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 DCCC 940 of 2003)

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BETWEEN

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Before: Hon Stuart-Moore VP and Tang JA

Date of Hearing: 16 March 2005

Date of Judgment: 16 March 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 12 January 2004, the applicant was convicted of wounding with intent, following a trial in the District Court before Deputy Judge Dufton.  She applied for leave to appeal against conviction and sentence before the single judge but this was refused on 25 June 2004.  The applicant then renewed her conviction application before the full court on 28 June 2004 and this was dismissed on 2 November 2004.  After this, on 9 November 2004, the applicant renewed her application in regard to sentence, which by then was considerably out of time, and it is this application which is now before us.

2.The facts of this matter were a little out of the ordinary.  These were summarised by Cheung JA in his judgment delivered on 2 November 2004.  For convenience, we can recite them again now.  Cheung JA said:

“	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 these matters.
	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.”

3.It is clear that from the outset of proceedings against her, the applicant has shown no remorse whatever and, in this regard, it appears as if she may have become somewhat obsessive about the victim.  In her grounds of appeal the applicant has maintained her innocence and referred to the comparatively limited extent of the injury which, by sheer good fortune, happened to be suffered by the victim.  There was, however, an aggravating factor in the case as this was not the first time the applicant had attacked the victim.  The judge referred to both this and the nature of the injury to the victim when passing sentence, saying:

“	3.	In passing sentence I take into account the circumstances in which the wounding occurred and the background to the case. The defendant had met PW1 in Shenzhen in 1997 when she was working as a beautician. She provided shampoo and massage service and then sexual intercourse. Despite DNA tests and a court ruling that PW1 was not the father the defendant persisted in her claims he was and demanded maintenance.
	4.	Regrettably this is not the first time the defendant has been before the court for inflicting violence on PW1. In July 2002 the defendant was sentenced to 45 days’ imprisonment for assaulting PW1. The defendant therefore cannot be given credit for a clear record.
	5.	Mr Ling (defence counsel) points to the injuries and submits that they are not serious. That is fortunate. As the depth of the wound was unknown, (an) emergency operation was performed to find out the extent of the injury. There was no significant finding apart from a small haematoma at the surface of the small bowel. Resection was not deemed necessary. I note also that PW1 made an uneventful recovery after the operation and was discharged from hospital after 4 days.
	6.	Taking into account the circumstances and background of the offence; that this was a single stab wound with a pair of scissors; and the personal circumstances of the defendant as put forward by Mr Ling, I am satisfied the proper sentence in this case is 3 years’ imprisonment.”

4.We are satisfied that the sentence was not manifestly excessive.  On the contrary, it was entirely appropriate.

5.This application is, therefore, dismissed.

Mr David Leung, SGC, of the Department of Justice, for the Respondent.

Applicant acting in person.