HKSAR v. CHEUNG CHO FAT

CACC 306/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 306OF 2009

(ON APPEAL FROM HCCC NO. 199 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the reasons for judgment of the Court) ::

Introduction

1.  On 19 June 2009, the applicant, a man in his early seventies, pleaded guilty in the Magistracy to two counts of throwing corrosive fluid with intent to do grievous bodily harm, contrary to s.29(c) of the Offences against the Person Ordinance, Cap 212, and was committed to the Court of First Instance for sentencing.

2.  Both offences arose out of the same incident, both having been committed on 22 January 2009 in a dwelling in a village in the New Territories. In respect of the first count, there was one victim. She was the applicant’s wife, Madam Man Pun Yim, she too being in her early seventies. In respect of the second count, there were two victims, the one being the applicant’s wife and the other, Madam Cheung Kin Fung, a daughter of the marriage.

3.  On 25 August 2009, in the Court of First Instance, the applicant was sentenced by Deputy High Court Judge Mackintosh (as he then was) to a term of four years imprisonment in respect of each offence, the sentences to be served concurrently.

4.  The applicant sought leave to appeal the sentences on the basis that they were wrong in principle and/or manifestly excessive. Having heard submissions, we dismissed the application saying that we would give our reasons later. We do so now.

The grounds of appeal.

5.  In essence, two grounds of appeal were advanced on behalf of the applicant.

6.  First, that the sentences were wrong in principle in that, in coming to his findings as to the factual circumstances in which the offences had been committed, the judge took into account evidential material, namely, a cautioned statement made by the applicant and certain witness statements, that were not properly before the court, determining what to accept and what not to accept without first calling for evidence to be given.

7.  Second, that, by making such impermissable findings and by failing to give proper weight to the matters advanced in mitigation, the judge imposed a sentence that was manifestly excessive.

The agreed summary of facts.

8.  In the Magistracy, when the applicant pleaded guilty to the two offences, he did so acknowledging the accuracy of the summary of facts placed before the court.

9.  Both on that occasion and in the Court of First Instance the applicant had the benefit of legal representation. At no time before the passing of sentence was any application made to amend that summary.

10.  The summary recorded that the applicant and his wife had been married for some 50 years, there being four children of the marriage.

11.  In 2008, as a result of unhappy differences in the marriage, the couple separated, the wife moving out of the matrimonial home and into her own home nearby in the same village.

12.  As to the first count, the agreed facts were as follows.

13.  In the early evening of the 22 January 2009, the wife returned to her home, leaving the front door unsecured. She was cooking the evening meal when she saw her husband, the applicant, standing in the doorway to her kitchen.  She saw that the applicant held two jars containing liquid, one in each hand.

14.  The summary described the liquid as being ‘corrosive cleaner’.  The judge ascertained (with the assistance of counsel) that chemical analysis had revealed that the liquid contained a high concentrate of sulphuric acid amounting to some 88% of the mix.

15.  The summary does not record whether, when the wife saw the husband, anything was said between them. It records only that “suddenly” the applicant “shoved some of the fluid” from the one jar into the wife’s face. The wife cried out in pain and fled towards the toilet.

16.  As to the second count, the agreed facts record that Madam Cheung Kin Fung, the couple’s daughter, was in the house at the time and that, in fleeing, the wife attempted to hide behind her daughter.

17.  The applicant, however, pursued the wife and threw the acid mix from the second jar. The liquid hit the wife and the daughter too.

18.  The summary records that the applicant still remained intent on pursuing his wife but was dissuaded from doing so by the daughter. The applicant then left the house.

19.  After his arrest later that night, the applicant made a cautioned statement saying that there had been an argument over money and claiming that the liquid in the jars had landed on his wife and daughter “accidentally”.

20.  In respect of the injuries sustained by the wife and daughter, these were given in the summary and succinctly summarized by the judge when giving his reasons for sentence:

“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.”

The judge’s reasons for sentence.

21.  The judge made no findings adverse to the applicant as to why he had originally decanted drain cleaning fluid into the two jars, accepting that there may have been an innocent reason for this. However, he rejected the applicant’s claim, made in his cautioned statement and adopted by his counsel, that he had carried the two jars into his wife’s home for no reason other than that he happened to have them in his possession at the time. Recognising that there had been an on-going dispute between the couple over money, he said:

“I infer from all the circumstances that you intended at least to threaten your wife in respect of this on-going 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… intervened, you were enraged because it was none of her business.”

22.  The judge further rejected any suggestion that, while the applicant may have thrown the contents of one jar in the general direction of the wife, he had not specifically aimed at her face. The agreed summary, he said, recorded that he had “shoved” the contents into his wife’s face. More than that, when the wife took refuge in the toilet, the husband pursued her and threw the contents of the second jar at her even though she was then attempting to shelter behind her daughter.

23.  The judge found that the throwing of the acid on not just one but on two occasions was not evidence of a mere momentary loss of composure in the heat of an argument. To the contrary, a “determined attack” had taken place.

24.  In respect of the daughter, the judge said:

“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.”

25.  In assessing the applicant’s moral culpability, the judge said:

“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.”

The first ground of appeal.

26.  As we have said, the first ground of appeal was to the effect that, in determining the factual circumstances in which the offences had been committed and in assessing the applicant’s culpability, the judge made reference to and relied upon the contents of the applicant’s cautioned statement and certain witness statements which were not properly before the court, making his own findings as to what matters to accept and what to reject without first hearing evidence.  It was argued that, in the main, the evidential material assessed by the judge was contained in the cautioned statement. The submission was made that, if the judge wished to rely on that material then a Newton hearing was required. But none was held.

27.  With respect to Mr. Leung, the applicant’s counsel, that ignores the history of the sentencing proceedings which consisted of two separate hearings.

28.  At the first hearing, in advancing mitigation, applicant’s counsel put before the court a version of events that materially modified and was at odds with the agreed summary. In so doing, counsel made constant reference to claims made by the applicant in his cautioned statement, seeking to rely on those claims.

29.  In summary, it was said that the applicant stepped out of his house that evening in order to attend to some domestic cleaning. That was why he had decanted the drain cleaner into two jars. He was at that time a little under the influence of drink, having had some red wine. When he stepped out, he saw his wife entering her home and decided to follow her in order to ask for some money to tide him over the Lunar New Year. Despite the separation, it seems that the wife still controlled the finances. Perhaps because of the influence of the drink, the applicant did not think to put down the two jars and simply carried them with him. Inside the house, an argument ensued and in a state of agitation the applicant threw the contents of one jar in the wife’s general direction but without in any way aiming for her face. The daughter, who must have been present, then retaliated by throwing boiling water at the applicant.

30.  The judge was not prepared to accept these claims on the basis only of submissions made from the Bar table. In a number of respects, they were both at odds with the agreed summary and, as the judge intimated, appeared to be wholly implausible. The opportunity was therefore given to counsel to call evidence in support of the submissions he had made.

31.  It is to be remembered that, in seeking to advance these matters of evidence which differed from the agreed summary, the burden lay on the applicant, a burden to be discharged on the balance of probabilities.

32.  It was therefore agreed that, in order to give time to counsel to consider whether there should be a Newton inquiry, there would be an adjournment.

33.  At the resumed hearing, however, counsel advised the court that he was instructed not to seek to call evidence either from the applicant himself or from any other witness. Nor was any application made to amend the agreed summary of facts. Accordingly, the summary – the basis upon which the applicant had pleaded guilty – remained unchallenged.

34.  This result placed the judge in difficulties. In anticipation of a Newton inquiry, and on the basis that at the first hearing applicant’s counsel had placed so much reliance on the applicant’s cautioned statement, he had quite properly read that statement, it being part of the committal bundle.

35.  An issue of prime importance in determining an appropriate sentence was the issue of premeditation: was the attack on the wife planned in any way or did it arise in the heat of the moment?

36.  The applicant’s counsel, although he did not seek to call evidence, persisted in the submission that there had been no premeditation and that the applicant had carried the two jars of drain cleaner into his wife’s home simply because he happened to have them in his physical possession at the time.

37.  It is axiomatic that whenever a court is to sentence an offender it should do so on a basis, which so far as it is relevant, is true: see R v Beswick [1996] 1 Cr App R (S) 343, at 346.  This clearly was what the judge now attempted to do. He could not simply ignore the issue of premeditation.

38.  In order to understand the nature and scope of the submissions made on behalf of the applicant concerning premeditation, the judge summarised what he understood to be the applicant’s position as reflected in the cautioned statement and obtained the unequivocal agreement of the applicant’s counsel that this remained the applicant’s position.

39.  That did not mean, however, that the judge was thereby obliged to accept the applicant’s version in its entirety or at all. The principle has been succinctly stated by Stock JA in HKSAR v Yee Yiu Sam [2002] 3 HKC 21, at 29:

“Where, after a guilty plea, a version is put forward which is clearly implausible, then a judge is not bound to hear evidence; nor is he bound to do so where a choice between the two versions will make no practical difference to sentence.”

40.  The judge rejected as clearly implausible the applicant’s contention that he just happened to be outside his own house intending to do cleaning work with the jars of drain cleaner when he saw his wife enter her own home and just happened to carry the two jars into her house when he decided to speak to her about money and did so without any intention of using them in any way.

41.  The judge’s finding, in our view, was inevitable. Considered in the light of the events outlined in the agreed summary of facts, the applicant’s contention that he carried two jars of acid into the wife’s house in all innocence was fanciful.

42.  But, while the judge rejected that contention, he was prepared to accept a number of matters going to the issue of premeditation which stood to the applicant’s advantage. He did so on the basis that these matters did not amount to a contradiction of the prosecution case as outlined in the agreed summary of facts but explained the background to the commission of the offences in a way which stood to lessen the applicant’s culpability.

43.  First, he accepted that originally the applicant may have decanted the drain cleaner into a number of jars intending, as the applicant had said, to use the liquid in due course for purposes of domestic cleaning. Second, he accepted that, when the applicant followed his wife into her house, he may not have intended to do anything more than display the jars and their contents in a threatening manner. In this latter respect, in his cautioned statement the applicant had made mention of seeking only to threaten his wife not to injure her.

44.  In short, although the contrary was an inference that could be drawn from the agreed summary of facts, the judge accepted – in favour of the applicant – that, when the applicant entered his wife’s house, it could not be said that he had the settled intention of committing the offences to which he pleaded guilty.

45.  The judge further found that, before throwing the contents of the jars at his wife, the applicant had been in a state of considerable anger, a fact which the applicant’s counsel himself had put forward in mitigation.

46.  What then were the substance of Mr. Leung’s submissions as to the impermissible use of evidential material by the judge? 

47.  Counsel spoke of three references to the cautioned statement made by the judge. First, there was the reference in the cautioned statement to the innocent reason for decanting the drain cleaner into the two jars. But, as we have said, that was accepted by the judge and stood not to the prejudice of the applicant but to his advantage.  Second, there was the reference in the cautioned statement to the fact that the applicant, on his own admission, was in a state of agitation when the incident took place. But that too, when read in context, stood more to the applicant’s advantage than to his prejudice, it being evidence that the attack itself was not a pre-planned, calculated one. In addition of course, in advancing his mitigation, counsel had spoken of the applicant, in the course of the confrontation with his wife, becoming highly agitated. Third, there was the admission made in the cautioned statement that the applicant had held the jars in a threatening manner and had then thrown the contents.  The throwing, of course, had never been in dispute; the applicant, by his pleas of guilty based on the agreed summary of facts, had admitted that fact. As for the holding of the jars in a threatening manner, that formed part of the applicant’s contention that his initial intent had been to do no more than threaten his wife and not to harm her.

48.  We would add that, in an attempt to further his submissions, Mr. Leung spoke of that part of the applicant’s cautioned statement in which he claimed that the discharge of the contents of the jars over his wife and daughter had been “accidental”. As counsel put it, if the judge was to make findings of fact without hearing evidence, why did he not consider this? The answer is self-evident. He did not need to consider it because it was no longer in issue. Whether the actions of the applicant had been “accidental” went to the issue of intent and intent had been admitted. It had been admitted in the applicant’s guilty pleas and in his acceptance of the agreed summary of facts.

49.  In the circumstances, bearing in mind that the judge in all respects explained his concerns to counsel before coming to any determination, we do not see that he can be criticized. He proceeded in accordance with well-established principle. Indeed, in our opinion, the judge’s reference to the cautioned statement, made not in any way to determine a contested version of events as to the essential ingredients of the two offences but only to seek to better understand what brought the applicant to commit offences of such a potentially horrifying nature, worked more to the applicant’s advantage than against it. On a reading of the agreed summary of facts alone, the culpability of the applicant appeared graver than the judge found it to be.

50.  There was one further matter raised by the applicant’s counsel which he said constituted an impermissable reliance on evidential material not properly before the court.

51.  In mitigation, several letters had been placed before the court. One was from the wife saying that she had forgiven her husband and hoped to be able to reconcile with him. There were others from the applicant’s two sons and the village chief setting out the applicant’s general virtues as a father and member of the village community.

52.  In respect of the wife’s letter, the judge said:

“Of course such a letter is important in determining where the starting point of the sentence should be, but I must make it 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.”

53.  In respect of the letters from the sons and the village elder, the judge said:

“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.”

54.  The witness statements made by the two sons were less than flattering and in that respect at odds with their later letters.

55.  Counsel’s objection was to the reference made by the judge to the witness statements made by the sons. These statements, it was argued, were not properly before the court.

56.  The witness statements however were in the committal bundle. They had been referred to by the applicant’s counsel. It was not disputed that the judge was entitled to look at them.  He could not therefore, to use the phrase employed by counsel for the respondent, “turn a blind eye” to those statements, not if he was to seek to determine sentence on a basis that, as far as possible, reflected the reality of matters.

57.  Considered in context, it is to be emphasized that the fact that the crimes were committed in a domestic context and that both the wife and the sons now sought to minimize the applicant’s punishment was a matter to which the judge could give only limited weight. In this regard, we can do no better than cite the observations of Bridge LJ in R v Buchanan (1980) 2 Cr App R (S) 13, at 15:

“It is always sad when a case of this nature comes before this court, where an offence of gross violence has been committed in a purely domestic context. It is by no means an unusual feature of such cases that the victim, after the event, has entirely forgiven the offender and is anxious to minimise the punishment he must suffer. It is sometimes suggested… that because the offence occurred in a purely domestic context, it was a matter of purely domestic concern. That is a wholly erroneous view and one which no court can entertain. When such offences of violence are committed, whoever the victim may be, the matter is inevitably one of considerable public concern. The courts cannot regrettably be deflected from their duty of imposing sentences appropriate to the gravity of the offence when crimes of violence of this nature are committed against a domestic background.”

58.  In addition, as the judge correctly observed, because of the need for deterrence in imposing a sentence in respect of crimes of this nature, little weight could be given to the letters. In short whether he accepted the letters from the two sons at their face value or not was going to make no practical difference to the sentence to be imposed. In such circumstances, there was no need for a Newton inquiry on this limited issue.

59.  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 abhorrence by right thinking members of society. Almost always, as in the present case, the person’s face is chosen as the principle target, the inevitable intent being to disfigure in a permanent and grotesque way.  As was said by this court in R v Wong On Lin [1995] 1 HKC 659 at 662:

“The seriousness of the offence is reflected in the maximum sentence which the court may pass, that is to say, life imprisonment… A deterrent, and a strongly deterrent, sentence is inevitably called for. Only in the most exceptional circumstances can an offender of this type expect to avoid a long period of imprisonment.”

The second ground of appeal.

60.  This ground went to the length of the sentence imposed. It was argued by Mr. Leung that the starting point of six years, reduced by one third to four years to take account of the pleas of guilty and other mitigation, was in the circumstances manifestly excessive.

61.  The judge, it was submitted, had erred in failing to give greater weight to the wishes of the applicant’s family. The applicant and his wife had been married for over 50 years. The wife had forgiven the applicant and wished to reconcile with him. The sons too wished to have their father home as soon as possible.

62.  We have already spoken of the letters from the wife and the sons and why, although the judge gave greater consideration to the letter from the wife, he was only able to give limited weight to the petitions for mercy put before him by the family. In this regard, the judge acted in accordance with established sentencing principles.

63.  As the judge recognised, determining an appropriate sentence in respect of crimes of this nature is fact sensitive: hence the meticulous exercise conducted by him to try and get somewhere close to the reality of what drove the applicant to commit the offences.

64.  In HKSAR v Wong Siu Kwan (unreported) CACC 166/2001, a judgment of this court in which earlier sentences for crimes of throwing corrosive fluid with intent were reviewed, the court observed that in crimes of this nature, especially when set in a domestic context –

“The range of facts of each case will vary greatly as to the nature of the attack and its motives, the mindset of the attacker, the spontaneity of the attack or, conversely, the degree of planning, how real and specific was the intent to cause injury, and no doubt a host of other pertinent features which may have a bearing on the degree of culpability.”

65.  Having considered the circumstances relevant to the commission of the two offences by the applicant, and having acknowledged that the gravity of the offences was demonstrated by the fact that the law provided for a maximum sentence of life imprisonment whether injury was caused or not, the judge determined that a starting point of six years was appropriate. In doing so, he took into account the determination with which the applicant pursued his attack, he further took into account the fact that there were two victims and that both had been splashed with acid to the face and neck, greatly raising the risk of disfigurement and loss of sight.

66.  He did not consider that there were pressing matters of mitigation meriting a discount greater than one third.

67.  In HKSAR v Wong Siu Kwan (supra), as we have said, the court conducted a review of earlier sentences. In respect of offences of this nature, as the court itself recognised, such an exercise must be of limited value. Nevertheless, for present purposes, reference to cases mentioned in that judgment in which the crimes were committed in a solely domestic context, reveals that the sentence passed in the present case was not in any way at odds in its degree of severity with the cases cited in that judgment.

68.  By way of illustration, in R v Wong On Lin (supra), the husband, believing that his wife was having an adulterous relationship, poured toilet cleaning liquid containing sulphuric acid over her face. The wife was left badly disfigured and emotionally traumatised. After trial, the court chose a starting point of 15 years imprisonment, reducing it by two years to take account of certain matters of mitigation. The Court of Appeal considered the sentence of 13 years to be entirely proper.

69.  The applicant herself in HKSAR v Wong Siu Kwan, being in a desperate emotional state over what she believed to be the collapse of her marriage, and under the influence of medication, threw a very small quantity of acid at her husband, the acid being contained in a small pill bottle. There was evidence that the amount she chose to throw was deliberately small. The court considered that a proper starting point in that case should be five years, just one year less than the starting point adopted in the present case.

70.  In the present case it is to be remembered, the applicant threw the contents of two jars, pressing home his attack and injuring his daughter too. The circumstances of the present case were graver than those presented in HKSAR v Wong Siu Kwan.

71.  In the present case, in our view, the sentence imposed of four years was entirely appropriate.