HKSAR v. Yu, Yin-ming

HCMA 492/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 492 OF 2009

(ON APPEAL FROM TMCC 4952/2008)

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BETWEEN

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Before: Deputy High Court Judge Mackintosh in Court

Date of Hearing: 12 August 2009

Date of Judgment: 12 August 2009

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J U D G M E N T

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1.On 11 May 2009, the appellant was convicted after trial by Mr Stephen Smout, at Tuen Mun Magistracy, of an offence of “Assault Occasioning Actual Bodily Harm”. After a background report was obtained, he was sentenced, on 25 May 2009, to a term of 12 months’ imprisonment. He launched an appeal against conviction and sentence; but abandoned the appeal against conviction, prior to this hearing.

2.The facts found by the magistrate in the trial were these. The complainant (PWl) and the appellant had been acquainted for several years. On the evening of 13 December 2008, they sat with a number of others around a small table in a corridor of a housing block on Po Tin Estate, Tuen Mun, having a hot pot meal. On the table, was an electric pot containing soup and oil which was boiling. The party had consumed the alcohol; and though there was no express finding that anybody was drunk at the time of the incident, the appellant says today that his behaviour was affected by alcohol. The two protagonists sat opposite each other. An argument blew up between them over some money which the appellant claimed PW1 owed him. During the course of the argument, the appellant stood up and deliberately used his hand to overturn the electric pot containing the boiling soup towards PW1. At the same time, the table was overturned, though it was unclear on the evidence whether the appellant had been the cause of that. Today, the appellant says that he overturned the table rather than the hot pot itself, but since the hot pot was on the table, the result would be the same either way.

3.The boiling soup from the electric pot scalded PW1. It was an admitted fact that there was redness, tenderness and blistering over his anterior chest and abdominal wall, his left arm and right thigh. Overall, there were burns to about 11% of his body surface and these were generally classed as second-degree burns. PW1 was detained in hospital for 15 days and thereafter received daily dressings to his injuries as an outpatient until 13 January 2009, one month after the assault. By that time, the wounds had healed. During this period, he had suffered, as the magistrate said, considerable pain and discomfort. He had since fully recovered but was left with some scarring, though the extent of this is not described in the papers.

4.The magistrate took the view that even if the appellant had not actually intended to pour the boiling soup onto the complainant, he had by his deliberate act of overturning the pot, foreseen the likely (I would say inevitable) consequence that most of its contents would land on PW1 and that he was, at the very least, reckless as to the results.

5.Obviously, given the fact that it was a pot of ordinary dimensions for a hot pot dinner, full of boiling liquid, the appellant could foresee that it was going to cause burns to PW1.

6.The appellant, a man of 45 years of age, living alone, with no direct family responsibilities, came to Hong Kong from the Mainland in 1996. He was convicted in 2004 of “Possession of an offensive weapon” (section 33 of the Public Order Ordinance, Cap. 245) and “criminal intimidation”, offences which, according to his account to the probation officer preparing the background report, involved him threatening the 12‑year-old son of what he said was a loan shark, with a chopper, to ward off demands for money: he was sentenced to 7 months’ imprisonment. He had no other convictions.

7.In his reasons for sentence, the magistrate said that he regarded this as a serious offence in which the complainant had suffered significant injuries as a result of the appellant’s deliberate act. It warranted a substantial term of imprisonment which would have been higher if the magistrate had concluded that the appellant had intended that the complainant should be burned by the boiling soup, rather than just being reckless in that regard. The appellant had shown no remorse, having pleaded not guilty and having advanced a defence based on accident; in his interview with the probation officer, he had maintained that position, and blamed the complainant for the trouble.

8.Today, the appellant submits that the incident arose because he and the complainant were under the influence of alcohol, and that he reacted on impulse and without any intention of burning the complainant. He says he greatly regrets his actions and the pain and suffering he caused to PW1 and has repeatedly expressed his remorse.

9.I approach this appeal against sentence on the footing that the assault by the appellant was a spontaneous act during the course of a verbal exchange with PW1: it was done out of anger. However, throwing a pot of boiling liquid onto a person seated at a table, whether by overturning the table or the pot itself, was certain to cause significant pain and injury, and was an act done with considerable malice. It is no excuse for the appellant to say that his conduct was affected by alcohol. In my judgment, the offence fully justified the term of imprisonment imposed by the magistrate who had sat and heard the trial and clearly had a feel for the case. It was a term which would have been reduced had the defendant pleaded guilty; but he exercised his right not to do so and was not eligible for any discount.

10.I am satisfied that the sentence was not manifestly excessive. The appeal is dismissed.

Mr Franco Kuan, Senior Public Prosecutor, for the Director of Public Prosecutions, for the Respondent

The Appellant, in person, present