HKSAR v. He Zhaotun

HCCC 146/2019

[2019] HKCFI 3060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 146 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 has pleaded guilty to one count of throwing corrosive fluid with intent, contrary to section 29(c) of the Offences against the Person Ordinance; two counts of inflicting grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance at the Magistrate Court. The defendant was committed to this court for sentence.

Summary of Facts revealed the followings: the defendant and PW1 (victim in relation to the 1st count) had been cohabitating together since 2009. They have two daughters though they have never formally registered their marriage in Hong Kong. In April 2018, PW1 separated with the defendant due to the defendant’s character and moved out from their residence. Somehow the defendant could not accept the separation and was of the idea that PW1 was having an extramarital affair.

In order to start a new life, PW1 quitted her old job and started a new job as a waitress in one restaurant in Tsim Sha Tsui.

At about 11.40 in the morning of 27 May 2018, PW1 was on duty at the restaurant. She saw the defendant approach her with a can of fluid. She knew what was coming and tried to turn away but of no avail. She then squatted on the floor and felt liquid being thrown at her head and neck (Charge 1). The pain caused her to cover her head with her hands.

CCTV of the restaurant captured the attack. The defendant was noted to wear a cap and sunglasses. Two staff of the restaurant then stopped the defendant and pushed him away.

When the defendant threw the liquid onto PW1, the liquid splashed onto two customers who were sitting next to PW1. These two customers also sustained injuries to their bodies (Charge 2 and 3).

Soon, the police arrived and the defendant was arrested.

During a subsequent video interview, the defendant admitted that:

(1) He could not accept the separation and thought that PW1 had an extramarital relationship.

(2) He was angry for PW1 asked for divorce or separation without stating any reasons.

(3) He had prepared the drainage clog remover beforehand and put that into a can.

(4) He poured the liquid onto PW1’s face and neck.

PW1 sustained extensive injuries. She suffered from over 20 per cent second-degree burns over face, neck, back, shoulder, forearms, legs and feet, 8 per cent deep partial and full thickness burn involving head, bilateral forearms and left thigh with eye involvement.

Multiple operations, debridement and skin grafting were performed. PW1 stayed in the hospital for over two and a half months.

As far as the other two victims are concerned, they suffered 2 to 5 per cent first and second-degree burns to various parts of their bodies. Details of their injuries can be seen from the Summary of Facts. Suffice to say that they were not the most serious injuries. Both were treated and discharged from hospital on the same date. Having said that, follow-up consultations were arranged for them.

The liquid in question was found to contain sulphuric acid with a concentration of 60 to 90 per cent.

The defendant is now 42 with a minor criminal record. He has received education up to high school level in mainland China. Prior to the commission of these offences, he was a construction worker.

In mitigation, it was submitted that the defendant was a caring father and had no vice habit and due to the breakup of the relationship, the distress and agony created, the defendant committed the present offences in a desperate emotional state.

A number of mitigation letters from family and colleagues were also produced to ask for leniency from this court.

The offence the defendant committed on PW1 was a very serious one. The attack was not spontaneous but was carefully planned. PW1 moved out from their residence in April and had already started a new job in another area. She did not want to have any more involvement with the defendant. The attack, however, took place in late May. The defendant decided to purchase the corrosive fluid in question and put it into a can.

As indicated, the defendant at the time of the attack wore a cap and a pair of sunglasses. This all pointed to a premeditated, carefully planned attack. The injuries inflicted onto PW1 were very serious. Photographs taken soon after the attack depicted the seriousness of the injuries.

On the last hearing, I adjourned the hearing so that updated medical report and photographs can be obtained. Physical examination on 20 September 2019 showed that PW1’s scars over face and upper limb showed good response. Injury to her eye was healed. Residual alopecia over lower scalp and ear scarring remained static.

Psychiatric examination on 14 August 2019 indicated that PW1 had not suffered from any recent mood disturbances. PW1 nevertheless still had nightmares about the event. She felt sad when she saw her scars. She also had low esteem about her scar and disfigurement. Generally speaking, PW1 suffered from post‑traumatic stress disorder.

Updated photographs taken at the court’s request show the scars and disfigurements at PW1’s face, neck and ears. Although those wounds were largely healed, they were still very horrific and appalling. I have no doubt PW1 would suffer, if not physically, emotionally for the rest of her life.

In respect of the 1st charge, there are no guidelines as such in sentencing. However, in HKSAR v Lau Ching Him, CACC 271/2016 unreported, dated 30 March 2017, the Court of Appeal undertook a rather extensive review of sentences pertaining to this particular offence.

Denunciation, deterrence and punishment are the principles in sentencing behind this offence. Severe sentences are inevitable. In sentencing, factors such as the nature of the attack and its motive, the mindset of the attacker, the spontaneity of the attack, the degree of planning are considered to be relevant considerations.

It was also stated that the state of mind of the offender at the time was highly relevant.

The present case shares similarity with the case in Lau Ching Him. In the present case, the offender, ie the defendant, and the victim, ie PW1, are parties to a failed personal relationship. In the present case, the defendant tried to minimize his culpabilities by relying on a distressed and anguished emotional state. However, it is clear that in the present case, the defendant had planned and prepared himself for the attack. Again, the defendant knew that his attempts for reconciliation had failed. Again, this was nothing less than a cold, calculated revenge attack directed at PW1. What was said in paragraph 64 of Lau Ching Him about the severity of that case also found echoes in the present case.

“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.”

In the words of the Court of Appeal, these circumstances place the commission of the offence in the very serious category for this type of offence.

The present case differs from the Lau Ching Him case only to the extent of seriousness in terms of the injuries suffered by the victim. The impact in this case is serious but not as serious as the one in Lau Ching Him’s case.

Given the marginal less seriousness of the present case, the appropriate starting point in this case, in my view, is one of 15 years’ imprisonment. Given the plea of the defendant, his sentence in respect of the 1st charge is reduced to one of 10 years’ imprisonment.

In relation to the 2nd and the 3rd charges, photographs taken at the time showed the extensiveness of their injuries. Although they are not the most serious one, they could not be described as insignificant. Updated photographs taken from Madam Lam Choi-ha, ie the victim of the 3rd charge, depict scars over her face, her hand and her shoulder. These are permanent scars and no doubt would leave their psychological effect onto the victim for the rest of her life. The defendant should know by his actions in a crowded restaurant, innocent people would also suffer.

Given the serious nature of the offence, a starting point of 18 months each is adopted in respect of Charge 2 and 3. The sentence is reduced to one of 12 months for his plea.

Having considered the totality principle, it is ordered that 6 months each of Charge 2 and 3 are to run consecutively to the sentence imposed on Charge 1.

In conclusion, for the offences the defendant stands convicted, he is sentenced to 11 years’ imprisonment.