HKSAR v. LIU HIU ZHI

CACC184/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 184 OF 2008

(ON APPEAL FROM HCCC NO. 50 OF 2007)

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JUDGMENT

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Saw J (giving the judgment of the Court) :

1. The applicant pleaded guilty to the following charges :

(i)  assault occasioning actual bodily harm contrary to common law and punishable under section 39 of the Offences against the Person Ordinance, Cap. 212 (Count 1);

(ii)  theft contrary to section 9 of the Theft Ordinance, Cap. 210 (Count 2);

(iii)  conspiracy to blackmail contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210 and section 159A of the Crimes Ordinance (Count 3);

(iv)  criminal damage contrary to section 60(1) of the Crimes Ordinance, Cap. 200 (Count 4).  

2. On 16 May 2009 Wright J sentenced him as follows :

(1)  Count 1, a term of imprisonment of 16 months;

(2)  Count 2, a term of imprisonment of 16 months;

(3)  Count 3, a term of imprisonment of 32 months; and

(4)  Count 4, a term of imprisonment of 20 months. 

He ordered that 8 months of the sentence on Count 1 be consecutive to the sentence on Count 2.  He ordered that the sentences on Counts 3 and 4 be concurrent one to the other and that the sentence on Count 2 be consecutive to the sentences on Counts 3 and 4.  

3. Thus the total of the sentences imposed was 4 years and 8 months’ imprisonment.  

4. This is his application for leave to appeal those sentences. 

The facts

5. On the evening of 29 January 2006 a group of men which included the applicant entered the Hong Kong Buddhist Cemetery at Cape Collinson in Chai Wan.  They took with them with what are described in the admitted facts as “ground breaking and digging tools”.  These tools included a pneumatic drill, spades, a sledge hammer, electric saws, chisels, pick axes and the like.  Two of the group also carried beef knives and one a black imitation pistol. 

6. Their intention that evening was to break open the tomb of the deceased wife of a prominent Hong Kong businessman.  They intended then to remove the remains of the deceased and any valuables then found buried with her.  Subsequent to this they had intended to demand a ransom for the return of those remains.  This was the substance of Count 3.  

7. Before they could effect their plan they were discovered. 

8. What happened was this.  The plan itself was put into effect during the Lunar New Year break of 2006.  The group of men entered the cemetery some time after dark on that evening and attempted to break into the tomb using the tools we have referred to.  Given the construction of the tomb and the unsuitability of the tools they had taken with them progress was slow but nevertheless damage was caused to be external surfaces by their actions. 

9. At about 11 p.m. the caretaker of the cemetery and his wife returned (they lived on the premises).  The applicant, the lookout posted by the group at the entrance to the cemetery, alerted the others to this.  There was a confrontation between this group of men and the caretaker and his wife.  The caretaker was struck two blows to the head with the flat of one of the beef knives which resulted in two minor lacerations.  This was the substance of Count 1.  

10. The caretaker and his wife were taken into the cemetery office where they were tied up and their eyes were covered.  They were detained there for some 3 hours whilst the group of men again set about trying to break into the tomb.  At some point in time it was decided that they could not achieve this and the decision was made to leave but not before cash, jewellery and other valuables were taken from the caretaker and his wife.  This was the substance of Count 2.  

11. The damage caused to the tomb by the attempts to break it open was the substance of Count 4.  The cost of repair was in excess of $50,000. 

12. The applicant was the 3^rd accused named in the indictment.  He and a co-accused Liu Hui Luong who was D2 on the indictment were sentenced on the same day.  Another co-accused Wu Chun Sing, D1 on the indictment, was acquitted.  There were also other members of the gang who have since been sentenced for these or like offences. 

13. In HCCC254/2007 Wong Kwan Fuk (D1) and Lau Kwok Sun (D2) faced similar charges to this applicant.  This applicant gave evidence in the prosecution case which it is accepted was instrumental in securing their ultimate convictions for some of the charges they faced.  It is to be noted that this applicant gave his evidence in HCCC254/2007 after he had been sentenced in this matter. 

14. Wright J was aware that he would give evidence in HCCC254/2007.  He said this :

“3^rd accused, you have indicated now openly that you are prepared to testify on behalf of the prosecution in HCCC254/2007.  If you do so, that might entitle you to additional consideration over and above the one third discount you will be entitled to by virtue of your pleas of guilty.”

15. The applicant’s co-accused, D2, who was sentenced at the same time by Wright J for the same offences received total terms of 5 years’ imprisonment.  This was to reflect the fact that he was one of the gang who had brandished the beef knife and was present when the caretaker was assaulted.  He also took part in the attempt to break open the tomb whereas this applicant was the one who stood guard and alerted the other members of the gang to the return to the cemetery of the caretaker and his wife. 

16. Ms Monica Chow on behalf of the applicant submits that the applicant is entitled now to the additional discount adverted to by Wright J by reason of his having given evidence against the other gang members. 

17. Mr Reading SC together with Ms Jasmine Ching for the Secretary for Justice readily and properly concedes that he is entitled to that concession.  He accepts that a proper discount should in all of the circumstances be 50%.  We agree. 

18. The notional starting point for sentence adopted by the judge overall was one of 7 years.  A full 50% reduction from that notional starting point would result in a sentence of 3 years and 6 months. 

19. In addition to this ground of appeal Ms Chow has addressed other matters which she submits had resulted in a sentence which is manifestly excessive. 

20. She submits that the judge was in error is when he adopted the same starting point for this applicant as for D2 for Count 2, the theft from the caretaker and his wife.  It is said that because the applicant took no part in the actual detention of the caretaker and his wife and the taking of their valuables, he should not be dealt with in the same way as D2 who was then present and actually engaged.  We disagree.  The applicant’s role as lookout was critical to the success of the enterprise.  He is no less guilty given the circumstances of the execution of the gang’s plan by reason of this. 

21. As Mr Reading observes in his written submissions :

“The applicant’s role in this matter was no less than that of the other participants in the various crimes committed.  He had carried out a number of reconnaissance visits to the cemetery.  At the material night [sic] he was not required to do the ‘hard labour’ of digging the tomb.  He stayed in a van with Wong the alleged mastermind to give instruction to the others.  The van was stopped at the entrance of the cemetery, a location from which he and Wong could easily escape if things went wrong.  He was not a reluctant participants as he claimed.”

Each of the gang members had a role to play.  The applicant played his. 

22. Other than the ground of appeal which has been conceded by the respondent there is no merit in this application. 

23. However, as we have already indicated the total sentence imposed must be reduced to one of 3 years 6 months to reflect the assistance to the authorities the applicant has provided. 

24. To give effect to this, we propose to order that in respect of the sentence imposed on Count 2, the theft charge, 2 months of that sentence is ordered to be consecutive to the sentences imposed on Counts 3 and 4.  That results in a total sentence of 3 years and 6 months.  

25. Accordingly the appeal is allowed to that extent.