HKSAR v. Lin Wai Ying

CACC000266/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.266
(Criminal)

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Coram: Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 25 November 1998

Date of Judgment: 25 November 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 29th April 1998, the Applicant was convicted in the District Court by Deputy Judge Wahab of throwing corrosive fluid, namely sulphuric acid, with intent to burn her female victim, contrary to section 29(c) of the Offences Against the Person Ordinance, Cap.212. She was sentenced to seven years' imprisonment. The Applicant now applies for leave to appeal against conviction and sentence.

2. The offence allegedly arose as the result of a jealous rage on the part of the Applicant who threw acid over the face and body of the victim PW1 who was involved in a sexual relationship with her husband (DW2). PW1's credibility was the vital factor because her account of what happened in the incident was considerably different to the Applicant's version which was that in the course of a struggle with PW1, she had accidentally caused acid to splash onto the victim.

3. PW1 testified that the Applicant had twice thrown acid at her. At one point, she said that the second incident had been witnessed by a neighbour.

4. Mr. McNamara, on behalf of the Applicant, submits in his Perfected Grounds of Appeal as amended that, although it was incumbent on the judge to consider this fundamental conflict in the evidence, he nowhere in his Reasons for Verdict sufficiently considered the incident itself nor the evidence given by PW5 who was a neighbour called by the prosecution. The significance of this witness, it is submitted, is that he gave no evidence to support the victim's account, even though on the victim's account that neighbour should have seen the second part of the attack. Mr. McNamara has maintained that nowhere does the judge express a finding as to whether there were two incidents or only one when acid was thrown.

5. We can say straightaway from the Reasons for Verdict that it does seem plain to us that the trial judge did consider the conflict and that he set out in his Reasons at page 7 line K the conflict itself. This reads:

"The prosecution's case is that the defendant saw PW1 and DW2 (the defendant's husband) in the lift lobby of the 26th floor of Fu Tung House. The defendant emerged from the premises holding an uncapped bottle of corrosive fluid and threw the fluid at PW1. Despite using DW2's body to shield herself, PW1 was splashed. DW2 pulled or dragged the defendant back into the premises. The defendant again emerged. She again splashed PW1 with corrosive fluid. A neighbour pulled the defendant away. DW2 appeared with water for PW1 to wash herself. PW1 then left.

The defence case is that the defendant was trying to unblock drainage pipes in the toilet of the premises. She used a bottle of corrosive fluid for that purpose. She was not too successful. She tried to enlist the help of DW2. She could not see DW2 when she came out of the toilet. She opened the door to the premises to see if DW2 had gone outside. She saw PW1 and DW2 in the lift lobby. The defendant left the premises not mindful of the fact that she was still holding the uncapped bottle of corrosive fluid. A quarrel and a struggle developed between PW1 and the defendant. The struggle included PW1 trying to snatch from the defendant the bottle of corrosive fluid. In the course of the struggle, corrosive fluid was splashed on PW1, the defendant and DW2."

6. Following these passages, the judge went on to give reasons why he rejected the Applicant's evidence of what had occurred in the lift lobby. He found that the Applicant was "merely trying to establish an excuse for holding the uncapped bottle of corrosive fluid". The judge reviewed the whole incident with accuracy and in ample detail, subject to one qualification to which we shall come shortly before concluding that he was satisfied that the Applicant "was not telling the truth when she asserted the rather aggressive role of PW1". Later he said that he found the Applicant was "simply not telling the truth". The judge also rejected the evidence of DW2 whose aim was "solely to help exculpate the defendant while hoping he would not hurt too much the feelings of PW1".

7. It is perfectly apparent to this court that by rejecting the Applicant's account, the judge was finding that two incidents where acid was thrown had been established. It is clear from the detail of the reasoning given by the trial judge that he had fully understood and taken into account both sides of this tragic story before coming down firmly on the side he believed. The account given by the Applicant was, in the circumstances of the case, bordering on the absurd and it is not surprising that the judge rejected it.

8. As Mr. McNamara has rightly submitted, PW1 was the only witness to testify against the Applicant. He is also right to say that PW1 at one stage gave evidence that at least one of the neighbours must have seen her being attacked. The one neighbour, PW5, who gave evidence of having seen anything at all, said that when he came out of his premises he saw water being poured onto the victim. That would have been at a time after the incident was concluded. However, the significance of this aspect of the case has to be looked at in the full context of what PW1 went on to say in cross-examination. At page 45A, this is what she said:

"A. I think he (the neighbour) should be able to witness the incident.

Q. Because he grabbed the defendant, he must be able to witness the second witness (meaning incident), am I right to say that?

A. I think so.

Q. But in your statement to the police you said you were not sure.

A. I think the young man should be able to witness the second incident because at that time I tried to block her away with my umbrella and what I am talking about 'her' refers to Mrs. Fong Shu-ming (the Applicant).

Q. But in your statement you told the police that someone came out to the corridor but you were not sure if that someone could see the event.

A. Some people did come out of the corridor. However, I remember vividly that the young man pulled her away."

9. In the light of those passages from the transcript, Mr. McNamara was perhaps putting it too high when he submitted that the victim had unequivocally said that the neighbour had positively seen the attack. In this light also we do not consider that very much significance attaches to the victim's belief that one or more than one neighbour saw the attack, bearing in mind the horrific nature of the attack to which she was subjected, which was seven months before she gave evidence in the trial. It may be that the judge thought the same because, as Mr. McNamara again rightly points out, there is no reference at all to PW5 on this aspect of the case in the Reasons for Verdict. We take the view that the judge was wrong to have omitted any reference to this aspect. However, this was a peripheral matter and could not in any substantial way undermine the credibility of the victim whose evidence was crucial.

10. In a further ground of appeal, we have been invited to consider the evidence of the burns to PW1's and DW2's bodies as casting a doubt on the Applicant's version of events. This aspect was considered by the trial judge at pages 10 and 13 in the appeal bundle, and it is no part of our function to re-assess evidence of that kind. The judge said on page 13 line H:

"One of the points submitted by defence counsel was that the injuries suffered by PW1, the defendant and DW2 are consistent with the defence version of events in the lift lobby. I find myself unable to accept this submission. The extensive and serious injuries to PW1 are consistent with her having been attacked with corrosive liquid in circumstances she explained in court. Injuries to the defendant are consistent with her throwing corrosive liquid in a rage and accidentally hurting herself in the process. Injuries to DW2 are consistent with PW1's version that she stood face to face with DW2 and used his body as a shield. Corrosive fluid was thrown at her over the shoulder of DW2."

11. This was in our view a perfectly sensible conclusion and we have no intention of interfering with it. There is no basis for doing so.

12. The final ground relates to evidence that had been given that PW1 had been paid half a million dollars by DW2. The reasons for the payment were used to attack PW1's credibility. This was a matter fully considered by the judge in his findings, and we do not propose to re-try an issue about which the judge was fully conversant when we have not had the advantage of having seen or heard witnesses for ourselves.

13. Accordingly, there is, we find, no substance to the application so far as it concerns conviction despite the qualification which has to be made in relation to the judge's failure to deal more fully with the evidence given by the neighbour.

14. Turning to sentence, the judge described this crime as having caused "horrendous cosmetic injuries" to the victim from her face to her knees. The victim was in her late thirties and she has also lost, as the judge put it: "much of the faculty of both her eyes".

15. The judge reviewed no less than eight cases in coming to the conclusion that a starting point for this crime should be 12 years' imprisonment. Bearing in mind that seven years is the maximum sentence that can be imposed in the District Court, that is the sentence which was passed, seven years. The judge was dealing with a dreadful case and although it has been described as unpremeditated, we do not wholly agree with that description. To some extent what happened was a very deliberate act on the part of the Applicant. There were medical and background reports concerning the Applicant which were before the court. These were, in a matter of this gravity, of less significance than they might otherwise have been although they helped to explain the Applicant's conduct.

16. The judge took into account all relevant matters and whilst he may not have made extensive reference to the reports, it is clear he had them in mind. He referred to the emotional suffering of the Applicant on account of her husband's affair with the victim.

17. Criticism that the sentence was manifestly excessive has no merit. This was a cruel and dreadful offence of the utmost gravity. We do not criticize the starting point taken by the judge. On the contrary, we express our astonishment that this case was ever considered appropriate for trial in the District Court. Some of the cases, very properly cited in his list of authorities by Mr. McNamara and some of which were also considered by the trial judge, have served only to fortify this view.

18. Accordingly, the applications in respect of conviction and sentence are dismissed.

Representation:

Mr. A.A. Bruce, S.G.C., S.A.D.P.P. and Mr. Winston Chan, G.C. for D.P.P./Respondent

Mr. John McNamara instructed by Messrs. Leo K.W. Lok & Co. for Applicant.