HKSAR v. Lau Kai Ping

HCCC 249/2018

[2019] HKCFI 673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 249 OF 2018

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

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COURT:

The defendant, Lau Kai-ping, faced one count of throwing corrosive fluid with intent, contrary to section 29(c) of the Offences against the Person Ordinance, Cap 212 (that is the 1st count) and an alternative count of inflicting grievous bodily harm, contrary to section 19 of the same ordinance (and that is the 2nd count).

The defendant pleaded not guilty to the 1st count but guilty to the 2nd count. His plea was accepted by the prosecution. He was duly convicted of the alternative 2nd count after he admitted to the summary of facts.

Summary of facts

At all material time, the defendant and Madam Leung (that is the victim) were in a dating relationship. At about 4.54 am on 12 August 2017, in response to a report of personal injury, ambulance men arrived at the Ground Floor of No 308, Lai Chi Kok Road, Sham Shui Po, Kowloon (and that is the building). The defendant, escorting the victim, approached the ambulance men and said they were injured by splashing of drain cleaner. The ambulance men treated their wounds.

The defendant said he only wanted to escort the victim to the hospital and did not require medical treatment himself. They were then sent to the Accident and Emergency Department of the Caritas Medical Centre and, upon examination, the victim was diagnosed with chemical burn and suffered from multiple redness and sloughing of skin all over her body, with a total body surface area estimated to be 7 to 8 per cent. Urgent treatment for her chemical burn was given and she was transferred to Burn Unit of the Kwong Wah Hospital on the same day for further management.

Upon further examination at the Kwong Wah Hospital by another doctor, the victim was diagnosed as suffering from a total of 4.5-per-cent total body surface area (called “TBSA”) partial thickness burn, including for face, 1 per cent; back, 0.5 per cent; left forearm, less than 0.5 per cent; and right knee, less than 2 per cent (that is TBSA). The victim was clinically stable during admission and daily dressing was performed to all wounds. The victim was discharged from the Kwong Wah Hospital on 19 September 2017.

As at 27 October 2017, most wounds were healed. She returned to the Kwong Wah Hospital for follow-up on 13 December 2017. In the opinion of the doctor, the scars left on her right face, back of left ear, both knees, left forearm and left shoulder, which constituted 3 per cent of the TBSA, would be permanent. She defaulted follow-up treatment at the Kwong Wah Hospital on 7 February 2018.

Now, at about 6.22 pm on 13 August 2017, in response to the victim’s report to the police that the defendant had splashed drain cleaner at her, the police intercepted the defendant at the Kwong Wah Hospital. On enquiry, the defendant said he was there to visit the victim. He was arrested for the offence of inflicting grievous bodily harm. Under caution, he said he had nothing to say.

In the same evening, the defendant was admitted to the Accident and Emergency Department of Kwong Wah Hospital. Upon examination, the defendant was diagnosed with chemical burn and he showed wounds with surrounding redness over both legs. He was admitted to the surgical ward of the Kwong Wah Hospital on 14 August 2017.

Upon further examination, the defendant was diagnosed as suffering from a first-degree chemical burn by alkali over bilateral lower limbs, 1 per cent of the TBSA. Wound care was provided and he was discharged on 14 August 2017. He defaulted follow-up treatment in the Kwong Wah Hospital outpatient clinic on 28 August 2017 and 7 February 2018.

The defendant attended cautioned video interview. In the cautioned video-recorded interview held by the police with the defendant on 14 August 2017, the defendant admitted, among other things, as follows:

(1) at about 6 to 7 pm on 11 August 2017, he was resting with his girlfriend (that is, the victim) at Room B5, 1st Floor of the building which he rented for the night;

(2) inside the room, they argued about their relationship problems for hours and, in the heat, he went to the en-suite bathroom, picked up a bottle of drain cleaner, which he found underneath the washing basin therein, splashed it at the victim’s leg and put it down;

(3) the victim rinsed herself with running water and suddenly she picked up that same bottle, probably because she was trying to push it away, but it splashed over the defendant’s legs, face and ear;

(4) the defendant then picked up the bottle again and splashed it upwards towards the victim.

(5) both of them then stopped and the victim yelled in pain;

(6) they rinsed themselves together and calmed down;

(7) after they got dressed, they summoned for ambulance men and were sent to the hospital for medical treatment.

(8) they had been arguing about their relationship problem for a long time but the defendant had never tried to harm the victim and she knew that;

(9) on the material night, he could not hold it back any more and had done it.

Background and mitigation

The defendant is a 36-year-old single man with nine previous recorded criminal convictions; all but one was for the possession of dangerous drug. The exception was one of resisting a police officer. The defendant studied up to Form 3 level and worked as a transportation worker earning $15,000 a month.

Mr William Hui, mitigating on behalf of the defendant, informed me the defendant and the victim were cohabitees and they had a daughter who is now under foster care as a result of this case.

The defence submitted a letter from the victim, who is in court to support the defendant. The defendant also wrote to me. I do not think there is any need to go into the details of these letters. Suffice it to say that the description of what had taken place at the material time by both the victim and the defendant was at odds with the admitted facts, intended to play down the role of the defendant.

After taking instructions, Mr Hui was instructed not to pursue the scenario described in their letters, saying that the victim and the defendant put forward such a scenario for the purpose of mitigation.

It is clear from the victim’s letter that she had completely forgiven the defendant, blaming herself to a certain extent of what had taken place, and asked for an early release of the defendant so that the family can be together again. The defendant also asked for leniency.

I was provided with a photo album showing photographs of the victim, the defendant and their baby daughter in much happier settings.

I also have a letter from the defendant’s employer, who certified that the defendant was a hardworking employee who had performed well.

Mr Hui asked me to be as lenient to the defendant as possible.

Authorities submitted by the prosecution

The prosecution submitted three cases for my consideration. The first two involved the sentencing for the offence of throwing corrosive fluid with intent. That is HKSAR v Wong Siu Kwan CACC 166/2001 and HKSAR v Cheung Cho Fat [2010] 5 HKC 400. The last one involved a section 19 case with a domestic context. That is the case of HKSAR v Tang Ho Cho DCCC 724/2014.

Now, I will first deal with the case of Wong Siu Kwan. In that case, the defendant pleaded guilty to one count of throwing corrosive fluid with intent. The judge adopted a 10-year starting point and imposed a sentence of 5½ years.

The facts were that the defendant put corrosive fluid in a small phial and threw it towards her ex-husband’s face during a quarrel after the latter moved out of the matrimonial home. The defendant also threw the fluid onto herself. The victim immediately washed off the acid before being sent to the hospital. Most of the burns are superficial, about 1 per cent of the victim’s total body area or about 20 per cent of his face, and there were burns with second degree, deep or intensive in nature. With treatment, the victim had no scar on his face, though there are some potentially permanent scarring to his neck. The victim took all the blame and asked for leniency from the court.

The Court of Appeal, after considering various authorities, including the case of HKSAR v Wong Sau Lai (that is, CACC 283/2000), and all the circumstances of the case, was of the view that the proper starting point should have been 5 years. After giving the defendant a one-third discount for plea, further discount was given for her previous good character and then the offence was out of character. The Court of Appeal also took into account of the impairment of the defendant’s mental functioning and her family circumstances. A sentence of 2 years was imposed instead.

Now, the case of Cheung Cho Fat. That was the applicant was convicted of two counts of throwing corrosive fluid with intent on his own plea. He was sentenced to 4 years’ imprisonment on each count, to run concurrently. He appealed against the sentence imposed. The victim was his wife of more than 50 years. The victim was living apart from the applicant at the time of the offence. The applicant carried two jars of corrosive fluid to the victim’s residence and suddenly shoved some of the liquid from one jar into the victim’s face. The victim fled and hid behind their daughter who was pregnant at the time. The applicant pursued the victim and threw the fluid from the other jar. The victim and their daughter were both hit by the fluid. The Court of Appeal dismissed the appeal.

Now, after dealing with issue relating to advancing evidence differed from agreed summary and the judge’s reference to the cautioned statement of the applicant and so on, and after referring to mitigation advanced on behalf of the applicant by listing out the general virtue of the applicant and that the victim had forgiven the applicant, the Court of Appeal had this to say ,and that is at paragraph 57:

“Considered in context, it is to be emphasised that the fact that the crimes were committed in a domestic context and that both the wife and the sons now sought to minimise the applicant’s punishment was a matter to which the judge could give only limited weight.”

The Court of Appeal then continued to cite the observation of Bridge LJ in the case of Buchanan (1980) 2 Cr App R (S) 13, at paragraph 15. Now, this is the quote of the passage:

“‘It is always sad when a case of this nature comes before this court, where an offence of gross violence has been committed in a purely domestic context. It is by no means an unusual feature of such cases that the victim, after the event, has entirely forgiven the offender and is anxious to minimise the punishment he must suffer. It is sometimes suggested that because the offence occurred in a purely domestic context, it is a matter of purely domestic concern. That is a wholly erroneous view and one which no court can entertain. When such offences of violence are committed, whoever the victim may be, the matter is inevitably one of considerable public concern. The courts cannot regrettably be deflected from their duty of imposing sentences appropriate to the gravity of the offence when crimes of violence of this nature are committed against a domestic background.’”

The Court of Appeal also said at paragraph 58 that the judge was correct in giving little weight to the letters that is from the victim, the sons and the village elders because of the need for deterrence.

The Court of Appeal continued to say at paragraph 59:

“As to the matter of deterrence, it has long been recognised that the throwing of acid at a person is a particularly vicious crime, one viewed with understandable 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.”

The Court of Appeal considered the 4 years’ imprisonment imposed entirely appropriate.

Now, the District Court case of Tang Ho Cho. The defendant in that case was charged with wounding with intent, contrary to section 17 of the Offences against the Person Ordinance. He pleaded guilty to the lesser offence of unlawfully and maliciously wounding, contrary to section 19 of the same ordinance.

The admitted facts disclosed that the defendant and the victim lived together for three years. The victim knew that the defendant needed to take psychiatric medication and that he became bad-tempered when he did not take the medication. This resulted in frequent quarrels between the two when the victim reminded the defendant to take the medicine.

On the day in question, the victim was afraid that the defendant would become angry over some money matter, so she asked the defendant to take his medicine. The defendant shouted at the victim. He took out a chopper and said he wanted to commit suicide. After a struggle, the victim succeeded in getting the chopper away from the defendant.

Some time later, the defendant accused the victim of having a boyfriend and the victim again asked the defendant to take his medicine. The defendant picked up the chopper and threatened the victim. When the victim pushed him away, he grabbed her throat. The defendant released his grip on seeing that the victim could not breathe but warned her he would chop her if she tried to escape. The victim again asked the defendant to take his medicine. When the victim tried to leave the bedroom, the defendant grabbed hold of her shirt and swung the chopper at her. She sustained various injuries. The victim managed to rush out of the room into the lift lobby, where she shouted for help. She was hospitalised for six days and had completely recovered from her wounds.

The sentencing judge proceeded after consideration to sentence the defendant on the basis that he intended to commit suicide but, due to the influence of drugs, he did not remember how the victim was injured.

The judge indicated that the courts take a serious view of domestic violence and he cited the case of HKSAR v Lee Kin Wah HCMA 990/2009. The judge adopted a starting point of 2 years and 6 months. After giving the defendant a full credit for his plea, which resulted in a sentence of 1 year and 8 months, the judge also took into account the fact that the victim did not want to pursue the case but the defendant had nevertheless pleaded guilty. He gave the defendant a further discount of 2 months, resulting in a sentence of 1 year and 6 months.

Consideration of the sentence

Now, the defendant is convicted of an offence of inflicting grievous bodily harm, contrary to section 19 of Cap 212. Section 19 provides that any person guilty of this offence on indictment shall be liable to imprisonment for 3 years.

Although I have referred to two cases of throwing corrosive fluid with intent, the maximum sentence of which is one of life imprisonment if convicted on indictment, I of course bear in mind that the defendant is now guilty of the lesser alternative offence of inflicting grievous bodily harm. I appreciate that the incident occurred in a domestic setting and that both the victim and the defendant are now very remorseful as to what they had done.

From the admitted facts, the defendant, as indicated in his video recorded interview, in his anger, instigated the attack on the victim with the corrosive fluid first and the victim somehow splashed the defendant back. The defendant then threw the corrosive fluid upwards, causing her extensive injuries on the face and other parts of her body.

I was shown photographs of her injuries and I can see three-quarters of her face was affected by the corrosive fluid. I can also see obvious burns on her neck and both of her lower limbs; in particular, the right limb. The burns on her upper limbs were not as serious.

The victim did not wish to pursue the matter and refused to give any statement or to testify against the defendant. She has come to court to support the defendant.

As she has refused to provide a recent photo of her showing her present condition, I asked her if she was willing for me to look at her. She consented and showed me her face. She was wearing a mask over her mouth at the time. I could not see any scar on her face outside of the mask. But, after she removed her mask, I could see a roundish scar near her mouth, which the doctor has said is a permanent one. That is the one on the right side of her face. To me, that scar is noticeable but not too prominent. I did not ask to see any other scar on the victim’s body.

While I appreciate that the victim does not wish to pursue the matter and she had clearly completely forgiven the defendant, as indicated by the authorities I have already cited, it is my duty to properly reflect the gravity of the offence by sentence even though the crime is committed in a domestic setting.

Having considered all the circumstances of the case, I am of the view that a starting point of 2½ years is appropriate. The defendant did not plead guilty at the committal stage, but indicated his plea during the case management hearing. I will give the defendant a 25-per-cent discount. That is in accordance with the case of HKSAR v Ngo Van Nam. That, after a discount of 25 per cent, the sentence would be one of 22½ months.

Now, the defendant pleaded guilty to the offence when the victim refused to give a statement or testify against him. He did not take the advantage of this fact to make the prosecution prove its case against him without the testimony of the victim, so I will give the defendant a further discount of 2.5 months to reflect this. I do not see any other ground to further reduce the sentence.

So, for the offence of inflicting grievous bodily harm, the defendant is sentenced to 20 months’ imprisonment.