The Queen v. Lo Siu Wing and Another

CACC000509/1989

BETWEEN

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Macdougall, J.A.

Date of Hearing: 5 June 1990

Date of Judgment: 27 June 1990

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JUDGMENT

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Hon. Yang, C.J.:

1. Lo Sui-wing (D2) was convicted after trial of conspiracy to cause grievous bodily harm with intent.

2. Wan Po-wo (D5) was acquitted of the same charge of conspiracy but convicted after trial of throwing corrosive fluid with intent to do grievous bodily harm.

3. They now apply for leave to appeal against their respective conviction.

4. The case for the prosecution was that between the 10th and the 17th of January, 1989, D2 and D5 together with three other co-accused, viz. D1, 3 and 4, conspired together and with one Ma So-chaw to cause the victim Wong Fu-keung grievous bodily harm with intent. It was also the prosecution's case that on the 17th January last year D3, 4 and 5 at the Rise Optical Shop in Tsimshatsui, Kowloon, threw hydrochloric acid upon the victim Wong with intent to do him grievous bodily harm.

5. The evidence against D2 came from two of his cautioned statements: Exs. P3 and P4, in which he admitted that he had first agreed with his co-accused to chop the victim, which agreement was later altered to throwing acid on the victim.

6. Mr. Tse, counsel for D2, contends that the cautioned statements should not have been admitted into evidence by the trial judge because (i) they had been obtained by a promise made by a police inspector that he would pass on to the Legal Department D2's wish to be prosecution withess if granted immunity, and (ii) there are certain discrepancies between the evidence of those police officers present in the room at the police station where Ex. P3 was taken.

7. There is clear evidence that the police officer who took the cautioned statements, D. Sgt. 16423, told D2 that he had no right to give any guarantee that D2 might become a prosecution withess as it was a matter for the Crown Prosecutor to decide. The inspector's evidence was simply that he promised D2's proposal would be put to the Legal Department. There is nothing in the evidence to indicate that D2's statements were prompted by any promise made by either the inspector or D. Sgt. 16423.

8. On the issue of the alleged discrepancies, I do not think there was any discrepancy which warrants complaint.

9. D2's application therefore fails.

10. On behalf of D5, Mr. Mullick submits that the prosecution must establish a specific guilty intent on the part of D5, namely, the intent to do grievous bodily harm to the victim by throwing corrosive fluid. The evidence, he says, does not show any knowledge on the part of D5 that the victim was to be attacked by corrosive fluid. There being a lack of knowledge, the required intent was absent.

11. The evidence against D5 consists of:

12. There is therefore no doubt that D5 was one of the three men who entered the Rise Optical Shop, nor can there be any doubt that the victim's face was splashed with a corrosive fluid.

13. There was no submission of no case to answer made-on behalf of D5, nor did he give evidence.

14. On D5's cautioned statement, he was told by the other co-accused (D3) to go into the Rise Optical Shop 'to look at the spectacles only and ignore whatever would happen". The trial judge was quite entitled, in my opinion, to draw the conclusion, on the basis of the cautioned statement, that D5 was at the shop "up to no particular good" but thought it was in the nature of debt collecting.

15. The judge found, on the cautioned statement and PW3's evidence, that D5 had travelled to the Rise Optical shop with D3 and D4 and had been in their company for a considerable time. He had no difficulty in inferring that D5 must have been well aware of the true nature and purpose of the visit to the shop. He concluded that D3 and D5 were clearly part of a diversionary tactic to engage the employee of the shop whilst D4 threw the actual liquid, and all three were acting in concert.

16. The true issue is this: did D5 know that corrosive fluid was to be used? If so, then, on the evidence before the judge, it could be safely inferred that D5 shared the specific guilty intent with D4.

17. In my judgment all the evidence pointed to D5's knowledge, and intention, that he and his two companions were on a debt collecting exercise and "up to no particular good". There was however nothing to indicate that D5 on his part had the specific intent to do grievous bodily harm, still less to do such harm by throwing a corrosive fluid. He knew, shortly before he entered the optical shop, that D4 had a bucket with him, and the inference could properly be drawn that whatever was inside the bucket was to be used against some person or persons inside the shop. But the evidence stops short here. Inside the bucket could be any variety of substance, solid or fluid, which could be used to inflict bodily harm, to alarm or frighten, to do damage to property, or to generally humiliate and insult, such as the throwing of urine or excrement or paint, as is sometimes done.

18. On the evidence as a whole, I am not satisfied that the requisite specific intent has been established. The conviction therefore cannot stand.

19. In the circumstances, it is not necessary to deal with the other ground of D5's appeal, namely, that his conviction on the charge of throwing corrosive fluid is inconsistent with his acguittal on the conspiracy charge. There is, in reality, no inconsistency. It is obvious that the trial judge was concentrating on the period of conspiracy prior to the attack. In the last paragraph of his Reasons for Verdict, he said this:

"The evidence that A5 was part of the pre-existing conspiracy is slender. His statement simply says that the day before the attack he was taken by the others for a stroll and had a special impression of the shop."

20. He was therefore not dealing with the time immediately prior to the attack, when it was still possible for D5 to share an intent with D4 if he had known what it was that D4 was about to do.

21. For the reasons stated, I would allow D5's application, treat the application as hearing of the appeal and allow the appeal against conviction.

Silke, V.-P.,

22. In respect of the application by D5 I am in respectful disagreement with the conclusion of my Lord the Chief Justice.

23. Five defendants appeared for trial before His Honour Judge Wilson in the District Court on a charge sheet containing two charges. The first charge, conspiracy to cause grievous bodily harm with intent contrary to Common Law and to s.17 of the Offences Against the Person Ordinance Cap. 212 - the Ordinance - concerned all five. The second charge, throwing corrosive fluid with intent contrary to s.29(c) of the Ordinance, concerned D3 LO Kong-ching, D4 HUI Siu-cheong, and D5 WAN Po-wo. We are how concerned only with D2 LO Sui-wing and D5 WAN Po-wo. D2 was convicted after trial on the conspiracy charge and sentenced to five years imprisonment. D5 was acquitted of the conspiracy but convicted on the 2nd charge and was sentenced to a period of four years' imprisonment. Both initially sought leave to appeal against both their convictions and their sentences but, with the leave of the court, they withdrew the applications in respect of sentence which now stand dismissed.

24. The period of the conspiracy charge was between the 10th and 17th of January 1989 and its object was to cause grievous bodily harm to WONG Fu-keung with intent to do him "some" grievous bodily harm. The substantive charge alleged that on the 17th of January 1989, at the Rise Optical Shop in the Empire Centre, Tsimshatsui a corrosive fluid, namely hydrochloric acid, was thrown at WONG Fu-keung with intent to do him grievous bodily harm.

25. Wong was the brother of the 1st defendant at trial Madam Wong Pik-ha - "D1". They had business differences. Civil proceedings between them were issued and were compromised. The result was that D1 left a parthership in which they were engaged and Mr. Wong continued alone. Clearly there was bitterness between them.

26. On the 17th of January Mr. Wong was in the shop. Two men entered and engaged the attention of the only other staff member present by evincing an interest in spectacles. A third man then entered with a bucket and hurled the corrosive substance at the face of the victim. The three men then ran away.

27. It was the case for the Crown that D1 and the applicant D2, her boyfriend, brought together three strangers for the purpose of executing this attack. They paid for the attack and it was one whose purpose was revenge. It was further the case for the Crown that D5 was one of-the three men who participated in the attack on the 17th of January.

28. The evidence in respect of Lo - D2 - was contained in his cautioned statement wherein he admitted that the first agreement between himself and his girlfriend and the strangers was to chop the victim. This was later changed to throwing acid upon him.

29. The evidence against D5 was first his identification by Mr. Wong as one of the two men who had come into the shop immediately before the bucket carrier. The employee thought that on the previous day he had seen all three men outside the shop displaying an interest in it. A completely independent withess, the proprietor of a shop across the arcade from the Rise Optical, had on the 17th of January noticed three men hanging around the spectacles shop. One of them was noticeably taller than the others. One held a bucket. She had merely noticed them without paying them particular attention until she heard a scream coming from the optical shop. She then looked up and saw those three men running away.

30. The judge accepted that the identification evidence was very much of the fleeting glimpse type and was weak. But there was no dispute that D5 was at the scene. In his cautioned statement he had given an explanation for his presence.

31. Mr. Anthony Tse instructed by the Director of Legal Aid who appeared for D2 attacks the admission of his cautioned statement on the basis that an inducement had been offered, hamely a promise by a Police Inspector that he would pass to the Attorney General's Chambers D2's wish to be a prosecution withess if granted immunity. It was on the basis on this promise, and this only, that he made the cautioned statement. Second, that there were discrepancies in the evidence of police officers who were present when that statement was taken.

32. It is correct that the wish of D2 to become a prosecution withess was to be drawn to the attention of the Attorney General. But it was made specifically clear, both in the body of the cautioned statement itself and in the evidence of the prosecution withesses that, and I quote from the translation of that statement Exh. P13A:

"I must explain to you thoroughly that I have no right to guarantee that you may change to a prosecution withess. Therefore I cannot give you a guarantee. The said matter will be decided by the Commissioner for Prosecution. In any case if you are willing to give a statement I shall take down in writing and submit your proposal to the authority concerned. However I need to warn you that if your proposal is not accepted, your statement may be taken as evidence to prosecute you."

D2 was then reminded of the caution and proceeded to give the inculpatory statement. As to the alleged discrepancies they, on a perusal of the transcript of which we have the benefit, were more apparent than real. I do not consider that either of the grounds advanced by Mr. Tse has been made out. For those reasons I had no hesitation in agreeing that D2's application for leave to appeal against conviction be dismissed as the court indicated in the course of the hearing.

33. As to D5 the arguments needed further consideration. It is the contention of Mr. Mullick, who appeared for D5 both at trial and in this court, that the trial judge was wrong to hold that the only possible inference to be drawn from the facts was that the applicant knew at the material time that one of his co-defendants had in his possession a bucket containing corrosive fluid which was to be thrown at the victim of the assault. In effect, and this had been elaborated upon in a useful skeleton argument, that the Crown had failed to prove knowledge and consequently the specific intent required by virtue of ignorance of the methods to be used and the object of the attack.

34. In his cautioned statement, which was admitted by the trial judge after a trial within a trial, D5 accepted that he was at the scene on the 17th of January but denies knowing what was to take place. He was the last to be arrested and, on the 26th of January, on his return to the police station with the arresting party, a post recording of what he said at the time of his arrest and the reason for that arrest - throwing corrosive fluid at Mr. Wong - was made. What he had said immediately upon arrest was:

"Ah Sir, I was also 'LO TIM' by somebody. I didn't know it would be like that beforehand."

When this had been recorded he was asked if he wanted to make any additions but he made none. He was asked questions to clarify what he meant by that which he had said. He was reminded again of the caution. He explained that when he said what he did he was referring to the occasion in which persons he named as "An Ching Chai" and "To Niu" threw the corrosive fluid in Tsimshatsui East. He said he knew nothing about it beforehand and that Ching Chai had telephoned him early in the morning asking him to go to Maxim's Restaurant at the Empire Centre in Tsimshatsui to wait for him because there was something urgent. He repeated his denial of any knowledge they were going to throw corrosive fluid at someone. He had only known Ching Chai - who, it was subsequently indicated, was D3 at trial - for about four days. "To Niu" he identified as being D4 at trial. Him he had known for about three years. D5 went on to explain what had taken place at the meeting at Maxim's Restaurant. He said that Ching Chai told him that he had to go to an optical shop to look for someone to buy spectacles. The three of them then went towards the optical shop stopping some shops short of it. He asked Ching Chai why they stopped there. Ching Chai then told him that someone in the shop owed him money and reiused to pay. Ching Chai said the sum owed was $2,000 and he asked D5 to go with him into the shop to collect money and choose spectacles. He said he was at first reluctant to enter the shop. Later Ching Chai asked him to stand in the doorway and look at spectacles, and later still to go into the shop to look at the spectacles. He was told to look at spectacles only and to igncre whatever would happen. He did this. While looking at the spectacles he saw D4 walk in holding a blue plastic bucket. D4, after a direction given by D3, to "throw at him quickly", threw the liquid inside the bucket at the face of the person D5 described as "staff member". Then D3 told D5 to run away quickly and all three rushed out.

35. On the day before the incident D5 said that he met D3 and D4 by arrangement. They went for a stroll and inspected the optical shop. The contents of the statement lay for the consideration of the trial judge. But he also had evidence, in particular that from the lady proprietor of the other shop, which contrasted with its contents. She had, as I have indicated, seen the three men hovering around outside the spectacle shop at a time when one of them was holding a bucket. Mr. Wong had identified D5 as one of the persons who had come into the shop and who had looked at spectacles before the acid was thrown.

36. To the lady's evidence the trial judge attached considerable weight. It, together with the rest of the evidence, permitted him in his view to draw the inference that he did that the applicant knew that which was taking place in the fullest sense of the word and he found no difficulty in the drawing of that inference.

37. It is of significance that while D5 gave evidence in the course of the trial within a trial he gave no evidence on the general issue. In such circumstances trial courts may more readily draw adverse inferences. More readily, that is, then if there is direct evidence to contradict the case for the prosecution. Further the weight to be placed on an out of court statement, not supported by evidence from its maker and not, of necessity, cross-examined upon, is bound to be less than if it were.

38. Be that as it may I do not consider that the prosecution case was of such a nature as to prevent the trial judge, bearing in mind that the burden of proof is upon the Crown beyond a reasonable doubt, from drawing the inference which he did.

39. Mr. Mullick suggests that the evidence went no further than to show that the applicant was "up to no good". It was not sufficient to show that the applicant had acquired the necessary knowledge and with that knowledge had agreed to participate in the offence. He adds to this contention by drawing our attention to the acquittal of D5 on the conspiracy charge. He does not say that the verdicts were perverse but he does suggest that it weakens the judge's finding that the specific intent necessary to prove the substantive charge had been proved.

40. In acquitting D5 of the conspiracy charge the trial judge held that the evidence of his participation in the prior agreement was slender. He had simply been taken to the shop on the previous day but there was nothing in the evidence to show that at that he was told then what was intended. The trial judge contrasted that with D5's actions on the 17th and the surrounding evidence. He clearly thought that the participation on the 17th in the actual offence was of itself insufficient to make him a full participating member of a pre-existing conspiracy. I do not consider that the acquittal affects the manner in which the trial judge dealt with the substantive charge.

41. The essence of Mr. Mullick's complaint is that the trial judge failed to direct himself sufficiently on the issue of specific intent.

42. As Mr. Saw has submitted to us, it was irrelevant in respect of D5 whether the attack was for revenge or was a debt collecting exercise. It was the actions carried out in the course of the attack that mattered. On the evidence D5 must have known that something sinister was going on and, if the lady proprietor were to be believed, he knew that a bucket was being carried prior to going into the shop and by one of the persons in whose company he had been for some time and who was a participant in the exercise that was being carried out. He must have been aware that something was to happen and the fact that corrosive fluid was thrown at Mr. Wong, and in his presence, left it fully open to the trial judge to infer that he had the specific intent necessary for a guilty mind.

43. For those reasons I would dismiss the application for leave to appeal against conviction.

Macdougall, J.A.:

44. I find myself in respectful disagreement with my Lord the Chief Justice with regard to the application of the 2nd applicant.

45. Where an inference of guilt may properly be drawn from a set of facts, a jury or a judge sitting without a jury, is entitled, in the absence of a credible explanation leading to a different conclusion, to convict the accused on the basis of that inference.

46. If it were the law that a man may not be found guilty whenever it is possible to place an innocent explanation on his actions by assuming the existence of a state of mind or an explanation that is incompatible with guilt, then the law would be rendered powerless in a great many cases.

47. On such a view of the law a man who shoots another through the head in the absence of withesses could never be convicted of homicide for the simple reason that there is always a possibility that he acted in self defence or that the shooting was an accident caused by no criminal negligence on his part. This would be so whether he actually gives an explanation to the police that is consistent with innocence of any crime or whether he exercises his right to remain silent. Indeed, it would not even be feasible to prosecute him, for there would be insufficient evidence on those facts to obtain a conviction.

48. If there is any need for authority to dispose of such a contention it can be found in the words of Lord Devlin in Reg. v. Sharmpal Singh [1962] A.C. 188 at 198:

"This is the sort of case in which a not incredible explanation given by the accused in the withess box might have created a reasonable doubt. But there is no explanation; and the prisoner's silence is emphasised by his consequent conduct. How did he come to squeeze his wife's throat? When the prisoner, who is given the right to answer this question, chooses not to do so, the court must not be deterred by the imcompleteness of the tale from drawing the inferences that properly flow from the evidence it has got nor dissuaded from reaching a firm conclusion by speculation upon what the accused might have said if he had testified. On the evidence they have their Lordships are left with no reasonable doubt that this was a case of manslaughter."

49. A judge is not required to leave to the jury the issue of self-defence or accident or any other issue unless there is some evidential basis giving rise to it. Speculation is not evidence.

50. In the present case there was clear and unchallenged evidence that the applicant and two companions, surnamed Lo and Hui, were seen lingering together outside the victim's optical shop and that Hui was holding a blue bucket. The 2nd applicant and Lo then entered the shop and after looking at some spectacles for about 15 seconds said, in apparent reference to the victim, "There he is" and walked out of the shop. After about 30 seconds they returned and engaged the attention of the victim's assistant. A few seconds later their companion, Hui, entered with the bucket and threw its contents, which were later found to be a concentration of 33% by weight of hydrochloric acid, in the victim's face. All three men then ran out of the shop. Had it not been for prompt action taken by tenants of adjoining shop premises in sluicing water over the victim's face he would have suffered serious injury.

51. On the basis of this evidence the judge was entirely justified in concluding that the applicant was party to a joint enterprise to do grievous bodily harm to the victim by throwing the acid in his face.

52. The fact that the 2nd applicant was not the actual thrower of the acid does not justify the conclusion that the judge was wrong to convict him because there was a possibility, unsupported by any evidence accepted by him, that the applicant did not know the bucket contained acid.

53. It seems to me that if the line of reasoning that demands the acquittal of the 2nd applicant is pursued to its logical conclusion it would follow that because it is possible that the acid thrower himself might have been given the bucket by the instigator of the plot and told that it contained urine or some other relatively innocuous liquid, the judge was wrong in convicting him.

54. In his cautioned statement to the police the 2nd applicant asserted that after he, Lo and Hui had had breakfast together at a restaurant they were walking towards the optical shop where he was told Lo intended to buy a pair of spectacles. Shortly before reaching the shop they stopped and chatted. During the course of their chat Hui left them and disappeared from view. Lo then told the 2nd applicant that someone in the optical shop owed him money and had refused to pay. He asked the 2nd applicant to enter the shop with him to collect the money and to look at spectacles. The 2nd applicant indicated that he was unwilling to do this. Lo then told him "to accompany him to go into the optical shop to look at the spectacles only and ignore whatever would happen". The 2nd applicant agreed to do so. At this stage he was unaware of Hui's whereabouts, but after he had entered the shop and had begun to look at spectacles he saw Hui come in holding a blue plastic bucket in his left hand, go to a corner of the shop and stand with the bucket beside him. Lo then said "Throw it at him quickly" whereupon Hui threw the contents of the bucket in the victims's face. Immediately after this had been done Lo told the 2nd applicant to run, and all three of them fled from the shop.

55. This was an unlikely story that the judge was fully justified in rejecting. Moreover, since the 2nd applicant did not give evidence the judge was entitled to place no weight on the exculpatory part of a statement the truth of which had not been exposed to the scrutiny of cross-examination.

56. I am unable to find any justification for concluding that the 2nd applicant should have been acquitted on the basis that although he knew the contents of the bucket were to be thrown over somebody in the shop he might have thought that it contained urine, excrement, paint or something other than a corrosive acid. Moreover, such an analysis runs counter to the version he gave in his statement that he was unaware of the existence of the bucket, let alone any contents, until he saw Hui enter the shop with it.

57. The record discloses that, Mr. Mullick, who appeared on behalf of the 2nd applicant both in this court and the court below, made no submission to the judge that the 2nd applicant had no case to answer. If, as he now contends, there was no evidence on which the judge, having correctly directed himself on the law, could properly convict the 2nd applicant, it is surprising that he failed to make such a submission.

58. I would refuse the 2nd applicant's leave to appeal against conviction and, for the reasons given by my brethren, would also refuse the application of the 1st applicant.

Representation:

Mr. Anthony Tse (M/S S.C. Chan & Co.) for D2

Mr. John Mullick (DLA) for D5

Mr. D.G. Saw for Crown/Respondent