HKSAR v. MA CHIU SING

CACC 4/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 4 OF 2003

(ON APPEAL FROM HCCC 138 of 2002)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 17 August 2004, this court (differently constituted) gave judgment (see HKSAR v Ma Chiu-sing [2004] 2 HKLRD 974) setting out its reasons for quashing the applicant’s conviction on counts 3 and 4 of an indictment alleging that he unlawfully and maliciously attempted to administer to or cause to be taken by an unknown person a noxious substance, namely carbofuran, with intent to injure, aggrieve or annoy such person, contrary to section 23 of the Offences Against the Person Ordinance, Cap. 212 and section 159G of the Crimes Ordinance, Cap. 200.  The applicant had pleaded guilty to both these counts. 

2.  The same indictment contained 3 additional counts to which the applicant also pleaded guilty (counts 1, 2 and 5).  These alleged maliciously sending letters threatening to murder or kill unnamed persons, contrary to section 15 of the Offences Against the Person Ordinance. 

3.  The appeal relating to conviction on counts 3 and 4 came before this court by a somewhat circuitous route.  Originally, the applicant only applied for leave to appeal against sentence which amounted in all to 6 years and 8 months’ imprisonment on the 5 counts to which he had pleaded guilty.  However, it quickly became apparent that the applicant’s pleas of guilty to counts 3 and 4, which required proof of specific intent, could not be permitted to stand.  The mitigation, borne out by the Summary of Facts to which briefly we shall turn in due course, revealed that it was an integral part of the applicant’s case that he did not intend to cause harm to anyone, having issued warnings about what he had done and having identified the exact locations where contaminated food had been left.  Mr Grenville Cross, SC, DPP, then representing the respondent, duly conceded that the pleas of guilty to these counts had been entered in error.  His application for a retrial of those counts was refused on the ground that there was little prospect of conviction upon them.

4.  The court next turned its attention to sentence.  On counts 1, 2 and 5, on which the applicant had received concurrent sentences of 5 years’ imprisonment (contrary to the headnote in the report of this case at page 975A which is in error), this court, in the knowledge that the judge had taken 7½ years’ imprisonment as a starting point for each offence, adjusted the length of the applicant’s sentence by ordering partially consecutive sentences on counts 2 and 5 so that he was still left with a totality of 6 years and 8 months’ imprisonment to serve.  This was because, whilst the sentences for the section 23 offences in counts 3 and 4 for which the applicant had received concurrent terms of 1 year and 8 months’ imprisonment to run consecutively to the sentence of 5 years on the other counts had been quashed, the evidence on those counts was relevant to the ‘section 15’ counts (1, 2 and 5) and added to their gravity.  (It is to be observed that headnote (4) at page 975I is also in error as this court adopted a starting point for the section 15 offences of 7½ years’ imprisonment, not 7 years as stated).

5.  The matter now returns to this court as a renewal of an application for leave to appeal out of time against conviction.  This is confined to the conviction on count 5.  When the leave of the single judge was sought on 6 January 2005, that application was refused.

6.  The applicant, as we have indicated already, pleaded guilty to count 5 on his arraignment.  This occurred on 28 November 2002 and he was duly sentenced on 13 December 2002.  The applicant then applied for leave to appeal against sentence on 3 January 2003 which, again as we have indicated, led to the applicant making, at the court’s invitation, a late application for leave to appeal against conviction regarding counts 3 and 4.  This resulted in the judgment (above) given on 17 August 2004 which was in his favour on conviction but against him on sentence. 

7.  On 6 September 2004, over 1½ years after sentence was imposed following his pleas of guilty, the applicant applied for the first time for leave to appeal against conviction on count 5.  After leave had been refused by the single judge on 6 January 2005, the applicant renewed his application to this court on the following day.

The facts

8.  The background facts, taken from the Summary of Facts, are summarised in the earlier judgment concerning this case and there is no need to repeat them all.  In essence, the evidence revealed that the applicant, signing himself ‘HK Bin Laden’, sent identical letters to 3 newspaper offices indicating, as was in fact true, that he had put poison into a certain food product in a supermarket and threatening that, if certain members of the Government had not resigned within a month, no further warning would be given before ‘the next poisoning action’.  This would target other more general locations, perhaps killing countless people.  These letters, which enclosed a small sample of the poison he had used, ended with the threat that he was not to be underestimated or thought of as someone not having “enough guts” to do this.  The letter went on:

“	… if my demand cannot be met, I guarantee that I will plan the HK version of 9/11 …”

9.  The particulars of count 5 were that on 2 October 2001, the applicant, “maliciously, knowing the contents thereof, sent a letter to Apple Daily Co. Ltd, threatening to kill an unnamed person or persons”.  After the applicant had pleaded guilty, counsel confirmed that the plea accorded with the applicant’s instructions.  It was also in agreement with the admissions made by the applicant to the police when he was interviewed.  When the Summary of Facts was read out in court, the applicant was asked if he understood what had been said.  He replied that he both agreed with and understood the summary.

Ground of appeal

10.  In a series of 6 letters, the applicant has set out at length his ground of appeal.  It amounts to a complaint that by reference to the date in the 5^th count (2 October 2001) it is apparent that this related to sending a threatening letter by fax to the Apple Daily, as this was the date on which the newspaper company received such a fax.  However, it is the applicant’s case that he sent a letter by ordinary mail on the same day, namely 27 or 28 September 2001, as the threatening letters which were sent by him to two other newspapers.  The precise terms of this ground read as follows:

“	Due to serious negligence, the trial judge failed to notice from the video interview that I had made it clear that the letter was posted to Apple Daily.  The details were clearly stated in the Summary of Facts.  “He had posted these to the offices of Oriental Daily News, Sing Tao Daily and Apple Daily.”  The (content of the) charge laid against me, (namely), sending fax to Apple Daily is different from what I said in the summary.
	On the one hand, it was shown in the Summary of Facts that it was Apple Daily that I posted the letter to; on the other hand, I pleaded guilty to the charge of sending fax to Apple Daily.  However, the trial judge was not aware of the problem.  He should first ask for clarification from the prosecution before he could pass the right and appropriate sentence.
	Since I did send letter of threat to Apple Daily, I did not wish to raise defence by quibbling over the issue whether it was sent by mail or fax.  It was to avoid making the judge angry and thus resulting in a severe sentence.  As a result, I pleaded guilty.  The police officers handling this case were well aware of the fact that I did not send any fax to Apple Daily.  In order to lay a charge against me, that group of police officers concealed the evidence so as to get me prosecuted.  (This is because it would be difficult to charge me with sending letter of threat to Apple Daily if Apple Daily did not receive any.)
	For the sake of my interest and justice, I now make an application for appeal out of time against conviction.”

11.  In an affirmation seeking to explain why he was out of time for making this application, the applicant stated:

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Now I have understood that the judge of a court should deal with a case in a clear and fair approach.  After thorough consideration, I reckon that it is necessary to have the truth clarified so as not to let that group of law-violating police officers have their way.  One ought to admit what he has done, and is not supposed to admit what he did not do.  It is not alright to admit what I did not do.  Therefore, although it is out of time, I am making this application to lodge an appeal against conviction in accordance with the principle of justice.  In addition, the trial judge was indeed negligent.  He accepted my wrong plea of guilty without considering carefully the doubt of the case.”

It goes almost without saying that this explanation provides no excuse for the lateness of this application.

12.  The applicant’s letters, taken together, give rise to an application which is nothing short of impertinent.  What they amount to is a statement in terms by the applicant that he sent a letter to Apple Daily threatening to murder or kill.  However, he has now decided that he has a defence to count 5 because, although he sent such a letter through the mail, he never sent an identical copy of it by fax on 2 October 2001.  In the process and for good measure, the applicant has chosen to accuse the judge and the police of dereliction of their duties.

Conclusion

13.  Leaving aside (in the absence of legal argument on the applicant’s behalf) the question as to whether this court has jurisdiction to entertain this application (see: R v Pinfold [1988] 1 QB 462), there having already been an appeal against conviction in this case, there is in any event no merit or substance whatever to the application.

14.  The applicant pleaded guilty and admitted the facts.  There was nothing equivocal about the plea.  The Summary of Facts admitted by the applicant states that as well as contaminating foodstuffs in supermarkets situated at Sham Shui Po and in Central, he typed out the threatening letters, printed them, and then placed each of them in an envelope together with a sample of the insecticide he had bought in Zhuhai and had used to contaminate foodstuffs.  The allegation that the applicant had sent the letter to Apple Daily was plainly proved and admitted.  Whether this was done by fax or by post or, more likely, both, was in the present circumstances neither here nor there.  The date in count 5 was an immaterial averment.

15.  The application, being bereft of merit, is dismissed.

16.  Having given the applicant an opportunity to address us about the propriety of an order for loss of time in the present circumstances, we have concluded that this is precisely the kind of case to which section 83W of the Criminal Procedure Ordinance, Cap. 221, was intended to apply.  We make an order that 3 months of the time which the applicant has spent in custody pending the hearing of this application shall not count towards the sentence which he is presently serving.