HKSAR v. Lau Ching Him

Case No.CACC 271/2016[2017] 3 HKC 410

Court

Court of Appeal

Date30 Mar 2017

JudgeLunn VP, McWalters JA

Case Document

100%Judiciary

CACC 271/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 271 OF 2016

(ON APPEAL FROM HCCC 277 OF 2015)

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BETWEEN
	HKSAR	Respondent
and
	LAU CHING HIM (劉正謙)	Applicant
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Before: Hon Lunn VP and McWalters JA in Court

Date of Hearing: 2 March 2017

Date of Judgment: 30 March 2017

________________

J U D G M E N T

________________

Hon McWalters JA (giving the judgment of the court):

1.Following his plea of guilty before Deputy High Court Judge Stuart-Moore (“the judge”) on 18 August 2016, the applicant was convicted of two counts 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. He was sentenced on the same day to a total term of 14 years’ imprisonment.

2.On 26 August 2016, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against sentence.

3.At the hearing of the application we reserved our judgment and said we would hand it down at a later date. This we now do.

The background to the offence

4.The Summary of Facts admitted by the applicant and used for the purpose of his sentencing revealed that Ms Siu, the victim named in the first count, and the applicant were former lovers at the time of the offence. They had previously resided together at the applicant’s flat in San Shing Avenue, Sheung Shui.

5.From 9-11 November 2014, the applicant and Ms Siu were communicating with each other by text and voice mail. In the course of these communications the applicant asked Ms Siu to return home but Ms Siu declined. The conversations between the two then became increasingly hostile with the applicant threatening to throw away Ms Siu’s personal belongings. Ms Siu asked a friend, Ms Ng, the victim named in the second count, who was 18 years old at the material time, to accompany her to collect her belongings.

6.On 10 November 2014 at about 11:30 pm, Ms Siu and Ms Ng boarded a van they had engaged and proceeded to Sheung Shui where they were to meet the applicant in order to collect Ms Siu’s belongings. On their way to the applicant’s residence, the two women communicated with the applicant by text messages. In one of these messages Ms Siu asked the applicant to return some money to her while Ms Ng accused the applicant of bullying Ms Siu.

7.CCTV captured the applicant exiting his building at 1:38 am on 11 November 2014. He was carrying a bottle which he placed in the basket of a bicycle that was leaning up against a pole on the footpath. When the victims arrived, the applicant went to this bicycle and retrieved the bottle and held it in his hand. Ms Siu and Ms Ng approached the applicant on the footpath where he was standing and talked to him.

8.At this time an argument erupted between the applicant and the two women as they were walking towards the applicant’s residence. The applicant was heard to say: “You took my girlfriend away.” He then splashed liquid from the bottle onto both women. Both women cried out in pain as the liquid burned their skin. Some of the liquid also splashed onto the leg of a passer by. This person alerted the authorities and then went to a nearby toilet to wash his leg.

9.After the applicant had splashed the liquid on the two women, they all went to a nearby alley in search of water to wash away the acid but when they could not find any they went to the applicant’s residence to wash and clean the burn wounds.

10.A short time later the police arrived and the applicant was arrested. The two women were taken by ambulance to North District Hospital and later to the Prince of Wales Hospital Burns Centre for treatment.

11.A subsequent search of the area by police located the cap of the bottle on the footpath near the scene of the attack and the bottle of liquid in a nearby rubbish bin. It was later confirmed by a Government Chemist that the liquid contained 97% sulphuric acid and in this concentration it is highly corrosive and capable of producing severe burns to the skin and permanent eye damage.

12.Under caution, the applicant claimed that he was furious and he randomly picked up a plastic bottle from the bicycle to scare “the woman” and the liquid spilled when she fended off the bottle.

13.However, in a subsequently conducted video record of interview he stated that:

(i) he was furious with Ms Siu for working in a nightclub and he packed up all her belongings and told her to collect them;

(ii) he believed Ms Ng had sabotaged his relationship with Ms Siu;

(iii) he took a bottle of sewage cleaning fluid with him when he went to meet the two women but as they had not arrived he placed it in the basket of the bicycle; and

(iv) he was going to use the liquid to scare Ms Ng but if she did not go away he would splash her with it.

The victims’ injuries

14.Details of the victim’s injuries, both physical and psychological, were included within the Summary of Facts. In addition, the prosecution provided the judge with medical reports by surgeons, a psychiatrist and a psychologist relating to Ms Siu and Ms Ng. He also had a victim impact statement from Ms Ng but not from Ms Siu who was not fit to give such a statement and instead a statement was made by her aunt.

15.A medical examination of Ms Siu showed that she suffered burns over her bilateral posterior thighs and buttock, but these constituted less than 1% of her total body surface area. She was managed conservatively with daily dressings and discharged the following day. Thereafter, she was regularly followed up at the Prince of Wales Burns Clinic where she was observed to have “patchy scars over buttock and with some hyper pigmented scar over buttock.”

16.As a result of the attack, Ms Siu suffered from Post Traumatic Stress Disorder (PTSD). She slept poorly at night and had frequent nightmares. She was stricken with deep feelings of guilt about what had happened to Ms Ng. She would recall the incident whenever she encountered a strong pungent smell, and this caused her “to cry and wail bitterly.” Ms Siu was also fearful that because of the widespread reporting of the case in the newspaper, people would recognize her and mock her. This led to her avoiding going out. In addition, Ms Siu would, on occasion, engage in bouts of heavy drinking and incidents of self-harm.

17.Ms Siu had been hospitalised on three occasions because of her unstable emotions. On one of these occasions she had a two week stay in Kwai Chung hospital. Despite the treatment she has received with drugs and counselling, Ms Siu’s mental state has fluctuated and there were times she would have “a fit of hysteria with uncontrollable bursts of tears and crying for help.” At the time the medical report was written on her the psychiatrist considered that her mental condition was such that she was not fit to give evidence in court.

18.The initial medical examination of Ms Ng showed that she had suffered second and third degree chemical burns over her face, neck and shoulder and both lower limbs. Her left eye was also injured and required a lot of irrigation. At the Prince of Wales Hospital Burns Centre it was determined that she had sustained 7% full thickness burns over her face, neck, shoulder and both lower limbs. Her left eye was also injured and, upon admission, her visual acuity over that eye was noted to be only 20/200. Two surgeries for debridement and skin grafting were performed on her. The grafts were successful except for those over her neck and left heel which subsequently healed with conservative management. Ms Ng was discharged from hospital on 29 December 2014 and has since been seen regularly at Prince of Wales Hospital for her scars. On 21 December 2015 she had surgery to treat a scar contracture over her right cheek. But despite this surgery she suffered a recurrence of hypertrophic scarring which caused some restriction in her neck movement.

19.Ms Ng also suffered from PTSD and a depressive mood. She avoided thinking or talking about the incident and reported that she would become very anxious if she encountered the smell of lubricants. She had frequent nightmares and flashbacks of the incident and had become hyper‑vigilant. She also had depressed mood with reduced levels of volition and interests, fluctuating sleep and appetite, as well as negative thoughts of hopelessness and uselessness. The latest psychologist’s report revealed Ms Ng had reduced anxiety and improved sleep though her mood was still affected by adjustment difficulties relating to her burn injuries.

20.In the final paragraph of the Summary of Facts the applicant admitted that his actions in throwing the liquid “were unlawful and malicious and intended to do grievous bodily harm.”

The mitigation

21.Mr James Tze, who appeared for the applicant at his sentencing and on his appeal, informed the court that the applicant was a 30 years old divorced man at the time of his sentence. He was an aluminium window worker, earning about HK$16,000 a month. He was living with his 5-year-old daughter and was the sole person taking care of her. His daughter is now being cared for by his parents, both of whom are suffering from medical conditions. Before his arrest the applicant would contribute HK$8,000 per month to his parents.

22.Mr Tze submitted to the court that the applicant was deeply remorseful. He did not know how to deal with, and face the reality of, an end to his relationship with Ms Siu and this is what caused him to act as he did which, it was said, was out of character. However, he had tried to remedy the situation by bringing the victims to his home in order to wash their burns and call the ambulance.

23.Mr Tze submitted that as the applicant had committed the two offences by a single act, the court should consider imposing concurrent sentences for both offences or, by application of the totality principle, to impose only partially consecutive sentences.

24.Regarding the starting point, Mr Tze submitted that the overall starting point should be in the range of 10 to 12 years’ imprisonment. In support of this submission he referred the judge to three Court of Appeal judgments involving this offence, namely R v Chan Chi Lun[1], HKSAR v Wong Yuk Yee[2] and HKSAR v Yu Tim Hi[3]. In the case of HKSAR v Yu Tim Hi, he submitted that the victim suffered similar injuries to those suffered by Ms Ng and a starting point of 12 years’ imprisonment that had been adopted by the sentencing judge in that case was affirmed by the Court of Appeal.

25.In an exchange with Mr Tze the judge indicated that he derived greater assistance from the Court of Appeal’s judgment of HKSAR v Lam Ming Wing[4]. In this case the Court of Appeal upheld a sentence of 18 years’ imprisonment on an offender who did not know the intended victims, and was carrying out the instructions of another for reward and the instructions involved a specific demand that the victim be blinded.

The judge’s Reasons for Sentence

26.The judge noted that the offence carries a maximum sentence of life imprisonment and said of it that “it is a truly terrible offence when it is carried out, as in this case, with the clearest intention of bringing about a lifetime of disfigurement, and in this case, quite hideous disfigurement.”

27.The judge found that this was a planned attack by the applicant. He had tricked Ms Siu into coming to his residence and had prepared for her and Ms Ng’s arrival by placing the corrosive liquid at a location near to where he would meet them. When they arrived the applicant went to the basket of the bicycle and retrieved the bottle of corrosive liquid and carried out the attack.

28.The judge found that the main target of the applicant’s attack was Ms Ng and that the applicant had aimed the liquid at the upper part of her body. As to why the applicant targeted Ms Ng the judge said:

“ It seems probable that the reason Ng Ka Man received the direct force of the corrosive liquid you threw was that she had blamed you for bullying your ex-girlfriend and you blamed her for taking away your ex-girlfriend. Well, that is simply the reason, certainly not an excuse for what you did.”

29.The judge referred to the severe chemical burns and PTSD suffered by the victims. He briefly described the much less serious physical injuries suffered by Ms Siu but noted that the mental effects on her were dreadful.

30.He discussed in greater detail the injuries of Ms Ng and said that as a consequence of his actions the applicant had sentenced Ms Ng “to a lifetime of disfigurement.” Ms Ng had gone through skin and muscle grafting and painful physiotherapy sessions. She also suffered from blurred vision because the cornea of her left eye was burnt. The judge also noted that the scars of Ms Ng that were a consequence of the burns had tightened her skin so that her head is pulled to one side. As a result, she was unable to work and was entirely dependent on family support.

31.In respect of the psychological damage caused to Ms Ng the judge noted that Ms Ng had changed from a normal girl of her age to one with insomnia, nightmares, depression and a phobia about even going out and mixing with strangers. She now took anti-depressants and sleeping pills for her condition.

32.He described the effect that the applicant’s actions had on Ms Ng’s life:

“ In short, the life of a teenage girl, which she would normally be looking forward to, has been ruined forever. The physical injuries, and the mental scars perhaps also, are not something from which she can ever recover.”

33.The judge noted that there was no sentencing guideline for the present offence but considered the Court of Appeal’s decision in Lam Ming Wing was relevant to his sentencing task as it was also an extremely serious case of a similar nature. In that case the Court of Appeal had adopted a starting point of 18 years’ imprisonment. He said of all these cases:

“ But none of these cases provide guidelines. All that can be done is an assessment of the gravity of each case on its own facts in the light of all circumstances, so that a sentence is then passed which not only punishes the offender for his terrible crime but which deters others from venting their feelings in such a merciless manner.”

34.The judge then said he would adopt a starting point of 8 years’ imprisonment for count 1, and 21 years’ imprisonment for count 2. He then discounted these starting points by one-third to reflect the applicant’s guilty plea. The final sentence imposed for count 1 then became 5 years and 4 months’ imprisonment while that for count 2 became 14 years’ imprisonment. The judge ordered both sentences to run concurrently with each other.

The Perfected Grounds of Appeal

35.In his Perfected Grounds of Appeal filed on 25 October 2016, Mr Tze advanced three grounds of appeal, namely:

(a) the starting point of 21 years’ imprisonment adopted for count 2 is manifestly excessive;

(b) under the totality principle, the overall sentence of 14 years’ imprisonment for both counts is manifestly excessive; and

(c) in all the circumstances, and on the application of the totality principle, the sentence is manifestly excessive.

36.Mr Tze made it clear that he had no complaint in respect of the sentence imposed on the first count or in the judge’s order that both sentences be served concurrently.

37.In relation to the first ground of appeal Mr Tze submitted that, notwithstanding that there is no sentencing tariff for this offence, it is still helpful to have regard to the range of sentences passed in previous cases. He referred the court to the following cases, most of which involve attacks arising from failed personal relationships:

(a) R v Ng Wing Lam[5]

This case involved an applicant who was jealous of an elderly man who had taken his place in his lover’s affections. The victim was mistakenly identified to be the “elderly man” and as a result of an acid attack suffered permanent loss of his left eye and acid burns on the whole of his forehead, eyebrows, nose and left face with considerable disfiguration. The judge imposed a sentence of 10 years’ imprisonment after a plea of guilty. He did not say what his starting point was but some discount[6] would have been given for his guilty plea. The Court of Appeal said: “We can see nothing wrong whatsoever in the sentence of 10 years that was passed. If anything it may well have been on the light side.”[7]

(b) Attorney General v Au Chi Tak[8]

This case involved a pre-meditated revenge attack on a young woman for terminating a previously close relationship with the applicant. The victim had been disfigured for life. The Court of Appeal said in respect of the applicant, who was convicted after trial, that: “… a sentence of 15 years would by no means have been too long.”[9]

(c) R v Chan Chi Lun[10]

The applicants were both only 16 years of age and were triad affiliated. They had been recruited to carry out the attack by throwing sulphuric acid in the face of a nightclub hostess who, fortunately for her, was wearing sunglasses at the time of the attack. Serious damage was done to one side of the face and neck of the victim. The Court of Appeal said that it did not consider that 12 years’ imprisonment was “by any means on the high side as a starting point.”[11]

(d) Queen v Chow Kwok Fung[12]

The applicant, who was only 17 years of age, and the victim had a long standing but somewhat turbulent relationship. The applicant poured sulphuric acid from a paper cup onto the victim’s head from above, causing burns to her scalp, forehead and shoulders. The sentencing judge adopted a starting point of 12 years and imposed a final sentence of 7 years’ imprisonment. The Court of Appeal, in confirming the sentence of the judge, said that “he was perfectly entitled to come to the conclusion that this was an inhuman offence that deserved a substantial period of imprisonment.[13]

(e) R v Wong On Lin[14]

The applicant poured toilet cleaner over the face of his wife after an argument causing the wife to be scarred physically and mentally for life. A starting point of 15 years’ imprisonment was held appropriate.

(f) HKSAR v Wong Siu Kwan[15]

The victim was the applicant’s ex-husband. After treatment, the victim was left with no scar on his face although he did have some potential permanent scarring on his neck. The Court of Appeal indicated that a proper starting point for the particular circumstances of this case was 5 years’ imprisonment.

(g) HKSAR v Lung Hau Lin[16]

The applicant and victim used to reside together as a couple. The victim’s corneas were seriously damaged and she was rendered almost completely blind. The starting point of 12 years’ imprisonment that was adopted by the trial judge was held by the Court of Appeal not to be manifestly excessive.

(h) HKSAR v Cheung Cho Fat[17]

The applicant harmed his estranged wife and daughter with a high concentration of sulphuric acid that resulted in the wife suffering from 2^nd degree thickness burns and the daughter suffering 1^st degree burns to her neck and arm. The 6 years starting point was held by the Court of Appeal to be appropriate.

(i) HKSAR v Sin Wa Chiu[18]

The applicant used a bucket to pour two bottles of drain cleaner containing 52% sulphuric acid onto his ex-wife’s face, head and neck whilst she was sleeping. The liquid reached her arms and left leg. She suffered burns to 14% of her body and suffered extensive scarring and severe disfigurement which impaired her eyesight and ability to eat, breathe and move and from which she suffered ongoing physical and psychological pain. She in fact lost her sight in her left eye and that in her right eye was damaged. The trial judge adopted a starting point of 18 years’ imprisonment and this was held by the Court of Appeal not to be manifestly excessive.

(j) HKSAR v Wong Yuk Yee[19]

The applicant splashed drain cleaner at her husband in a courtroom after a hearing and as a result the husband sustained visual impairment. The Court of Appeal held that 7 years’ imprisonment as a starting point with 1 year enhancement, to take account of the fact that the attack had taken place inside a courtroom, was appropriate.

(k) HKSAR v Yu Tim Hi[20]

The applicant splashed corrosive fluid at his wife whom, at her request, he was in the process of divorcing. The applicant tricked her into meeting him and when she refused his request for them to be re-united he splashed corrosive fluid onto her. She sustained deep burns to her right face, bilateral distal forearm, left knee and scalp with 7% of her body surface affected. The trial judge adopted 12 years as his starting point and the Court of Appeal said that was not out of line with similar cases and did not result in a sentence that was manifestly excessive.

Mr Tze submitted that from these authorities it was apparent that the starting point for this offence ranged from 6 years to 18 years.

38.When considering the starting point for count 2 in the present case, the judge relied on HKSAR v Lam Ming Wing, which, Mr Tze submitted, involved an attack committed in completely different circumstances. In Lam Ming Wing, the applicant procured two other persons to carry out the attack with express instructions to blind the victim. The total burn area to the victim was 11% of the body and 6% of the face. As a result of the injuries the victim suffered scars which caused bilateral lower eyelids eversion and incomplete closure of eyes, distortion of lips, loss of hair of eyebrows and stenosis of right nostril. She also suffered from PTSD.

39.Mr Tze submitted that the facts of the Lam Ming Wing case were much more serious than the present appeal, and notwithstanding the difference of gravity, the Court of Appeal confirmed an 18 years’ starting point. This case provided the judge in the present case with no support for his decision to adopt a 21 years’ starting point for count 2.

40.Mr Tze further submitted that an analysis of the case authorities and the circumstances of the present case, namely that:

(a) the attack originated from a failed romantic relationship between the applicant and Ms Siu;

(b) the applicant threw corrosive fluid in the course of a heated argument;

(c) the applicant tried to minimize the injuries of the victims by finding water and taking them back to his flat;

(d) the applicant committed the crime alone and called police for help;

(e) the attack was not for financial reward or related to triad revenge;

(f) the attack was not intended to cause a specific injury to the victim (i.e. not aiming at the eyes); and

(g) the applicant has no previous conviction related to violence;

did not support a starting point of 21 years’ imprisonment. Rather, the circumstances of the present case were closer to those in the Yu Tim Hi case where the Court of Appeal confirmed a starting point of 12 years’ imprisonment. The other cases on which he placed particular reliance were Sin Wa Chiu and Yu Tim Hi.

41.Mr Tze’s position was that the starting point for sentence for count 2 should not be higher than 18 years.

42.In relation to grounds 2 and 3, Mr Tze submitted, for the reasons he advanced in respect of the first ground of appeal, that the overall term of 14 years’ imprisonment imposed was, by reason of the totality principle, in all the circumstances manifestly excessive. It was also his position that not only should the starting point for count 2 be no higher than 18 years but also that the overall starting point for both counts should be no higher than 18 years’ imprisonment. It followed from this submission that the final overall sentence should be no higher than 12 years’ imprisonment. In response to a query from the court in respect of ordering partially consecutive sentences he indicated that he could find no appellate authority in which the imposition of partially consecutive sentences had been ordered or approved for this offence where a single act of throwing corrosive fluid had resulted in injuries to multiple victims.

The respondent’s submission

43.Mr Derek Wong, Senior Public Prosecutor, for the respondent, submitted that the sentence for each case must be determined according to its individual circumstances and the extent of the injuries and suffering endured by the victim is one of the sentencing considerations. He also argued that the sentencing court should not lose sight of the fact that the maximum penalty is life imprisonment and that the nature of this offence necessitated that the sentence imposed should have a strongly deterrent effect.

44.When comparing the sentences imposed to the ones imposed in the cases cited by the applicant, the respondent acknowledged that the sentences imposed on the applicant were indeed higher but the real question was whether in the particular circumstances of the present case the sentences could be considered as manifestly excessive.

45.The respondent submitted that the young ages of the victims in the present case, especially that of Ms Ng who was only 18 years old at the time of the attack, is of paramount significance in sentencing because the period of future suffering faced by the victim would be longer.

46.Mr Wong emphasized, that apart from the pain and suffering resulting directly from the attack and the medical operation, Ms Ng would have to deal with the residual effects. Her wounds and scars would continue to affect her daily life. Her disfigurements would severely affect her social life and being not able to work anymore would cause her to be a financial burden to her family members. Mr Wong argued that the injuries suffered by Ms Ng were comparable to, if not more serious than, the victim in Lam Ming Wing.

47.Mr Wong asked the court not to overlook the fact that the present attack was not a spontaneous act in the heat of the moment but was a well-planned and premeditated one. The applicant had tricked the two women into going to his residence and had brought the corrosive fluid to the scene. Also relevant to an assessment of the applicant’s culpability was the fact that Ms Ng was an innocent victim as there was no evidence that she had a grudge with the applicant before the incident. Furthermore, the splashing of the corrosive fluid was targeted at the upper part of Ms Ng’s body and so the intent to cause serious injuries and disfigurement to her was obvious.

48.It was further submitted that the present attack took place in a public place and the court should not overlook the risk that passers-by might get injured. In fact, the corrosive fluid actually splashed onto the leg of a passer-by in the present case.

49.It was also submitted that a high starting point was not reserved exclusively for attacks on strangers for financial reward but the appropriate sentence depended on the circumstances of the particular case.

50.Mr Wong submitted that, for all these reasons, the applicant’s culpability fell within the most serious category of this type of offence and the starting point of 21 years, albeit on the high side, was not manifestly excessive. Having said that, Mr Wong was forced to concede that, like Mr Tze, his research failed to uncover any case for this offence where a starting point in excess of 18 years’ imprisonment had been adopted.

51.Regarding the totality of sentence, the respondent submitted that the overall sentence of 14 years’ imprisonment imposed for counts 1 and 2 was an appropriate sentence. Even if the court reduced the sentence for count 2 to an 18 years’ starting point and final sentence of 12 years’ imprisonment, the court could properly order that part of the sentence for count 1 should be served consecutively to the sentence for count 2.

52.In support of this submission Mr Wong reminded the court of the injuries suffered by Ms Siu. As a consequence of the attack Ms Siu had patchy scars behind her buttock and leg, and there were some hyperpigmented scars over her buttock. Furthermore, she was stricken with deep guilt about dragging Ms Ng into the attack and had even tried to commit suicide. She also suffered from PTSD for which she still attends consultations with a psychiatrist.

53.Mr Wong submitted that, clearly, the attack on Ms Siu added to the overall culpability of the applicant and so, as a matter of legal principle, this court was entitled to order partially consecutive sentences. However, he accepted that for this particular offence, in circumstances similar to those occurring in the present case, there was no precedent for such an order being made.

Discussion

54.As has been emphasized by counsel for both parties this is an offence for which there is no sentencing guideline as the facts of each case can be so different. However, that is not to say that there is no appellate guidance on the sentencing principles relevant to this offence or for the matters to which a court should have regard when assessing the seriousness of the offence and the culpability of the offender before it.

55.This offence, by its very nature, attracts the condemnation of the courts, often in very strong and, at times, emotive language. That is because the harm caused by the offence can be so horrific with appalling long term, and frequently whole of life, consequences to the victim. Thus, the courts have emphasized the importance of the sentencing principles of denunciation, deterrence and punishment. In R v Chan Chi Lun[21] Power JA in giving the judgment of the Court of Appeal said: “In offences of this kind the deterrent effect of a sentence is, perhaps, of larger moment than in any other class of offence.”

56.The need to accommodate these principles will inevitably mean that the principle of rehabilitation will be relegated to a much less prominent role in the determination of a just sentence. The importance of giving proper allowance, indeed emphasis, to the principles of denunciation and deterrence will inevitably result in severe sentences.

57.It is often pointed out that the maximum sentence for this offence is life imprisonment and this is an indicator of how serious the legislature viewed this conduct when enacting the offence. This is not surprising given that the mens rea for the offence is an intent to do grievous bodily harm and that the actus reus by which this is to be achieved is by the throwing of corrosive acid. This actus reus will cause permanent disfiguring injuries in whose treatment modern medicine is still struggling to cope.

58.Another indicator of how serious the legislature viewed the offence can be found in the way it specifically mentioned that no actual harm need result from the conduct. Criminal liability is imposed simply upon the commission of the actus reus accompanied by the necessary mens rea, irrespective of “whether any bodily injury is effected or not.”[22] Consequently the offence will always attract severe sentences whatever may be the outcome to those affected by its commission, though, of course, the outcome will always be relevant to the assessment by the sentencing judge of the seriousness of the offence and the culpability of the offender.

59.Helpful observations have been made by the Court of Appeal in different cases coming before it involving this offence. In HKSAR v Wong Siu Kwan the Court of Appeal referred 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.…”[23] as being relevant considerations.

60.In HKSAR v Cheung Cho Fat the Court of Appeal, in dealing with this offence in a domestic context, said:

“ An issue of prime importance in determining an appropriate sentence was the issue of premeditation: was the attack on the wife planned in any way or did it arise in the heat of the moment?”[24]

61.The comments in both these cases are, of course, helpful in highlighting relevant matters, but they do not by any means represent an exhaustive list of the matters to which a judge, called upon to sentence a person for this offence, should have regard. Nevertheless, they are matters that should always be borne in mind and will inevitably be considered by the judge in the course of an examination by him of the circumstances surrounding the commission of the offence and the consequences that flowed from the offender’s actions as part of his process of assessing the seriousness of the offence and the culpability of the offender.

62.Clearly the state of mind of the offender at the time he committed the offence is highly relevant. When offender and victim are parties to a failed personal relationship the offender will inevitably try to minimize his or her culpability by relying on a distressed and anguished emotional state. The problem with this claim is that the offence, by its very nature, will usually require some preparation and planning for a person does not normally have readily to hand concentrated solutions of corrosive fluid. The present offence is a prime example. Without in any way denying that the applicant was upset that he could not persuade Ms Siu to reconcile with him, it is clear that he planned and prepared himself for this attack. He knew his attempts at reconciliation had failed and he was intent that Ms Siu should pay a price for rebuffing him and that Ms Ng should especially suffer for what he perceived as her unwanted and hostile meddling in his relationship with Ms Siu. This was nothing less than a cold, calculated revenge attack. That it was a revenge attack is apparent from the way the applicant made Ms Ng as his primary target.

63.That is not to say that Ms Siu was not also a target of the applicant’s attack. She clearly was. In throwing the corrosive fluid the applicant was intentionally seeking to cause harm to both ladies. Indeed, in pressing home his attack so strongly he even splashed the corrosive fluid on a passerby.

64.Thus, in terms of the circumstances of the offence, the applicant’s conduct was very much premeditated and was certainly not a spontaneous response to provocative conduct. In terms of his motivation it was prompted by anger and a desire for revenge and not from a distressed and anguished emotional state. In terms of its execution, it was carried out in a manner that would cause maximum harm to the upper body and face of Ms Ng.

65.There is nothing in these circumstances, which relate to the commission of the offence, which in any way mitigates the applicant’s culpability. Indeed, these circumstances place it in the very serious category for this type of offence.

66.Turning to the consequences of the applicant’s conduct, they, of course, were horrendous. The injuries to Ms Ng are clearly of an extent and severity which make the offence, in relation to her, a candidate for the very serious category. But, in addition to the injuries themselves, there is the impact of the injuries on Ms Ng and others which cements its place in that category. For it must be remembered that the impact of Ms Ng’s injuries extended to Ms Siu who was deeply distressed by what had happened to her friend and became very guilt-ridden by it. From the statement of her aunt it is quite clear that the guilt she felt for Ms Ng’s injuries contributed substantially to her having suicidal thoughts. In addition to the impact that Ms Ng’s injuries had on Ms Siu, they also affected Ms Ng’s family who have provided, and will continue to have to provide, on‑going emotional and financial support for her. They, also, have been made victims by the applicant’s actions.

67.Relevant to an appreciation of the impact of the injuries on the victims is the age of the victims. They were both only on the cusp of adulthood and in respect of Ms Ng, the applicant has taken from her the opportunity she should have had to participate in all the pleasures of a carefree young adult life. Even if, in later years, she is able to obtain some pleasure from life she will have lost forever this important period of her lifespan.

68.Being so young means that she has also been deprived of any chance of a normal life for the whole of her adult life. She will always have some disfigurement and her scars will always be a source of pain and distress. They will affect her ability, and perhaps even her desire, to socialize with others and to form personal relationships. No doubt accompanying all these difficulties will be mental health issues arising from all the problems she will be facing daily in her life.

69.But the impact is not just physical and psychological and it does not affect only social relationships, it also affects her working life. She is no longer able to work and has become wholly financially dependent on her family. Knowing that she has become a financial burden to her family has added further psychological stress to her.

70.All of these various impacts are long term impacts and many, with varying degrees of severity, will be whole of life impacts.

71.Given the circumstances of the offence and the consequences of the applicant’s conduct we are in no doubt at all that his culpability is great and falls towards the upper end of the scale.

72.None of the findings of the judge in respect of the circumstances surrounding the commission of the offence, including the motivation of the applicant, and the consequences of his actions are disputed by Mr Tze. Nor does he dispute a conclusion that this case can be fairly categorized as of the more serious level for this type of offence. He accepts that the judge could have properly adopted a starting point of 18 years’ imprisonment and had he done so the applicant would have had no complaint.

73.The narrow issue in this case has become whether there is something about this case and this offender which elevates it into a sentencing range beyond 18 years’ imprisonment.

74.From the researches of counsel it would seem that hitherto no sentence in excess of 18 years’ imprisonment has been adopted for this offence. However, that does not mean that 18 years is to be regarded as the upper limit for the starting point. The maximum penalty is, after all, life imprisonment and so that is the only upper limit.

75.In order to determine whether a starting point beyond 18 years is justified for this applicant we have had regard to other cases dealing with this offence. Those cases can provide assistance by identifying features which the Court of Appeal has said aggravate or mitigate the offender’s conduct and in revealing any pattern of sentencing that may have developed over the years in respect of this offence.

76.In three cases to which we were referred by Mr Tze a starting point of 15 years’ imprisonment was adopted. They are, firstly, R v Ng Wing Lam, secondly, Attorney General v Au Chi Tak and thirdly, R v Wong On Lin all of which are discussed in paragraph 36 of this judgment.

77.In the Wong On Lin case a husband attacked his wife with a solution that had a 96% concentration of sulphuric acid and as a consequence his wife was scarred for life. She had full thickness burns to the whole of her face, her ears, her neck and the left side of her chest, arm and shoulder. At the time of the offence the wife would have been 25 years of age and the husband, in committing the offence, had deliberately targeted his wife’s face with the intention of causing maximum damage to it. At page 661I-662B Barnett J, in giving the judgment of the Court of Appeal said:

“ 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.”

78.In respect of cases with an 18 years’ imprisonment starting point Mr Tze referred us to HKSAR v Sin Wa Chiu and the case that the judge had in fact raised with the parties, HKSAR v Lam Ming Wing. In the judgment of the Court of Appeal in HKSAR v Wong Siu Kwan, one of the cases on Mr Tze’s list, there is reference to another case involving an 18 years starting point and that is HKSAR v Yu Wai Chiu.[25]

79.In HKSAR v Yu Wai Chiu the applicant was a drug addict who committed the offence for reward. The victim sustained third degree burns that covered 18% of her body that would disfigure her for life. The Court of Appeal described the case as truly terrible and the attack as cold‑blooded. It upheld the trial judge’s starting point of 18 years’ imprisonment.

80.In the judgment in Lam Ming Wing the Court of Appeal described the circumstances of the case as “a particularly bad case of its kind” and referred, in apparent approval, to the sentencing judge’s comment that “he could not recall an offence of more cold-blooded and unmitigated wickedness than that committed by the applicant.”[26]

81.The Court of Appeal also referred to the sentencing judge’s observation that the fact that this was not an attack arising from any personal grievance, but was an attack on a total stranger for financial reward and was a contract to blind, greatly aggravated the culpability of the defendant who procured it. The Court of Appeal said that in making this comment:

“ … the judge did not for a moment seek to lessen the gravity of an attack carried out for some personal grievance, but by which he sought to distinguish this case from others.”[27]

82.Those other cases, the Court of Appeal made clear immediately after this comment were cases:

“ … involving distressed and anguished members of love triangles, a proposition altogether different from the premeditated contract attack represented by the facts of the present case.”[28]

83.In HKSAR v Sin Wa Chiu the Court of Appeal was dealing with a horrific attack by a 71 year old man on his younger ex-wife. The trial judge had declined to take the applicant’s advanced age into account as he formed the view on the material before him “that there was every appearance the applicant traded the freedom of his shorter remaining years to wreck her longer ones.”[29]

84.The judge in this case adopted an 18 years starting point and counsel for the applicant argued on appeal that such a starting point should be reserved for those cases where there is present the additional aggravating factor of the attack being a contract attack carried out by strangers for reward. It was submitted that for cases in a domestic context committed by “distressed and anguished” persons “there was a range of culpability culminating in a starting point well below 18 years.”[30]

85.In rejecting this argument the Court of Appeal said:

“ We are satisfied that there is a fundamental flaw in the argument advanced on behalf of the applicant in this regard, which arises from the fact that there is no tariff for this offence, which carries a maximum sentence of life imprisonment.”[31]

86.It concluded in respect of this ground of appeal:

“ Accordingly, we reject the first ground of appeal. There is no fixed tariff or bracket for this offence and a starting point of 18 years is not reserved exclusively for cases involving attacks on strangers for financial reward. The latter fact may be an aggravating factor in determining sentence but the appropriate sentence for this offence depends on the facts and circumstances of the particular case, including the obvious factor of the extent of injuries and suffering by the victim.”[32]

87.Describing the offence as not being one committed out of a momentary loss of reason but rather as a concerted effort to disfigure, the Court of Appeal upheld the judge’s starting point of 18 years’ imprisonment.

88.The statements of the Court of Appeal lay to rest completely any attempt to suggest that when the offence arises from a failed personal relationship it cannot attract a sentence starting point of 18 years’ imprisonment.

89.In the present case the judge relied very heavily on the Court of Appeal’s decision in Lam Ming Wing, but he did not explain what it was that he derived from that case which led him to the conclusion that a starting point significantly in excess of that which had been adopted in that case, was appropriate for this applicant. We have read the judgment of the Court of Appeal in Lam Ming Wing carefully but cannot find in it any statement of sentencing principle or observation of judicial guidance for this offence which would suggest that a starting point in excess of 18 years in the present case is warranted.

90.Although no cases are identical we are satisfied that the culpability of the applicant can be said to be in the same range as those offenders for whom starting points of 18 years’ imprisonment has been adopted. Great though the applicant’s culpability is, we are not persuaded that a starting point for sentence in excess of 18 years can be justified.

91.For these reasons we are of the view that the judge’s starting point of 21 years’ imprisonment for count 2 is excessive. An appropriate starting point for this count is 18 years and when this is reduced by one-third to allow for the applicant’s guilty plea the final sentence for this count becomes 12 years’ imprisonment.

92.No complaint is made in respect of the 8 years’ starting point and 5 years 4 months’ imprisonment sentence for count 1. The only issue is whether the judge was correct to order that the sentences for the two counts should be served concurrently. The judge did not give any reason for ordering the sentences for the two counts to be served concurrently but no doubt in doing so he was influenced by the totality principle. Having started at 21 years’ imprisonment for count 2 the judge no doubt concluded that 14 years’ imprisonment was, overall, a just punishment for both offences. However, having reduced the sentence for count 2 to 12 years’ imprisonment, the issue is very much a live one before us.

93.Mr Tze submits that an overall starting point of 18 years is appropriate for both offences, especially as they arose from what was, in effect, a single act by the applicant which, as it happened, caused harm to two victims.

94.Mr Wong submits that each count reflects different areas of culpability, and that both areas call for punishment. Mr Wong recognises that the totality principle still applies but argues that ordering 2 years of count 1 to be served consecutively to count 2 would not infringe this principle. The result of such an order would be that no change would be made to the total sentence imposed on the applicant.

95.We take as a statement of the relevant legal principles the judgment of Stock VP, as Stock NPJ then was, in HKSAR v Ngai Yiu Ching.[33] In giving the judgment of the Court of Appeal he discussed the legal principles that applied when sentencing for multiple offences. He said:

“ 13. When a judge is faced with the task of sentencing for multiple offences he is required as an initial step to identify the appropriate sentence for each offence and as the final step to achieve a total sentence appropriate to the culpability of the offender. The issue with which this appeal is concerned is the decision that the Judge faced whether to order any of the sentences for the offences to run concurrently with each other or to be served consecutively.

14. The question whether to order concurrent or consecutive sentences can arise in many different scenarios. An offender may be charged in respect of a number of different, or similar, offences committed on wholly separate occasions over a period of time or with a number of different offences committed in the course of one episode of criminal activity. This case is concerned with the latter situation.

15. In the case of several offences committed in the course of a single episode, the prosecuting authorities might choose to proffer only one charge, where one charge embraces all the criminal conduct reflected by the evidence or, as in the present instance, separate charges for each criminal act.

16. If it chooses the former course, the instances of proved conduct embraced by the single charge but which could have been the subject of separate charges are taken into account in deciding what penalty reflects the true overall criminality.

17. But when the prosecuting authority elects the latter course, namely, to charge two or more offences arising from an episode of criminal activity, the objective is still the same; that is to say, the ultimate overall sentence must still reflect the overall and true culpability, although the sentencing judge must take care, first, to pass a sentence for each individual offence that is appropriate to that offence and the circumstances of its commission and, second, not to punish the offender twice for the same conduct.

18. It was in an attempt to safeguard fairness to the offender by ensuring that he was not punished twice for the same conduct that the courts developed the ‘one transaction’ rule. In essence, this rule said that if the number of offences have been charged arising from the one transaction or course of criminal conduct, then concurrent sentences should be imposed.

19. The one transaction rule was not developed as an inflexible rule of law. It was never intended as anything more than a practical rule of thumb to guide judges in the exercise of the power to impose consecutive sentences so that the final sentence was not one that was unfair to an offender.

20. However, once stated, this practical working rule tended to develop a life of its own and has led to some difficulty in its application. Judicial dicta explained what was meant by ‘one course of criminal conduct’ and exceptions to the rule developed eg assaults committed on police officers by offenders who were under arrest for the main offence (HKSAR v Leung Ping Wa (unrep., HCMA 1038/2005, [2006] HKEC 43)); and sexual assaults committed in the course of robberies (Secretary for Justice v Tseung Man Ka [2000] 4 HKLRD 115). All of this, understandably enough, became material for advocates who sought to argue that the multiple offences of which their client had been convicted were part of one transaction and that it inevitably followed that the correct sentence was one where all the sentences were concurrent.

21. There are several problems associated with this line of reasoning. First it runs the risk of elevating a practical working rule to a rule of law, thereby providing an opportunity to argue that departure from it inevitably meant that the sentence imposed on the client was excessive. Second, it tends to obscure the real point which is not whether two or more offences are committed at about the same time, but whether the second or other further offences add to the culpability or criminality of the first. Third, it ignores the reality that whatever sentence is arrived at after application of the rule is still subject to the totality principle.

22. The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but it is also a tool by which to ensure that ‘the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.’: R v K M [2004] NSWCCA 65 at para. 55.

23. The emphasis therefore should be on a reflection in the sentence of true culpability disclosed by the offences of which the accused has been convicted. This is an approach which this Court has consistently adopted in recent times, for example in HKSAR Kwok Shiu To [2006] 2 HKLRD 272 and HKSAR v Iu Wai Shun [2008] 1 HKC 79. It is likely to be a more effective approach in reflecting an offender’s overall culpability than one which becomes overly concerned with the one transaction rule, although in the case of more than one offence, the court must guard carefully against punishing twice for the same act. If the second offence which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the first; to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a whole. As with most sentencing exercises, the approach is an art, sensitive to the individual circumstances of the case and the offender.”[34]

96.In the case of this applicant there may have been only one incident of throwing corrosive fluid but, as we have said, in the course of that incident the applicant deliberately targeted two victims with the intention of causing grievous bodily harm to both of them.

97.Each victim suffered in different ways and with different degrees of harm caused to them. Each is the subject of a separate count and each count has attracted its own sentence which punishes the applicant only in respect of the conduct the subject of that particular count. The sentence for count 2 does not punish the applicant for his culpability in respect of count 1 and it would be nonsensical to say that count 1 does not add anything to the culpability of the applicant. We have already referred to the harm caused to Ms Siu and it is self-evident that the applicant’s conduct in respect of her adds substantially to his overall culpability for both counts.

98.That being so, it is clear, as a matter of legal principle, that there is no legal impediment to this court ordering partially consecutive sentences. Quite the contrary, having decided that the two counts reflect different and additional areas of culpability this court is required to consider whether it should order partially consecutive sentences so as to ensure that the applicant is justly punished for the whole of his culpability. The only reason for not ordering partially consecutive sentences would be if the court was persuaded, by application of the totality principle, that any consecutiveness would result in an unjust sentence.

99.In Ngai Yiu Ching Stock VP discussed the totality principle at paragraph 22 which we have quoted at paragraph 95 of this judgment. In HKSAR v Lam See Chung Stephen[35] this court said at paragraph 51 of the judgment:

“ 51. The purpose of the totality principle is to achieve a just and balanced sentence that will not punish the defendant twice for the same conduct and will not be crushing to him. It is clear that a just and balanced sentence is one that is not concerned solely with the rehabilitation needs of the offender but also accommodates other relevant sentencing principles, such as retribution, that is, the need to punish an offender for his misdeeds; where deterrence is needed in respect of a particular offender or offence, to appropriately deter him and others; the need to denounce the conduct and, where an offender preys upon the community, to protect it from his depredations. It is well to remember that at times a severe sentence will be an appropriate sentencing response and just because a sentence is severe does not mean that it is not just and balanced.”

100.Although neither counsel was able to provide the court with any authorities involving two victims attacked with a corrosive fluid on the same occasion in which this court had ordered part of the sentence imposed on one of the counts to be served consecutively to the sentence of imprisonment and imposed in respect of the other count Lawrance Chan, one of the court’s Judicial Associates, has located a relevant judgment. In HKSAR v Chung Sau Lan[36] the Court of Appeal quashed the order of the trial judge that 6 years of the sentence of 7 years’ imprisonment imposed on the second of two counts 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, be served consecutively to the sentence of 7 years’ imprisonment imposed on count 1. The judge had taken a starting point for sentence for each of the two counts of 12 years’ imprisonment. Having regard to the applicant’s pleas of guilty and to the fact that she suffered from depression, he discounted the starting point to 7 year’s imprisonment.

101.The applicant and one of the victims of her attack had been lesbian lovers. The applicant suspected that the second victim of her attack had caused their relationship to break up. All three women worked in the same restaurant. Whilst at work, suddenly the applicant threw the contents of a thermal flask at the face of her former lover. Then, immediately she picked up another thermal flask and threw the contents at the face of the second victim. The liquid contained in the two flasks was drain cleaner, which contained sulphuric acid.

102.Each of the victims, who were aged 39 and 40 years respectively, were detained in hospital for over a month and sustained full thickness burns estimated to be 6 percent and 10 percent of the whole body respectively. Debridement and skin grafting was performed on both victims. Each of the victim’s sustained injury to one eye. There had been no significant improvement in their conditions at the time of the hearing of the appeal in the Court of Appeal, one year after the attack.

103.In the judgment of the Court of Appeal, Cheung JA said that the sentences of 7 year’s imprisonment for each of the two counts was appropriate. However, of the overall sentence, he said that the judge’s acceptance that the applicant was suffering from a mental illness at the time of the commission of the offence was “one of the important sentencing facts”. Nevertheless, having noted that “although two victims were involved, they were attacked by the applicant on the same occasion”, the court quashed the order that 6 years of the sentence of 7 year’s imprisonment imposed in respect of the second count be served consecutively to the sentence imposed in respect of the first count and substituted an order that only 3 years’ imprisonment be served consecutively to the sentence imposed on the first count. Accordingly, the total sentence imposed on the applicant was 10 years’ imprisonment.

104.It seems to us that given the relevant legal principles to which we have adverted and given the additional culpability of the applicant arising from the harm caused to Ms Siu, it would be quite wrong not to punish the applicant for his conduct in respect of count 1. The sentence for that count was 5 years 4 months’ imprisonment. An order making 2 years of that sentence consecutive to count 2 would, in our view, provide a just punishment of the applicant for this additional area of culpability. We are not persuaded that it would result in a total sentence that is imbalanced or crushing. Rather, it meets the demands that the sentence (i) justly punishes the applicant for the whole of his culpability; (ii) provides strong deterrence to others; and (iii) appropriately conveys the court’s and the community’s denunciation of this kind of conduct. It is a severe sentence but it is one that, in the circumstances of this particular case, is just and balanced.

Conclusion

105.For these reasons we allow the application for leave to appeal and treating the hearing of the application as the hearing of the appeal we affirm the sentence of the judge on count 1, set aside the sentence of the judge on count 2 and in its place impose a sentence of 12 years’ imprisonment. In place of the judge’s order that the sentences for the two offences should be served concurrently we order that 2 years of the sentence for count 1 should be served consecutively to the sentence for count 2. As a result of these orders the overall sentence of the applicant remains unchanged at 14 years’ imprisonment.

(Michael Lunn)	(Ian McWalters)
Vice-President	Justice of Appeal

Mr Derek Wong SPP of the Department of Justice, for the respondent

Mr James Tze, instructed by Ip, Kwan & Co, assigned by the DLA, for the applicant

[1] [1989] 1 HKC 70

[2] [2013] 3 HKLRD 218

[3] CACC 170/2013, unreported, 26 November 2013.

[4] CACC 152/2007, unreported, 26 November 2009.

[5] CACC 299/1982, unreported, 24 June 1982.

[6] In the present day it would be one third but back in 1982 it may have been only up to 25% and only then if the plea of guilty was tendered at the first opportunity. See HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 at paragraph 59.

[7] At page 3 of the judgment.

[8] [1987] HKLR 1121

[9] Ibid at 1122G.

[10] [1989] 1 HKC 70

[11] Ibid, at page 72I.

[12] CACC 511/1994, unreported, 12 September 1995.

[13] Ibid, at page 7.

[14] [1995] 1 HKC 659

[15] CACC 166/2001, unreported, 17 October 2001.

[16] [2004] 2 HKLRD 715

[17] [2010] 5 HKC 400

[18] [2012] 1 HKLRD 768