HKSAR v. LUK CHI KAN

CACC 273 /2021, [2024] HKCA 802

On Appeal From [2022] HKCFI 83

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 273 OF 2021

(ON APPEAL FROM HCCC NO 366 OF 2020)

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J U D G M E N T

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

1.  With leave of the Single Judge granted on 23 November 2023[1], the appellant appeals against his sentence of 9 years and 9 months’ imprisonment passed on 9 November 2021, having confirmed, before Andrew Chan J (“the judge”), his plea of guilty to a single charge of throwing corrosive fluid with intent, contrary to section 29(c) of the Offences against the Person Ordinance, Cap 212.

2.  Given that it is the common position of the parties that the appellant’s sentence should be reduced on the basis that his assistance to the authorities has been of practical use, the remaining question, should we agree with that position, is what discount is appropriate. 

The facts

3.  Ms Ho Mei-yan (“Ho”) was married to the victim (“PW1”) but had an extramarital relationship with the appellant.  She in turn suspected that PW1 was also having an extramarital affair and sought to take revenge on him^[2]. At 4 pm on 27 November 2019, she made a telephone call to the appellant, and sent him a photograph of PW1, instructing him to buy some drainage cleaner to throw at PW1^[3]. At 9:20 pm on the same day, Ho informed the appellant that PW1 was driving home and asked him to “do the job”^[4].  Accordingly, the appellant lay in wait for PW1 downstairs of his home in Tseung Kwan O and, upon seeing him, did as instructed and threw a paper cup of sulphuric acid at PW1.  This action caused PW1, as he later described, “excruciating pain on his head, face and body”. 

4.  The appellant then left the scene, whilst PW1 was admitted to the Accident and Emergency Department of Tseung Kwan O Hospital^[5]. He was found to have suffered 3% full thickness and 3% partial thickness chemical burns to 6% of his total body surface, which required multiple surgical interventions in respect of burns to his face, neck, upper body and the corneas of both eyes.  PW1 underwent amniotic membrane grafting to his left eye in December 2019 and August 2020.  The vision in his right eye has normalised following surgery, but his right eye is still affected.  He has a contracture of his left nostril, which has affected his breathing, while scars on his neck have limited its extension and rotation.  He was hospitalised for 30 days^[6], since when he has suffered severe depression and post-traumatic syndrome^[7], which will require long-term and persistent psychological and psychiatric treatment.

The sentence

5.  The appellant was 31 years of age at the time of sentence and had a clear criminal record.  By reference to this Court’s decision in HKSAR v Lau Ching Him^[8], the judge adopted a starting point of 15 years’ imprisonment, which he reduced by one-third for the appellant’s plea of guilty to 10 years’ imprisonment.  He then accorded the appellant a further reduction of 3 months for his voluntary surrender to the police.  The ultimate sentence thereby became 9 years and 9 months’ imprisonment.  It is against that sentence the appellant now appeals.

The appellant’s assistance

6.  It is not disputed by the parties that:

(a)  When surrendering to the police on 29 November 2019, the appellant frankly admitted what he did, but claimed that he was acting on the instructions of Ho.  In a subsequent video-recorded interview, he gave a detailed account of those instructions^[9].

(b)  The appellant provided a non-prejudicial statement on 1 February 2021 implicating Ho in respect of her involvement in the same offence^[10]. A copy of the statement has been produced to us by Mr Beel, who acts on behalf of the appellant at this appeal.  We note from that statement that, on 29 November 2019, Ho called the appellant to try to stop him from surrendering to the police, admitting in their conversation that she was the mastermind of the incident.  The conversation was recorded on the appellant’s mobile telephone, and was provided to the police^[11]. Regarding the statement itself, it was considered by the prosecution to be truthful, useful and reliable, as a result of which an identical charge was laid against Ho (in the case of HCCC 83/2022^[12]).

(c)  Ho initially pleaded not guilty and was committed for trial to the High Court.  A case management hearing was accordingly fixed, and the trial of Ho duly set down, with the appellant named on the list of prosecution witnesses^[13].

(d)  The appellant had throughout maintained his willingness to testify against Ho at her trial^[14].

(e)  Nine days before the commencement of trial, Ho indicated that she would plead guilty^[15].

(f)  On 23 February 2023, Ho was convicted on her own plea and sentenced to 10 years and 8 months’ imprisonment by Recorder Maggie Wong SC^[16].

The parties’ position

7.  For present purpose, no argument is made of the starting point of 15 years’ imprisonment.  Mr Beel submits that, in view of his cooperation with the authorities, the appellant is entitled to a sentencing discount above the customary one-third for plea^[17].  For his part, Mr Leung, on behalf of the respondent, accepts that the appropriate range of discount should be between 40% and 50%.  Both counsel have referred to Z v HKSAR^[18] and HKSAR v Lo Sze Tung Stephanie^[19]in support of their respective positions.  Mr Leung accepts that at the time the appellant surrendered to the police, the police did not know of his identity.

Discussion

8.  Z v HKSAR is an important authority on discounts for assistance to the authorities, approving the various maximum discounts of 40%, 50% and 66.6%, depending on the level of assistance provided in a particular case.  In Lo Sze Tung Stephanie, the specific categories of assistance, which were said to attract discount ranges of 33.3% to 40% and 40% to 50%, were further explained.  In respect of the discount range of 40% to 50%, into which the present case falls, the Court stated at [64] that:

“From our analysis of the authorities we are satisfied within the 40%-50% discount range there is a category of cases relating to a defendant who has offered to testify for the prosecution but whose offer has not been taken up because of some supervening event beyond the defendant’s control. The existence of such a category not only ensures fairness and justice in the sentencing process, it also provides support to the underlying policy of the courts by encouraging cooperating defendants to become more than just an informant. After all, convictions are obtained through evidence, not information, and not too infrequently the cooperating defendant will be the only source of that evidence.”

9.  Whilst the facts of Lo Sze Tung Stephanie were more concerned with the applicant’s assistance in a controlled delivery dangerous drugs operation (successfully resulting in another defendant being caught red-handed), the five authorities to which the Court referred in Lo Sze Tung Stephanie at [56]-[63] involved applicants (as with the present appellant) giving non-prejudicial statements against other persons and pleading guilty to the charges against themselves, although their promise to testify for the prosecution was rendered unnecessary because of events beyond their control.  The approved discounts in those authorities (from lowest to the highest) were as follows:

(i)    HKSAR v Herrera Jhorman^[20] – 40.5%

(ii)   R v Yan Im Kun^[21] – 44.4%.

(iii)  HKSAR v Ng Shek Yu^[22] – 45%.

(iv)  HKSAR v Yau Kwok Yin^[23] – 45%.

(v)   HKSAR v Tso Kin Hong & Anor^[24] – 46%.

10.  The Court in Lo Sze Tung Stephanie also noted, at [63], that, in the case of Herrera Jhorman, “[t]he lower discount appears to have flowed from the Court of Appeal’s assessment of the value of the applicant’s assistance”.

11.  On the other hand, in Tso Kin Hong,the two appellant spleaded guilty to robbery charges and rendered assistance to the authorities in relation to another member of the gang.  After they had each given non-prejudicial statements implicating him in the robberies, the defendant pleaded guilty, as a result of which the prosecution was not required to call the appellants to testify in court.  It may be noted that the Court described the discount of 46% in those circumstances as “generous”.

12.  We have also had drawn to our attention the case of HKSAR v Ng Chi Ming^[25]. There, the applicant received a sentence of 13 years and 4 months for his conviction of trafficking, the starting point of which was 26 years’ imprisonment, reduced by one-third to reflect his guilty plea, and by a further 4 years to reflect his offer to testify against his co-accused who eventually pleaded guilty.  The reduction in sentence thereby became 49% from the starting point.  In upholding such sentence, the Court said (at [14]) that:

“The Applicant's offer to give evidence against his co-accused remained an executory promise, which he was not called upon to perform. Though, in fairness to him, we acknowledge that this was because of reasons beyond his control. We have no doubt that the possibility he would testify against his co-accused was one of the reasons which caused that man to plead guilty upon his arraignment. Given the limited degree and quality of his assistance to the authorities the Applicant, in our view, received a very generous discount of a further four years’ imprisonment in addition to the full one-third discount given to reflect his pleas of guilty.” (Emphasis added)

13.  The cases of Tso Kin Hong and Ng Chi Ming were subsequently considered by the Chinese division of this Court (Kwan JA and Chu JA, as the two Vice-Presidents then were) in HKSAR v Luk Chi Yan Adison^[26].  There, the applicant pleaded guilty to the trafficking charges laid against her and gave a non-prejudicial statement implicating the second defendant who, as a result, also pleaded guilty to the trafficking charges laid against him.  The Court allowed the appeal and awarded her a discount of 45%.

14.  In the present case, we are satisfied that the appellant has provided useful assistance to the police by implicating the very person who orchestrated his throwing of the sulphuric acid at Ho’s husband, and is entitled to a further discount on his sentence.  We have no doubt that the assistance provided by the appellant has led to Ho’s decision to plead guilty (albeit at a rather late stage), and her eventual conviction.  In our judgment, the appellant should be given a discount of 45%. 

15.  There has been no complaint about the starting point of 15 years’ imprisonment, which we are prepared to adopt.  Giving the appellant a 45% discount from the sentence after trial would produce a sentence of 8 years and 3 months’ imprisonment. 

16.  We have invited submissions as to whether the further 3 months’ discount ordered by the judge in the exercise of his discretion to reflect the appellant’s voluntary surrender to the police should be subsumed in the 45% discount for assisting the authorities, or whether it should be regarded as a separate matter warranting a specific additional discount.  We consider that the extra discount addresses the issue of a defendant owning up to his own misdeeds and turning himself into the police, which is something to be encouraged; while the 45% discount addresses identifying, and being prepared to give evidence against, the person who instigated the offence, which was of significant assistance to the authorities.  In this case, the appellant’s recording of Ho’s ‘confession’ in a telephone call when he was about to hand himself into the police was plainly instrumental in making her change her mind and plead guilty to the offence.

17.  The actual discount for someone who surrenders himself to police is, as was made clear in HKSAR v Chow Tak Fuk[27], “always a contextual question”.  The Court went on to explain[28]:

“Thus, for example, surrender by a person whose participation in an offence may not otherwise have come to light would be a significant mitigating factor indeed; much more so than surrender of an arrested person after he has absconded, and even in the latter case the circumstances behind that surrender will vary from case to case. Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse a position than had they not fled in the first place.”

18.  In the present case, the police did not know the identity of the person who had attacked PW1 and we accept that the appellant was driven by remorse to hand himself in to the police.  We shall honour the further 3 months’ reduction given by the judge, which we think is a correct quantification of the appropriate discount in the circumstances.

Disposition

19.  Accordingly, we allow the appeal and reduce the sentence from 9 years and 9 months’ imprisonment to one of 8 years’ imprisonment.