COURT: Defendant, you have pleaded guilty to the following two counts of offence: Count 1, assault occasioning actual bodily harm; Count 2, throwing corrosive fluid with intent to do grievous bodily harm.
The facts of the case may be summarised as follows. You and the victim in this case, Madam Zhong, were husband and wife. The two of you did not have children. At the material time, you were not working whilst Madam Zhong was working as a waitress in a restaurant. Madam Zhong is a lady in her early 50s. On 11 December 2011, you started an argument with Madam Zhong, blaming her for providing poor service to your friends when they were having a meal at the restaurant where she was working. In the heat of the argument, you punched Madam Zhong, causing bruising to her right chest, arm and forearm, as well as tenderness over her left face.
This was what happened in relation to Count 1. A report was subsequently made to the police. You were arrested. Under caution, you admitted the offence and were granted bail. Madam Zhong was then provided accommodation with the assistance of the Social Welfare Department.
The incident in relation to Count 2 took place about one and half months after the first. On the evening of 30 January 2012, Madam Zhong received telephone calls from a woman who claimed to be a woman inspector from Tin Shui Wai Police Station, asking to meet her. Having no suspicion, Madam Zhong went to the restaurant where she understood she was to meet the woman inspector. You were present but there was no woman inspector. Madam Zhong tried to contact her by phone but the line was engaged.
As there appeared to be nothing to cause her concern, Madam Zhong followed you to a children’s playground nearby. You asked for a reunion; Madam Zhong refused. When she tried to leave, you stopped her. You then took out a white bottle of liquid from a plastic bag retrieved from a planter nearby and splashed the liquid at Madam Zhong. As a result, her face and both hands sustained burns. You were then subdued by some passers-by and handed over to the police officers who soon arrived. You immediately admitted the offence, under caution.
In a subsequent interview, you admitted that you splashed sewerage cleansing agent onto Madam Zhong as a revenge as she owed you $7,000 and failed to return to you a gold pendant you gave her earlier. You also said you only wanted to scare her. The sewerage cleansing agent had been bought by you several months ago for the initial purpose of cleaning sewerage at home. On the day of the offence, you brought along with you the bottle of sewerage cleansing agent.
The bottle was later confirmed to contain sulphuric acid. The concentration, however, could not be ascertained as the quantity of liquid left in the bottle was too small.
Madam Zhong was admitted to hospital. She had to stay in the hospital for almost a month and was only discharged on 29 February. There was deep burn to her right face, bilateral distal forearm, left knee and scalp. Seven per cent of her body surface area was affected. Subsequent review of wound condition showed full thickness burn over scalp and bilateral hands. Operation for debridement and skin grafting was performed on 13 February 2012. After the operation, Madam Zhong was stable and afebrile.
Scalp wound swab on 10 February grew heavy growth of staphylococcus aureus. Grafts were taken and right thigh donor side wound has improved. Her condition was stable when she was discharged. Regular follow-up treatments were conducted. Hypertrophic scar over her right wrist and right face with cicatricial alopecia were shown.
Madam Zhong was referred to an 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.
When she was examined on 4 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 occupational therapist on 2 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 thickness. Madam Zhong 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.
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 occupational therapist. Scar management programme will continue.
The attack also caused superficial abrasions on her right leg. There was also mild eye conjunctivitis. Examination revealed diffuse punctuate epithelial erosion over the right corner. Right eye fundus and left eye were normal. The condition improved with topical medication. Recent examination indicated the eyesight of Madam Zhong was close to normal.
On top of the Summary of Facts you admitted in court, I have considered the medical report, the report from the occupational therapist, photographs and a psychologist’s report produced by the prosecution. Your counsel, Mr Leung, told me you agree to this course of action.
I was told that you are now 69 years of age. You received primary education in the mainland before you came and settled in Hong Kong. You have worked as a driver. At the time of the offences, you were out of employment. Madam Zhong is your second wife. Your first marriage dissolved in 1996. You married Madam Zhong in the mainland in 2003. She came to Hong Kong and joined you in 2009. On 28 November 2010, about one year prior to the first offence, a divorce petition was filed. The two of you still lived together until the first offence took place.
Your counsel stressed that you have pleaded guilty and have been co-operative. He urged me to take into account the background circumstances leading to the offences. He told me you did not enjoy good health and eventually could not find any employment. Apart from receiving the old age allowance of about $1,000 per month, you have no other earnings. As a result, you relied heavily financially on Madam Zhong. The financial situation led to frequent disputes. Eventually, you agreed to divorce and relevant legal documents had been signed.
As part of the agreed arrangement, Madam Zhong was to return to you $7,000 and a gold pendant. I was told this did not happen. Since Madam Zhong came to Hong Kong to join you, there has been tension in your relationship. Mr Leung stressed that you committed the first offence out of momentary loss of temper. You had made full confession upon arrest.
As regards the second offence, he urged me to take into account this: although you brought along the acid liquid, you had several thoughts in your mind which included to commit suicide, to threaten the victim and to do the act you had actually done later. Whilst, when you splashed the liquid onto Madam Zhong, you had full mens rea of the offence, you did so after she had uttered insulting words to you, mainly relating to your age and lack of means. It was under such circumstances and in a state of anger, you committed this act which was out of your character. You made frank confession upon being arrested.
Your counsel produced to me a letter written by you and told me you are now fully remorseful. He told me you had even tried to kill yourself by hitting your head against a wall when you were in custody. As a result, you were hospitalised and received 12 stitches in your head.
Through your counsel, you tendered your apology to Madam Zhong.
Your daughter and a relative also provided letters to the court asking for leniency.
The offence in Count 2 is obviously the much more serious amongst the two offences you stand convicted of. The maximum sentence for the offence of throwing corrosive fluid with intent is life imprisonment. This reflects how seriously the legislature views this offence. As Hartmann JA said in HKSAR v Chi Chi Hong Ken, CACC 299/2010:
“What can be said is that the legislature recognises that the crime has such awful potential for causing lifelong suffering to its victims, maiming them and causing them terrible disfigurement, that it has seen fit to impose a maximum penalty of life imprisonment.”
There is no tariff for sentencing for this offence. In HKSAR v Wong Siu Kwan, CACC 166/2001, the Court of Appeal had the following observation:
“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.”
There is nothing to contradict the claim that you committed the present offences out of character. In the present case, despite you said you did not buy the corrosive liquid to harm others and, quite to the contrary, you said it was bought for the legitimate sewerage purpose, you brought along the corrosive fluid in a circumstance in which you expected to meet the victim; it was by your arrangement that she was tricked to the place where you met.
Notwithstanding that I am prepared to accept that the main purpose of your meeting Madam Zhong was to ask for a reunion, I find that hurting her with corrosive fluid was all along within your contemplation. I also find that when you splashed the corrosive fluid onto Madam Zhong, you intended to cause her grievous bodily harm. Despite there might have been some unpleasant moments between the two of you, what you did was definitely not a case of a spontaneous act in the heat of the moment.
What you did to Madam Zhong was not only cowardice but also vicious. You splashed the liquid onto Madam Zhong in a situation where she was caught by surprise. Even though the facts are not explicitly clear whether you aimed at her head or face, I find that you splashed the liquid towards her without any regard as to whether the vulnerable parts of her body, such as head, face and eyes, would be injured. Such a risk must have been obvious to you.
In any case, you must have contemplated that the result of your actions would be that the skin of Madam Zhong would be burned and it would cause extreme pain. At the least, you were reckless as to whether your action would cause damage to the eyesight of Madam Zhong. It was only mere luck that her vision was not affected.
Madam Zhong is also fortunate that the movement of her wrists and hands has not been seriously affected. Her face, however, was seriously injured. She has to undergo surgical operations and is still receiving treatment. Prognosis is uncertain. There is insufficient material before me so that I can judge whether there would be disfigurement on a permanent basis. It is now more than one year after the attack. From the information before me, it is obvious that there is still a long way for Madam Zhong to have a complete recovery, if there is to be one.
The quantity of the left-behind liquid is insufficient to ascertain the degree of concentration. The nature and degree of physical injuries caused are indicative that it was not of insignificant concentration.
The degree of psychological impact on a lady having suffered such a nature and degree of injuries can be readily appreciated. After a year from the incident, the scar on the face of Madam Zhong is still clearly visible. A considerable amount of her hair was lost.
Before me is a report from a clinical psychologist to whom Madam Zhong was referred. Included in the report is certain negative background information disclosed by Madam Zhong which I will ignore as it is hearsay. The psychologist said that Madam Zhong was taxed by the injuries, but no trauma reactions were indicated. She said no clinical level of depression and anxiety was noted.
On the one hand, it is a relief to learn that Madam Zhong coped well psychologically with the situation. On the other hand, the potential psychological distress and harm this nature of injury may bring to a victim must still be borne in mind in determining the sentence.
It may be said that there was some degree of domestic context in this case since you and Madam Zhong were once husband and wife. In my judgment, its significance for the purpose of sentencing is minimal. A petition of divorce had been filed. After the first incident, the two of you had been living apart and, indeed, arrangement had been made for Madam Zhong to live in a Harmony Home. It was under your dishonest arrangement that Madam Zhong came to meet you.
It is my view that there is a need for deterrence in imposing a sentence for an offence of this nature. Throwing of corrosive liquid at a person is, by any standard, a vicious crime. I wonder if a person who is to commit this offence can ever say that a result of serious physical harm, including disfigurement, is not foreseen by him.
I also have to take into account the fact that when you committed the offence in Count 2, you were on bail, having been arrested for assaulting Madam Zhong earlier.
In all the circumstances, for a case of this nature and seriousness, I adopt 12 years as a starting point for Count 2.
For Count 1, I have considered whether a custodial sentence is called for. It was the first offence ever committed by you. The offence was not premeditated. No weapon was used. The injuries you inflicted were not serious. However, there were bruises over various parts of the body of Madam Zhong, showing that her body was assaulted quite extensively.
Having considered the whole circumstances, in my judgment, a custodial sentence is called for and a starting point of 3 months is appropriate.
You pleaded guilty and I am satisfied that you are now remorseful. For these reasons, you are entitled to a one-third discount.
I notice that you are already 69 years of age. It is sad that in all these years, you have been law-abiding but in a short span of time, you committed two offences, one of which is very serious. I have considered very carefully whether your advanced age calls for leniency. Having considered the whole circumstances of the case, I decline to exercise my discretion to reduce your sentence on this account.
I note and accept that you relationship with Madam Zhong was, for a long time, not pleasant and at the scene where the offence in Count 2 took place, she had uttered some insulting words to you. In view of its nature and degree, the provocation, if it can be so described, does not justify any further discount. In my judgment, one-third is the extent of discount you are entitled to in this case.
Would defendant please stand up. By reason of the matters aforesaid, I sentence you to the following imprisonment terms: Count 1 - 2 months; Count 2 - 8 years.
The two counts represent two separate incidents of attack. As a matter of principle, consecutive sentences are justified. However, taking into account totality, I order the two sentences to run concurrently. You are to serve a total sentence of 8 years.