HKSAR v. YU TIM HI

CACC 170/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 170 OF 2013

(ON APPEAL FROM HCCC NO. 313 OF 2012)

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Hon Kwan JA (giving the reasons for judgment of the Court):

Introduction

1.  On 3 May 2013, the applicant pleaded guilty to one count of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap 212 (Count 1); and one count of throwing corrosive fluid with intent to do grievous bodily harm (Count 2), contrary to section 29(c) of Cap 212 (Count 2).  On 7 May 2013, Deputy High Court Judge A Wong sentenced him to two months’ imprisonment on Count 1 and eight years’ imprisonment on Count 2, both terms of imprisonment to run concurrently.

2.  The applicant, who was not represented, sought leave to appeal against sentence on the single ground that the total sentence was manifestly too long.

3.  At the conclusion of the hearing, we refused leave to appeal against sentence and indicated that we would give our reasons later.  This we now do.

The facts

4.  This is a case of domestic violence.  The applicant, who is 69 years old, married the victim, who is in her early fifties, in China in 2004.  This was his second marriage. She came to live with him in Hong Kong in 2009.  Due to his old age and deterioration in health, he was unemployed from 2010.  The victim worked as a waitress in a restaurant.  Their relationship turned sour from then onwards and there were frequent disputes on money matters.

5.  The victim asked for a divorce.  The applicant agreed to this reluctantly.  Shortly before the time of Count 1, they signed the relevant papers for a divorce in a solicitors’ firm.

6.  On the evening of 11 December 2011, the victim was about to leave home for work when the applicant started an argument with her, blaming her for her poor service rendered to his friends when they were having a meal in the restaurant where she worked.  In the heat of the argument, the applicant punched her causing bruising to her right chest wall, arm, forearm and tenderness over her left face.  She sought medical treatment at the Tuen Mun Hospital and made a report to the police four days later.  She was then accommodated at a Harmony Home with the assistance of the Social Welfare Department.

7.  The applicant was arrested for assault on 20 December 2011.  He admitted the offence under caution and was released on police bail.

8.  In the evening of 30 January 2012, the victim received telephone calls from a woman claiming to be a police inspector asking to meet her outside the restaurant.  On arrival, the victim saw the applicant instead.  As he appeared calm and normal, she agreed to go with him to a children’s playground nearby.  They talked about their relationship for about an hour.  He asked for a reunion.  She refused and tried to leave.  He stopped her and took out a bottle of fluid from a plastic bag retrieved from a planter nearby.  He splashed the fluid at her.  The victim’s face and both hands sustained burns.  He was subdued by some passers-by and handed over to the police.  He admitted the offence under caution.

9.  In a subsequent interview, the applicant admitted he splashed sewage cleansing agent on to the victim for revenge as she owed him $7,000 and failed to return a gold pendant he gave her.  He bought the bottle of sewage cleansing agent several months ago for cleaning drains at home.  When he left home that evening, he took the bottle with him.  He said he just wanted to scare the victim.

10.  The liquid left in the bottle was confirmed to be sulphuric acid but the quantity was too small for determination of its concentration.  According to the label on the bottle, the contents were 800 ml of drain cleaning liquid.

The victim’s injuries

11.  The victim was hospitalised for almost a month.  On admission, she was found to have sustained deep burn to her right face, bilateral distal forearm, left knee and scalp. 7% of her body surface was affected.

12.  She was given dressing to her wounds.  Review of wound condition showed full thickness burn over scalp and bilateral hands.  Operation for debridement and skin grafting was performed.  Scalp wound swab grew heavy growth of staphylococcus aureus.  Grafts were taken and right thigh donor site wound improved.  Her condition was stable when she was discharged.

13.  Regular follow-up treatment showed hypertrophic scar over her right wrist and right face with cicatricial alopecia.  She was referred to occupational therapist for scar management programme.  She attended regular treatment and has fair compliance to pressure garment arrangement.  Her wrist scars were under control but the facial scar was still active with increased height and firmness.

14.  When she was examined in December 2012, there was hypertrophic scar over her right wrist and face.  The range of movement of her right wrist was full.  On the last assessment by the occupational therapist in April 2013, the wrist scars were pale pink in colour and raised up less than 1 mm in thickness.  The facial scar was pink in colour, it was firm with 2 to 4 mm in thickness.  She was able to tolerate pressure mask for three to four hours a day and the scar was reported to be flattened slightly with pressure mask.

15.  She attained full fist-making and wrist range of motion.  She complained of mild pain over the facial scar and tenderness of the wrist scar.  She still has to receive treatment from the occupational therapist and the scar management programme will continue.

16.  The attack also caused mild right eye conjunctivitis.  There was diffuse punctuate epithelial erosion over the right corner.  The condition improved with topical medication. Recent examination indicated her eyesight was close to normal.

The mitigation

17.  The applicant has no previous criminal conviction.  His counsel submitted the Count 1 was committed out of momentary loss of temper.  As for Count 2, it was submitted that he had brought along corrosive fluid with several thoughts in his mind including to commit suicide and to threaten the victim.  He had begged her to return home and if she did not, he said he would commit suicide before her.  But she did not care about his feelings and rejected his request for reconciliation with insulting words relating to his age and lack of means.  On hearing those words, he became furious and his mind went blank.  He threw corrosive fluid at her.  After his arrest, he was so filled with remorse that he tried to kill himself by hitting his head against a wall in the police cell, for which he received 12 stitches in hospital.

18.  His counsel submitted to the court his letter in mitigation, as well as letters begging for leniency written by his daughter, his nephew, the uncle and aunt of the victim.  The judge was urged to adopt a starting point of eight to nine years in sentencing.

The judge’s reasons for sentence

19.  The judge considered the photographs of the victim’s injuries, the medical report, the report from the occupational therapist and a psychologist report on the victim.

20.  In adopting a starting point of 12 years for Count 2, the judge had taken these matters into account.

21.  The maximum sentence for this offence is life imprisonment.  There is no tariff for sentencing.  As observed by Woo JA in HKSAR v Wong Siu Kwan, CACC 166/2001, 17 October 2001 at para 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.”

22.  The judge accepted there was nothing to contradict the applicant’s assertion that the offences were committed out of character.  He also accepted that the main purpose of the meeting in January 2012 was to ask for a reunion.  But notwithstanding that, the judge found that hurting the victim with corrosive fluid was within the applicant’s contemplation all along.  He had tricked her to their meeting place.  The judge found that when he splashed the fluid on to the victim when she was caught by surprise, he had intended to cause her grievous bodily harm, without regard as to whether the vulnerable parts of her body would be injured.  What he did was not a spontaneous act in the heat of the moment.

23.  The victim was still receiving treatment at the time of sentencing.  The information was insufficient for the judge to assess whether there was disfigurement on a permanent basis but obviously there was still a long way to complete recovery.  And although the psychologist reported that there was no indication of trauma reactions or clinical level of depression and anxiety of the victim, the court would nonetheless bear in mind the potential psychological distress and harm brought by this type of injuries.

24.  The judge regarded the domestic context of minimal significance, as the applicant and the victim had been living apart since Count 1 and it was by the applicant’s trick that she had come to meet him.

25.  The judge emphasised the need for a deterrent sentence for this vicious attack, and noted it was committed while the applicant was on police bail for his assault of the victim in Count 1.  In all the circumstances, he considered that a starting point of 12 years would be appropriate for Count 2.

26.  In respect of Count 1, the judge accepted that the offence was not premeditated.  He noted that no weapon was used and the injuries were not serious.  Nevertheless, there were bruises over various parts of the victim’s body, indicating that she was extensively assaulted.  The judge took a starting point of three months.

27.  For the plea of guilty and the applicant’s remorse, the judge gave a one-third discount in respect of the sentence on each count.  He declined to exercise his discretion to give any further reduction for the advanced age of the applicant, his clear record, or the nature and degree of any provocation due to the alleged insulting words of the victim.

28.  Although the two counts represented separate incidents and consecutive sentences are justified, the judge took into account the totality principle and ordered the sentences to run concurrently.  The total term of eight years was imposed.

Discussion

29.  As mentioned earlier, the only ground of appeal was whether the overall sentence of eight years was manifestly excessive.

30.  In his submissions to this court, the applicant reiterated his remorse and said he was truly sorry for what he did to the victim.  He asked for leniency as his son is seriously ill in hospital and he hoped for a lighter sentence so he could be reunited with his son earlier.

31.  Although there is no tariff for the offence of throwing corrosive fluid with intent to do grievous bodily harm, it is still of some assistance to refer to previous cases involving a domestic context or attacks made on persons in similar positions.  Ms Anna Lai for the respondent has put together for the court a schedule of 14 cases with a helpful summary of the brief facts, the victim’s injuries, the sentence imposed and the result on appeal.  They included all the cases cited to the judge in mitigation and the cases mentioned in the reasons for sentence, as well as other cases cited for the first time to us.  These cases are: Attorney General v Au Chi Tak [1987] HKLR 1121; R v Chan Chi Lun [1989] 1 HKC 70; R v Chan Sung, CACC 270/1992, 20 January 1993; R v Ngai Kwok Hing, CACC 514/1992, 3 June 1993; R v Wong On Lin [1995] 1 HKC 659; R v Chow Kwok Fung, CACC 511/1994, 12 September 1995; HKSAR v Wong Sau Lai, CACC 283/2000, 11 October 2000; HKSAR v Wong Siu Kwan, CACC 166/2001, 17 October 2001; HKSAR v Chung Sau Lan, CACC 533/2003, 26 March 2004; HKSAR v Lung Hau Lin [2004] 2 HKLRD 715; HKSAR v Cheung Cho Fat [2010] 5 HKC 400; HKSAR v Chi Chi Hong, Ken, CACC 299/2010, 25 November 2011; HKSAR v Sin Wa Chiu [2012] 1 HKLRD 768; and HKSAR v Wong Yuk Yee [2013] 3 HKLRD 218.  The starting point of sentencing upheld on appeal varied from four years six months to 18 years.  A similar schedule of ten cases appeared in Wong Yuk Yee[1].

32.  We wish to emphasise the serious nature of this offence, for which a strongly deterrent sentence is called for.  As Hartmann JA had said in Cheung Cho Fat, at para 59:

“As to the matter of deterrence, it has long been recognised that the throwing of acid at a person is a particularly vicious crime, one viewed with understandable abhorrence by right thinking members of society. Almost always, as in the present case, the person’s face is chosen as the principle target, the inevitable intent being to disfigure in a permanent and grotesque way. As was said by this court in R v Wong On Lin [1995] 1 HKC 659 at 662:

‘The seriousness of the offence is reflected in the maximum sentence which the court may pass, that is to say, life imprisonment … A deterrent, and a strongly deterrent, sentence is inevitably called for. Only in the most exceptional circumstances can an offender of this type expect to avoid a long period of imprisonment.’ ”

33.  Further, as Power JA had said in Chan Chi Lun,

“In offences of this kind the deterrent effect of a sentence is, perhaps, of larger moment than in any other class of offence.” (at 73B to C)

And

“It is our view that in offences of this nature whether the injury be grave or minor is largely fortuitous and weighs little in favour of the applicant.” (at 72E to F)

34.  See also a similar statement in Wong Siu Kwan at para 22 that the injuries suffered by the victim are of little relevance to sentence.

35.  We agree with Ms Lai there are aggravating features in this case.

36.  The attack was an act of revenge premeditated and well planned.  The applicant admitted in his interview with the police that he splashed the corrosive fluid on to the victim for revenge because she owed him $7,000 and failed to return a gold pendant.  The judge found that hurting the victim with corrosive fluid was within the applicant’s contemplation all along.  His allegation that he was provoked by her insulting words to injure her in this way is doubtful, in view of the fact that he had tricked the victim to see him by causing another person to pretend to be a woman police inspector and he then brought her to the playground where he had a bottle of corrosive fluid concealed in the planter.  As Ms Lai has pointed out, provocation was not mentioned by the applicant in his interviews with the police and was raised for the first time in his letter of mitigation to the court.

37.  The quantity of corrosive fluid splashed at the victim was not small.  The extent of the liquid left in the bottle stated to contain 800 ml of liquid was not sufficient for its concentration to be determined.  The victim had little opportunity to avoid the fluid when it was thrown at her.  And as this happened in a public playground, it was entirely conceivable that passers-by might get injured as the fluid was splashed at the victim.

38.  Moreover, the offence was committed while the applicant was on police bail for his assault of the victim in Count 1, and was just six weeks after the earlier assault.

39.  As evident from the photographs, the scars on the right face and wrists of the victim are unsightly.  We are given to understand that she is still undergoing regular treatment for her scars, and she now works as a part-time cleaner instead of a waitress.

40.  In all the circumstances, we do not think the sentence imposed on Count 2 was out of line with the sentences in the schedule of cases that we have considered.  And unlike some of the cases in the schedule in which a lower term of imprisonment was imposed for a premeditated attack, the applicant was not suffering from any mental or psychological impairment at the time he committed the offence.  It was entirely within the judge’s discretion to decline to take into account the applicant’s old age and clear record, as was remarked in Sin Wa Chiu at para 30.

41.  For the above reasons, we do not think the overall sentence was manifestly excessive.  The total term of eight years was entirely proper.  We therefore refused leave to appeal against sentence.

[1] The schedule there has two errors.  The starting point in Chan Sung was 8 years, not 7 years as stated.  And the starting point in Chow Kwok Fung was 12 years not 7 years, the latter was just the limit of jurisdiction of the District Court.