HKSAR v. LI MAN WAH

DCCC58/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 58 OF 2012

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to an offence of causing grievous bodily harm with intent, contrary to section 17A of the Offences Against the Persons Ordinance, Cap. 212.

2.  You admitted that, on the 16th day of October 2011, inside the kitchen in Tanyoto Hotpot Restaurant in Nathan Road, you unlawfully and maliciously caused grievous bodily harm to Wong Wing-kwong with intent to do him some grievous bodily harm.  The grievous bodily harm was caused as a result of you splashing a ladle of boiled oil onto the victim Mr Wong’s head and body.  Both you and the victim were chefs in the restaurant.

3.  As to how the incident arose was as follows. That morning, at about 10.30 am, the victim was holding a bowl of boiled soup whilst working inside the kitchen with you there.  As he was about to walk past you in your section of the restaurant, he asked you to give way for fear that the bowl of soup would be spilled onto you.  You, however, ignored the victim’s request and entered into an argument with him.  You and the victim were then separated by your colleagues. 

4.  About half an hour later, at about 11 am, the victim then returned to his section in the kitchen to work.  However, despite you being at your part of the kitchen and he at his, an argument ensued and you entered into a heated argument with the victim.  At that time you were frying some food with boiled oil.  You were a dim sum chef.  When the victim walked near you, that is when you suddenly splashed a ladle of boiled oil onto the victim’s head and body. 

5.  The victim was immediately sent to Kwong Wah Hospital for treatment at the Accident and Emergency.  He was treated and was hospitalised for five days.  The medical report states that the victim had sustained a scald injury over his face, anterior chest and right arm.  There was a blister over his right ear, and the total area of scalded injury was about 7 per cent of the total body surface area.  It was found that 2 per cent of the head and neck had partial thickness burn and 3 per cent of the upper trunk partial thickness burns were percentage in terms of total body surface area.  The victim has now recovered, and he did not sustain any permanent disability or disfigurement. 

6.  You were arrested on the same day.  You admitted the offence.  Mr Au, your counsel, has made very full and thorough mitigation on your behalf today.  I have taken into account all that he has had to say.  You are aged 44 and have one previous conviction of common assault in 1993.  You were fined $1,000.  That was some 19 years ago when you were aged about 24.  I am informed by Mr Au that that common assault resulted because you had pushed a taxi driver twice as you had argued with the taxi driver whom you were a passenger of that he had taken the wrong route and therefore the fare was incorrect. 

7.  I have received a letter written by yourself to me stating your background and showing the court how very remorseful you are. You are married and have a daughter aged 7 and wife who is a nurse, both living in China.  Otherwise you live in Hong Kong alone, but you also have a 72-year-old mother who is cared for by you.  You contribute to their living, and you know that a result of this offence you will lose your liberty, but you have asked me to give you a second chance so that you can return to society and work again and be law-abiding. 

8.  Mr Au has given me further details of the incident that day.  He says that there was one occasion which is not mentioned in the facts whereby the victim had walked past you holding a long iron hook, which he hit on the table several times and asked you for the right of way. 

9.  The history of this matter is that you and the victim as colleagues did not get along well.  You would argue over trivial things, and because of the poor working conditions it was not conducive to your getting along well as it was narrow and crowded and you often had to walk past each other frequently.  When the victim was walking past you this would interrupt your cooking, and you would have to stop.  On the day in question, as a result of the three times that you had crossed paths and had arguments, this had made you furious, and spontaneously you then threw the ladle of oil at him.  You were cooking at the time, and that was just a spontaneous act that you picked up the ladle which was handy, and as a result you committed this very foolish offence. 

10.  In your plea of mitigation Mr Au has stated that this was not a premeditated act, it occurred spontaneously, you were provoked at the time as the victim had walked past you time and time again, and of course your plea of guilty.  Mr Au has also referred me to a case HKSAR v Yu Yin Ming HCMA492/2009, whereby in that case the appellant was convicted after a trial of an offence of assault occasioning actual bodily harm, and he had thrown or spilled boiling soup from a hotpot onto the victim, and as a result there were burns to about 11 per cent of his body surface, and they were second degree burns.  That happened during the course of the argument, and the appellant was sentenced to 12 months’ imprisonment after trial. 

11.  In the Yu case the victim had been hospitalised for 15 days and received daily dressing to injuries, and suffered considerable pain and discomfort.  However, he has since fully recovered but left with some scarring, though the extent was not described.  Mr Au has recognised that for that offence it was an assault occasioning actual bodily harm the distinction between that offence and this, and for this it is section 17 wounding.  However, in the Yu case, the magistrate there found that the defendant had deliberately intention and act that the victim should be burned by the boiling soup, rather than just being reckless in that regard. 

12.  I have taken into account the facts of that case and the facts of this case.  In this case the victim had suffered burns of 7 per cent of the total body surface area, which is in fact less than that of the case of Yu.  In your case the victim was hospitalised for five days, while the victim in the Yu was hospitalised for 15 days.  In this case there was no scarring, whilst in the Yu he was left with some scarring, though it is not known of the extent.

13.  In both these cases the offence resulted during the course of an argument, and in both these cases both of you had deliberately intended to harm the victims.  Also, as similar to your case, it was done out of anger, and also done on the footing of a spontaneous act during the course of a verbal exchange.

14.  What distinguishes this case, in my view, is the fact that the injury to this victim, Mr Wong, was to a very sensitive part of his body, that is his head, neck and upper trunk.  And rather than soup and oil, just pure oil, which can be very, very hot indeed.  In the Yu case there was redness, tenderness and blistering on the interior chest abdominal wall, arm and thigh, left arm and right thigh.  In this case although there was no direct evidence or facts of the victim suffering considerable pain and discomfort, I am sure that he has done so.

15.  It is very fortunate, in my view, that the victim has not suffered any permanent disability and disfigurement given that it was thrown towards his head.  Throwing oil at a person of course causes significant pain.  In your case it was done with malice.  It is, as you have been told by your counsel, a very serious offence.  The victim suffered significant injuries as a result of your deliberate act.  I accept that it arose as a result of conflicts between yourself and the victim in a very confined and difficult work environment, however that is no excuse for doing what you did.  I accept you greatly regret your action. 

16.  You have said that the result of this stupid action, this has led you into the situation you are today, and as a result this might well affect your future career in the restaurant business which you have held for over 29 years as a dim sum chef.  I accept this may, affect your future livelihood.  You have been informed by your counsel that a period of imprisonment for this offence is inevitable.

17.  On all the facts and circumstances of this case, defendant, I consider, had you been convicted after trial, an appropriate sentence of 2 years’ imprisonment.  However, giving you full credit for your plea of guilty, that term is reduced to 16 months, to which you shall be so imprisoned.