HKSAR v. MA SHUN-YICK

CACC 145/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 145 OF 2011

(On Appeal From HCCC NO. 144 of 2010)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1. The applicants seek leave to appeal against the sentences of imprisonment, imposed upon them by Beeson J on different occasions, in respect of a count of conspiracy to throw corrosive fluid, namely sulphuric acid, with intent to do grievous bodily harm at or upon Mr Neil Mitchell, contrary to sections 159A and 159C of the Crimes Ordinance and section 29(c) of the Offences Against the Person Ordinance. At the hearing of the applications we reserved our judgment, which we deliver now.

2. All the applicants pleaded guilty to a single count of conspiracy to throw corrosive fluid.  Ma Shun Yick, Jacky pleaded guilty on 29 October 2010 in the Magistracy and, having been committed for sentence to the High Court, was sentenced on 1 April 2011.  Kay Sik Hong, Billy 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, in which a challenge was made in a voir dire to the admissibility of alleged admissions by them and two co-defendants, but before the ruling, each of them pleaded guilty when re-arraigned.

3. Kay Sik Hong, Billy seeks leave to appeal against a sentence of 11 years’ imprisonment imposed upon him on 1 April 2011.  Lam Wai Sai seeks leave to appeal out of time the sentence of 10 years’ imprisonment imposed upon him on 31 March 2011.  Lai Kwok Leung seeks leave to appeal against the sentence of 12 years’ imprisonment imposed upon him on 31 March 2011.  Ma Shun Yick, Jacky seeks leave to appeal out of time the sentence of 11 years’ imprisonment imposed on him on 1 April 2011.

4. In a non-prejudicial statement, dated 7 March 2011, Ma Shun Yick, Jacky had implicated Wun Shu Fai as a co-conspirator.  In April 2012, he identified him at an identification parade.  Since the prosecution was willing to call him as a witness in the prospective trial of the recently re-arrested Wun Shu Fai, and the former was willing to give evidence for the prosecution, Mr Marray asked that the hearing of the application be adjourned pending the trial of Wun Shu Fai.  There being no objection from the respondent, we granted the application.

THE FACTS

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

6. Each of the applicants accepted as the basis for his plea of guilty being accepted by the court a description of the factual circumstances in which the offence had occurred, of which the judge’s summary of the facts in sentencing Lam Wai Sai and Lai Kwok Leung is representative.^[1]

“ On 27 October 2009, the victim of this case, Mr Neil Mitchell, a barrister, was prosecuting on fiat in the District Court in District Court Case 84 of 2008, the defendant being Kong Hon-yui, Kevin. The trial had already commenced. On 27 October 2011, when the court adjourned for lunch at about 1 o’clock, the victim made his way down the external stairs from the court building, intending to cross Harbour Road towards the Grand Hyatt Hotel. As he reached pavement level, a man with a paper cup containing fluid ran up to the victim from behind and to his right, and threw the liquid into his face. Having done so, the attacker ran to the right of Harbour Road and disappeared.

The victim tried to remove the liquid from his face and clothing, but as he did so, another man ran past and threw more fluid at the victim, but this time the fluid landed only on the victim’s clothing. Almost immediately on contact with the first lot of fluid, the victim felt a severe burning sensation in his left eye and mouth area. He went back into the court building to seek help and doused his face with water to relieve the pain and damage. He was later transported to Ruttonjee Hospital, where Dr Wong Mei-kam examined him.

The victim was found to have corrosive injuries to the left eye, left ear and cheek. He had corneal haziness with severe chemical trauma and mild generalised redness over the face, including the lips. Treatment was continuous irrigation, and the victim was transferred to the specialised eye clinic at the Pamela Youde Nethersole Eastern Hospital. There, Dr Yiu Man-kit, on examination, found that the victim had an alkaline chemically-induced injury to the left ocular surface, left ear and cheek. There was evidence of pH 7.5 to 8 in the primary area of injury. The left eye suffered conjunctival damage, with a grossly oedematous Lasek flap with the presence of dark particles in the inferior fornice.

Continuous irrigation treatment was maintained.  During treatment, the Lasek flap was found to be dislodged and broken.  The victim was admitted to the specialist ward, and 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.”

  REASONS FOR SENTENCE

7.  In her reasons for sentence in respect of each of the applicants the judge considered various judgments of this court relevant to a determination of the appropriate starting point for sentence.  She said:^[2]

“ 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.”

The role of Kay Sik Hong, Billy

8.  Of the role of Kay Sik Hong, Billy, whom she described as the 1^st defendant, in the commission of the offence, the judge noted that after his arrest on 21 December 2009 he had made various admissions, namely that:^[3]

“  ..he had been recruited in middle of October 2009 by “Ah Ki” on behalf of another person, a lawyer, to carry out an attack on a person connected with a court case.  He was to be paid $30,000 for his role in carrying out the attack.  On 18 October 2009 he telephoned Ah Ki and was told the identity of the intended target and he received $3,000 as a deposit against his payment.

On 19 October, together with Ah Ki, he went to the area around the District Court and Shui On Centre.  Ah Ki showed him a bottle of black liquid concealed in a garden and told the defendant that was a mixture prepared by “Kit Chai”.  On that day the 1^st defendant was introduced to two men and told by Ah Ki that they were “our people”.  Their attempts to locate the victim at his office in Duddell Street in Central were not successful.

On 20 October 2009, directed by Ah Ki, the defendants went back to the District Court and up to the 28th Court notice board.  There the defendant saw the chosen victim walk to the vicinity of the same notice board.  He telephoned Ah Ki who said that Kit Chai was the contact person and he would call the 1^st defendant later.  Kit Chai did telephone and told the 1^st defendant not to delay the attack any further.  The defendant went into the court room and saw the victim and the defendant of the case that was being tried in the District Court and he also saw a man he had met in connection with the incident earlier in the vicinity of the court and also entering the court.  Soon afterwards the defendant in DCCC 84/2008 walked past him and told him to hurry up or he, the defendant in that case, would go to jail.  Later the same day there was further discussion between the defendant and Ah Ki about that defendant.

On 23 October 2009, having expressed his reluctance to take part in the assault to Ah Ki and Kit Chai and associates of the defendant, Jacky Ma Shun-yick offered to find a replacement for him and he, the 1^st defendant, offered to return the $30,000 he had received.

On 26 October 2009, Ah Ki and the 1^st defendant arranged the attack for 27 October 2009.  The 1^st defendant met Ah Ki and they arrived at the court soon after 9 am.  In the park near the court the 1^st defendant was introduced to “Ah Ho” and “Ah Wai” who appeared to be associates of Jacky Ma.  Ah Ki telephoned the 1^st defendant to tell him where the bottle of black liquid was in the garden.  Ah Ho located the bottle and when the liquid was stirred with a stick, the 1^st defendant saw smoke being emitted from the bottle.

At about 1 pm the 1^st defendant saw Ah Ho run up to the victim and throw the liquid at him.  The victim fell down and sat on the steps.  The 1^st defendant then left the scene with Ah Ho and the others, running towards the Wanchai Fire Station. Later, the 1^st defendant said he heard that the victim had not been injured badly enough and he had been able to continue with the case.  He said he did not receive any reward or make any profit from the conspiracy.”

9.  Although the judge noted that Kay Sik Hong, Billy had telephoned Wanchai Police Station on 2 November 2009 and identified the principal culprits involved in the attack, the judge observed:^[4]

“ ..it is not accepted by the prosecution that his information was what led to the arrest of the group of defendants. He has, however, made a non-prejudicial statement and was to be used by the prosecution to give evidence at the trial of the co-defendants. He offered to give evidence against the instigator if and when charges were laid against the instigator.” [Italics added.]

10.  The judge accepted the submission made on behalf of Kay Sik Hong, Billy that his role was less than that of the person she described as the ‘instigator’ of the conspiracy but, nevertheless, determined;^[5]

“ from the facts it is clear that he took a major and active role in the organising of the incident.”

The antecedents of Kay Sik Hong, Billy

11.  The judge noted that Kay Sik Hong, Billy was 44 years of age at the time of sentencing and that he had “a lengthy and very serious criminal record”.  In 1994, he had been sentenced in the High Court in respect of no fewer than seven counts of robbery; six counts of possession of a firearm; two counts of discharging a firearm and three counts of wounding with intent.  He had been sentenced to lengthy terms of imprisonment for all the offences including 18 years’ imprisonment for one of the counts of wounding with intent.  Of that the judge observed,“..(he) cannot have been out of prison for a very long period before he took part in the present offences.”[6]

The role ofLam Wai-Sai

12.  Of the role of Lam Wai-Sai in the commission of the offence, the judge said that after his arrest on 21 December 2009, he too had made admissions under caution. She noted that:^[7]

“ ..he had been recruited by one Pau Yu-wai on behalf of “Ah Ki”, who was a friend of D1’s. He was offered $10,000 reward to participate in what he believed was the “splashing” of someone at the District Court, but he received only $2,500. His task was to act as a lookout to warn other conspirators if police officers were in the area when the attack was about to occur.

On the morning of the day of the attack, (Lam Wai-sai) met “Ah Ki”, who gave him a paper cup which he was told contained dirty water. The liquid was blackish in colour and had a strong smell. (Lam Wai-sai) believed that other members of the group were going to use corrosive fluid in the attack. Eventually, he saw an expatriate man being followed by “Ah Ki”, who identified that man as the target.

The target left the lift lobby of the court, and (Lam Wai-sai) was walking directly behind him.  Soon after that, the 1^st defendant saw another man throw fluid from a paper cup at the target. He became scared and ran away.  A second man was seen to throw a dark-coloured liquid at the target after the first throw, and (Lam Wai-sai) ran from the scene in the direction of the Wanchai Fire Station, and took a taxi home.”

13.  Of the role of Lam Wai Sai, the judge determined:^[8]

“ I do accept that he was not a mastermind, but I do not accept that he was used by other people, nor do I accept that he is so naive as to believe that what he was given to throw was dirty water.”

The antecedents of Lam Wai-sai

14.  The judge noted that Lam Wai-sai was 21 years of age at the time of sentencing.  In August 2006, he had been sentenced to a total of 6 years and 4 months’ imprisonment for offences of manslaughter, preventing the burial of a corpse, and assault occasioning actual bodily harm.  In June 2008, he had been sentenced to 4 months’ imprisonment, ordered to be served consecutively to the sentences he was already serving, for assault occasioning actual bodily harm.  He had been released from prison in January 2009.^[9]

The role of Lai Kwok Leung

15.  Of the role of Lai Kwok Leung in the commission of the offence, the judge noted that after his arrest on 22 December 2009 he had made admissions under caution. She noted that he said:^[10]

“  ..he had been approached by a co-conspirator, “Ah Billy”….(Kay Sik Hong)… and was asked if he could help that person earn some money.  Later, somebody called “Ah Kit” contacted him and said he wanted someone to be chopped.  This defendant referred the request to “Ah Billy”. Later, (Lai Kwok Leung) learnt that the target, instead of being chopped, was to have corrosivefluid thrown over him.

(Lai Kwok Leung) visited the court on a number of days, and on one occasion travelled to Duddell Street in Central in an unsuccessful attempt to locate the target.  (Lai Kwok Leung) had been told by “Ah Billy” that “the stuff”had been concealed in a flower bed near the court building and that the stuff was a corrosive fluid of some type.

During the preparation for the attack, this defendant met a law clerk, Stephen Chung, who worked for the solicitor Kong, who was the defendant in District Court Case 88 of 2008.  On 25 October 2009, someone contacted (Lai Kwok Leung) and told him that he had arranged for two other people to assist in the attack.

On 27 October, D4, “Ah Billy” and others met near the court building.  (Lai Kwok Leung) said he saw “Ah Billy” and two men sitting near a flower bed at the front of the building.  He was telephoned by “Ah Kit”, who told him that the target was coming down the elevator.  (Lai Kwok Leung) walked behindthe target when he reached the ground floor and indicated to the attackers that the expatriate in front of him was the target. He then saw two men run up to the target and throw fluid.

After the attack, (Lai Kwok Leung) left the scene with “Ah Billy” and another man.  Later he was given $3,000 by “Ah Kit”, and he gave that amount to “Ah Billy”.”

16.  In the result, the judge determined of the role of Lai Kwok Leung:^[11]

“ ..he played a major role in organising the personnel, and that it was he who pointed out the target for those persons who were conducting the actual physical part of the attack.”

The antecedents of Lai Kwok Leung

17.  The judge noted that Lai Kwok Leung was 38 years of age at the time of sentencing.  Further, although he had a criminal record for offences committed in the late 1980s and 1990 he had not been convicted of any offence since 1990.^[12]

Sentence

18.  In sentencing Kay Sik Hong, Billy the judge stipulated a starting point for sentence of 18 years’ imprisonment, which she discounted by one third for his plea of guilty.  In addition, she afforded him an extra discount of 12 months’ imprisonment “for his cooperation”.  Earlier, she had acknowledged that, “..he was to have been used by the prosecution to give evidence at the trial of his co-defendants”.  In imposing a sentence of 11 years’ imprisonment, the judge observed, “if further assistance is given in relation to any trials, that matter can be looked at again.”^[13]

19.  In affording Kay Sik Hong, Billy, and Ma Shun Yick, Jacky, an additional discount of one year’s imprisonment, from that taken as the starting point, the judge said:^[14]

“ ..an additional period is justified for the assistance that they have given, but I do not consider it should be 50 per cent as suggested by Mr McGowan.”

20.  In sentencing Lam Wai Sai and Lai Kwok Leung the judge said:^[15]

“ 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. There was premeditation, planning, preparation and payment by a large group of participants with the purpose of interfering with the criminal justice system, all of which features bring this offence into the most serious category for sentencing.”

21.  The judge went on to say:^[16]

“ I also consider it appropriate in this case to distinguish those defendants who played greater or lesser roles in the incident, and I propose to take different starting points to note that distinction.”

Starting Point and Discount

22.  The judge stipulated a starting point of 15 years’ imprisonment for Lam Wai Sai and one of 18 years’ imprisonment for Lai Kwok Leung, which she discounted by one third for their pleas of guilty.  In the result, Lam Wai Sai was sentenced to 10 years’ imprisonment and Lai Kwok Leung to 12 years’ imprisonment.^[17] In affording them the full one-third discount, the judge acknowledged that their pleas of guilty were made:

“ at alate stage and did not result in any significant saving of court time; although, as I said earlier the services of a jury were not wasted.”[18]

Earlier, she had said in respect of mitigation advanced on behalf of a co-accused:

“ ..the saving of time in this case, given the length of the voir dire, is not very much of a point in mitigation, although I accept that the court did not have to empanel a jury.”[19]

Notice of motion: fresh evidence pursuant to section 83V(1)(a) of the Criminal Procedure Ordinance, Cap. 221in the case of Lai Kwok Leung

23.  By a Notice of Motion, filed with the court 26 November 2013, Ms Barbara Wong invited the court to receive evidence relevant to the application of Lai Kwok Leung, pursuant to section 83V(1)(a) of the Criminal Procedure Ordinance, Cap. 221.  That material was relevant to his case that he assisted the authorities in their investigation of others culpable of this offence subsequent to being sentenced.  The material included a non-prejudicial statement made by Lai Kwok Leung, on 24 March 2011, in which he described the roles played in the conspiracy to throw corrosive fluid by So Ka Wai, Chan Lap Tak and Ah Fei, a person identified subsequently as being Wun Shu Fai.  Also, it included the indictment on which So Ka Wai and Chan Lap Tak were arraigned before Barnes J on 9 November 2012 and to which they pleaded guilty to the count of conspiracy to throw corrosive fluid.  Correspondence with the Department of Justice confirmed that Lai Kwok Leung’s non-prejudicial statement of 24 March 2011 had been served as ‘unused’ material on those representing So Ka Wai and Chan Lap Tak in March 2012.  Finally, the Department of Justice confirmed that, in July 2012, So Ka Wai and Chan Lap Tak had indicated through their solicitors that they proposed pleading guilty to the count of conspiracy to throw corrosive fluid.

24.  We acceded to the application, there being no opposition to the application by the respondent.

Fresh evidence in the case of Kay Sik Hong, Billy

25.  Similarly, there being no opposition to the application by the respondent, we acceded to Mr McGowan’s request, albeit that it was not advanced by way of a Notice of Motion, that we receive in evidence in the hearing a letter dated 26 November 2013 from Mr Keith Oderberg to the Registrar of the High Court confirming that, as counsel prosecuting in HCCC 144/2010, after Kay Sik Hong, Billy pleaded guilty to Count 1 on arraignment on 15 February 2011, it was his intention to call him as a witness for the prosecution in the trial of his remaining co-defendants, including Lam Wai Sai and Lai Kwok Leung, on the basis of his non-prejudicial statement dated 24 March 2010.  In the event, given that the remaining co-defendants had pleaded guilty on being re-arraigned on 14 March 2011, it was not necessary to do so.

GROUNDS OF APPEAL AGAINST SENTENCE

Starting point for sentence: Kay Sik Hong, Billy

26.  On behalf of Kay Sik Hong, Billy, Mr McGowan submitted that the starting point taken for sentence by the judge, namely 18 years’ imprisonment, was too high.  He submitted that in the cases in which this court had upheld such a starting point for sentence the injuries to the victim(s) were very much more severe than that caused to the victim in the instant case.^[20]

Discount from the starting point for assistance to the authorities

27.  It was contended on behalf of the applicants either that the judge had failed to give an adequate discount from the starting point afforded to each of them to reflect his assistance to the authorities and/or their subsequent assistance to the authorities merited a discount in their sentence by order of this Court.

28.  On behalf of Kay Sik Hong, Billy, Mr McGowan pointed to the fact, accepted by the respondent, that the applicant had informed the police, albeit anonymously, in a telephone call to a police ‘hotline’ in November 2009 that the instigator of the offence was Mr Kong and his clerk.  The respondent accepted that the caller had identified the former but, since no records survived in respect of the telephone call, indicated that it was unable to confirm that the latter had been identified.  Kay Sik Hong, Billy was arrested in respect of the offence on 21 December 2009, after which he made admissions under caution.  Then, on 24 March 2010 he had made a non-prejudicial statement to the police describing the roles of his co-conspirators.  At identification parades held on 7 December 2011 and 11 April 2012 respectively he had identified Chan Lap Tak and Wun Shu Fai as co-conspirators.  On 18 January 2013 he had identified Kong Hon Yiu from photographs.

29.  Mr McGowan invited the court to take into account the fact that, although Kay Sik Hong, Billy was willing to give evidence against Chan Lap Tak, he was not required to do so because the latter pleaded guilty.

30.  The trial of Wun Shu Fai lies in the future.  The respondent informed the court that it wished to call Kay Sik Hong, Billy to give evidence at Wun Shu Fai’s trial, were there to be a contested trial.  For his part, Mr McGowan informed the court that he wished this court to deal with matters as they stood now, indicating that the Executive would be approached on the issue of any discount for any future assistance by Kay Sik Hong, Billy to the authorities.

The quantum of the discount-plea of guilty and assistance, without giving evidence

31.  Mr McGowan drew the attention of the court to a number of judgments of this court in which the issue of the discount to be afforded to a defendant, who had pleaded guilty and provided assistance to the authorities but without giving evidence, was addressed.  In HKSAR v Ng Shek Yu,^[21] in the judgment of the court Stuart-Moore VP said that in such circumstances, “a discount between 40 to 45% will usually be appropriate.”  Quoting from the commentary in Sentencing in Hong Kong^[22] Mr McGowan cited the judgment of this court in HKSAR v Tse Kai Kui^[23] for the proposition that “More credit can be given to an offender who is prepared to give evidence for the prosecution”.  Similarly, the authors said of the judgment in HKSAR v Erikson^[24], “A guilty plea and ‘considerable assistance’ may attract a sentencing discount of 45%.”  Further, the authors quoted a passage of the judgment of Cheung JA in HKSAR v Chan Sau Ming^[25] stating that:

“ In the case of a defendant who wished to do so, he is entitled to expect that the sentence would attract a further discount because of his willingness to give evidence against his co-defendants. Unless it can be demonstrated clearly that certain aspects of his evidence is totally different from what is contained in his witness statement, we are of the view that the usual 45% to 50% discount should be given. Judges should be circumspect in disallowing the proper discount.”

32.  Mr McGowan drew attention to the quotation by the authors of a passage in the judgment of this court delivered by Lugar-Mawson J in HKSAR v Cheng Chong Shing^[26],

“ ..appellants who are prepared to testify against their confederates should not lose the benefit they would have gained in so doing because the confederate accepts the truth of the case against him and pleads guilty (see R v Yan Im Kun [1997] 4 HKC 339).”

33.  Finally, Mr McGowan referred to the statements of Stock JA, as he was then, in HKSAR v Tse Yiu Ming^[27] in which he said of the authorities to which the court had been referred, which were not identified, that they, “generally speaking, suggest a discount of something in the region of 40% in favour of a person who pleads guilty and offers to give evidence, which offer is instrumental in effecting a plea guilty from the other defendants.”  He submitted that the observation was an aberration, not in accordance with sentencing practice or at least case specific.

Lam Wai Sai

34.  Lam Wai Sai sought leave to appeal out of time on basis that his delay in filing his notice of leave to appeal resulted from waiting for the results of his assistance to the authorities to become manifest.  It was submitted on his behalf by Mr John Marry that he had provided a significant degree of assistance to the authorities subsequent to being sentenced, which ought to be reflected in a discount of the sentence imposed upon him.  In particular, it was said that, having provided a non-prejudicial statement dated 23 March 2011, in which he had provided details in respect of So Ka Wai and whom he asserted had recruited him to participate in the offence, after So Ka Wai’s arrest he had attended an identification parade on 20 November 2011 and identified him as the person who had recruited him.  In March 2012, the non-prejudicial statement, together with a similar statement made by Lai Kwok Leung, was served on So Ka Wai as ‘unused’ material.  It was contended that Lam Wai Sai had not been called as a witness for the prosecution only because So Ka Wai pleaded guilty on 9 November 2012.  Finally, it was submitted that the fact that Lam Wai Sai had put himself at risk in consequence of his assistance was evidenced by the fact that he was serving his sentence in protective custody at Siu Lam Psychiatric Centre.

Lai Kwok Leung

35.  It was submitted on behalf of Lai Kwok Leung that the sentence imposed on him ought to be reduced further to reflect his assistance to the authorities since he had been sentenced.  That assistance was said to lie, first in the provision of a non-prejudicial statement dated 24 March 2011, in which he had named So Ka Wai, Chan Lap Tak, and the person who turned out to be Wun Shu Fai, as co-conspirators in the conspiracy to throw corrosive fluid.  Secondly, from the fact that Lai Kwok Leung identified all three of them at identification parades held on 2 November and 7 December 2011 and 11 April 2012.  So Ka Wai and Chan Lap Tak pleaded guilty in November 2012, after Lai Kwok Leung’s non-prejudicial statement had been served on them as ‘unused’ material in March 2012.  It was submitted that in consequence Lai Kwok Leung was at risk of a revenge attack by anyone of those three men.

36.  Lai Kwok Leung’s non-prejudicial statement was put before the court in the fresh evidence permitted to be adduced at the hearing.  That was the only non-prejudicial statement of the various applicants put before this court.  At the outset, he asserted that he was willing to be a prosecution witness and to provide information to the police.  He named Chan Lap Tak, by his full name, as a person who had approached him in mid-September 2009 to recommend a person to be an assailant in an attack.  As a result, he recruited Kay Sik Hong, Billy.

37.  On 19 October 2009, at Chan Lap Tak’s instigation, he and Kay Sik Hong, Billy had gone to the District Court Building to seek to identify the target.  The court room which Chan Lap Tak told him to go to involved a case of deception in which the defendant was Kong Hon Yui.  Then, having been unable to locate the target, at Chan Lap Tak’s direction, he and Kay Sik Hong, Billy went to an address in Duddell Street in Central, which he was told was the office of the target.  However, he was still unable to locate him.  On 27 October 2009, as a result of a telephone call received from him he met a person he called ‘Ah Wai’ together with two other persons in the vicinity of the District Court.  Nearby, was Chan Lap Tak who informed him of the roles they would play in the attack.  Later, as arranged, he received a telephone call from Chan Lap Tak telling him that the target was taking the lift to the ground floor where he, Lai Kwok Leung, was waiting. Having followed the target out of the court building he identified the target by signalling to Billy.  Then, he saw two men attacked the target.

THE RESPONDENT’S SUBMISSIONS

38.  Mr Wesley Wong SC, counsel for the respondent, informed the court that the prosecution had no intention of calling either Lam Wai Sai or Lai Kwok Leung as a prosecution witness in the outstanding case against Wun Shu Fai.  By contrast, he said that, if they are willing to be witnesses, the prosecution is prepared to call Kay Sik Hong, Billy and Ma Shun Yick, Jacky as prosecution witnesses in that case.

39.  Mr Wong informed the court that the arrest of all the persons, who had been charged with the conspiracy to throw corrosive fluid, on 21 and 22 December 2009 was based on information other than from the anonymous telephone call made by Kay Sik Hong, Billy in November 2009.  He said that all the arrested persons, save for Wun Shu Fai, had made admissions under caution against their own interest in respect of the conspiracy to throw corrosive fluid.  In those circumstances, the prosecution had a case against each of those persons which stood independently of any evidence that might have been forthcoming from one of the applicants against other co-conspirators.

40.  Mr Wong explained that in the circumstances obtaining in this case, where former co-accused made themselves available to be prosecution witnesses in the trial of their co-conspirators, it was the practice of the Trial Preparation Unit in the Department of Justice not to name an accomplice witness on the back of the indictment, thereby identifying him as a prosecution witness.  Rather, it was the practice to inform the court and defence that the prosecution intended to call such a witness shortly before doing so.  That, he said, explained why it was that Kay Sik Hong, Billy had not been identified as a prosecution witness prior to arraignment or even afterwards during the 20 day voir dire.

41.  In answer to questions from the court, Mr Wong accepted that the purpose of having some of the applicants attend identification parades in respect of So Ka Wai, Chan Lap Tak and Wun Shu Fai was that they were regarded as potential witnesses for the prosecution in the trial(s) of those persons.

Discount for a plea of guilty and assistance

42.  Mr Wong accepted that the discount available for a defendant who has pleaded guilty and provided assistance to the prosecution, but without testifying, was in the range of 40% to 45%.  He submitted that it did not go as high as 50%.

Full one-third discount: Lam Wai Sai and Lai Kwok Leung

43.  Mr Wong submitted that, given that Lam Wai Sai and Lai Kwok Leung did not plead guilty to the count on the indictment until 20 days into the holding of a voir dire and then only after the conclusion of evidence, they were not entitled to be afforded a full one-third discount from that taken as the starting point.^[28]

A CONSIDERATION OF THE SUBMISSIONS

44.  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.

45.  There is no dispute that the applicants were not the instigators of the conspiracy.  They were mercenaries used by others to recruit, organise and equip foot-soldiers to execute the attack.  They did so for the promise of financial reward.  The planning for the attack took place over some weeks and involved surveillance of the court room itself in which the victim was appearing as an advocate.  He was followed to his chambers.

46.  Fortunately, and it is a matter of good fortune, although some of the corrosive fluid found its way into the left eye of the victim, he did not sustain any permanent damage to his eyesight.  He was admitted to a specialist ward and detained for three days.  By the end of January 2010, his pre-attack visual acuity was fully restored.  It appears that the victim did not sustain any permanent scarring damage to his face or elsewhere.

47.  As the judge noted, in HKSAR v Yu Wai Chu^[29] this court dismissed an application for leave to appeal against sentence in which the judge had taken a starting point for sentence of 18 years’ imprisonment in a case involving the throwing of concentrated sulphuric acid over the victim, a middle-aged lady.  In the judgment of the court Mayo VP observed:

“ Perhaps one of the most terrifying aspects of this case was the willingness of the applicant to inflict these terrible injuries upon a total stranger simply so that he would receive a reward.”

48.  Those sentiments resonate with the circumstances of the instant applications.  As the judge noted, Kay Sik Hong, Billy was promised payment of $30,000, but received only $3,000.  Lam Wai Sai was paid $2,500, having been offered $10,000.  Lai Kwok Leung was paid $3,000.

49.  In HKSAR v Lam Ming Wing^[30], another attack on a total stranger for reward, the victim sustained what the judge described as appalling injuries which resulted in severe disfigurement and impairment to eyesight.  This court determined that sentences of 18 years’ imprisonment imposed on the applicant after trial in respect of each of two charges of throwing corrosive fluid with intent to cause grievous bodily harm were not manifestly excessive.  The applicant had secured the services of two young men to execute the attack with express instructions to blind the victim.

50.  We are satisfied that the circumstances of the commission of the offence were outrageous.  As the judge noted, in the judgment of this court in R v Chan Chi Lun,^[31] in which the applicant was a party for reward to an attack on a young lady in which sulphuric acid was thrown into her face, Power JA:

“ In offences of this kind the deterrent effect of a sentence is, perhaps, of larger moments than in any other class of offence.”

51.  In all circumstances, in particular having regard to the necessity for the imposition of a deterrent sentence, we are satisfied that, whilst a starting point of 18 years’ imprisonment is high, it was appropriate for Kay Sik Hong, Billy.

Discount/Reduction of sentence for a plea of guilty and assistance to the prosecution

Plea of guilty

52.  It is well established that a defendant who tenders a timely plea of guilty is entitled to a discount of one third from the sentence stipulated as the starting point for sentence.  However, as the respondent submitted, that discount is afforded only to a defendant who “pleads guilty at the first opportunity”, see R v Chung Kin Wah[32].

53.  Having pleaded not guilty on arraignment and then challenged the admissibility of out-of-court admissions in voir dires, the total of which lasted 20 days and each of which was conducted for 4 to 5 days, up and until the time for the delivery of the judge’s ruling, the pleas of Lam and Lai, when they were tendered eventually, were not timely pleas.  One reason that a defendant who tenders a timely plea of guilty is afforded a one-third discount is that to do so is in the public interest.  As Kirby J observed in his judgment in the High Court of Australia in R v Cameron[33], cited with approval by Yeung VP in HKSAR v Ma Ming[34], the public interest includes:

“The fact a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and any inconvenience caused, to any persons summoned to perform jury service.”

54.  As the judge noted, it was only in respect of the services of the jury that inconvenience and expenses were saved by the belated pleas of Lam Wai Sai and Lai Kwok Leung.  Their pleas of guilty were tendered only immediately in advance of the rulings in the voir dires.  In HKSAR v Chung Kin Wah, in such circumstances, this court said that it felt unable to interfere with a discount of sentence afforded to such a defendant of 20 per cent only.

55.  In HKSAR v Leung Cho Yi, the trial judge had afforded the defendant a 25 per cent discount of sentence, after he pleaded guilty following an adverse ruling at the conclusion of a voir dire.  This court said that he had been treated leniently, since the discount in those circumstances should “usually be in the order of 20 per cent”.

56.  In HKSAR v Chan Wai Ming,William[35], this court did not interfere with a discount of only 17.8 per cent afforded to a defendant who pleaded guilty only after an adverse ruling in a voir dire conducted over two days.  The court acknowledged that the trial judge was best placed to determine the appropriate discount to be afforded to a defendant in such circumstances, suggesting that no attempt had been made in Leung Cho Yi to lay down “hard and fast rules”, it having been submitted that the discount ought to have fallen within the parameters of 20 to 25 per cent.  It was observed that challenges in a voir dire vary from the exercise of a judge’s discretion to a challenge to the integrity of the law enforcement officers.  In the instant applications, the latter was the case.

57.  Whilst there is no doubt that in sentencing Lam Wai Sai and Lai Kwok Leung the judge exercised a discretion, it was one that fell to be exercised within the framework of established authorities.  With great respect to the judge, the exercise of her discretion miscarried.  We are satisfied that that there was no justification for the judge affording Lam Wai Sai and Lai Kwok Leung the full one-third discounts for their pleas of guilty.  Accordingly, the sentences of imprisonment imposed upon them were unduly lenient.

Plea of guilty and assistance to the prosecution

58.  In the judgment of Li CJ in the Court of Final Appeal in Z v HKSAR^[36], with whom the other judges agreed, the range of discounts of sentence applied by the Court of Appeal to defendants who had pleaded guilty and given assistance to the prosecution was addressed:

“ It has used various percentages of discount for different degrees of assistance. It has applied a usual discount of 40% (including the one third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y[2005] 3 HKC 337 at 340. (Compare its earlier decision in HKSAR v Ng Shek-Yu (CACC 178/2000 unreported, 1 March 2001) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.) 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 reduction for pleading guilty).”

59.  Stuart-Moore VP delivered the judgments of this court in bothHKSAR v Y and HKSAR v Ng Shek-Yu.  It is apparent from the judgment of the former case, which was delivered 4 years after the latter case, that the context in which he made his observations was the specific submission of counsel that Ng Shek Yu was authority for the proposition that the provision of assistance simpliciter, without a plea of guilty, entitled a defendant to a discount of 40%.

60.  It is to be noted that in Ng Shek Yu the applicant was afforded a discount of 45% from the starting point taken for sentence in circumstances where his offer to give evidence against his co-conspirator for unlawful drug trafficking was thwarted by the fact that the latter had absconded whilst on bail.  The trial judge declined to give the applicant any more than the one-third discount for pleading guilty, which approach this court approved.  However, subsequent to sentence and whilst in custody, the applicant had reported to ICAC an approach that had been made to him to give untruthful evidence against his co-conspirator.  In the result, that person had pleaded guilty to a charge of doing an act tending and intended to pervert the course of justice and had been sentenced to 18 months’ imprisonment.  It follows that in that case the 45% discount was afforded in respect of information which led to the conviction for a subsequent and different offence from that for which the applicant had been sentenced.

61.  It is to state the obvious to observe that the range of assistance that a defendant might provide to the authorities is potentially of wide ambit.  Thus, in HKSAR v Eriksson, in which this court afforded the applicant a discount of 45% from that taken as the starting point for sentence, it was noted that the assistance provided by the applicant was considerable:^[37]

“ He gave information to the police that led to the arrest of 9 individuals in four different cases. Of the 9 arrested persons, 7 were convicted of various charges and 2 were acquitted. The assistance to the ICAC resulted in the arrest of 3 persons were arraigned with conspiracy to trafficking dangerous drugs and perjury. One of them was convicted.”

62.  The statement of Cheung JA in HKSAR v Chan Sau Ming^[38], to which Mr McGowan made reference, cited earlier in this judgment[39], must be viewed in the context of that case.  There, having pleaded guilty to a charge of conspiracy to defraud, the appellant had given evidence for the prosecution against a co-accused, but the judge had refused to afford her any discount in addition to the one-third discount for her plea of guilty, finding her to have been a reluctant witness.  Noting that the respondent accepted that the applicant could be described as ‘up to proof’ of her witness statement and that there was no indication that the appellant had given evidence at variance with the rest of the prosecution case, this court said that the appellant was entitled to expect a further discount in her sentence and afforded her the same 50% discount afforded to another accomplice who had given evidence for the prosecution.

63.  In HKSAR v Tse Yiu Ming, having pleaded guilty to charges of false imprisonment, theft and wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212 the applicant was put forward by the prosecution as a witness in the trial of his co-accused.  The prosecution case depended on admissions made by his co-accused together with his anticipated evidence as outlined in his statement to the police.  In the course of a voir dire challenging the admissibility of those admissions, the co-accused pleaded guilty.  This court noted that the judge had assumed in the applicant’s favour that his “willingness to give evidence against them was instrumental in effecting their change of plea”.  In the event, the applicant was afforded a discount from the starting point taken for sentence of a little less than 40%.  However, observing that the overall starting point taken to sentence was “too low and that the applicant was fortunate in the circumstances to have received a sentence as low as he did” this court stated, “we do not think we are justified in interfering in this particular case.”

64.  In HKSAR v Cheng Chong Shing, after he had been sentenced, the appellant had given evidence in one trial against a person alleged to have offered him advantages as an agent, reciprocal charges to that which he had pleaded guilty.  However, the magistrate acquitted that defendant, although it was accepted in this court that the appellant had given evidence in accordance with his witness statement. In a second case, of conspiracy to offer advantages to an agent involving another defendant in respect of which reciprocal charges the appellant had pleaded guilty, the defendant pleaded guilty on arraignment, so that it was not necessary for the appellant to give evidence.  This court described the appellant as the principal prosecution witness in each case and did not advert to any other evidence as critical to the prosecution case.  In the event, although stating that it did not do so, it appears that the court afforded the appellant a discount of 50 per cent from the starting point.

Kay Sik Hong, Billy

65.  It is clear that in affording Kay Sik Hong, Billy a discount beyond the one-third discount afforded him for his plea of guilty, namely 12 months’ imprisonment, the judge did so because, on the basis of his non-prejudicial statement, he was to be used as a prosecution witness against his co-accused who had pleaded not guilty on arraignment.  In the event, because they pleaded guilty, he was not required to give evidence for the prosecution.  It is not known why they pleaded guilty.  It is known that a significant challenge was mounted to the admissibility of their out-of-court admissions, given that the four voir dires lasted 20 days, and each of their own voir dires occupied 4 to 5 days.  Furthermore, it is to be noted that they asked to be re-arraigned only after closing speeches had finished and all that remained was the ruling of the judge.  Nevertheless, it is to be assumed in favour of Kay Sik Hong, Billy that the fact that he was to be called as a prosecution witness against his co-accused was a factor which would have weighed in favour of them pleading guilty.  However, it is clear that the prosecution had a case without his evidence, one based on the out-of-court admissions of the co-accused.  In those circumstances, he was entitled to a discount of sentence from starting point in the range of 40% to 45%.  In fact, the discount that he was afforded was less than 40%, namely 38.8%.

66.  Furthermore, it is clear that Kay Sik Hong, Billy continued to assist the prosecution after the 4 co-conspirators with whom he was indicted were re-arraigned and pleaded guilty. We do not accept that any weight is to be attached to the fact that his non-prejudicial statement was served on Chan Lap Tak and So Ka Wai prior to their pleas of guilty on 9 November 2012.  Those circumstances stand in marked contrast to the situation obtaining in respect of the 4 co-conspirators with whom he was indicted.  There, he was to be called as a prosecution witness.  On the other hand his subsequent identification of Chan Lap Tak, So Ka Wai and Wun Shu Fai were made at the behest of the authorities, no doubt not only to assist them with their investigation but also to enable the prosecution to identify potential evidence for the trials of those defendants.  In the event, it appears that the prosecution chose to rely on the out-of-court admissions of Chan Lap Tak and So Ka Wai, not stipulating Kay Sik Hong, Billy as a prosecution witness.  Such benefit as might enure to Kay Sik Hong, Billy in respect of any role he might perform in the trial of Wun will be a matter for the Executive.

67.  In the result, in all the circumstances we are satisfied that Kay Sik Hong, Billy is entitled to a further discount of his sentence.

68.  The assistance that Lam Wai Sai and Lai Kwok Keung have given to the prosecution since they were sentenced appears to lie in their confirmation of the identification of persons they named as co-conspirators in their respective non-prejudicial statements, in respect of whom proceedings were then pending.  Neither was named as a prosecution witness in the prosecution of Chan Lap Tak and So Ka Wai, although their non-prejudicial statements were served on them as ‘unused’ material.  In any event, it is apparent from the remarks of Barnes J[40] in sentencing Chan Lap Tak and So Ka Wai, that the prosecution case against each of them relied on their extensive admissions under caution to the police after their return to Hong Kong from the Mainland after their unsuccessful flight.  She said that each of them admitted to being parties to the conspiracy to throw corrosive fluid over the victim.  Nevertheless, it is clear that in identifying Chan Lap Tak and So Ka Wai in identification parades and, in the case of Lai Kwok Leung, identifying Wun from photographs, they continued after sentence to co-operate with and assist the police investigation.  As noted earlier, neither are to be used as witnesses by the prosecution in the trial of Wun Shu Fai.

69.  The potential benefit to Lam Wai Sai and Lai Kwok Leung of such assistance provided by them to the authorities since sentencing is to be viewed in the context of our earlier determination that the judge fell into error in affording them the full one-third discount for their pleas of guilty, with the result that the sentences imposed upon them were unduly lenient and unwarranted.  Such limited further reduction in sentence that might have been afforded them for that assistance is entirely subsumed by the undue leniency afforded them in the sentences imposed upon them.  Accordingly, they are not entitled to any further discount in their respective sentences.

Conclusion

70.  We allow the application for leave to appeal against sentence of Kay Sik Hong, Billy 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 and in its place impose a sentence of 10 years and 3 months’ imprisonment.  We dismiss the applications for leave to appeal against sentence of Lam Wai Sai and Lai Kwok Leung.