HKSAR v. Yim Chi Kwan

DCCC 775/2020

[2021] HKDC 633

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 775 OF 2020

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Reasons for Verdict

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1.The defendant faces a single charge of attempting to throw corrosive fluid with intent, contrary to section 29(c) of the Offences against the Person Ordinance and section 159G of the Crimes Ordinance.

2.The prosecution say that the defendant tried to splash PW1 with a fluid that he mistakenly believed to be corrosive, his motivation being that he suspected PW1 and his female friend, PW2, had what he described as a chemical relationship.  The defendant denies that he tried to splash PW1 with the liquid he was carrying, a liquid he believed to be a drain cleaner.

3.The case for the prosecution was as follows.  PW1 and PW2 are respectively godfather and goddaughter.  PW1 lives on the Ground Floor at Hong Lee Court, Room 105, that is in Ngau Tau Kok.  PW2 sleeps sometimes with her father in a flat on the 13th floor of the same block.  The defendant had rented a premises from PW2, that is the goddaughter.  They appear to have had an on and off boyfriend/girlfriend relationship for a period of time.  The defendant became unable to pay PW2 the rent and she required him to leave the property.

4.On 1 June 2020, at around 2 pm, the defendant appeared at Hong Lee Court carrying with him a Blue Girl Beer bottle filled with a fluid and he had that in his hand.  He met PW2 who had been inside PW1’s premises.  She met him outside PW1’s home at Flat 105 and they took part in an argument.  They decided to leave to go to the 13th floor where her father’s flat was and at that time PW1 came to his front door - his front door was a wooden door with an area outside and a metal door beyond that outside area.  PW1 opened the metal door.

5.Both the prosecution witnesses who saw what happened, that is PW1 and PW2, say that when the defendant saw PW1, he splashed some of the liquid in the bottle towards PW1. It largely fell onto a motorcycle parked there and the metal door to the flat. PW1 himself says that a small quantity splashed on him and caused an irritation or redness, some small spots.  They were identified on a photograph but they are very hard to see.  He never sought any medical attention because of their trivial nature.

6.PW2 and the defendant later went to the 13th floor where it was said that the defendant poured the fluid upon himself.  PW2 in fact washed the fluid off him inside the father’s house.  A police officer who saw the defendant later said it caused a rash or redness.  There was however no medical evidence was ever submitted as to any injuries suffered by the defendant from his action.

7.The defendant was arrested and under caution he immediately told the police, “Ah Sir, I did not aim at throwing it at him,” I presume that is PW1, “I bought it for throwing at myself.”

8.He later went on to make a more detailed statement in a video-recorded interview.  In essence, he said this - and this was on 2 June 2020, in the afternoon - he said the shower drain at the rented property where he lived with his girlfriend had become a bit clogged up, so he sought a bottle of drain cleaner for $12.  He was going to meet the girlfriend, Miss Kwan, at Fu Shing House at 1400 hours.  She later messaged him to say she was not coming and invited him to come to her father’s flat, that is on the 13th floor.

9.She was in fact seen coming out of Room 105 where PW1, who he, the defendant, described as Ah Cheong, lived.  He had a verbal conflict with PW2.  Then he says, overwhelmed by a whim of anger he threw the liquid at PW1 but did not have the intention to throw it onto him.  The liquid was the bottle of corrosive he had bought for cleaning the drain.  He had taken the cap off the bottle and said that, boiling with rage, he had acted on a sudden impulse without intention. Later on, he said that he would “die in front of you” to PW2 and poured liquid over himself.  It was confirmed that the Blue Girl bottle was the bottle of drain cleaner and there was a receipt produced from an ironmonger for the purchase of that bottle.  He had sent a WhatsApp video to PW2 saying “You’re not at home, but at the place where the male who has chemistry” with her and he wanted to expose her relationship.  He later said that “I did not have the intention to throw it onto Uncle Cheong and I did not have the intention to throw it onto anyone else.”

10.It was agreed that the fluid concerned in this incident is not a corrosive fluid.  It is described as an irritant.  There is no evidence that it is capable of causing any serious bodily injury.  The Government Chemist said that the fluid was 385 ml of orange liquid containing hydrochloric acid with a concentration of 24 per cent by weight.  Such concentration of hydrochloric acid is classed as an irritant and is below the 25 per cent by weight concentration required for classification as a corrosive fluid.  That is how the prosecution describe the substance itself, or the liquid.  However, it is agreed in the Admitted Facts, and the evidence before me is that it is classified as an irritant rather than a corrosive fluid.  The only other evidence of its nature would be from PW1, who said it causes a spot on his arm and the observations of PW3, the police officer, who said that the defendant had a red-like rash.  However, there was no evidence from either of these people of any lasting effect or injury.

11.The defendant did not give or call evidence.  No adverse inference can be drawn from that decision.  His case, as advanced by cross-examination, was that he believed the substance to be a drain cleaner.  He had not thrown or splashed a liquid towards PW1.  He had in fact poured the liquid upon himself outside Room 105, not on the 13th floor, and perhaps some of the liquid had splashed accidentally towards PW1, but he had not thrown it.

12.The first factual issue to be determined is whether the defendant had in fact splashed or attempted to splash PW1 with the liquid in the bottle as outlined by the prosecution witnesses.  And secondly, what was the defendant’s intent and what was his belief when he did so; did he attempt to splash PW1 and what did he believe about the fluid?  Did he actually himself believe that fluid to be corrosive?  The defendant contended that PW1 and PW2 were not reliable or truthful; PW2 was evasive about her relationship with the defendant and that PW1 had exaggerated the defendant’s acts.  Furthermore, that as it was the case that the liquid was not corrosive, there was no actual evidence that the defendant could ever have believed that it was.  All that could be said is that the defendant believed it to be a drain cleaner.

13.My resolution of the factual issues would be as follows, and when resolving factual issues I bear in mind that the burden of proof is on the prosecution at all times; the prosecution must prove the facts beyond a reasonable doubt.  And where any inference of fact is to be drawn, and it must be in this case, if the prosecution is to succeed, it must be the only reasonable inference that can be drawn.  That inference must be proved beyond a reasonable doubt from the accompanying circumstantial evidence.

14.I am satisfied, having heard the evidence, that PW1 and PW2 presented as reliable factual witnesses as to the events outside Room 105.  I noted the criticism of them. They were, however, the only witnesses who could give evidence about that incident.  PW2 was undoubtedly reserved about her relationship or former relationship with the defendant, but that is understandable given what had transpired between them.  She herself, in her evidence, said she only saw the defendant splash PW1, towards PW1, once with the fluid.  PW1 himself recalled two attempts to splash by the defendant, whereas in his earlier statements he simply described one incident.  I was however satisfied that both witnesses saw the defendant throw the contents of the bottle at PW1.  The difference between them in their evidence is accountable by the different view points at which they were seeing the incident and the recollection of an incident that occurred quickly and was, on its face, a sudden violent event.  One must expect there to be different accounts in those circumstances.  However, their general evidence is of one piece, that the defendant threw the liquid towards PW1.  We can see from the photographs where that liquid fell.

15.From that, I am satisfied that the defendant threw the contents of the bottle towards PW1, that it is when that liquid was splashed onto the motorcycle, the tiled floor in front of Room 105 and the door, the metal door.  The metal door in fact had been closed by PW1 when he saw the defendant throw the fluid towards him.  All these areas were stained by the fluid.  The defendant himself had said that overwhelmed by anger he threw the fluid at PW1, although he did qualify this by saying that he did not intend to throw it onto him, but he was certainly, at minimum, reckless as to whether the fluid reached or contacted PW1, and I believe the inference can be drawn that it was his intention at least to try and get the fluid to reach PW1.  As I have said, the majority of the fluid was spent upon the motorcycle, the tiled floor and the door, and caused these to be stained. However, PW1 says a very small quantity actually splashed into contact with him and caused a small localised and transitory irritation.

16.And I must deal now with the defendant’s belief as to that fluid; the defendant’s belief as to the nature of the fluid in issue.  The defendant says it was a drain cleaner. The defendant said he bought it for a small sum of money to clean the drains at the rented flat.  PW2, when asked about that, said the drains were fine, there was no need for any unblocking of those drains.

17.In any event, although the defendant said he had it with him when he went to Hong Lee Court, I can see no reason related to clearing drains that justified him bringing that fluid to Hong Lee Court that afternoon.  The fluid was purchased, we know, from an ironmonger.  This is confirmed; we have the receipt.  What it was sold as is unknown other than what the defendant has told us.  We know of no warnings were issued with the fluid and it was sold in a beer bottle.  The defendant said it was sold to him as a drain cleaner.  There was no evidence to counter that.  It is known that it contained a diluted hydrochloric acid.  It cannot be described a corrosive, but as an irritant.

18.The prosecution bases its contention that the defendant believed the fluid to be a corrosive on certain things said in the record of interview.  The record of interview is prefaced by the officer saying that it is an investigation into what he described as a corrosive fluid.  In the record of interview, the defendant himself described the bottle as “the bottle of corrosive”, then corrects that to “drain cleaner” at 221.  Also, at 431, he said he was holding the bottle of corrosive fluid and he confirmed this at 439 and 441.  The prosecution say surely, when he says this, he must be articulating his belief as to what this fluid was.  Furthermore, they say he describes his behaviour, throwing the fluid on himself later, as being self-harming and also using these words: “So let me show you how I die” - that is at notation 265, which must show, they say, he believes the fluid was capable of killing him.

19.However, in the record of interview, the defendant is simply echoing the description given by the police officer of the bottle of fluid and we know now that that description was incorrect.  There is no attempt to investigate what the defendant meant by this.  For the majority of the interview, he calls it a drain cleaner bought at a shop.  It is difficult to imagine that this will be harmful or a substance that was lethal.  The defendant talks about killing himself, but surely this is mere hyperbole and exaggeration to try and persuade the errant girlfriend of his serious intentions.

20.I do not consider the evidence taken at its highest can prove as the only irresistible inference the defendant believed this fluid to be capable of causing serious bodily injuries such as a burn or a wound.  We in fact know it could not, which is what one would assume from an over-the-counter solution sold without warning in a beer bottle.  That being the case, one of the fundamental elements of the attempt charge being brought cannot be sustained and that charge must fail.

21.However, I do note that section 51 of Cap 221, subsection (2), the defendant can be convicted of any other offence disclosed by the proven facts.  Now, the proven facts, as I found them, show that the defendant threw a liquid from a bottle at PW1.  That liquid had a content of hydrochloric acid which rendered its classification as an irritant.  The defendant admitted procuring it as a drain cleaner.  That, in the absence of evidence of the contrary, permits the inference to be drawn that the defendant would be aware the liquid to be capable of causing at least some bodily injury.  The type of harm can be seen from PW3’s description of the defendant, that it caused a rash to himself.  This is not a permanent injury, but it is more than a merely transitory injury such as pain.

22.Therefore, the defendant by, as I found, throwing the liquid at the defendant, was clearly doing so with an intention to cause some actual bodily harm to him, if that was possible, if the fluid was to reach him, and clearly that would be caused by throwing the liquid.  The defendant’s actions constitute, at minimum, an attempt to commit the offence of assault occasioning actual bodily harm.  He intended to commit the offence and did an act towards that offence that was more than merely preparatory.

23.So on the facts found by me, I will convict the defendant of the offence of attempting to commit assault occasioning actual bodily harm, contrary to Common Law, section 39 of Cap 212 and section 159G of Cap 200.