R. V.Wong on Lin

CACC000246/1992

IN THE COURT OF APPEAL

No. 246 of 1992
(Criminal)

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Coram: Hon. Macdougall, V.-P., Penlington J.A. and Barnett J.

Date of Hearing: 20 January 1995

Date of Delivery of Judgment: 20 January 1995

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J U D G M E N T

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Barnett, J. (giving the judgment of the Court):

1. On 13th May 1992, the Applicant was convicted after trial by a jury of unlawfully and maliciously throwing sulphuric acid on his wife with intent to disfigure or to do grievous bodily harm.

2. On 29th May after reading probation, psychiatric and psychological reports, Gall J. sentenced the Applicant to 13 years' imprisonment. Against that sentence, the Applicant now seeks leave to appeal.

3. The Applicant married his wife in 1984. At the time he was 34 and she was 18. They had two children. In 1990, the marriage began to deteriorate. It seems there may have been complaints on both sides. In particular, the Applicant's wife formed a relationship with a man more of her own age. Rightly or wrongly, the Applicant believed that relationship to be adulterous. Events came to a head on the 25th April 1991. In the evening, there was an argument involving, amongst other things, the wife's boyfriend. What happened next was the central issue at the trial. The wife said that the Applicant threatened that, if she left, she would have to give him her face. The Applicant then fetched a bottle of toilet cleanser, forced the wife into the bedroom, pushed her onto a bunk bed and poured the cleanser over her face with a circular motion. The inference being that he intended to cover as much of her face with the fluid as possible. The Applicant then went to the bathroom followed by the wife who washed her face. Eventually, the police were called.

4. At trial, it was shown that this toilet cleaner was 96% sulphuric acid. We do not know how this acid was obtained. We observe that it is deplorable if acid in this concentration is freely obtainable by members of the public.

5. The Applicant gave evidence himself. He said that, following the argument, he fetched the bottle of cleaner and went to the bedroom where his wife was already lying on the bunk. He threatened her with the bottle of cleaner and said :

"If you go out with that boy and act so intimately again, I will throw this bottle of toilet bowl fluid at you."

The wife tried to push the bottle away. As she did so, the cleaner accidentally spilt on her.

6. By their verdict, the jury plainly accepted the wife's evidence. The injuries to the wife were horrific and extensive. There were full thickness burns to the whole face, her ears, her neck and the left side of her chest, arm and shoulder. She needed a tracheostomy and extensive skin grafting. There was damage to her eyes, though fortunately she was not blinded.

7. In passing sentence, the judge said this :

"The only thing that I can take into account on your behalf is that you have a clear record and you have been previously of good character. I must, however, also take into account that there was evidence before the jury that at the time this offence was committed, you had used words to your wife to the intent that you must take her face back if she was going to leave you."

Later, the judge continued :

"The most recent pronouncement of this matter that's of help to me is that of the Attorney-General v. Au Chi Tak which is reported in 1987, Hong Kong Law Reports, at page 1121. There, as in this case, the accused was of good character and of clear record. There the throwing of fluid was an act of revenge. In this case, it was an act of intending to disfigure so as the victim could not go to another man. There, as is here, the injuries were very substantial and must last for life. In that case it was found that a term of imprisonment of 15 years would not be inappropriate. I am satisfied in this case, taking into consideration all that could be said on your behalf, that that figure is too high and you are therefore sentenced to 13 years' imprisonment."

8. Before us today, Mrs. Wacks on behalf of the Applicant has argued a number of grounds. The principal ones were these.

9. First, she sought to distinguish the case of Au Chi Tak to which the judge referred when passing sentence. She pointed out that Au was not married and only 25 years old. In this case, in contrast, Mrs. Wacks said that the Applicant and his wife had been friends for a long time before they were married, and there had been, thereafter, a deep family relationship. Therefore the pain and humiliation experienced by the Applicant at the prospect of the break-up of his marriage was much more serious than that experienced by the single Mr. Au.

10. Next, Mrs. Wacks said that the Applicant has expressed his remorse for what has occurred. The fact remains, however, that even today, as we understand it, the Applicant does not accept that what he did he did deliberately rather than by accident.

11. Then, Mrs. Wacks said that if the Applicant is sentenced to a long period of imprisonment, his family, particularly his two children, will be deprived of his care and guidance.

12. She also referred to a number of other cases which involved the throwing or pouring of corrosive fluid, cases that are illustrative of the approach of the courts to this offence. Given the wide variety of facts and the different circumstances of the offenders, we derive no particular assistance from those cases.

13. Finally, Mrs. Wacks said that a deterrent sentence has been passed upon the Applicant, which is counter to the principle that such a sentence should not be imposed on a first offender. She accepted, however, that some element of deterrence is necessary, but the sentence should not be at the top of the scale of sentences for offences of this nature.

14. We are of the opinion that what the court must focus on is this. When carried out as in the manner in this case, this offence is one of the most sickening to come before the courts. The seriousness of the offence is reflected in the maximum sentence which the court may pass, that is to say, life imprisonment. The offence leaves the victim, as is the wife, scarred physically and mentally for life. A normal life for the victim is out of the question. A deterrent, and a strongly deterrent, sentence is inevitably called for. Only in the most exceptional circumstances can an offender of this type expect to avoid a long period of imprisonment.

15. In our judgment, the matters which have been argued before us do not constitute such exceptional circumstances. The starting point selected by the judge, which was plainly 15 years' imprisonment, was appropriate to an offence of this nature. The judge gave credit for the only matters which were really open to him. In our view, the sentence was entirely proper. The application is dismissed.

Representation:

Mrs. V. Hartstein, S.C.C., for the Respondent.

Mrs. Penelope A. Wacks, inst'd by M/s. Liu Chan & Lam, for the Appellant.