CRIMINAL CASE NO. 443 OF 2010
COURT: This defendant pleaded guilty at committal on 19 November 2010 to one charge of throwing corrosive fluid with intent to do grievous bodily harm, contrary to section 29(c) of the Offences Against the Person Ordinance, Cap. 212. The maximum penalty for that offence is life imprisonment.
On 9 February 2011, the defendant confirmed her plea of guilty and confirmed also the facts that she had admitted at committal, and having heard mitigation, I sought a psychiatric report before sentencing.
The defendant and the victim, Mr Yam Yuk-lam, are husband and wife and have been married for 30 years. They have four adult children, all of whom are living away from home. The marital relationship soured when the defendant suspected her husband was having extramarital affairs on the mainland. In October 2009, the defendant employed a private detective, who took photographs of her husband and his apparent girlfriend.
On 10 July 2010 at around 1 o’clock, Mr Yam went to bed wearing only his underpants, believing that the defendant was asleep. At around 3.30 am he suddenly felt very hot in his eyes and face. He sat up and saw the defendant in front of him, holding a small bucket, about 8 inches in diameter. She threw liquid from the bucket at his face, telling him to “Go to hell”.
The victim rushed to wash away the liquid in the toilet. He then dressed, and sought help from the security post on the ground floor. He was admitted to hospital, and medical examination revealed the following findings: extensive alkaline injury over the face, both eyes and upper chest. There was 0.5 per cent area of facial burn noted. His bilateral eyes showed conjunctivitis. The visual acuity of his bilateral eyes was impaired; the right eye 20/70, the left eye 20/50. The mode of injury was compatible with chemical burn.
The defendant, after the incident, telephoned her youngest daughter at about 6.15 am on the same day and confessed that she had thrown corrosive liquid at Yam.
At about 8 am she was arrested at her home. She admitted under caution that she bought a bottle of corrosive liquid for about $8 and she threw the liquid at Yam at about 3.30 am as revenge for his having a mistress on the mainland and his mental abuse of her by persistently calling her names for years.
She told police she disposed of the bottle of corrosive liquid in a rubbish bin outside the flat.
Later, in a video interview, the defendant claimed she had been troubled by her husband’s extramarital affairs and had to rely on sleeping pills as a result. She admitted buying the corrosive liquid to splash it on Yam.
Police found a glass bottle labelled “Liquid Toilet Cleaner” amongst the rubbish in a bin in the vicinity of their flat. The bottle still contained a small amount of liquid. Police also seized the pyjama top, pillow and quilt, together with items found near the bed, for forensic examination.
The bottle contained 1 millilitre of colourless liquid containing hydrochloric acid at a concentration of 31 per cent weight by weight. The concentration of hydrochloric acid was corrosive and capable of causing burns to the skin and damage to the eyes.
Traces of hydrochloric acid were recovered from the pyjama top, pillow, quilt, photo frame and paper box. A simulation test using 31 per cent weight by weight of hydrochloric acid was performed on the pyjama top, pillow and quilt. Neither burn hole nor discolouration of the fabric samples was found, and the result was consistent with the general condition of the items.
Police located the hardware store where the defendant had bought the liquid. The shop owner claimed that each bottle of floor detergent contained about 640 millilitres, and that the liquid was used for cleaning floors and ceramic tiles. According to him, it was not as corrosive as drain cleaner or strong acid. Also, according to the shop owner, it could be washed away with water and would not cause harm to the skin.
On 19 July 2010, the victim had an operation for amniotic membrane transplant on his right eye. A medical report prepared by the Ophthalmology Department at Tuen Mun Hospital, as at 10 December 2010, described his condition at the time of referral as total epithelial loss of right cornea with mild epithelial loss of left cornea. The left eye recovered gradually during the in-patient stay. The right eye treatment was complicated with increased intraocular pressure and cataracts due to the injury.
On 19 July 2010, an amniotic membrane transplant was carried out on the right eye. The victim required frequent outpatient follow-up for his right eye condition, with amniotic membrane graft and bandage contact lenses. Repeated operations of amniotic membrane graft was done, but with limited success. The right eyelid entropion correction was done to correct the eyelid malposition caused by the injury.
The follow-up report dated 10 December 2010 found that visual acuity for the right eye was hand movement only, but it was stated to be not permanent. The visual acuity for the left eye was in the normal range at that time. The condition of the victim was not sufficiently stable to allow the determination of the extent of any permanent disability in the six months after the report.
Since then there has been a follow-up report dated 17 February 2011, which states that the left eye has almost normal vision, but the right eye, despite multiple operations, still has visual acuity at hand movement level only. The epithelial defect has not completely healed, secondary cataract is present, and severely obscures the victim’s vision. The prognosis for the right eye is still uncertain. Further operations are planned. Visual recovery, if it occurs at all, may take at least six months, even if the proposed operations are successful.
In mitigation I was told that the defendant is aged 55 and has a clear record. She was educated to Form 5 level in Hong Kong, and after her studies she worked as a clerk for about two years, but she did not work after her marriage in 1978. She and her husband had four children, who are now aged between 25 and 31.
She was regarded by her family as a good and supportive mother. She also assisted her husband in his business when he opened a concrete business, and her husband, in a letter to the court, acknowledges that she gave him assistance.
The marital relationship began to disintegrate because of the husband’s sexual excursions to the mainland. There were frequent quarrels because of this behaviour. This resulted, in 2005, in the defendant’s seeking psychiatric help, but after four to five visits she defaulted on further appointments. If she had continued with that treatment, this present incident might have been avoided altogether.
Although Mr Yam agrees that he had extramarital interests, he dismissed them as unimportant, and considered his wife was making too much of a fuss about them. The defendant became more and more upset by his behaviour and eventually obtained confirmation of her suspicions, through a private detective, of her husband photographed in the company of a woman. The defendant also suspected that her husband had fathered a child or children, although there was no admission by the victim that that was the case.
Around the time she hired the private detective, the defendant was diagnosed with a brain tumour, for which she was operated on in November 2009 in a seven-hour operation. Complications ensued from the original operation, and the defendant spent a month in hospital. She was particularly upset at this time that her husband appeared not to be showing any concern for her condition. His visits to her in the hospital were perfunctory and, according to her, very short.
It appears to be that her resentment towards her husband increased from that time and she began to plan to throw acid on him from about the same time. The acid attack was triggered after yet another argument over the victim’s philandering.
I sought a psychiatric report prior to sentencing. Dr Choi Wing-kit said that the defendant was showing no psychotic symptoms or morbid thoughts. He confirmed that she understood the charge and her position in relation to the charge. In his view, she appeared very remorseful. He confirmed that she does not have active psychiatric symptoms now and does not need any psychiatric intervention at this stage. He referred to the frequent quarrels with the husband over his affairs, her suicidal gestures, which caused emotional turmoil, and her sleep problem, and he referred to her being sent to a psychiatrist in 2005, but having defaulted from those appointments.
So I am satisfied that at this stage the defendant does not need any psychiatric assistance or help.
I have had placed before me a large number of letters in mitigation. The most important one, perhaps, from the point of view of the sentencing, is that from her husband, in which he confirms that she was a simple, honest and kind woman. He believed she was acting out of character, and he refers to her “stupidity” in behaving as she did, but nevertheless says that he forgives her, and asks that she be sentenced leniently.
Her three daughters and son and daughter-in-law confirm this picture of the defendant as a supportive mother, hardworking, kind and generous, and they have offered to care for her when she is released.
I have also had, about 26 letters from friends, some of which have multiple signatures. These are a combination of schoolfriends dating back in some cases to primary school, and also devotees of Chinese opera with whom she associates now. They all confirm her being simple, kind, helpful and generous, and most of the persons who associated with her latterly, believe that the operation for the brain tumour and the consequent operation on her intestine affected her badly and caused a change in her personality.
There were also letters of appreciation for the charity work that she performed with the Cantonese Opera Club and the Elderly Welfare Centre and letters of appreciation from the District Council over the public service efforts that she made.
An offence such as this is very serious, which is evidenced by the fact that it is triable on indictment and carries a maximum sentence of life imprisonment. There are many different fact situations that can be encompassed in this acid-throwing scenario.
A number of authorities were referred to me which discuss, effectively, the principles relating to sentence for such cases. Perhaps the most useful authority was HKSAR v Wong Siu Kwan, CACC 166/2001 17 October 2001 unreported, because there the court looked at a number of cases on appeal and found that the range of sentence varied from 18 years at the top level to about 2 years at the bottom.
Variable matters which can be taken into account are the nature of the attack and its motive; the intention and mindset of the attacker or attackers; whether the attack was spontaneous or premeditated and planned; the serious nature of any injury caused and also how focused and specific was the modus operandi.
Here, the attack was premeditated. The purchase was made deliberately, and the defendant waited until the victim was asleep, thus ensuring an easy target and good coverage by the acid. The first acid thrown apparently woke the victim, and then the second lot was thrown when he sat up.
There was no attempt by the defendant to assist in washing the acid away or calling for medical or other assistance, although I accept that there was no attempt by her to flee, either. She waited for the police to come and arrest her.
The marital dispute had affected the defendant, and it appears that revenge was the basis for the attack. The defendant admitted what she had done in a telephone call to her daughter, and she also told police where she had disposed of the bottle.
Although I have noted the serious injuries to the eyes of the victim, that is not necessarily a major factor in considering sentence.
The case of HKSAR v. Wong Sau Lai, CACC 283/2000 11 October 2001 unreported, is close on its facts to the present case, and as I said, that of Wong Siu Kwan takes an overview of the principles in the relevant cases.
Here, the victim sought leniency for what he terms his wife’s stupidity in taking such action. He admits the difficulties caused to his marriage by his extramarital affairs. The court is entitled to give his views some consideration when assessing the appropriate sentence.
However, the court has also to consider that acid throwing cannot be resorted to as a substitute for marriage counselling. The court has to make it clear that acid throwing 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.
Mitigating factors that can legitimately reduce the sentence from the starting point are genuine remorse, clear record, positive good character, the fact that the offence is out of character for the person concerned, the impaired mental function and health problems occasioned in this case by the surgery for the brain tumour and the ensuing complications. I note that it is unlikely that the defendant would reoffend in this particular instance.
I take those factors into account, and take account too of the major mitigation, which is the plea of guilty.
In this case, I take a starting point of 6 years, and sentence the defendant to 4 years’ imprisonment.