HKSAR v. Ngai Pik Ling

CACC 242/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 242 OF 2007

(ON APPEAL FROM HCCC NO. 62 of 2007)

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BETWEEN

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Before:   Hon Stuart-Moore VP and McMahon J

Date of Hearing: 4 September 2008

Date of Judgment: 4 September 2008

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 28 June 2007, the applicant pleaded guilty before Tong J to a count of throwing a corrosive fluid with intent to do grievous bodily harm, contrary to section 29(c) of the Offences Against the Person Ordinance, Cap. 212.  The judge adjourned sentence to 6 July 2007 when he imposed a sentence of 6 years’ imprisonment.  The applicant now seeks leave to appeal against her sentence.

2.This was another acid-throwing case in which a female victim received hideous injuries caused by chemical burns.  In this case, the victim was struck by acid on the right side of her face and neck.  In addition, her right shoulder and the central part of her chest were badly burnt and her right hand was injured.  The offence was committed on 29 December 2006 and the victim was discharged from hospital on 8 February 2007.

3.The victim, Siti Fatimah, aged 31 from Indonesia, had been working as a domestic helper for a Mr Chan Chun and his wife since 1 December 2006.  The victim visited Mrs Chan in hospital on 29 December 2006 and was making her way back to her employers’ home when the applicant, without saying a word to her, threw a cup of acid into her face.  The victim had never seen the applicant before.  The victim then chased the applicant and, with the assistance of two public-spirited passers-by who were rightly commended by the judge in the court below, the applicant was caught.  The victim then collapsed in pain.

4.The liquid thrown by the applicant was later found to be sulphuric acid with a concentration of 98%.

5.The victim was treated in hospital for what was recorded as “3% BSA chemical burn wounds over face, neck, right upper arm, trunk and thigh” and in January 2007, she underwent skin grafting.  The medical report provided by Dr Tsang Kwok-ying at Queen Mary Hospital referred to the victim’s wounds as having “healed” but, rather surprisingly, he gave no indication of the extent to which the victim’s injuries were still visible on her skin.

6.The Summary of Facts provided to the judge also gave a poor reflection of the gravity of the victim’s injuries but there were, fortunately, photographs which graphically demonstrated the appalling consequences to the victim.

7.It was discovered in the course of the investigation which followed the applicant’s arrest that Chan Chun, the victim’s employer, had had an intimate relationship with the applicant for about ten years but he was able to confirm that the victim had never had any contact with the applicant.  However, the motivation for this attack emerged from a psychiatric report prepared on 29 May 2007 by Dr Y W Cheung while the applicant was on remand at Siu Lam Psychiatric Centre.  The report contained the opinion that the applicant, then aged 59, was suffering from:

“… a delusional disorder of morbid jealousy.  She remained mentally ill over the past few months.  Further in-patient psychiatric treatment is necessary.  Her act of offence was largely under the influence of her psychotic symptoms.  Her risk of violence and further act are high in view of her distress.” 

8.In passing sentence, the judge took into account the gravity of the attack and its consequences, as well as the psychiatric report and the mitigation as a whole, when stating:

“Defence counsel had very helpfully prepared a bundle for the mitigation. It contained a skeleton submission, a table of case summaries, letters for the court from Chan Chun and the defendant’s family members. There was also a psychiatric report on the defendant.

The report stated that the defendant started having delusional beliefs involving Chan Chun, her deserted husband’s cousin since March 2006. She was jealous of him and she believed Chan Chun had a relationship with the victim so she decided to punish the victim.

Although counsel contended in mitigation that the defendant was originally thinking of using the fluid on herself in front of Chan Chun, however, in view of her conduct at the scene and the comments by the psychiatrist, it appears more to be a case of revenge, albeit based on certain delusion.

I believe counsel has said everything that could be said for the defendant but I cannot accept that it is one of those husband and wife cases which have been dealt with by the court in a more lenient fashion. This is a case committed against an innocent third party and for this sort of conduct, the court must also consider the aspect of deterrence.

Considering the circumstances of the case, the serious injuries caused to the victim, I shall adopt a starting-point of 10½ years. I shall reduce it to 7 to reflect the plea. I shall further reduce it to 6 in consideration of the defendant’s mental condition at the time of the offence. So the sentence is 6 years …”

9.In these proceedings, Ms Catherine Wong submitted on the applicant’s behalf that both the starting point of 10½ years and the sentence ultimately arrived at by the judge were manifestly excessive and that inadequate consideration was given to the applicant’s mental condition.

10.On the basis of the material we have already set out, we are in no doubt that a sentence of 6 years’ imprisonment for a case of this gravity cannot be criticised.  However, given the applicant’s psychiatric condition, we called for a further report in advance of this hearing as a precaution in case a Hospital Order was merited.  Dr Amy C Y Liu has now been able to update the psychiatric information for us and she has expressed the opinion, in a report dated 1 September 2008, that “further in-patient psychiatric treatment is considered not necessary”.  It is apparently intended to transfer the applicant in the near future to a normal custodial environment for the completion of her sentence.

11.Accordingly, an order under the Mental Health Ordinance, Cap. 136, would plainly not be appropriate, and we are satisfied that the judge gave ample consideration to the applicant’s mental condition when he imposed a 6-year sentence.

12.Accordingly, this application is dismissed.

Mr Eddie Sean, SADPP, of the Department of Justice, for the Respondent.

Ms Catherine K K Wong & Mr Clement C M Lau, instructed by Messrs Au & Vrijmoed, for the Applicant.