HKSAR v. WONG SIU KWAN

CACC 166/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 166 OF 2001

(ON APPEAL FROM HCCC NO. 43 of 2001)

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JUDGMENT

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Woo JA (delivering the judgment of the Court) :

Introduction

The applicant pleaded guilty before Deputy High Court Judge McMahon on 25 April 2001 to a single count of throwing corrosive fluid with intent, contrary to s 29(c) of the Offences Against the Person Ordinance, Cap 212. The Judge adopted a starting point of 10 years' imprisonment and having taken into account the guilty plea and mitigating circumstances, imposed a sentence of imprisonment for 5 years and 6 months on the applicant.

2. Now the applicant applies for leave to appeal against sentence.

Grounds of appeal

3. There are 3 grounds of appeal, culminating into the 4th ground which asserts that the sentence was manifestly excessive. The 3 substantive grounds are as follows:

(1) The Judge failed to have sufficient regard to the emotional trauma suffered by the applicant prior to the commission of the offence and its inevitable effect on her judgment.

(2) The Judge failed to have sufficient regard to the views of the victim in his acceptance of responsibility for what had happened, his reluctance to pursue his wife for her action and in his desire that she be treated leniently.

(3) The Judge failed to distinguish sufficiently between the present facts, described by the victim as a "momentary loss of reason," and a determined and concerted intention to disfigure.

Facts

4. The victim is the applicant's ex-husband. They were married in the Mainland in 1990. Two young sons were born out of the marriage. In 1995, the applicant came to Hong Kong to stay. However, the victim's mother did not like her. In 1998, due to the victim's insistence, the parties obtained a divorce in the Mainland. However, the parties were still living together in the same household with their sons. The applicant always had a wish of maintaining the relationship. However, her wish was shattered when the victim eventually moved out to live in the quarters provided by the restaurant in which he was working. That was in early June 2000. Thence, he did not come home. The applicant then frequently went to his place of work in order to urge him to come home. She started to think that he was going to marry another woman. This brought her anguish with insomnia, for which she took heavy dosages of sleeping pills.

5. On 1 July 2000, the applicant was disappointed that the victim did not come home. She became very distressed and disorganised. She was only able to sleep for one to two hours that night. The next day, 2 July 2000, she went to see the victim in the restaurant. He took her out for a walk in a public garden to talk. They quarrelled. The applicant then took out a bottle of corrosive fluid, which was later found out to contain 88% of sulphuric acid, and threw it to his face and neck. She also threw some on herself.

6. The victim felt pain and immediately went into a nearby washroom to wash the fluid off. This prompt action might well have saved him from more serious injuries. Subsequently, he returned to the restaurant, from which he was taken to hospital. The burns were to most of his facial skin and to parts of his neck. Most of the burns were superficial, but about 1% of the victim's total body area or about 20% of the face had burns second degree deep or intensive in nature. With treatment, the victim now has no scar on his face though there is some potentially permanent scarring to his neck.

The sentencing

7. Before sentencing, the Judge read a letter dated 6 March 2000 (which should be 2001) from the husband and a psychiatric report dated 19 April 2001 by Professor David Ho on the applicant.

8. After considering the cases of R v Chan Chi-lung, [1989] 1 HKC 70, R v Ngai Kwok-hing, CA 514/92 (3 June 1993, unreported) and R v Wong On-lin [1995] 1 HKCLR 224, the Judge adopted a starting point of 10 years' imprisonment. The Judge went on to have regard to the following mitigating circumstances, namely,

(a) that the applicant showed genuine remorse for her act;

(b) she, aged 34 years, had a clear record and the attack was completely out of character which had hitherto been good;

(c) she was mentally confused when she committed the offence; and

(d) she had two young sons aged respectively 9 and 3 years to care for.

He came to the conclusion of passing a sentence of 5 years and 6 months' imprisonment on the applicant.

The authorities

9. While Ms Draycott, for the applicant, in her written argument refers mainly to the three cases cited by the Judge, Mr Poon, for the respondent, has very helpfully drawn the attention of this Court to 3 more cases on sentence in respect of the same offence. While it is trite that each case depends upon its own facts, it is relevant to refer to cases relating to the same offence to have a better understanding on how our courts have dealt with it.

10. In HKSAR v Yu Wai-chiu, CACC 300/2000 (20 December 2000, unreported), the applicant was a drug addict with a criminal record. He pleaded guilty to one count of throwing corrosive fluid with intent, contrary to s 29(c) of the Ordinance. He did not know the victim, and the attack was carried out so that he would receive dangerous drugs as a reward. The victim sustained third degree burns that covered 18% of her body and had received various treatments, therapies and skin graft procedures. She would be disfigured for life. The judge adopted a starting point of 18 years' imprisonment and sentenced the applicant to a term of 12 years to take account of his plea. The Court of Appeal described the case as truly terrible and the attack as cold-blooded. It concluded that the sentence imposed by the trial judge was neither wrong in principle nor manifestly excessive. The application for leave to appeal against sentence was dismissed.

11. In AG v Au Chi-tak [1987] HKLR 1121, the respondent, the defendant, was convicted by a jury of the same offence after trial. It was a premeditated revenge attack, which left the victim, a young woman, disfigured for life. The trial judge passed a sentence of 8 years' imprisonment. Upon a review of sentence, the Court of Appeal substituted a sentence of 13 years' imprisonment, saying that: "we are satisfied that a sentence of 13 years would by no means have been too long."

12. In Wong On-lin, referred to above, where the applicant had poured sulphuric acid over his wife's face, a sentence of 13 years' imprisonment was passed by the judge. The act was committed by the applicant in the belief that the wife had an adulterous relationship with a man. He held a bottle of toilet cleanser, ie, the sulphuric acid, forced his wife into the bedroom, pushed her onto a bunk bed and poured the cleanser over her face with a circular motion. The offence left the wife scarred physically and mentally for life. The Court of Appeal concluded that the sentence was entirely proper and refused to grant leave to appeal against sentence.

13. In Chan Chi-lung, above, the applicant was a triad member who was paid to carry out a cold-blooded and determined attack on a nightclub hostess. He was 16 years of age when he took part in the attack. The trial judge passed a sentence of 8 years' imprisonment on him, having taken 12 years as a starting point and reduced it because of his plea. The victim was fortunate because she was wearing a pair of sunglasses, which took the brunt of the throw and saved her eyesight. The Court of Appeal said, at page 72E:

"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."

Taking into account that it was a planned and rehearsed triad attack and agreeing with the trial judge that it was a vile and calculated offence, the Court of Appeal did not consider that the 12 years starting point was by any means on the high side, and rejected the application for leave to appeal against sentence which they found to be proper.

14. In HKSAR v Wong Sau-lai, CACC 283/2000 (11 October 2000, unreported) the applicant was the wife of the victim. Following a heated argument during which the husband used a metal rod to beat at furniture, he went to bed. He was woken up in his sleep when he felt something had been poured on his head. That was corrosive fluid poured by the applicant. 70% of the cells of the cornea of his left eye were seriously damaged. After treatment, however, the left eye had recovered. The injury on the right eye was more serious. Three months after the incident, despite treatment, the victim could only count the number of fingers at about one foot from his eyes. Medical opinion was that the condition of his right eye was still not steady and he needed lengthy treatment by specialists. He could no longer drive commercial vehicles because of his damaged eyesight. The applicant pleaded guilty and was sentence to 4 years of imprisonment, the judge having adopted 7 years as the starting point. The Court of Appeal held that there was nothing improper about the sentence.

15. In Ngai Kwok-hing, referred to above, the applicant, the victim's husband, pleaded guilty to the same offence. He suspected that his wife was unfaithful. He used a tooth brush to brush acid onto her face. He diluted the acid so as to minimise injury to her and had brushed on the acid, rather than threw it, so as to avoid injury to her eyes. He was sentenced by the trial judge to 4 years' imprisonment. The victim, who was 40 years of age, suffered no after effects following her discharge from hospital. The Court of Appeal came to the view that the applicant did not intend to cause the victim any serious injury, because he had diluted the fluid and applied it to her cheeks with a tooth brush. Considering all the circumstances, the Court of Appeal held that the sentence of 4 years' imprisonment was manifestly excessive, and they substituted a sentence allowing the immediate release of the applicant, he having spent some 11 months in custody.

16. It can be seen from the above cases that the sentencing starting points that had been upheld or adopted by this Court, differently constituted each time, range from the highest of 18 years of imprisonment in Yu Wai-Chiu to about 2 years (guilty plea and remission accounted for) in Ngai Kwok-hing. These were cases dealt with on appeal. No doubt there have been others which have not come on appeal.

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.

This appeal

18. In ground (1) of appeal, Ms Draycott complains that despite the Judge's utterance that he took into account the contents of the psychological report by Professor Ho, he failed to have sufficient regard to the emotional trauma of the applicant at the commission of the offence. Regarding the applicant's mental state, the Judge said:

"at the time of the offence, the defendant was suffering considerably from the stress of her family circumstances and the breakdown of the marriage, and she was mentally confused when she committed this offence. He [Professor Ho] diagnosed the defendant as suffering from what he called 'an acute adjustment disorder'."

19. The applicant was a woman of prior good character who committed the offence when, because of ever cumulating distress and frustration, she ultimately found herself not herself at all; so much so in fact that Professor Ho said that at the time of the commission of the offence her "mental and social functioning was severely impaired". We see this emerging from the papers in clear form, a woman who feels entirely alone, bereft of any support from any quarter, and who cannot accept that the husband she loves is avoiding her (and the victim describes himself how cruelly he was doing so) who is then, as the professor describes it, on the verge of a breakdown, and who acts then entirely out of character. This is not to exonerate her from the fact that she went out and purchased the fluid. It is that degree of deliberation as well as the real risk of disfigurement in all such cases that requires a deterrent immediate custodial sentence to be imposed, despite the strong mitigation in this case. The Judge had this to say:

"So far as this case is concerned, the attack was, to some extent, planned and premeditated."

Notwithstanding, we feel that the sentence imposed by the judge did not give sufficient weight to the really impaired state of the applicant's mind when the offence was committed.

20. Ground (3) complains that the Judge did not seem to have taken into account that the act was a "momentary loss of reason" as described by the victim as opposed to a concerted intention to disfigure, although he (the Judge) did mention that "this offence was an aberration in that regard." In his reasons for sentence, the Judge did not allude to the fact that the applicant had put only a part of a larger quantity of the drain cleaning liquid (sulphuric acid) that she bought in the morning in a small bottle described as a "camera film container", nor the fact that the applicant also poured the fluid onto herself, resulting in her also being injured. That was the reason why she attended the Accident Emergency Department of the hospital to which the husband had been taken and at which she was arrested. The conduct of the applicant showed that "her mental and social functioning was severely impaired", reaching a peak around the 1st and 2nd of July 2000, as described by Professor Ho in his report.

21. Ms Draycott argues that the Judge appeared to have been influenced by the sentences in the cases of Chan Chi-lung and Wong On-lin when adopting a starting point of 10 years' imprisonment. Both Ms Draycott and the Judge did not have the benefit of the case of Wong Sau-lai, which is a judgment in Chinese, a translation of which is now available before this Court. The facts of that case are the closest one can get relating to the circumstances surrounding the commission of the offence when compared with the instant case. However, in Wong Sau-lai, the corrosive fluid was thrown by the applicant on her husband while he was asleep, causing very serious injuries to his eyes so that he was suffering from permanent disability.

22. It is true that for offences of this serious nature, the injuries suffered by the victim are of little relevance to sentence, see Chan Chi-lung at page 72F (cited above) and Ngai Kwok-hing at page 6. This is especially so in view of the provisions of s 29 of the Ordinance which provides:

"Any person who unlawfully and maliciously -

(c) puts or lays at any place, or casts or throws at or upon or otherwise applies to any person, any corrosive fluid or any destructive or explosive substance,

with intent in any or such cases to burn, maim, disfigure, or disable any person or to do some grievance bodily harm to any person, shall, whether any bodily injury is effected or not, be guilty of an offence triable upon indictment, and shall be liable to imprisonment for life." (Emphasis added)

23. However, it is important to pay heed in each case to all the surrounding circumstances. In the instant case, the applicant poured sulphuric acid onto the face and neck of the victim. That was done when they were talking or quarrelling in a public garden. She also threw some of the acid on herself. On the other hand, in Wong Sau-lai, the applicant threw acid onto her husband's face while he was asleep, thus ensuring direction and success of the attack. There was no opportunity for the husband to avoid. Moreover, in the instant case, it was common ground that the applicant bought a bottle of drain cleaning fluid from a shop in the morning before she went to visit the victim. She poured some of the fluid into a brown bottle and threw away the rest of the fluid before visiting her ex-husband. The bottle was described in the summary of facts as a camera film container, 7.5 cm in height and 4 cm in diameter with the volume of about 80 millimetres but Ms Draycott, who also appeared for the applicant before the Judge, called it a small pill bottle. We have been shown the bottle, and we think that Ms Draycott's description of it is correct. This was clear evidence that the quantity of the acid used was deliberately small, and in addition to that the applicant deliberately injured herself as well. That did not happen in Wong Sau-lai.

24. The complaint under ground (2) is that the Judge failed to have sufficient regard to the views of the victim in his acceptance of responsibility for what had happened, his reluctance to pursue his wife for her action and his desire for her to be treated leniently. In the letter dated 6 March 2000 written by the victim, which was put before the Judge when he was considering sentence, the victim stated that "I should be mostly blamed for this incident." He then set out in some detail as to why the wife was exasperated by his conduct leading up to the incident. Although he denied that he had an affair with another woman, while that was what was suspected by the applicant, he said he wanted to divorce the applicant because he had been under a lot of pressure since the birth of their younger son, he was worried about his elder son's poor academic result and he was dejected and moody. He also admitted that it was his "bad behaviour that brought about this mistake. I am ashamed of myself." He described his conduct as wishy-washy that had harmed the applicant.

25. While it is true that a sentence cannot be tailored according to the views of the victim because of the intervention of the state and it is a matter for the court which will have to consider a wider sphere of public interest as well as reasoning and precedent, the court should have regard to what the victim has to say, relating to how the offence was committed, how seriously he was hurt, mentally and physically, how he has been affected by the offence, and whether the imposition of a particular sentence would add to his distress or concern, especially when the victim's views are rational and intelligent. A discussion of the principles involved can be found in Chapter 49 of Cross & Cheung: Sentencing in Hong Kong, 3rd Edition. In particular, in R v Hayes TLR 5 April 1999, Judge LJ stated:

"An essential sentencing consideration was to assess the impact of the particular crime on a particular victim and also, although perhaps rarely, the Court was required to consider a refinement of that principle when assessing whether the imposition of a custodial sentence would add to the distress and concern suffered by the victim. That was a factor to which a court had to pay attention. The weight to be attached to it depended on the crime itself and the different facets of the case which the judge had to balance."

26. In R v Kwok Yee William, Crim App 452/93, Seagroatt J said:

"The exceptional plea is considered, unemotional and sustained. It has in it all the elements which judges and lawyers look for as a test of its balanced approach. It is rational and intelligent. We are often asked to reflect the views of the public, or a section of the public, imposing a severe sentence on offenders ... When members of the public, particularly victims, seek to persuade the court to exercise mercy or leniency in wholly unsolicited, but principled manner, it would be wholly wrong for the court not to pay some regard to it."

27. In his reasons for sentence, the Judge merely referred to the victim's presence in court and the letter by him as underlining the applicant's previous good character. He did not pay sufficient regard to the victim's admission that the incident was mainly caused by his conduct and behaviour towards the applicant, for which he was mostly to be blamed. It is not surprising that the applicant, who had been subjected to her mother-in-law's rejection and her husband's seeking a divorce from her without any apparent reason, thought that the victim had gone for another woman. The parties had been living together for all the times since 1995 when the applicant came to Hong Kong to live in the matrimonial home, despite their divorce in July 1998, up to about a month before the incident. It was her nature and culture that she always allowed her own wish to live with and care for the ex-husband and the family to be overborne by his demands, reasonable or not, even to the extent of agreeing to his proposal of a divorce. During the last month before the incident, pressure, distress and anger had built up because the husband had left home to live in the restaurant quarters. She had taken a lot of sleeping pills for the insomnia that had developed. It was under such circumstances that she took the step which was entirely out of her character. This is quite similar to Wong Sau-lai, referred to above, but the circumstances in the instant case surrounding the applicant's situation appeal more to one's sympathy. Moreover, while the applicant in Wong Sau-lai threw acid onto her husband's face and eyes while he was asleep, the applicant in the instant case only threw a small quantity of acid onto the victim while the victim was entirely alert. The injuries suffered by the victim in Wong Sau-lai were much more serious than the injuries suffered by the victim in the instant case. All these show that the culpability of the applicant is not as serious as that of the applicant in Wong Sau-lai. In that case, the sentence of 4 years after a guilty plea approved by this Court was reduced from a starting point of 7 years. In all the circumstances, we are of the view that a proper starting point in the instant case should be 5 years' imprisonment, instead of the 10 years adopted by the Judge. The various mitigating factors, such as genuine remorse, clear record and previous good character, the offence being committed wholly out of character, the fact that her mental function was severely impaired and her family circumstances, which had mostly been taken into account by the Judge, should also be considered as having the effect of reducing the sentence from the starting point. A one-third discount from the starting point is called for because of the guilty plea, reducing the sentence to 40 months' imprisonment. Considering all the remaining mitigating factors, we are of the view that a sentence of 2 years' imprisonment is proper and appropriate for this case.

Conclusion

28. In the result, we grant leave to appeal, and treating the application as the appeal proper, we set aside the sentence of 5 years and 6 months as imposed by the Judge, and substitute for it a sentence of imprisonment for 2 years.

29. We do not wish to be seen as countenancing the behaviour of the applicant or be understood as intimating that the offence which was committed by her is not a very serious one. We decide this case purely on its very particular facts and circumstances.