The Queen v. Tsui Ma-lai
Read the full judgment text of DCCC 146/1973 on BabelCite. This District Court judgment.
1. The Defendant, who was represented by a solicitor, was tried on the following three charges namely:
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DCCC000146/1973 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CRIMINAL JURISDICTION CASE NO.146 OF 1973 -----------------
----------------- Coram: J.J. Rhind, D.J. Date of Judgment: 3rd August 1973 ----------------- JUDGMENT ----------------- The Charges 1. The Defendant, who was represented by a solicitor, was tried on the following three charges namely:
The Primary Facts 2. The facts I found are set out in the remaining paragraphs of this heading. 3. The Defendant, who is now aged 31, was married in 1967, and from that marriage one child was born in 1967 and another in 1970. The marriage was a happy one until about August last year when the Defendant noticed that her busband was no longer displaying affection towards her, the Defendant suspecting that the reason for this was that her husband had another woman. 4. The Defendant has known YUEN Wai-foon (hereinafter called "the Complainant"), who is a single woman now aged 22, for about 3 years. The Defendant knew her in the capacity of a friend and even got to know the Complainant's family. 5. In October last year the Defendant, accompanied by her mother and sister in Nathan Road, by chance encountered her husband with the Complainant, whereupon it became manifestly clear to the Defendant that the woman with whom her husband was having an affair was none other than her friend, the Complainant. 6. The husband was quite impenitent after the discovery of this affair and it continued unabated until February this year. The husband stayed away from home till late every night, he neglected the children, and merely used his home as a place for sleeping. He took the side of the Complainant in any confrontation between her and the Defendant, and showed his wife no affection. He had no sexual relations with the Defendant and her health deteriorated. She lost weight and felt understandably wretched. 7. In February this year there was a change of circumstances, in that the Complainant left for Canada, the Defendant's understanding of the reason for this being that the Complainant was going to get married there. However, while the Complainant was in Canada the Defendant discovered that her husband was receiving letters from the Complainant which showed that their affair was still very much alive and that the Complainant wanted to return to Hong Kong so that she could be with the Defendant's husband again. From this correspondence the Defendant also learnt that her husband was financing the Complainant's return. Towards the end of April the Complainant in fact returned to Hong Kong. 8. On the 5th of May, the Defendant's mother-in-law suggested to the Defendant that she should allow her husband to bring the Complainant to live with the Defendant and her husband. The Defendant told her she would think about it. 9. Next day, 6th of May, at about 9.30 a.m. the Defendant called, uninvited, at the Complainant's home, which is the address particularised in the charges. From her own home the Defendant brought with her a shoulder bag (Exhibit P26) which she had packed with the following items:-
10. The Complainant rented a room at that address from Mrs. CHAU Siu-yuk (P.W.3) who also lives on those premises. The premises comprise a flat with several rooms as shown on the sketch plan - Exhibit P9. 11. The Defendant indicated that she wished to have a talk with the Complainant and the Complainant led her to her room. 12. Inside the Complainant's room the Defendant and the Complainant had about 15 minutes of conversation, mainly concerning the Complainant's relationship with the Defendant's husband. The Defendant raised such topics as her mother-in-law's proposal that the Complainant should come to live with them and touched upon such questions as whether the Defendant's husband gave money to the Complainant. Uninvited, the Defendant started searching the drawer in the Complainant's room, and in one of them she found a shirt belonging to her husband. She then encountered a drawer which was locked and insisted that the Complainant should open it for her, but the Complainant refused to cooperate. The reason the Defendant gave the Complainant for wanting to open that drawer was that she wanted to see whether her husband had left any money there. The Defendant then started going through the Complainant's purse looking for the drawer-key, whereupon the Complainant said that she would produce the key for her. 13. The Complainant got the key and started to open the drawer. As she did so the Defendant came up behind her and with the chopper (Exhibit P11) hit the Complainant on the left side of her head. The Defendant swung another blow at her with the chopper, but the Complainant dodged and yelled "Help". 14. On hearing a commotion, the Complainant's landlady (P.W.3), went to the door of the Complainant's room and asked what was going on. The Complainant then rushed out of the room, chased by the Defendant. P.W.3 asked the Defendant what was the matter, and the Defendant replied, "She has seduced my husband". 15. The Defendant then proceeded to attack the Complainant by poking at her with a sharp weapon which the Complainant was unable to identify. As the Defendant poked at her with that weapon the Complainant struggled with her but fell to the ground. 16. As the Complainant tried to rise, the Defendant threw hydrochloric acid at her from the bottle (Exhibit P14). The Defendant threw the acid at the Complainant's face, but none landed on the Complainant's face as she shielded it with her hands. The acid landed on the Complainant's hands and dress. 17. The next stage of the fight was that the Complainant ran into her room and locked the door. In the wall separating the Complainant's room from the main living room is a louvred ventilation window, as may be seen from the photograph Exhibit P3. The Defendant banged on the Complainant's door asking her to open up. The Complainant refused, so the Defendant came up to the ventilation window and told her that unless she opened the door the Defendant would break the window. As the Complainant still refused to open the door, the Defendant then proceeded to smash up the ventilation window with a chopper. 18. Because the Defendant was about to climb through the window, the Complainant opened her door and rushed out. She tried to get out of the flat through the main door, but before she could undo all the locks the Defendant caught up with her and dragged her away. The Defendant then started to wield the chopper again, so the Complainant struggled with her in an endeavour to avoid being chopped. 19. The Defendant then pushed the Complainant to the ground and placed the sharp edge of the chopper against the Complainant's chest, telling the Complainant to press it down on herself. Needless to say, the Complainant did not comply with this instruction, and instead turned around and lay with her face downwards. The Defendant then poked at the Complainant's head with the screwdriver (Exhibit P12). 20. The attack ceased when someone broke open the outside door and came in shouting "Don't move". 21. While the fight was going on P.W.3 caused the police to be called and they arrived, taking the Defendant to Shatin Police Station. There at 10.55 a.m. that day the Defendant was cautioned and made a voluntary statement (Exhibit P23) in which she said, "It was I who had chopped and wounded YUEN Wai-foon because she seduced my husband and frequently going around with each other. To-day I could not stand any longer, then I chopped and wounded YUEN Wai-foon with chopper". 22. As the result of the Defendant's attack upon her, the Complainant received the following injuries:
23. The backs of her wrists for a distance of about 5" up her arms are a mass of thick scarring as the result of the Defendant's attack upon her. 24. The Complainant was detained for 10 days in hospital, her wounds being sutured and also receiving an operation on the joint of her right little finger. Since release from hospital she has had to go back for an operation to join the tendons of her fingers and also to receive physiotherapy three times a week. Reasons for Findings of Primary Fact 25. Most of the facts set out above were either common ground or otherwise not disputed by the Defendant. She claimed in her evidence that after the incident in the Complainant's bedroom concerning the drawer-key she could not remember anything further with the result that the relevant facts which she actively disputed were confined to the details surrounding the first blow struck in the fight. 26. According to the Defendant, the Complainant struggled with her for possession of the purse which the Defendant believed contained the key to the drawer. According to the Defendant's version in evidence-in-chief (page 62 of the Court record) the Complainant pushed her a couple of times whereupon the Defendant suddenly grabbed something which she waved in her hand and that object hit against the Complainant's forehead, causing blood to come out. According to a slightly different version under cross-examination the Defendant claimed the Complainant forced herself against an object (page 76 of the Court record). After that the Defendant claimed to remember nothing more. 27. The Complainant's version of what happened at that time is as set out in my findings above under the heading "The Primary Facts". 28. The Complainant made a good impression on me as a witness, and after weighing all the evidence at the close of the case I found that beyond reasonable doubt she had generally told me the truth. Despite her terrible ordeal, her demeanour disclosed no vindictiveness towards the Defendant, and I got the impression that she was in no way exaggerating her evidence. However, she did give me the impression that she was trying to play down somewhat her relationship with the Defendant's husband, because out of modesty and shame she was reluctant publicly to announce details of her illicit love affair. For example, she could not bring herself to say straight out that she had had sexual relations with the Defendant's husband, as I am sure she had, and it was on that sort of intimate detail that she was slightly evasive, but, nonetheless, I was left in no doubt that she had told me the full truth about the events leading up to and during the fight on the morning of 6th May. 29. The Defendant made a very poor impression on me as a witness, and left me in no doubt that she had lied to me concerning the details of how the first chopper blow came to be struck. Her claim that she had taken along that arsenal of weapons merely to persuade the Complainant to give up her husband rang quite false to me. In view of her knowledge about the affair between her husband and the Complainant it is obvious that the Defendant detested the Complainant intensely, and went along to the Complainant's home consumed with jealous hatred for the Complainant. The amnesia which she claimed to suffer in connection with all details of the fight after the first blow struck me as utterly feigned. About an hour after the incident she obviously knew full well what had happened for otherwise she could never have made her confession (Exhibit P23) to the police, and I was totally unconvinced that she could not remember the full details of the attack when she gave her evidence. The fact that she could only remember so much of the attack as might be consistent with a defence of accident or self-defence was indicative of how she was lying. There was no way in the world that she could have sought to explain away the subsequent injuries she inflicted on the Complainant so she chose to pretend that she just did not know how they had been caused, but where she thought that she might be able to put up some sort of an explanation to suit her own ends she was prepared to concoct a version of events favourable to herself. 30. It was urged on the Defendant's behalf that the injuries which the Complainant received on her head were more consistent with the Defendant's version of the initial stage of the fight than the Complainant's, or at least raised a reasonable doubt on the Complainant's version. 31. It was pointed out on the Defendant's behalf that if, as the Complainant contended, she was bending down with her back to the Defendant, unlocking a drawer when the first chopper blow was struck on her head, it was as unlikely that it would have landed on the left side which is where the Complainant said it landed, for the more natural place for a right-hander (as the Defendant's solicitor presumably implied she was) to aim in those circumstances was the right side of Complainant's head. According to the Defence, this tends to show the Complainant is lying and supports what the Defendant says to the effect that the first blow the Complainant received was the one on the right side of her forehead as the Complainant and Defendant stood face to face. With respect, I find that argument unpersuasive as there is nothing at all unlikely in a right-handed person hitting a person from behind on the left side of the head, for a lot would depend on such factors as where the Defendant was standing, how good a shot the Defendant was, whether the Complainant moved her head, whether her head was tilted and a host of other possibilities of that nature. 32. In view of my findings of fact, it should be clear that I reject Defendant's evidence that it was the Complainant who started the fight, but as a matter of academic interest, in any event, even if the Complainant had acted as the Defendant said she did, it is difficult to see how that would have made any difference to the outcome of this case. Had the Complainant pushed the Defendant a couple of times during a struggle over the purse this could in no way have excused the subsequent savage attack with choppers, hydrochloric acid and other weapons which followed. Steps taken in self-defence have to be proportionate to the injury inflicted, and it is hard to imagine circumstances where pushing could justify retaliation with choppers and acid. Further on the possibility of accident as a defence the Defendant's version of what happened could in no way explain the subsequent course of the attack. 33. By not disputing the subsequent course of the fight the Defendant, nonetheless, could not thereby be taken to admit it, and my findings of fact relating to the subsequent course of the fight flow from my acceptance of the truthfulness of the Complainant's and P.W.3's version of the fight. The Defendant's Intention 34. Both of the first two charges require the Prosecution to prove that the Defendant had a specific intent, namely to cause the Complainant grievous bodily harm. Since the enactment of Section 65(A) of the Criminal Procedure Act Cap. 221 there can be no doubt that it was incumbent on the prosecution to prove that she subjectively had that specific intent. 35. In refusing to accept purported pleas of guilty on the first two charges subject to a reservation on the Defendant's part that subjectively she never intended to cause the Complainant grievous bodily harm, the Court took the initiative in pointing out to the Defendant's solicitor the nature of the intention which the Defendant would have to have had before she could be found guilty on these charges. 36. The cases later cited to the Court - 37. R. v. Steane 1947 1 A.E.R. 813; 38. TUNG Wan v. R. 1963 H.K.L.R. 887; 39. R. v. Riley 1967 C.L.R. 658; and 40. R. v. Wallett (1968) 2 A.E.R. 296 merely served to illustrate the principle already pointed out by the Court. Although those particular accused persons in those particular cases might each subjectively have lacked the requisite specific intent for the charges they faced, thus entitling them to acquittal, that was of no assistance to the Defendant in per particular instance because it was proved beyond reasonable doubt that she subjectively did intend to cause the Complainant grievous bodily harm at the time she wounded her. 41. How such a specific intent is proved is set out in paragraph (b) of Section 65A(1), and the sort of material from which the Court can draw inferences relating to intent is described in R. v. Wallett 1968 2 A.E.R. p.296 at 298F where the Court of Appeal indicated approval of giving, "consideration to, a number of matters such as conduct before, conduct afterwards, statements before, statements afterwards, demeanour in the witness box". See also Smith & Hogan's Criminal Law, 2nd Ed. p.52. 42. In the Defendant's case I have no doubt that she went along to the Complainant's home spoiling for a fight. Once she got there she deliberately worked herself up in to a rage by bringing up the topic of the Complainant's affair with the Defendant's husband. The Defendant then deliberately set about disabling the Complainant. A more deliberate venting of wrath than that displayed by the Defendant in the course of this attack is hard to imagine. That the Defendant did in fact intend to cause the Complainant serious bodily harm is borne out by the sustained nature of the attack and the way in which the injuries were inflicted. The Defendant kept on chasing her quarry, and whenever she caught her she deliberately set about disabling her. This was no wild, haphazard attack by the Defendant, but a systematic course of conduct personally intended by her to seriously injure the Complainant. The pattern of injuries on the back of the Complainant's wrist show how the Defendant deliberately set about trying to make the Complainant's hands useless. This concentration on the back of the Complainant's hands help to show that the Defendant knew full well what she was about. 43. During the course of the attack she was even able to explain to P.W.3 why she was behaving in this way, namely because the Complainant had seduced her husband, and the clear inference that emerges is that the Defendant deliberately carried out this attack so that the victim would never again be in a fit condition to carry on with the affair. 44. A short while after the attack she gave a completely rational explanation to the police regarding why she had done this, namely that the Complainant had seduced her husband and she could stand it no longer. A person able to give an explanation as sensible as that clearly knew what she had been doing and her explanation leaves little doubt that she had intended to injure the complainant seriously. 45. A circumstance which the Defendant sought to rely on as tending to show that she lacked the intent of causing the Complainant any serious harm was that when the Defendant had the Complainant down on the ground with the sharp edge of the chopper blade against the Complainant's chest, the Defendant did not then go ahead and push the blade into the Complainant's chest as she undoubtedly could have done, but instead merely invited the Complainant to press the chopper down on herself. Rather than assisting the Defendant on the charges she faces that evidence in my opinion helps to condemn her. If she were facing a charge of wounding with intent to murder it obviously would help her, but, of course, she does not face that charge. What that evidence shows is that the Defendant was sufficiently in control of herself to avoid doing things which would result in her killing the Complainant. It is clear that the Defendant knew exactly how far she wanted to go in attacking the Complainant and all she wanted to do was maim her, not murder her. This aspect of the chopper attack goes to show just how deliberate and calculated the Defendant's conduct was. 46. The whole picture that emerges of this particular woman is that of a jealous wife who decides deliberately to punish her husband's mistress by crippling her. One can to some extent sympathise with a woman in the Defendant's position who has obviously been pushed to far by her husband's conduct, so that in the end she gives way to her impulses to really harm the mistress, but a so-called irresistible impulses has never been a defence to this type of charge. 47. I also considered the possible defences of automatism and insanity. Not only was psychiatric evidence called on the Defendants behalf, but also in the course of cross-examining the Complainant on whether she grabbed back her purse and pushed the Defendant, the Defendant's solicitor made the suggestion (page 33 of the court's record), "From that moment on she turned into a mad woman". 48. It should be clear from what I have said so far under this heading that I was also fully satisfied that the Prosecution negatived any suggestion of automatism which was defined in Watmore v. Jenkins 1962 2 Q.B. 572 at page 586 as "involuntary movement of the body or limbs of a person". There was nothing involuntary about the movements of the Defendant's limbs. She sought out her enemy to fight her and then deliberately set about disabling her. 49. Moreover, whether particular primary facts could give rise to a defence of automatism is a question of law for the Judge. In Watmore v. Jenkins (supra) the Court of Appeal refused to entertain the possibility that the appellant might have driven a car for five miles without being conscious of what he was doing due to a hypogly-caemic episode related to his diebetes. The facts in that case did not support a conclusion that there had occurred, "....... such a complete destruction of voluntary control as could constitute in law automatism", per Winn J. at page 587. Likewise in the present case I very much doubt whether as a matter of law the primary facts would have admitted of a defence of automatism. The attack was so prolonged and included such a wide range of activities on the Defendant's part that it is almost inconceivable that it could have resulted from the involuntary movements of the body or limbs of the Defendant. In the words of Lord Morris in Bratty v. A.G. for Northern Ireland at page 417 :
Had I been sitting with a jury, I would not even have left automatism to the jury in this instance. 50. In any event in respect of conduct like the Defendant's, it is difficult to see how a defence of automatism could succeed outside of a finding of insanity. From the evidence of a psychiatrist (D.W.1), whom she consulted for the first time on the 23rd May, 1973, I was satisfied that she was suffering from a disease of the mind, namely, exogenous depression, which is a form of depression associated with the outside stresses and troubles of life. Generally though, according to D.W.1, person suffering from that condition would know what they were doing and would also be able to distinguish between right and wrong so that they would not fall within the definition of insanity contained in the McNaughton's Rules. However, he did go on to add that in exceptional cases this condition is accompanied by a feature known as "depersonalisation" which can result in the patient becoming confused and not knowing what he or she is doing when confronted with a traumatic situation. D.W.1 would not venture any opinion on whether the Defendant might have been actually affected by depersonalisation at the time of this attack, although he did mention it as a possibility. 51. However for precisely the same reasons which I have already given on why I consider the Defendant had the specific intent to cause grievous bodily harm, I also have no doubt that she was not affected by "depersonalisation" at the time she committed this offence. 52. As a matter of interest, if I had thought there was any reasonable possibility that she was suffering from depersonalisation at the time she carried out this attack, my verdict would have been a special one that she was not guilty by reason of insanity, because I would have considered such depersonalisation to be a defect of reason if it caused her to act in the way in which she did towards the Complainant. 53. If a person suffering from a disease of the mind were to carry out a savage attack on someone else without knowing what he or she was doing, the conclusion that such a person was suffering from a defect of reason would generally be almost inescapable. 54. The features required for a finding of insanity under the McNaughton Rules would then have been sufficiently established, namely a defect of reason arising from disease of the mind and lack of knowledge of the nature and quality of her act. 55. Having set out my understanding of the nature of automatism and the requirements of a finding of insanity under the McNaughton Rules, it might be as well if I further explain my observation to the effect that I do not think that a defence of automatism could succeed in a case like the present one unless there was also a finding of insanity. I arrive at that conclusion because I agree with the observations of Lord Denning in the case of Bratty v. Attorney General for Northern Ireland 1963 Appeal Cases page 387 at p.410 where he says:
56. Although it is of no more than academic interest in view of my finding that the Defendant intended to cause grievous bodily harm, I, nonetheless, feel that for the sake of completness I would like to add that if I had thought the Defendant was suffering from a defect of reason I would have regarded the burden of proof as being on the Prosecution in this particular case to negative the possibility that she was insane, rather than requiring the Defence to show on a balance of probability that she was insane. My reasons for this would have been those set out at page 122 of Smith & Hogan's Criminal Law 2nd Edition. Conclusions with regard to the First Charge 57. All the elements of the First Charge were established beyond reasonable doubt. That the terrible injuries inflicted on the Complainant were sufficient to amount to "wounding" could not be disputed. That it was the Defendant who inflicted them and that she personally intended to cause serious bodily harm in doing so was proved for the reasons set out above. Conclusion with regard to the Second and Third Charges 58. All of the elements of the 2nd and 3rd Charges were adequately proved except the one relating to "corrosive fluid". 59. Relying on the Government Chemist's Certificate (Exhibit P15) prepared by P.W.1 many weeks before coming to Court, the Defence purported to make an admission under Section 65(C) of the Criminal Procedure Ordinance to the effect that the hydrochloric acid the Defendant threw at the Complainant was a "corrosive fluid". 60. In the context of the Offences against the Person Ordinance my view is that "corrosive" means having the quality of eating away, consuming or destroying human tissue. I arrived at that meaning of corrosive from the definitions of the word "corrosive" appearing in the Shorter Oxford English Dictionary and Dorland's Illustrated Medical Dictionary 23rd Edition. 61. Merely because a substance is "corrosive" for some purpose such as for example eating away at the dirt on bathroom fittings does not necessarily mean that it will corrode human tissue. 62. When P.W.1 gave her evidence in Court she would go no further than say that hydrochloric acid of the strength used by the Defendant would cause a stinging or burning sensation if it got into an open wound and would cause grave injury to the eye if it got in there. However, she would not say what the nature of the injury to the eye would be. 63. She went on to add that the acid would not burn holes in clothes such as the Complainant wore. Moreover there was the fact that the Defendant was in no way "corroded" by the acid thrown at her. If I had had some evidence before me that hydrochloric acid of that strength could burn the skin or damage the tissue of the eye I would have found the ingredient of "corrosive fluid" present for the purpose of the Second and Third Charges, but on the evidence before me I felt I was not justified in finding that ingredient proved. 64. Even if the parties consider an ingredient has been proved, I do not think that the Court is bound by what the parties have agreed. The Court must be satisfied that the state of affairs prohibited by the law has in fact occurred, and if the Court entertains a doubt in that regard it still has to acquit. 65. As I had such a doubt I acquitted the Defendant on both the Second and Third Charges. 66. Despite the acquittal on the Second and Third Charges, the throwing of hydrochloric acid by the Defendant at the Complainant remains one of the surrounding circumstances to be taken into account when considering the appropriate sentence to be passed on the Defendant for the First Charge. Even if it is not a corrosive fluid, it is undoubtedly a harmful one and I accept P.W.1's evidence that it can cause grave injury to a person's eyes. I have no doubt that the Defendant knew that hydrochloric acid is harmful and for that reason she took it along with her and deliberately threw it at the Complainant's face.
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