HKSAR v. Cheung Chun Oi

HCCC 497/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 497 OF 2015

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

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COURT:

The defendant has pleaded guilty to one count of throwing corrosive fluid with intent, contrary to section 29C of the Offences against the Person Ordinance, Cap 212.

The facts revealed that the victim had worked at the OK Convenience Shop in Russell Street, Hong Kong, in March 2010, when he met the defendant who was the manager of the shop at the time and was married with two children. The relationship between them was good and by about March 2011, they both began a relationship and by that time, the victim in the case had transferred out of the Russell Street shop. They would meet during that period about once a week for sexual relations.

In the summer of 2013, the victim informed the defendant that he wanted to break up with her and from then on, there were frequent quarrels in the relationship and by February 2015, the victim had decided firmly to break up his relationship with the defendant and began to date his girlfriend. Subsequent to that, the defendant tried many times to try to get back together with the victim, calling him repeatedly. The last time that they met up was in April 2015.

On 24 May 2015, the victim woke up and left home for work at about 5.35 am. He was intending to get a taxi to go to work and as he was passing a rear lane, the defendant suddenly splashed corrosive liquid onto him and most of it landed on his face. The victim immediately covered his face but was unable at the time to see who had attacked him. All he saw was a person with a purple bag over the shoulder. The victim then called for help and eventually the police were called and the victim was sent to hospital.

On 25 May 2015, the defendant went to work at Circle-K, her normal working place, and was seen by a colleague wearing a white facial mask covering the lower part of her face. The colleague noticed that the defendant had what looked like a 1 to 2 millimetre burn injury on the left side of her face near the cheekbone.

On 26 May 2015, police officers went to the defendant’s home and arrested the defendant for the present offence and cautioned her. The defendant said she had nothing to say. During the interview with the defendant, injuries were noticed on the defendant’s face and the defendant was asked how she had sustained them and whether she needed to see a doctor but she did not answer.

Upon a search of the defendant’s premises, a purple handbag was found amongst other things and various household cleaners were found, including a bottle of bleach. The defendant was subsequently taken to hospital at her request on 26 May and examined by a doctor. She told the doctor that she was splashed by fluid about four to five days previously. Dr Cheung found multiple patches of redness and dry crust on her face and upper chest wall. She was treated and discharged.

Examination of the victim’s personal clothing was found to contain traces of sulphuric acid. The clothing of the victim was found to have damage consistent with sulphuric acid with a concentration of not less than 97 per cent. So this concentration was highly corrosive and capable of causing severe chemical burns to the skin and permanent damage to the eyes.

The victim was admitted to Queen Mary Hospital and was found to have chemical burn injuries all over his face, neck and upper limbs. The total burn surface area was about 6 per cent. Both eyes suffered grade 1 chemical burn with bilateral eyelid involvement and lgophthalmos which was an inability to close the eyes completely.

The defendant was interviewed on video-recorded interviews and she made an admission that she was present in the rear lane of Davis Street between 5.24 am and 5.25 am on 24 May, and she claimed that she was smoking in that lane. That would be the alleyway across which the victim had passed early that morning. I note also from the Summary of Facts that the defendant’s home was in Siu Sai Wan Estate and not near this alleyway.

The defendant is aged 49 and was married at the time of the offence, with two daughters. I am told by counsel for the defence that she also has two granddaughters. In mitigation, Mr Lee said the defendant had been suffering from insomnia as a result of this offence. She had also suffered the breakup of her marriage.

Mr Lee, in mitigation, sought to paint a picture of the fraught emotional condition the defendant was in prior to the commission of this offence. He submitted that the affair lasted about two years and, in fact, when the victim proposed to break up on the first occasion, the defendant actually slit her wrists to try to commit suicide but she was taken to hospital and she recovered. However, because of the poor relationship, she also suffered from insomnia and that, prior to the offence, Mr Lee asserted that the defendant had also sought irregular psychiatric counselling.

Mr Lee, in mitigation, also produced the diary of the defendant to demonstrate the extent of her emotional involvement with the victim. Also produced was a psychiatric report on the defendant when she was examined after the offence, where the psychiatrist said that the defendant had adjustment disorder and was prone to harmful use of alcohol and had depressive episodes, amongst other things.

Mr Lee also pointed to the fact that after the breakup, the defendant found that she was pregnant but when she told the victim, the victim did not seem to care and that added to her stress and she took Chinese medicine to induce an abortion. Mr Lee said, at the time of the offence, the defendant was mentally confused.

Letters were also submitted by Mr Lee, one from the defendant indicating her remorse and she asserted that at the time of the offence, she had only picked up the drain cleaner which happened to be in the alley. There was also a letter from the defendant’s sister and her Circle-K senior and also a church pastor.

Mr Lee tried to persuade this court that the injuries suffered by the victim are healing and healing well and that his eyes are all right now since the operation on his eyes to improve the lagophthalmos. He submitted that this court should give the defendant a sentence which is as lenient as possible as the defendant herself had suffered some injuries to her face.

He submitted two cases, one was the Wong Siu Kwan case, which is CACC 166/2001, where he said the trial judge had adopted a starting point of 10 years’ imprisonment and because of the guilty plea and mitigating circumstances, imposed a sentence of imprisonment for 5 years and 6 months on the applicant. That went on appeal and the Court of Appeal, after considering cases and the letter written by the victim in the case where he asked the court for leniency for the defendant and said that the matter happened in a large part due to his actions. So all in all, the Court of Appeal in that case then concluded to reduce the sentence to 2 years’ imprisonment. However, the Court of Appeal did say, in the last paragraph, this:

“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.”

So it is clear that the Court of Appeal did not intend for it to be made a precedent and was clearly pointing out that it should be only viewed in its particular circumstances.

The other case which Mr Lee submitted to this court is the case of Wong Man Chun, HCCC 56/2016 and the sentencing was in August 2016. In that case, there was a long-term marital disharmony. The defendant suspected that her husband was having an extra-marital affair. It was in the early hours of the morning when the matter came to a head and the defendant threw corrosive fluid at her husband. The sulphuric acid at that time was found to contain a concentration of 97 per cent.

The learned judge in that case did consider the case of Wong Siu Kwan and said that the similarity was because both defendants were in a desperate emotional state over what they believed was the collapse of their marriage. In that case, the learned judge considered a starting point of 7½ years to be appropriate.

There are many, many cases which one can refer to over the years in relation to throwing corrosive fluid with intent to do grievous bodily harm. I agree with Mr Lee that the different types of offence call for different levels of sentencing. As he said, there is one group which is the revenge of a spurned spouse or partner. The second group is a coldblooded attack on strangers for reward, and the third group is throwing the corrosive fluid from a height to injure innocent people.

Obviously, the defendant belongs in the first group. Within this first group, there has been also many, many cases and there is no sentencing guideline for this type of case because each case has to be decided on its own facts.

In this case, the most glaring factor is that it was not committed in the heat of the moment. It was, according to the defendant, a spontaneous act. She saw the sulphuric acid, the drain cleaner, in the alley; the defendant just happened to walk by and she threw it at him. But what she was doing in the early hours of the morning in that alley, conveniently, as the victim was on his way to work was never explained.

Furthermore, I can see from the statement of the victim that the defendant knew where he lived because the defendant had been to his home twice previously. So from this fact, the only reasonable inference is that she was there in that alley, waiting for him. She was not there just to smoke.

Throwing sulphuric acid or corrosive fluid at someone is the most heinous type of offence that we can even think of. That is reflected by the fact that the legislature has given a maximum sentence of life imprisonment.

As the Court of Appeal recognised in the case of Wong Siu Kwan which I have mentioned earlier, [2001] HKC (unreported) 1042, the Court of Appeal observed that the range of facts of each case will vary greatly as to the nature of the attack and its motive, the mind-set 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.

In this case, it is without a doubt that the defendant was there in that alley, awaiting the victim in the case and the way the acid was thrown at him was intended to cause most serious injury. It was thrown at his most vulnerable part of his body, which was his face. It was a vicious and vengeful attack.

As the Court of Appeal also had observed in the Hong Kong case of HKSAR v Yu Tim Hi [2013] HKC (unreported) 2765, at paragraph 23, it was noted that:

“The victim was still receiving treatment in that case at the time of sentencing. The information was insufficient for the judge to assess whether there was a disfigurement on a permanent basis but obviously there was still a long way to complete recovery. And although the psychological report that there was no indication of trauma reactions or clinical level of depression and anxiety of the victim, the court would nonetheless bear in mind the potential psychological distress and harm brought by this type of injury.”

In that same case, the Court of Appeal noted, after being referred to a whole series of cases, that the starting point sentences may range from 4 years 6 months to 18 years, and they said at paragraph 32:

“We wish to emphasise the serious nature of this offence for which a strongly deterrent sentence is called for. As Hartmann JA had said in Cheung Cho Fat at paragraph 59:

‘As for 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 abhorrence by right-thinking members of society. Almost always, as in the present case, the person’s face is chosen as the principle target, the inevitable intent being to disfigure in a permanent and grotesque way.’

As was said by this court in Queen v Wong On Lin [1995] 1 HKC 659, at 662:

‘The seriousness of the offence is reflected in the maximum sentence which the court may pass, that is to say, life imprisonment. A deterrent, and a strong deterrent, sentence is inevitably called for. Only in the most exceptional cases can an offender of this type expect to avoid a long period of imprisonment.’

Power JA of the Court of Appeal also said in the case of Chan Chi Luen:

‘In offences of this kind, the deterrent effect of a sentence is perhaps of larger moment that any other class of offence.’”

The Court of Appeal reiterated:

‘It is our view that in offences of this nature, whether the injury be great or minor is largely fortuitous and weighs little in favour of the applicant.”

So in effect, the Court of Appeal has, time and time again, stressed that a deterrent sentence is necessary. In this case in particular, I also note the fact that according to the latest report of the victim, the senior clinical psychologist, Dr Wu, had said that:

“The victim was very anxious and concerned towards the negative reactions from others of his facial disfigurement. The anxiety has affected his day to day social encounters in public places. Mr Shek still needed to wear a cap and facial mask to conceal his disfigurement whenever he went out as he was still very conscious of others’ reactions towards his facial appearance. He remains hopeful that his facial disfigurement, especially those on his mouth, chin and the scalp, would be improved with the cosmetic surgery which would be arranged when his medical condition stabilised. He also planned to resume work only after that, although he had taken the advice to start planning and taking steps to help him adjust to work life in the interim.”

In summary, Miss Carman Liu, the clinical psychologist, had stated that:

“The victim demonstrated great strength and effort in overcoming his anxiety towards going out in public in the past year. However, the subclinical level of psychological distress towards his facial disfigurement warrants continuous psychological intervention. His adjustment in living with his facial disfigurement will continue to be monitored.”

The latest medical report on the physical aspect of the trauma suffered by the victim was dated 27 January this year. Dr Yan said that the victim was admitted to hospital on 24 May and was discharged on 10 August 2015. Having been discharged, he had also to continue receiving surgery and in fact had already, prior to his discharge, received significant skin graft debridement so that improved the lagophthalmos that he suffered. Luckily, because of the treatment, there was no corneal injury.

The victim has been treated as an out-patient with multiple dermal laser beam treatment and hypertrophic scar. And on many occasions, he said that the scars were maturing in progress with less pigmentation, less vascular and soften after dermal laser beam. Hopefully, eventually, the physical disfigurement will be improved.

The Department of Ophthalmology from the Grantham Hospital also submitted an up-to-date medical report on the eyes of the victim and said that he was last seen on 28 November 2016, with best corrected visual acuity 0.7 in both eyes. There was still lagophthalmos of 2.5 millimetres seen with right lower lid ectropion and mechanical ptosis resulting from periorbital skin scarring. Otherwise, his corneas are clear and ocular condition is stable, and there will be a follow-up on him in July this year.

So the victim is still continuously receiving treatment and it is also noted that he is suffering, although not from psychiatric problems. He is still suffering from the fact that he avoids going out because he is conscious of the fact that his face has been disfigured.

It is very sad to deal with this type of case because, where emotions are involved, it is very difficult to put the level of how much each party has suffered both emotionally and physically. However, in considering a sentence, I will give the defendant the benefit of the doubt that she did not bring the acid with her but had only found it in the alley. However, there was no doubt that when she splashed the acid over the victim’s face, it was a vengeful and spiteful act. She did not feel remorse subsequent to that. She continued with her own job; she went to work the following day, so it was a matter of how she was feeling at the time.

In this case, I have considered that a severe deterrence is necessary. As the Court of Appeal has observed over and over again, this type of case is so easy to commit and the result is so frightening for the victim.

So having considered all the facts in this case, I consider that a starting point of 10 years’ imprisonment is appropriate, and giving the defendant the one-third off for her plea, she will go to prison for 6 years and 8 months.