COURT: The defendant pleaded guilty to one count of throwing corrosive fluid with intent to do grievous bodily harm, contrary to section 29(c) of the Offences against the Person Ordinance, Cap 212, before the Eastern Magistrates’ Court on 13 September 2021.
The Summary of Facts which forms the basis of plea was read out and agreed by the defendant, save for the fact that he denies deliberately obstructing the corridor outside of his flat. He is formally found guilty upon that plea.
The defendant lived in Block 8 of Po Tin Estate in Tuen Mun on 21 November 2020, as did his victim, Shum Chi-shing. They were neighbours with their respective units sitting opposite each other within the same corridor. They did not get on with one another. It was not one-sided, although the defendant wishes the court to believe that he was the victim of harassment by PW1.
One subject of dispute arose over the fact that the defendant placed his wheelchair in the corridor outside of his flat which caused an obstruction to others. There had been complaints by the victim to both the management office and the police in the past about the behaviour of the defendant. This had escalated by mid-2020 into an assault by the defendant upon the victim in mid-2020 which resulted in a suspended sentence of 1 month’s imprisonment and a $2,000 compensation order being made on 20 November 2020, the day before this attack.
I understand that the defendant had assaulted the victim with a hammer at the time but given the sentence, I can only presume no physical harm ensued on that occasion. I am told by Ms Lau that he had the hammer in his hand because he was fixing his wheelchair and when his neighbour berated the female security officer for not ensuring that the defendant placed his wheelchair inside his flat, he came to her rescue and waved the hammer at PW1.
This was not the only friction documented between the two men but clearly the date of sentence for the common assault indicates that it was the trigger for the attack now before the court, even though the defendant has not suggested that this was the case.
Although it pales in comparison, the suspended sentence for the common assault will have to be activated as a result of this offending.
On 21 November 2020, the victim was returning to his flat when the defendant splashed him with sulphuric acid from behind. The defendant maintains he did so because PW1 once more mocked him and laughed at him. He says he was cleaning out his urine pot at the time while seated at the open door to his flat and was sitting in his wheelchair. The acid in the pot was particularly strong acid. It had a concentration of some 73 per cent. It is the type of mixture which is used to clear serious blockages in drains. He says he used it as a disinfectant to clean out the pot. I do not accept that.
He threw the acid over the victim when his back was turned towards him. When the victim turned, he saw the defendant bottle in hand and laughing. Despite having been attacked from behind, there was sufficient acid thrown over him to make contact with the victim’s head, eyes, neck, the front and back of his body, his arms and legs. 18 per cent of his body suffered third-degree burns.
He was treated initially at Tuen Mun Hospital and then at the burns unit of the Prince of Wales Hospital. He was finally discharged from 18 December 2020. The photographic bundle speaks volumes about the harm the defendant caused. The victim is badly scarred around his whole neck and down the front of his body. The right side of his face now has a number of long keloid scars and his hand and lower arm showed extensive permanent damage as does his right leg and foot. That is not the only damage but it is the most significant.
The pain he must have suffered at the time of this attack would have been unbearable and the further pain suffered in the ensuing weeks would have been significant. He is scarred for life as a result of this cruel and malicious attack.
This is an offence for which there is no formal sentencing guideline. It is a fact-sensitive crime. The crime of throwing corrosive fluid with intent to burn and inevitably disfigure is an extremely serious offence. Not surprisingly, the courts have used very charged language such as vile, vicious, sickening, horrific, hideous and wicked to describe its commission. Those are apt descriptions to be used here.
Consistent with the way society regards this crime, the legislature has determined that the maximum penalty for the offence should be life imprisonment. The Court of Appeal in HKSAR v Lau Ching Him observed:
“...the harm caused by the offence can be so horrific with appalling long term, and frequently whole of life, consequences to the victim. Thus, the courts have emphasised the importance of the sentencing principles of denunciation, deterrence and punishment. In R v Chan Chi Lun, Power JA in giving the judgment of the Court of Appeal said: ‘In offences of this kind the deterrent effect of a sentence is, perhaps, of larger moment than in any other class of offence.’
The need to accommodate these principles will inevitably mean that the principle of rehabilitation will be relegated to a much less prominent role in the determination of a just sentence. The importance of giving proper allowance, indeed emphasis, to the principles of denunciation and deterrence will inevitably result in severe sentences.”
As was stated in Lau Ching Him, it is often pointed out that the maximum sentence for this offence is life imprisonment and this is an indicator of how serious the legislature view this conduct when enacting the offence. This is not surprising, given that the mens rea for the offence is an intent to do grievous bodily harm and that the actus reus by which this is to be achieved is by the throwing of corrosive acid. This actus reus will cause permanent disfiguring injuries in whose treatment modern medicine is still struggling to cope.
“Another indicator of how serious the legislature viewed the offence can be found in the way it specifically mentioned that no actual harm need result from the conduct. Criminal liability is imposed simply upon the commission of the actus reus accompanied by the necessary mens rea, irrespective of ‘whether any bodily injury is effected or not’. Consequently, the offence will always attract severe sentences, whatever may be the outcome to those affected by its commission, though, of course, the outcome will always be relevant to the assessment by the sentencing judge of the seriousness of the offence and the culpability of the offender.”
Being fact-specific, there are a range of situations which may attract similar sentences but for wholly different reasons. It does not therefore assist the court to be referred to situations wholly dissimilar to the facts at hand and suggests that because the situation is different to the one before the court, the sentence for this case cannot be the same.
Although a section 29(c) offence can attract a sentence of life imprisonment, the courts in Hong Kong have thus far marked the most serious cases as deserving of a starting point for sentence in the order of 18 years.
In HKSAR v Fok Ka Po and Others, the Court of Appeal said:
“Nor should it be thought that a starting point of 18 years’ imprisonment represents a ceiling for an offence of this character, simply because it so far represents the highest sentence passed for this offence in this jurisdiction. As we have pointed out, the maximum sentence is life imprisonment and one can well envisage, depending on the circumstances and the gravity of the nature and extent of the injuries to the victim, that the starting point could be greater than 18 years’ imprisonment.”
In HKSAR v Yu Wai Chiu, CACC 300/2000, the defendant threw sulphuric acid over a 44-year-old woman who suffered third-degree burn over 18 per cent of her body. There was no connection between them. He did not know her. He did so for a reward. His appeal against a sentence of 18 years’ imprisonment was dismissed.
The court in Sin Wa Chiu similarly held that there is no fixed tariff or bracket for this offence and a starting point of 18 years is not reserved exclusively for cases involving attacks on strangers for financial reward. The latter fact may be an aggravating factor in determining sentence but the appropriate sentence for the offence depends on the facts and circumstances of the particular case, including the obvious factor of the extent of injuries and the suffering of the victim.
These are but a few examples of cases where the Court of Appeal has confirmed its view that the throwing of acid upon our fellow citizens, no matter what the relationship, will attract a substantial sentence.
The defendant is 58 years old. He was born and educated on the mainland. He came to Hong Kong in 1979 and settled here. He was married with two children. He worked as a waiter. At the time of the offending, he was divorced and living alone in a flat on CSSA. He was partially invalided as a result of an accident and needed a wheelchair to get around.
Ms Lau has informed the court that he had an operation on his spine in 2019 which was not successful and is wheelchair-bound although he can live on his own independently. She confirms that the defendant and Shum disliked one another and suggests that had been the case for some time, although her instructions indicate that the defendant felt as if he was the aggrieved party. I do not believe he has any remorse for PW1.
This offending occurred as a result of a long-running dispute with the defendant’s neighbour Shum Chi-shing but the severity and the seriousness of this attack far outweighs any normal personal grudge. Given the defendant’s heretofore good character, save for the earlier common assault against the same man, I fail to understand how this dispute escalated into such a truly wicked attack with the defendant clearly enjoying the moment.
The victim, of a similar age, will be scarred for life and he will be in pain for the rest of his life. The scarring, especially that to his neck will affect his everyday mobility. He is likely to require further medical supervision in the future and indeed for the rest of his life. The defendant is a clear risk to the community if he cannot be trusted to control his temper and his reaction to disharmony is to resort to violence of such a horrific sort.
The harm that has been caused is significant and life-long. This was not a single attack as the defendant had previously threatened the victim with a hammer. I will deal with that later.
The defendant’s actions were premeditated and quite simply spiteful. He was seeking revenge for his prosecution. He was in possession of not one but three bottles of sulphuric acid in his flat. He had poured some of that acid into a men’s urine specimen bottle, no doubt in an attempt to avoid detection whilst in the corridor as he lay in wait for his victim but also to avoid causing harm to himself. The bottle has a wide neck. Throwing a liquid out of it would cause a wide target area as indeed we know was the case. He wanted to cause as much harm as possible to the victim.
Mr Shum was extremely lucky not to have been blinded. But most importantly, the defendant laughed as he watched his victim suffering from the acid on his body and has no answer for why he did so. He did nothing to help and showed no remorse. There is no mitigation available to him.
For the reasons given above, I believe that 18 years is a just sentence in all the circumstances of this case, taking into account both the offending and the offender. The defendant is of course entitled to a full one-third discount for his plea of guilty to this offence at an early stage which would make a sentence of imprisonment of 12 years.
The suspended sentence of 20 November 2020 must be activated in the circumstances of this case where the defendant came back from court and must then have set about preparing his revenge upon the victim. I see no reason at all in not activating that sentence in full to be served consecutively to the sentence now before this court, making a total sentence of imprisonment of 12 years and 1 month.