HKSAR v. Yeung Ka Lok

HCCC 128/2019

[2019] HKCFI 2126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 128 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant Yeung Ka-lok faced one count of throwing corrosive fluid with intent, contrary to section 29(C) of the Offences against the Person Ordinance, Chapter 212. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of Facts

The Admitted Facts disclosed that the defendant and the victim knew each other. The victim is someone surname Tsoi. As the victim had provided information to the police regarding the defendant’s drug trafficking activities in 2011, the defendant held a grudge against the victim ever since. In the morning of 29 May 2018, the defendant WhatsApp the victim saying he suspected the victim had broken a window of his home, that is the defendant’s home and the victim denied and the two exchanged voice messages scolding one another. Later that evening, the defendant WhatsApp the victim asking to meet the victim to have a discussion.

The victim told the defendant, again a voice message, that he was at the Octagon, that is an octagonal-shaped park in Tin King Estate, Tuen Mun. The defendant appeared at the park shortly afterwards holding a bottle in his hand. The victim was chatting with three friends. The defendant ran towards the victim and shouted the victim’s nickname. The defendant then splashed liquid from the bottle he held at the victim. The victim managed to dodge and did not suffer any injury. The victim saw liquid emitted smoke when it hit the ground. The victim immediately ran away but was chased by the defendant. The victim’s friends were able to stop the defendant and together with the victim the defendant was subdued. During the struggle, the defendant had put his hand inside his shoulder bag and he was stopped and the bag was taken away from him. And the bag was taken away from him.

A report was made to the police and the police arrived shortly and made inquiries. The defendant claimed he did not know why he was there and could not remember how he got there. The police found traces of liquid on the ground and an opened bottle of drain cleaner at the scene. It had a green colour cover with a hole in the middle. Inside the defendant’s shoulder bag there was another bottle of drain cleaner which was unopened. It had a red cover and was intact, that is without any hole. A transparent plastic bag with the word “Wellcome” was also found in the bag.

The defendant remained silent upon arrest and under caution. The proprietor of a shop in Tuen Mun was shown the two bottles of drain cleaner and he identified them as items sold by his shop as he recognised the handwriting he put on the bottle. He also recognised the transparent plastic bag with the word “Wellcome” as he used it to wrap the bottle for safety purpose. The contents of the two bottles were examined and found to contain 160 and 350 millilitres of 99 per cent, that is weight by weight, sulphuric acid respectively. Forensic scientists remarked that the acid in this concentration is highly corrosive and capable of causing severe burns to skin and permanent damage to eyes.

During a video-recorded interview taken on 30 May 2018, the defendant admitted knowing the victim for over 10 years. He had a grudge against the victim as the victim had reported him twice to the police and he was sent to gaol. He suspected the victim had damaged the glass at his home on 28 May 2018, so he contacted the victim and arranged to meet him. He purchased and carried two bottles of drain cleaner and attended the meeting alone. He replaced the cover of one of the bottles with a green cover for the purpose of splashing people. When he attended the meeting, he saw one of the victim’s three friends holding a knife so he splashed the drain cleaner at the victim by squeezing the bottle. He was then assaulted and he forgot what happened afterwards. When he woke up, he was in police custody. The defendant admitted that on the day in question he had thrown corrosive acid upon the victim with the intent to do grievous bodily harm to the victim.

Background and Mitigation

The defendant is 32 years of age. He has three previous convictions, one robbery, one trafficking in a dangerous drug and one possession of a dangerous drug. He studied up to Form 1 level and had worked at a logistics company. Mr Paul Leung, mitigating on behalf of the defendant, informed this court that the defendant was married and his wife is Thai and they married in 2016, but the two separated in the same year. The defendant was unemployed at the time of the offence. Prior to that, the defendant worked as a transportation worker earning $16,000 a month.

The defendant’s parents were divorced. His mother suffered from mental illness and stays in a nursing home. His father had passed away 10 years ago. The defendant was cared by various -- or cared for by various foster parents and institutions after the divorce of his parents and his father remarried. He did not feel love or care from the foster care given to him. The defendant started to make friends with some Triads and the victim was one of them. The defendant started to take drugs and gradually become an addict. The defendant claimed that the victim had demanded protection money from him and had warned him that if he did not pay his home would be burgled by the victim and windows broken. The defendant was not able to make payment. As his home was burgled and windows were broken, he strongly believed that it was the work of the victim. Though the defendant made a report to the police, no arrest was made.

Apart from this incident, the defendant also held a grudge against the victim as the latter had informed on him to the police. The defendant claimed that one of the followers of the victim, a man surname Lam, called him and asked him why he had made a report to the police. Heated words were exchanged and Lam asked the defendant to meet the victim at the Octagon. I made a note here that according to the Admitted Facts it was the defendant who had asked to meet the victim and the victim told him he was at the Octagon and not that the victim had asked the defendant to meet him through this Lam.

Anyway, going back to the mitigation, before going to the park, the defendant had consumed a dangerous drug and his emotion was high, then the incident involving the corrosive fluid occurred. Mr Leung submitted that during the struggle at the park the defendant was seriously assaulted though he could not remember clearly what had happened. According to various medical reports on the defendant, the defendant suffered from brain contusion, acute haemorrhage, abrasion over right forehead, right elbow and also impairment of the right ear, hearing impairment. He was also diagnosed as suffering from substance induced psychosis with symptoms of amnesia, confusion, abnormal behaviour and delusional ideas.

Mr Leung referred to the authorities submitted by the prosecution which I will refer to later and submitted that although all of them involved inflictions of serious and permanent harm on the victims with some victims suffering from prolonged emotional and psychological disturbance requiring regular psychotherapy, there was no such feature in the present case.

Mr Leung stressed that the defendant pleaded guilty at the earliest opportunity. He had no similar record. He had a miserable personal background. He had acted alone. He had been bullied, threatened and extorted for money for a long time by the victim. He committed the offence out of anger. No one actually sustained any injury and no property was damaged. He was severely assaulted by the victim and his followers. He made a full confession and cooperated with police investigation. And finally, his chance of reoffending is low as he is now mentally stable after medical treatment. Mr Leung asked this court to impose a lenient sentence on the defendant.

The court’s view of the defence mitigation

As part of the mitigation does not tally with the Summary of Facts, I stood the case down for both parties to make inquiries and take instructions. While there may be some substance in the defendant’s claim that the victim may have been involved in Triad activities, there is nothing to show or support the defendant’s claim that he had been subjected to extortion by the victim and/or his followers to pay ‘protection money’. I am very sceptical about this claim as the reason given by the defendant during the video-recorded interview why he was angry and committed the offence was because of his suspicion that the victim had burgled his home and broken his window.

I would have thought if the reason for the burglary and the breaking of the defendant’s window was to extort ‘protection money’ from the defendant, the defendant would have mentioned it during the video-recorded interview. There is no reason for the defendant to say nothing about protection money during the video-recorded interview. I told the defendant through his counsel that I was not prepared to accept such a claim on the defendant’s mere assertion. I was informed by defence counsel that the defendant does not wish to pursue this issue and does not want to have a Newton inquiry. Further, while the defendant did mention about this person surname Lam during the video-recorded interview, the role played by this Lam was not the same as what the defendant claimed to be during mitigation.

Now, while the defendant did suffer from injuries, I do not see any injury consistent with a knife injury which throws doubt on the defendant’s claim that one of the persons with the victim was holding a knife as one would expect a person holding a knife to use it while trying to subdue a person who was throwing corrosive fluid at his friend. Be that as it may, the defendant planned to throw the corrosive fluid at the victim whether the victim’s friend was holding a knife or not.

So what the defendant suffered from was abrasion on his forehead and on his limb, I think. His forehead and his right elbow. These are consistent with being subdued. As to the haemorrhage and the brain contusion, they could also have been suffered as a result of being subdued, for instance, hitting the head on some hard object. It is unclear why the defendant suffered from the hearing impairment. I do not think the evidence before me supports the defendant’s claim that he was heavily or severely assaulted, but I accept that the act by the friends and the victim subduing the defendant could be quite strong and the defendant did suffer from some injuries as a result.

Throwing corrosive fluid with intent to do grievous bodily harm is a serious offence. A person convicted of this offence on indictment is liable to life imprisonment. The prosecution submitted a number of authorities on the sentencing of this offence for my consideration. They are HKSAR v Sin Wa Chiu [2012] 1 HKLRD 768, HKSAR v Yu Wai Chiu CACC 300/2000, HKSAR v Chi Chi Hong Ken CACC 299/2010, HKSAR v Cheung Cho Fat [2010] 5 HKC 400, The Queen v Chan Chi Lun CACC 572/1988 and HKSAR v Leung Kam Sing CACC 34/2015.

Now, the principles one can glean from these cases which are applicable in this case are:

(1) There is no fixed tariff for this offence.

(2) The appropriate sentence would depend on the circumstances of a particular case including the extent of the victim’s injury and suffering and whether the offence was committed on the spur of the moment or well planned.

(3) The offence is a particularly vicious one viewed with abhorrence by right-thinking members of society, a strong deterrent sentence is inevitably called for.

(4) The fact that the victim was not injured is of little relevance as section 29C of Chapter 212 provides for the culpability of the defendant whether any bodily injury is effected or not.

Further, the court has said in the case of Chan Chi Lun, whether the injury be grave or minor is largely fortuitous and weighs little in favour of the applicant. The defendant held a grudge against the victim and the attack was planned with premeditation. The defendant replaced the cap of one bottle with one having a hole to facilitate the easy throwing or splashing of the fluid towards the victim after finding out where the victim was. The defendant clearly had the intent to disfigure the victim and to cause the victim serious bodily harm. It was pure luck that the victim managed to dodge and was not injured.

The concentration of the corrosive acid was high, 99 per cent, weight by weight. The defendant bought two bottles of drain cleaners and he kept one inside his shoulder bag which he carried to the scene. He also reached his hand into the shoulder bag during the struggle. The defendant is not a man with clear record but he does not have a similar record. I have already mentioned the attack was premeditated. He attacked the victim because of an old grudge and his suspicion that it was the victim who had caused his home to be burgled and a window to be broken. He was high on drugs at the time and the medical assessment was that he suffered from substance induced psychosis. It is possible that his suspicion was a result of his psychosis.

Having considered the principles I have already mentioned and the circumstances of this case and bearing in mind the reason why the defendant committed the offence, mainly his old grudge against the victim and his suspicions that it was the victim who had broken his window and burgled his home, the defendant acted alone so there was no accomplice involved, and fortunately for the victim no actual injury was caused to him even though this factor does not weigh too much in favour of the defendant I still take that into account, I am of the view that a starting point of 6 years is appropriate.

The defendant had pleaded guilty at the earliest available opportunity and though some time has been spent this morning to deal with the mitigation advanced on behalf of the defendant and some of them had not been accepted by this court, I am still prepared to give the defendant a full one-third discount.

While one feels sympathetic towards the defendant for having such a miserable upbringing, it is not a ground for me to reduce the sentence in this case. I do not see any other reason to further reduce the sentence apart from the one-third discount for plea.

So for the offence of throwing corrosive fluid with intent, the defendant is sentenced to 4 years’ imprisonment.