HKSAR v. WONG YUK YEE

CAC C 205/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 205 OF 2012

(ON APPEAL FROM HCCC NO. 10 OF 2012)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  This is an application for leave to appeal against sentence. The applicant had pleaded guilty to one charge of “throwing corrosive fluid with intent to do grievous bodily harm” contrary to s.29(c) of the Offences Against the Person Ordinance Cap. 212. On 18 May 2012 Deputy High Court Judge Anthea Pang sentenced the applicant to a term of imprisonment of 6 years, having adopted a starting point of 9 years and discounted it by 1/3 to reflect the applicant’s plea.

2.  Mr Choy counsel for the applicant argues that the starting point adopted by the judge was too high.  We will discuss this later after recounting a summary of the facts.   

Summary of facts

3.  At the time of the offence, the applicant was 56 years old.  In the 1980’s she had come to Hong Kong from the mainland with her eldest son to join her husband here.  Subsequently she gave birth to another son and later to a daughter. 

4.  When the eldest son entered kindergarten in 1985, she started working at a garment factory to help the family finances.

5.  When she was pregnant with the daughter in 1989, her relationship with her husband deteriorated. This was as a result of his acquiring the then matrimonial property in his sole name, even though she had contributed to its cost.  Be that as it may, the couple acquired another property later as joint tenants.

6.  Meanwhile at her place of employment, the applicant rose in time to managerial level.  Her work required her to spend a large part of her time on the mainland and in South East Asia. 

7.  In 2006 the applicant was diagnosed with breast cancer and had to have a mastectomy.  After her operation she initially returned to her employment, but as she was unable to carry on as before, she left her employment in July.

8.  As by this time the husband had also retired, the family had no income.  Unfortunately during this time her relationship with her husband deteriorated further.  She discovered that her husband had been having a relationship with another woman on the mainland and (according to the applicant) had also disposed of some of the family assets.   

9.  She petitioned for divorce in 2007.  She was legally represented.  In 2008 however she signed a compromise agreement with the husband.  She later claimed that she had been misled by the husband into signing it and that her husband’s solicitor had failed to explain the document (which was written in English) to her.  She applied for an order to set aside the compromise agreement. 

10.  Although she was originally legally represented in the application, in 2010 she started to act in person.  Her application was dismissed by the court in May 2011 and in addition she was ordered to pay the husband’s costs.

11.  The applicant was upset by the order.  She went to see her family doctor and expressed a wish to “harm” her husband.  The doctor referred her to a psychiatric out-patient clinic.  Unfortunately the earliest appointment was in September. 

12.  In the meantime, the applicant sought to appeal the order made in May.  A hearing in the Family Court was fixed for 23 August.   

13.  The night before that hearing, the applicant filled a plastic container (about the size of a cola can) with half a bottle of drain cleaning fluid containing hydrochloric acid (with a concentration of 26 w/w).  She had bought the drain cleaning fluid a few days before at a metalware shop. 

14.  On the day of the hearing, she brought the container of fluid to court inside her handbag.  The husband attended the hearing with counsel and a staff member of a solicitors firm. 

15.  After the judge dismissed her application and left the courtroom, the applicant went outside the courtroom, opened the lid of the container, returned to the courtroom and splashed the fluid towards her husband’s head.  It caught him on the face, predominantly his eyes, and a small amount also splashed onto the mouth of the solicitors’ clerk who was standing next to him.  The fluid burnt the fabric off the husband’s knapsack and made holes in it.  We have seen from the exhibited photographs that a sizeable amount of fluid fell onto the carpet as well as the chairs at the bar table.  

16.  The applicant left the courtroom but was apprehended by a security guard.   

17.  As for the impact of the incident,

- the victim was hospitalized for half a month;

- at the time of his release, he had no vision and had to be looked after by others; 

- as at January 2012 (4 months after the incident), he was unable to see with his left eye but had regained 50% of the vision in his right eye.  He said he has been psychologically traumatised by the event, worrying that he may be attacked, and his sleep being disturbed by nightmares;

- as at 2 April 2012 according to a medical report placed before the court, his left eye cornea showed a mild corneal scar with best corrected visual acuity at 0.1, whereas the right eye cornea was clear with best corrected visual acuity at 0.2.  In effect that means that he has been left with only 10% of his eyesight in his left eye, and 20% of his eyesight in his right eye;

- according to a report made in May 2012, the husband said he still could not see from his left eye, but could see only 30-40% with the right eye.  He suffered pain in his left eye as well; 

- according to the probation officer’s report, the husband has not forgiven the applicant.

18.  As for the applicant, she was diagnosed as suffering a moderate depressive episode after the offence.  Fortunately she has responded well to treatment whilst in remand.  At the time of sentence, the psychiatrist at Siu Lam Psychiatric Centre was of the opinion that in-hospital treatment was not required, though she was recommended out-patient clinic attendance for further management of her mood problems.  

Sentence imposed by the judge

19.  The applicant had the benefit of very full mitigation from counsel at trial, including references to a number of cases of sentence imposed for throwing corrosive fluid with intent.  In the reasons for sentence, the judge took into account the aggravating feature that the offence arose, not only out of marital discord, but also because the applicant was dissatisfied with a court order.  The judge said “... no one should take the law into his or her own hands.  The use of violence in a courtroom to ventilate one’s anger or dissatisfaction must be deterred, be it violence exerted on the opposite party or anyone else present”.     

20.  After taking into account all the relevant facts, including the impact on the husband and the aggravating feature referred to, the judge held that a starting point of 11 years imprisonment was called for.  However in view of the applicant’s personal circumstances, and her depression and haplessness, the judge reduced the starting point to 9 years.  Applying the usual discount of 1/3 for her plea, the judge imposed a sentence of 6 years.

Previous cases

21.  There is no tariff for sentencing for the offence of “throwing corrosive acid with intent to do grievous bodily harm”.  The sentence for each case must be determined according to its individual circumstances.  As was held in HKSAR v Wong Siu Kwan CACC166/2001, “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”. 

22.  Nevertheless it is instructive to consider the sentences passed in previous cases where attacks have been made on spouses or co-habitees.  In these cases, one can understand that the attackers have felt that they have been let down by persons who at one time had been closest to them.  However one must also bear in mind what Beeson J said in Chiu Siu Mei that “acid throwing cannot be resorted to as a substitute for marriage counselling”.

Date	Defendant	Court	Remarks	Starting Point
20.1.1993	Chan Sung	C/A	Attack on wife. Location - wife’s home. Also cut wife with knife. Not badly marked.	7 years
3.6.1993	Ngai Kwok Hing	C/A	Attack on wife. Location - home. Diluted acid first. Used toothbrush. No after-effects.	4.5 years*
20.1.1995	Wong On Lin	C/A	Attack on wife. Location - home. Sulphuric acid 96%. Scarred for life.	15 years
12.9.1995	Chow Kwok Fung	C/A	Attack on girlfriend. Location - her home. Paper cup of sulphuric acid. Defendant was 17 years old.	7 years
11.10.2000	Wong Sau Lai	C/A	Attack on husband. Location - home. Husband asleep. After argument during which husband beat furniture with a metal rod. Vision damaged.	7 years
17.10.2001	Wong Siu Kwan	C/A	Attack on husband. Location - public. Pill bottle of sulphuric acid 88%. Scarring to husband’s neck. Threw some on self. Husband accepted blame.	5 years
27.5.2004	Lung Hau Lin	C/A	Attack on ex-cohabitee. Victim blinded.	12 years
12.7.2010	Cheung Cho Fat	C/A	Attack on wife. Location - wife’s home. Jar of sulphuric acid 88%. Disfigurement not great. Defendant in his 70's. Forgiven by wife.	6 years
8.3.2011	Chiu Siu Mei	CFI	Attack on husband. Husband asleep. Hydrochloric acid (31w/w) Damage to one eye. Defendant had brain tumour changing personality. Forgiven by husband.	6 years
19.1.2012	Sin Wa Chiu	C/A	Attack on ex-wife. Bucket containing 2 bottles of sulphuric acid 52%. Severe disfigurement. Impairment to eyesight, breathing, movement and ability to eat.	18 years

*   This is calculated from the sentence of approximately 2 years (after allowing for the plea of guilty and remission).

Discussion

23.  We accept the applicant’s submission that at the time she committed the offence, she was in a fraught emotional state.  She had survived cancer but had lost her career.  She felt her husband had cheated her out of a property to which she had contributed her hard-earned savings and the court did not help her.  She may well have been suffering from depression at the time and it is unlikely that she would commit a similar offence.

24.  Having said that, the present case was a serious one.  First, the attack was not spontaneous such as one in the course of a heated argument, but was carefully prepared.  The applicant had filled up the container with the corrosive fluid the night before going to court. She had kept the container in her handbag until she learnt that the court had decided the application against her.  After the decision was announced, she left the courtroom so that she could open the container outside before returning to throw the fluid on her husband.  Those are the actions of a person who had thought through her tactics for the attack, more pre-meditated than someone who waits for a spouse to fall asleep to avoid resistance.

25.  Secondly, the attack was a completely unacceptable reaction to the result of legal proceedings in the Family Court.  Every legal proceeding has a winner and a loser, and most, if not all, proceedings in the Family Court are attended by parties who are in fraught emotional states.  A suitable deterrent message must be sent to all litigants, especially in the Family Court, that they cannot on the one hand enjoy the fruits of successful proceedings, and on the other hand take out their frustrations violently on the other party if they lose.   

26.  Thirdly, the damage done to the victim was serious.  He has been almost blinded in one eye, and has partly impaired vision in the other.  Having said that, it would appear that he is still able to go about his daily activities.   

27.  It seems to us that the present case is closest to Chiu Siu Mei and Wong Sau Lai where the starting points were 6 and 7 years respectively.  In all three cases (Chiu Siu Mei, Wong Sau Laiand the present case) the defendants were suffering from severe stress which they felt was caused by the behaviour of their husbands.  In all three cases, the attacks were pre-meditated - in the quoted cases the defendants waited for their husbands to fall asleep before attacking them.  In all three cases, the victims’ eyesight were damaged.  

28.  However as we have pointed out, there is the further aggravating feature in this case that the attack came about because the applicant was dissatisfied with a court order. It is important that the court provides society with a platform for disputes to be resolved in a civilized, rational way. The court has a duty to deter primal, violent conduct from unsuccessful litigants against their counterparts.  We consider that the judge was absolutely correct in adjusting the starting point upwards to reflect this aggravating feature.  Having said that, we take the view that what would appear to be a 2-3 year upward adjustment by the judge was too severe.  Given that this is the first case of a serious attack on a litigant within court premises (and hopefully the last), a one-year upward adjustment to the sentence in Wong Sau Lai would be adequate.  That would bring the starting point to 8 years. Taking into account the plea of guilty, the sentence would be reduced to 5 years and 4 months. 

Order

29.  We would allow the application, treat the application as the appeal proper, allow the appeal, set aside the sentence imposed by the judge and substitute for that a sentence of 5 years and 4 months.