HKSAR v. Chi Chi Hong, Ken

HCCC 37/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 37 OF 2010

____________

____________

_______________

S E N T E N C E

_______________

1.You were charged originally with the commission of eight offences, but an amended indictment was proffered in which the third to eighth counts were combined in one. When this matter came before this court for a pre-trial review in June you indicated your intention to plead guilty to those charges. This you did today and have been convicted upon your own pleas and your agreement of the summary of facts.

2.The three counts are one of blackmail contrary to s. 23(1) of the Theft Ordinance, Cap. 210, which occurred on 14 July 2009 in Mongkok in which you made an unwarranted demand, with menaces, from Chan Chi Ming to pay the sum of $380,000 and one of possession of an offensive weapon in a public place on the same date and place, contrary to s. 33(1) of the Public Order Ordinance, Cap. 245. The third count, which plainly is the most serious of the three, is one under s. 29(c) of the Offences against the Person Ordinance, Cap. 212, arising from the fact that on 6 September 2009 in Mongkok you threw sulphuric acid with intent to cause grievous bodily harm to Chan Chi Ming: it is a matter of fact that, in doing so, you also caused harm to five other people.

3.The maximum penalties provided by law are: for the blackmail offence, 14 years imprisonment; for the offensive weapon offence, 3 years imprisonment for a person of your age; for the third offence, life imprisonment.

4.The summary of facts which you have agreed read, in regard to the first two charges:

"1. Chan Chi-ming (Victim 1) operates together with his wife Tam Wai-fan a hawker clothing stall outside 34 Tung Choi Street, Mongkok in the Ladies market.

2. During 2006, Victim 1had lent money to an individual called Fei Lung in consequence of that individual rendering assistance to him in a business matter. Thereafter Fei Lung had attempted unsuccessfully to obtain further monies from Victim 1in the sum of $400,000. Victim 1 paid $20,000 in the hope that this would be the end of the matter. Then in mid-June 2009, the accused arrived at Victim 1’s stall and invited him to have a meeting with Fei Lung in Shenzhen after claiming to be Fei Lung’s follower in the 14 K triad society. Victim 1 declined.

On 14 July 2009 at about 10:30 PM the accused accosted Victim 1 as he made his way home... He approached and asked Victim 1"When would you repay the $380,000 owed to my big brother.” Victim 1 stated he did not owe any money to his "Big Brother" whereupon the accused took out a pen knife some 5 inches long from his right front trouser pocket and attempted to poke Victim 1 in the abdomen. There was a struggle during which the accused himself was cut then he fled the area. Victim 1 went home, then fearing for the safety of his family made a police report."

5.You were arrested in respect of those two offences a week later and identified by Mr Chan at an identification parade. In a subsequent interview you claimed that you had overheard Fei Lung demanding $380,000 from Mr Chan, that you were short of cash yourself so decided to see whether you could extract some money from him.

6.You were subsequently charged with these offences and appeared in the magistracy where you were remanded in custody. On 3 September 2009 you applied for and, perhaps surprisingly, were granted bail until 7 September 2009. Those dates are relevant given the date of commission of the third offence.

7.I turn now to what it was that occurred on the 6 September 2009. This also appears from the summary of facts which you have agreed. At about 5:50 pm that day Mr Chan was sitting on the pavement near his stall when he saw you walking quickly towards him. You were holding a flask in your right hand. You called to Mr Chan using his nickname, unscrewed the flask and threw the contents towards his face. Having done this you ran off along Tung Choi Street. Mr Chan went to a nearby restaurant where he was assisted in washing himself with fresh water. Regrettably, this appalling act did not only affect Mr Chan at whom it was aimed: Mr Chan’s wife; a fellow stallholder and friend; two other stall holders; and a visitor to a nearby stall, Li Juan whom I name for reasons which will become apparent, were also burned by the liquid in the flask - six people in all including Mr Chan, although four other bystanders apparently were in contact with the acid when those six people moved past them.

8.When you ran off you were pursued by the wife of Mr Chan who was shouting. Two off-duty police officers intervened and apprehended you. You were identified by her as the person who had thrown acid earlier and admitted this to be so. There was then a struggle during which two items fell from your bag, a glass bottle which broke and a plastic bottle. When you were arrested and cautioned you said that Mr Chan had harassed your wife, made you a cuckold and had deceived you in a business transaction. You added "Today I bought the strong acid specially for throwing it at him". You now accept that there had never been any question of Mr Chan harassing your wife or of you being involved in any business transaction with him.

9.The fact that you went out specifically to purchase the acid in order to throw it at Mr Chan and then decanted it into a suitable vessel, indicates premeditation of and preparation for the attack on Mr Chan. This was not a spur of the moment action.

10.Subsequently, two bottles seized at your home were found to contain a liquid containing 98% weight by weight of sulphuric acid. Forensic examination of the flask, broken glass fragments and broken bottle all revealed the presence of sulphuric acid, traces of which were also found on some of the clothing of the victims. The plastic bottle which fell from your bag was found to contain sodium hydroxide, a strong alkali. Sulphuric acid having a concentration of 97 to 98% is described as being "...highly corrosive, capable of causing severe burn to skin and permanent damage to eyes". It is, sadly, a fact that it is far from rare for precisely this type of damage to be seen in these courts.

11.I turn now to the injuries sustained by the various people mentioned in Count 3 but qualify the description I am about to give with the observation that mere words, especially couched in technical terms, cannot properly convey the horror of the injuries that you intentionally inflicted upon Mr Chan and the further consequences of that conduct to the other victims, particularly Li Juan. The photographs that are before me bring out, starkly, the effects of your behaviour: I have photographs of the injuries inflicted shortly after the event and updated photographs in respect of a number of the injured persons.

12.Of the six people named in Count 3 as having been injured by your conduct, Mr Chan and Ms Li were by far the more seriously injured. Mr Chan, a 54-year-old male, sustained a full thickness burns over his forehead, left ear, left anterolateral neck, central chest, whole left upper limb, left leg and right forearm being a total of some 16% of his body area. He was hospitalised from the day of the offence, 6 September 2009, until 15 October 2009. He underwent surgery on 19 September 2009 for debridement of the necrotic tissue and skin grafting. He is, even now, still being seen on a regular basis by the plastic surgery team at Queen Mary Hospital: although the burns have healed the resultant scarring is still being monitored and he is being treated with pressure garment treatment at present. He carries truly dreadful disfigurement as a result of your attack.

13.Ms Li is a 24-year-old female. She was taken to Kwong Wah Hospital where she was found to have full thickness burns involving face, neck, anterior chest wall, right arm and hand, and right calf and foot to a total body surface area of 7%. She underwent two debridements and, presumably, skin grafts and was discharged on 3 October 2009. I have no desire to add to her anguish by describing her wounds but to call them ghastly would be an understatement. At the pre-trial review the prosecution was asked to obtain impact statements from the persons injured: the only one of any real assistance is Ms Li’s. The following extract from it gives a flavour of the devastating effect on her:

"... after being admitted to the hospital for about a week, I was arranged to undergo a skin transplantation surgery in which the doctor transplanted skin from my right thigh to my neck, my chest, my right forearm and upper arm. The doctor arranged a follow-up consultation for me... a month after I was discharged. When I attended Kwong Wah Hospital in follow-up consultation a month later, I was told by the hospital staff that I still owed the hospital a consultation fee of nearly $100,000 and I had to pay the fee before attending any follow-up consultation. As I did not have a job, I was not able to pay the money back to the hospital and could no longer attend any follow-up consultation. I did not consult any other doctor and in about November 2009 I bought a pressure garment... I have not consulted a doctor ever since because I do not have money.

... the scars left affect my appearance. Since the incident happened, I do not dare to go to crowded place. My neighbours laugh at me and I do not dare to go out to meet people.... I always feel a prick on the injured skin and it hurts like I was just burnt. My skin stiffens after the skin transplantation. Besides, the pressure garment recommended by the doctor has to be worn 24 hours. I cannot sleep at night because of the garment the prick. My daily life is seriously affected for I have to wear the garment during the four seasons of the year. When going out, I am really worried that others will see or know that my skin has been badly injured.

This incident also affects the relationship between my husband and me. We are now a nominal couple and our relationship is in name but not in reality. He does not touch me since the incident happened. He does not care about me and I have not seen him for 3 to 4 months already. The incident makes me feel sad all the time and causes many impacts to me. I have lost a lot including my husband. I am afraid that I will be alone as nobody wants to be with me. I always recall the course of how the incident happened and then cry alone."

14.TAM Wai-fan, Mr Chan’s wife, was treated and discharged, the diagnosis being mixed first and second degree chemical burn wounds over the face, both sides of neck, both upper limbs, abdomen and both lower limbs involving around 2 to 2.5% of the total body surface area.

15.WONG Mei-ling was taken to Queen Elizabeth Hospital where she was treated for second degree chemical burns over both arms, right forearm and right foot involving less than 1% of the total body surface area. She was discharged after treatment.

16.LAM King-fong was taken to Queen Elizabeth Hospital where she was treated for first to second degree burns to her left cheek and right chest, right forearm and left thigh covering a total body surface area of 6%. She was discharged after treatment.

17.XU Xizhung was taken to Queen Elizabeth Hospital where he was treated for second degree chemical burns over his right forehead, right arm, and left calf to a total body surface area of less than 1%.

18.Fortunately, the wounds and residual scarring of the latter four named persons were, comparatively speaking, minor. The four other bystanders with whom the acid was in superficial contact were treated and discharged.

19.The throwing of the sulphuric acid at Mr Chan can only be described as deeply wicked. It is unclear to me precisely why you did it but from the facts which you have agreed there are only two inferences: either this was commercially motivated in the sense that it was part of an ongoing attempt by Fei Lung to recover the imagined debt from Mr Chan and you were participating, whether gratuitously or for reward, in that attempt; or, if you told the truth about your demands of Mr Chan being a solo attempt on your part to squeeze some money out of him under the pretext of acting on behalf of Fei Lung, it was an act of pure revenge against Mr Chan presumably for having made a complaint to the police and identifying you at the identification parade. No matter which it was, it does not reduce your culpability.

20.The evil contained in this offence is reflected by its title: the substance is thrown intending to cause grievous bodily harm. You did not intend to kill Mr Chan. What you intended to was to cause him the maximum physical consequences that it is possible for one human being to inflict on another short of death. What you set out to do was to cause him immediate pain and suffering from the burning by the sulphuric acid and then to condemn him to spend the rest of his life bearing the scars which you had inflicted upon him.

21.This is sadistic conduct which is designed to inflict lifelong physical and mental pain on the victim.

22.Judges say from time to time that a particular offence causes revulsion in the community. That is never better illustrated than this offence which is specifically designed to maim and to create revulsion towards the victim, who in reality is entitled to sympathy and understanding, rather than towards the perpetrator of the crime who should be subject to universal condemnation.

23.Acid is all too commonly used as a means of inflicting pain and disfigurement and extracting revenge in a domestic environment: in those situations, as tragic as they may be, there is no danger to third parties. In this particular matter, the consequences of your conduct extend well beyond Mr Chan. That conduct has caused pain, discomfort and minor disfigurement to other people: it has caused irreparable harm to Ms Li. Whilst it may be said on your behalf that you did not intend any specific harm to anyone other than Mr Chan, to take with you a quantity of sulphuric acid such as to cause the damage it did and then to throw it about in a market place, simply must mean that you would have known the inevitability of causing harm to people other than Mr Chan - yet you callously and recklessly persisted. I regard that as a materially aggravating feature.

24.Every time Mr Chan or Ms Li looks at his or her body, every time he or she glances in a mirror or sees his or her reflection in a shop window each will be reminded of the enormity of your conduct. Each will have to live the rest of their lives seeing, on a daily basis, the product of your viciousness. Each will have to confront, on a daily basis, the prejudice which exists in our community towards persons who differ from the norm, who are disfigured.

25.There is a real need, and this is one of the four pillars of sentencing, for deterrence in a case like this. It is necessary that people who might be tempted to follow your example and to resort to violence of this nature be aware that they run the risk of very substantial term of imprisonment.

26.Deterrence is often expressed as being general, in the sense that I have just mentioned, and specific, in the sense that it is aimed at discouraging an offender from repeating the same form of conduct. It is clear from your criminal record that deterrence has been wholly ineffective insofar as you are concerned.

27.You started offending when you were 13 years of age and your very first offence was one involving violence. At the time of commission of this offence you were 28 years old. You have already amassed convictions for 21 offences. They show a wide spectrum of criminality: assault with intent to rob, criminal damage, common assault, theft, robbery, possession of dangerous drugs, driving under the influence, managing a vice establishment, possession of an offensive weapon, assaulting a police officer, fraud and assault occasioning actual bodily harm. It is plain that you are no stranger to violence. That, too, is an aggravating feature insofar as you are concerned.

28.I have been referred to a number of cases in relation to this offence and the sentences have been imposed in them. They are, essentially, unhelpful other than to indicate that a custodial sentence, and almost inevitably a substantial custodial sentence, is appropriate. Sentences in offences of this kind are entirely fact sensitive. Inasmuch as it may be of any assistance at all, other than to demonstrate that cases are fact sensitive, there is an aggregation of previous decisions to be found in HKSAR v Lam Ming Wing CACC 152/2007 at §103.

29.I have been provided, by your counsel, with a letter from you in which you profess remorse. I say, openly, and that I do not accept that to be genuine. I note the second letter which indicates that you claim to have found religion during your incarceration. Your expression of remorse is driven by the fact of your apprehension and your awareness that you will face a substantial term of imprisonment.

30.In regard to the sentence to be imposed in respect of the blackmail charge, I have been referred to a number of decisions which indicate a general trend for a sentence of this offence where a weapon is produced or where there are triad overtones of approximately 4 years imprisonment. In this matter, there were both. Whether you were employed by Fei Lung or whether you were acting alone, the nature of your threat was such that triad involvement was implicit. In addition, you used the weapon which formed the subject matter of the second charge.

31.As to the second charge, it is plain that you armed yourself with the knife specifically to threaten and, if he resisted, as he did, to carry out the threat to Mr Chan. You used the knife on him. Fortunately, Mr Chan was made of sterner stuff and resisted your attempts to assault him resulting in you being wounded, presumably in a minor fashion, by your own weapon. There is a measure of natural justice to be found in that outcome.

32.In respect of the blackmail offence I take a starting point of 5 years imprisonment after trial. In respect of the second count, possession of an offensive weapon, I take 2 years imprisonment as the starting point after trial. In respect of the third offence, I take 18 years imprisonment as the appropriate starting point after trial. I acknowledge that this is a substantial sentence. It is intended to be.

33.You did not plead guilty to these offences at the earliest opportunity, which would have been during committal proceedings in the magistracy. I acknowledge, however, that in accordance with current sentencing practice I am obliged still to afford you a full one third discount for your pleas at this stage, whether I regard that as deserved or not in this case. I will reduce the sentences accordingly. There is no further mitigation available to you.

34.That reduces the sentence on Count 1 to 3 years 4 months imprisonment, on Count 2 to 1 year 4 months imprisonment and on Count 3 to 12 years imprisonment. Counts 1 and 2 are closely associated conduct and it is appropriate that the sentences be served concurrently with one another. I so order. In principle, those sentences should be served consecutively to that on Count 3 as they are separate and distinct acts.

35.I then have to have regard to your overall criminality and to ensure that it is properly reflected in total sentence imposed upon you.  If  I ordered that the sentences on Counts 1 and 2 be served consecutively in their entirety to that on Count 3 you would serve a period of 15 years 4 months imprisonment. Your conduct deserves condign punishment. However, I am satisfied that, overall, a period of 13 years 6 months imprisonment is appropriate. I consequently order that the sentence on Count 3 is to commence 1 year 6 months after the commencement of the sentences on Counts 1 and 2.

36.You have recently been sentenced to further periods of imprisonment in respect of separate and distinct offences committed prior to these. I see no reason why these sentences should not be served consecutively to those sentences and, insofar as it may be necessary, I so order.

Mr P J Power, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the HKSAR

Mr Caesar Lo, instructed by Messrs Antony So & Co (DLA), for the Accused.

Application for leave against sentence is dismissed. See CACC299/2010 dated 25 November 2011