HKSAR v. Chi Chi Hong, Ken

CACC 299/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 299 OF 2010

(ON APPEAL FROM HCCC NO. 37 OF 2010)

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BETWEEN

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Before: Hon Hartmann JA and Lunn J in Court

Date of Hearing: 25 November 2011

Date of Judgment: 25 November 2011

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

1.On 9 August 2010, the applicant pleaded guilty in the Court of First Instance before Wright J to the following three offences. First, blackmail, contrary to s. 23(1) and (3) of the Theft Ordinance, Cap. 210; second, possession of an offensive weapon in a public place, contrary to s. 33(1) of the Public Order Ordinance, Cap. 245 and third, throwing corrosive fluid with intent, contrary to s.29(c) of the Offences against the Person Ordinance, Cap. 212.

2.In respect of the blackmail offence, the applicant was sentenced to a term of three years and four months’ imprisonment.  In respect of the offence of possession of an offensive weapon, he was sentenced to one year and four months’ imprisonment and in respect of the third offence, that of throwing corrosive fluid with intent, he was sentenced to a term of 12 years’ imprisonment.

3.It was ordered that the first two sentences be served concurrently.  However, in respect of those sentences, in considering the totality of the applicant’s culpability, the judge ordered that 18 months of the first two sentences were to be served consecutively to the sentence of 12 years’ imprisonment.  This made for a total sentence of 13 years and six months’ imprisonment.

4.The applicant now seeks leave to appeal his sentence.

5.The applicant is not aggrieved by the concurrent sentences imposed upon him for the offences of blackmail and possession of an offensive weapon.  He submits however that the sentence of 12 years’ imprisonment imposed upon him for the offence of throwing corrosive fluid with intent is manifestly excessive especially when compared with sentences passed in similar cases.

6.Wright J observed that on the matters put before him it was never clear exactly why it was that the applicant came to commit the offences to which he pleaded guilty.  It may have been that the applicant was acting on the instructions of a person seeking to extort money from the principal victim or it may have been that he was acting on his own.  Whatever the reason, on the evidence before him the judge was satisfied that the acid attack was premeditated.

7.Before us this morning, however, the applicant has submitted that the acid attack was not premeditated.  The applicant has said that he was arrested for the first two offences to which he pleaded guilty because the principal victim had reported the matters to the police.  The applicant has asserted – this being an entirely new assertion – that, shortly after he was released on bail, he happened to be walking past the stall where the principal victim worked and saw the principal victim smile at him.  This so enraged him, he said, that he went immediately to a nearby shop to purchase sulphuric acid which he then put into a flask he happened to be carrying so that he had water to drink.  The applicant has denied that he carried the acid from his home even though sulphuric acid was found there. 

8.When the applicant appeared for sentencing, he was represented by counsel.  At no time did counsel mention anything to this effect.

9.We reject the applicant’s submission that the acid attack took place on the spur of the moment.  We are satisfied the submission was entirely based on the applicant’s acquired knowledge of the fact that attacks planned in cold blood invariably attract higher sentences than those that take place in the heat of the moment. 

10.On the evidence before Wright J, we are satisfied that the background may be summarised as follows.

11.On the night of 14 July 2009, the applicant approached the principal victim, a middle-aged man by the name of Chan, demanding to know when Chan would pay his “big brother” a sum of $380,000.  When Chan denied owing the money, the applicant took out a pen knife, the blade to the knife being some five inches long, and attempted to “poke” the victim with that knife in his stomach.  There was a struggle.  The applicant fled.  Fearing for his safety and that of his family, Chan reported the matter to the police.

12.The applicant was arrested approximately a week later for the offences of blackmail and possession of an offensive weapon. Taking into account the applicant’s appalling criminal record, including assault with intent to rob, criminal damage, assaulting a police officer, robbery and assault occasioning actual bodily harm, somewhat surprisingly he was granted bail.  Three days later he committed the third offence, that of throwing corrosive fluid with intent. 

13.As to that offence, on the early evening of 6 September 2009, the applicant approached the principal victim, Chan, who was sitting near his stall where he worked with his wife.  The applicant was carrying a flask containing highly concentrated sulphuric acid.  The applicant unscrewed the flask.  He alerted Chan by calling his name and then threw the contents of the flask towards his face.  Chan and five other people were hit by the acid and were injured by it.

14.The applicant attempted to escape, still carrying the flask, but was pursued by Chan’s wife, herself one of the victims, and was apprehended by the police.

15.Of the six people injured by the acid thrown by the applicant, Chan and a young married woman by the name of Li, who was shopping at a nearby stall, were the most seriously injured.

16.In respect of the injuries sustained by Chan, the sentencing judge made a number of observations as to the extent of his injuries and that of the others.

17.In respect of the injuries sustained by Chan, the sentencing judge observed that he had sustained –

“ ... full thickness burns over his forehead, left ear, left 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 resulting scarring is still being monitored and he is being treated with pressure garment treatment at present. He carries a truly dreadful disfigurement as a result of your attack.”

18.In respect of the injuries sustained by the young woman, Li, a mere bystander, the judge commented:

“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 of7%. 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.”

19.In respect of Li, what the judge described as an ‘impact statement’ was obtained and, in order to illustrate the devastating effect which the acid attack had had on her life, the judge cited from part of that statement.  We can do no better than follow his example, if only to emphasise the truly terrible and life-long effects which result from these acid attacks:

“Since the incident happened, I do not dare to go to crowded places. My neighbours laugh at me and I do not dare to go out to meet people ...

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 ... 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 I cry alone.”

20.While fortunately the other victims did not suffer injuries of the same gravity nevertheless their injuries were serious too.  Chan’s wife suffered burns to her face and neck, abdomen, arms and legs: her injuries covering over 2% of her body.  Lam, another bystander, suffered burns to her face, chest, forearm and thigh, her injuries extending over some 6% of her total body surface.

21.It is understandable that the sentencing judge was drawn to describe the applicant’s actions, that is, the manner in which he had planned the attack and then thrown the highly concentrated sulphuric acid, indifferent as to whether it struck his victim alone or others too, as being “deeply wicked”. Correctly in our view, the judge found this to be a materially aggravating feature.

22.As to the sentence imposed on the applicant, the judge chose a starting point of 18 years, reducing it by one-third to 12 years in order to give credit to the applicant’s plea of guilty.  The applicant submits that this sentence is manifestly excessive.

23.The applicant has referred us to a number of cases, suggesting that they support his submission that the sentence of 12 years’ imprisonment imposed upon him for the offence of throwing corrosive fluid with intent is manifestly excessive.  

24.There is however no ‘tariff’ in cases of this kind.  The appropriate sentence to be imposed in each case is to be determined by the particular facts of that case.  What can be said is that the legislature recognises that the crime has such awful potential for causing lifelong suffering to its victims, maiming them and causing them terrible disfigurement, that it has seen fit to impose a maximum penalty of life imprisonment.

25.As it is, the cases to which the applicant has referred us do nothing to support his application.

26.One example suffices.  It is the same case to which the judge himself, in passing sentence, made reference, that of HKSAR v Lam Ming Wing CACC 152/2007.  That was a case in which the applicant hired two men to carry out an acid attack, doing so at the behest of a third party who complained that he had been cheated and wished to exact revenge.  The attack took place on mistaken victims, a man and his wife who both sustained serious injury.  In that case, after trial, the applicant was sentenced to 18 years’ imprisonment.  On an application for leave to appeal, this Court held that the sentence of 18 years was appropriate.

27.In the present case, 18 years was the starting point adopted by the judge.  In our view, it was an entirely proper starting point.

28.As to the totality of the sentence imposed on the applicant, that of 13 years and six months, we are satisfied that it is neither wrong in principle nor manifestly excessive.  While the crimes of blackmail and possession of an offensive weapon were perpetrated in respect of the principal victim of the acid attack, they were carried out more than three weeks before that attack and to that extent were in large measure independent of it.  It was therefore well within the judge’s discretion to order that a substantive part of the sentence imposed for the commission of the first two offences, a period of 18 months, be served consecutively to the 12 years imposed for the acid attack.

29.This application for leave to appeal against sentence is devoid of merit.  For the reasons given, it is dismissed.

Ms Agnes Chan, ADPP (Ag.), of the Department of Justice, for the Respondent

Applicant in person