THE QUEEN v. AU CHI TAK

IN THE COURT OF APPEAL

1986, No. 491
(Criminal)

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J U D G M ENT

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Kempster, J.A.:

1. On 10th September last year on the verdict of a jury AU Chi-tak was convicted by Deputy High Court Judge Leong of throwing corrosive fluid with intent to burn, maim, disfigure, disable or inflict grievous bodily harm upon Kiss HO Yee-kwan at Lai Chi Kok Road, Kowloon on 13th December 1985 to appeal. Against that conviction he seeks leave to appeal.

2. At the trial the case for the Crown was summarised by the trial judge in this way:

"The victim was at the material time waiting at bus-stop in Cheung Sha Wan Road, Kowloon. She had finished her overtime work at about 8 0'clock in the evening. The applicant approached her from her left and threw nitric acid onto her face. The victim was able to see it was the defendant who did it. "

3. The first of two grounds of appeal is that the trial judge directed the jury that inconsistencies between the evidence given by the victim at trial and the terms of two statements which earlier she had given to the police went only to credit. It is contended that they went predominantly to the reliability of the victim's identification of the applicant and that the jury, in fact carefully warned about the dangers inherent in such evidence, should so have been directed. The trial judge said in this regard:

"Now members of the jury the first three statements are inconsistent with her present testimony that she actually saw the defendant attacking her because if she did see him she would have taken these first opportunities after the attack to tell the investigating police officers that

it was the defendant who did it and she would not have given these statements in the manner she did.

The defence suggested that the victim's evidence that she saw the defendant was reconstructed in her afterthought.

The victim has given an explanation for the inconsistencies in her previous statements. She says that when she gave them she was still under the influence of shock and pain, she says she had just been attacked and she could not express herself clearly.

Now, members of the jury, I should remind you that the inconsistencies only go to credit, that is, they would only affect the credibility of the victim as a witness. These statements do not and cannot in any account be treated as evidence of the truth of their contents. You have heard the  explanation from the victim for such inconsistencies. It is a matter for you whether or not to accept such explanation.

If you believe and accept her explanation and provided you approach the evidence of the Victim with caution, you may act on her testimony and give it such weight as you deem appropriate. The matter is entirely for you. Of course, if you do not accept her explanation you will assess her creditibility in the light of such inconsistencies."

4. Reading the direction impugned in context it is apparent that there is really no substance to this ground of appeal. If the victim’s evidence going to identification was shown to be unreliable the jury would unquestionably have asked themselves whether in the circumstances they could be sure that the acid had been thrown by the applicant.  We agree with Mr. Howard, who appears on the applicant’s behalf today, that the fact that she has subsequently picked the application out at an identification parade was neither here nor there. She knew him very well.  She might say ”Only too well.”

5. The second ground of appeal, upon which in the final analysis Mr. Howard relied only in the faintest degree, was that inviting the jury to draw any inference as to the applicant’s guilty from the evidence of CHAN Yiu-ming also constituted a misdirection.  Since this witness purported to have heard the applicant, a rejected lover, threaten to destroy the victim as well as to harm another person at that stage associated with her, we cannot see how it could have been withdrawn from the consideration of the jury.

6. Having described what was said by CHAR Yiu-ming the judge put the matter in this way:

"If you believe such evidence you may draw such inference from it as you think fit. However, if you rely on the inference drawn from such evidence to find guilt of the defendant I must remind you what I said earlier about inference, that is, it is only when you are satisfied as to feel sure that such evidence admits of another logical and reasonable inference than the guilt of the defendant that you should rely on it. "

This direction appears to us to be quite adequate and, accordingly, we find that there was no substance in the second ground of appeal either.  The application for leave to appeal against conviction is dismissed.

7. By the notice which he filed on 1^st October 1986 AU hi-tak also sought the leave of this court to appeal against sentence.  Having regard to the facts of the case the grounds upon which he relied were not only insensitive but impudent.  He had the temerity to state, on the footing that he was guilty, “I had not done anything wicked.”  Be that as it may Mr. Howard had told us that such application is abandoned which, in the normal course of events, could redound greatly to the advantage of the applicant.  However, today we have to consider the applicant’s sentence in another context.

8. The application for leave to appeal against sentence is also dismissed.