HKSAR v. Wong Sum

DCCC 45/2019

[2019] HKDC 1128

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 45 OF 2019

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to 2 charges.  Charge 1 is “Possession of an offensive weapon”, contrary to section 17 of the Summary Offences Ordinance, Cap. 228. The maximum penalty is a fine of $5,000 and 2 years’ imprisonment.  Charge 2 is “Throwing corrosive fluid with intent”, contrary to section 29(c) of the Offences against the Person Ordinance, Cap. 212.  The maximum penalty is life imprisonment.   

Facts

2.FUNG Kwok-cheung (“PW1”) and the Defendant were neighbours living in King Wong Mansion at No. 6 Tai Nan Street, Mongkok, Kowloon (“the Building”).

3.Around noon on 29 September 2018, PW1 was repairing a CCTV camera on the rooftop of the Building where the Defendant’s hut was. The Defendant emerged from his hut. He approached PW1 wielding a 74cm-long iron crowbar in an aggressive manner. The Defendant tried to hit PW1 with the iron crowbar but missed.

4.PW1 ran to the staircase and ran down the stairs to the 12^th Floor below.  The Defendant gave chase.

5.At some point, the Defendant stopped chasing PW1. He returned to his rooftop hut, took a bottle of green liquid and went to the staircase again.

6.When PW1 was at the staircase on the 12^th Floor looking up towards the rooftop, he saw the Defendant at the staircase on the rooftop pouring down green liquid towards his direction. PW1 dodged. Some green liquid was splashed onto him. PW1 felt burning pain on his upper and lower limbs. A report was made to the police.

7.Both PW1 and the Defendant were taken to the hospital. PW1 sustained minor burn wounds over his legs and upper limbs. The Defendant sustained more serious burn wounds to his legs, right arm and chest and abrasions to his left fourth toe. As stated in PW1’s Medical Report, the medical findings are “both legs and left forearm/hand: multiple spots of <0.5cm full thickness burn”. The A&E Initial Findings of the hospital in respect of PW1 and the Defendant and PW1’s Medical Report are exhibited as “E3”.

8.The Defendant was arrested. A 74cm-long iron crowbar and a bottle of drain cleaner was seized from the Defendant’s rooftop hut. Only a small amount of liquid was left in the bottle of drain cleaner. The bottle of drain cleaner and the iron crowbar are exhibited as “E1” and “E2”. Photos showing the injuries of PW1 and the Defendant, the exhibits seized, the exterior and the interior of the Defendant’s rooftop hut, the staircase and the exterior of the Building, are contained in a photo album, exhibited as “E4”.

9.Under caution at scene, the Defendant said that he was constantly bullied by PW1 and his family, so he decided to take revenge and hit PW1 with the iron crowbar but he was not fast enough, he could not catch PW1 so he changed to throw drain cleaner at PW1.

10.In subsequent video-recorded interview, the Defendant stated under caution that he was a retired renovation worker and that the iron crowbar he hit PW1 with was one of his old tools. He kept it in his rooftop hut.  According to the Defendant, when he was chasing PW1 down the stairs, PW1 threw loosen tiles at him. He got furious, so he returned to the hut, took the bottle of drain cleaner and threw its content when he caught a glimpse of PW1’s back at the staircase. The drain cleaner was kept at home as a household item. A lot of drain cleaner was splashed onto the Defendant himself because he had had a stroke and could no longer fully control his right hand.

11.The bottle of drain cleaner seized from the Defendant’s rooftop hut was examined. Forensic scientist confirmed that only 6ml of liquid was left in the bottle and the liquid contained 99% sulphuric acid which was highly corrosive and capable of causing severe burns to skin and permanent damage to eyes.

12.The t-shirts worn by PW1 and the Defendant at the material time were also examined. Burnt patches were found on the garments, which is indicative of them having come into contact with high concentration of acidic fluid. The t-shirts worn by the Defendant and PW1 are exhibited as “E7” and “E8”.

13.In the premises, on 29 September 2018, the Defendant had in his possession an offensive weapon, namely one crowbar, with intent to use the same for an unlawful purpose (“Charge 1”) and unlawfully and maliciously threw upon PW1 corrosive liquid, namely sulphuric acid, with intent to do him grievous bodily harm (“Charge 2”).

Mitigation

14.The Defendant is aged 67.  He had some minor criminal records back in 1987.  He was born in Vietnam, of P. 4 education level.  He came to Hong Kong in 1971.  He was married in 2002, divorced in 2007 after his ex-wife had obtained a one-way permit to Hong Kong.  Since then, he had been living alone at the rooftop of the Building.  His daughter is aged 22 and has recently graduated in Australia with an accountancy degree.  She now works in an accountancy firm.  His son is aged 20, a second-year university student.  He had financed their education. 

15.Before retirement in 2012, he had worked as a renovation worker on a casual basis. Afterwards, he lived on his savings and disability allowance of $3,480 per month. 

16.In mitigation, I am informed that the Defendant and PW1 were owners cum occupants of their respective units in different parts of the rooftop.  About 4 years ago, the Defendant had kept certain renovation tools in the public area.  The tools were removed by PW1 when the Defendant was hospitalized for 2 months due to a stroke.  They began to quarrel frequently over small matters.  The Defendant was frequently physically bullied, such as having his walking stick kicked from behind as he was walking.  However, the Defendant admits in court that there was no immediate provocation the moment before the present offences.     

17.According to the medical report dated 5 June 2019 from Dr. Yip Pui Chuen of Li Po Chun General Out Patient clinic under the Hospital Authority, the Defendant was diagnosed to have diabetes, hypertension, hyperlipidemia (or high cholesterol), and haemorrhagic stroke (or rupture of blood vessel in the brain) with right hemiparesis (paralysis of his right half of body).  He had to walk with a stick.  In October 2018 (ie after the present offences), he was admitted for ischaemic stroke (ie lack of blood flow to the brain, resulting in cell death) with an increase in slurring of speech and right sided weakness.  In January 2019, he was admitted for recurrent ischaemic stroke.  In March 2019 was his most recent consultation in the clinic.  His condition was stable except that his blood pressure was slightly elevated.  Medical consultation was to focus on monitoring his cardiovascular risk factors and prevention of complications including recurrence of stroke. 

18.His counsel Mr. Fung asks me to consider a starting point of 3 years as PW1 only suffered slight injury.  The Defendant by his own impulsive act had caused himself much more serious injury. 

19.The Defendant’s children are in court today.  They are in good relationship with him.  Mr. Fung also informs me that the Defendant has a plan to move out of the premises to avoid any encounter with PW1 in future. 

Sentencing considerations

20.In HKSAR v Wong Siu Kwan CACC 166/2001, the ex-husband of the defendant was seriously injured by corrosive fluid when he refused to make up with the defendant.  The Court of Appeal reviews the sentences of various cases and adopts a starting point of 5 years for the impulsive act of the defendant.  The court regards that if the offence were to arise out of cold-blooded or premeditated revenge, the sentence will be much more severe than that out of an impulsive act.  The injury to the victim is another significant consideration.

Sentencing this Defendant

21.PW1’s injury was slight.  The Defendant had a bigger dose of his own vile medicine.  His act was clearly impulsive.  There were 16 steps between him and PW1 when he poured the corrosive fluid.  His aiming and execution were both poor due to his substandard physical condition.  I take 3 years as the starting point for Charge 2.  One-third off for his plea of guilty, the sentence is 2 years. Further, I give 2 months’ discount due to his deteriorating medical condition. The sentence is therefore 1 year 10 months.   

22.I take 6 months as the starting point for Charge 1.  One-third off for his plea of guilty, the sentence is 4 months. 

23.After considering totality, I order the sentences to be concurrent.  The overall sentence remains to be 1 year 10 months.