HKSAR v. DAN ZHAOJUAN

HCCC 12/2019

[2019] HKCFI 1464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 12 OF 2019

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REASONS FOR SENTENCE

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1.  Defendant, you pleaded guilty to one count of Throwing corrosive fluid with intent, contrary to s29(c) of the Offences against the Person Ordinance, Cap 212 at committal and the case is committed to this court for sentence.

2.  The offence of throwing a corrosive fluid with intent is a very serious offence which carries a maximum sentence of life imprisonment.  It is a truly terrible and wicked crime when it was carried out, as in this case, with the clearest intention of bringing about grievous bodily harm coupled with a lifetime disfigurement to the female victim.  In cold blood and with calculation, you poured sulphuric acid with concentration as high as 97% onto the victim who was at the time your employer in her foot massage establishment as well as your friend for more than 10 years when you two first knew each other in Shenzhen before coming to Hong Kong.  According to the facts which you have admitted, before the incident, you were a heavy gambler and you often went to Macau with the victim to gamble in the casinos.  Before the incident, you suffered heavy losses in gambling and you have borrowed a total of $60,000 from the victim.  As in April, 2017, there was a dispute between you and the victim over the gambling debt.  In mitigation, I was told you had partially returned $20,000 to the victim but you were hard pressed by the victim and her boyfriend to repay the remaining debts in the sum of $40,000 in one go.  You said in the video recorded interview under caution that on the date of the offence, ie 23 April 2017, you got up in the morning.  Feeling angry and desperate, you wanted to harm the victim.  You went to a grocery shop to buy an 8-inch fruit knife and a bottle of liquid drain cleaner.  You first went to the massage establishment to find the victim but she was not there.  Later you called her by the phone and knew she was at home.  You then went to her flat at Mongkok and you were allowed into her flat under the pretext of repaying debts to her.  Inside the flat, you again asked for an extension for repayment but was rejected.  You said you felt enraged and you took out the corrosive fluids from your handbag and poured it upon the victim.  The victim felt great pain and jumped at you and you further took out the fruit knife and she recalled seeing you using the knife and slashing it once at her forehead but according to your own admission to the police, you have in fact used the knife to cut the victim for around 5 to 6 times.  The photographs I have seen demonstrate very clearly that you had aimed this dreadful substance at the whole of her body and in particular her face where most of the liquid seems to have landed.  It is also abundantly clear to me that you were executing a revenge attack as during the attack, you kept cursing at the victim.  The victim’s face turned black immediately as a result of the chemical burns.  She collapsed and fell onto the ground after the attack.  You thought you have killed her and were frightened and dialed 999 and sought assistance from the neighbours and friends.  That was why you were originally charged with attempted murder but as a result of plea bargaining, the prosecution finally accepted your plea to the present charge as amended.

3.  The victim, Huang Qiong is a 48-year-old divorced woman.  Her face, her neck, her back and indeed both of her upper and lower limbs have been dreadfully scarred.  She sustained horrific and extensive injuries: 70% 3rd degree full thickness chemical burn mainly over her face, neck, bilateral upper limbs, anterior chest, upper back and bilateral lower limbs.  By doing what you did, it is not an exaggeration that you have indeed sentenced this poor victim to a lifetime of disfigurement.  She also sustained a laceration of left forehead and stab wound to right apex area over chest.  She has recently made a statement in which she has set out the impact of this cruel and cowardly act on your part has had on her life.  And it reveals that her whole life now has changed from a normal one to one which has given her insomnia, nightmares, depression and a phobia about even going out and mixing with strangers.

4.  The victim received multiple surgeries for the debridement and skin grafting to her wounds in the hospital.  No less than 14 surgeries were performed from April to September 2017.

5.  “A picture is better than a thousand words.” One can immediately realize what the victim has gone through and will be suffering for the remainder of her life by seeing the photos of the disfigured victim.  The harms you have caused to her are so horrific that words alone cannot properly describe.  I can only say that photos taken in October 2017 revealed that that the victim had marked disfiguration with partial loss of nose cartilage and normal facial profile.  Most part of the skin on face, neck, upper trunk and upper limbs were replaced by extensive deep pinkish hypertrophic scars.  Scarring was less severe on lower body.

6.  Turning to mental injuries, as a result of those chemical burns that the victim had suffered, she has been diagnosed with Post-Traumatic Stress Disorder (“PTSD”), mixed depressive mood, and anxiety disorder and has regularly to attend the department of psychiatry at a hospital.  Disfigurement defeated her self-esteem and she became socially withdrawn.  She recalled a shopkeeper refusing to sell food to her and parents stopping children from approaching her due to her disfigurement.  Long-term psychological impairment is expected.  Quite apart from her mental problems which are serious enough, she failed to eat solid food as her mouth could not be closed completely.  Her eyes were deformed and tears kept rolling down from time to time.  She could not breathe well as she has lost her nostrils too.  Due to skin replantation, walking was no longer easy due to the pain around her left leg.  Even worse, there was ongoing physical tingling and itching as wounds healed.  Understandably, she failed to eat well and sleep well.  Her normal work and social functions were gone.  She has follow-up treatments well into the future for both her physical condition and her mental condition.

7.  Given the above conditions, the victim is obviously unable to operate her own business or work anymore and no doubt she suffered consequent financial difficulties and needs to rely on social welfare assistance in the long term.  She felt vulnerable in public areas and would rather protect herself by staying at home.  The victim was living alone in Hong Kong and thus she was largely on her own fighting with the devastating impacts of the trauma.  According to the clinical psychologist’s report, the path of recovery of severely burned survivors such as the victim could be long and uncertain.

8.  In short, the life of the victim, which she would normally be looking forward to, has been ruined completely forever.  The physical injuries, and the mental scars perhaps also, are not something from which she can ever recover at all.  The clinical psychologist said the victim felt her life has been completely ruined by your acts and she even described herself as a “walking death”.  I am not trying to be melodramatic but that is exactly what the victim feels about herself and that in effect means although you have not killed her but it makes no difference as she considered herself as already a dead person in her heart or a zombie in her appearance which is heartbreaking.

9.  You are 50 years old now and you have two previous failed marriages.  You came from a peasant family in Hubei, in the mainland and you received education up to Primary 5 level only.  In your second marriage, you married a Hong Kong male and you moved to Hong Kong in 2009.  In the first marriage, you have a son who is now in his early twenties.  In 2010, you were fined $1,500 for Soliciting for an Immoral purpose and it being a spent conviction, I am going to treat you as a person of clear record.  At the time of the offence, you worked in the foot massage establishment and earned a monthly income of about $7,000 each month.

10.  Mr Yeung has submitted a total of 8 mitigation letters including two written by you and the others written by your son, your boyfriend and one by a ministry officer of Christian Prison Pastoral Association.  I am not going to refer to the content of these letters in full details.  Suffice it to say that in your own letters, you have expressed remorse and you blamed yourself for indulging in the habit of gambling.  You have apologized to the victim and begged for her forgiveness.  You also mentioned your aged old parents and your sons in the mainland.  I must pause here for a moment that the Court of Appeal has repeatedly said in the past that family circumstances plays no part in mitigation in the sentence of serious offences.  Whilst all your friends and relatives have urged this court to pass a lenient sentence so that you can turn over a new leaf and get back to your family and loved ones as soon as possible, the Court of Appeal has also said that the principle of rehabilitation will be relegated to a much less prominent role in the determination of a just sentence in this type of cases.   The importance of giving proper allowance, indeed emphasis, to the principles of denunciation and deterrence will inevitably result in severe sentences. 

11.  In sentencing you in this case, defendant, I have borne in mind the facts of this case, the medical and mental injuries of the victim, the authorities submitted by the prosecution and the mitigation made on your behalf by your counsel.

12.  As said, this was a calculated and planned attack on your part.  In fact, what you had done is you tricked your friend to allow you to come inside her flat when you said you had monies to repay her when you were not but instead you armed yourself with a bottle of toilet drain cleaner and a fruit knife.  Your counsel, Mr Yeung had tried his best to persuade me that you committed this offence out of anger and frustration but the problem with this submission is that the liquid drain cleaner with which you used to commit the present offence was not randomly obtained by you from the victim’s flat after argument with her inside her flat but it was purchased by you with the intention of using it to harm the victim before you went to her flat to see her.  To me, it is apparent that it was a cold blooded attack arising from personal grievance.  It is also a nonsensical attack as all the victim did was asked you to repay the debts you owed to her which was nothing wrong since you never denied having borrowed monies from her anyway.

13.  The direction of the fluid was clearly primarily at the face of the victim in this case and you knew perfectly well what you were doing and what you were pouring onto her because you had bought it yourself.  I remind myself that you were only convicted of the present offence and you were not convicted of any offence in relation to the injuries caused by your use of the knife during the attack.  However, I form the view that the use of the knife by you to further attack on the victim even after the acid attack just demonstrated the state of your mind at the time of the attack that you were to pursue your revenge on her to the bitter end.

14.  In mitigation, Mr Yeung tried to submit that the present offence was committed by you as a momentary loss of reason.  I disagreed.  It is clear from what you have done that it was a concerted effort to disfigure, if not to kill the victim.  No matter how inappropriate you considered the victim and his boyfriend to press you to repay the debts you owed to her, there is simply no justification for you to commit such a horrible crime against the victim.

15.  Mr Yeung also tried to distinguish your case with the attack which is a contract attack carried out by strangers for reward.  This submission must fail as the Court of Appeal has made it clear 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.  It may be an aggravating factor in determining sentence but the appropriate sentence for this offence depends on the facts and circumstances of the particular case, including the obvious factor of the extent of injuries and suffering by the victim.  The statements of the Court of Appeal lay to rest completely any attempt to suggest that when the offence arises from a failed personal relationship it cannot attract a sentence starting point of 18 years’ imprisonment.

16.  I have been referred by the prosecution to a number of authorities which the Court of Appeal has confirmed the decisions by the court below to impose a deterrent sentence as high as between 12 to 18 years’ imprisonment, which all related to extremely serious acid attack cases: The Queen v Wong On-lin [1995] 1 HKCLR 224, HKSAR v Lung Hau-lin [2004] 2 HKLRD 715 and HKSAR v Sin Wai-chiu [2012] 1 HKLRD 768  The Court of Appeal made it clear that for serious cases such as the present where the physical and mental injuries to the victim is severe, a strong deterrent sentence is inevitably called for.  One of the factors which needs to be borne in mind is that the maximum penalty for this offence is life imprisonment.  There is no tariff in cases of its kind and each case must be decided on its own facts.  The factors which needed to be considered are the nature of the attack and its motive, the mindset of the attacker, the spontaneity of the attack or, conversely the degree of planning, how real and specific was the intent to cause injury.

17.  In the more recent case of Sin Wai-chiu, the attacker and the victim were a divorced couple but they continued to reside in the same public housing unit after the divorce.  There were arguments between the couple which continued after the divorce.  Shortly before the attack, there were heated argument between them which lasted until 3:30 am.  At about 4:45 am, whilst the female victim was still sleeping, the husband entered her room and he then used a bucket to pour two bottles of drain cleaner containing 52% sulphuric acid onto the victim’s face, head and neck.  The liquid reached the victim’s arms and left leg. She sustained burns to 14% of her body and underwent multiple debridement surgery with skin graft coverage, and would require further surgery.  The victim suffered extensive scarring and severe disfigurement which impaired her eyesight and ability to eat, breathe and move.  The judge below adopted a starting point of 18 years, reduced it for plea, and sentenced the defendant to 12 years’ imprisonment.  The Court of Appeal in the end did not interfere with the sentence imposed.

18.  The facts of Sin Wai-chiu is of course not entirely the same with the present case.  If anything, the couple had just a heated argument 45 minutes before the attack and the defendant just used the bottles of drain cleaner which he could find at home at the time to attack the victim so the degree of planning maybe lower than that of the defendant in this case.  But on the other hand, the defendant in that case prepared the attack by transferring the contents of two bottles of drain cleaner into a small bucket.  The Court of Appeal said this transfer must have been designed to maximize the volume of acid that could be poured onto the sleeping victim.  What is more, the percentage of burning of the victim’s body was only 14% in that case as compared to 70% or even 52% as the more recent medical report of the victim in this case suggested.  It is true that in Sin Wai-chiu, the victim has lost the sight in her left eye and the sight in her right has been damaged which is not happening to our victim in this case.  That was why the Court of Appeal agreed with the description by the Judge below that the attack was made “in cold blood and with calculation”.  I judge that even without the impairment on her eyesight, the mere fact that the extent of burns suffered by the victim in the present case was so much more severe such that it is only just to demand you to receive a sentence which is as much as, if not more, than the defendant in Sin Wai-chiu.

19.  On this offence, I shall therefore also adopt a starting point of 18 year’s imprisonment.  Giving you credit for your plea of guilty, which is the only valid mitigation, the sentence you receive is 12 years’ imprisonment. Only a sentence of this length meets the demands that the sentence (i) justly punishes you for the whole of your culpability; (ii) provides strong deterrence to others; and (iii) appropriately conveys the court’s and the community’s denunciation of this kind of conduct.   I fully appreciate it is a severe sentence and a heavy blow to you but it is one that, in the circumstances of this particular case, you rightly deserved.