The Queen v. Wong Hon-cheong

CACC000315/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Yang, J.A. & Penlington J.

Date of Hearing: 19th November 1986

Date of Judgment: 19th November 1986

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JUDGMENT

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Li, V.-P.:

1. The applicant was convicted of throwing corrosive acid with intent to cause grievous bodily harm.

2. The particulars of offence alleged that on 26th January this year he unlawfully and maliciously threw corrosive acid upon Lo Yee-ki with intent to cause her grievous bodily harm inside the premises where she had her stall.

3. The evidence for the prosecution was that some time before 9 o'clock in a morning the applicant went to the stall of the victim and splashed some yellowish liquid on her face, causing her pain. There was a struggle. The victim cried out for help. He splashed more acid on her face giving her a burning sensation in her mouth. The applicant tried to run away, but the victim grabbed him. There was a struggle.

4. Holders of other stalls in the premises and the victim's husband came to her assistance. The struggle continued on to the pavement outside the premises. The applicant fell down. Police were called. The applicant was then arrested.

5. In the meanwhile, the victim went to wash her face. Later she was taken to hospital. The medical evidence was not cogent. The doctor who treated her had no experience whatsoever with acid burns. All he had was the information given by the victim that she had acid poured over her.

6. The applicant's evidence was that he was asked by his wife, who had a stall in Electric Road, to go to another of her stalls in Mercury Street to fetch a basket of vegetables. Prior to that the applicant had been to a shop to buy some cigarettes and a bottle of liquid which he knew as lavatory water. He brought that bottle of liquid with him when he went to fetch the basket of vegetables. On his way he bumped into the victim on the pavement of Mercury Street. An argument started. A struggle ensued. The victim's husband joined in. He was pushed to the ground. By accident the bottle top fell out. He got up. There was a further struggle, in the course of which some acid spilled on the victim's jacket. He was pushed to the ground. As a result the applicant was burned by the acid which was spilled, onto the pavement. The applicant was burned and had a scar on his back resulting he said from contact between his clothes and his back while in a police cell.

7. In the course of cross-examination the applicant said when he bought the "lavatory water" he did not know whether it was dangerous or not. He was further asked why he did not leave that bottle in the wife's stall in Electric Road before he went to fetch the basket of vegetables. His answer was clearly unsatisfactory when he said that he did not really know whether the lavatory water was harmful or not.

8. In his Reasons for Verdict the judge gave a detailed analysis of both prosecution evidence as well as defence evidence.

9. He said : at p.15

"Not only did I reject the defendant's version. In my opinion his lies in court tended to support his guilt. Having carefully considered his evidence I Came to the conclusion that he deliberately lied in an attempt to conceal the truth." (the underlining is mine)

The defendant's version was that after he met his wife on that morning he went to buy some cigarettes. The judge continued:

D.W.2's evidence (whose is the applicant's wife) was that when she saw her husband at the stall in Electric Road the defendant told her that he was going to buy some cigarettes and lavatory water Whereas the defendant's version was that only after, he bought the cigarettes it occurred to him to buy the lavatory water, the wife's evidence suggested that the defendant had already planned to buy the lavatory water before he set off from the stall.

The judge went on to say:

The intriguing question was why, having bought the lavatory water, the defendant did not immediately return to his home on the 4th floor of the same building but deliberately returned to the stall in Electric Road.

He came to the conclusion that the defendant lied.

10. Had the judge said that the applicant's lies had destroyed his credit and that he could rely only on the prosecution evidence, the applicant's conviction could well be upheld.

11. In the case of The Queen v Ho Kam-sum and others ⁽¹⁾ this Court, having examined the case of R v Lucas ⁽²⁾ , said:

"We do not think Lucas ⁽²⁾ to have intended to change that which we believe to be the basic principle that lies by themselves do not prove guilt but that they go no further than confirming or tending to support other evidence. We are not here concerned with the issue of corroboration as either desirable or as a matter of law. In these circumstances a trial judge must be very careful to avoid giving the impression to the jury that lies by themselves may amount to proof of guilt."

This Court went on to say:

Here it would have been advisable for the Judge to have said no more than that lies, if they existed, might discredit the contents of statements made in his own favour by the 3rd defendant - which statements lay for their consideration - and tend to support evidence going to the guilt of the 2nd defendant.

12. It is quite clear that lies themselves may only discredit the defence evidence. They can never prove or support guilt itself. When the trial judge said the applicant's lies in Court tended to support his guilt. He adopted a wrong process of reasoning. The logical conclusion from such reasoning might well be that a conviction can be founded on lies told by the defendant. Such error is sufficient for us to grant the application.

13. Mr. Bernacchi for the applicant also relied on other grounds of appeal. One of them was that the prosecution evidence was so unreliable and so weak that this Court should have allowed the appeal in any event.

14. Although it is not necessary to consider it we do find that the prosecution evidence was weak in that there was no cogent medical evidence. In fact the medical evidence seemed to contradict the version that was given by the victim herself.

15. For these reasons we grant leave to appeal against conviction. We treat the application as the appeal proper. The appeal is allowed. The conviction is quashed and the sentence set aside.

(1)    Crim. App. 695 of 1983

(2)    (1981) 1 Q.B. 720

Representation:

Mr. Bernacchi, Q.C. & Mrs. Austin (K.C. Yung & Co.) for Appellant

Mr. Bradley (Crown Prosecutor) for Respondent