struggle by separating the accused but he suddenly saw that the accused had a knife in his hand which he was swinging around and so he backed off. Mr Huang told how the three complainants had been injured. He described having seen blood on the floor and he also said that he had seen, "a bit of blood on top of his (the accused's) head".

[13] After the incident in the karaoke room the accused walked out to the restaurant/bar area brandishing the knife in the air. The knife in question was identified by the witnesses and produced in court as an exhibit. The court was told that it is a utility knife commonly used in factories, warehouses, and other situations for opening cardboard cartons and packages or for cutting through tape or cord. The razor like blade is normally recessed into the hollow handle of the knife and needs to be projected forward manually before use. The blade is particularly sharp. The police were called to the Green Island Restaurant after the incident and the three complainants were treated at Vaiola Hospital. The doctors who treated the complainants gave evidence describing the nature of their wounds. There could be no dispute that the injuries were potentially serious.

The defence case

[14] The accused gave written statements to the police which were produced in evidence. He also elected to give sworn evidence before the court in the course of which he confirmed on oath that the statements he had given to the police were given voluntarily and that they were true. In his first record of interview dated 22 October 2009 the accused told the police through a Chinese interpreter that on the night in question:

"People tried to attack me in the TV room. They punch (sic) me down and use a lot of VB bottles to punch my head and break my bone and the same time I use my tool knife to protect myself and I cut them."

[15] The accused said that he saw three people when he fell down. He said that he only injured one person and that was Hong Yu Yang who he cut on the left arm. He denied cutting Mr Wu's stomach. He admitted that he waved the tool knife at Mr Wu's stomach but maintained it did not reach him.

[16] The accused was asked in cross-examination by Crown counsel why the complainants would have attacked him in the way he alleged. After indicating that they had "visa" and "finance" problems he went on to say, "I think that night they just want to come and cause trouble. Their attitude was very bad. It looked like they just wanted to come and make trouble."

[17] The police investigating officer, Lance Corporal Tu'ivailala, told the court that on 5 November 2009 the accused made an official complaint of bodily harm against the second complainant, Hong Yu Yang, alleging that on the night of the incident at the Green Island Restaurant she had caused him injury by hitting him across the head with a VB beer bottle. The officer said that he examined the accused's head at the time but he could not see any sign of injury. He, therefore, asked the accused to go and get a medical report confirming the alleged injury but no such report had ever been produced.

[18] The accused called evidence in support from a Mr Yang, Manager of Operations at the Green Island Restaurant. He indicated that he was a business partner with Liu Li Rong but they were also in a relationship. He denied that Liu Li Rong operated a brothel or that the first complainant had ever been forced to work for Rong as a prostitute. Mr Yang did not witness the incident in the karaoke room nor did he know how it started. He said that he did not see the accused with a knife but he saw Mr Wu punch the accused. The witness was clearly sympathetic to the accused.

[19] Another witness called on behalf of the accused was Li Li who was head waitress at the Green Island Restaurant on the night of 16 October 2009. She had arrived in Tonga from China on 3 September 2009. Although Li Li did not see the incident in the karaoke room, the evidence that she was able to give did seem to confirm much of the Crown's case. She confirmed seeing the accused with the knife in question and she said that she had not seen Mr Wu holding a knife.

[20] Upon instructions from the court, Crown counsel kindly arranged for Doctor Saulala, the doctor who examined the accused after the incident, to give evidence on the accused's behalf and she was called as a witness this morning. The doctor produced a written medical report dated 22 October 2009 which she made following an initial examination on 16 October 2009 and a further examination (at the request of the accused) on 22 October 2009. The report indicated that upon the initial examination on 16 October the accused was found to have minor superficial lacerations to his right forearm and on the second examination on 22 October the doctor found "small bruising" over his chest area. X-rays were taken but there was no evidence of any fractures. I find this evidence consistent with the account the Crown witnesses gave of the struggle which took place in the karaoke room. There was blood on the top of the accused's head but I am satisfied that it came from the palm of the first complainant's hand as she tried to fend off the accused. The doctor's report made no mention of any injury to the accused's head but the accused, with leave of the court, requested the doctor to examine his head in court. The doctor did so and said that she was able to detect "a small bump on his head" but she could not say if that had been there at the time of her earlier examinations.

Discussion

[21] The essential elements of the offence of causing bodily harm are not in dispute. "Harm" is defined in section 107(2) of the Criminal Offences Act (Cap 18) and the relevant definition relied upon in the present case is subsection (c) which reads, "any wound which is not severe". As noted in R v Fanua anor [2005] Tonga LR 264, 268 at common law a "wound" is any injury which causes the continuity of the skin to break and the breaking of the skin will normally be evidenced by a flow of blood. There is ample evidence that each of the three complainants suffered bodily harm. The only real issue is whether there is any substance in the accused's allegation that at all material times he was acting in self-defence.

[22] Whether or not the accused was acting in self-defence is a factual matter. The onus remains on the Crown to prove beyond reasonable doubt that the accused was not acting in self-defence. If the issue of self-defence does arise then the court is to apply the principles considered by this court in R v Makafilia [2005] Tonga LR 448.

Conclusions
[23] I have been left in no doubt whatsoever that the accused carried out the assault and bodily harm offences described in the indictment. I am equally convinced that there was no element of self-defence. The accused was the initiator and perpetrator. No one had attacked or attempted to attack him. I accept the evidence given by the prosecution witnesses who I found to be both credible and reliable. The complainants were simply trying to protect themselves and prevent the accused from continuing with his unprovoked "crazy dog" attack.

[24] The accused is convicted accordingly on all counts.