HKSAR v. LI TIM CHUEN

CACC 186/2022 [2024] HKCA 232

On appeal from [2022] HKCFI 3635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 186 OF 2022

(ON APPEAL FROM HCCC NO 70 OF 2021)

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J U D G M E N T

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1.  The applicant originally faced four counts of throwing corrosive fluid with intent, contrary to s. 29(c) of the Offences against the Person Ordinance (Cap 212). On 9 August 2022, he was convicted of Counts 2 and 3 on his own plea before Andrew Chan J (the Judge). On 18 October 2022, he was sentenced to a total term of 15 years’ imprisonment.

2.  On 28 October 2022, the applicant filed a notice of application for leave to appeal against sentence. In his homemade grounds of appeal dated 10 July 2023, he alleges that he changed his pleas from not guilty to guilty because he was not properly advised by leading counsel who was representing him. He claims that leading counsel did not provide accurate information about the incident in the mitigation on his behalf. He also claims that the male captured on the CCTV footage relating to the incident, the subject of the counts, was someone hired to impersonate him.

3.  The applicant was originally granted legal aid and assigned legal representation, but this was later discharged. He appears in person in his leave application.

The admitted facts

4.  The facts admitted by the applicant and outlined to the Judge can be summarised as follows.[1] At about 12:30 pm on 25 January 2020, the applicant, a former resident of a home for the elderly, returned to the home with a bottle of drain cleaner, containing sulphuric acid of 98% in concentration, and two bottles of corrosive toilet flushing liquid. It appears he had an animus towards the home because the management of the home had forfeited a deposit of $8,200 having earlier vacated without giving due notice.

5.  When he arrived at the home, he approached four staff members, who were having lunch. He went up to them and, without saying a word, repeatedly splashed the contents of the bottle of drain cleaner on them. Two of the staff members, in particular, sustained serious burn injuries. Madam Shum (victim of Count 2) sustained burn injuries to the forehead, upper lips and both forearms. Madam Lin (victim of Count 3) sustained more serious burn injuries to the entire face, throat and ear. About seven percent of her total body surface had been burned.

6.  The applicant was arrested at the home shortly after the incident. In subsequent video recorded cautioned interviews, he admitted that (a) he was dissatisfied with the home because the staff members had mistreated him when he resided there; (b) he purchased a bottle of drain cleaner the day before the incident; and (c) on the day in question he returned to the home with the bottle of drain cleaner and two bottles of toilet flushing liquid and he splashed the drain cleaner on the care workers, with Madam Shum as his main target.

The mitigation

7.  The applicant was represented by Mr Philip Chau, SC, who addressed in mitigation the starting point to be adopted for the offences, the aggravating factors and the mitigating factors.

8.  Mr Chau accepted that there were no tariffs or guidelines for the case of this type but the the maximum penalty of life imprisonment reflected the seriousness of the offending. He next addressed the aggravating factors. He acknowledged that the applicant had a prior criminal record for violence. In 1969, he had been convicted of assault and, in 2001, he had been convicted of murder. He had been released from prison custody and on parole on 13 June 2018, about 18 months before he committed the present offences. He accepted that this was a revenge attack involving multiple victims and that the injuries to the victims were serious, with Madam Lin most probably having permanent disfigurement. He finally addressed the mitigating factors. He submitted that even though the applicant had not entered his pleas of guilty late, he made a full and frank admission in his cautioned interviews. However, he acknowledged that there was a Newton inquiry in which the applicant challenged the injuries to the two victims. It appears the two medical practitioners who treated the victims were called to give evidence. Mr Chau suggested that the applicant was entitled to a discount in the region of 20 to 25 per cent. He also noted that the applicant was 84 years of age at the time of the offence and close to 88 years of age at the time of sentencing. He urged the court to afford the applicant a further discount, as a matter of mercy, given that there was a chance the applicant might die in prison considering his age and the likely heavy sentence to be imposed.[2]

Reasons for Sentence

9.  The Judge pointed out that there were no sentencing guidelines for the offence and he referred to HKSAR v Lau Ching-him CACC 271/2016 for the relevant factors that may affect the length of sentence for the offence.

10.  In passing sentence, the Judge highlighted the fact that the attack was carefully planned with the aim to cause maximum harm to staff and that the applicant had brought along three bottles of corrosive fluid, using the one that had 98% concentration of sulphuric acid.

11.  The Judge noted the advanced age of the applicant and that the chance of him dying in prison could not be eliminated. However, in light of this and previous offences, he considered that the applicant had a violent disposition and was a risk to the general safety of the community. He found that this was a premeditated vicious attack on innocent staff with the intention of inflicting maximum injuries and did result in causing permanent disfigurement and extensive injuries to Madam Lin, for which he adopted a starting point of 18 years’ imprisonment on Count 3. As for Count 2, since Madam Shum’s injuries were comparatively less severe than those of Madam Lin, he adopted a starting point of 9 years’ imprisonment. Taking into account the applicant’s previous criminal record for violence (including a conviction for murder) and the whole of the circumstances of the case, the Judge considered that the overall starting point should be one of 20 years’ imprisonment.

12.  The Judge gave a discount of 25% for the applicant’s age and guilty pleas, which he noted were only tendered on the first day of trial. As such, the applicant was sentenced to 6 years and 9 months’ imprisonment for Count 2 and 13 years and 6 months’ imprisonment for Count 3. He ordered that 1 year and 6 months of Count 2 run consecutively to the sentence of Count 3, resulting in a total sentence of 15 years’ imprisonment.

Discussion

13.  Ms Peggy Leung, for the respondent, notes that the applicant is now 89 years of age and faced court for the present offences with two previous convictions relating to violent behaviour by the applicant, including one for murder. She notes that his sentence of life imprisonment was commuted to one of 27 years’ imprisonment by the Chief Executive on 23 April 2017, and he was released on parole on 13 June 2018.

14.  She argues that notwithstanding the applicant is elderly, he has displayed a violent disposition, committing the present offences just over 18 months after his release from prison for the offence of murder. She argues he has completely disregarded the law and shown a lack of remorse. She submits that the Judge correctly sentenced the applicant for the serious offences he committed and the risk he poses to the community as a recidivist. She argues that the applicant is not deserving of any mercy for the fact that he is elderly. She makes the point that the Judge took these matters into account, particularly the risk that the applicant poses to the community when he stated in his reasons for sentence, “he [the applicant] is in my view, just as dangerous as 22 years ago and should not be released until his risk to the safety of our community can completely be eliminated”[3].

15.  The criticisms that the applicant has levelled against leading counsel are not justified at all. The applicant was fortunate that he was able to reduce the offences from four to two in circumstances where he was plainly guilty. The mitigation presented on the applicant’s behalf was comprehensive and complete, thoughtfully addressing the matters against him and in his favour. He received the benefit of a 25 per cent discount when it could have been less, given that he entered his pleas late and insisted on challenging the medical evidence regarding the injuries to the victims. He has clearly shown no remorse and I agree with the respondent’s submission that the Judge has properly taken into account the relevant matters when sentencing the applicant. He was deserving of the severe sentence that he received. I should add that the victim impact statements, as noted by the Judge, confirm the horrific and serious injuries the two victims sustained and the lasting effect that this will have on them for the rest of their lives. Madam Lin, the victim in Count 3, suffered serious injuries and disfigurement and this explains the high starting point the Judge adopted for this count. The resultant sentence of 15 years’ imprisonment was appropriate and just in the circumstances of the offence and the offender.

Conclusion

16.  For the foregoing reasons, I refuse leave to appeal against sentence to the applicant.

17.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.