LUK SO NGAN v. R.

1996, No.116
(Criminal)

IN THE COURT OF APPEAL

-----------------------

J U D G M E N T

-----------------------

Nazareth, V.-P. (Giving the Judgment of the Court) :

1. On 4th January this year, the applicant pleaded guilty in the High Court to one charge of unlawfully and maliciously throwing corrosive fluid with intent to burn. At the request of her Counsel at the trial, Ryan, J. who was dealing with the case deferred the sentence pending psychiatric reports. These were duly obtained and tended to confirm the substance of the applicant's version of events which led her to throw the corrosive fluid on the wife of her former lover. Ryan, J. very fairly summarised the facts in the following way in sentencing the applicant. He said this :

"... the Crown concedes that sentencing must now proceed on the basis that the injuries are not of a permanent nature.

The charge is of course a very serious one as is reflected in the maximum sentence which this offence can attract, namely, a term of life imprisonment.

The very brief facts are that the defendant, a resident of Mainland China, had been in a relationship with a Hong Kong man who was married and the reports show that as a result of the unsatisfactory nature of this relationship she had got into a very depressed and emotionally unstable state. She had, in an endeavour to resolve the problem, come to Hong Kong using false papers, her intention being to confront her lover. She was unable to do this as he took steps to avoid her and this clearly increased her agitation and depression.

On the day of the incident, with the intention of bringing matters to a head, she purchased sulphuric acid and went to the address of her lover who by then had clearly become her ex-lover."

"At the address, she was unsuccessful in her attempt to see the lover but did see his wife and son come out of the building and decided to follow them.

This led to a meeting between her and the wife and I don't doubt that the victim was annoyed by the presence of this hysterical woman as I may say she was entitled to be. The unfortunate result of this meeting was that the defendant threw the acid at the victim.

I accept, as I have said, that she was in a very depressed and emotionally unstable state and I also accept that she did not have the intention of causing facial injury to the victim in that she intentionally threw the acid on to the unfortunate lady's back.

The photos taken at the time show that the corrosive fluid did cause some nasty burning but that was sometime ago and as I say I'm proceeding on the basis that no permanent damage of a serious nature has been caused.

The reports I have have been very helpful and while it has to be said that this type of offence usually or not unusually involves a disgruntled spouse or lover, there are aspects of this case which are matters that need to be taken into account in mitigation.

I accept that she had been badly treated by her ex-lover and that the long term effects of this treatment were that she was in this depressed and emotional state. I take this into account.

She is a young lady, 29, who has a clear record. She has pleaded guilty and her intention was to cause injury but not to cause injury to the victim's face - and I accept, as I have said, that the injuries are not of a permanently disfiguring nature.

This I find a very difficult case to decide the appropriate sentence. The bare facts of the case would justify a term of imprisonment of about eight years; but, after taking into account the matters that I have referred to I have decided to reduce that to a period of four years' imprisonment. I appreciate that might seem low by the usual standards of sentences for offences of this kind, but the facts and the mitigating features in my view justify that reduction."

2. In her notice of application for leave, the applicant said this :

" I hope that consideration would be given to my feeble, disease-ridden and critically sick parents in Mainland China and to the fact that I am a pitiable victim, and be given a chance to appeal against sentence, so that I can return home at an earlier day to look after my aged and critically sick father (who is suffering from post-surgical sequelae)."

3. In her letter last month to the Court, she makes the point that she is very regretful about committing the wounding offence. She says it was committed on the spur of the moment without bearing in mind of the consequences. Her youthful days had been ruined by a despicable man who cheated and forced her. What is more, she learnt that her boyfriend was married with children after her arrival in Hong Kong. That deepened her sadness and wrath. As a result, she suffered from a lapse of self-control and committed the offence of wounding. During the hard days in prison, she says, she has further realised that she was very wrong. She is very regretful. She deserved the punishment, but she hopes the Court would feel pity for her, understand that she is also a victim, and take into consideration her dire condition; left here behind bars alone in Hong Kong, she is suffering unbearable anguish. Her parents are in Mainland China. They are old, suffering from serious illnesses with nobody to take care of them. She asked for a reduction so that she can turn over a new leaf and go home to her native place to take care of her parents.

4. Her parents' letter dwells upon how her ex-lover, a person who was in some authority in the Government and got her a job, exploited and victimised her in her youthful days and that it was really his despicable conduct that caused her to wound another person.

5. Virtually, all these matters were brought to the attention of the judge. The psychiatrist and the clinical psychologist, who looked carefully into the matter and did indeed accept most of her versions of her actions and the offence, outlined these matters in some detail for the judge, including the sense of grievance she had about the sort of treatment she received from this ex-lover of hers. The judge gave those matters careful consideration including the fact that her parents are aged and that her mind was disturbed. The clinical psychologist in particular referred to that.

6. In consideration of all those matters, the judge settled upon a low starting point of 8 years, that was a generous starting point, understandably because the judge had regard to the mitigating circumstances and the nature of the offence, but he then gave her a reduction of 50% for the mitigating circumstances mentioned, bringing the sentence down to 4 years. He rightly recognised this might seem to be low enough by the usual standards to warrant the explanation he gave.

7. At the end of the day, the applicant's case is a plea for mercy and indeed one cannot but have considerable sympathy for her. However the Court has also to consider the other usual considerations in assessing sentence. This was a serious offence. Such offences of throwing acid have always rightly attracted heavy terms of imprisonment. While it is true that the sentence of 4 years is substantial, it is one that has been very considerably reduced and in the end there is simply no justification to reduce the sentence further. Although we have sympathy for her, we have to refuse her application for leave to appeal against sentence.

8. I would add a matter I omitted to mention, that is that the victim was totally innocent. In fact, she is a double victim having first had to endure what could only have caused pain to her in what her husband did to this girl. She now also has to bear the injuries she sustained.