HKSAR v. MA SHUN YICK

CACC 314/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 314 OF 2012

(ON APPEAL FROM HCCC NO. 382 OF 2010)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  The applicant sought leave to appeal out of time against the sentence of 11 years’ imprisonment imposed upon him by Beeson J on 1 April 2011, having been committed to the Court of First Instance for sentence following his conviction on his plea of guilty in the Magistracy on 29 October 2010 to a count of conspiracy together with five other stipulated persons and persons unknown to throw corrosive fluid, namely sulphuric acid, at or upon Mr Neil Mitchell with intent to do grievous bodily harm, contrary to sections 159A and 159C of the Crimes Ordinance and section 29(c) of the Offences Against the Person Ordinance. At the hearing we reserved judgment, which we hand down now.

2.  Of his co-conspirators, Billy Kay Sik Hong pleaded guilty on arraignment before Beeson J on 15 February 2011, whereas Lam Wai Sai and Lai Kwok Leung pleaded not guilty.  However, on 14 March 2011, after 20 days of trial each of them pleaded guilty when re-arraigned.

3.  At the hearing on 27 November 2013 we granted an application made on behalf of the applicant that his application be adjourned, pending the trial of another alleged co-conspirator Wun Shu Fai, so that the applicant might be called as a witness for the prosecution.  In a non-prejudicial statement, dated 7 March 2011, the applicant had implicated Wun Shu Fai as a co-conspirator.  

4.  The applicant, and Billy Kay, gave evidence for the prosecution in the trial of Wun Shu Fai, which concluded on 20 January 2015 with Wun Shun Fai’s conviction of the same offence of which the applicant had been convicted.  The judge sentenced Wun Shu Fai to 15 years’ imprisonment, accepting that his role was less than that of Billy Kay and that he was not the mastermind.

The facts

5.  The prosecution arose out of an attack with sulphuric acid on Mr Mitchell, a barrister appearing for the prosecution in a criminal trial in the District Court, outside the District Court Building on 27 October 2009.  He sustained injuries as a result.

Reasons for sentence

6.  On 1 April 2011, Beeson J sentenced not only the applicant, but also Billy Kay and Tang Chong Hou.  Of the circumstances and consequences of the commission of the offence, she said:

“ The victim, Neil Mitchell of counsel, on 27 October 2009 was prosecuting on fiat in District Court in District Court Case 84/2008, the defendant in that case was Kong Hon-yui, Kevin. The trial had already commenced at District Court number 28. At 1:05 p.m. the victim was descending the external stairs from the court building in order to cross the road towards the Grand Hyatt Hotel. As he reached pavement level, a man with a paper cup containing fluid ran up from behind and to his right and threw the liquid into the victim’s face. Having thrown the liquid the attacker ran to the right and out of sight.

The victim endured to remove the liquid from his face and upper clothing. At that stage another man ran past and threw some fluid at the victim. The fluid landed only on the victim’s clothing. The fluid caused a severe burning sensation in his left eye and the mouth of the victim. He sought help in the court building and doused his face with water to relieve the pain and damage. He was transported to Ruttonjee Hospital, where he was examined by Dr Wong Mei-kam. Dr Wong noted corneal haziness with severe chemical trauma and mild generalised redness over the face, including the lips. Treatment of continuous irrigation was performed and later the victim was transferred to the specialist eye clinic at the Pamela Youde Nethersole Eastern Hospital.

There, Dr Yiu Man-kit found :

a) alkaline chemically-induced injury to left ocular surface, left ear and cheek. There was evidence of pH 7.5 to 8 in the primary area of injury.

b) the left eye had suffered conjunctival damage, with a grossly oedematous Lasek flap with the presence of dark particles in the inferior fornice.

Continuous irrigation treatment was maintained.  The Lasek flap was found to be dislodged and broken.  The victim was admitted to the specialist ward where his condition began to improve slowly.  He was discharged on 30 October 2009. By 27 November 2009, the trauma was found to have largely healed, leaving the victim with intact visual acuity and by 26 January 2010, the injuries were found to have fully stabilised, with intact correctedvision.”

The role of the applicant

7.  Of the role of the applicant, the judge said:

“ On 22 December 2009 the police interviewed the defendant under caution. He told them that on 25 October 2009 he had spoken to Kay Sik-hong, Billy, by telephone. He asked him to find someone to do a job of splashing paint onto a person so this defendant telephoned Tang Chong-hou who agreed to do the job but wanted more details. The defendant contacted Billy who said that the job was to splash an expatriate lawyer with paint. Payment of $30,000 was offered by a lawyer, Kong, who was the defendant in the District Court case and the aim was to prevent the expatriate lawyer from appearing in court on that case.

This defendant arranged for Tang Chong-hou to meet Billy on the morning of 27 October. Following the instructions of Billy, the defendant told Tang Chong-hou to prepare the fluid and anything else he thought necessary. Lam Wai-sai joined them at the meeting. Billy had arranged for the group to meet Sze Ngan-ki who would show Lam Wai-sai and Tang Chong-hou where the expatriate lawyer could be found inside the building. Lam and Tang decided to wait. Lam Sai-fai had a paper cup filled with black fluid to stir with a twig.

This defendant, Billy, Tang Chong-hou, Lam Wai-fai and Sze waited in the vicinity of the court.  At about 1300 hours the defendant returned to the group having been to eat at a nearby restaurant.  He heard Billy tell Tang the expatriate man was coming and that he should take action. The defendant saw Tang throw the fluid in the paper cup onto the expatriate male.  The defendant and the others immediately left the scene.  The defendant admitted and accepted that he conspired together with other persons to throw corrosive fluid on the victim with intent to do him grievous bodily harm.”

The gravity of the offence: starting point for sentence

8.  In her reasons for sentence, the judge considered various judgments of this court relevant to a determination of the appropriate starting point for sentence.  She said:

“ This was a very serious offence, as is shown by the fact that the maximum sentence for an offence of this type is life imprisonment. The defendants have pleaded guilty to conspiracy to throw corrosive fluid. The conspiracy attracts the same sentence as the substantive offence. The starting points for sentence for this offence, which have been upheld or adopted by the Court of Appeal in Hong Kong, range from the high point of 18 years which was HKSAR v Yu Wai Chiu although the case of HKSAR v Lam Ming Wing also has an 18 year sentence and it ranges from 18 years to approximately 2 years’ imprisonment in R v Ngai Kwok Hing CACC 514/1992 which is unreported.

In each case, the factual scenario will vary as to the nature of the attack, the motive for the attack, the spontaneity of or the degree of planning for the attack, whether there is a real and specific intention to cause injury, and other individual features which might bear on the culpability of the offender or offenders.

In the present case, the victim was targeted because of his employment as a prosecutor by the defendant that he was actually prosecuting and who was effectively the guiding light for the attack. The attack appears to have beendirected against the victim in his role as prosecutor rather than because of any personal connection with any of these defendants, and it was intended that he should be injured sufficiently to prevent his continuing with the prosecution.

The corrosive fluid chosen was sulphuric acid mixed with a paint additive, and analysis by the Government Chemist confirmed how harmful that could be to the human body. The victim suffered pain and damage to his eyes and the skin of his face. After a lengthy period, it was known that the sight of his eyes was not damaged permanently, nor did he suffer any permanent scarring as a result of the attack.

However, for offences such as this, the severity of the injury bears little relevance to sentence. Section 29 of the Offences Against the Person Ordinance states clearly that the offence is committed whether injury is suffered or not.

In this case, there was premeditation and planning involved.  Those organising the attack required the prosecutor to be put out of action so that the trial would stop, and it appears that, eventually, the method of disabling the prosecutor was left to the underlings to decide.  A number of persons were recruited to carry out the various roles, some worked as lookouts, some to identify the victim, and others were chosen or volunteered to throw the fluid.”

9.  The judge went on to say:

“ This was a cold-blooded, calculated attack by a number of men, all of whom were strangers to the target. There was a specific intent to injure the victim and to ensure that he was incapacitated so as not to be able to carry out his duties as a prosecutor. Some of the defendants were clearly not privy to the whole arrangement, but those who pleaded guilty all knew what was proposed, and made a conscious decision to take a greater or a lesser part in the attack.

Cases of the second type, which this case is, have a commercial or gang nature and mitigation is quite difficult.

Where a person who is recruited by the mastermind or his or her agents agrees to participate in throwing corrosive fluid at a stranger and is to be rewarded for that work in cash by forbearance to enforce an obligation or forgiveness of a debt, and takes part in a venture without knowing or inquiring about the purpose or motive for the attack, and/or without inquiring about the nature, type and strength of the substance to be used, they must be taken, effectively, to have agreed to whatever is done in the course of the attack but cannot excuse their actions to later claim, or what might be termed pseudo mitigation, that they did not know the nature or strength of the substance, were unaware of the purpose of the attack, or the status of the victim and did not receive the promised payment.

Further, it is a matter of chance whether the injuries to the victim were severe with lasting physical or mental damage or whether there has been a full and quick recovery of the victim, as in this case, it is not the result of any act of virtue by a perpetrator and the chief mitigation in this case are the pleas of guilty entered by these three men and they should have a full one-third discount for those pleas.”

10.  In sentencing the applicant, the judge said:

“ In respect of Mr Ma, although he was not the prime-mover he was very active in the arrangements, and I note that he has given assistance. Again I take an 18 year starting point. I discount that by one-third and give him a further year for the co-operation that he has given. No doubt in his case, too, if further consideration is required, the Executive can deal with it at a later stage. So it is a total of 11 years for Mr Ma and I order that, although strictly speaking it is very much a separate offence, but (in the interest of totality) I order that 1 year of the sentence run concurrently with the sentence he is currently serving.” [Italics added.]

Grounds of Appeal against Sentence

11.  In the Perfected Grounds of Appeal against Sentence settled by Mr Marray, filed with the court on 6 November 2013, the nub of the submissions that were made are to the effect that the applicant is entitled to a further discount of sentence arising from his cooperation with the authorities after sentence had been imposed.  That the application is made out of time is explained by the fact that the investigative steps that led to the applicant being a witness in the trial of Wun Shu Fai did not occur until many months after sentence had been imposed.

12.  At the hearing, Mr Haynes submitted on behalf of the applicant that the Court ought to afford the applicant a discount of at least 50% to reflect the applicant’s cooperation with the authorities, in particular in giving evidence for the prosecution at the trial of Wun Shu Fai, who was convicted and sentenced to 15 years’ imprisonment.

13.  In addition, in his written submissions Mr Haynes sought to challenge the appropriateness of the starting point taken for sentence stipulated by the judge in respect of the applicant, namely 18 years’ imprisonment.  Given that the submission was not encompassed in any of the grounds of appeal against sentence, Mr Haynes was not entitled to advance that submission.  Although Practice Direction - 4.2 ‘Criminal Appeals to the Court of Appeal’ requires that any application for leave to amend the Perfected Grounds of Appeal be filed with the Court no later than the date prescribed for the filing of the applicant’s written submissions, having regard to the fact that Mr Wesley Wong SC for the respondent did not object to the application, we granted the application of Mr Haynes for leave to file Amended Perfected Grounds of Appeal against Sentence.

14.  By the new ground of appeal, he contended that the starting point for sentence of 18 years’ imprisonment stipulated by the judge for the applicant was too high and failed to reflect the applicant’s “intermediary position” in the conspiracy.  He suggested that the applicant occupied a tertiary level in the hierarchy of the conspiracy.  First, there were the ‘architects’, whom he named as Chan Lap Tak and Lai Kwok Leung; secondly, there was the ‘foreman’, Billy Kay; thirdly, there were the ‘recruiters’, of whom together with So Ka Wai and others the applicant was one; finally there were the ‘footsoldiers’ who carried out the actual attack.  Mr Haynes submitted that different starting point for sentence ought to have been taken for each level.

The submission of the respondent

15.  Mr Wong acknowledged on behalf of the respondent that, having given evidence for the prosecution in the trial of Wun Shu Fai, the applicant was entitled to a further discount from the starting point for sentence of 18 years’ imprisonment.  He suggested that the appropriate discount was 50% of that starting point.  On the other hand, Mr Wong submitted that the judge was correct to have stipulated a starting point for sentence of 18 years’ imprisonment, having regard to the fact that the applicant played an active role in the conspiracy.

A consideration of the submissions

The application for leave to appeal out of time

16.  The applicant’s notice of application for leave to appeal against sentence out of time was filed with the Court on 9 August 2012, namely 14 months out of time.  However, although the applicant had made a non-prejudicial statement dated 7 March 2011, in which he implicated Wun Shu Fai in the commission of the offence, it was not until the latter had been arrested that the applicant had been asked to attend an identification parade in April 2012, at which he identified Wun Shu Fai.  In consequence, it appears in anticipation that he would be asked to give evidence against Wun Shu Fai if necessary, the applicant filed his notice of application for leave to appeal.  In the affirmation accompanying the notice the applicant made it clear that his purpose was to seek a further discount of sentence relying on his cooperation with the authorities.

17.  In all the circumstances, and having regard to the fact that the respondent does not object to the application for an extension of time in which to give notice of leave to appeal against sentence, we grant that application.

Further discount of sentence

18.  There is no dispute that the applicant is entitled to a further discount of sentence from the appropriate starting point for sentence.  It is clear from the transcript of the summing up of Madam Justice Toh in the trial of Wun Shu Fai that the applicant gave evidence that was broadly consistent with the description of his role in the conspiracy in the Summary of Facts, which he accepted as the basis of his plea of guilty.  As noted earlier, Billy Kay also gave evidence as a prosecution witness.  Wun Shu Fai was convicted by the unanimous verdict of the jury.

19.  In HKSAR v Kay Sik Hong, Billy & Others[1] this Court, similarly constituted, allowed the appeal of Billy Kay against the sentence of 11 years’ imprisonment imposed on him by Beeson J, quashed that sentence and in its place imposed a sentence of 10 years and 3 months’ imprisonment.  We did so, having noted that the overall discount of 38.8% from that taken as the starting point for sentence, afforded to him by Beeson J to reflect the fact that he was to have been called as a prosecution witness in the trial of a co-accused but had not been called on to do so after the co-accused pleaded guilty during the trial, was less than the usual range of discount in such circumstances of 40% to 45%.  This Court went on to note that such further discount that might enure to the benefit of Kay Sik Hong, Billy, if he was called to be a witness for the prosecution in a trial of Wun Shu Fai, would be a matter for the Chief Executive.  We were given to understand from Mr Haynes that such an application has been made.

20.  On the other hand, this Court refused the applications for leave to appeal against sentence of both Lai Kwok Leung and Lam Wai Sai who had been convicted of the same conspiracy, following their pleas of guilty during their trial on 14 March 2011, and who had been sentenced by Beeson J on 31 March 2011.

21.  In the course of the judgment of the Court reference was made to the judgment of Li CJ in Z v HKSAR [2] on the practice of this Court in affording a discount from the starting point taken for sentence in different circumstances.

22.  Of relevance to the application of the applicant in the instant case, is this passage of the judgment of Li CJ:

“ Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third of reduction for pleading guilty).”

23.  In all the circumstances, having regard to the assistance described earlier that the applicant provided the authorities after he had been sentenced, we are satisfied that he is entitled to a discount of 50% from the appropriate starting point for sentence.

Starting point for sentence

24.  In the judgment of the Court in HKSAR v Kay Sik Hong, Billy & Others the gravity of the circumstances of the commission of the offence was identified:[3]

“ The gravity of the offence of which the applicants have been convicted on their own pleas lies in the fact that it was a brazen attack on the administration of criminal justice, in which that object was sought to be achieved by the heinous crime of throwing a corrosive fluid over the targeted victim. The fluid was deliberately thrown into the face of the victim by the first attacker. A second attacker succeeded in throwing the corrosive fluid over the clothing of the victim only. The fact that the planning of the attack called for a second assailant evidenced the intention and determination of the conspirators that the objective be achieved. As the judge found, considerable planning and preparation went into the execution of the attack, which was carried out in public in the immediate vicinity of the District Court Building. Clearly, the intention was to injure the victim so that he was incapable of continuing his role as prosecuting counsel in a criminal trial in the District Court. The attack was one brought against the very foundations of the rule of law in Hong Kong.”

25.  The Court went on to acknowledge that those three applicants were not the instigators of the conspiracy.  Rather, they were:[4]

" …mercenaries used by others to recruit, organise and equip foot-soldiers to execute the attack.  They did so for the promise of financial reward.”

26.  The judge’s description of the evidence of the applicant of his role in the conspiracy in the summing up in the trial of Wun Shu Fai speaks eloquently to the applicant’s participation in the conspiracy and to his culpability.[5]  Having met Billy Kay whilst they were both inmates at Stanley prison in 2005, the applicant maintained regular contact with him.  On 23 October 2009, he was contacted by Billy Kay who told him that he had a friend who wished to have something thrown over a person for a reward of $30,000.  The applicant said that he agreed to find someone and he contacted Tang Chong Hou, who in the event became one of the actual physical assailants of Mr Mitchell.  However, the latter wanted details of the place of attack and the identity of the victim.  The applicant relayed that information to Billy Kay and was told that the victim was an expatriate, either a lawyer or a witness, then appearing in the District Court in the case of the boss of the person who approached him.  Having informed Tang Chong Hou of those details, the applicant agreed with Billy Kay to meet at the Wanchai MTR station at 8:00 a.m. the morning of 27 October 2009.

27.  At 5:30 a.m. on 27 October 2009 the applicant met Tang Chong Hou at his home in Kwai Fong and, having been introduced by him to Wun Shu Fai, was told that whilst the former would throw the fluid over the victim, the latter would pretend to come to the assistance of the victim after the attack in order to interfere with any pursuit of his attackers that he might attempt to make.  The applicant said that Billy Kay failed to make the rendezvous at Wanchai MTR station at the appointed time.  So, he parted company with Tang Chong Hou and Wun Shu Fai, whom he asked to go ahead to the vicinity of the attack.  Whilst waiting for Billy Kay, he received a telephone call from him, in which he was told that the expatriate victim was upstairs in the court building and was asked if the attack could take place there.  He was given the contact telephone number of another of the conspirators, whom he met later and learned was Lai Kwok Leung.  He telephoned Lai Kwok Leung and informed him that the two persons who were conducting the attack would contact him.  Then, he passed on Lai Kwok Leung’s telephone number to Tang Chong Hou and asked him to call the former.  Subsequently, after the applicant had met up finally with Billy Kay, Tang Chong Hou contacted him to tell him that it was not possible for the attack to take place upstairs, since there was no way to escape.

28.  Next, the applicant introduced Billy Kay to Tang Chong Hou and Wun Shu Fai at a park opposite the District Court building.  Tang Chong Hou went off and returned with a paper cup.  The applicant saw a black substance in two bottles from which smoke was emitted.  It was poured into the paper cup.  The other three men went off to the District Court building.  Tang Chong Hou carried the cup into which the substance had been poured.  Later, the applicant himself went the District Court building where he saw the three of them again.  Then, Billy Kay called out to him and pointed to the exit of the District Court building.  There he saw an expatriate man, behind whom another man was walking, whom he learned later was Lai Kwok Leung.  The latter was pointing at the expatriate man.  Then, Tang Chong Hou went up to the expatriate men and threw the contents of the paper cup onto his face, after which the former ran off.  For his part, Wun Shu Fai went up to the expatriate men, and pretended to assist him.  Having received a telephone call from Billy Kay the applicant left in a taxi together with him and Lai Kwok Leung.

29.  Of the promised reward of $30,000 for the attack on Mr Mitchell, it is not entirely clear what the applicant’s evidence was as to the share, if any, that he received.  Of the sum of $3,000 that he said that he received, he said that he gave Tang Chong Hou $2,000.  In addition, in the summing up the judge said that it was the applicant’s evidence that he received “$4,000 in two equal instalments.”[6]  On the other hand, no mention was made in the summary of facts of the applicant receiving any money.  Furthermore, in the summary of facts that Beeson J gave of monetary rewards received by various co-conspirators, no mention was made of the applicant.[7]  In those circumstances, we proceed on the basis that he did not actually receive payment.

30.  It is clear from that description of the part played by the applicant in the conspiracy that the judge was entirely justified in determining that whilst the applicant was not the prime mover, nevertheless “he was very active in the arrangements”.  There is no merit in the submission of Mr Haynes that the role of the applicant was that of a ‘recruiter’ only.  Having recruited Tang Chong Hou to the conspiracy, the applicant met him and Wun Shu Fai, whom Tang Chong Hou had recruited to the conspiracy, in the early morning of 27 October 2009 and travelled with them to the scene of the eventual attack.  There, he coordinated communications between different conspirators, as the conspirators sought to implement the plan.  He was present when the fluid containing sulphuric acid was poured into a cup from which it was thrown later over the victim.  Furthermore, he was present at the scene at the time of the attack itself, after which he left together with Tang Chong Hou and Billy Kay.

31.  In the judgment of the court in HKSAR v Kay Sik Hong, Billy & Others circumstances of the commission of the offence were described as “outrageous”, which necessitated the imposition of a deterrent sentence.  The Court went on to say in respect of Billy Kay that “…whilst a starting point of 18 years’ imprisonment is high, it was appropriate.”  For the reasons set out above, we are satisfied that the same is true in respect of the applicant.  There is no merit in this ground of appeal.

32.  As Mr Wong pointed out, the judge fell into error in stating that, at the time that she imposed sentence, the applicant “is currently serving a six-year sentence for trafficking in dangerous drugs”.[8]  The judge made that statement in the context of submissions made on behalf of the applicant that part of the sentence of imprisonment to be imposed in respect of the conspiracy ought to be ordered to be served concurrently with the sentence of imprisonment the applicant was then serving.  There is no dispute that the applicant was then serving a sentence of 5  years’ imprisonment only.  That sentence of imprisonment was imposed on 28 May 2010.  In the event, having regard to the principle of totality, the judge ordered that one year of the sentence of 11 years’ imprisonment that she imposed on the applicant was to be served concurrently with the sentence of imprisonment that the applicant was then serving.  Clearly, the applicant was not disadvantaged by the judge’s error and Mr Haynes takes no issue with that order.

Conclusion

33.  In the result, we allow the application for leave to appeal against sentence out of time and, treating the hearing of the application as the hearing of the appeal, we allow the appeal and quash the sentence of 11 years’ imprisonment imposed on the applicant.  In its place, we impose a sentence of 9 years’ imprisonment, one year of which sentence is to be served concurrently with the sentence of 5 years’ imprisonment imposed on 28 May 2010.