CRIMINAL CASE NO. 135 OF 2010
The facts of the case disclosed that on Saturday, 12 December 2009, at about 10 pm, the defendant threw a bottle of corrosive fluid, which was later confirmed to be sulphuric acid of 98 per cent concentration, down from the staircase landing between the 2nd and 3rd floor of a building at No. 541-543 Lockhart Road. At that time, that section of Lockhart Road was a designated pedestrian street with many people walking about.
The corrosive fluid landed squarely on a courting couple (PW1 and PW2), causing them serious burns. Four other young ladies (PW3 to PW6) who met up for a re-union gathering were also splashed upon. They were more fortunate than the couple as two of them suffered fairly minor injuries and two none at all - though holes were burnt on their clothing.
Immediately after the corrosive fluid landed on PW1 and PW2, PW1 closed his eyes and instructed PW2 to do likewise. They shouted for help and for water to rinse the acid. Fortunately, an off-duty police officer happened to be present and he helped to arrange for buckets of water to be thrown onto the couple. Clearly, many people were willing to rally around to give assistance to this unfortunate couple. Such timely assistance no doubt lessened the degree of injuries they suffered. I will return to their injuries at a later stage.
The police took over the investigation of this case. They found a paper bag containing an unopened bottle of “Flying Fish” brand drainpipe opener on the staircase of the said building, and an empty bottle of the same brand lying outside the Marathon Sports Shop. They also found traces of damage caused by corrosive fluid on the signboards of “La Creation” and “Trendyland”. After viewing footage captured by different CCTV cameras nearby and undertaking clearly painstaking and first-class investigative work, they identified the defendant as the culprit and arrested him a month later, on 13 January 2010.
The defendant admitted his role after the arrest but claimed that he did what he did when the voice of a person called “Ah Man”, whom he had met previously, appeared inside his head and told him to commit the offence.
According to the defendant, he was upset when he had a quarrel with his good friend. He summoned “Ah Man” to talk to him and to comfort him when he failed to contact his family members or friends. It was “Ah Man’s” idea to throw the corrosive fluid down onto the street, saying that after he had done so his friends would answer his call.
During the trial, it transpired that the defendant was diagnosed as suffering from schizophrenia in 2007 when he sought treatment at the Pamela Youde Eastern Hospital himself. The defendant admitted he knew what “Ah Man” told him to do was wrong and that was why he kept on resisting at the beginning. He also admitted that he knew what was going on at the time.
The defendant was examined by Dr Henry Yuen, a visiting consultant psychiatrist at Siu Lam, on three occasions: twice in February and once in October this year. According to Dr Yuen, the defendant is not insane, is not mentally ill, but he suffers from a serious personality disorder.
Although the defendant admitted the act of throwing the corrosive fluid at the material time and that he had inflicted grievous bodily harm on both PW1 and PW2, he denied that when he threw the corrosive fluid, he had the specific intent to cause grievous bodily harm on those pedestrians on the street. By unanimously finding the defendant guilty of the more serious offence, the jury has soundly rejected the defendant’s claim of the lack of such a specific intent.
I will now turn to the injuries suffered by the various victims.
PW1 - Lai tun-man
PW1 suffered first degree chemical burns over his forehead, right face and neck. Photos in album 2 show the extent of his injuries a few days after the incident, when he was still in hospital. The burns were clearly visible on his face and neck. His condition improved by April this year but the red patches were still visible on his face and neck.
By the time PW1 came to give evidence in court on 11 November, the redness had faded somewhat but was still visible. He was still attending follow-up treatment once every four months and still has to apply ointment to discolour the red marks.
PW2 - Tong Lai-ming
PW2 suffered the most extensive injuries in this case. She suffered from 3 per cent first degree chemical burns and 1 per cent second degree chemical burns on her face, 3 per cent second degree chemical burn on her upper chest wall, 2 per cent second degree burn on her left forearm and 2 per cent second degree on her left shin. The photos taken a few days after the incident, while she was still in hospital, show those injuries graphically. Some corrosive fluid also went into her eyes but there was no long term deficit or scarring of the cornea. She was discharged from hospital on 14 January this year.
Photographs taken in April this year show that PW2 had made good recovery. The marks on her face were not too noticeable, but scars on her body, her left forearm and left leg were still horrific. By the time she came to give evidence in court on 11 November, one can hardly notice any residual mark on her face. For the scars on her body and her limbs, PW2 has to wear pressure patches, glove and legging to keep them flat. She was given steroid injection to slow down the cell movement and will have to have further injections in future follow-ups. According to PW2, there was still pain but she was able to tolerate it so she did not take painkillers anymore. She also found the scars very itchy.
PW3 - Mok On-ching
The injury suffered by PW3 was a small chemical burn on her right finger. While the red dot is still visible, the injury was very minor and there was no need for follow-up treatment.
PW4 - Au Yuet-kwan
In relation to PW4, she suffered from multiple tiny superficial chemical burns of 2 to 3 mm over her right knee, upper thigh and left upper arm. PW4’s injuries could be seen from the photographs in album III(14 and 15). They were not serious injuries.
Up-to-date medical report
I asked for further up-to-date medical reports on PW1 and PW2, the two more seriously injured victims. Unfortunately the reports are not ready as the doctors need six weeks to prepare such reports.
Impact on Victims
I also called for psychologist’s report in relation to the impact of the incident and the injuries on PW1 and PW2.
PW1
I do not wish to reiterate in detail what Miss Ng, the clinical psychologist, said in the full report. Suffice it to say that while PW1 does not show symptoms of psychological disorder according to test results, and that PW1 reported no subjective distress towards the incident, PW1’s social and occupational functioning is significantly impaired as a result of the injuries he sustained as he was no longer able to work as a frontline marketing officer of the bank due to the burn marks which are still clearly visible even under makeup. He suffered a loss in remuneration when he was transferred to do administrative work. His disfigurement also has a negative impact on his career path.
PW2
As in the case of PW1, I do not intend to reiterate in detail all that Miss Chin, the clinical psychologist, has said on PW2. According to Miss Chin, PW2 manifests residual traumatic reactions towards the incident. Her anxiety and worry level is heightened but she shows adequate adjustment with no significant psychological disturbance seen. PW2 worried about her appearance and was concerned whether there would be significant permanent scars on her body, thus hampering her activities like swimming or wearing clothes without long-sleeves. Miss Chin noted that PW2’s self-image was not severely affected and she managed to soothe herself in the face of distress arising from the incident.
The Defendant’s Background
The defendant is a 24-year-old man with a clear record. His parents divorced when he was 13. He recalled being bullied in school and he dropped out of school. Although he had two secured jobs in the past - one working as a waiter and the other as a bank teller - he was dismissed and he later worked as a part-time performer at Ocean Park.
As the defendant was clearly a troubled young man with serious personality disorder, I asked for a psychologist’s report prior to sentence so that I would know more about his condition and situation.
I was given a very detailed six-page report by L S Mok,the clinical psychologist. I will not go into detail of this report but I think the conclusion and recommendation in the report sums up the situation properly:
“...[The defendant] tended to be a young man with unstable self and fluctuating mood, including having extended periods of irritability when encountered unresolved problems in interpersonal relationships. With his underlying confusion of gender role and psychosexual interests towards males, the defendant perceived himself as socially rejected. He was sensitive to criticism and harboured strong fear of abandonment. He could regain his sense of self-worth as well as to escape from the frustrating reality only by character-performing in a theme park. The emergence of “Ah Man” might also be a manifestation of his inadequate and avoidance coping by fantasy for allowing himself to ventilate his annoyance encountered in daily life. Such stress-related psychotic-like symptoms could also serve as a defence mechanism to blind his weakness in problem solving so as to protect his fragile self-esteem. On the whole, [the defendant] was impressed to have features of borderline personality, including instability of interpersonal relationships, self-image and affects. Inappropriate temper control related to his inner frustration is often seen. Meanwhile, from his criminal background and history of behavioural pattern, he was not impressed to be a violent person who would exert physical harm on others proactively. He was, however, weak in handling his frustration which was then ventilated through an aggressive [way] leading to the index offence. He appeared to be remorseful for his wrongdoings. To better contain his risk of re-offending, psychological intervention on his unstable self concept, stress and mood management and interpersonal skills is recommended. [The defendant] expressed fair motivation to receive psychological treatment.”
Mitigation
Mr Davies referred briefly to the authorities he has submitted in trying to differentiate the present case from the previous cases. I will refer to those cases a bit later. In gist, Mr Davies’ submission was that the defendant’s act was to cause commotion and while it was found to have the intent to cause grievous bodily harm, the victims being disfigured was a potentiality, not a certainty as in the previous cases. Mr Davies asked me to bear in mind that the defendant did not go to the rooftop to ensure even more persons would be inflicted with the corrosive fluid. Mr Davies ventured to suggest that the present case is probably not as serious as those that came before the court in the past. He said that this is not the worst case of its kind.
Mr Davies also asked me to take into consideration the co-operation of the defendant after his arrest and his plea to the lesser charge which was not accepted by the prosecution. These show the defendant was remorseful.
I was handed quite a number of letters, written by the defendant, the defendant’s family members, relatives and friends. I do not find it necessary to reveal all the contents here. Suffice it to say the defendant was remorseful and wishes to extend his apologies to all those injured in this case. All writers, including the defendant, asked for leniency.
Sentence
Throwing corrosive fluid with intent to do grievous bodily harm is a serious offence. A person convicted of this offence on indictment is liable to life imprisonment.
Understandably, there is no sentencing tariff for the present offence as the facts in each case vary.
Before sentence, I informed the parties that I had looked at decisions of the Court of Appeal and noted that the way this offence was committed could be divided into two categories:
(1) revenge by a distressed and anguished person involved in a love triangle on his or her loved one; and
(2) cold-blooded attack by the offender on a stranger for a reward.
This is the first time where a defendant will be sentenced for throwing corrosive fluid onto the general public who happened to be present on the street at the material time. I therefore asked both parties to render assistance.
Ms Peggy Lo for the prosecution referred me to some 26 authorities, including cases decided in the 60’s and 70’s. Ms Lo very properly reiterated that it is not for the prosecution to press for a particular sentence, nor to suggest any particular sentence or type of sentence, citing the case of Attorney General v Jim Chong Shing. Ms Lo only outlined the sentencing trend and sentencing principles extracted from these authorities. I'm grateful for the assistance rendered by Ms Lo.
Mr Davies for the defence referred me to a total of 14 authorities, decisions from the 80s to the present. Mr Davies had helpfully prepared a summary of these authorities for my use. I am also grateful for the assistance rendered.
For the purpose of sentencing in this case, I will not consider decisions made in the 60’s and 70’s. I will take into account the 18 authorities cited by Ms Lo, that is from item 9 onwards, which also covered the majority of the 14 authorities submitted by the defence. I will not recite them now; they will appear in my final draft later.
Apart from the most recent case of Cheung Cho Fat - that is a decision handed down by the Court of Appeal on 12 July this year, involving a man throwing corrosive acid, over money dispute, onto his divorced wife and his daughter who shielded her mother, the cases separated into the two categories that I have mentioned earlier, either love triangle or committing the crime on a stranger for reward. In other words, this one was a bit different because it was a money dispute.
There is no need to go into the details of these authorities. For cases under the first category, that is involving love triangle, the starting point ranged from 10 years to 15 years, with the lower starting point adopted for cases with special features. Of course, some of the cases even adopt a starting point lower than 10 because of very special features in those cases. For cases under the second category, that is involving cold-blooded attack on strangers for reward, the starting point ranged from 10 to 18 years.
The throwing of corrosive fluid at other or others is a vicious and horrible crime. The seriousness of the offence is reflected in the maximum penalty of life imprisonment. The victims almost invariably suffered great pain and often become disfigured or carried with them permanent scarring for life. In sentencing the offender, the court needs to take into account the permanency of the injuries and the impact on the victim.
Whilst I do not have the most up-to-date medical report on either PW1 or PW2, I can safely say that there are some degrees of permanency in their injuries. Almost one year after the incident, redness was still clearly visible on PW1 when he appeared in court in November this year and also when he was seen by the psychologist later. He still needed to have follow-up treatment and still had to apply ointment on the redness. PW2 is still receiving treatment and had to wear pressure-garment for the scars. I must say both PW1 and PW2 appear to have coped remarkably well after encountering such an horrendous attack. I cannot ignore the impact on their lives as outlined by the psychologist though.
A strong deterrent sentence is called for to punish those who commit such a heinous crime, so that a correct message is sent out to the public, that the court will not condone such atrocious behaviour.
The court will also have to consider all the circumstances of the offence, in particular the degree of planning prior to the commission of this crime.
Unlike the previous cases cited, there was no personal grudge or disagreement as the underlying cause for the offence here. There was no greed for money to act as a hired-hand in the present case. There was no particular target but the public at large, a large number of members of the public who happened to be there. It was fortunate that not more people were injured. The victims in this case were truly innocent victims. They had done nothing to attract such an attack on them.
The reason given by the defendant was that his friends failed to answer his calls. While he suffered from very serious personality problem, he was not mentally ill and he knew what he was doing. His act was well-planned and well-calculated when he bought the two bottles of drain-openers from a shop and concealed them in papers and bags so that passers-by would not notice the true nature of those two bottles of fluid. The defendant chose a busy time and day (Saturday, 12 December around 10 pm) to maximise the effect of the fluid splashing onto the pedestrians who happened to be passing by. That part of Causeway Bay was a busy shopping area, well patronised by both locals and tourists. The defendant was clearly intent on inflicting serious injuries on strangers - strangers happily going about their own way - when he himself was unhappy. He did not care how many would be injured, or how badly they would be injured.
As there were previous incidents involving the throwing of corrosive fluid from a height in the busy Mongkok area, with the culprit or culprits still at large, and there was much publicity generated from such news, clearly, the defendant was a “copycat” and he wanted to generate great commotion and fear among the public to vent his own unhappiness and frustration.
In my view, and despite the able argument put forward by Mr Davies, the culpability of the defendant in committing the present offence is more serious than the two categories I have mentioned. While grudges, disagreement or greed for money can never be excuses for committing such serious crimes, at least the grudges, disagreement or greed act as a kind of underlying reason or cause for the crimes. There was no reason for the commission of the present offence save the defendant’s own unhappiness. Furthermore, in cases under either the first or the second category, the number of victims was limited - in most cases, only one victim was involved. In the present case, however, the offence was calculated to inflict serious bodily injury on as many people as possible when the defendant threw the corrosive fluid from height at that particular time and place.
Although I am of the view that the present case is more serious in nature than cases in the two categories I have mentioned, it does not mean that I have to adopt a starting point of over 18 years. Within each category of cases, there were some which warranted a higher sentence, some a lower.
Having considered all the circumstances of this case, the planning and calculation demonstrated by the defendant in carrying out his crime, the extent of the injuries suffered by the pedestrians, in particular PW1 and PW2, the defendant’s background, including his severe personality disorder, I am of the view that a starting point of 14 years is appropriate here.
Although the defendant did not plead guilty to the more serious offence, it is a fact that he was fully co-operative with the police upon arrest. He gave great detail of what he had done during the video-recorded interview. He did not challenge any of the prosecution case and the trial took much shorter than anticipated. He had also pleaded guilty to the lesser alternative count which was not accepted by the prosecution. I accept that the defendant is fully remorseful for what he had done and I will give him a further discount of 12 months.
So for the present offence, the defendant is sentenced to 13 years’ imprisonment.