R. v. NGAI KWOK HING

IN THE COURT OF APPEAL

1992, No. 514
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, J.A.:

1. The applicant, who is the victim's husband, pleaded guilty before His Honour Judge Burrell, sitting as the Deputy Judge of the High Court, of throwing corrosive fluid with intent to burn or disfigure. He now applies for leave to appeal against the sentence of four years' imprisonment passed on him.

2. The facts of the case were that at 7.30 a.m. on 23 July 1992 the applicant returned to the matrimonial home where he became involved in a dispute with his wife in which he accused her of returning home late every night and of having an affair with another man. She denied both allegations.

3. At about 9.30 a.m. he produced a beer bottle containing a liquid and used a toothbrush to brush the liquid onto both sides of his wife's face. He then used a second toothbrush to apply more of the liquid to her cheeks. Feeling pain, she immediately washed her face in order to remove the burning liquid, and attempted to leave the premises. The applicant refused to allow her to do so. She attempted to use the telephone but the applicant cut the cable. Eventually at 10.15 a.m. he permitted her to leave. She went to the Queen Elizabeth Hospital where she was found to be suffering from superficial skin burn on both cheeks and a superficial burns on her lower lip. We have seen photographs that were taken of the injuries on the day on which they were sustained. It is apparent that they were of a very minor nature. The burns were treated and she was discharged on 29 July.

4. Under caution, the applicant admitted that he had intended to throw some toilet cleaning liquid at his wife to disfigure her so that no other person would love her. However, in the event, he diluted the cleaning fluid with water and used the two toothbrushes to apply it to his wife's face. An analysis of traces of the fluid found at the premises established that it was hydrochloric acid, a corrosive fluid which is cable of causing severe damage to skin and mucus membranes.

5. Immediately prior to sentencing, prosecuting counsel sought leave to amend the particulars of the offence so as to delete the words "threw upon" to "apply to", the latter being an alternative way of committing the offence.

6. Since the applicant had pleaded guilty to the offence in the Magistrate's Court where the wording of the particulars alleged that he "unlawfully and maliciously threw upon Wong Yu-yin [the applicant's wife] a corrosive fluid, namely hydrochloric acid with an intent to burn or to disfigure," and had been committed to the High Court for sentence on the charge so worded, the deputy judge would not accede to the application for amendment.

7. No objection was taken by the applicant's counsel to the charge in the form in which it was before the court, and the applicant agreed to the facts that we have just outlined. This clearly amounted to an offence against section 29(c) of the Offences Against The Person Ordinance Cap. 212, the section under which the applicant had been charged and brought before the court. Both prosecuting and defence counsel agreed that the applicant should be sentenced on the basis that he applied the acid with intent to burn the victim, not that he threw it with intent to disfigure her.

8. The applicant, who is 59 years of age and has been married to the victim for 16 years, has a clear record. The medical report revealed that the victim, who is 40 years of age, suffered no after effects following her discharge from hospital. From our observation of her in court today there appears to be no residual facial injury.

9. The judge called for a probation report. It appears from the report that although the applicant's wife told the probation officer that she had lodged an application for divorce, she was emphatic that she did not want the applicant to be given a custodial sentence as she would find it impossible to care for their 13 year old son. The son, who was also interviewed by the probation officer, told the officer that he was greatly in need of his father and that he was the only person who cared for him. He exhibited resentment towards his mother, and said that he was not concerned that his parents might become separated, provided that his father still loved him.

10. The applicant's counsel informed the deputy judge that the applicant would not contest the divorce proceedings that had been commenced by his wife but that he would seek the custody of his son, an application which his wife would be unlikely to oppose. After defence counsel had addressed the deputy judge's in mitigation of sentence there was an adjournment. After the adjournment but immediately prior to sentencing, counsel informed the deputy judge that the applicant's wife was present outside the court and had told him that she had forgiven the applicant and was willing to give the marriage another chance. He added that she had visited the applicant on three occasions during the previous 14 days while he was on remand and that she was willing to confirm these matters if the court was willing to hear her. The deputy judge, however, indicated to counsel that he could not see how these considerations could "make any difference to a long custodial sentence".

11. In passing sentence he stated that he had taken into account the applicant's age and clear record, his plea of guilty, the fact that he had diluted the fluid before applying it, that applying it with a brush and not throwing it at his wife's face indicated that he intended that it would not injure her eyes, that the applicant's 13 year old son was reluctant to live with the victim, and that the victim herself had forgiven the applicant. The deputy judge then referred to the Attorney General v. AU Chi-tak [1987] HKLR 1121 as an example of a case at the top of the scale where a sentence of 13 years had been passed, and to an English case R. v. Hobson, (1981)3 Cr.App.R. (S) 276 where a sentence of five years' imprisonment was imposed, and which he took as an example of sentence at the lower end of the scale. No permanent injury had been sustained by the victim in that case, but the court passed a sentence of five years' imprisonment. He also referred to The Queen v. CHAN Chi-lung Cr.App. 572/88 and observed that this court had there stated that whether the injuries are serious or minor is of little relevance to sentence. He accepted however that every case must be treated on its own facts and that the facts of cases such as these vary enormously.

12. The deputy judge stated that this was a most serious offence, albeit one that came at the lower end of the scale, and that the sentence for it was bound to include an element of deterrence. He concluded that a sentence of six years would have been appropriate but for the mitigating factors, particularly the plea of guilty. These, he considered, justified him in reducing the sentence to one of four years' imprisonment.

13. In his personally drafted grounds of appeal, the applicant expressed his deep repentance and a determination not to repeat the offence. He claims that he has a mother who is 90 years of age and in ill health, and that his two sons, one of whom resides in China, need him to provide for them.

14. Until the commission of this offence the applicant had enjoyed an unblemished reputation for 59 years, had been a caring husband of the victim and a loving father to his 13 year old son. This is a tragic case. Its facts are vastly different from those in AU Chi-tak where the offender, in a premeditated revenge attack, threw acid into his victim's face with the intention of causing her appalling injury. The result of the attack was that the victim was badly disfigured for life. Moreover, the offender, who was aged 25 years of age, had pleaded not guilty and had thereby demonstrated a lack of remorse.

15. In CHAN Chi-lung the accused and an accomplice, both of whom had triad affiliations, were paid to carry out a revenge attack on a club hostess. They followed her movements for several days in order to plan their attack which they eventually carried out by throwing sulphuric acid from close range into her face. The victim sustained very severe injuries; the entire left side of her face, her left ear and her neck were permanently disfigured. Had she not been wearing sun glasses she would undoubtedly have lost her sight. The acid had melted her sun glasses, her handbag and part of her clothing. At the time of sentencing, the victim had already undergone three plastic surgery operations, and had many more to come. The facts of the present case bear no comparison with those in that case.

16. This court views offences against section 29(c) in a most serious light. However, there can be no doubt, not only from the minor nature of the injuries sustained but from the fact that the applicant diluted the cleaning fluid with water and applied it to the victim's cheeks with a toothbrush, that he did not intend to cause her any serious injury. We reiterate the view expressed by another division of this court in Chan Chi-lui that where an offender's actions reveal that in throwing acid at a victim his intention was to cause very serious and permanent injury, the fact that by sheer good fortune the victim escaped such injury is of little avail to the offender with regard to sentence.

17. The applicants attack on his wife was a most uncharacteristic piece of behaviour on his part and was brought about by his genuinely held belief that she was involved in an illicit relationship with another man and was neglecting the welfare of their son. Mr. Coghlan for the Crown frankly conceded that the sentence was "harsh in the extreme". We should add that this is not an offence for which a suspended sentence may be imposed. No doubt that was a factor which influenced the deputy judge in imposing sentence which he did.

18. However, for the reasons we have given, we are of the opinion that the sentence was manifestly excessive. The applicant has been in custody since 25 July last year. In all the circumstances we have come to the conclusion that justice would be best served by ordering his immediate release. We wish to emphasize however that we regard this as being a wholly exceptional case and that those who use acid to attack others can expect to receive heavy sentences.

19. We grant the application and, treating it as the hearing of the appeal, allow the appeal, set aside the sentence and substitute for it such sentence as will result in the applicant's immediate release.