HKSAR v. Liu Shiqiong

CACC 25/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 25 OF 2004

(On Appeal From District Court Criminal Case No. 940 of 2003)

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BETWEEN

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Before : Hon Stuart-Moore VP, Hon Cheung JA and Hon McMahon J in court

Date of Hearing: 2 November 2004

Date of Judgment: 2 November 2004

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

Renewed application for leave to appeal against conviction

1.The applicant was convicted after trial by Deputy District Judge Dufton of the offence of wounding with intent and was sentenced to three years’ imprisonment.  She had previously applied for leave to appeal against conviction and sentence which was refused by a single judge of the Court of Appeal.  She now renews her application for leave to appeal against conviction only.

Facts

2.The applicant is aged 30.  The victim she had wounded is a man called Mr. Leung.  The applicant was previously living in Shenzhen in the Mainland.  In 1997, Mr. Leung who was living in Hong Kong, met the applicant in Shenzhen and had a sexual relationship with her.  Three years later the applicant telephoned Mr. Leung in Hong Kong and claimed that she had given birth to a son and Mr. Leung was the father.  She demanded Mr. Leung to support the child.

3.Proceedings were instituted by the applicant against Mr. Leung in Shenzhen for the maintenance of the child.  Mr. Leung took a DNA test in Shenzhen and the result showed that he was not the father of the child.  The court in Shenzhen also ruled that Mr. Leung was not the father.  Among the documents produced by the applicant at the earlier leave application was a judgment of the Intermediate People’s Court of Shenzhen City which confirmed thesematters.

4.In August 2003, the applicant came to the shop of Mr. Leung in Hong Kong on a number of occasions.  On 9 August 2003, which was the day of the offence, the applicant came to the shop again and asked Mr. Leung for money.  Mr. Leung was angry that the applicant had returned.  He pushed the applicant out of his shop.  While he was doing this, the applicant used her body to push him against the wall.  Mr. Leung then noticed his abdomen was bleeding.  He sat down and the applicant ran away from the shop.  She was stopped by an employee of Mr. Leung.

5.Mr. Leung said that when the applicant came to the shop he noticed the applicant was holding a towel wrapped in her right hand, concealing something.  Agreed medical evidence showed that he had a stab wound on the lower abdomen.

6.The police came to the scene and conducted the investigation.  A pair of scissors was found.  The applicant told the police the following story : she came to the shop to discuss with Mr. Leung the question of maintenance for her son; dispute then arose and she pushed Mr. Leung against the wall and pulled his shirt in the region of the abdomen; Mr. Leung then took a pair of scissors belonging to the shop and tried to stab her; she then snatched the scissors and threw it to the ground.  When she was formally arrested and cautioned, she repeated that she did not use the scissors and Mr. Leung wanted to use the scissors to hurt her so she snatched the scissors and threw it to the ground.

7.The applicant did not give evidence or called any witness at the trial.  The defence that was put forward was that Mr. Leung had picked up the scissors himself and that in the struggle he accidentally hurt himself.  Mr. Leung denied this.  The judge found that the applicant stabbed Mr. Leung with the scissors which did not belong to the shop of Mr. Leung.

The applicant’s submissions

8.The applicant has prepared a number of written submissions in which she maintained her innocence; she referred to the relationship between herself and Mr. Leung; the claim for maintenance she had pursued against Mr. Leung in the Mainland and how the events on 9 August 2003 occurred.  She commented on the evidence at the trial such as the witnesses did not see her holding the scissors; there was a lack of bloodstain on the scissors, she was not holding a towel in her hands; during the struggle she did not notice that Mr. Leung was injured and when Mr. Leung was injured, he refused to let her see the injuries.  She also referred to the evidence of an earlier case in which she was convicted on 20 July 2002 of the offence of assault occasioning actual bodily harm.  She was sentenced to 45 days imprisonment.  Mr. Leung was the victim of that assault.  The applicant repeated some of these matters in Court today.

9.None of these matters really provides any substantive grounds of appeal.  There are only two matters that called for a discussion.   First, she claimed that she did not give any statement to the police and second, it was her lawyer who advised her to admit that she had thrown the scissors to the ground.

10.Regarding the first point, the applicant was legally represented at the trial.  The judge had stated in the Verdict that there was no objection being taken to the admissibility of the oral statements made by the applicant to the police.  While there may not be any formal interview conducted by the police with the applicant, the oral statements made by her at the scene (which was not objected to by her lawyer at the trial) could be relied upon by the judge in his finding against her.

11.As to the second point, it was the applicant herself who disclosed to the police that she had thrown the scissors to the ground when Mr. Leung tried to stab her with it.  This is the basis of her defence to the charge and this defence was disclosed at the scene.  Her claim that her lawyer advised her to admit that she threw the scissors to the ground just does not make any sense.  This allegation was only revealed recently on 18 September 2004 and was not disclosed in the earlier hearings.  We do not regard this to be a credible allegation which would call for a response from her lawyers.

12.In fact according to the notes prepared by the judge’s clerk of the trial, after the applicant’s lawyer informed the court that the applicant would not give evidence, the judge himself confirmed with the applicant that she would not give evidence.

13.In our view the judge was clearly justified to make the finding against the applicant based on the evidence adduced at the trial.  He was entitled to reject the applicant’s claim that it was Mr. Leung who used the scissors and hurt himself accidentally during the struggle.

Conclusion

14.The application has no merits and is accordingly dismissed.

Ms Anthea Pang, SGC of Department of Justice for the Respondent

Applicant, in person, present