HKSAR v. LAU HING KAU

HCCC 288/2019

[2020] HKCFI 908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 288 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The charge and plea

The defendant pleaded guilty in the courts below to one count of throwing corrosive fluid with intent, contrary to section 29(c) of the offences against the Person Ordinance, Cap 212. He also admitted the fact pertaining to the charge. He was committed to the Court of First Instance for sentence. I convicted the defendant on his own plea and admission of the fact.

The Facts

On the day in question, the defendant, who had been suspecting that his wife, Madam Kwok Sau-lan, the victim, was having an extramarital affair with a man, poured a bottle of sulphuric acid onto the victim, causing serious and extensive injuries to the victim.

On 15 October 2018, at around 7 pm, the defendant, aged 58 and the victim aged 50, had dinner with their daughters and son at the home at Hing Tung Estate, the offence location. After dinner, the victim entered the bedroom to get changed. The defendant came into the bedroom and shut the door. The defendant queried the victim. He then grabbed the back of her head, dragged her to the wall and bumped her forehead against the wall.

He then lifted her up and took her to somewhere near the foot of the bed. The victim was then face‑to‑face with the defendant. The defendant then took out a bottle of liquid with a plastic bag from the foot of the bed. He opened the bottle and poured the whole bottle across the victim. As the pouring of liquid took the victim off guard, she did not resist. She felt pain to the whole body. She screamed, yelled for help and rushed to the door of the bedroom.

After the victim opened the door of the bedroom, she slipped on the floor. Her elder daughter took her to the toilet to flush her body with water. The victim’s son made a report to the police. Ambulance officers arrived and the victim was sent to hospital. At that time the defendant had left the offence location.

Arrest of the defendant

At around 7.32 pm on the same night, the defendant called his work partner, Mr Kwok Sun-tuen and told Mr Kwok that he had poured drain cleaner onto his wife. Mr Kwok told him to surrender himself to the police.

At around 8.09 pm, the defendant called Mr Leung Lap-kei, who had hired the defendant to carry out some demolition work. The defendant told Mr Leung that his wife had cheated on him and he injured his wife by pouring drain cleaner onto her. The defendant also said he would surrender himself to the police so he would not be able to carry out the work for Mr Leung.

At around 8.24 pm, a police officer arrested the defendant as the latter walked towards the door of the building of the offence location. Under caution, the defendant said he had poured drain cleaner on his wife because she was having an affair.

A video‑recorded interview was conducted with the defendant. Under caution he said, inter alia, that:

(1) He and the victim had been married for many years. They were living at the offence location with their daughters and son. In the past, the defendant and the victim had a harmonious relationship but, in the recent years, he found out that the victim was having an extramarital affair. She always chatted on WhatsApp with someone.

(2) On one occasion the defendant entered the bedroom and the victim immediately turned off the mobile phone. He asked the victim what it was about. She said she had private things on her mobile phone and she wanted privacy. The defendant found the victim suspicious. He knew that the victim had been acquainted with a Mr Ching while she was selling health products as a sales person.

The defendant checked her mobile and discovered there was frequent phone contact between her and Mr Ching. The defendant called Mr Ching and told him not to flirt with the victim. The defendant thought Mr Ching must have told the victim about this matter, because the victim later shouted at the defendant.

(3) The defendant loved the victim, but she was no longer faithful to him. He felt anxious that the victim would leave him one day. The victim did mention that she would leave him if she found someone better than him. What the victim said made the defendant feel miserable.

(4) Their relationship turned sour and the victim became bad to him. The defendant found the victim suspicious and followed her. He once saw the victim board a taxi but the victim denied. The defendant was not sure whether the victim was having an extramarital affair with the taxi driver or Mr Ching.

(5) The defendant had bought the bottle of drain cleaner from a hardware shop three weeks ago because the sink in the kitchen at his home was blocked. After using it, he placed the bottle containing the remaining drain cleaner in the cabinet under the stove. He bought the bottle of drain cleaner only for unclogging the sink, and for no other purpose.

(6) On the offence date, at around 6.35 pm, he placed the bottle containing the remaining drain cleaner near the bed in the bedroom for scaring the victim. He intended to ask her whether she was having an extramarital affair with the taxi driver or Mr Ching. When he asked her about the matter, the victim denied and argued with him. He felt agitated and was extremely angry. He pushed her towards the bed.

He took out the bottle of drain cleaner, held it in his left hand and twisted off its cap with his right hand. He threw the cap onto the floor. He wanted to scare the victim. He asked her again who she was dating and where she went with the taxi driver. The victim was frightened and she hugged him. He was very angry and he then poured the drain cleaner on to the victim. She resisted. He turned the whole bottle upside down. The victim shouted for help and rushed to the toilet to wash herself.

(7) The defendant left the offence location. He made phone calls to his boss and work partner to talk to them about some work arrangement because he planned to surrender himself to the police and he would not be able to complete his work.

(8) The defendant also thought about jumping from the footbridge to commit suicide, but then he received a call from his elder brother who found out what had happened. His elder brother told him not to do silly things. The defendant sat in a park for a long time. He then regained calmness and decided to surrender himself to the police for his wrong.

(9) The defendant knew drain cleaner was corrosive and it could cause substantial bodily harm.

Exhibit seized from the scene & chemist examination

Traces of sulphuric acid were found on the damaged parts of various items seized from the offence location. Traces of sulphuric acid were also found on the damaged parts of the clothes worn by the defendant. A trace amount of the sulphuric acid was detected from the bottle used by the defendant.

Sulphuric acid is a highly corrosive liquid, capable of causing damage on clothing items in the form of burnt holes and burnt marks. It can inflict severe burns to skin and permanent damage to eyes.

The victim’s injuries

The victim was sent to the A & E Department of the Pamela Youde Nethersole Eastern Hospital on the offence date. On physical examination, most of her injuries were second degree burn, including the face, the trunk, the back, all four limbs and external genitalia and in total, approximately 50 to 60 percent of body surface were involved. The diagnosis was major second degree chemical burn.

The victim was later admitted to the Department of Surgery of the Queen Mary Hospital on the same date. Upon admission, she was alert, conscious and her blood circulation was stable. She had deep dermal burn injury over her lower face, neck, chest wall, right shoulder, abdominal wall, left upper limb, bilateral anterior thighs and posterior legs. The total burn surface area was 42.5 per cent and the initial wound pH was 4.5.

Her burn wound was thoroughly washed with running water till the pH was normalised. The ocular status was normal.

In view of the extensive burn wounds, staged operation was planned. The victim received the first debridement of burn wounds to her neck, right shoulder, chest wall, abdominal wall on 23 October 2018. Another debridement to bilateral lower limbs and cadaveric skin graft coverage was performed on 29 October 2018. The victim’s clinical condition was stabilised. Regular wound dressings were provided.

On 21 October 2018, the victim was examined by a doctor of the Department of Obstetrics & Gynaecology of the Queen Mary Hospital for the chemical burn which involved her vulval area. On examination, there were small patches of labia majora involved by the burn on both sides. The area was erythematous, but with no obvious discharge. The vagina was normal and not involved by burn.

Serial debridements and skin graft reconstructions were performed on 15 October, 23 October and 16 November 2018, in view of the large area involved and inadequate donor site availability. Pain control was optimised. Physiotherapy was provided for rehabilitation.

The victim was transferred to Tung Wah Hospital on 17 December 2018 for further rehabilitation. Her wound condition gradually improve. Pressure garment was fit in to control hypertrophic scar. She was expected to have a prolonged course of scar management.

The victim was discharged from Tung Wah Hospital on 30 January 2019. She was regularly reviewed at the outpatient clinic of the hospital. Gradually the wounds were healed completely. There were multiple areas of hypertrophic scar at face, neck, chest wall, bilateral upper limbs and left lower limbs. The scar contracture at the neck and chin region caused tethering of her right corner of her mouth. She was given pressure garment, silicone pads for scar management. Physiotherapy sessions for limb mobilisation were prescribed.

The defendant admits that on the offence date, he threw upon the victim a corrosive fluid, namely sulphuric acid, with intent to cause grievous bodily harm to the victim.

Victim Impact Report

I have before me a victim impact report of the victim, prepared by Ms Lam Choi-yan, a clinical psychologist of Social Welfare Department. I shall not repeat all the contents of the report in detail.

It should be noted that the victim told Ms Lam that the numerous medical procedures she had gone through were extremely painful and emotionally stressful to her. Often she had fevers and inflammation of wound. In the initial 2 to 3 months, she could not fall asleep and had to rely heavily on pain killers, morphine and sleeping pills to help her to reduce the pain and to help her sleep. Often she had flashbacks of the memory of the incident, making her scared and trembled.

After discharge from hospital, the victim still cried every day and was very afraid to stay at home on her own. She was unable to bring herself to go into the bathroom and she had to sleep in the sitting room in the first month after discharge from hospital. After a month, she began to sleep in the bedroom, but she required the company of a family member and the bedroom door open.

The victim with her impaired mobility, found it difficult to manage her basic self-care. She was in great fear for her safety that she could not run away or protect herself from any danger or bodily harm. The victim developed panic attack about 1 to 2 months ago. She could not breathe and she cried in the park unconditionally after she appeared to be shot by air gun by someone. Emotionally, she was overwhelmed with intense fear and tension.

Before the incident, the victim regarded herself as an easy going, happy and simple-minded person who liked to talk and socialise with people. After the incident, she found it extremely painful and devastating to look her disfigured appearance in the mirror. She avoided any eye contact with neighbours, fearing what others might think of her. She tried to avoid leaving home.

She found her future depressing, as she thought she was unlikely to find a job or be accepted by other people. She found her children’s support to be very limited. On the whole, her self-image was badly damaged and she regarded her life to be totally shattered. Consistent with her interview behaviour, the victim showed elevated scores in the subscales of anxious arousal, depression and intrusive experience on the DSL. The victim was very angry that the defendant had totally ruined her life.

Ms Lam opines that the victim has been suffering from post-traumatic stress disorder. Apparently, her physical pain as well as emotional turmoil have been particularly severe in the initial 6 months after the incident. She still has a long way to go, facing the surgical treatment and rehabilitation procedures ahead.

Besides the PTSD symptoms that were obvious, she was also severely battered in the more physical construct that were crucial to a person’s mental health, including basic trust in self, others and the world, that underpinned her sense of personal safety, social and intimate relationships.

Ms Lam opines that with all the irreversible impairments in self-care ability, mobility, disfigurement and employability, the victim’s physical and psychological rehabilitation would be a long and difficult process as those impairments would be permanent bodily reminders of the horrible experience she had endured and gone through.

Mitigation

I am grateful to Ms Cheng for her detailed mitigation. Ms Cheng also places before me mitigation letters written by:

(1) The defendant; (2) The victim; (3) The three daughters and son of the defendant and the victim; (4) Mr Kwok Sun-tuen, the business partner of the defendant; (5) Madam Lee Yuk-fung(?), the proprietress of an interior design company who had business dealings with the defendant; (6) Mr Sing(?), a neighbour of the defendant and; (7) Members of a Clansman Association, of which the defendant was a member.

Ms Cheng, in mitigation, draws my attention to the good work spoken of the defendant in the mitigation letters, the reasons why the defendant committed the offence out of his usual character. The remorse of the defendant after the incident and what he did before his arrest. The full and frank admission after his arrest and that there is no chance of the defendant reoffending as the victim will leave the defendant. And also the timely plea of the defendant.

Ms Cheng submits there is no tariff for the offence of pouring corrosive fluid with intent. The range of the facts of each case would vary greatly as to the nature of the attack and its motive, the attacker’s mind-set, the spontaneity of the attack or conversely, the degree of planning. How real and specific was the intent to cause injury and other pertinent features bearing on the degree of culpability. And she cites the case HKSAR v Wong Yuk Yee, CACC205/2012, in support of her submissions.

Ms Cheng submits that the facts of the present case are similar to HKSAR v Chiu Siu Mei, HCCC443/2010, and HKSAR v Wong Sau Lai, CACC283/2000, in which defendants committed similar offence because they were suffering from severe stress caused by unfavourable behaviour of their spouse and felt that they had been let down by a person who, at one time, had been closest to them. Ms Cheng submits that on Chiu Siu Mei and Wong Sau Lai, starting points of 6 and 7 years were adopted respectively.

Consideration

I have considered the nature of the offence, the facts of the case, the background of the defendant, the victim impact report of Madam Kwok, the mitigation advanced by Ms Cheng, all the materials placed before me by Ms Cheng and the authorities drawn to my attention. I have also before me a photo album showing the injuries of the victim. I am given to understand that the photographs were taken shortly after the incident.

The strongest mitigating factor is the guilty plea of the defendant. The timely plea, together with the clear record of the defendant entitled the defendant to one‑third reduction.

I note that the victim asked that a lenient sentence be passed on the defendant. In my judgment, the plea was not made out of forgiveness, but as stated in the victim’s letter, for the sake of the four children and for the contribution to the family that the defendant had made in the past. As the victim impact report shows, the victim is still angry with the defendant for what he did to her in this case.

I have considered the matters urged on the defendant’s behalf by his children, business partner, business friend, neighbour and clansmen. In my judgment, the defendant should not be treated as a person with positive good character. The credit for his good character is subsumed into the one‑third reduction and no extra reduction should be given to him over and on top of the one‑third reduction as a result of the mitigation letters.

There is no sentencing tariff for the offence of pouring corrosive fluid with intent. The seriousness of the offence is reflected in the maximum sentence which the court may pass. That is, life imprisonment.

In HKSAR v Wong Siu Kwan, CACC166/2001, Wu JA as he then was, said at paragraph 17:

“The range of facts of each case will vary greatly as to the nature of the attack and its motive, the mind-set 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.”

As the victim impact report shows, the offence has left the victim in pain and suffering, both physically and mentally for life. With the aftermath of the injuries and the disfigurement, the victim would not be able to lead a normal life.

It is clear from the facts that the defendant intended to cause horrific and extensive injuries to the victim. A bottle of sulphuric acid was poured onto the victim, and the face, the trunk, the back, all four limbs and external genitalia suffered second degree burn wounds.

On the night in question, the defendant took the bottle of sulphuric acid out from the kitchen and placed it near the bed. At the time of the offence, he twist off the cap and turned the whole bottle of sulphuric acid upside down and poured it onto the victim. I am sure the defendant intended to cause extensive and horrific serious injuries to the victim. The attack was not a spontaneous act of an angry husband.

I also note that after the pouring of corrosive acid on the victim, there was no attempt by the defendant to assist in washing the acid away or calling for assistance at the time when the victim was screaming in pain and yelled for help. I am aware of the background against which the defendant committed the offence, as Madam Justice Beeson observed in Chiu Siu Mei:

“However, the court has also to consider what acid pouring cannot be resorted to as a substitute for marriage counselling. The court has to make it clear that acid pouring is a vile offence which is resorted to far too readily in Hong Kong, and for that reason, the court has to consider deterrence as an element of the sentence.”

Ms Cheng submits that the facts of the present case are similar to the facts in Wong Sau Lai and Chiu Siu Mei. In Wong Sau Lai and Chiu Siu Mei, the defendants committed similar offences because they were suffering from severe stress caused by infidelity of their spouse and felt that they had been let down by their spouse.

In Wong Sau Lai, an initial starting point of 7 years was taken and the defendant was finally sentenced to 4 years’ imprisonment. It should be noted that the Court of Appeal, in refusing to grant leave to appeal against sentence, observed that the treatment afforded to the defendant by the learned sentencing judge, was extremely lenient.

In Chiu Siu Mei, Madam Justice Beeson took a starting point of 6 years and sentenced the defendant to 4 years’ imprisonment. It should be noted that in Chiu Siu Mei, one of the matters that the court took into consideration in the defendant’s favour was the impaired mental function and health problems, occasioned in that case by the brain surgery that the defendant had undergone for the brain tumour and ensuing complications.

The facts in R v Wong On Lin [1995] 1 HKCLR 224, were also similar to the present case. In Wong On Lin, the applicant poured toilet cleaner which was 96 per cent sulphuric acid over his wife’s face and was convicted after trial. A sentence of 13 years’ imprisonment was imposed.

The act was committed by the applicant in the belief that the wife had an extramarital affair with a man. The applicant held the bottle of toilet cleanser, that is the sulphuric acid, forced his wife into the bedroom, pushed her onto a bunk bed and poured the cleanser over her face with a circular motion. The offence left the wife scarred physically and mentally for life.

The Court of Appeal held that the sentence was entirely proper and refused to grant leave to appeal against sentence. In my judgment, the facts of Wong On Lin were more serious than the present case. Not only did the applicant force the victim into the bedroom when the sulphuric acid was poured onto the victim, the applicant aimed at the victim’s face and he poured the sulphuric acid with a circular motion.

All matters taken into consideration, in my judgment, a starting point of 12 years’ imprisonment is called for. The defendant is given one-third reduction for his timely plea and clear record. That would bring the starting point down to 8 years.

For the reasons given, I sentence the defendant to 8 years’ imprisonment.