R. v. CHAN SUNG

IN THE COURT OF APPEAL

1992, No. 270
(Criminal)

HEADNOTE

Charge of throwing corrosive acid and wounding with intent - Plea of Not Guilty - attack by husband upon wife after quarrel over her alleged infidelity - burns and stabs were inflicted - burn marks were not permanent but cut scars permanent. Trial judge took 8 years as starting point which he reduced to 7 years because of clear record. On appeal sentence held to be not excessive.

IN THE COURT OF APPEAL

1992, No. 270
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced two counts: one was throwing corrosive fluid with intent. The particulars of that count were that he on 25th March 1991, at 6th floor, Block B, 34-38 Fu Yan Street, Kowloon, unlawfully and maliciously threw upon TSUI Chi-man a certain corrosive fluid with intent to burn her. The second count was wounding with intent, the particulars of that count were that he, on the same day and at the same place, unlawfully and maliciously wounded the same person, TSUI Chi-man, with intent to do her grievous bodily harm. He pleaded not guilty to both charges and was, after trial before Bewley, J. and a jury, found guilty and sentenced to three years on the first count and four years on the second count. Bewley, J. ordered that those sentences be served consecutively. He now seeks leave to appeal against that sentence.

3. The facts revealed by the evidence given at the trial showed that, on the day in question, the applicant went to the premises where his wife was then living with the son of the marriage. She said that they had a talk about a number of things and that when she came out of the toilet at about 10 o'clock, the applicant grabbed her by the neck and she had difficulty in breathing. She said that she then felt fluid running down from the top of her head and felt a burning sensation which caused pain in her eyes, to her mouth and her face. She was able to see a fluid container with which she was not familiar. She said that she rushed to the kitchen and splashed water on her face to relieve her pain but that the applicant continued to pour fluid over her head. It was put to her in cross-examination that this version was incorrect and that she had in fact tried to drink the corrosive fluid. She denied this and said that the reason she had not been more severely injured was because she was protected by her hair which formed a shield which stopped the fluid injuring her upper head. She said she rushed to the toilet window to call for help but that she was pulled back by the applicant and pushed to the floor. Her son then intervened, pushing at the applicant with his hands and trying to scratch his eyes. This enabled her to rise and run towards the kitchen. She said that at this time the attack was renewed by the applicant with a knife, and that he cut her on the face, on the left and right hand side, on her neck and on her back near her shoulder It is true that the applicant then desisted from the attack but he remained in the flat and, for a time, prevented her from calling for any assistance.

4. The wounds she suffered were detailed by Dr. Tse Man-lee. He said that he saw the victim in hospital on the same day, 25th March and found that she had multiple cut wounds, two 10 cm long wounds on her left cheek, 1 cm wound below the ear, one 12 cm wound on her right cheek, one 6 cm wound on her left shoulder and two 6 cm on the right side of her neck. He said that she had chemical burns on her chest, hair, lips, oral mucosa, neck, shoulder and buttock area. 18% of her total body surface suffered first-degree burns, while there were small islands of second degree burns on the back of her neck and a strip of second degree burns on her back around the waist belt area.

When sentencing the trial judge said:

"You have been convicted of a cruel and premeditated attack on your wife. Not content with pouring hydrochloric acid over her head, you deliberately inflicted 7 long cut wounds on each side of her face and neck. Whether or not you were justified in your suspicion that she was having an affair, your attempt to disfigure her was barbarous and beneath contempt.

She is fortunate in one sense - her ample hair protected her face to a large extent and she is not badly marked from the acid. Some of the burn marks have faded already but the cut scars are very unsightly and she will have to live with these throughout her life.

It is necessary to pass a deterrent sentence in this case. As a starting point, I take 8 years.

You have shown no remorse for what you have done. The only mitigating factor is that you come before me as a man of hitherto clear record. The sentences will be, on the First Count, 3 years' imprisonment; on the Second Count, 4 years' imprisonment and the sentences will run consecutively - a total of 7 years."

In his Grounds of Appeal, the applicant states that his family has been shattered, that the victim, who has, it appears, since the attack divorced him, took away all his belongings including his clothes, that she now has custody of his son of whom he has lost trace, that he lost his home as it has been resumed by the Housing Authority and that he has also lost his job - necessarily as he has been confined. He states also that he has an old mother residing in China. Today he has put forward further matters which were for the most part an elaboration of the matters to which we have just referred. He did so in an endeavour to obtain legal aid, but we were satisfied that this was not an appropriate case in which to make such an order. We do, however, bear in mind all of the matters that have been urged both in the grounds of appeal and in the written submission that was placed before us today.

It is certainly true that these are desperately sad circumstances. We cannot, however, help but observe that some of them are a direct consequence of the vicious attack which he made upon his former wife. None of them in any way justified or excused that attack. The applicant has further suggested that the trial judge was wrong to say that he had no regret. The trial judge clearly meant, when he made that remark, that the applicant had shown no remorse during the trial. He pleaded not guilty and persisted in a defence in which it was suggested that his former wife was lying in her evidence as to the attack made upon her. Finally, the only matter for our consideration is whether or not the overall sentence of seven years was excessive. We are satisfied that it was not. The attack was a vicious one which warranted a sentence of that severity. The application is dismissed.