HKSAR v. LEUNG KAM SING

CACC 34/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 34 OF 2015

(ON APPEAL FROM HCCC NO. 125 OF 2014)

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JUDGMENT

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1. The applicant who appears in person after his application for the grant of legal aid was refused, seeks leave to appeal against the sentence of 6 years’ imprisonment imposed by M Poon J on 6 January 2015, following his conviction on his pleas of guilty on arraignment, of three counts of throwing corrosive fluid over three separate victims with intent to cause grievous bodily harm to the respective victims, contrary to Section 29(c) of the Offences against the Person Ordinance, Cap. 212.

2. The applicant and the three victims were keepers of different fruit stalls at Po On Road Market in Cheung Sha Wan. The application traded as Shing Kee Fruit Stall and Ms Wu Chun-hua (PWl) and Mr Chow Wing-kun (PW2) as Chow Kee Fruit Stall. On the morning of 20 October 2013, a dispute arose between Ms Wu and the applicant over a trolley placed by the applicant in the area immediately outside Ms Wu’s stall. Ms Wu pushed the trolley back towards the applicant’s stall. The applicant took out a bottle and sprayed some liquid from a distance of about 2 metres at Ms Wu’s face (Count 1). When Mr Chow, who was nearby, rushed towards the applicant, he was sprayed by the latter (Count 2). In response to Ms Wu’s cry for help, and her plea that the police be called, Ms Chau Kam-ling, the keeper of another fruit stall, responded by using her mobile telephone. On seeing that, the applicant walked up to her and began to spray her. In response, she turned her back on him, but he continued to spray her back and her head (Count 3).

3. Having been arrested and cautioned by a police officer, the applicant admitted having sprayed drain-cleaning fluid over the victims. He said that he did so because, “She or he interfered with me first, so I splashed drain cleaning liquid at them.”

4. In a record of interview, conducted under caution on 21 October 2013, the applicant explained that he bore a grudge against Ms Chau for having caused him to be arrested and bound over to keep the peace about a year earlier. He said that he had bought the drain cleaning fluid in the morning of 20 October 2013. He said he had thought about but rejected using a knife to take revenge in response to what he considered to be the bullying. When he had seen Ms Wu moving his trolley, he had protested but she ignored him. So he went to his fruit stall, where he placed a spraying nozzle on the drain cleaning fluid receptacle and returned, spraying the contents over first Ms Wu and then the others.

5. The bottle was found to contain 2 millilitres only of a black liquid containing sulphuric acid at a concentration of 95 per cent by weight. Sulphuric acid at such concentration is highly corrosive and capable of causing severe burn to the skin and permanent damage to eyes.

6. The victims were found to have suffered the following injuries and to have received the following treatment:

(a) Ms Wu suffered injuries caused by the acid to 1 per cent to 2 per cent of the total body surface area (“TBSA”); third degree scalding over the right and left upper limbs respectively; 2 per cent total body surface area second degree scald over her head and neck region; 0.5 per cent total body surface area second degree scald over her chest.

Ms Wu received debridement and partial skin grafting to the chest and both upper limbs and was discharged from hospital on 4 November 2013;

(b) Mr Chow suffered burns to 10 per cent of his total body surface area, involving the head, neck, trunk, right upper and lower limbs, ranging in each area from 1.5 per cent to 3 per cent.

Mr Chow’s injuries were managed at the Prince of Wales Hospital Burns Unit;

(c) Ms Chau suffered injuries to 2.5 per cent of her total body surface area, including superficial dermal burn injuries to her back and left armpit.

Ms Chau was discharged from hospital on 28 October 2013.

7. The applicant also suffered chemical burns to his face, 2 per cent of the total body surface area, and also 1 per cent total body surface area over the left upper limb and 1 per cent over the left lower limb.

8. Also, three bystanders were splashed with fluid by the applicant. Two of them sustained injuries to their left forearm, one a first degree burn, and the other a chemical scald injury. The third person sustained minor chemical burns to the upper back.

9. In sentencing the applicant, the judge acknowledged that he was a man of 53 years of age, poorly educated and illiterate. She noted that in mitigation, counsel had submitted that the applicant was a mild natured person who had been driven to commit the offences, “Because he did not know how to vent his emotions.” She said that it had been submitted that although the applicant had been operating his fruit stall for over 20 years, his relationship with those neighbouring fruit stall keepers had deteriorated and become antagonistic. For his part, the applicant had made complaints to various departments and to the management, but to no avail. As a result, he felt the victim of injustice and was helpless.

10. The judge noted that in 2012, matters had come to a head, resulting in the applicant being charged with criminal intimidation, having threatened Ms Chau with a knife. In the event, the judge said that the applicant was bound over to keep the peace for 12 months and ordered not to return to his fruit stall during that period. As a result, he handed over operation of the fruit stall to his wife and in-laws. The judge said that the court had been informed that the applicant had sought help from his church, a district councillor and eventually from a psychiatrist. She said that she had regard to the voluminous letters of support before the court in mitigation.

11. The judge determined that the commission of the offences involved “aggravating features”. First, that there was a degree of premeditation, given that the applicant admitted that having complained about his conflict with the victims, he had bought the corrosive drain cleaning fluid, determining to use it if there was subsequent conflict between the parties. Secondly, she noted that the sulphuric acid was “highly concentrated at 95 per cent concentration”. Thirdly, having noted that only 2 millilitres of the fluid was left, the judge concluded that the applicant had sprayed a large portion of the fluid over his victims. Fourthly, she said that some of the injuries were quite severe, requiring skin grafting. Fifthly, there were multiple victims and that “some wholly innocent bystanders were also injured accidentally.”

12. In the context of the fact of or the absence of injuries to the victims, the judge adverted to the observations of Power JA, as he was then, in the judgment of this court in HKSAR v Chan Chi Lun to the effect that:

“ Whether the injury be grave or minor is largely fortuitous and weighs little in favour of the applicant.”

13. Having regard to all the circumstances, the judge stipulated a starting point for sentence of 9 years’ imprisonment.

14. The judge said that affording the applicant a discount of one-third from that stipulated as a starting point for sentence to reflect his pleas of guilty, the sentence imposed on the applicant for each of the counts was 6 years’ imprisonment. Noting that although the applicant’s conduct was reflected in three separate counts, the events were “part and parcel of one single transaction”, the judge ordered that the sentences of imprisonment be served concurrently.

15. Attached to Form Xl, by which the applicant gave notice on 30 January 2015 of his application for leave to appeal against sentence, are the applicant’s homemade grounds of appeal against sentence, in which he asserts simply that “the sentencing for all the charges was too heavy”.

16. Today, the applicant has said that before he made “this mistake”, he suffered from nightmares. That was evidenced by the hospital records at the Prince of Wales Hospital, which showed his sleep disorder. In answer to questions from the court, the applicant confirmed that although he had been detained at Siu Lam Psychiatric Centre for five months in the period October 2013 to about March 2014, thereafter he was remanded in Lai Chi Kok Reception Centre until January 2015, after which he was remanded or he was detained at Shek Pik.

17. In written submissions made on behalf of the respondent, it was submitted that the serious nature of this kind of offence called for a deterrent sentence. Reference was made to the judgment of this court, in HKSAR v Yu Tim Hi. Then it was submitted that the actual injuries suffered by the victims are of little relevance to sentence since Section 29(c) of the Offences against the Person Ordinance provides for culpability in the defendant, “Whether any bodily injury is effected or not.” Also see the judgment of this court in HKSAR v Wong Siu Kwan

18. In mitigation the judge was provided with two psychiatric reports ordered by the magistrate dated 28 February 2014 and 7 March 2014 by Dr Oliver Chan and Dr Kavin Chow, both of whom are visiting psychiatrists at Siu Lam Psychiatric Centre. Each of them noted that the applicant had become known to the psychiatric services in 2012 only. They noted that he suffered from a multitude of sleep-related disorders, but that, whilst he was diagnosed as having a generalised anxiety disorder, there was no past history of psychiatric admission. Having noted that he had been remanded at Siu Lam Psychiatric Centre from October 2013 up and until their respective reports, they each expressed the opinion that no in-patient treatment was required. That no doubt was why, as the applicant has confirmed, he was thereafter remanded in Lai Chi Kok Reception Centre.

19. It is apparent from the photographs of the three victims that to differing degrees, there was permanent scarring to their bodies. Ms Wu has evident scarring tissue to the inner aspects of both upper arms. She has some scarring beneath her lower lip and immediately above her left breast. More particularly, it is apparent from the photographs taken immediately after her injury, that she had scarring, or injury to her face, particularly on the left side above, around and beneath her left eye. Clearly the fluid was sprayed into her face. Again, from the photographs of Mr Chow, it is apparent that he has permanent scarring. In his case, to his upper limbs, lower limbs, particular his right leg. Again, in his case, it’s apparent from the photographs that he had burn marks to his face, particularly his forehead, above his left eye. Finally, it’s clear that Ms Chau, the third victim, also has been left with permanent scarring. In her case, to the left shoulder, left armpit, and the right part of the back, next to the right shoulder blade. Again, from the photographs taken at the time, it’s apparent that the fluid was sprayed to the left part of her neck, and onto the face, reaching the forehead.

20. The need for the imposition of deterrent sentences in offences of throwing a corrosive fluid over a person with intent to cause grievous bodily harm has been long acknowledged. In Chan Chi Lun, to which the judge referred in her reasons for sentence, Power JA noted as much:

“ In offences of this kind the deterrent effect of a sentence is, perhaps, of larger moment than in any other class of offence.”

21. That sentiment was reiterated in the judgment of this court delivered by Hartmann JA, as he was then, in HKSAR v Cheung Cho Fat:

“ As to the matter of deterrence, it has long been recognised that the throwing of acid at a person is a particularly vicious crime, one viewed with understandable horror by right thinking members of society.”

22. The judge was correct to have regard to the fact that there was an element of premeditation in the commission of the offence by the applicant. The applicant said he had bought the corrosive fluid, having had a conflict with the victims of his attack earlier in the morning. He said that he intended using it if he encountered behaviour again by them which he regarded as bullying. That is what he did. Moreover, the judge was entitled to have regard to the fact that there were multiple victims. The applicant accepted that he intended to cause grievous bodily harm on the three victims. But there were others who suffered, albeit accidentally, because they happened to be in the immediate vicinity of where he was spraying the sulphuric acid.

23. In all the circumstances, I am satisfied that the judge was perfectly entitled to take a starting point of 9 years’ imprisonment for each of the three counts on which the applicant was convicted, and to discount that by one-third, and to then impose sentences of 6 years’ imprisonment. With respect, for the reason she gave, the judge was correct to order that the sentences be served concurrently.

24. In the result, I am satisfied that there is no merit in the proposed ground of appeal against sentence. Accordingly the application for leave to appeal against sentence is refused.