At about 7 pm on 20 March 2021 when the victim was working alone at the front part of the shop, the accused suddenly appeared wearing a black cap, facial mask and black jacket. He was in front of the shop about one metre away from the victim. At that time he was holding a white plastic bottle and he extended his arm through the glass window opening into the shop area. He tried to splash the liquid in the white plastic bottle at the victim, but nothing come out from the bottle. The accused retrieved his arm, removed the covering at the bottle opening, extended his arm again and splashed the bottle at the victim three to four times.
The victim recognised that the bottle was a bottle of drainage fluid commonly seen and can be purchased anywhere. The accused fled. The victim felt his stomach being burnt and saw the stomach area of his shirt being burnt with a hole about 20 centimetres in size, and also on his shorts. He immediately removed his clothes and cleansed himself with water. He felt pain on his face, chest, stomach, and both legs and found injuries on those areas. Later he was sent to hospital for medical treatment, and he was admitted until 6 April; i.e. about 17 days.
A male customer, a Mr Chan who was also present at the scene, recognised the white plastic bottle that the accused used was the same brand of drainage fluid that he himself used before. He could tell that a brand new bottle of this drainage fluid had a plastic covering at the opening which needed to be removed before use.
Upon search in the vicinity, the police found black traces of corrosive fluid at the Kowloon Walled City Park. They followed the traces and eventually at the end of the traces they found a cap, a pack of tissues, and a wallet with corrosive burnt marks. Inside that wallet, the Hong Kong identity card of the accused was found.
The accused was arrested on 23 March 2021. He admitted under caution that he was instructed by others to throw liquid as he owed others money. Also, the police found burnt injuries on his thighs, right stomach, right elbow, and right neck.
As for the victim, he sustained injuries of deep partial thickness chemical burns involving his face, right upper limb, abdomen, left thigh and right leg covering a total of 13.5 to 14 per cent of his body surface area and he required regular wound dressing while in the hospital.
Upon examination, traces of sulphuric acid was found on the wallet, the cap and the pack of tissues, and the victim’s slippers. The tissues were found to have sulphuric acid at a concentration of not less than 81 per cent, weight by weight. According to the Government Chemist, the sulphuric acid at this concentration is corrosive and capable of causing burns to skin and permanent damage to eyes. The DNA of the accused was also found on the cap seized by the police.
In a cautioned interview, the accused made the following admissions under caution. The accused said that he was recruited by a person called “Yin Chai” for a reward of $5,000. Yin Chai asked him to bring some spare clothing to change and to meet Yin Chai at the Kowloon Walled City Park on the day of the offence. He met Yin Chai there at around 6 pm on that day. Yin Chai gave him the bottle and the accused claimed that Yin Chai said the bottle contained ethyl alcohol. Yin Chai told him to splash the bottle at the person inside the Thai BBQ shop. He followed the instruction and committed the offence as instructed. In the course of the offence he also splashed the drainage on himself, causing damage to his own clothes and injuries on his person. He threw away the bottle when he escaped from the scene. The accused claimed that he had not received the promised reward from Yin Chai. He admitted that he had dropped the cap, the wallet and the pack of tissues when he was running away from the scene after the offence.
The accused now admits and accepts that at all material times he knowingly, unlawfully and maliciously threw upon the victim a corrosive fluid, namely, sulphuric acid with intent to do some grievous bodily harm to the victim.
Before sentencing I was supplied with the medical report and a victim impact report on the victim. According to the medical report of the victim, he sustained deep partial thickness burns over his face, right upper limb, abdomen, left thigh and right leg. The deep partial thickness skin burn covered about 13.5 to 14 per cent of his total body surface area. He last attended the Queen Elizabeth Hospital on 17 August last year but did not consult a doctor and the doctor cannot provide any further information about his injuries.
According to a victim impact report prepared by clinical psychologist, Mr Lawrence Chung, on 15 June this year, the victim indicated that since after the incident he failed to keep working because of the chronic and serious pain associated with the corrosive injury. It was painful whenever he moved his waist during holding or moving of heavy stuff or touching the injured area, and he got red scars or scabs which covered mainly the right side of his abdominal region. His sleep was also seriously disturbed by the pain. He had to take painkillers to cope with the pain. The victim said he defaulted the medical specialist follow-ups at hospitals because of the pandemic situation, but he had visited the general medical doctor.
According to the assessment of Mr Chung, the impact of the present case is that the victim was suffering from mild to moderate stress responses. He still reports mild stress symptoms such as recalling the events occasionally, increased irritation associated with the bodily pain and failure to work, and worries about possible future attacks. No psychological follow-up was scheduled, but Mr Chung urged the victim to call back the hospital to resume his treatment.
I shall now come to the background and mitigation of the accused.
The accused was 16 years of age when he committed the offence, and he is now 17 years old. Despite his young age, he has two criminal convictions already. The first conviction is for the offence of assault occasioning actual bodily harm to which he was sentenced to a probation order of 15 months, and the present offence was committed during the operational period of this probation order. I was told by counsel in mitigation that indeed he pleaded guilty to this offence which arose from a dispute between himself and his mother in January 2020.
He also has another conviction for the offence of common assault which occurred in December 2020 to which he was sent to a rehabilitation centre. I was told in mitigation that this case arose from a dispute that he had with his peers and the present offence was committed whilst he was released on police bail for this common assault case. Nonetheless, counsel informed me that because of the occurrence and his arrest in the present case, he was transferred to the Pik Uk Institute for detention and that four months of that detention would not be counted towards the sentence in the present case.
In mitigation, counsel also informed me that the accused worked as a part-time transportation worker at the time. He had been diagnosed with Attention Deficit Hyperactivity Disorder, ADHD, at the age of six. Counsel said he had been under bad peer influence since his teenage years and became addicted to drugs and to alcohol. As a result, he was indebted and was in dire financial need for money for the drugs and alcohol which caused him to commit the present offence.
Counsel submitted other documents to support the fact that he had outstanding performance in athletics including handball, touch ball and rock climbing, and he had also engaged himself with some community work in the past. In support of the mitigation, three letters were also submitted to this court, written by his parents and a social worker respectively. His parents promise to give him support and guidance in the future and plea for a lenient sentence. A social worker has also written a letter in support of his remorse.
Counsel said he committed the present offence out of indebtedness and that he was told to casually splash the liquid at the man at the barbecue shop in order to scare that man. Yin Chai told him that as long as a little bit of the liquid got into contact with the man, the job would be considered as done. On this aspect it is my observation that according to the Summary of Facts he had, indeed, splashed the liquid at the man three to four times after the bottle opening was opened.
Counsel said the accused was very clumsy in the commission of the offence. He forgot to open the plastic wrapping around the bottle of the liquid initially, and he even splashed some of the corrosive fluid onto himself in the process. As a result, he sustained burns on his body and needed to undergo a surgery. According to the medical report of the accused prepared by the Prince of Wales Hospital, he was admitted to the hospital for medical treatment on 23 March 2021 and was discharged on 5 April, about 13 days later. There was a total of 3 per cent full thickness burn over his perineum, trunk, right arm and bilateral lower limbs. He underwent surgery with debridement and skin graft, and also the urine toxicology test performed found positive for cocaine confirming that he was a drug abuser at the time.
I shall now come to the sentence of this case.
Throwing corrosive fluid with intent to do grievous bodily harm is a serious offence. It is often pointed out that the maximum sentence for this offence is life imprisonment. This is an indicator of how serious the legislature viewed this conduct when enacting the offence. Another indicator of how serious the legislature viewed the offence can be found in the way it specifically mentioned that no bodily injury needs to be resulted from the conduct.
Consequently, the offence will always attract severe sentences whatever may be the outcome to those affected by its commission. Though, of course, the outcome will always be relevant to the assessment by the sentencing judge of the seriousness of the offence and the culpability of the offender.
I have had regard to the authorities of The Queen v Chan Chi Lun [1989] 1 HKC 70, HKSAR v Yu Wai Chiu
CACC 300/2000, HKSAR v Lam Ming Wing CACC 152/2007, HKSAR v Sin Wa Chiu [2012] 1 HLKRD 768, and HKSAR v Fok Ka Po, Joe (No. 2) [2019] 2 HKLRD 1. The principles one can glean from these cases which are applicable in this case are the following:
(1) There is no fixed tariff or bracket for this offence, and a starting point of 18 years is not reserved exclusively for cases involving attacks on strangers for financial rewards.
(2) The appropriate sentence would depend on the facts and 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. The importance of giving proper emphasis to the principles of denunciation and deterrence will inevitably result in severe sentences, whereas the principle of rehabilitation will be relegated to a much less prominent role in the determination of a just sentence.
(4) Whether the injury be grave or minor is largely fortuitous and weighs little in favour of the defendant.
Further, Mr Justice of Appeal Woo held in the case of HKSAR v Wong Siu Kwan CACC 166/2001:
“The range of facts of each case will vary greatly as to the nature of the attack and its motive, the mindset of the attacker, the spontaneity of the attack or, conversely, the degree of planning, how real and specific was the intent to cause injury, and no doubt a host of other pertinent features which may have a bearing on the degree of culpability.”
In the case of Yu Wai Chiu, the applicant was a drug addict who committed the offence for reward. The victim sustained third degree burns that covered 18 per cent of her body that would disfigure her for life. The Court of Appeal described the case as truly terrible and the attack as cold-blooded, and it upheld the trial judge’s starting point of 18 years’ imprisonment.
In the case of Lam Ming Wing, the applicant procured two other persons to carry out the attack with express instruction to blind the victim. The total burn area to the victim was 11 per cent of the body and 6 per cent of the face. As a result of the incident the victim sustained serious injuries and she also suffered from PTSD. The Court of Appeal confirmed an 18-year starting point.
In the case of Chan Chi Lun [1989] 1 HKC 70, the applicant was a 16 year old schoolboy with a clear record. He and the other defendant who was also 16 years of age had been recruited to carry out the attack by throwing sulphuric acid in the face of a nightclub hostess who, fortunately for her, was wearing sunglasses at the time of the attack. Serious damage was done to one side of the face and neck of the victim. The Court of Appeal said it did not consider that 12 years starting point “was by any means on the high side as a starting point”.
In the present case, the attack was not a spontaneous act in the heat of the moment. This is a planned attack on a total stranger for financial reward. The concentration of the sulphuric acid used was high, not less than 81 per cent weight by weight. The accused splashed the liquid at the victim three to four times. The victim sustained deep partial thickness chemical burns involving 13.5 to 14 per cent of his body surface area. His life was shattered, and the injury sustained was horrific. The consequence of the attack continued long after the attack for the rest of his life.
Taking into account the young age of the accused, the fact that four months of his detention in Pik Uk Institute will not be counted towards the sentence in the present case, and all the other matters raised in mitigation on his behalf, as well as the circumstances of the case, I am of the view that a starting point of 12 years is appropriate. Having said that, I must point out that his own injuries have nobody to blame but himself, even though I had also taken that into account when deciding the appropriate starting point. The accused has pleaded guilty at the earliest available opportunity for which he is entitled to a full one-third discount.
So for the offence of throwing corrosive fluid with intent to do grievous bodily harm, he is sentenced to 8 years’ imprisonment.