HKSAR v. CHEUNG KING

HCCC 4/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 4 OF 2016

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT: The defendant has pleaded guilty to two counts on the indictment, namely throwing corrosive fluid with intent, at the two complainants named in the particulars.

It is a sad story as in most of these type of cases. There is a background to it and the full facts are set out in the Summary of Facts. For the purposes of sentence, I do not need to repeat all the facts which have been disclosed in the Summary of Facts but merely to say, to give a little background, that the defendant lived with her family in the Fanling Town Centre and since about February 2011, she had complained to the management about noises coming from the flat above hers which she says had caused her stress and insomnia. Apart from complaining to the estate management, she also had complained to the police on some 35 occasions since 2011.

As was noted by Mr Chan in mitigation, in the first complaint when the police were at the premises or home of the defendant at about 0240 hours in the morning, the police did hear what was termed by the police report as one sound of hammering and after that, no further sounds were heard. The police stayed for 20 minutes on that occasion and therefore no further action was taken. But subsequent to that, 34 other complaints from that time in 2011 to the last report to the police on 4 November 2013, the noise situation did not seem to have been substantiated again.

It is a sad fact that for people living in multi-storey buildings, sometimes, due to the selfishness of neighbours, noises may occur during the night. Perhaps to a normal person, it may be shrugged off. However, the defendant gave what I would term as an obsessive attention to this matter and so she constantly reported the matter to the police and also to the management.

Because her complaints were not followed up, or rather her complaints she regarded as not having borne any fruit, she suspected there was a conspiracy between the management and the neighbours against her. She regarded the complainant in the 1st count as representing the management who was conspiring against her.

Matters came to a head on 15 May 2015, at about 8 pm. There was a bi-monthly conference of the estate owners corporation in the conference room of the estate. The defendant was present and asked the chairperson to discuss her noise complaint, but the chairperson refused. The chairperson, in the course of that night’s event, became so angry that he resigned on the spot and left the meeting. However, the meeting continued and during the meeting, the defendant left the conference room and returned home at about 2047 hours.

She left home at 2053 hours and went to a nearby hardware shop and bought a bottle of sewage cleaner, some towels and cushions. She went home with a white plastic bag and then returned to the conference room and remained there for approximately 15 minutes. She then left the conference room and returned home.

At approximately 2132 hours, she went back to the conference room and approached PW1, who is the complainant or victim in the 1st count who was in the conference room, and asked her if she would come outside to discuss the noise problem. She was turned down and the defendant, at that stage, threw the corrosive acid at the complainant in Count 1, twice.

Subsequently, the complainant was taken to Prince of Wales Hospital and found, on first examination, to have 30 per cent mixed-depth burns involving her face, her neck, her trunk and bilateral limbs. She was admitted to the Intensive Care Unit of the hospital and subsequently transferred to the Burns Unit on 25 May.

She had a total of five surgeries for skin grafting and was finally discharged on 5 July 2015. From the photographs, it can be seen that she had suffered very prominent scaring over her face and neck, and that will require wearing pressure garments, therapy and laser treatment for a long time to come.

The complainant or victim in the 2nd count was sitting next to Madam Lee in the 1st count when the corrosive acid was thrown at Madam Lee and he also received burns on his person. He was found to have 4 per cent mixed deep chemical burns. He had to undergo skin grafting surgery which required him to spend nine days in the Burns Unit.

When the police arrived, the defendant was arrested. Under caution, the defendant said that she wanted to splash Madam Lee and did not mean to hurt others. In fact, there were minor splashes which had landed on two other people in the room but with little apparent injury. The police also seized an empty bottle of sewage cleaner from the defendant’s handbag and a purple-blue bottle containing traces of liquid.

The Government Chemist examined the purple-blue bottle which contained 10 millilitres of liquid containing sulphuric acid at a concentration of 95 per cent. Also in the bottle of sewage cleaner was found traces of sulphuric acid. The defendant’s handbag was found to have corrosive burn holes.

The defendant is aged 49 and she was born in Shandong province. She married her husband, Mr Lam, in 1992, and came to Hong Kong in 1997, to live with her husband. The defendant has a son and a daughter studying in Hong Kong. Without a doubt, the defendant was a caring mother as can be seen from the letter from her children and she was, during the period, a housewife, but did take up part-time work as a Putonghua tutor in order to help out the family finances. The defendant, of course, has a clear record.

It is also submitted in mitigation that the defendant also, up to the time of the commission of the offence, had suffered a lot of pressure because her husband was diagnosed with nasal cancer so there was the aspect of the stress of the financial situation of the family and also the health of her husband.

However one looks at this type of offence, it is sad. It is sad both because of the victims’ suffering and also the background of the defendant, leading up to the commission of this offence.

As far as sentencing is concerned, each case really depends on its own facts. There is no dispute that the defendant was very much affected by the noise she claimed came from the apartment upstairs and which disturbed her sleep, causing her insomnia, and according to the psychiatric report of Dr Tang, produced by the defence, the defendant was found to be suffering from delusional disorder and did not have any insight, or rather, limited insight towards her own mental condition.

In fact, Mr Chan pointed out that apart from complaining about the noise from upstairs, the family actually moved away from the apartment they were living in and rented another place. However, the delusion that the defendant suffered from caused her to think that Madam Lee was conspiring with others in the neighbourhood to spread rumours about her.

It is without a doubt also that this offence was committed out of character, as Mr Chan pointed out. The defendant has not exhibited any signs in the past of violence and she was in fact a caring mother, so I accept that this is totally out of character. Mr Chan also conveyed the defendant’s remorse and apology to the two victims in this case and that it would be unlikely, Mr Chan submits, that she would reoffend now that she has an insight into her mental condition.

However, this type of offence is very, very serious. It is difficult, in fact, to actually put it on a par with any of the other offences because the consequences of corrosive acid is so terrible that victims are often left scarred for life, and not only do these injuries affect their daily living, it also affects their social interaction because the victims would understandably feel that they have to withdraw from society because of the disfigurement that they have.

So no matter how heavy a sentence this court can give to a particular defendant in the case, it would seem to the victims insufficient compared to the life-long suffering they would have to endure.

I have called for a victim impact report and it does not make for happy reading. Madam Lee had been working at her job ever since she graduated and it is difficult, at the moment, for her to continue with her occupation as she would find it difficult to be in a job which would involve much direct interaction with customers.

Madam Lee has also got a family and it would also affect her interactions with her children’s school teachers and parents of the classmates and so Madam Lee would need psychological follow-up. Again, it would be quite some time before Madam Lee could psychologically really face up to what has happened to her. She has not returned to work. She lacks self-confidence.

The psychologist who conducted the interview on Madam Lee opines that she has a moderate to severe level of stress responses as a result of the test applied to her. Madam Lee has not only, as I have said, gone through four to five graft surgeries but, after her discharge from hospital, she still had to endure the pain every day when her wounds were washed. She still suffers from nightmares occasionally. So as I have said, it is difficult when one reads the consequences of that act on the victims. Madam Lee is diagnosed as suffering from post-traumatic stress disorder.

As far as the second victim or complainant is concerned, Mr Lau, he also is found to have post-traumatic stress symptoms and that warranted psychological intervention. Though he has, fortunately, resumed his work, he still has not physically recovered fully and he still has to attend regular recovery treatment and to wear pressure garments.

He also finds it embarrassing if people see his wounds and scars so he is forced to put on long-sleeved clothes to cover up those scars. So it is inconvenient for his daily life, for example, when he is doing exercises, and the memory of what happened has also affected him. Again, Mr Lau will need psychological treatment.

It is a difficult job for this court to try and balance the interests of the defendant and also the interests of the public to see that this type of offence should be met with a strong, severe deterrent sentence so people will think twice about doing or committing this type of offence.

As Power JA, a long time ago, had observed in the case of HKSAR v Chan Chi Lun [1989] HKC70, that in offences of this kind, the deterrent effect of a sentence is perhaps of larger moment than in any other class of offence. Also, the same sentiment had been reiterated by Hartmann JA in the case of HKSAR v Cheung Tso Fat, where he says:

“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 horror by right-thinking members of society.”

In this case, there is also an element of premeditation. It is not disputed that the defendant went back home from the conference room and returned to the conference room, and when she spoke to PW1, that is Madam Lee, talking about the noise complaint and was refused, she immediately took out the acid threw it at Madam Lee twice. So it was not a matter of reaching out on the spur of the moment to throw the acid which was already present at the site.

Although I do accept that as far as Mr Lau is concerned, unfortunately, he happened to be in the immediate vicinity, but it was also very clear that the defendant was not being very careful or cared about who may have been injured by her actions.

The photographs are horrific to look at and Mr Chan has said everything he could possibly say in mitigation on behalf of the defendant. Mr Chan had also referred to the case of Wong Man Chun in 2016 [HCCC56 of 2016(unrep)], and the case of Wong Siu Kwan in 2001 [CACC166 of 2001(unrep)], and prayed those cases in aid of his mitigation submission that this court should sentence the defendant to as little a sentence as possible.

As I have pointed out, the cases of Wong Siu Kwan and Wong Man Chun were actually in a domestic context. It was a spousal problem and here, it was actually someone who had not harmed the defendant in any actual way. It was all in the defendant’s mind and any reasonable, logical person will say that commonsense will dictate that it is difficult for Madam Lee to act because of her complaint unless it had been substantiated.

As far as the delusion that Madam Lee was conspiring with others on the estate against her, again, there was no evidence of that, and in fact, I think Mr Chan accepts that it was a delusion. So these were totally innocent victims, Madam Lee and Mr Lau, and a deterrent sentence, I am afraid, is necessary in all the circumstances.

There is, finally, the case referred to by Mr Chan, HKSAR v Leung Kam Sing in 2015 [CACC34 of 2015 (unrep)]. That case was not in a domestic context. The applicant in that case and the three victims in the case were keepers of different fruit stores in Cheung Sha Wan. There had been, in the past, a lot of grudges amongst them. So in the end, the defendant then threw the corrosive acid at the three victims.

In that case, the defendant was 53 years old, illiterate and poorly educated because, in 2012, the applicant in that case was charged with criminal intimidation against another person. So in that case, there was a lot of bad feelings or grudges against the victims, and so the learned judge in that case, having regard to all the circumstances, stipulated a starting point of 9 years’ imprisonment.

In this case, of course, there was the delusional disorder of the applicant which has to be taken into account, and she did move away but, however, still suffered from the delusion that there was a conspiracy against her. The husband, in fact, in his statement, did mention that sometimes there were noises coming from upstairs but not to the extent that the defendant felt there were. So perhaps this was exacerbated by her weakened mental state. However, this sort of action cannot be condoned. Madam Lee was a victim totally innocent of any wrongdoing against the defendant and also Mr Lau. They were merely employees of the management company who ran the estate. So this sort of action against them cannot be condoned and has to be treated with severity.

So therefore, having considered all the circumstances of this case, I consider that a 12-year starting point is necessary and I would give the defendant the full one-third for her plea and reduce the sentence to 8 years’ imprisonment.

In relation to the 1st count, she is sentenced to 8 years’ imprisonment. In relation to the 2nd count, she is also sentenced to 8 years’ imprisonment and having regard to the totality principle, in this case, I will make both sentences concurrent.

So the defendant goes to prison for 8 years.