HKSAR v. Wong Hon Lai

CACC000134/2002

CACC134/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 134 OF 2002

(On appeal from HCCC 407 OF 2001)

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Coram: Hon Stuart-Moore VP and Gall J in Court

Date of Hearing: 18 October 2002

Date of Judgment: 18 October 2002

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1)On 14 March 2002, the applicant pleaded guilty in the Court of First Instance before Beeson J to one count of throwing a corrosive fluid with intent to cause grievous bodily harm, contrary to section 29(c) of the Offences against the Person Ordinance, Cap. 212 and to one count of inflicting grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance.

2)The particulars of the first count were that the applicant on 12 July 2001, at Wo Che Estate, Shatin, unlawfully and maliciously threw upon the victim, Wong Yau Tong ("Madam Wong"), a corrosive fluid, namely sulphuric acid with intent to do grievous bodily harm to her. In respect of the second count, the particulars were that the applicant at the same Wo Che Estate, Shatin, unlawfully and maliciously inflicted grievous bodily harm upon one Ching Yuk Ling ("Madam Ching").

3)The applicant who was then aged 47 years was, in respect of Count 1, sentenced to nine years' imprisonment, the judge having taken as a starting point a term of 15 years' imprisonment, reducing it to 10 years by virtue of the early plea, and then further reducing it to nine years to reflect the clear record of the applicant. In respect of the second count, the applicant was sentenced to two years' imprisonment, the judge having taken three years as a starting point and reducing it to two years to reflect the mitigation. The applicant now seeks leave to appeal the sentence in respect of the first count on the indictment.

4)The facts were that the victim of this case, Madam Wong, was born on the mainland and in 1994 married a Mr Yuen who is a Hong Kong resident. She gave birth to a daughter and a son, and the two children joined their father in Hong Kong and acquired resident status. Madam Wong did not have resident status in Hong Kong and continued to live on the mainland. Mr Yuen, husband of the victim, came to know the applicant in 1992 and he developed a relationship with her which resulted in her giving birth to a son on 17 May 1995. Soon after the birth of that child, the relationship between Mr Yuen and the applicant deteriorated.

5)The victim, Madam Wong, came to Hong Kong on 11 May 2001 to visit her husband and children, and was permitted to remain until 8 August of that year. On 12 July, she took her son to kindergarten, and having left him there whilst she walked along Hip Yan Street, the applicant threw acid onto her causing serious injuries to her face. The injuries were severe scarring, leading to left eye lagothalmos and impaired visual acuity; a deformed left pinna with stenosed external auditory canal and decreased hearing over the left ear; deformity to the left nostril and a scar over the left corner of the mouth leading to facial asymmetry when the mouth was opened. The photographs of the damage were before the court and are horrific.

6)A pregnant woman walking behind Madam Wong was also injured on her left arm and face. That was the basis for the second count on the indictment.

7)The applicant ran from the scene and was stopped by an off duty policeman. She was detained after a struggle. She admitted that she had never seen Madam Wong before that morning but had purchased the fluid about two weeks before and that morning she poured some of the fluid into a bottle for as, she told the police, the purpose of splashing it on and burning Madam Wong.

8)In the psychiatric and psychological reports she averred that she had the bottle of acid to threaten rather than to burn. In mitigation, it was submitted that the applicant had been embittered by the way that she had been treated by Mr Yuen and that the bitterness had consumed her to a point when she was unable to restrain herself from the attack. The reports on her mental condition support the mitigation that she had an inward looking view of her difficulties leading to a bottling of her emotions. It was submitted that she had a clear record and showed immediate remorse for what she had done demonstrated by her frankness to the police and by her early pleas. On her behalf it was submitted that she had underestimated the strength of the acid and that she had no intention of injuring Madam Ching.

9)In submitting that the sentence in respect of the first count on the indictment is manifestly excessive, Ms Remedios, on behalf of the applicant, has taken us through many of the previous decisions of this court that deal with cases of this kind. She has argued that on an analysis of the facts of each of the cases the judge erred in adopting as a starting point a sentence of 15 years in respect of the first count and did so because she gave insufficient weight to the history of bitterness between the applicant and the victim's husband, and to the mental condition of the applicant.

10)The cases cited by Ms Remedios are of assistance but nonetheless sentencing for this type of offence rests mainly upon the facts and circumstances of each case. As Woo JA said in the case of HKSAR v. Wong Siu Kwan, CACC 166/2001 :

" The range of facts of each case will vary greatly as to the nature of the attack and its motive, the mindset of the attacker, the spontaneity of the attack or, conversely, the degree of planning, how real and specific was the intent to cause injury, and no doubt a host of other pertinent features which may have a bearing on the degree of culpability."

The judge recognized that each of the cases should be dealt with on its own merits when she said :

".... So, overall, I think it's accurate to say that each case depends on its own facts. The courts are required to regard such offences as very serious. The degree of injury to the victim, although relevant, is not a deciding factor in determining the length of the sentence because the degree of injury is to some extent fortuitous. ...."

11)In her Reasons for Sentence, the judge clearly had in mind the bitterness that the applicant felt towards her former lover and her mental condition. She said :

"Here, I note that the defendant is of previous good character and I note that she has a basis to bitterness towards Mr Yuen .... which was transferred to the wholly innocent of this case. ...."

She went on to say :

"I note that in this case, unlike some of the other cases that have been referred to, in the case that I have just quoted, Wong Siu Kwan (CACC 166/2001), this attack was not directed against the man who had treated her so badly, but it was directed against a wholly innocent victim who had no idea of the defendant's existence. Further, this was not a recent or spontaneous grievance; the animosity of the defendant towards her erstwhile lover had continued for some years. In respect of this offence, serious elements of premeditation existed and in particular, her purchase of the acid some two weeks before the offence.

Further, the defendant had apparently taken steps to disguise her appearance, of hat and sunglasses, which also indicates a degree of premeditation. That she did not intend to be caught is also evidenced by her flight and what was quite a serious struggle to avoid capture. The amount of fluid thrown appears to have been relatively substantial. I've already stated that I've seen the bottle size; it can be inferred from the size of the bottle the extent of the injuries to the first victim and the fact that some liquid was left over to reach the second victim."

12)The judge clearly gave weight to the authorities referred to her, the psychological and psychiatric reports and the history between the applicant and Mr Yuen. She also properly took into account the horrific nature of the act of the applicant, the fact that it was visited upon an innocent party, that it was planned to the extent that the applicant armed herself with acid and lay in wait for the victim. The judge took into account all relative matters and in our view gave them the weight they deserved.

13)There is no merit in the submission that the sentence was manifestly excessive, neither in the starting point taken by the judge nor in the degree to which she mitigated the sentence. The application for leave is dismissed.

Representation:

Mr P.K. Madigan, SGC of Department of Justice, for the Respondent

Ms Corinne Remedios, instructed by the Director of Legal Aid, for the Applicant