Ng Loi v. The Queen
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CACC000117/1969 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 117 OF 1969 ----------------- (On appeal from K.D.C. Crim. Case No.6 of 1969)
----------------- Coram: Rigby, S.P.J. & Huggins, J. Date of Judgment: 26 May 1969 ----------------- JUDGMENT ----------------- Rigby, S.P.J. : 1. This is in many ways a sad and unhappy case and it has its origin in the difficulties of accommodation in an already over-crowded society. 2. The appellant, a man aged 60, was indicted in the District Court upon two charges of throwing corrosive fluid with intent to burn or to do grievous bodily harm. The complainants in respect of both those charges were respectively the appellant's son and his wife. The learned trial judge, for reasons to which we will refer, acquitted the appellant on the charge of throwing corrosive fluid with intent to burn or to do grievous bodily harm to his wife but convicted him upon the charge in respect of the son. He was sentenced to three years' imprisonment and he now applies for leave to appeal against that sentence. 3. The facts of the case may be briefly stated. The appellant was living with his wife in a three bedroomed premises. One room was occupied by the appellant's son and his wife and one child, the other room was occupied by the appellant's wife and four grandchildren, and the third room was occupied by a lodger. The appellant himself slept on a camp bed in the 'teng' or sitting room. It would appear that some time shortly before the Chinese New Year the appellant, no doubt tired of living and sleeping in the sitting room, asked his son to evict the lodger from the third bedroom so that he could have use of it for himself. The son demurred at that suggestion and it would appear that a quarrel arose between them. The following day round about mid-day it would seem quite clear that the appellant went out to a shop and purchased two bottles of hydrochloric acid. He returned to the house and as a result of what then occurred it is quite clear that both the appellant's son and the appellant's wife were sprinkled with hydrochloric acid. 4. There was a conflict of evidence as to how this actually occurred. The appellant's story was that he had purchased the two bottles of hydrochloric acid for cleaning the lavatory. When he returned to the premises and entered the sitting room with a bottle in each hand his son, for no apparent reason and without any warning rushed at him, knocked a bottle out of one hand, and in some extraordinary way caused the appellant to lift the bottle in his other hand and bring it down on the son's head causing acid to flow both on to his head and into his eye. The son, corroborated to some extent by the appellant's own wife, told an entirely different story. They said that the appellant came into the sitting room, threw a bottle at the son and with the other bottle hit the son on the head causing the contents of the bottle to spill on to the son's head and into his eye. The appellant's wife at the same time tried to separate the appellant and stop him from what he was doing and as a consequence she herself received part of the contents of the bottle and it spilt on to her face injuring her left eye. 5. The learned trial judge accepted and believed the evidence of the appellant's son and his wife and convicted the appellant upon the charge of throwing hydrochloric acid with intent to burn or to do grievous bodily harm to his son. With regard to the count as against the wife the learned judge was not satisfied that there was any intention on the part of the appellant to burn or to do grievous bodily harm to his wife; in other words, that the injury done to her was incidental to the conflict in which she tried to interfere. Upon those facts the learned judge - very properly taking a serious view of a case of acid throwing - sentenced the appellant to three years' imprisonment. 6. Unfortunately there was no evidence given at the trial by a medical specialist as to the nature and extent of the injuries done to the eyes of either the son or the appellant's wife. Both of them were, it is true, examined by a doctor who was not an eye specialist, and the doctor specifically said, in answer to a question from the court, that as regards the son, he could not say if the eye was damaged, and as regards the wife he simply said that he recognized her but that he had no records of her case and indeed he could not even remember what was wrong with her. The son himself said that the vision of his left eye was impaired because acid had gone into it making it so painful that he could not open it; and the wife also said that her eyesight had been seriously impaired as a result of this. The learned trial judge, in the course of passing sentence, said that the accused had not displayed the slightest remorse or regret at any time during the trial for having seriously affected the eyesight of his son and his own wife. 7. When the case came before us on an earlier hearing, we thought it right to adjourn it in order that we might have further evidence as to whether or not there had been any permanent impairment of the eyesight of the son or, indeed, of the wife. Those reports are now before us and, fortunately for the appellant, it is apparent from those reports that no permanent ophthalmic disability has been caused to the eyesight of either the son or the appellant's wife. 8. The learned trial judge, in the course of passing sentence, said: "Accused's attitude does not impress me. He was in my view a source of trouble in the son's home". Now, it would appear from the evidence upon the record that that statement is not strictly correct. No doubt the son was the principal contributor financially to the expenses of the household, but it is clear that it was in fact the appellant's wife who was the tenant of these premises and that it was the appellant's wife who paid the rent. The appellant himself is a hawker and it would appear that he worked fairly sporadically and intermittently and indeed, as we have said, that it was in fact the son who was the main support, indeed the financial mainstay, of the home. 9. This is a difficult case and we have given the matter anxious consideration. The appellant is a man aged 60. He has some previous convictions for offences but we think it unnecessary to refer to them because the last conviction was as long ago as 1956. He has now been in prison for just under 3 1/2 months serving the sentence imposed upon him in this case. The appellant's younger brother has come forward and told us that in the event of this court taking a certain course he would be prepared, if the appellant's wife no longer wished to live with him, to take the appellant into his own home. He is himself a married man and he informs us that his wife has said that she is willing to have the appellant living with them. Furthermore, he has said that he would be prepared to enter into a bond in the sum of $1,000 to ensure the appellant's good behaviour for the next three years. 10. There is perhaps one last matter to which we should refer. The appellant, unhappily, was not represented in the lower court. He has been granted legal aid for the purposes of this appeal. Mr. Ming Huang, who has appeared for him and has said everything that could be said on his behalf, has drawn our attention to the fact that, as a matter of law, although the appellant's wife was both a competent and compellable witness as regards the charge concerning herself of acid throwing, she was neither a competent nor a compellable witness - by reason of the fact that she was the appellant's wife - in relation to the charge of acid throwing concerning the son. We invited Mr. Ming Huang to ask for leave to appeal out of time against conviction, but he informed us that he had carefully considered the facts of the case and he considered that no useful purpose would be served by such an appeal against conviction and he did not therefore desire to proceed with it. It may be that that was a right view. On the other hand, it may well be that having regard to the conflict of evidence as to what actually occurred in the acid dispute, if the wife's evidence had not been available in connection with the charge brought against the accused concerning the acid throwing case against his son, that the learned trial judge might conceivably have taken a different view. We find it unnecessary to express any view on that matter. 11. Returning now to the question of sentence, as we have said, this is a difficult case and we have given the matter anxious consideration. It would seem quite clear on the evidence as accepted by the trial judge that the appellant went out quite deliberately and purchased two bottles of hydrochloric acid for the purpose of throwing all, or part, of the contents at his son. No one can overlook the seriousness of such a matter. But in all the circumstances of this case, bearing in mind the age of the appellant, the fact that this was undoubtedly a domestic quarrel, the additional fact that this was undoubtedly a domestic quarrel, the additional fact that he has now been in prison for over three months, and the fact that the appellant's brother has now come forward and said that he would be prepared not only to stand surety for the appellant as regards his future good behaviour but also give him accommodation in his own house, we think that no useful purpose would be served by permitting the appellant to remain any longer in prison and that this is a case in which we can fairly and properly take meniful view of the facts and circumstances. thus correctly stated, but it must be noted that it goes no farther than saying the Crown need not prove that the intended victim was influenced by the menaces. It does not go so far as to say that the state of mind of the intended victim is inmaterial to the proof of the charge nor can such a proposition be inferred from the judgment. In my view the state is mind of the intended victim is a most material circumstances in deciding whether or not the menaces were of such a quality as to be liekly to affect the mind of an ordinarily firm and courageous person. Where there is positive evidence that the mind of the victim was not affected, the trial court must surely be shown some reason to account for the victim's composure before it can be asked to say that the circumstances were such that any person of ordinary firmness would have been affected by the words used. In other words, where the victim has given evidence that he was not put in fear the Crown must necessarily present the case upon the basis that he is a person of unusual firmness or exceptional courage. And they must be able to show, notwithstanding that fact, that, nevertheless, a person of feebler character might have been affected by the threat. It is very much a jury question. Perhaps in this case, the magistrate regarded the complainant as a person of unusual courage but if he did so there is no hint upon the record nor in his finding that he did. 12. Mr. Yu also urged upon me the view that, in all such cases, the court must look to the circumstances and background of the particular individual who has been made the victim of the menaces. In other words, the class of persons from whom the man of average firmness is to be selected is not the whole world but is the restricted category of persons who are of a similar nature and background to the victim. It is this average person who is to be set against the background of the actual circumstances leading up to the offering of the menace. 13. So far as this individual complainant is concerned, whatever there is upon the record seems to show that he was not that exceptional person whose firmness places the prosecution in this difficulty. According to him, he was twice before solicited in the same way and on each occasion gave way. He is a simple illiterate boatman; he does not own either of the vessels which he operates; he is in the employment of a body of persons who might be expected to deal with unwarrantable police interference with firmness, justice and intelligence. Moreover, the boatman admits that in his experience no other boat or ferry has ever been towed away by a marine launch at Peng Chau. The whole circumstances therefore conduce to the view that what we find here is a simple man of no outstanding quality treated, in the course of heated and unpleasant exchanges, to an idle threat which occasioned nothing more than a momentary irritation or puzzlement. I doubt if any villager in these circumstances would have reacted with any greater alarm to the words allegedly spoken by the 1st appellant. 14. As I have said the actual quality of the evidence given by the complainant and his supporting witnesses were not in dispute. I cannot forebear to say however that there were, even apart from those noted by the magistrate, certain very obvious deficencies in their evidence. Perhaps this criticism does not amount to much when one considers that the court was dealing with simple villagers who gave their evidence in the somewhat incoherent and inconsequential manner of persons unaccustomed to orderly thinking. I confess, however that the total picture produced upon my mind from the record of the evidence, although it is true that I have not had an opportunity of seeing the witnesses themselves, is that of a sudden and dis-edifying verbal brawl in which the hapless policemen felt themselves being outfaced by a stubborn and uncooperative man. There is no doubt that the 1st appellant behaved disgracefully in using the language which he admits he used. I very much suspect however that if any reference was made to tea money or to towing away a boat it was made in the heat of temper. Somehow the whole circumstances seem strangely unpropitious for the making of venal demands. This however is by the way. For the reasons already given, I allow the appeals of both appellants. The convictions are quashed and the sentences set aside.
16th May, 1969. Representation: P. Yu (K.C. Yung & Co.) for both appellants. Penlington S.C.C. for Crown. Oral judgment reduced into writing. |