R. v. VILLANUEVA MARIBEL L. & OTHER

1995 No.97

(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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P. Chan, J. (delivering the judgment of the Court):

1. The 1st Applicant was convicted after trial of wounding and robbery. She is a Filipino national. At the time of the offences, she was employed by the victim without a formal contract, the 1st Applicant having illegally remained in Hong Kong after the previous employment contract had expired. She brought the 2nd Applicant to the victim who permitted both of them to stay in her flat. The 2nd Applicant was also employed without a formal contract and at less than the minimum specified salary. Under such circumstances, needless to say, conflicts developed and tension mounted between the parties, as employer and employees. The victim was not satisfied with the work of these applicants and their manner of doing work and the applicants were not happy with the work either. The incident occurred during the period of 14 days notice given by the victim to these applicants to leave.

2. The Crown's case mainly relied on the victim's evidence. The victim was having breakfast before going to work. There was an exchange of words arising from the manner of the applicant's work. The victim was attacked by the 1st Applicant and this was followed by the 2nd Applicant. She was pulled by the hair and head and the 2nd Applicant, using a chopper taken from the kitchen, chopped the head and neck of the victim with the blunt side of the chopper. She was then dragged into the bathroom and was further assaulted. After the assault, the victim had some of her properties including two diamond rings and her wallet snatched away from her. The two applicants then left the premises and were seen leaving the building very shortly afterwards by the caretaker. The victim suffered multiple cuts, bruises and abrasions and was detained in hospital for ten days. It was after a few months that the victim spotted the two applicants in a restaurant and they were arrested.

3. The 2nd Applicant admitted the assault but denied the robbery. The 1st Applicant denied both and said that she was merely trying to stop the fight between the victim and 2nd Applicant. At the trial the 2nd Applicant pleaded guilty to the charge of wounding. Both gave evidence at the trial. The 2nd Applicant said that the victim scolded her and therefore they had a fight and during the struggle, she picked up something which she could not remember and hit the victim with it. On the other hand, the 1st Applicant said that she heard the struggle and simply tried to stop the fight but as she could do very little she left. At the end of the trial, both were convicted on the robbery count and the 1st Applicant was also convicted on the wounding charge.

4. The 1st Applicant now applies for leave to appeal against both conviction and sentence and the 2nd Applicant against sentence only.

5. Before this court, the 1st Applicant basically maintained her innocence. She said that she did not commit the two offences.

6. We think the learned judge in his Reasons for Decision had given good reasons for accepting the victim's evidence which was the basis for the convictions. There was in fact other evidence which was consistent with and supported the victim's version of the events. First of all, both applicants admitted they had an encounter with the victim inside the flat. They were seen leaving the place by the caretaker very shortly after the incident. The blood in the bathroom was also consistent with the victim's description of what happened. The victim's injuries were consistent with her being attacked as she described. One of the victim's rings was also pawned by someone using the 2nd Applicant's identity card which was somehow found in the possession of the 1st Applicant. The victim's wallet was found somewhere in a dustbin in Aberdeen. On such evidence, the learned judge was perfectly entitled to find beyond reasonable doubt that both the applicants were guilty of the wounding and robbery. The 1st Applicant's application for leave to appeal against conviction is therefore refused.

7. Both Applicants apply to have their sentences reduced. The 1st Applicant told us about her family circumstances and that she had to support her family. The 2nd Applicant also disclosed to us that she had to support her relatives and she was sorry for what she had done. They were both sentenced to 18 months imprisonment for the wounding charge, 31/2 years for the robbery charge and one month for the charge of breach of condition of stay, all sentences to run concurrently.

8. We think that the learned judge had taken proper consideration of the previous grudge and grievances of the parties, the possibility that the applicants might have been exploited by the victim under the informal contracts of employment and accepted that the robbery was not premeditated. However, it was, as the learned judge said, a serious attack and there was no need to commit the robbery. We think that he had taken all proper consideration of the mitigation and circumstances. These sentences were neither wrong in principle nor manifestly excessive. Both applications for leave to appeal against sentence are also refused.