R. v. LEE CHEN MAO ZHEN

IN THE COURT OF APPEAL

1994, No. 256
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. There are two matters before us: (1) An application to extend time to appeal against conviction; the applicant is out of time by about two months; and (2) An application for leave to appeal against sentence.

2. The applicant Lee Chen Mao-zhen was convicted on 6 May 1994 after trial before Deputy Judge Jones and a jury on two counts of throwing a corrosive fluid with intent to disfigure; in relation to the first count the offence is brought under section 29(c) of the Offences Against the Person Ordinance. The Deputy Judge passed sentence on 20 May 1994. He imposed sentences of 11 years each on the two counts, nine years of the sentence on count 2 to be concurrent with the sentence on count 1, with the result that the applicant was sentenced to a total of 13 years' imprisonment. She was 33 years of age at the trial.

3. The two offences occurred on 16 December 1992 at Room 2015, On Mei House, Cheung On Estate, Tsing Yi. The victim in count 1 was Mrs Cheung Choi-mei. The victim in count 2 was Mrs Cheung's daughter Cheung Suk-yee who was 4 years old at the time. The corrosive fluid was a toilet cleaner carrying the branded name "Kai Lik". It was an admitted fact at the trial that the fluid was thrown on Mrs Cheung by the applicant and that this caused severe burns and injury to Mrs Cheung. It was also admitted that the corrosive fluid fell on the child Cheung Suk-yee and that the child suffered burns and injury. In essence the issue on the first count was whether the applicant, in throwing the corrosive fluid, intended to disfigure Mrs Cheung. The issue on the second count was whether the applicant threw the corrosive fluid at the child with intent to disfigure the mother Mrs Cheung.

4. The applicant's defence on count 1 in essence was that she did not intend to disfigure. She had bought the corrosive fluid and intended by using it on the Cheung family to cause "redness and itchiness", thereby inducing Mrs Cheung's husband to repay a loan of $20,000 to her. As regards count 2 she said it was an accident; she tried to push the child away and the corrosive fluid accidentally fell on the child. In contrast, Mrs Cheung's evidence was that this was a deliberate second attempt to throw acid on her whilst the applicant was holding her at the door preventing her from escaping, after perpetrating the first assault.

5. On count 1 the judge's direction was as follows:

"The specific intent in the first charge which the prosecution is required to prove is of course the intent to disfigure the victim in the first charge. In deciding that issue you should consider all the facts which are proved either by admission or by your own findings and ask yourselves if the defendant's intent to disfigure the victim is a necessary inference from all these proved facts. Consider what the defendant has done in the context in which she has done it and consider her own admissions as to her state of mind, and decide if her intent in throwing the fluid must have been as alleged in the charge. Remember that that is a finding you must make beyond reasonable doubt."

6. The judge then went on to tell the jury quite accurately that her motive was not directly relevant to the issue. He then said:

"Was her intention to disfigure Mrs CHEUNG as the prosecution alleges? Or was it merely to inflict some lesser harm as she herself admits? If you find that her intent in throwing the fluid was to disfigure Mrs CHEUNG, then you should convict her on the first charge. If you are not satisfied with that, then you should acquit her on the first charge."

7. As to the second charge, the judge said this:

"Turning to the second charge, you will note that the injuries to CHEUNG Suk-yee are admitted, but there is not on this charge any admission of throwing the fluid as alleged. The case of the defendant on this point is that it was an accident caused as she was trying to push the child away, and without realising that she, the defendant, still had the container in her hand with fluid in it. You may contrast this version with the evidence of Mrs CHEUNG on the point in her statement. You should then decide whether or not you find it proved that the defendant also threw the fluid on the child as alleged in the second charge."

8. Clearly the case turned to a large extent on the applicant's own credibility as a witness. As to this the judge said at p15:

"You have heard that the defendant has a clear record. She is entitled to have you take this into account in evaluating her credibility. A clear record reflects a good character, and this is a factor in her favour in deciding whether or not you believe her."

9. This was, in the circumstances, a fair and proper direction to the jury. Plainly, if the jury in evaluating the applicant's evidence was prepared to accept that she might have been telling the truth she would have been acquitted of the charges of intentional disfigurement, but found guilty of the alternative charge of wounding. Nothing more was needed in the summing-up, in the circumstances of this case. To have spoken of "propensity", as counsel Mr Grounds urged he should, would in the circumstances of this case have been confusing to the jury; for on her own admission the applicant had the "propensity" to plot a premeditated attack upon Mrs Cheung with a corrosive fluid and to do so regardless of harm to a small child. How such a direction on "propensity" might have assisted the applicant in the eyes of the jury is difficult to imagine.

10. There are no valid grounds of appeal against conviction. There are no good reasons advanced for extending the time for appealing against conviction and the application must be dismissed.

11. As to sentence, we give leave to withdraw the application.