COURT: Stand up, defendant.
The defendant faced one count of throwing corrosive fluid with intent, contrary to Section 29(c) of the Offences against the Person Ordinance, Cap 212. He pleaded guilty to the count before me and was duly convicted of the offence after he admitted to the summary of facts.
The summary of facts shows that the victim of the offence is the younger brother of the defendant and on 4 October 2013 the defendant had a dispute with the victim (the younger brother) and another older brother at their home in Yat Tung Estate over the use of the defendant’s private car.
During the dispute, the defendant sustained a minor injury to his head. A report was made to the police, but upon police arrival, the parties involved informed the police that they would not pursue the matter. The police left.
On the next day (that is, 5 October 2013), the defendant left home at around 10.30 in the morning. He returned home about 10 minutes later, holding a plastic bag. After the defendant went into his room, his sister who had seen him leave and return, told him not to create trouble. The defendant said he felt angry. The defendant’s mother came to comfort the defendant.
After a while, the defendant came out of his room holding a bottle. He went over to the victim, who was sleeping on the sofa, and poured the contents of the bottle onto the victim’s face and body. The victim was then only wearing a pair of shorts, with his upper body naked. The victim woke up and screamed in pain. His family members helped him to wash the liquid off in the bathroom. A report was made to the police.
The defendant was arrested after the police arrived at the scene. Under caution, the defendant said, “Ah Sir, last night there was a dispute among my elder brother, younger brother and me about the arrangement of driving my private car. I was beaten up by the two of them that my forehead was reddened and swollen. When I got up this morning, I thought of last night’s incident and felt very aggrieved and disgruntled. So I went downstairs, bought drain opener from the market and returned home. At that time, my younger brother slept on the sofa alone. It made my blood boil upon seeing him, so I threw the corrosive fluid upon him. Ah Sir, I was wrong for throwing fluid upon my younger brother. I feel very remorseful. Give me a chance.”
Now, the victim’s injuries. The victim was taken to the Accident and Emergency Department of the Princess Margaret Hospital. Physical examination showed second-degree burns involving the entire anterior body (roughly 50 per cent body surface area) with sparing of the eyes, both palms and the perineal region.
The victim was admitted on the same day into the ICU of the Queen Mary Hospital for chemical burn. Physical examination revealed 22 per cent partial thickness burn over bilateral thigh, bilateral arm, trunk and face with no circumferential burn.
Resuscitation was carried out. The victim was transferred to the Burns Unit of the Queen Mary Hospital on the next day (that is, 6 October 2013). The burn wounds were managed conservatively with daily dressing. No eye injury was detected.
The victim was transferred to the Tung Wah Hospital for further wound care on 16 October 2013. On admission, the victim was found to have 15 per cent second-degree burn over the face, the trunk and four limbs. His condition gradually improved and he was discharged on 4 December 2013.
On subsequent follow-up, it was noted that the victim suffered from left knee scar contracture. He was readmitted into the Tung Wah Hospital on 11 February 2014 for a further operation involving scar release and skin graft. He was discharged on 23 February 2014.
Now, the bottle of liquid used by the defendant to throw at the victim was seized by the police. The examination by chemist showed that the bottle contained 720 millilitre of a liquid containing sulphuric acid having a concentration of 97 per cent weight by weight. At such a concentration, the sulphuric acid is highly corrosive, capable of causing severe skin burns and permanent visual damage.
The latest medical position of the victim. I do not have an up-to-date medical report on the victim nor was I supplied with recent photographs. I was informed that the victim had to undergo another operation to deal with the scarring problem with left arm in April this year at the Queen Mary Hospital. He has to receive treatment continuously and another operation is scheduled for October this year.
The background and mitigation. The defendant is a 24-year-old man with no previous conviction. He studied up to Form 5 and used to work as a transportation worker.
The defendant claimed to be a non-drug-user; that is in the antecedent statement read out to the court. However, a medical report prepared by Dr Ronnie Pao of the Kwai Chung Hospital, which was submitted to me through a letter of the defendant’s mother, is the doctor said that from 2008 the defendant had been on off using illicit substances such as ketamine, cocaine and MDMA, leading to transient psychotic symptoms. He was then diagnosed to be suffering from a polysubstance abuse disorder with drug-induced psychosis.
Mr Michael Arthur, counsel for the defendant, in mitigation stressed the fact that the defendant was remorseful and expressed his remorse to the police who attended the scene immediately after the incident. The defendant maintained that attitude and pleaded guilty today. Mr Arthur informed me that the defendant fully accepted what he had done.
While there was clearly premeditation on the defendant’s part, the period of the premeditation was short, because after the argument the night before, he went out to buy the drain cleaner about 10.30 the next morning.
Mr Arthur asked me to bear in mind the fact that the defendant was young with no previous conviction and the defendant became easily irritable because of his mental condition, which might explain why he had committed this offence.
Mr Arthur asked me to impose as short a sentence as possible as deterrent in this case.
The defendant himself wrote to me expressing his remorse. He claimed to have committed the present offence due to the loss of emotional control after he was assaulted by his brothers. He asked for mercy from this court so that he could re-enter our society earlier and bear responsibility towards his younger brother, the victim.
The defendant’s mother, Madam Wan, had also written to me with the letter co-signed by two other family members. Madam Wan told me that the defendant was bad-tempered and impulsive and did not get along with other family members. Even though she treats all her children on equal footing, the defendant perceived that the family did not love him as much as the others. Madam Wan blamed herself for this tragedy and asks for leniency on behalf of the defendant.
Throwing corrosive fluid with intent to do grievous bodily harm is a serious offence. A person convicted of this offence on indictment is liable to life imprisonment. Understandably, there is no sentencing tariff or guideline for the present offence, as the facts in each case vary so much.
Throwing corrosive fluid can be broadly divided into three categories.
The first one is involving cases of passion, in which a spurned spouse or partner sought revenge by attacking the victim to ensure disfigurement or incapacitation of the victim, such as cases of R v Wong On Lin [1995] 1 HKCLR 224, R v Ngai Kwok Hing CACC 514/1992, HKSAR v Wong Siu Kwan CACC 166/2001, HKSAR v Sin Wa Chiu [2012] 1 HKLRD 768 and HKSAR v Wong Yuk Yee [2013] 3 HKLRD 218. I will have the citations later on in the actual document.
The second category involved cold-blooded attack on strangers for reward, such as the case of HKSAR v Lam Ming Wing CACC 152/2007 and HKSAR v Yu Wai Chiu CACC 300/2000, R v Chan Chi Lun [1989] 1 HKC 70.
And the third category involved assailants who try to injure as many victims as possible by throwing corrosive fluid from a high place, such as the case of HKSAR v Lo Ching Ho HCCC 135/2010.
Although this case involved the revenge of a brother on a brother, I still think that this is more akin to the first category of the cases involving passion, because, clearly, this is not a cold-blooded attack on strangers for reward or throwing the corrosive fluid from height to injure as many people as possible.
I have looked at the cases mentioned in the first category, which already include the authorities brought to my attention by the prosecution and also those brought to my attention by the defence, although I did not particularly mention the Chinese judgment of HKSAR v Wong Sau Lai CACC 283/2000.
As I have indicated earlier, the facts of this kind of cases vary to a great extent, but I think the facts of this case resemble somewhat to that of the case of Sin Wa Chiu.
In that case, the defendant pleaded guilty to throwing corrosive fluid with intent on his ex-wife, the victim. The victim argued with the defendant in the early hours of 25 April 2010. While she was sleeping inside a locked room, the defendant gained entry and said to her, “You go to die.” He then used a bucket to pour two bottles of drain cleaner containing 52 per cent sulphuric acid onto the victim’s face, head and neck. He had kept the bottles in his room for one to two months prior to the attack.
The liquid reached the victim’s arms and left leg and she sustained burns to 14 per cent of her body and underwent multiple debridement surgery with skin graft coverage. She requires further surgery in future. The victim suffered extensive scarring and severe disfigurement, which impaired her eyesight and her ability to eat, breathe and move.
The trial judge adopted a starting point of 18 years and reduced it to 12 for plea. The defendant’s application for leave to appeal against sentence was dismissed. In dismissing the application, Fok JA (as he then was), giving judgment of the court, was of the view that there was no fixed tariff for the offence. A starting point of 18 years was not reserved exclusively for attacks on strangers for financial reward. That was a factor which needs to be taken into account.
In Sin Wa Chiu, the attack was not spontaneously in the heat of the moment, but the defendant transferred two bottles of drain cleaner into a bucket and gained entry to the room, the door of which was latched by the victim and he poured the liquid onto a sleeping victim who was then defenceless and unsuspecting. The Court of Appeal refused to interfere with the starting point adopted by the trial judge.
Now, I will make it clear that I am not suggesting that the circumstances of this case are as bad as those in Sin Wa Chiu, even though the concentration of the corrosive fluid is much higher in this case. I do bear in mind that the defendant simply went out to buy a bottle of drain cleaner. There was no evidence to show that he had particularly chosen one with a higher concentration.
Having said that, it remains a fact that the defendant had poured the corrosive fluid of such high concentration onto his brother.
I bear in mind that the attack was premeditated, although, as submitted by Mr Arthur, the period of such premeditation is not long. The defendant poured the corrosive fluid on his defenceless and unsuspecting brother, which is another aggravating feature of this case.
The photographs taken shortly after the attack show the extent of the burn on the victim’s body. It is, to a certain extent, fortunate that the victim did not suffer any injuries to his eyes when the corrosive fluid was thrown at his face. The injuries suffered by the victim, though serious, was not the worst of its kind. The victim has not fully recovered and has to receive further operation.
I must stress that even though I have used the term “is not the worst of its kind”, I am not suggesting for one moment that it is not serious. It is serious. One can just imagine the pain and anguish he had to undergo and the continuous treatment that he had to receive.
The defendant is a first offender of a very serious crime. While his mental medical condition might have explained why he did what he had done, I do bear in mind that his mental condition resulted from polysubstance abuse. I do not think I can treat the defendant on a par with someone who suffered from mental illness or conditions through no fault or no act of his own. The defendant’s mental condition at the time of the offence does not lessen his culpability, in my view.
Having considered all the circumstances of this offence (that is including the premeditation, the way the act was done, the injuries suffered by the victim and the defendant’s background), I am of the view that a proper starting point is one of 15 years.
The defendant had pleaded guilty before me and is entitled to the full one-third discount.
I do not see any grounds to further reduce the sentence.
For this offence, the defendant is sentenced to 10 years’ imprisonment.
I wish to add that the defendant’s mother should not put any blame on herself for what the defendant had done to the other son.