HKSAR v. SIN WA CHIU

CACC 161/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 161 OF 2011

(ON APPEAL FROM HCCC NO. 276 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Fok JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 1 April 2011, the applicant pleaded guilty to one count of throwing corrosive fluid with intent, contrary to s. 29(c) of the Offences against the Person Ordinance, Cap. 212, and was sentenced by Line J to 12 years’ imprisonment.  At the conclusion of the applicant’s application for leave to appeal against that sentence, we dismissed the application indicating that we would give our reasons later.  This we now do.

The facts

2.  The applicant was formerly married to a Ms Leung Mei-ying, the victim of the offence.  The couple had a son and a daughter, both of whom are now over 18. The couple divorced in mid-2009.  Ms Leung was granted custody of the couple’s daughter.  She was also declared the tenant of the flat in which the family resided in Shek Lei Estate in Kwai Chung.  However, because of his financial circumstances, the applicant did not move out of the flat and continued to live there with Ms Leung and their children.  Ms Leung remarried a Mainland resident at the end of 2009.

3.  There were arguments between the applicant and Ms Leung which continued after the divorce.  These arguments related to the applicant’s belief that Ms Leung was having an affair and to her compulsive gambling habits as a result of which she had incurred large debts.

4.  In the early hours of 25 April 2010, at about 2.30 am, Ms Leung returned home after playing mahjong at a neighbour’s home.  There had been an argument between the applicant and the couple’s son arising from the applicant having discovered the son gambling with friends at home.  The son complained to Ms Leung about the applicant having scolded him and Ms Leung went to remonstrate with the applicant.  An argument ensued in which the son joined in.  This lasted until about 3.30 am.  Ms Leung then went to bed in her own room in the flat at about 4 am.  She latched the door, in order to keep the applicant out of her room.

5.  At about 4.45 am, whilst Ms Leung was sleeping, the applicant entered her room.  She heard the applicant’s voice by the side of her bed.  He was using foul language and uttered the words “you go to die”.  Prior to entering Ms Leung’s room, the applicant had emptied the contents of two bottles of drain cleaner into a small bucket which he took with him.  The drain cleaner was highly corrosive, the fluid being 52% sulphuric acid.  He had bought this a month or two before the incident and kept them in his room in the flat.

6.  While Ms Leung lay in her bed and before she had fully awakened, the applicant poured the contents of the small bucket onto her face, head and neck.  The liquid reached Ms Leung’s arms and left leg.  She immediately felt scorching pain and called to her son for help.  She went to the bathroom to try to wash off the liquid.  An ambulance was summoned and she was taken to hospital for treatment.

7.  In the meantime, the applicant fled the flat.  He was eventually arrested on 28 April 2010.

8.  Upon examination, Ms Leung was found to have sustained chemical burns to her scalp, eyes, face, neck, bilateral upper limbs and left lower limb accounting for 14% of her total body surface area.  She underwent multiple debridement surgery to her burn wounds with skin graft coverage.  She suffered extensive scarring which impairs her ability to completely close her left eye and her limb movement.  There is also extensive hypertrophic scarring and scar contractures affecting oral feeding and movement.  In plain terms, her left eye, left ear, nose and mouth are severely deformed and half of her head is bald.  She complains that she cannot eat or breathe properly.  She has lost the sight in her left eye and that in her right has been damaged.  She will require further surgery when her scars have matured.  She continues to suffer physical and psychological pain.

The mitigation

9.  Counsel appearing for the applicant below submitted that there were only two strong mitigating factors, namely the applicant’s guilty plea and his clear record.  He also referred the Judge to the fact that the applicant was 71 years of age as at the date of his conviction and that the victim had been an habitual gambler whose debts the applicant had paid off by borrowing from his friends and relatives and by mortgaging a property in the Mainland in which he had intended to live after his retirement.  It was submitted to the Judge that, at the time of the offence, the applicant was distressed by his family circumstances and the breakdown of his marriage and that the offence was out of character, done at a moment of weakness.

The Judge’s reasons for sentence

10.  The Judge described the offence as a truly wicked crime.  He had no doubt the applicant knew what the consequences would be and that his intention was to cause the victim ruin.  The Judge was provided with photographs of the victim’s injuries and a victim’s impact report by a clinical psychologist.  He noted that the victim’s injuries caused her to lose her job and consequent financial difficulties.  Her daughter had to quit her job to support her.  The Judge construed the words uttered by the applicant before he poured acid on the victim as evidence of his intention to spoil and destroy the quality of the rest of her life.  He considered that there was every appearance the applicant traded the freedom of his shorter remaining years to wreck her longer ones.

11.  The Judge applied the conventional one-third discount for the applicant’s guilty plea.  He considered the applicant’s age but declined to take it into account as an act of mercy.  He bore in mind the applicant’s clear record and what was said in the letters sent to him on the applicant’s behalf but was not persuaded to leniency by those matters.  He concluded that the applicant’s case was “at the top end of the bracket for such crime” and stated that this “attracts a sentence of 18 years’ imprisonment”.  Applying the one-third discount, he sentenced the applicant to 12 years’ imprisonment.

The grounds of appeal

12.  The first ground of appeal contends that the Judge erred in adopting 18 years’ imprisonment as the starting point in sentence where the aggravating factor of committing the offence for monetary reward did not exist.

13.  The second ground of appeal contends that the Judge erred in aggravating the starting point.

14.  The third ground of appeal contends that the Judge failed properly to take account of two matters, namely: first, the background of the offence including the history of discord between the applicant and the victim and the fact that they had an argument in the early hours of the morning, shortly before the offence was committed; and, secondly, the impact of a 12 year sentence of imprisonment on the applicant who was 71 years old.

15.  In the circumstances, it was contended that the sentence was manifestly excessive.

Discussion

16.  In support of the first ground of appeal, it was submitted on behalf of the applicant that an 18 year starting point should be reserved for those cases where there is the additional aggravating factor of a “contract attack”.  We were referred to two cases in particular in support of this submission, namely HKSAR v Yu Wai Chiu, CACC 300/2000, unrep., 20.12.00, HKSAR v Lam Ming Wing, CACC 152/2007, unrep., 14.12.09.  In the former, the sentencing judge had applied a starting point of 18 years in arriving at a sentence after plea of 12 years’ imprisonment and the Court of Appeal did not disturb this.  In the latter, the Court of Appeal upheld a sentence after trial of 18 years’ imprisonment.

17.  It was submitted that the Judge erred in equating this case with such cases and that the facts of this case were distinguishable from those and were more akin to cases involving “distressed and anguished” persons (the quoted phrase coming from Lam Ming Wing at §103) for which there was a range of culpability culminating in a starting point well below 18 years.  A number of cases were cited to us in which various, but lower, starting points were adopted.

18.  We are satisfied that there is a fundamental flaw in the argument advanced on behalf of the applicant in this regard, which arises from the fact that there is no tariff for this offence, which carries a maximum sentence of life imprisonment.

19.  As Mayo VP said in Yu Wai Chiu at p. 4:

“The starting point was indeed high. The question though is whether in the extreme circumstances of the present case it can be considered as manifestly excessive. One of the factors which needs to be borne in mind is that the maximum penalty for this offence is life imprisonment. This must be one of the most serious types of offence which can be encountered. Having regard to all the circumstances and in particular the grievous nature of the injuries to the victim we do not think that that the sentence imposed here was either wrong in principle or manifestly excessive.”

20.  The absence of any tariff for this offence was specifically referred to recently by Hartmann JA in HKSAR v Chi Chi Hong, Ken, CACC 299/2010, unrep., 25.11.11:

“24. There is however no ‘tariff’ in cases of this kind. The appropriate sentence to be imposed in each case is to be determined by the particular facts of that case. What can be said is that the legislature recognises that the crime has such awful potential for causing lifelong suffering to its victims, maiming them and causing them terrible disfigurement, that it has seen fit to impose a maximum penalty of life imprisonment.”

21.  In Lam Ming Wing, Yeung JA (as he then was) did draw the distinction referred to above regarding “distressed and anguished members of love triangles” (at §103) but immediately prior to that he said:

“102. As one might expect, [the victim] suffered post [traumatic] stress disorder and continues to suffer emotionally from his disfigurement and disabilities. The judge further added that [an] aspect of the case which greatly aggravated culpability was the fact that his was not an attack arising from any personal grievance, but was an attack on a total stranger for financial reward – a contract to blind; by which the judge did not for a moment seek to lessen the gravity of an attack carried out for some personal grievance but by which he sought to distinguish this case from others.”

22.  In our opinion, it is clear from the above passage that the Court of Appeal in Lam Ming Wing was not seeking to suggest that there was a fixed tariff for, or rigid distinction in starting points between, cases of acid throwing involving attacks for financial reward on the one hand and those arising out of domestic or personal conflicts on the other.  It is, of course, correct that it may be argued that “a cold blooded hired assailant should be more severely dealt with than a person blinded by passion or jealousy” (R v Chan Chi Lun [1989] 1 HKC 70 at 72G) but that is simply one factor to be taken into account.

23.  As Woo JA held, giving the judgment of the Court of Appeal in HKSAR v Wong Siu Kwan, CACC 166/2001, unrep., 17.10.01 in which earlier cases of throwing corrosive fluid with intent were reviewed, at §17:

“The range of facts of each case will vary greatly as to 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, and no doubt a host of other pertinent features which may have a bearing on the degree of culpability.”

24.  Accordingly, we reject the first ground of appeal.  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.  The latter fact 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.

25.  Turning then to the second and third grounds of appeal, it is convenient to deal with these together and in doing so it is necessary to return to the facts of this case.

26.  Ms Leung’s injuries have been described above.  The Judge described the injuries as “horrific” and the damage caused by the acid attack as “heartbreaking” and we agree.  We have also seen the photographs that were before the Judge below and they clearly justify the Judge’s characterisation of the effect on the victim’s life as “shattering”.  Her injuries at the time of the attack must have been excruciatingly painful and she suffers ongoing physical and psychological pain.

27.  The attack was not a spontaneous act in the heat of the moment.  It is of course correct that the victim and the applicant had previously been married and had a history of conflict and also that the couple had argued in the early hours when the victim had returned home.  The Judge was clearly aware of these factors.  But the chronology of event shows that the argument had terminated and the victim had retired to her bedroom about an hour and 45 minutes before the attack.  She had latched the door, thinking thereby to exclude the applicant. In the meantime, the applicant prepared for the attack by transferring the contents of two bottles of drain cleaner into a small bucket.  This transfer must have been designed to maximise the volume of acid that could be poured onto his sleeping victim.  He gained entry to her room against her wishes as evidenced by the latching of the door and then poured the contents of the small bucket onto the victim’s face and head while she lay sleeping.  The Judge called the attack one made “in cold blood and with calculation” and we think that description accurate.  He also rightly pointed out that the attack occurred when the applicant knew the victim was “defenceless and unsuspecting”.

28.  This was not an offence committed as a result of a momentary loss of reason rather than as a concerted effort to disfigure, as was submitted on behalf of the applicant.  We do not therefore agree that the Judge failed to take into account or give sufficient weight to the background of the offence.  It is clear that the Judge was aware of and took into account the arguments over the applicant’s refusal to move out and the victim’s new life, independent of him, and the letters written on his behalf which disclosed the extent to which the victim’s gambling debts had caused him financial and personal difficulties.  The Judge also took into account the applicant’s clear record and his plea of guilty.

29.  It was suggested in argument before us that the Judge may have allowed his view that the applicant had not offered an apology to the victim in his police interview to cause him wrongly to take the view that the applicant had shown no remorse.  However, there is nothing to suggest that the Judge was wrong in forming that view and, in any event, we do not think that view caused the Judge to err in his selection of the starting point for sentence.

30.  So far as the applicant’s age is concerned, this was clearly a matter the Judge took into account.  He declined to exercise mercy in view of the applicant’s age to further discount the sentence.  That was a matter which was within the Judge’s discretion and we see no basis for interfering with that exercise of discretion.

31.  In our judgment, the circumstances of this offence were such that we are not minded to interfere with the Judge’s starting point of 18 years’ imprisonment.

32.  For these reasons, we were satisfied that the sentence imposed was not manifestly excessive and we therefore dismissed the application for leave to appeal.