HKSAR v. SO CHI SUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 298
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. It is necessary to refer to the agreed facts of the checkered proceedings against the applicant. They are:

"In about March 1996, the defendant/applicant agreed with the 2nd defendant Ho Kin-kwok, and others to teach someone a lesson by doing him harm in China. The applicant/defendant who was not acquainted with the proposed victim, was to be paid for doing the job. The group of conspirators had been originally promised $100,000 between them. The group planned to go to the victim's factory in Jiang Men and lie in wait for the victim to arrive so that they could harm him. The plan was for the victim to be injured by being shot in the buttocks, the alternative plan being to stab the victim in the buttocks with a knife if a gun was not available. The defendant was responsible for carrying the gun and bringing along the bullets when the group went to the factory in April 1996 to seek out the victim. The victim did not turn up at his factory at the time when the ambush was laid and the plan failed. The applicant/defendant and others did not get full payment for doing the job after this failure and Chau Pei, the mastermind behind the plot, said he would return to Hong Kong to sort out the matter. The victim Tse Charm-por is a Hong Kong resident with a business premises in Kwun Tong and was working in Hong Kong during this period although he travelled to his factory in China occasionally.

A few weeks later when Chau Pei had failed to contact the defendant or Ho, the two had a discussion and Ho said that he would arrange for the defendant, a Mainlander, to come to Hong Kong and there they would try again to contact Chau Pei to find out the current position relating to the plot. The defendant joined a tour to enable him to come to Hong Kong, arriving here on 19 May 1996 and initially staying for two days in a hotel. He joined up with Ho, the 2nd defendant and a man called Kong Kwok-chuen, the 1st defendant, whom he had not met before. On the defendant's arrival on May 9th, he came to see him at the hotel and Ho said that he had got some explosives and that they should use it to blow up the doors and windows of the victim's premises to scare him and then they would get paid their money. But after the defendant Ho, 1st defendant and Kong, spent the time together. After this, the defendant Ho and Kong spent the time together and on May 22nd defendant and Ho went to stay with Kong at his flat at Room 6, 4/F, 87, Ma Tau Wai Road. Attempts were made to contact Chau Pei without success and so eventually Ho suggested to plan to blackmail the victim so that money could be obtained that way instead.

On May 26th the defendant/applicant was responsible for wrapping up the explosive powder properly. At this time the explosive materials were being kept at Kong's flat. The defendant wrapped the powder in some letter paper and threw away the original wrapping and then placed the freshly wrapped explosives inside a Malboro cigarette packet together with the fuses, detonators and igniters."

2. The applicant was initially charged with a number of counts but he had ultimately to face only one of simple possession of explosive substances contrary to section 53(1) of the Crimes Ordinance.

3. The essential facts are relatively uninvolved. On 27 May 1996 in Hong Kong, the applicant was in possession of two copper bodied non-electric detonators, two friction igniters, two fuses and 30 grammes of plastic T.N.T. high explosive. The applicant's indictment was amended and new charges were preferred against him. He pleaded guilty to one count of simple possession in his amended indictment. The remaining two counts of conspiracy and possession with intent were ordered to remain on the file and not to be proceeded with without leave. The judge adopted a starting point of 10½ years, allowing a discount and he was sentenced to 8 years' imprisonment. He feels aggrieved by his sentence of 8 years and now seeks leave to appeal against it.

4. The grounds of his application are that the sentence of 8 years is excessive and that the starting point selected by the judge is too high. It is submitted that the judge failed to properly apportion the culpability between the applicant and his co-defendant Ho who was in charge of the operation. Our attention is also drawn to the fact that the applicant was charged with a lesser offence and that his role was a relatively minor one. On these facts, it is further submitted that a disparity resulted in the sentence of the applicant and that of his co-defendant. Lastly, it is complained that the trial judge failed to give a sufficient discount to the applicant for his guilty plea.

5. Co-defendant Ho was charged with unlawful possession of the same explosive substances but with intent to cause serious injury to property. For the purposes of sentencing, Ho played a leading role. The judge adopted 14 years as a starting point for Ho. He pleaded guilty and cooperated with the police. His cooperation led to the arrest of the instigator. Ho was given 8½ years. It was a 40% discount. The applicant's 8 years from 10½ represented about a 25% discount. The applicant also pleaded guilty, but it must not be forgotten that the giving of the usual one-third discount for pleading guilty is not a hard and fast rule. The sentencing court retains a residual discretion, to be exercised in any given case.

6. The trial judge noted that the applicant had given confessional statements to the police. His finger-prints were found on the wrapping material. The judge was satisfied, and that is very important, that "he harboured not a vestige of remorse". In addition, the judge took into consideration the fact that unlike his co-defendant Ho, the defendant had not supplied useful information to the police. As to the applicant's supporting role, the trial judge rightly observed that being a hired assassin, the applicant was a willing and ready participant who was to execute horrific instructions for a price. The applicant, so the judge commented, played a different role of that of a hitman whose participation was, by its very nature, necessarily subordinate. It is unsurprising that the judge gave little credit for the role of an assassin, hitman the applicant played.

7. The trial judge was only prepared to accept a guilty plea on the understanding that the applicant was to be regarded as coming into possession of the substances after the criminal plans to put them to use had been abandoned, and he was to be dealt with on the footing that the court would not be precluded, in sentencing him, from "taking into account the full background of the case and the fact that before the explosives came to the applicant's actual possession", he knew of such possession in the hands of his confederate and for what purpose they were intended.

8. What transpired at the hearing was :

Court: "Yes, I can sentence in this case on the basis that he had in possession of the explosives at a given time when the plan to use these explosives to which he had been a willing partner had been abandoned".

9. Counsel who appears before us acted for the applicant in the court below and he responded :

"Yes but the explosives were not bombs to danger human lives or something of that sort".

10. At another juncture, this was said by the judge :

"I consented to the proposed cause as I was asked to do on the express footing that I would not be precluded from taking into account the full background of the case and the fact that before the explosives came into the third defendant's [the applicant's] actual possession, he knew of their possession in the hands of his confederate and for what purpose they were intended. In the circumstances which presented themselves, I directed the jury to acquit the third defendant [applicant] of blackmail which they did and with the third defendant's [the applicant's] consent, I discharged them from returning verdicts in relation to the other counts.

The Crown re-amended the indictment against the third defendant [applicant] which now contains three counts against the third defendant. The first is that of conspiracy. The second is that alleging possession of explosives with intent and the third is a simple possession of explosive substances a count with which the Attorney General has consented to proceed."

11. In that context, the plea of the applicant (the 3rd defendant) to the simple possession count was accepted by the judge, and he was accordingly sentenced. Clearly, it is not open to the applicant to complain through counsel in the way he does today. The judge had regard to matters expressly reserved, by consent, for his consideration.

12. Turning finally to the sentence imposed upon the applicant, the explosive substances were intended to be used for intimidating a Hong Kong businessman. Counsel for the applicant refers us to R. v. Chak Shui-chung, [1989]2 HKLR 81 and A.G. v. Cheung Shu-tai & Others, [1995] 1 HKCLR 186.

13. In Chak Shui-chung, the accused pleaded guilty to possession of explosive substances in an apartment where both of his hands were blown off when the bomb he had apparently been dismantling exploded. 7 years was adopted as the starting point. In Cheung Shu-tai, the accuseds were convicted of causing an explosion likely to endanger life or cause serious injury to property contrary to s. 53 of the Crimes Ordinance. That was a case of the making a bomb out of a cut plastic Coca Cola bottle packed with commercial explosives, which had been placed underneath a car. The bomb exploded and caused terrible damage to the car and other cars parked nearby. 15 years was adopted as the starting point.

14. It is worthy of note that no tariff was laid down in either of these reported cases. In fact, none can be found. Each case must be judged on its own facts and the facts in this case are certainly unique.

15. The judge adopted 10½ years for the possession of explosive substances by the applicant in the known circumstances before him, which were sufficient to make not only one but two bombs. The assembly instructions were relatively simple to follow and the bombs readily made for use. We are unable to accept criticisms levelled at the starting point of 10½ years adopted by the judge.

16. For the particular facts in this case, taking into consideration the part played by the applicant and his conduct in court, the judge was right in giving him only a discount as would bring down his sentence from the starting point of 10½ years to 8 years. In conclusion, we are unable to say that the starting point was high or that the sentence of 8 years manifestly excessive or wrong in principle. The application therefore stands dismissed and we dismiss it.

Stuart Moore, J.A.:

17. I agree with the judgment of Liu, J.A.

18. The facts of this case produced a difficult sentencing problem because the original purposes for which these explosives were intended had, at least for the time being, ceased to apply. Hence, the acceptance by the prosecution of the simple possession charge, although this had to be set into the context of the wider background which Liu J.A. has dealt with already. It might be helpful, though, if I were to deal with one small portion of the mitigation speech of Mr. Coghlan in the court below where he said this:

"... this defendant, looking at this background, ............., is not a mastermind. He is an assassin. I don't use any apology for using that term. But he is, I submit, a fairly simple man who has been drawn into the crime by others. He had no motive or interest ............ beyond what he was asked to do or paid to do, the only motive being money."

19. The way that the learned judge dealt with that part of the mitigation perhaps explains the gravity of the case that had been presented to him.

20. Stock, J., at page 102 in the Appeal Bundle, said :

"You are an extremely dangerous man. You have been described by your own counsel, as indeed he was bound to concede, as an assassin. You played a full part in looking for this victim in China and you there carried a gun and ammunition prepared to shoot at him if necessary.

I do not of course sentence you for that offence but the facts there, as well as the facts revealed by your own statements, show that although you had pleaded guilty to possession of explosives rather than the more serious charge of possession of intent to cause serious damage to property, you were perfectly willing, before those explosives came into your possession, to be party to their use to damage Tse's factory. It so happened that you only came into possession of them after that particular plan had been dropped, but it would defy reality on the facts and the justice of the matter if I were to treat that event in a vacuum and pretend that that was the long and the short of your connection with, as opposed to your possession of, these explosives and what it was intended that they should be used for. You then helped to pack them knowing full well that they were to be retained and perhaps used on some other occasion for the same or another criminal purpose. The fact that they were to be taken back to the People's Republic of China is neither here nor there and does not constitute any mitigation at all."

21. Those words correctly and accurately encapsulated the gravity of this particular case and I have no doubt that the sentence was entirely appropriate.

Power, V.-P.:

22. I agree with the judgments of both Liu & Stuart Moore, JJ.A. The application is dismissed.