HKSAR v. MA CHIU SING

CACC4/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 4 OF 2003

(ON APPEAL FROM HCCC NO. 138 OF 2002)

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1. On 13 December 2002, the Applicant was convicted on his plea before Pang J on 3 counts of maliciously sending letters threatening to kill unnamed persons, contrary to s. 15 of the Offences against the Person Ordinance, Cap.212 (charges 1, 2 and 5 on the indictment) and on 2 counts of attempting, unlawfully and maliciously, 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 s. 23 of the Offences against the Person Ordinance (charges 3 and 4). The same day, the Applicant was sentenced to 5 years for each of the three s. 15 offences (the sentences to run concurrently) and 1 year 8 months each for the two s. 23 offences (these 2 sentences also to run concurrently). The 2 sets of sentences were, however, ordered to run consecutively so that in total, the Applicant was sentenced to 6 years 8 months imprisonment.

2. The facts surrounding the 2 sets of offences were contained in the Prosecution's Summary of Facts which were agreed by the Applicant. In brief, they were as follows :-

(1) At about midday on 28 September 2001, the police received a telephone call from the Applicant in which he said he had put poison into some packets of Maggi instant cup noodles at a Wellcome Supermarket on Lai Chi Kok Road. The police were told to find these cup noodles otherwise the poison would kill people. Upon investigation by police officers, no instant noodle packets or cups were found displayed but instead, there were other Maggi cup foods on sale, all of which were removed out of caution. After examination, it was discovered that one of the cup foods did contain poison, namely 14 mg of carbofuran. Carbofuran is used as an agricultural pesticide. Once taken by humans beyond acceptable limits, it might cause, depending on the dosage of intake, headaches, dizziness, blurred vision, abdominal cramps, vomiting, sweating, diarrhoea, breathing difficulties, convulsions, comas or even death. The acceptable intake of carbofuran in humans is approximately between 0 to 0.002 mg per kilogramme of body weight. The amount of carbofuran found in the cup food was therefore very harmful if consumed by humans. These facts formed the basis for the first of the 2 charges under s. 23 (charge 3).

(2) On the same day (that is 28 September 2001), the General Affairs Manager of the Oriental Press Group received a letter contained in an envelope with the postmark of the day before. The envelope was marked urgent. The letter which was in Chinese was written by the Applicant and signed using the name "HK Bin Laden". The letter stated (the following is a certified translation) : -

"Final Warning to TUNG Chee-hwa, the Sinner through the Ages

I have already put poison in the food in the supermarket. Since this time, (it) is only a warning, therefore, I would make a report to the police myself to tell them the location of the poisoned food. However, if the Sinner(s) through the Ages, TUNG Chee-hwa, LEUNG Oi-see, LEUNG Kam-chung, TSANG Yam-kuen, and TSANG Yuk-shing, who calls a stag a horse and who calls black white, of the Democratic Alliance for Betterment of HK which helps the tyrant to do evil, and

CHAN Yuen-han who loves the Communists/ Communism but/and betrays Hong Kong, if the above rubbish who have brought calamity to Hong Kong and the people of Hong Kong fail to step down within one month, no notice will be given next time when poison is administered. And the poison used will not be the kid's stuff like this time. The locations of the poisoning next time may be in restaurant(s), may be the water heater in canteens, and etc.

Don't ever think that (you) can catch me. Do you think you can post a cop permanently in all the places (?) Furthermore, I will wait for the suitable location, the proper time and the right opportunity before I do the poisoning. One person, ten persons, or one hundred persons may be killed next time. However, when compared with the serious fact that there are people committing suicide everyday under the rule of TUNG Chee-hwa, it is only a small thing. I love Hong Kong, seeing that Hong Kong is doomed to die under the control of this group of people, I have no choice but to take this action. If the above (named) group still has scruples, (they) should step down at once in order to save Hong Kong.

Don't underestimate my ability and the poison (I) possess, and don't ever think that I don't have enough guts to do so, if my demand cannot be met, I guarantee that I will plan the HK version of 9/11, so that the international community will know that the people of HK are so dissatisfied with TUNG Chee-hwa, the Sinner through the Ages, that the accusation has to be made in blood.

Please find attached one pack of 'Kid's stuff' Poison.

Hong Kong is my home I love Hong Kong

HK Bin Laden"

(3) This letter formed the basis for the first of the 3 charges under s. 15 (charge 1). A similar letter was received by the Sing Tao Daily on 28 September 2001 and a fax in those terms was also received by the Apple Daily on 2 October 2001. The latter 2 incidents were the subject matter of the remaining charges under s. 15 (charges 2 and 5).

(4) On 1 October 2001, a journalist at the Oriental Daily received a telephone call from the Applicant, who identified himself as the person who had poisoned some instant cup foods at a Wellcome Supermarket on 28 September 2001. The journalist was told of the Applicant's annoyance that his previous acts had not received the high profile he had expected. He said the purpose of his acts was to air the grievances he held against the Chief Executive. Later that day, in another call to the same journalist, the Applicant stated that he had contaminated a bottle or jar of Cadbury's Chocolate Powder, located again at a Wellcome Supermarket but this time at the store on Queen's Road Central. He wanted the journalist to report this latest threat.

(5) Upon investigation at the supermarket, it was discovered that one of the jars of chocolate contained traces of carbofuran. The amount of that substance was 27 mg. This constituted the basis for the second of the s. 23 charges (charge 4).

(6) After the Applicant was arrested on 2 October following police investigations tracing the calls made by him, he was interviewed under caution. In the video-recorded interviews, the Applicant said the following :-

(a) The reason for poisoning the cup food and the chocolate powder was to bring pressure on the Chief Executive, senior Government officials and certain high profile politicians to resign. He believed that things would improve in Hong Kong if those persons did that.

(b) In the case of the cup food, the Applicant placed the cup in the innermost part of the display shelf in the supermarket and covered it up with other foods because he was worried that someone might actually purchase the contaminated food and consume it.

3. Initially, the Applicant sought leave only to appeal against sentence. However, following the first hearing of the application for leave to appeal against sentence at which this Court questioned the equivocality of the Applicant's plea to the s. 23 charges, the Applicant now seeks leave to appeal out of time against the 2 convictions under s. 23. The reason for saying that the Applicant's pleas to the s. 23 charges should be reversed was that it was an integral part of his case that he did not intend to cause harm to anyone. After all, he had given warnings and even identified the exact location of the contaminated foods.

4. It was explained to us the reason why the Applicant pleaded guilty to the two s. 23 charges in the first place was that he was advised that the necessary mental element in the crime of attempting to commit an offence under s. 23 could be established by showing mere recklessness. This is conceded by Mr Grenville Cross, SC, DPP to be erroneous. The necessary mens rea in establishing an attempt to commit a crime is the same as that required for the full offence. In the context of an offence under s. 23 of the Offences against the Person Ordinance, it is therefore necessary for the prosecution to prove an intention on the part of the accused to injure, aggrieve or annoy a person to whom a poison or other noxious substance has been unlawfully and maliciously administered or by whom a poison or noxious substance had been taken. It is insufficient simply to prove recklessness on the accused's part.

5. As we have noted, the Applicant's case was that he had not intended to harm anyone even though he had placed contaminated foodstuffs in supermarkets that could have been purchased by anyone. This, if true, would have been insufficient to found the necessary mens rea for an offence under s. 23. His plea was therefore wrongly entered and we are satisfied that it should now be reversed.

6. Mr Cross, while accepting that the conviction for the s. 23 offences should be quashed, nevertheless contended that a retrial should be ordered. We see little point in this. While the offences charged under this section undoubtedly involved serious and dangerous acts on the Applicant's part, the facts as contained in the prosecution's Summary of Facts (as admitted by the Applicant) cannot in our view give rise to any reasonable prospect of a conviction, or to put it in another way, a conviction on a retrial would be improbable (see Archbold Hong Kong 2004 at paragraph 4-19). The facts objectively demonstrate, at least there is a reasonable doubt, that the Applicant did not have the requisite mens rea for a s. 23 offence to be established. As we have said, recklessness is insufficient.

7. In the circumstances, we therefore allow the Applicant's leave to appeal against conviction out of time, and treating the present hearing as the hearing of the appeal proper, we allow the appeal and quash the convictions under s. 23 of the Offences against the Person Ordinance (charges 3 and 4).

8. We now turn to the Applicant's application for leave to appeal against sentence for the three s. 15 offences.

9. Here, it was essentially submitted by Mr Paul Wu for the Applicant that : -

(1) All the Applicant did was to air his grievances and complaints against the Chief Executive and the Hong Kong Government, albeit in an improper manner. After all, he did say he loved Hong Kong. The Applicant had acted out of sheer stupidity, rather than out of any malice.

(2) The amounts of poison placed in the cup food and the chocolate powder were not lethal doses and anyone who consumed the contaminated food could expect to recover after treatment.

(3) The Applicant did not intend to harm anyone, hence his warnings. Although he did refer in his letters to serious threats, he did not carry them out. The threatening expressions used in the letters were "mere puffs" (as Mr Wu described them).

(4) Prior to his convictions for these offences, the Applicant had led a blameless life, was of exemplary character and had even rendered community service.

(5) Overall, the sentence of 6 years 8 months was manifestly excessive.

10. These submissions no doubt applied to both sets of offences but as we shall presently explain, although the sentences imposed for the s. 23 offences are now to be discarded, the facts that formed the basis for those offences are relevant in this context.

11. In our view, the seriousness of the s. 15 offences is such as to merit a heavy sentence, certainly at the upper end of the scale (10 years imprisonment being the maximum period of imprisonment). The 2 letters and fax were sent to the 3 largest circulation newspapers in Hong Kong and intended by the Applicant to stir up the public's awareness of the cause which he was advancing. This cause had apparently as its objective the resignation of the Chief Executive, top Government officials and other political figures. The method of advancing the Applicant's cause was to threaten the people of Hong Kong with acts of poisoning, not just using the "kid's stuff" that he had used in the case of the cup food and chocolate powder. Furthermore, the poisoning would occur in less easily detectable locations such as restaurants or the water systems of canteens, and no warnings would be given in future. The threats contained in the letters were intended to be taken seriously if his demands were not met. The words "I guarantee that I will plan the Hong Kong version of 9/11", together with the way the Applicant signed off referring to himself as "HK Bin Laden", if these had been published to the public as the Applicant intended, would have sent a chill throughout Hong Kong never previously experienced. This was, to put it in proper perspective, akin to a threat of terrorism. To say that this was not intended is to fly in the face of the contents of the letters. And, it ought to be remembered, there actually were significant amounts of poison in the cup food and chocolate found in the supermarket. The Applicant's threats were therefore serious and he did intend to harm people unless his demands were met. "Harm" is perhaps an understatement as the Applicant used the word "kill" in his letters. Neither the terms of the letter nor his actions indicate that he was making "mere puffs".

12. The Applicant did not give himself up. It was, as the judge noted, only through the responsible and efficient way that the matter was handled by the management of the Oriental Daily and the Apple Daily that enabled the police to act swiftly and decisively to arrest the Applicant. We shudder at what might have happened if the police had been unable to arrest the Applicant so quickly. The Applicant's previous good character have to be seen against what he did and said in the present case and the very real threats that he posed.

13. In sentencing the Applicant for the three s. 23 offences, the judge used a starting point of 7 1/2 years for each offence, reducing it by one-third to reflect the plea of guilty. He then ordered the sentences to be served concurrently despite being of the view that they were really separate offences. He did so owing to the totality principle (meaning that he took into account the 20-month concurrent sentences passed for the s. 23 offences).

14. We would not disturb the starting point of 7 1/2 years for each of the offences. However, the 3 offences were indeed separate offences since each of the letters and the fax was directed to different newspapers, with the contents intended by the Applicant to be disseminated to the different subscribers of those publications. As we have said, the overall sentence imposed by the judge included the s. 23 offences. Although these offences are now to be discarded, the facts surrounding them are relevant to sentencing for the s. 15 offences. Apart from anything else, they underlined just how seriously the Applicant's threats were to be taken.

15. Accordingly, we take as a starting point a sentence of 7 1/2 years for each offence, reduced to 5 years for the pleas of guilty. However, we order that the terms of imprisonment for the 2nd and 5th charges to be made consecutive to the term of 5 years for the 1st charge to the extent of 10 months apiece. This means that in total, the Applicant is sentenced to a term of 6 years 8 months imprisonment. In our view, this reflects the correct totality of the sentence in the present case.

16. We therefore formally order that the application for leave to appeal against sentence is dismissed but, exercising the power under section 83B of the Criminal Procedure Ordinance, Cap.221, we substitute the concurrent sentences of 5 years for the three s. 15 offences (charges 1, 2 and 5) with part consecutive and part concurrent terms amounting to 6 years 8 months. This coincidence with the overall sentence imposed by the judge is deliberate. If original sentencing had been left to us, the overall sentence might well have been higher and the Applicant can perhaps consider himself fortunate in this regard.