HKSAR v. LAW CHUN MAN

CACC 325/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 325 OF 2011

(ON APPEAL FROM HCCC NO. 341 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  The applicant was convicted after trial of four offences which all reflected a pattern of intimidation aimed at the same victim, a Mr Chun Chi-wai.  The offences were conspiracy to commit arson, two counts of arson and placing an article with the intent of inducing another to believe that it is likely to explode.  For these offences he was sentenced by Beeson J to a total period of 14 years imprisonment.  He originally applied for leave to appeal - against both convictions and sentence but at the hearing of his leave application he applied to abandon his application for leave to appeal against conviction which we thereupon dismissed.  At the conclusion of the hearing of the application for leave to appeal against sentence we reserved our judgment.

The Offences

2.  The first count on the indictment was conspiracy to commit arson contrary to section 60(1) and (3) of the Crimes Ordinance, Cap 200, and the conspiracy provisions in sections 159(A) and 159(C) of the same ordinance.  This offence took place between the 1^st and 8^th January 2009.  The co-conspirator was a 17 year old young man.  The conspiracy was particularised as “to damage by fire property at or near Ground Floor, No. 24 Cha Kwo Ling, Road, Kwun Tong, Kowloon, belonging to Asia Huan Bao Steel Limited, intending to damage the said property or being reckless as to whether the said property would be damaged”.  The co‑conspirator was also convicted of this offence.  This was the only offence where the applicant was charged with another person even though the evidence adduced in proof of the other offences showed that he was committing these offences as part of a joint enterprise.

3.  The second count on the indictment was arson contrary to section 60(1) and (3) of the Crimes Ordinance, Cap 200 and took place on 18 January 2009.  The premises that were targeted were the same premises of Asia Huan Bao Steel Limited and the charge particularised two excavator machines as having been damaged by fire.

4.  The third count on the indictment was placing an article with the intent of inducing another to believe that it is likely to explode, contrary to section 28(1)(a) and (4) of the Public Order Ordinance, Cap 245.  The maximum penalty for this offence is 5 years imprisonment.  The premises that were targeted were located at Room 4803 Convention Plaza Office Tower, Hong Kong Convention and Exhibition Centre, Wanchai and were the office premises of Mr Chun Chi-wai the proprietor of Asia Huan Bao Steel Limited, the victim of the other three charges.  The charge particularised the intention as being to induce Chun Chi-wai and other persons to believe that the article was “likely to explode or ignite and thereby cause personal injury or damage to property”.

5.  The last count on the indictment was another count of arson but this time laid under section 60(2) and (3) of the Crimes Ordinance.  Both arson under section 60(1) and arson under section 60(2) require proof of destruction or damage by fire of property belonging to another with a mens rea of an intent to destroy or damage this property or being reckless as to whether this property would be destroyed or damaged.  But the arson offence under section 60(2) requires an additional mens rea, this being an intent, by the destruction or damage, to endanger the life of another or being reckless as to whether the life of another would be thereby endangered.  Whatever form of arson is charged the maximum penalty is the same, namely life imprisonment.

6.  In respect of count 4 the additional mens rea that was pleaded was not an intent to endanger the life of another but merely being reckless as to whether the life of another would be endangered.  Thus, in order to prove this offence the prosecution not only had to show that property was intentionally damaged by fire (here a vehicle and excavator) but that also by the acts causing damage to the vehicle and excavator the applicant was reckless as to whether the lives of others would be endangered.

7.  Where this aggravated form of arson is charged it is always open to the jury to return a verdict of simple arson under section 60(1).  This is because the aggravated offence under section 60(2) encompasses the simple offence under section 60(1) thereby enabling recourse to the power contained in section 51(2) of the Criminal Procedure Ordinance, Cap 221.

8.  In respect of count 4 the jury convicted the applicant of only the section 60(1) offence.

The Conduct Underlying the Offences

9.  The case was a relatively straightforward one.  Between January and December 2009 the premises of Asia Huan Bao Steel Limited were targeted for attack.  This company was a scrap metal dealer which had a receiving yard at the address that is particularised in counts 1, 2 and 4.  This yard was by the water and at the waterfront a barge was moored and it was onto this barge that the scrap metal was loaded.

10.  The first offence was an abortive attempt at arson.  It took place shortly after midnight on 8 January 2009 when several men entered the receiving yard of the scrap metal company with the intention of setting a fire.  A security guard was tied up but another guard, alerted to what was happening, shouted at the intruders who then fled the scene leaving behind a number of items which could be used to start a fire.  Amongst them were seven tins of a mixture containing toluene which is a flammable organic solvent commonly used as a constituent in paint thinner mixtures.

11.  The second offence, which presumably was prompted by the failure of the first offence, took place in the afternoon of Sunday 18 January 2009. Notwithstanding it was a Sunday there was an employee operating an excavator inside the yard.  This employee described how he saw two men carrying Blue Girl beer bottles.  Fire was coming from the tops of the bottles and the men yelled and threw the bottles.  He said five to seven bottles were thrown and they were thrown at his and another excavator.  He was forced to jump from the cabin of his excavator in order to escape the fire.  In doing so he injured his back and was on sick leave for some five months.  When he returned to work he was not able to operate the excavator because he could not sit for long periods.  He also suffered 1^st degree and 2^nd degree burns to areas of his body but fortunately they were not life-threatening.  Fire damage was caused to the two excavators and the cost of repairing them was $17,000.

12.  We have seen the photographs of the cabin of the excavator and there is no doubt in our minds that they are potential fire traps.  To throw a petrol bomb, without warning, at such a machine whilst it is in operation is to expose the person within the confined space of the cabin to a high risk of serious harm and possible death.  In this case the operator of this excavator can consider himself fortunate indeed that he did not suffer more serious injuries at the hands of those responsible for the fire-bombing.

13.  The third offence took place at around 12.45 pm on 30 December 2009, a working day, at the offices of Mr Chun Chi-wai in Convention Plaza.  A male delivered a parcel to the office and told staff that the parcel was for Mr Chun.  Meanwhile an anonymous “999” call was made reporting that a parcel, suspected to contain a bomb, had been delivered at Mr Chun’s office.  Police arrived but left when staff told them there was no bomb.  Apparently the staff did not link the parcel that had been delivered for Mr Chun, and which they had not yet opened, with the report to the police.  Later that day Mr Chun’s staff opened the parcel and saw that it contained items such as a brown solid and plastic coated wires which gave it the appearance of being a bomb and a note which suggested it was a bomb.  The note bore writing in Chinese characters which, translated, said:

“Bastard Chun Chi-wai, you cheated me of all my money earned by sweat and blood. Bomb inside.”

The police were called and they came with a bomb disposal expert and a robot machine used for bomb disposal work.  After the robot had done its work the bomb disposal expert, wearing his bomb suit, examined the contents of the parcel and confirmed it contained no explosives.

14.  The fourth offence took place in the morning of Friday 18 December 2009 when three persons threw petrol bombs into the receiving yard.  Six to seven petrol bombs were thrown in quick succession.  The yard was busy with people bringing in scrap for sale and vehicles were going in and out of the yard.  One petrol bomb landed on the front of a van that was there to sell scrap metal starting a fire underneath it.  One excavator also caught fire.

15.  After the police arrived they found that in addition to the remnants of the petrol bombs there was one unexploded glass bottle containing a mixture consisting mainly of petrol and some rags, probably serving as a wick, were stuffed inside the bottle covering its mouth.  There were also two coconut-head fireworks.  These are aerial firework shells which are designed to be fired from a mortar tube.  Nevertheless they can still function on the ground and if their fuses had been lit they would have caused a blast and incendiary effects in the surrounding area.

The applicant’s involvement in the offences

16.  The applicant’s involvement in all these offences was revealed in admissions he made in a number of interviews.  From what he reveals it appears that the person behind all these attacks recruited an acquaintance of the applicant called Ngan Chai to make all the arrangements for the carrying out of these attacks.  Ngan Chai in turn recruited the applicant to provide transportation services to ferry the attackers, who came from the Mainland, and their incendiary devices and materials to and from the scrap yard, and in respect of count 3 the person delivering the false bomb to and from the Convention Plaza offices of the victim.

17.  The applicant admitted that in respect of count 1 he was only providing a lookout service but he knew that he was acting as a lookout for persons who were going to set a fire.  He expected to be paid several tens of thousands of dollars for this service but in the end received no payment for the attack was unsuccessful.

18.  When asked about count 2 the applicant admitted that Ngan Chai asked him to drive two persons to throw petrol bombs.  He did so and received $20,000 for his services.  After the fire bombs were thrown the applicant took the two attackers to Lau Fau Shan.

19.  When interviewed in relation to the third count the applicant said he was contacted by Ngan Chai and offered $5,000 to drive someone and a parcel to Wanchai.  He agreed to this proposal and when he picked up Ngan Chai and the man with the parcel he was told it was a bomb hoax.  The applicant said that later Ngan Chai gave him $3,000 for his services.

20.  In respect of the fourth count the applicant admitted he received $20,000 from Ngan Chai for driving the car that transported the attackers and their materials.  He knew the persons he was transporting were going to throw petrol bombs.  He heard the sound of bottles in a box and smelt thinner odour when he was driving the three men to the target premises.

The Mitigation

21.  The applicant was 35 years old at trial.  He has only completed form 3 education and this has limited him in employment opportunities causing him to take up different jobs in various trades.  He is married and his wife has a secure job.  They have a young son who was only 2 at the time of the offences.  He has two driving offences dating back to 2000.  One of them was driving whilst disqualified and for this he was sentenced to prison for 1 month.  Through his counsel he expressed remorse and promised not to reoffend.  As to the motivation for his involvement in these offences it was essentially financial need.  He wanted to supplement his wife’s income and claimed he had no other means of doing so.  He has not been able to assist the police in their efforts to identify the Mainland attackers or to gather evidence against Ngan Chai or the mastermind behind all these attacks.

The Sentences

22.  In respect of the first count Beeson J imposed a sentence of 8 years imprisonment[1], on count 2, 12 years imprisonment, on count 3, 3 years imprisonment and on count 4, 12 years imprisonment.  She further ordered that 2 years of the sentence on count 4 run consecutively to that on charge 2.  Thus the total sentence imposed on the applicant was 14 years imprisonment.

23.  In determining upon these sentences Beeson J recognized that arson is regarded as an offence of utmost gravity, hence the maximum sentence of life imprisonment.  Such a maximum is needed because, irrespective of the outcome in any particular case, the potential for disastrous consequences is obvious, especially where the fire takes place in densely populated areas.

24.  In the particular circumstances of this case Beeson J felt the sentences she imposed should contain a strong element of general deterrence.  She said:

“These offences before me were a concerted effort to scare or intimidate or exact revenge for some business dispute, and given the organisation and the extreme method chosen, which was petrol bombing, I consider that high sentences are called for, in particular to deter others from adopting such methods as common business practice.”

25.  With those sentiments we wholeheartedly agree.

Grounds of Appeal

26.  There are only two grounds of appeal.  The first is that the individual starting points adopted by the trial judge in respect of each offence are manifestly excessive.  The second is that the total sentence is manifestly excessive.

27.  In support of these grounds counsel for the applicant referred to a number of Court of Appeal authorities which he argued suggest that sentences for arson tend to start at about 5 years imprisonment under section 60(1) and increase to around 8 years for the section 60(2) arson offence.

28.  He also complained that no attempt was made to distinguish between the levels of culpability involved in counts 2 and 4.  If the usual sentence for arson is around 5 years imprisonment then even the sentence for the first count, namely 8 years imprisonment, was excessive for an offence which was uncompleted.  The applicant suggests that a distinction is and should be drawn between the seriousness of the offence when committed in an open area as opposed to a confined area.

Discussion

29.  Two matters stand out in respect of the offences contained in section 60 of the Crimes Ordinance.  The first is that the legislature has seen fit to distinguish between arson committed with an intent to damage or destroy property and arson with an intent to endanger human life.  This distinction is reflected in the enactment of two separate offences.  Yet, interestingly, the legislature has laid down the same maximum sentence for both offences, so clearly the legislature has recognized that both offences are extremely serious ones and that even the less serious form of arson may be committed in circumstances where a sentence of life imprisonment will be appropriate.

30.  One of the cases relied upon by the applicant is a decision of this court on two counts of section 60(1) arson committed as a revenge attack.  The case is HKSAR v Lo Po-tak [1998] 3 HKC 485.  It involved setting fire to a lift lobby and some garbage outside a refuse room in a housing estate in the early hours of the same morning.  The trial judge adopted a starting point for both offences of 8 years, discounted them by one third to allow for the plea of guilty and made the second partly consecutive making a total sentence of 7 years imprisonment.  The Court of Appeal said the starting point was too high and should have been 6 years imprisonment and the sentences should have been made concurrent.  In respect of the two different arson offences Leong JA in giving the judgment of the Court said at page 488 G ‑ H:

“The two sections dealing with arson are concerned with different circumstances. Section 60(2) is for more serious cases. The applicant was charged on the basis that he intended to endanger property only and not to endanger life. The evidence supported the charge against him on this basis. Even though the judge was entitled to take a serious view of the arson, as indeed all arson have been taken seriously by the court, nevertheless the Deputy Judge should sentence the applicant according to the offence he was charged with and the circumstances of the case.”

31.  Although there is nothing particularly novel in the comments of the Court as set out in this passage they are a timely reminder because in the present case, in respect of count 4, the jury only convicted of arson with intent to endanger property.  As surprising at that verdict is, it must nonetheless be respected.  It can only reasonably be explained on the basis that the jury could not be satisfied so that they were sure that the prosecution had proven the subjective element of recklessness; that is that the applicant genuinely appreciated or foresaw the risks involved in the actions of those throwing the petrol bombs.  Perhaps such a doubt on this issue arose in the jury’s mind because the applicant was only the driver of the motor vehicle with limited knowledge of the full extent of the criminal enterprise.

32.  But respecting the verdict of the jury does not mean ignoring the circumstances of the case and taking account of the consequences of the conduct of those involved in this criminal enterprise.  And those circumstances are that the petrol bombs were thrown into a busy yard in which people and vehicles were coming and going and heavy equipment, the excavators, were being operated.  The applicant may not have intended to endanger these persons and may not have been reckless to the possibility of endangering them but it was a consequence of the actions of those participating in this crime that persons were endangered and this consequence cannot be ignored.  Of course the corollary must also be recognised; that is, that notwithstanding that as a consequence of the conduct of throwing these petrol bombs, persons were placed in danger, no fatalities or serious injuries did in fact result.

33.  In terms of her approach to the offences the trial judge was right to recognize that the first count, being an incompleted offence was not as serious as the second count; she was right to characterize the third offence as serious and to impose a sentence close to the maximum and she was right to treat the second and fourth counts as serious cases of arson.  However she erred in not distinguishing between the second and fourth counts which we believe involve different levels of culpability.

34.  Many of the arson cases relied upon by the applicant occurred in domestic or other situations where the arsonist was in a highly emotionally charged stage of mind.  In such cases the arsonist’s conduct is prompted by emotional distress and even though the actions of the arsonist may have placed lives in danger, these types of arson very serious though they are, are different from the situation of the present case.  No emotion was present here, except perhaps the cold emotion of revenge.  Here fire was being used for two purposes; the first was to exact revenge and the second was to intimidate.  The latter purpose is the only inference that can be drawn from the fact that the arson continued from January to December.  The arson was being used in a premeditated, very carefully calculated way in order to wage a campaign of terror and intimidation on its victim.

35.  Quite apart from the motivation of the offender it is also necessary to look to the actual damage done to property and the actual injury caused to any person. Some arsons, even revenge arsons, can be quite clumsy and have little effect and are more intended to alarm without creating a catastrophic situation.

36.  Next it is necessary to consider the potential damage to property and harm to person that could have resulted from the conduct of the arsonist. Irrespective of the intent of the arsonist, how bad might the outcome have been?  Under this heading regard must also be had to the risks that might have been posed to the lives of those who respond to emergencies; namely the police and Fire Services officers.

37.  Finally it is necessary to consider whether the arson was an isolated incident or, as here, was part of a wider campaign.

38.  The present case is not arson in its more serious form, that is, committed with an intent to endanger life or being reckless as to whether the life of another would be endangered.  Nevertheless there is present many of the features that would place this in the range of more serious cases of arson. They are:

(1) this was a calculated revenge attack;

(2) it was part of a continuing campaign against the victim by the mastermind and the applicant was involved throughout in that campaign;

(3) it was carried out by persons from the Mainland, recruited for this purpose and returned to the Mainland once the purpose was carried out.  The use of foreign paid-for-hire criminals who are returned from whence they came as soon as they have completed the terms of their hire makes the detection of the mastermind that much more difficult and in the present case has frustrated the efforts of the police to bring him to justice.  Use of such persons will always be a significant aggravating factor, in this as in other crimes;

(4) the applicant was engaged to play a crucial role in this enterprise, knew full well what the enterprise involved and was rewarded accordingly;

(5) the incendiary devices that were used were capable of destroying property and causing loss of life.

(6) the potential harm that could have been caused by these incendiary devices was substantial.  Many items of property could have been completely destroyed and human lives could have been lost.  Had the devices caused serious fires then the risk would have been far greater to officers of the emergency services.

39.  In respect of the first count it is well to remember that though charged as a conspiracy there was an attempt to carry out the conspiracy to its conclusion.  The participants arrived at the target premises with their incendiary devices, tied up a security guard and would have lit their fires had not the alarm been raised by another security guard.  The attack took place at night which meant that fewer people were in the precincts of the yard but that would have also meant an opportunity for greater property damage to be done. Given that the conspiracy was not carried through to a conclusion and no damage was done or injuries caused, we are of the view that the sentence of 8 years imprisonment was clearly excessive and we would substitute therefore a term of 6 years imprisonment.

40.  In respect of the second offence, the applicant was by then aware that he was part of an ongoing campaign targeting these premises and was aware that Mainlanders had been engaged to carry out the attack.  Damage and injury resulted and the potential for more serious destruction and damage of property and danger to life clearly existed.  This is a significantly more serious offence than count 1 but it does not equate to the level of seriousness of count 4.  Taking into account all the matters we have mentioned we are of the view that the sentence of 12 years imprisonment imposed by the judge for this offence was clearly excessive.  We would substitute a term of 8 years imprisonment.

41.  The fourth count is the most serious of them all.  The potential for harm was substantial.  By this time the applicant was well aware that he was providing his services to a very serious criminal enterprise whose purpose was terror and intimidation.  He knew what was proposed and knew that the attack would take place in working hours at the premises of a business to which people would be coming and going.  However notwithstanding the potential for harm to property and person the reality was that no serious injuries were caused to persons, only limited property damage resulted and the conviction assumed no intention to endanger the life of another or being reckless as to whether the life of another would be thereby endangered.  We believe that a sentence of 12 years imprisonment is excessive and that 10 years imprisonment is the appropriate punishment for this count.

42.  The applicant has made no submissions specifically in respect of count 3. This sentence of 3 years imprisonment cannot be criticized.  Bomb hoaxes can range from the obviously false to the deadly serious and this hoax was intended to be credible and to be taken seriously.  It had the effect of reminding the victim that he was vulnerable, whether at his scrap yard or in his offices; of sending a message that not only was he at risk but also his staff and in circumstances where his staff would receive such a message; and holding out the implied threat that next time it would be a real bomb.  Because the range of culpability for this offence can be so great and the consequences in terms of disruption, evacuation and diversion of law enforcement and fire services resources potentially significant it may be thought surprising that the legislature has seen fit to enact for it a maximum penalty of only 5 years imprisonment.  Three years imprisonment for the applicant’s role in this offence is in our view not a day too long.

43.  One of the complaints made by the applicant is that the totality is manifestly excessive.  This totality was achieved by Beeson J ordering that 2 years of the sentence on count 4 run consecutively to that on count 2.  This, it is said, is an error as all the arson charges are one course of conduct.

44.  This court has previously said in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 that a sentencing court when faced with the task of sentencing for multiple offences looks to see whether the further offences add to the culpability of the first offence.  Labelling the offences as “one course of conduct”may not necessarily assist in this task and may in fact distract the judge from properly performing it.  There is no doubt that in the present case the later offences significantly add to the culpability of the first offence.  What makes these offences so serious is the very fact that they are a course of conduct in that though separate offences they have a common purpose.  As we have previously said they reflect a protracted campaign against the same victim extending over a period of 12 months.  Furthermore, though count 3 shares the common purpose, it seeks to achieve that purpose through a quite different form of criminal conduct.  Not to impose on the applicant an additional punishment for the later offences is to ignore this aspect of his culpability and enable him to escape punishment for his crimes.

45.  We are of the view that to order all the sentences to be served concurrently would be wrong in principle and that an appropriate totality is one of 13 years imprisonment.  Anything less would fail to properly have regard to the sentencing principles of retribution and general deterrence.

46.  Accordingly we grant leave to the applicant to appeal his sentence, treat the hearing of the application as the hearing of the appeal, set aside the sentences imposed in the court below, save in respect of count 3, and substitute for them the following sentences:

(i) Count 1 - 6 years imprisonment;

(ii) Count 2 - 8 years imprisonment;

(iii) Count 4 - 10 years imprisonment

47.  The sentence for count 3, namely 3 years imprisonment, remains the same but we order that 1 year of this sentence is to be served consecutively to the sentences for the other counts.  Additionally 2 years of the sentence for count 4 is to be served consecutively to the sentences for the other counts.  Otherwise all sentences are to be served concurrently, thereby making a total sentence of 13 years imprisonment.

[1] In respect of the co-conspirator Beeson J, after taking account of the second accused’s age, imposed a sentence of 6 years imprisonment.