HKSAR v. Chi Chun Yuen

CACC000595/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 595
(Criminal)

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Coram : Hon. Power, V.P., Rogers & Stuart Moore, JJA in Court

Date of Hearing : 24 February 1998

Date of Judgment : 24 February 1998

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J U D G M E N T

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Rogers, J.A. (delivering the judgment of the Court) :

1. On 29 August 1997, the Appellant was convicted before Deputy District Court Judge Poon of throwing corrosive fluid with intent contrary to section 29(c) of the Offences against the Persons Ordinance, Cap. 212, the particulars of the offence being that at Flat G, 10/F, No. 4 Hoi Wan Street, North Point, Hong Kong, the Defendant unlawfully and maliciously threw upon Kwong Kwan-wing a certain corrosive fluid, namely hydrochloric acid, with intent to do him grievous bodily harm.

2. The brief facts were that Mr. Kwong, who was PW1, lived in a flat upstairs from the defendant. There was a history of ill-feeling between the defendant and PW1, largely it seemed that there had been a history of banging on each other's floors and ceilings. On this occasion, which was during the night, PW1 had come downstairs and was banging on the outside iron gate of the Defendant's flat. The Defendant was awoken. He got up. He took some lavatory cleaner and placed that near the door or held it in his hand: it is not quite clear which. Nevertheless, he opened the door, he opened the iron gate and threw the lavatory cleaner over PW1.

3. The Defendant gave evidence and raised the defence of self defence.

4. In dealing with the law in relation to that the Judge said this :-

"It is clear law that although the prosecution bears the legal burden of negating the issue of self defence, a judge is not required to put that issue before the jury unless the defence has discharged the evidential burden relating to it by the adduction of sufficient evidence of self defence. So the question here is, whether the Defence has discharged the evidential burden of such."

5. In that direction to herself, it would appear that the Judge below has misdirected herself. Once the defence has been raised, the onus remains on the prosecution and the prosecution has to satisfy the Court on the whole of the evidence that the defence of self defence fails.

6. However, turning to the facts, the Judge below found the Defendant not to be a credible witness. She said :-

"I reject his evidence in its entirety."

7. One of the specific pieces of evidence which the Judge set out in her judgment was this. She said :-

"I notice that the Defendant whilst in the witness box on many occasions evaded to give direct answers to questions asked in both examination in chief as well as cross examination. In relation to the occasion in 1995 wherein PW1 and his brother came down to the Defendant's flat and spoke foul language with some threatening words, the Defendant said that he was so frightened that he did not dare to open the door. In fact he said that after that incident he had received a note in his mailbox in such threatening tone that he had to look carefully around every time he went out. On the other hand, on this occasion Defendant said that there were deadly threats made by PW1 to him. I cannot possibly understand why he should open the door in such circumstances especially when according to him had already anticipated something might happen so that he might have to resort to the use of the toilet cleaner."

She went on to say :-

"I also find it hard to believe that he did not know the toilet cleaner was corrosive: (a) He knew it was used to clean the toilet and has been placed in the toilet since its purchase; (b) The bottle container is made of glass and not plastic; (c) In cross examination, he admitted that in case anything happen he would use splash the toilet cleaner at PW1 to make him run."

8. In respect of the finding (b) that the bottle was made out of glass and not plastic, there was apparently no reference in the evidence to the importance of that fact but in our view that makes no difference to the fact that anyone would know that toilet cleaner was dangerous if splashed or thrown over another.

9. On the basis that the Defendant's evidence was disbelieved, the Judge was thrown back on the basic facts and in this case the facts speak for themselves. The action taken by the Defendant in opening the metal gate and throwing the lavatory cleaner cannot have been an act in self defence.

10. In those circumstances, we are satisfied that there was no miscarriage of justice. We give leave to appeal, we treat this hearing as the hearing of the appeal and we apply the proviso under section 83(1) of the Criminal Procedure Ordinance. The appeal is therefore dismissed.

Representation:

Mr. I.C. McWalters, S.A.D.P.P. for Department of Justice

Mr. Jerome Matthews instructed by M/s. Chong, Leung & Co. for Appellant