R. v. CHOW KWOK FUNG

IN THE COURT OF APPEAL

1994, No. 511
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced one count of throwing corrosive fluid with intent, contrary to s.29 of the offences against the Persons Ordinance. He pleaded not guilty to that count and was, after trial, found guilty and sentenced to imprisonment for seven years. He now appeals against both conviction and against sentence out of time.

2. The count was particularized as follows: that he on 30th June 1993 outside Room 1521 Shin Nga House, Fu Shin Estate, Tai Po, unlawfully and maliciously threw upon Chan Ka-wah a certain corrosive fluid, namely sulphuric acid, with intent to do her grievous bodily harm.

3. The background to the matter was that the applicant and the victim had had a long standing but somewhat turbulent relationship. By 30th June 1993 they had separated. On that night both had been to a birthday party at a Karaoke establishment in Tsimshatsui. It was the evidence of the victim that a Mr. Lo Chung-man had escorted her home and then, having taken her to the door of the house, had left. She said that two or three minutes later there was a knock on the door and the applicant appeared.

4. There was then over a period of about an hour an argument, at times heated and a certain degree of pushing and pulling by the parties. She said that at one stage the applicant attempted to indecently assault him. The applicant called "an old hag" and eventually pushed her back to the staircase recess and pushed her continuously at the shoulders so that eventually she squatted down. She said that he repeated that she was an "old hag" and then got a cup from, and I use her words, "behind the door" and "pushed" something onto her. Later she said that he had "poured" something onto her. In cross-examination she said she did not know whether he had "poured" or "thrown" the fluid. The cup was proved to have contained a very high concentration of sulphuric acid.

5. The applicant gave evidence. He said that Mr. Lo and the victim had travelled with him on a bus back to the victim's residence. He said that Mr. Lo was present during the quarrel. Mr. Lo, who, it is to be noted, also gave evidence as a Crown witness, denied this. The applicant said that on the bus the victim had shouted out indecent assault. This was denied by the victim who said that she had not been with him at all. He said that after arrival at the scene there was what might be described as a lover's tiff. He said that Lo was present throughout. He said that the victim had hit him several times on the chest and slapped him and pushed him and, it was his version, had made him sit down and that, when he was in that position he picked up, something, which he referred to as an "item" from a pile of renovating rubbish and he threw it at the victim and then left. He went on to say that they were reconciled and lived together for 20 days in October. The victim denied this. He denied completely having any knowledge of what fluid was in the item which he admitted he had thrown at the victim.

6. In cross-examination he said that he had thrown it upwards from his squatting position. It was his case that he had never intended to harm the victim and that the injuries were the result of criminal carelessness on the part of decorators who, it seems, must have left a cup of sulphuric acid among their rubbish which he chanced to pick up when he lost his temper.

7. The trial judge accepted the evidence of the victim. He found that the applicant was vague and inconsistent in his evidence, particularly in the crucial areas at the time of the incident. He made the following specific findings of fact:

"1. The victim was grievously injured by corrosive fluid to wit sulphuric acid.

2. That she had had a long and turbulent relationship with the Defendant which she had tried to end.

3. That he had been in her company earlier in the evening of 29/6.

4. That he went alone either to wait for her or to follow her home, intending to try to persuade her to take up the relationship again.

5. That he was alone with her during the incident for more than an hour during which time he used force on her and prevented her going back into her flat.

6. That it was not a coincidence that the paper cup of acid was nearby and that he intended to use it if she did not acquiesce to his entreaties.

7. That he was angry at the time he picked up the cup.

8. That the burns on her scalp and forehead shoulders and clothing were consistent with acid being poured or thrown from above and were inconsistent with having been thrown by him when on the floor upwards to the victim who was attending.

9. That he left immediately by the stairwell and had no contact with her on the police for 39 days because he was conscious of what had happened.

10. That he was not acting in self defence."

8. Miss Tracy Chan, who appears today for the victim, has argued a number of grounds. She first argues that the judge was wrong in finding that it was not a coincidence that the acid was nearby. She submits that there was no direct evidence to indicate that the acid was brought there by the defendant. It is true there was no direct evidence in that regard. The judge inferred that he had done so upon the basis of the evidence which he accepted. Given that he was right in accepting that evidence, he was, we are satisfied, perfectly entitled to draw the inference he did.

9. Miss Chan goes on to submit that the Chemist's report showed that it would take 30 hours for similar leakage of the bottom of a similar paper cup to happen. Her argument in that regard develops in this way. She submits that the whole of the Crown case is undermined by the finding of the chemist that it would take 30 hours for acid to leak through a cup of the kind which was found at the scene. She suggests that the cup must have been leaking at the time of the throwing of the acid as the chemist, who five days later found it to be leaking, discovered only residual acid therein. This she submits would not have been sufficient to cause the leak and so it must have been in leaking condition immediately prior to the time the acid was discharged and that the acid must, therefore, have been put into the cup 30 hours prior to that time. She submits that this casts doubt upon the central plank of the Crown case which was that the applicant had brought the acid to the scene about one or two hours before the attack. She submits further that a leak at the time of throwing is consistent with the applicant's evidence that it must have been left there by some decorators. These submissions rely upon a heavy underlay of speculation which is not based upon the evidence. There is no evidence as to the residual amount that was left in the cup after the attack. There is no evidence as to the effect any such residue would have had on the cup prior to its being seen by the chemist. We only have evidence as to what the Chemist saw five days later.

10. The real issues in this matter were ones of credit. If the victim was believed an inference of knowledge by the applicant was clearly open to the trial judge. The fact that the judge made no reference to this speculative matter, raised today by Miss Chan, in our view, in no way vitiates the correctness of his findings.

11. The next ground of appeal was that the judge erred in finding that the injuries on the forehead and head of the victim were inconsistent with the applicant saying that the cup was thrown by him in an upwards direction when he was on the floor and the victim who was standing. The injuries which are vividly depicted in the photographs which were tendered are consistent with the acid having been poured or thrown onto the victim's head from above. The finding of the judge in this regard cannot properly be called into question.

12. The third matter argued by Miss Chan was that the judge erred in finding that the victim was a credible witness. She bases this argument in the main upon the fact that there were some inconsistencies between the original statements of the victim to the police and her evidence and she points out that the judge did not make any mention of these in his findings. They were, in our view, quite minor inconsistencies and were not such as required specific mention by the judge in his findings. We have no doubt that he had them in mind when he assessed the evidence.

13. Her fourth ground is that the judge erred in commenting that the applicant did not give any reason why the victim and PW3 should testify as they did against him. This was no more than an observation which the judge made in the course of his findings and we do not consider that it, in any way, weakens his conclusion as to the lack of credibility of the applicant.

14. The final matter urged by Miss Chan was that the judge erred in finding that the applicant was aware of the fact that there was acid in the paper cup at the time he threw it at the victim. The applicant told what, in our view, was a wholly unlikely story but he was not, as the judge made plain, convicted because he had done so. He was convicted because the trial judge believed the victim and rejected his evidence and having done so inferred as he was fully entitled to do that there was an intention to harm and knowledge that the cup contained sulphuric acid. As we have said this was an inference that was strongly open. Indeed it would have been very surprised had he come to any other conclusion. We are satisfied that the application for leave to appeal against conviction must be refused.

15. The applicant also seeks leave to appeal against sentence out of time. When sentencing Judge Kilgour said:

"Throwing corrosive fluid is one of the most unpleasant ways of causing grievous bodily harm that can be imagined. As the victim recounted the pain was indescribable. To treat someone you professed to love in this way was uncivilised, cruel and inhuman."

He went on to say:

"You are seventeen years old. It is pleaded on your behalf that you are young. It is true but you are old enough to have married and started a family. I do not consider that Training Centre or Detention Centre would be appropriate sentences for this offences.

Even allowing for your relative youth I consider even the most conservative starting point for this offence would be in the region of twelve years.

I cannot give any discounts for plea or good character.

I feel the only proper sentence I can pass is one at the limit of my jurisdiction which is a sentence of 7 years."

16. It is argued today by Miss Chan that the judge erred in not giving sufficient consideration to the age and personal circumstances of the applicant. She also urges a third ground which we do not consider merits any comment by us. As to the first two grounds, age and personal circumstances, the judge did take them into account. Having considered everything, he was perfectly entitled to come to the conclusion that this was an inhuman offence that deserved a substantial period of imprisonment. Nothing has been urged that would make us feel any doubt as to the correctness of the sentence of seven years that was imposed. The application for leave to appeal against sentence out of time is therefore refused.