HKSAR v. LI TIM CHUEN

CACC 186 /2022, [2024] HKCA 1104

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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Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant originally faced four counts of throwing corrosive fluid with intent, contrary to section 29(c)  of the Offences against the Person Ordinance, Cap 212. On 9 August 2022, he appeared before Andrew Chan J (“the judge”)  and was convicted on his own pleas to Counts 2 and 3 only, while Counts 1 and 4 were marked not to be proceeded with without leave of the court. 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 respect of his leave application, the applicant was originally granted legal aid and assigned legal representation, but legal aid was later discharged.  On 8 March 2024, the applicant’s leave application was refused by the Single Judge[1].  Following the refusal, the applicant made a further application for legal aid on 12 March 2024, which was also refused.  He appeared in person before us but has not filed a written submission in support of his renewed application for leave to appeal.

The prosecution case

3.  The facts admitted by the applicant revealed that at about 12:30 pm on 25 January 2020, the applicant, a former resident of a retirement home for the elderly (“the Home”), returned to the premises with a bottle of drainage cleaner, containing sulphuric acid with a 98% concentration, and two bottles of corrosive toilet cleaner.  It appears he had a hostile animus towards the Home after its management had forfeited a deposit of $8,200 for vacating his room early without giving due notice.

4.  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 drainage cleaner on them.  Two of the staff members sustained serious burn injuries.  Madam Shum (the victim of Count 2)  sustained burn injuries to her forehead, upper lips and both forearms.  Madam Lin (the victim of Count 3)  sustained more serious burns to her entire face, throat and ear.  About seven percent of her total body surface was thereby affected. 

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

Impact assessment reports of the victims

6.  As revealed in their impact assessment reports obtained 20 months after the attack, Madam Sham and Madam Lin suffered from different degrees of physical injury and post-traumatic stress disorder.  Madam Shum continued to experience symptoms of post-traumatic stress disorder, such as avoiding other people, an impaired sense of safety and security, hyper-vigilance and insomnia[2]. Madam Lin has blurred vision, pain at the burned skin regions, significant burn scars over her face, frequent nightmares, poor sleep quality, reduced appetite, low mood, fatigue, easy irritation, and social withdrawal.  Her clinical symptoms warranted a diagnosis of post-traumatic stress disorder and major depressive disorder[3].

The mitigation

7.  Mr Philip Chau SC, on behalf of the applicant at the sentencing hearing, accepted that there were no tariffs or guidelines for a case of this type; however, the maximum penalty of life imprisonment reflected the seriousness of the offending.  He acknowledged that the applicant had previous convictions for violence.  In 1969, he had been convicted of assault occasioning actual bodily harm; and, in 2001, he had been convicted of murder. He was released from prison custody on 13 June 2018, about 18 months before he committed the present offences.  He accepted that this was a revenge attack involving more than one victim and that the injuries to those victims were serious, with Madam Lin most probably having permanent disfigurement. 

8.  By way of mitigation, Mr Chau submitted that even though the applicant had entered his pleas of guilty late, he had made full and frank admissions in his cautioned interviews.  However, he acknowledged that there had been a Newton inquiry, in which the applicant had 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 should receive a discount from the starting point of 20% to 25%.  He also noted that the applicant was 84 years of age at the time of the offence, and close to 88 years at the time of sentencing.  He urged the court to afford the applicant a further discount, as a matter of mercy, since there was an obvious chance that the applicant might die in prison given his age and the likely heavy sentence to be imposed.

Reasons for sentence

9.  Whilst accepting that there were no sentencing guidelines for the offence, the judge referred to the case of HKSAR v Lau Ching Him[4] for the relevant factors that may affect the length of sentence for the offence.  He highlighted the fact that the attack was carefully planned, with the aim of causing maximum harm to staff, and that the applicant had brought along three bottles of corrosive fluid, using the one that had a 98% concentration of sulphuric acid.

10.  The judge noted the advanced age of the applicant and that the chance of him dying in prison could not be discounted. However, in light of this and his 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 and vicious attack on innocent staff members of the Home, with the intention of inflicting maximum harm, which had resulted in 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, he adopted a starting point of 9 years’ imprisonment.  Taking into account the applicant’s previous criminal record for violence, including his conviction for murder, and the whole of the circumstances of the case, the judge considered that the overall starting point for the applicant’s conduct should be 20 years’ imprisonment.

11.  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 on Count 2; and 13 years and 6 months’ imprisonment on Count 3.  He ordered that 1 year and 6 months of the sentence on Count 2 should run consecutively to the sentence of Count 3, resulting in an overall sentence of 15 years’ imprisonment.

The applicant’s grounds of appeal and submission

12.  The applicant made various complaints against his leading counsel at the sentencing hearing in a letter attached to his Form XI Notice and in a letter dated 10 July 2023.  These he repeated at the appeal before us.  Among other things, the applicant alleged that he was not properly advised by his trial counsel as to his pleas[5]. Further, he claimed that leading counsel did not provide accurate information about the incident during mitigation.  He also seems to have claimed that the male captured on the CCTV footage relating to the incident was not him but someone hired to impersonate him.  He made a similar claim before us during the appeal hearing.

The respondent’s submission

13.  Ms Peggy Leung, for the respondent, submitted that the present case exhibited all the aggravating features identified in Lau Ching Him.  It was a premediated attack conducted in a calm and calculated manner, which had caused grave and permanent injuries to Madam Shum and Madam Lin, justifying starting points of 9 years’ imprisonment in respect of Count 2 and 18 years’ imprisonment in respect of Count 3.  She argued that the judge had been generous in granting an additional 5% discount for the applicant’s advanced age on top of the usual 20% discount for what was a late plea entered on the first day of trial[6]. The order that 1 year and 6 months of the sentence on Count 2 should run consecutively to the sentence on Count 3 was entirely justifiable in view of the additional harm done to Madam Shum.

14.  Ms Leung further argued that it was not an appropriate case for the exercise of mercy.  She noted that notwithstanding that the applicant was elderly, he has continued to display a violent disposition, committing the present offences just over 18 months after his release from prison for a sentence of murder.  She contended that the applicant had a complete disregard for the law and had shown a total lack of remorse. She endorsed the judge’s finding that the applicant was “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”[7].

Discussion

15.  As the Court in HKSAR v Fok Ka Po Joe (No 2)[8] has noted of the crime of throwing corrosive fluid with intent, “the courts have used very charged language, such as ‘vile’[9], ‘vicious’[10], ‘sickening’[11], ‘horrific’[12], ‘hideous’[13] and ‘wicked’[14] to describe its commission”.  Consistent with those sentiments, the judge in the present case described the applicant’s premeditated actions as “vicious”[15], and the consequences of the attack on one of the victims as “horrific beyond words”[16].

16.  The Court in Fok Ka Po Joe (No 2) went on to make the observation[17]:

“Clearly, for a crime of this nature in a city where people live and work in close proximity to one another, deterrence is a highly relevant and significant component of the sentencing process for this particular offence. As the Court in HKSAR v Lau Ching Him observed, after conducting a comprehensive review of previous appellate decisions in this area:

‘… the harm caused by the offence can be so horrific with appalling long term, and frequently whole of life, consequences to the victim. Thus, the courts have emphasised the importance of the sentencing principles of denunciation, deterrence and punishment. In R v Chan Chi Lun,Power JA in giving the judgment of the Court of Appeal said: ‘In offences of this kind the deterrent effect of a sentence is, perhaps, of larger moment than in any other class of offence’.

The need to accommodate these principles will inevitably mean that the principle of rehabilitation will be relegated to a much less prominent role in the determination of a just sentence. The importance of giving proper allowance, indeed emphasis, to the principles of denunciation and deterrence will inevitably result in severe sentences’”.

17.  There are, as the judge recognised, a number of aggravating features in this case, which are particularly disturbing.  Apart from the obvious facts that “the attack was carefully planned, aimed at causing maximum harm to the staff while they were having their lunch”[18], and that permanent disfigurement and extensive injuries have been caused to two victims[19] accompanied by long-term psychological suffering[20], the applicant is no stranger to the use of extreme violence in order to wreak revenge on those he perceives to have wronged him.  Apart from an early offence in his 30’s of assault occasioning actual bodily harm, the applicant had come out of prison a mere 18 months before the commission of the present offence, having served (with remission)  the equivalent of a determinate sentence of 27 years’ imprisonment for murder, which had been commuted from life imprisonment by the Chief Executive on the recommendation of the Long-term Prison Sentences Review Board. 

18.  The latter offence concerned the murder of a female colleague, whom he also felt had wronged him.  Two psychiatrists, who gave evidence at his trial for murder in 2001, described the applicant as someone unable to control his emotions[21], and it is clear from a perusal of the facts of that case that the applicant had deliberately planned to exact his revenge, buying a knife and lying in wait for his victim before perpetrating, in a public place, a cowardly attack on her, which was described by a witness as “frenzied, mad, crazy”[22].  It is noteworthy that the applicant would have been 65 years of age at the time of that offence: he was a few days short of 85 years of age at the time of the present offence.  Of his advancing age and his propensity for violence, the judge held, rightly in our view, in light of that history[23]:

“The lengthy incarceration at prison seems to have had little deterrent effect on him using violence. In short, the defendant is a very violent man who still likes to resort to violence once things do not go his way. That can be seen today during the court proceedings as well. He 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”.

19.  The fact that the applicant was nearly 85 years of age when he cold-heartedly carried out this calculated and despicable crime rather undermines the argument for mercy at this stage of his life, especially when he has already been granted clemency by the Chief Executive for what ranks as the most serious offence in the criminal calendar.  As the judge remarked during an exchange with leading counsel during mitigation on this issue[24]:

“…I of course accept that there is a strong likelihood that he will die in prison but on the other hand I must balance that with the interest of the victims. And in this particular case, [the applicant’s sentence] was commuted from life imprisonment to one of 27 years’ imprisonment… and then I believe it was only 18 months after he was released that he committed the present offence … So when he committed the present offences, he was already in his 80’s. So in that sense when he chose to commit another offence when he was in his 80’s, why should the court grant him leniency?”

20.  There are occasions in sentencing where the gravity and circumstances of the offence committed and the background and antecedents of the offender demand the passing of a severe sentence, irrespective of the advanced age of the offender and the likelihood that he will spend the rest of his life in prison.  Regrettably, this is such a case.

21.  In any event, the judge did reflect the fact that the applicant was at an advanced stage of his life by granting him a 25% discount from the appropriate starting point, notwithstanding that he did not plead guilty until the first day of his trial.  He should in the normal course have given the applicant a discount of 20% in accordance with Ngo Van Nam[25] but, as he explained, and in the exercise of his discretion, he was adopting a 25% discount in part because of the applicant’s age[26]. Given the heinous circumstances of the applicant’s crime despite his late pleas, the discount was merciful and the applicant can have no valid complaint.  The judge’s reasons and the exercise of his discretion cannot be faulted.

22.  As for the veiled allegations against leading counsel and the other complaints against the sentence, we entirely reject them.  We have had the advantage of reading a careful mitigation presented by Mr Chau, which successfully persuaded the judge, as we have just noted, to give the applicant a 25% discount rather than a 20% discount for his late pleas.  The mitigation presented was comprehensive and complete, properly addressing those matters for and against the applicant.  However, the applicant’s challenge to the medical evidence of the victims’ injuries by way of a Newton hearing displayed a serious lack of remorse on his part.

23.  The ultimate sentence was in our judgment entirely appropriate and the application for leave to appeal against sentence is refused and the appeal dismissed.