CRIMINAL CASE NO. 199 OF 2009
COURT: Cheung Cho-fat, you are to be sentenced now for two offences of throwing corrosive fluid with intent to cause grievous bodily harm. You have pleaded guilty to the two charges in the Magistrates’ Court and have been committed for sentence.
This sentence hearing today is an adjourned hearing because it appeared on the last occasion that you were disputing significant elements of the facts which might have had an impact on the proper approach to sentence. Thus the sentencing process was adjourned to allow for any evidence to be called. But in the event neither the prosecution nor you wish to call any evidence, and so you are to be dealt with on the basis of your pleas, the admitted facts and those elements of the committal papers to which specific reference has been made during the course of this hearing, and in respect of which there is no significant dispute.
At about 6.15 pm on 22 January 2009, you approached your estranged wife - who is aged 71 - in her home, which was in a village in the New Territories where you both lived, Shun Fung Wai. You were living in two separate houses in this village so you had no business to be in her house at the time. The door had been left unlocked, and you suddenly appeared. It is clear that there had been a dispute between you over money matters, which may have been going on for some time, but there is no evidence that the dispute was actually in progress at the time you went to her house.
It is, however, clear that you were angry with her in respect of her refusal to give you money for the upcoming new year holiday. You were in possession of two glasses containing drain cleaner, which was, as the chemist’s analysis shows, made up of sulphuric acid in a concentration of at least 88 per cent. The glasses were capped by tin foil, which was held in place by rubber bands. You said to the police that you had put it in those glasses because it was easier to pour it into the drains. You had other such glasses of acid at your home. I make no judgment about why the acid was in the glasses. The fact is that you had it with you, transported, you said in your interview, in a paper bag; and you were angry.
I infer from all the circumstances that you intended at least to threaten your wife in respect of this ongoing dispute, even if you had not gone to the premises intending to throw it at her. However, you said in your interview that you were “in great anger” at the time of this incident, and that when your daughter, the second complainant, intervened, you were enraged, because it was none of her business.
The admitted facts show that you suddenly “shoved” some of the contents of at least one of the glasses into the face of your wife. In your interview, you admitted that you had thrown the liquid (item 520 refers). You said that you had held the glasses in a threatening manner, hoping to get her to change her mind about the money. But that is not what you have admitted in the facts, which refer to a sudden action in throwing the fluid at your wife’s face. It is to be noted that you must, at some point, have removed, or torn open, the tin foil cover on both of these glasses containing the acid: I do not treat this as an attack which was done simply in the heat of an argument between the two of you in her house.
It is inevitable, in my judgment, that you knew that throwing this fluid at your wife’s face could cause her grave injury, particularly to her eyes. The charge you have admitted includes the element of an intent to cause really serious bodily harm. You knew the result of your actions would be extreme pain, that it would cause burns to her skin, that it may even damage her sight. You must have been driven at the time by an intense malice towards her. You threw it at her face, the most vulnerable part of her body, the place where it would have the most impact, where it would probably cause disfigurement.
This was a determined attack. You went into the flat with two containers. You followed up the initial attack, after she fled to the washroom and hid behind your daughter. You chased her and threw the contents of the other container of corrosive fluid. It must be accepted that you did not want to harm your daughter who stood between you and your victim, but you could not care less about her welfare, throwing the second lot of acid at your wife so that it splashed onto both of them. The witnesses speak of their clothes smoking when splashed. The consequences are described in the medical report and shown in the photographs.
Your wife suffered injuries to her face, her left and right eyelid, and her arms. These were second degree partial thickness burns. She was admitted to hospital for four days. The photographs illustrate a moderate degree of burning to those areas. More recent photographs show residual marks and scars, but not great disfigurement. Your daughter suffered first degree burns to her neck and arm. They were not blistered and have healed reasonably well. She was not detained in hospital.
Of course when you threw this corrosive fluid, intending to burn your wife, and reckless as to your daughter’s welfare, you did not know what the results would be. But the consequences are, as has been said in other courts in other cases, largely fortuitous. However, the degree of injury caused is a relevant factor in sentencing you, just as it is a relevant factor in cases of wounding with intent to cause grievous bodily harm.
It is obvious that in a case of throwing corrosive fluid, which causes very serious injuries, that the sentence will be enhanced to match those injuries. Where, as here, the injuries, though serious, are not of the utmost gravity, then that too should be reflected in the sentence. The disputes which you claim lay behind this attack are utterly irrelevant. Even assuming there to be substance to what you say, no degree of marital discord could ever begin to justify such conduct. The gravity of this crime is demonstrated by the fact that the law prohibiting it provides for a maximum life sentence, and that such a sentence applies whether injury is caused or not.
What then is the mitigation? Your plea of guilty is the foundation for it. You have accepted that you did wrong, and you pleaded guilty at the first opportunity. You have been married to the first complainant for nearly 50 years and have four children. Your age, 72, is of little relevance. If you were of extreme old age the court might have some regard to that. Previous decisions of the courts show a reluctance to allow elderly offenders to derive benefits simply from their age. I might add that I am assured on your behalf that you were not acting under any form of senile dementia.
I have received letters, including one from your wife, in which she says that she has forgiven you for your attack upon her and does not want you to go to prison, that she wants to reconcile with you, and, as it is put, live happily with you. Of course such a letter is important in determining where the starting point of the sentence should be, but I must make it very clear that the sentence in cases such as this must carry a significant element of deterrence. In other words, it is the duty of the courts to deter people from acting in this gravely dangerous manner in the course of marital or other disputes, so the weight to be given to expressions of forgiveness by the victim is extremely limited.
I also have letters from two of your sons and the village chief, setting out what are said to be your virtues and qualities as a husband and father. However, as has been made clear during these proceedings, such claims are not wholly consistent with what has appeared in the witness statements, and I can give little weight to them.
Your mitigation leads to a discount of one-third on the sentence which would have been imposed upon you after trial. It is a question of judgment as to what that sentence would have been in this case. I should say that I treat these two charges as one event, for which concurrent sentences should be imposed. I do not understand the decision of the Department of Justice to put them into two charges. I look at the incident as a whole.
In my judgment, the sentence before mitigation should be one of 6 years’ imprisonment, given the determination with which you pursued the attack, given the fact that two members of your family were involved, and given the potentially ghastly consequences if the sight of either of them had been affected or if they had been severely disfigured. I therefore reduce that by one-third to 4 years’ imprisonment.
By way of further explanation rather than sentencing remarks to the accused, I add that I have been referred to an unreported decision of the Court of Appeal, a case called Wong Siu Kwan, CACC166/2001, which also related to a domestic case of throwing corrosive fluid with intent. Of course for the purposes of sentence, this type of offence is particularly fact sensitive, as indeed was said in that case. Looking at the length of the sentences imposed in previous cases, it is of limited value in determining where the starting point for sentence should be pitched. This is essentially a question for the judgment of the court in the circumstances of the offence at hand.
In Wong Siu Kwan a number of previous cases were reviewed, though some of them related to situations where the defendant was being paid to launch the acid attack. That has absolutely no relevance to the case before me now. Sentences in double figures even for domestic attacks have been held not to be manifestly excessive. In that appeal the facts relating to the attack were closely examined by the Court of Appeal, and the views of the victim in a letter apparently written by him were given significant weight. The victim appears to have been treated as being in part the author of his own misfortune. I might say that the reference in paragraph 26 to Kwok Yee, William, CACC452/1993 is erroneous. It should be Sung Chin Pang, CACC548/1994, a kidnapping case.
As I have said, there must be a significant element of deterrence in the approach to sentencing in these cases. In this case I am not willing to accept that the victim was in any way responsible for what happened to her or to her daughter. Nothing to that effect appears in the papers. In Wong’s case, a starting point of 5 years was taken, which was discounted by 60 per cent to reflect the mitigation held to be available in that case. In this case the mitigation does not justify any departure from the customary one-third discount.
The sentence is 4 years’ imprisonment, concurrent on each charge.