R. v. LEE CHOI LEUNG

IN THE COURT OF APPEAL

1996, No. 60
(Criminal)

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J U D G M E N T

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

1. On 8th December 1995 the applicant, Lee Choi-leung, was convicted by His Honour Judge McMahon in the District Court of one offence of throwing corrosive fluid with intent contrary to s.17 of the Offences against the Person Ordinance Cap. 212. On 27th December 1995 he was sentenced to 3 1/2 years imprisonment. He now seeks leave to appeal to this Court against his conviction.

2. The victim was a young male, Lam Hoi-tik. He and the applicant, who was the 1st defendant at the trial, were known to each other, having been at the same secondary school. On 4th May 1994 Lam was paged by the applicant and asked for a few hundred dollars. Lam asked his cousin to lend him $400 and then paged the applicant and left a message for him that he had the money and would meet him at the Circle-K convenient store at Fung Tak Street. Lam waited at the store and eventually the applicant arrived with two others. One of these two was also known to Lam. This person was the 2nd defendant at the trial. Lam gave the $400 to the applicant and the applicant said something to the 2nd defendant who took Lam into the store and asked him for the rest of the money. Lam said he had only been asked for a "few hundreds". The 2nd defendant then punched Lam who told him he could not get more money. The applicant then left and returned about five minutes later with a cup of liquid. The 2nd defendant punched Lam in the eye after which the liquid was poured onto Lam's groin, causing him a burning pain.

3. The three persons then left. Later, Lam made a report to the police and was taken to the Queen Elizabeth Hospital. He was found to have some scalding in the region of his groin and also some bruising to his eye. Later the applicant and the 2nd defendant were arrested.

4. The applicant made a statement. Both the applicant and the 2nd defendant were charged with the offence already mentioned and in the alternative with the second offence which is not of concern to us today.

5. In his written notice of application for leave to appeal against his conviction, the applicant only says this:

"On December 27, 1995, I appeared at the District Court for the charges of wounding and throwing corrosive fluid with intent. I pleaded not guilty at that time, however, the judge convicted me unreasonably and sentenced me to 3 1/2 years' imprisonment.

There was an absence of evidence then. The wounded person said that I had nothing to do with it, saying he/she did not see who threw [corrosive fluid] at him/her. But the judge said I had admitted it in my statement and disbelieved the police had extorted confession from me. The judge then found me guilty and sentenced me to 3 1/2 years' imprisonment. I am aggrieved ..."

Before us today, he has only added that he had known the wounded person a long time and that this was not done by him, meaning the offence.

6. In answer to our questions, he has clarified his written notice, saying that what he meant was that the victim did not actually see him pouring the acid. But that is of little consequence because it is implicit that the judge was satisfied that the three of them were acting in concert; in consequence that he may not have actually poured the liquid matters little.

7. Turning to the evidence, the judge very rightly found that there were inconsistencies in the evidence of the victim and also certain unsatisfactory features. It took time to report the offence. He originally did not mention the third person. He said that the police might have made a mistake in not including the mention of the third person.

8. The judge correctly held that for those reasons he was unable to rely completely upon the victim's evidence and he treated it cautiously. It was for that reason that he acquitted the 2nd defendant. But the 1st defendant, that is the applicant, had made a statement. Although he disputed that statement and said that it had been extorted from him, the judge held a voir dire and concluded that the statement had been made by the applicant and that it was admissible. He believed the evidence of the police officers who recorded the statement that it had been made voluntarily. Once that statement is taken into consideration, as the judge was entitled to do, it is quite clear that he was entitled to come to the conclusion that the applicant was guilty of the offence charged. There is nothing in the ground advanced by the applicant and no merit in his application which is refused.