The Queen v. Chan Chi Lun

CACC000572/1988

Headnote

Throwing of corrosive fluid - young offender - sentence of eight years upheld.

BETWEEN

Coram: Hon. Silke, V.-P., Hover & Penlington JJ.A.

Date of Hearing: 7 April 1989

Date of Judgment: 7 April 1989

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J U D G M E N T

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Power J.A.:

1. The applicant faced a charge of throwing corrosive fluid with intent to disfigure. He pleaded guilty in the course of his trial after the completion of veir dire proceedings which had resulted in the admission of his confession statement. The hearing was before Bewley, J. who thereupon sentenced him on the 9th of November 1988 to imprisonment for eight years. He now applies for leave to appeal against that sentence.

2. The applicant was one of a party of two persons who waited in anbush for a hostess outside the Club Deluxe in Salisbury road Kowloon, on 22nd April 1988. The other defendant threw the sulpburic acid. It appears that the applicant simply nodded apparently confirming the identity of the victim. We consider, however, that this weighs little in his favour.

3. Crown Counsel when referring to the injuries sustained by the victim said:

"I can tell you not too much about the current state of Miss Chong. But I can tell you that when the was examined at the hospital, Queen Elizabeth Hospital the injuries were described by the doctor as 'full thickness skin burns over the face.' He particularised them by saying this 'The skin burns were more severe on the lefthand side of her face, and not only the face, but over the left ear and left area of the neck. The intense burns or severe burns were on the complete left hand side of her face are neck and ear, minor by comparison with those on the right.

She was wearing sunglasses. One night wonder what use they could be at 9 o'clock at night. Those sunglasses saved her eye-sight. There is no doubt whatsoever about that. The sunglasses reacted to the sulphuric acid and did what all things which come into contact with that acid do, they melted.

Not only that, her handbag melted and her clothing melted to a certain extent."

He concluded his outline of the injuries by saying:

"The victim has already had three plastic surgery operations. There are many more to come. She has been told by the doctor that it will to at least a year before the operations cease."

4. It appears that the applicant did not know the victim, that he and the other defendant were triad affiliated and that one of them at least was chosen by lot to go out and make this attack. Each received $100 travelling expenses although there was some suggestion of a further award had the attack been successful.

5. The trial judge said when sentencing the applicant:

"You have been convicted of an evil and horrible crime. On instructions over a period of several day you marked out your victim who was unknown to you and planned your attack which involved throwing sulphuric acid into the face of an unsuspecting young woman from close range and the results may be seen in the photographs. Luckily she was wearing sunglasses in spite of the fact that it was nine o'clock at night which saved her sight. They were melted by the acid. Luckily also the damage was mostly to one side of her face and neck, the other side remaining relatively though not entirely unscatbed. This means that although this lovely girl faces, according to her doctor, a year of painful plastic surgery, her beauty has not been entirely destroyed, but she must endure much pain in future, and even if the operations are successful, her appearance will never he the same as before.

The fact that the result might have beer even more serious is a matter of chance, and cannot be regarded as reducing the gravity of the offence or your turpitude, nor can the fact that you were carrying out orders. You must have known what the consequences might have been, ever if you thought or hoped that they might not be quite so grave.

It is a crime to which pretty girls in Hong Kong are particularly vulnerable. Such attacks must be stamped out. The only way is by deterrent sentences that adeduately mark the public's revulsion of such depraved be behaviour and are a sufficient deterrent to other young gargsters who may be order by their seniors to do such a thing.

It is, therefore, my painful duty to impose substantial prison terms on two young persons who are still only sixteen. Had you been of nature years and convicted after trial, the sentence would have been twelve years' imprisonment, but I must give a discount for your pleas, for your youth and your clear recerds. Though I am satisfied that the guilty pleas result more from the strength of the evidence than from remorse, but you must receive credit for the fact that the victim has not had to testify to her agony.

The 1st defendant being entitled to a further discount the judge dealt with that and went on to sentence the applicant to eight years and the other defendant to seven years.

6. Mr. Plowman who appears for the applicant urges firstly that consideration be given to the fact that the injuries were not of the worst kind and that long term plastid surgery will be effective. It is our view that in offences of this nature whether the injury be grave or minor is largely fortuitous and veighs little in favour of the applicant.

7. Mr. plowman urges that there was no motive of revenge on the part of the applicant, that he was simply recruited to the task. This is again in our view of no real weight in his favour. Indeed it might be argued that a cold blood hired assailant should be more severely dealt with than a person blinded by passion or jealousy.

8. Mr. plowman asks us to take into account the fact that the applicant is a naive and inexperienced youth. Indeed it is the thrust of his submission that the trial judge failed to given proper weight to the fact that this applicant was a school boy with a clear record who was only sixteen years of age. He says that in these cincumstances the sentence of eight years was clearly excessive. He urges firstly that the starting point taken by the trial judge of twelve years was a little high and has referred to a number of cases culminating in The Attorney General v. AU Chiu-tak [1987] H.K.I.H. p.1121 in which a senterce of eight years was, on an application for review, set aside and replaced by one of thirteen years. A reduction of 2 years was allowed only because it was such an application for review.

9. In the light of these cases we do not consider that twelve years was by any means or the high side as a starting point.

10. Mr Plownan further argues relying upon The Queen v HoH wai-ming & another Cr.App.497/84 that imprisonment should only be imposed upon a person of three years if there is no other method of punishment appropriate. He submits relying upon R. V. Storey & other (1984)6 C. A. H (S) p.104 that the sentence should not be such that for the young persen the far end of it is out of sight and urges and urges that the trial judge failed to give proper weight to that consideration.

11. We are satisfied that the remarks of the trial judge were entirely appropriate and we endense them. This was a vile and calculated offence which called for a substantial custodial sentence which would both purish and deter. In offences of this kind the deterrent effect of a sentence is, perhaps, of larger moment than in any other class of offence. We are not persuaded by the arguments of Mr. Plowman that the trial judge erred in any way in imposing the sentence be did. This was a planned and rehearsed triad attack. It is clean that in Au Chiu-tak this court was saying that for an adult offender a sentence of 15 years imprisonment after trial, was an appropriate sentence for this dreadful offence. Even taking into account the youth of the applicant we are satisfied that the senterce of imprisonment of eight years was a proper one and does not call for any interference by this court.

Representation:

Gary Plowman Esc. (Clifford eung & Co.) for Applicant

H.C. Cross, Esc. & W.S. Cheung, Esq. for Crown/Respondent