HKSAR v. WONG WAI HO

DCCC 30/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 30 OF 2016

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Reasons for Sentence

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1.  Yes, the defendant has pleaded guilty to three charges. The first is assault occasioning actual bodily harm, second one is throwing corrosive fluid with intent, and the 3rd charge is criminal damage. Defendant has accepted the facts and has been convicted on those three charges.

2.  I will give a brief recital of the facts because it is relevant to the way in which the case should be dealt with.  The victim in this case, PW1, is the ex-girlfriend of the defendant.  She has a or had at the time a 5-year-old daughter with the defendant and also two other sons with an ex-husband.  And PW1 resided on her own at a flat in Ma Tau Wai in Kowloon.  

3.  On 21 August 2015, in the evening, at about 7 o’clock, the defendant visited her while she and all her children were there, and the defendant was coming to see his daughter to take her out for dinner.  They had their dinner and then returned at about 11.30, and now there was a question of the bathing of the daughter, and a dispute arose between the defendant and PW1 at that time, and in that dispute, the defendant punched and kicked PW1 in her head and her abdomen, and she received some swelling as a result of that. So that forms the basis of the 1st charge.

4.  The victim was afraid and struggled with the defendant and managed to get him out of the flat.  And while they were outside the flat, defendant took out a bottle from the left pocket of his trousers, removed the cap of the bottle and splashed corrosive fluid from the bottle towards PW1.  And that is the 2nd charge.  She felt heat and pain and ran to seek assistance, and the defendant mentioned something about her not having a lover.

5.  The defendant then damaged the lock on the wooden door of the flat that belonged to PW1 and rushed into it.  He left the scene shortly afterwards. 

6.  He was arrested and made cautioned statements. He admitted taking the bottle out which he carried with him and splashing the fluid towards PW1 in order to scare her.  He also felt pain when some of the fluid splashed on himself.  He had kicked open the wooden door of the flat, and then he ran away.

7.  Now, as far as the forensic examination was concerned, PW1’s clothing, the bottle containing the fluid and the swab samples of the fluid remaining on the floor were seized.  Government chemist confirmed from the swab samples and from PW1’s T-shirt and brassiere that they contained traces of sulphuric acid.  The results also indicated that the observed damage on the fabrics of the T-shirt and brassiere could be caused by sulphuric acid with a concentration not less than 88 per cent weight-by-weight. Sulphuric acid at a concentration of 88 per cent weight-by-weight is highly corrosive, is capable of causing severe skin burns and permanent visual damage.  Traces of sulphuric acid were also recovered from the cap and five pieces of fragment of the bottle.

8.  Now, I turn to the injuries that have been sustained.  PW1 was sent to Queen Elizabeth Hospital shortly after, and the medical examination showed that she had redness on the left side of her face and, secondly, first-degree chemical burns to the left side of her face and second-degree chemical burns to the left upper arm and left upper back.

9.  The defendant himself also sustained injuries as a result of, as I understand him, pouring the acid onto himself to test it later, and he received chemical burns over his abdominal walls, thighs, right knee and left lower leg.  

10.  As far as those injuries are concerned, I have seen a number of photographs that have been taken of the victim and also of the defendant, and the injuries are as set out in the Agreed Facts.  They are somewhat disfiguring, the most recent photographs of the victim showing redness on her face where the acid went onto her face which is disfiguring and also on the back area of this.  I think it is keratotic skin damage can be seen. Similarly with the defendant, substantial damage to him as well.

11.  The case has a background, and that can be seen from the reports as I obtained.  But, firstly, I will deal with the known antecedents of the defendant.  He is 38 years old, a Hong Kong resident, educated to secondary level, Form 2.  He has worked as an air-condition mechanic but was unemployed when he was arrested. 

12.  His health condition as summarised briefly is an outpatient at Kwai Chung Hospital since 2012, alcohol dependence syndrome, polysubstance abuse, including ketamine and opioids.  He had no fixed place of abode at the time of his arrest.  And not set out in the report is that he obviously has a child by the victim with whom he cohabited at one stage. 

13.  He has a number of previous convictions mainly related to his drug addiction.  He received in 1996 and 1997 probation orders for his drug addiction and theft, again in 2000 a probation order for possession of Part I poison, in 2003 a further probation order for possession of dangerous drug. 

14.  Of relevance today is a conviction in 2012 for wounding or inflicting grievous bodily harm for which he received 6 months’ imprisonment, and I understand the victim in that case was also PW1.

15.  Turning to the reports, there is a detailed background report and I will give a brief summary of what seems to be the salient issues.  From the conclusion, we can see the defendant is described as a deep-rooted drug addict.  The probation officer notes the defendant was put on probation supervision for four convictions from 1996 to 2003 but did not grasp that opportunity to reform.  He has attended residential drug treatment service twice but continues to take drugs. 

16.  He had known of the victim for six years, and they had a daughter after one year of their relationship.  The defendant had cohabited with the victim and found out about her previous relationship and her children.  The victim herself suffered and still suffers from depression, heavy alcohol drinking and also receives psychiatric treatment, and that resulted in the daughter and the two sons, sorry, the daughter placed under foster care and the two sons’ custody being given to the victim’s ex‑husband.  

17.  The defendant had assisted in care of the daughter and the sons at weekends and holidays, but they had frequent arguments and quarrels on trivial matters such as childcare.  The defendant also says he easily lost his temper after drinking alcohol, and he had beaten the victim seriously after drinking alcohol and been imprisoned for that in 2012.

18.  The defendant told the probation officer he had hurt the victim again out of anger towards her drinking alcohol with other men, but he attributed this particular offence to his drunkenness and also auditory hallucinations that he had received at the time.  So it is a rather poor background.

19.  The psychiatric report describes the defendant as suffering from a mental and behavioural disorder due to the use of opioid and alcohol dependence syndrome.  And the psychiatrist forms the view the defendant was most likely intoxicated at the time of the offence, but his condition has been largely stable since he was remanded in Siu Lam, and no inpatient psychiatric management is warranted at the current time, and outpatient follow-up intoxication service is recommended, and he is fit to plead. 

20.  Defendant was also seen by the psychologist, and the psychologist describes the defendant as a reoffender of spousal assault, hot-tempered person persistently dependent on drugs and alcohol to cope with stress and negative emotions.  He has inadequate relationship skills, and an irresponsible attitude contributed to his current relationship problem.  He says he has a maladaptive mood management, experiences pent-up frustration and anger triggered by the unrewarding relationship.  In summary, it was said the indexed offence - that is this offence - appeared to be related to his chronic alcohol abuse and poor anger management.  He also appeared to be under alcohol intoxication which further weakened his impulse control.  He requires treatment for poor anger management and substance abuse problems and his inadequate relationship skills.

21.  The defendant has indicated he will be willing to accept such services but his motivation is described as being doubtful.

22.  Also of relevance there is -- a risk assessment was conducted, and it said the risk assessment was based on information currently available.  The risk of recidivism is dynamic with possibility to varying response to changes in personal and environmental considerations.  So there is a risk of the defendant continuing to commit offences of this nature but of course the catalyst of his relationship with PW1, as I understand, no longer exists.

23.  As far as sentence is concerned, sentence is very much at large in respect of all three offences, but the most serious of the offences that the defendant faces at present is the 2nd charge.  And the 2nd charge is a very serious charge, and the maximum sentence for this offence can be life imprisonment.  In the case of HKSAR v Wong Siu Kwan CACC 166/2001, Court of Appeal considered a large number of cases concerning throwing corrosive acid fluid with intent.  The starting point for this type of offence ranges from a few years to 18 years’ imprisonment, up to 18 years’ imprisonment.

24.  It is also said for offences of this nature, of this serious nature, the injuries suffered by the victim are of little relevance to sentence which can be seen from the case of Chan Chi Lung [1989] 1 HKC 70 and Ngai Kwok Hing CA 514/92 at page 72 and page 6.  And of course section 29(c) of the ordinance refers to the issue of whether bodily injury is effected or not as a result of the throwing of corrosive acid. 

25.  And there are a number of factors to be considered in relation to these offences.  There is firstly the nature of the acid concerned.  Here, it is described as being 88 per cent.  That is certainly capable of causing a severe injury.  The continuing cosmetic damage to the victim is of course relevant as well as is, to a certain extent, the extent of the injuries the defendant inflicted on himself as a result of this matter.

26.  Also, I bear in mind this is not the first time that the defendant has injured this particular victim.  He has been to prison for it before.  So it is an aggravating factor that he has continued to cause injury to her.  And the defendant accepts certainly through his counsel that he knew that the fluid that he threw was one that would cause harm to her.

27.  I have been referred to a number of cases where starting points in the range of 3 years’ imprisonment and below have been adopted by this court for the throwing of corrosive acid where in some cases serious injuries have been caused to the victims. Now, each case must of course turn on its own particular facts, and the defendant’s offence in a way is a domestic dispute that has been elevated far beyond the normal range of a domestic dispute, but there is element of premeditation in this and a sense of disfiguring injuries caused to the victim. 

28.  I shall adopt starting points of sentence as follows, and these of course will be reduced by one-third to indicate the defendant’s pleas of guilty. 

29.  As far as the first offence is concerned, that is the offence of assault occasioning actual bodily harm, this is an offence again for which sentences are at large.  It represents not for the first time the defendant has been involved in an assault on the victim.  What I should do is adopt a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment, having regard to the defendant’s plea of guilty.

30.  As far as the second offence is concerned of throwing corrosive fluid, I consider this to be a serious matter warranting a substantial sentence of imprisonment.  My initial starting point would be one of 45 months’ imprisonment which shall be increased by 3 months to reflect the aggravating factor of an earlier assault on the victim.  That will be a starting point of 48 months’ imprisonment.  The defendant is entitled to one-third reduction in sentence.  So I shall reduce the sentence thereby to 32 months’ imprisonment.

31.  On the 3rd charge, the charge of criminal damage, it started with 3 months’ imprisonment.  I reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

32.  All these offences were committed at the same time and form effectively one form of criminality.  So I shall order that all the sentences be served concurrently one to another.  The total overall sentence will be one of 32 months’ imprisonment.