HKSAR v. Lau Chung Tim

CACC 258/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 258 OF 2014

(ON APPEAL FROM HCCC NO. 53 OF 2014)
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REASONS FOR JUDGMENT
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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.The applicant pleaded guilty in the magistrate’s court to an offence of throwing corrosive fluid with intent to do grievous bodily harm, contrary to section 29(c) of the Offences Against the Person Ordinance, Cap 212, for which plea he was committed to the High Court for sentence. He was duly sentenced by Deputy Judge Beeson to 10 years’ imprisonment, from which sentence he sought leave to appeal.

2.On 13 October 2015, we refused the application, saying that we would hand down the reasons for our decision in due course.  This we now do.

The facts

3.The two victims of the offence were the applicant’s 46 year-old wife (“the wife”), who had earlier filed for divorce against her husband, and their eldest son (“the son”), who was 21 years of age.  The applicant and the wife were living separately at the time of the incident.  Notwithstanding the separation and the breakdown of the marriage, the applicant would nevertheless occasionally return to the matrimonial home at an address in Sai Pin Wai, Yuen Long, New Territories, for which he retained a set of keys.

4.At about 8:30 am on the morning of 18 June 2013, the wife, who had been sleeping, noticed the presence of the applicant in the matrimonial home but ignored him and went back to sleep.  At about 11:30 am, the applicant woke the wife up and demanded the return of a mobile telephone.  She gave him back the telephone and then asked him to return his keys to the premises.  At this point, the applicant became emotional and fetched a knife from a wardrobe, which he then pointed at the wife while shouting at her.  She ignored him and walked into the living room.  The applicant followed her, still pointing the knife and swearing at her.

5.At this juncture, the son emerged from the washroom and stood between the applicant and the wife to protect her, whereupon the applicant threw the knife to the floor.  He then produced a bottle of liquid, opened the cap and poured the contents onto the chest of the wife who was still in her pyjamas.  The liquid splashed on the son, who was naked save for a pair of underpants.  Both victims felt burning pains and rushed into the washroom to wash themselves.  They locked the door of the washroom and shouted for help.  However, the applicant kicked at the door, which was then broken.

6.The two victims returned to the living room where a struggle ensued, resulting in the three of them falling to the floor.  When they got up, the applicant picked up the knife which he had earlier pointed at the wife and a struggle then began between the applicant and the son.  Having been relieved of the knife by the son, the applicant then fetched a chopper from the kitchen.  The son again managed to take the chopper from the applicant, whereupon the wife took the opportunity to leave the premises in order to find help, taking the chopper with her.  The applicant and the son followed.  The three of them stopped at the main gate on the ground floor of the building, at which point the applicant told the wife to chop him.  A struggle then resumed between the applicant and the son, who pretended to faint, whereupon the wife ran into the street to ask for help from passers-by, one of whom immediately contacted the police.  The applicant fled the scene and the police arrived.

7.The Summary of Facts, which was admitted by the applicant, averred that the wife had not bought the bottle of liquid in question and had never seen it before anywhere in her home.  She did not even know what it was.  In fact, the bottle and its remaining contents were later scientifically examined and found to contain a corrosive fluid with an 87% concentration of sulphuric acid.

8.The wife suffered 38% mixed full thickness and partial thickness chemical burns over her head, neck, trunk, bilateral upper limbs and bilateral lower limbs.  She also sustained a laceration to the palm of her left hand, which was sutured and eventually healed without complication.  Debridement and skin grafting were carried out to more than 25% of the body surface of her anterior trunk, bilateral lower limbs and left upper limbs.  Further surgery was undertaken in relation to 5% of her total body surface area, including the posterior trunk and left lower limb.  She was given physiotherapy and pressure therapy.  She remained in the burns unit of Prince of Wales Hospital from 18 June until 7 August 2013.

9.After her discharge from hospital, the wife continued as an outpatient in respect of physiotherapy and the management of her wound.  The scar to her neck later contracted, restricting her movement, thus necessitating further surgery on 16 April 2014 in order to release the scar.  The reports at the time of sentence did not suggest any permanent physical disability, although her scarring was likely to be permanent.

10.The son also remained in the burns unit of Prince of Wales Hospital from 18 June to 7 August 2013.  He had suffered a total of 26% total body surface area burns, which included 5% full thickness burns to his left upper limb and 21% partial thickness burns over his neck, trunk, upper limbs and lower limbs.  He sustained a 3 cm deep laceration to his right eyebrow region and a corneal abrasion.  Both healed uneventfully.  He underwent three episodes of surgery, consisting of debridement of the wounded region with the application of skin grafting.  He was given a pressure garment for scar management and at the time of sentencing was continuing to be further assessed in respect of his scars.

11.The applicant was arrested on 18 June 2013.  Upon arrest and caution, he claimed that because the wife was trying to get as much alimony as she could, he chopped her.  He said he had taken some drainage cleaner from the kitchen and was himself splashed by the corrosive fluid.  Two days later, during a video recorded interview, he said he had become angry when his wife asked him to return the keys to the matrimonial home to her.  He took out a knife and “a bottle of poisonous liquid” from a box, intending to kill himself.  Following a dispute with his wife, he rushed into the washroom and picked up a bottle of drainage cleaner which had been bought for cleaning purposes a long time ago.  He was emotional and splashed the liquid onto the wife.  The bottle dropped to the floor, whereupon the wife picked it up and splashed some of the contents onto the applicant’s back.  He admitted hitting the door to the washroom with the chopper.  In a second video recorded interview, he said he did not know that the liquid had splashed onto his son.

12.The applicant himself sustained non-circumferential 5% total surface area full thickness burns and 1% total surface area second degree burns over the right side of his back, his bilateral upper limbs and his face.

The grounds of appeal

13.The argument put forward by Ms Chong on behalf of the applicant principally engages two complaints.  The first is that the judge was wrong to find an element of planning and premeditation by the applicant in bringing the corrosive fluid with him to the matrimonial home that day.  The second is that the starting point for sentence, namely 15 years’ imprisonment was manifestly excessive when viewed against other sentences in comparable cases.

Consideration

14.There is in our view a difference, in the context of a deteriorating relationship between spouses, between a party who, during an argument which gets out of hand, picks something up which happens to be in the home for innocent or proper reasons and uses it to inflict grievous bodily harm on the other, and a party who deliberately brings something dangerous into the home, whether it be a weapon or a bottle of corrosive fluid, with the intention of, or in anticipation of, using it to harm or disfigure the other.  Both situations are extremely serious and deserving of condign punishment with significant deterrent components, but the deliberate and premeditated use of corrosive fluid of high concentration to harm or disfigure another’s body, knowing that it will cause extreme pain and obvious complications, which may scar the victim both mentally and physically for life, is a particular evil for which the legislature has rightly prescribed a maximum sentence of life imprisonment.

15.It was no doubt with these considerations in mind that counsel in the court below (not Ms Chong) sought to persuade the judge in mitigation that the applicant had spontaneously picked up the bottle of corrosive fluid from the bathroom in the heat of the moment.  This assertion was immediately challenged by the judge, who referred defence counsel to the witness statement of the son, who had seen the applicant take the bottle from his waist bag.  When defence counsel continued to submit that the drainage cleaner had been taken from the bathroom, the judge observed that the applicant had made different claims to the police as to where in the premises he had retrieved the bottle from.  It thus became quite clear that the judge did not accept the defence assertion that the drainage cleaner was at all times in the victim’s home.

16.Ms Chong complains that the judge was nevertheless wrong to make an adverse finding that the applicant had come to the premises armed with a bottle of corrosive fluid and that the offence was, therefore, premeditated.  However, it was an admitted fact in the Summary of Facts that the wife had not bought the bottle and had never seen it before in her home; moreover, she did not even know what it was.  It was also clear that the judge did not accept the bare assertion that the applicant had retrieved the bottle from somewhere in the premises, whether from the kitchen or the washroom.  We consider that the judge was perfectly entitled on the facts which were admitted to infer, as she ultimately did, that the applicant must have brought the corrosive fluid with him that day and that there was an element of planning in the offence.  If that was a legitimate inference to draw, and the judge plainly indicated during mitigation that that was her thinking, then it was a matter for defence counsel to decide whether he wished to call evidence on the point. Evidently, he decided not to do so.

17.The judge did not in fact, as was at one stage suggested by Ms Chong, rely in her reasons for sentence on the son’s witness statement on this issue: instead, the judge relied on the obvious inferences to be drawn from the admitted facts that the wife had never bought the bottle or seen it before in her own home, coupled with the inconsistency of the applicant’s assertions under caution as to where it was he claimed he had found it.

18.In our judgment, the judge was entitled to draw the inference she did.  She had explicitly conveyed the fact that she did not accept defence counsel’s submissions as to the spontaneity of the applicant’s act, which counsel did not seek to support with evidence, and she was justified on the admitted facts alone for the view she ultimately formed.

19.In relation to the starting point for sentence, the judge stated that the use of sulphuric acid with intent to cause grievous bodily harm was a particularly heinous offence and one which is resorted to far too often in Hong Kong.  She rightly considered that a particularly aggravating feature of the offence is that the disfigurement or incapacitation of the victim by the use of acid often has a strong vindictive element and is intended as a permanent form of punishment or retribution.  It is perhaps, in this regard, worth repeating the words of the Court of Appeal in R v Wong On Lin [1995] 1 HKC 659, at 661I-662B:

“We are of the opinion that what the court must focus on is this. When carried out as in the manner in this case, this offence is one of the most sickening to come before the courts. The seriousness of the offence is reflected in the maximum sentence which the court may pass, that is to say, life imprisonment. The offence leaves the victim, as is the wife, scarred physically and mentally for life. A normal life for the victim is out of the question. A deterrent, and a strongly deterrent, sentence is inevitably called for. Only in the most exceptional circumstances can an offender of this type expect to avoid a long period of imprisonment.”

20.The Court in Wong On Lin approved a starting point after trial of 15 years’ imprisonment on facts which were not that dissimilar to the facts of the present case, although, as the Court itself observed, at 661G-H, comparisons with the factual circumstances of different cases and different offenders are not helpful.  It might be said that unlike the facts in Wong On Lin, this case involved two victims and the use of both a knife and a chopper, which clearly demonstrated the sustained nature of the attack both before the corrosive fluid was thrown and afterwards, when it served to harry and distract the victims from the urgent need to wash off the sulphuric acid.

21.When this case was first before us, we were concerned, particularly in the light of submissions presented to us by both parties, that we should have updated medical reports on both two victims.  For that reason this matter was adjourned part-heard from 17 March for reports to be obtained.  These have now been prepared.  Ms Irene Fan, for the respondent, has helpfully summarised the effects of no less than eight individual reports into two schedules, one on each victim, which summaries are not objected to and are, indeed, properly accepted as accurate by Ms Chong.

22.The position now, more than 2 years after the offence, is that the wife suffers extensive hypertrophic scarring which is still active and painful but under control by pressure therapy and drugs.  She has reduced movement to her left shoulder and neck but is otherwise able to perform activities of daily living, such as self-care and home management. However, she has suffered psychologically from decreased self-esteem due to her unsightly scarring, which has manifested itself in sleeping difficulties, flashbacks, depression and suicidal ideation, although this has improved since January 2015.

23.In relation to the son, his hypertrophic scars are also still active but controlled with pressure therapy.  He can also perform activities of daily living including self-care and home management.  He is able to cope with his university studies but suffers from itchiness from his scars, which makes it difficult for him to concentrate.  He complains of mild tightness over his upper chest and right shoulder, although his range of limb movement has improved.  He continues to have weakness in his left foot and right toe, although he can walk unaided.

24.There is no doubt, as one might expect as a matter of common sense, that there remains both obvious scarring and associated physical disabilities in the case of each victim.  The extent of psychological trauma, as a consequence of what they have both been through, is not something that this Court is willing to forecast or exclude, particularly so far as the wife is concerned.

25.To put it bluntly, we see no assistance from these updated reports for the applicant.  What he did was to inflict appalling injuries on his victims from which they continue to suffer.

26.There is a further matter to which we should make reference.  The applicant was no stranger to violence upon his wife.  As at the date of the offence, the applicant was in breach of a binding over order for 12 months, which had been made on 2 August 2012.  The facts which led to the applicant being bound over were that he had accused the wife of having an affair and, during the dispute that followed, had dragged an LPG cylinder from the kitchen to the bedroom and threatened to kill her.  He also hit her legs and private parts about 10 times and then bit her foot. The victim was taken to hospital.

27.The judge herself commented that it was unfortunate that the matter of such a significant assault on the wife should have been dealt with by way of a bind over.  Had the matter been disposed of differently, the applicant might have been discouraged from this second more violent attack. We would endorse those remarks.

Conclusion

28.In our judgment, the judge gave full and proper consideration to all of the relevant factors which bore on the question of sentence, in what was a difficult case.  The sentence she passed, while severe, was entirely appropriate.

29.For the above reasons, the application for leave to appeal against sentence was refused.

Ms Irene Fan SPP, of the Department of Justice, for the Respondent

Ms Sezen Chong, instructed by Tangs, assigned by Director of Legal Aid,for the Applicant