HKSAR v. SZE KWAN LUNG AND OTHERS

CACC 92/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 92 OF 2002

(ON APPEAL FROM HCCC 6 OF 2001)

____________________

____________________

______________________________

J U D G M E N T

______________________________

Stuart-Moore, VP and Yeung JA:

Background

1. This case is concerned with the deaths of two men resulting from an offence of arson which was committed on 2 August 2000 inside Immigration Tower.

2. In these proceedings, we have to deal with the sentence of D1 and the applications for leave to appeal against sentence lodged by D2 to D7. We have already dealt with the appeals against conviction of all those appearing before us in these proceedings.

3. As we indicated in the judgment (also CACC 92/2002), handed down on 12 June 2003, D1 was convicted on 2 February 2002 of two counts of murder (counts 1 and 2) whereas D2 to D7 were each acquitted of the murders, but were convicted in the alternative of manslaughter on counts 1 and 2. D1 to D7 were also convicted of the arson offence alleged in count 3.

4. Sentencing was postponed by Gall J until 4 February 2002 when D1 received concurrent life sentences on counts 1 and 2 and a further concurrent sentence of five years' imprisonment for arson.

5. D2 to D5 each received concurrent sentences of 12 years' imprisonment on counts 1 and 2 to run concurrently with five years on count 3.

6. D6 and D7 were each sentenced to concurrent terms of 13 years' imprisonment for the manslaughter counts to run concurrently with five years for arson.

7. Our earlier judgment resulted in D1's convictions for murder being quashed. However, by a majority, these were substituted with convictions for manslaughter and the conviction for arson was upheld. It follows from this that D1 now has to be sentenced for manslaughter on counts 1 and 2. There is no application from D1 for leave to appeal against the sentence he received on count 3.

8. D2 to D7 have each sought leave to appeal against sentence.

The facts

9. The facts of the case which, in broad terms, were placed before the court below have been set out in the judgment dealing with the appeal against conviction. For ease of reference we shall repeat them here:

"Prosecution's case

4. The allegations against the Appellants arose from events on 2 August 2000, after a number of Mainland claimants, seeking the right to live in Hong Kong, went to Room 1301 in Immigration Tower without an appointment, apparently seeking to achieve a face-to-face meeting with the Director of Immigration. This followed a series of earlier confrontations between claimants to the right of abode and Immigration Department officers.

5. At about 3.00 pm, D1 was interviewed by immigration officers as he had been the representative of the group on previous occasions. D1 stated that he was not the group's representative this time. He was told that if the protesters did not leave they would be removed. He made a request that if action was taken to remove the protesters, he should be taken away first. He said that if this was done, the others would be more likely to leave peacefully. It seems that D1, from conversation he had with the officers, was under the impression he might soon be granted a one-way permit by Mainland authorities which would solve his problem.

6. At 4.30 pm, the group was advised that they should leave as the office was due to close. A few did so, but twenty-three were left behind. These people included the seven Appellants and fifteen others who were prosecuted in subsequent proceedings.

7. Further requests were made for the claimants to leave but these were ignored. From 4.30 pm, video cameras were used to record what occurred inside Room 1301 up to the moment when immigration officers moved into the room, at almost exactly 6.00 pm, to evict the claimants. At that moment, all the claimants, with the exception of D1, stood up. Liquid was poured from a number of the water bottles some of them were holding. Most of these bottles, as it turned out, had been used to conceal the presence of highly flammable thinners. Almost immediately, there was a fireball. One of the claimants, Lam Siu-sing (Lam), was covered in flames. This explosion of fire also caused extensive burns to Leung Kam-kwong, an officer attached to the Immigration Department. He had acted with conspicuous bravery, together with a number of others from the Department, in the face of considerable danger.

8. Leung Kam-kwong and Lam both died nine days later from the burns they had received. This was reflected in the date shown in Counts 1 and 2 of the indictment which alleged the murders of Lam and Leung Kam-kwong, respectively, as having occurred on 11 August 2002.

9. These terrible events caused many other casualties to be taken to hospital. They also left behind a very considerable amount of damage. Significantly, amongst the items left at the scene, seven plastic water bottles and five cigarette lighters were found. Only one of the plastic containers was found to contain water.

10. A Government chemist's examination revealed that traces of toluene, a major constituent in thinners, were to be found on several items taken from various parts of the room.

11. The main evidence produced by the prosecution came from the video-tapes which had captured most of the claimants' activities for the one and a half hours leading up to moment when thinners were ignited.

12. Using the material which was before the jury in the form of four video-tapes (Exhibits P. 15-18), coupled with the corresponding transcripts of what could be heard on these, several important general matters were quickly established.

13. Some of the claimants could be seen holding plastic bottles containing clear liquid. In other cases, bottles were placed near them. No one in the room was seen drinking from the bottles and no one smoked. From time to time, some of the claimants were seen twisting or touching the caps of their bottles. Both D2 and D3 were seen removing the caps to their bottles.

14. With specific reference to D1, he was seen and heard asking people to sit in such a way as to enable the females to be at the back of the room. D5, holding a bottle of liquid, moved from the back row to sit down next to D1. A bottle was passed to D4 at about this time.

15. Much of the conversation in the room was taking place in Hoklo dialect. D1 also spoke Cantonese and at one stage said to an immigration officer:

'If we are forced to leave your office, all of us will suffer great loss today.'

16. D1 addressed the group of claimants in the room after this. He told them that he would telephone the police to say that almost ten people were preparing to commit suicide. He later leant against the wall, apparently seeking the group's agreement for him to be allowed to negotiate on their behalf, and mentioned that:

'... if the Commissioner does not come, something serious will happen soon.'

17. After a discussion amongst the members of the group, D1 made a telephone call to the police saying that somebody was going to commit suicide at Immigration Tower. Later, a mobile telephone in the room rang. This was handed to D1 who spoke to someone he addressed as 'Ah Shing' saying, in Hoklo:

'Tell the people down there not to leave. People up here are preparing to set fire ... if no negotiation.'

18. When police duly attended the scene, D1 spoke to them saying that people were prepared to pour kerosene or petrol over themselves once the immigration officers started to take action. When asked how many were saying this, D1 replied:

'forgotten... too many ... mentioning committing suicide.'

19. There was a slight false alarm about five minutes before the incident reached it tragic conclusion. A number of immigration officers came into the room. Lam and D3, each holding a water bottle, stood up with D4. They sat down again when they realised they were not going to be removed.

20. About a minute before 6.00 pm, D1 moved to a seat which was closest to the door into the room. At about 6.00 pm, when the immigration officers moved in to evict the protesters, D1 was immediately taken out of the room. This was while a number of the claimants could be seen splashing liquid from their water containers.

21. Aside from the recordings of events in Room 1301, the prosecution also called evidence of words uttered by D1, between 5.30 and 5.45 pm, near the door and in the corridor just outside the room. It was not suggested that these words, which were directed at immigration officers, were audible inside the room or that they were said as any form of encouragement to the other protesters. Some examples of these utterances, heard by immigration officers at different times, were to the effect that:

'Today next year would be the anniversary of your death.' ... 'You people are not lucky. Today you will become roast pig.' ... 'Ah Sir, it's you people again. You people are unlucky, hugging together and die. Today next year will be the anniversary of the death of you people and I.' ...

'You people will die for sure.'

22. The prosecution put D1 forward as the group's leader who had effectively orchestrated all the events leading up to the fire at 6.00 pm, having formed an agreement with the others which was ultimately put into effect when thinner was ignited.

23. Specific evidence relating to D2's involvement at the critical moment just before the fire started, was that he had been splashing liquid around as the immigration officers came in to evict his group. He splashed liquid towards the immigration officers and onto Lam. PW22 saw Leung Kam-kwong (the deceased named in Count 2) trying to stop D2 pouring the liquid. PW20 and PW21, in evidence which was strongly disputed, attributed the start of the fire to D2. The judge advised a cautious approach should be taken to this evidence having regard to a number of inaccuracies in the testimony of both witnesses. PW23 saw D2 holding a lighter during the afternoon.

24. As to D3, he was seen to have uncapped the bottle he had been holding when he sniffed its contents at 5.30 pm. He had a lighter tucked into his waist. During the afternoon, he had been seen to flick his lighter and to stare at the flame. At the time of the confrontation at 6.00 pm, D3 randomly splashed liquid from his bottle.

25. Similarly, D4 was seen to splash liquid towards immigration officers as they moved in to evict the occupants of the room.

26. The evidence against D5, that he was holding a bottle and poured some liquid from it, was solely derived from the video-tapes.

27. D6 was seen holding a bottle as he stood up and moved across the room at the time of the confrontation at 6.00 pm.

28. D7 was seen moving from his side seat in the room towards the middle of the room carrying a bottle. He was heard to say, in Cantonese:

'Pour, light the fire.'

29. Four days later, on 6 August 2000, D3 was interviewed at his request. This was video-recorded. He said that the thinner had been bought by Lam and that Lam had given him a bottle at the Immigration Department and had informed him what was in it. He said that he had twisted off the cap at about 5.00 pm and that he borrowed a lighter from someone. He stated that it had been D2 who had told them all to stand up, to hold up their bottles and to pour it over themselves. He blamed D2 for uttering threats designed to prevent any of the claimants leaving the room. During this interview, D3 gave inconsistent accounts about whether or not he had poured any liquid from his bottle giving, at different stages, both versions."

Sentencing

10. In passing sentence, the judge found, amongst other things, that the offences had been committed pursuant to an agreement which had involved preparations being put in place to bring flammable liquid to the 13th floor of Immigration Tower; that the events had culminated in the deaths of two people when the liquid, after it had been kept in Room 1301 for a number of hours, was ignited; that the Immigration Officer had died in the line of duty; and that these criminal acts were done in an attempt to force the Government to give way to their demands.

11. The judge drew no distinction between any of the roles played by D2 to D7.

12. The judge did, however, draw a distinction between the mitigation of D2 to D5, each of whom had made a "firm offer" to plead guilty to the two counts of manslaughter which the prosecution had rejected, and D6 and D7 who had merely "explored the possibility" of such pleas being accepted. The judge went on to say that in all the circumstances he was not minded to give the full discount "which otherwise might be granted where a plea is offered".

13. Although there is no requirement in cases of manslaughter for a judge to specify a starting point (see: R v Lee Sau-ping, CACC 189/1995 (unreported)), the judge nevertheless did so, taking 14 years as the appropriate sentence after trial. He then reduced the sentences of D2 to D5 to 12 years, to give some effect to the offers they had made to plead guilty, whereas with D6 and D7, who had made no such offers, the judge gave each of them a smaller reduction which was reflected in their 13-year sentences.

The applications of D2 to D5

14. We propose to deal with the applications made by D2 to D7 for leave to appeal against sentence before we deal with D1's sentence.

15. It was submitted by Mr Edwin Choy in the only ground of appeal which he raised on behalf of D2 to D5, that their "firm offers" to plead guilty to manslaughter had been inadequately recognised in the two-year reduction from the 14-year starting point. Mr Choy did not criticise the starting point in itself.

16. Mr Choy drew our attention to HKSAR v Lau Chi-chiu, CACC 395/1998 (unreported) in which this court held that the full one-third discount should have been given to the appellant who was found guilty of simple possession of dangerous drugs after his desire to plead guilty to this, as an alternative to the trafficking count alleged against him, was rejected by the prosecution. In the event, the appellant ran the defence at trial that his possession of the drugs was for his own use and not for the purpose of trafficking.

17. The facts of that case are plainly distinguishable from the present. D2 and D3 both denied being party to arson, which was the unlawful act giving rise to the manslaughter offences, by asserting that the thinner in their bottles was never intended to be ignited, but was being used by them to frighten the immigration staff. D4 and D5 went a little further by suggesting that they had water, not thinner, in their bottles which they were holding merely to frighten the immigration staff.

18. In all these cases, therefore, unlike the situation which had arisen in HKSAR v Lau Chi-chiu (above), the denials of D2 to D5 to being part of a joint enterprise to commit arson provided them with a defence to the charges of manslaughter to which they had originally indicated an apparent willingness to plead guilty.

19. Mr Alain Sham, on behalf of the Respondent, has accepted that the offers from D2 to D5 to plead guilty were genuine at the time they were made. These were firm offers to admit both offences of manslaughter. As a matter of principle, therefore, these offers were deserving of some discount having regard to the ultimate conviction of D2 to D5 on charges they were prepared to admit at the outset of the trial.

20. However, whilst Mr Choy accepted that it would have been unrealistic to have expected the judge to give the full one-third discount normally given to those who plead guilty, where defences had been put forward not only to murder but also to manslaughter, he submitted that the discount which the judge had allowed was insufficient. It failed, he argued, to make sufficient allowance for the element of remorse reflected in their offers to plead guilty. Mr Choy also made the point that as D1, D6 and D7 were in any event going to plead not guilty, there was inevitably going to be a full trial, regardless of the course taken by D2 to D5.

21. It is apparent, from a number of cases which were brought to the attention of counsel in the course of argument, that the courts in Australia have grappled with this particular issue on a number of occasions. We consider that the principles which emerge from the practice in that jurisdiction to regard the offer of a plea of guilty as a mitigating factor, when the ultimate conviction is for a crime which matches the offer which was originally made, should, if such needs to be said, be adopted in Hong Kong.

22. In R v Oinonen [1999] NSWCCA 310 [60571/1998] (unreported), Grove J, giving judgment said:

".... There has been a long practice, however, in this court and in trial courts to take into account the offer of (a) plea of guilty which matches the crime for which a person is ultimately convicted.

The offer of that plea of guilty or, in usual circumstances, the actual plea of guilty, is of benefit to the person charged broadly in two ways: It is taken as an indication of remorse and contrition for the offence committed and, second, there is what is described as the utilitarian value of the plea; this includes the relief of the State from having to call witnesses and, indeed, the reliefs to the various witnesses of the burden of having to give evidence and potentially being cross-examined."

23. In a more recent case in the same court, R v Cardoso [2003] NSWCCA 15 [60631/2001], the applicant had offered to plead guilty to manslaughter. When this was rejected, the applicant had proceeded to run self-defence as his defence to murder. The trial judge was not referred to R v Oinonen (above), and, passing sentence, expressed the view that the offer to plead guilty had been of no utilitarian value and did not therefore entitle the prisoner to any discount. The Court of Appeal in that case concluded that the applicant's sentence should be reduced by giving recognition to the applicant's offer to plead guilty. In doing so, Hidden J remarked:

"It is not to the point that, that offer (to plead guilty) having been rejected, the applicant chose not to plead guilty to manslaughter in the presence of the jury and raised an issue at the trial which could have led to his outright acquittal."

24. This judgment confirms the principle that a genuine offer to plead guilty will carry some weight as mitigation. It is not to be read as saying that it is never to the point to consider all the surrounding circumstances of the offer to plead guilty when determining the worth of the mitigation. By way of example, in HKSAR v Lau Chi-chiu (above), the appellant's defence at trial to the allegation that he had been trafficking had been tantamount to a plea of guilty to simple possession of the drugs. He never sought to go behind his offer to plead guilty by making out, after this had been rejected, that he was entitled to an acquittal. It was highly significant that he had kept his mitigation intact. If the appellant in that case had not done so, he would plainly not have been given the same level of discount which is usually given to those who plead guilty.

25. D2 to D5, by contrast, did attempt to persuade the jury, when contesting the murder charges they faced, that they were not even guilty of manslaughter. In their cases, therefore, whilst recognition had to be given to their initial offers to plead guilty to manslaughter, the judge was, in our opinion, correct in his approach when he said that he proposed to give a lower level of discount than would have been appropriate for actual pleas of guilty.

26. We have also given some consideration to another aspect of these applications. This is to what extent, if any, a subsequent appeal against conviction may be an influence on the Court of Appeal when determining whether a sufficient discount has been given in respect of an applicant's original offer to plead guilty in the court below. As we pointed out to Mr Choy, the element of remorse which is normally reflected in any discount on sentence for a plea of guilty (or offer to do so) is, in such circumstances, singularly lacking. Not only did the Applicants contest murder and manslaughter at their trial but, when convicted of manslaughter, they had sought to appeal against conviction.

27. Whilst it may be that this consideration could have a bearing in certain circumstances, in the present case we have not considered it necessary to reach any firm conclusion one way or the other. It is, of course, the right of any convicted prisoner to appeal and we do not think it is desirable, without hearing considered argument on the point, to say anything which could be taken as an encroachment on that right. We have, therefore, disregarded this factor.

28. We took the view, in regard to the fact that D1, D6 and D7 were, in any event, going to plead not guilty, thereby necessitating a trial, that this was a factor which had only marginal relevance to the position of D2 to D5. In the event, the reduction by two years from the starting point of 14 years in each of their cases represents a little under 15% which in all the circumstances of this case seems to us to have been within the discretionary margins of what was appropriate.

29. We should emphasise, if it is not already plain, that if D2 to D5 had either pleaded guilty to the manslaughter alternatives, or run their defence cases to the murder charges along the lines suggested by the guilty pleas they had offered, they would obviously, in such circumstances, have been entitled to receive the full benefit for their pleas or offers to plead guilty.

The applications of D6 and D7

30. D6 and D7 were, for present purposes, not represented. Each of them has written a letter which we have read. Their letters contain submissions which are more or less identical. They set out how they wanted to make the staff at the Immigration Department, as well as the community generally, take serious notice of their claims to a right of abode in Hong Kong. They stated also that they had played an insignificant role in the case and that they did not intend to harm anyone, let alone Lam Siu-sing, the victim amongst their own group who died. D7 additionally referred to his family circumstances.

31. We have considered, in the light of these grounds, the propriety of the starting point adopted by the judge. We are satisfied that it cannot be described as manifestly excessive. Furthermore, in each of their cases, the "enquiries" which they had made about pleading guilty gave them no entitlement, in our view, to any discount. That they each received a discount of a year was more than generous bearing in mind that they had at no stage offered to plead guilty to manslaughter as an alternative to the murders alleged in counts 1 and 2.

Conclusion on the applications of D2 to D7

32. This case is not about the right of demonstration which the public may utilise to air its grievances. These Applicants knew well enough that they had, at no stage, been denied that right. On the contrary, great restraint had been shown by the staff at Immigration Tower in the face of considerable provocation.

33. In our judgment, when demonstrators turn to violent means to reinforce a grievance, however justified they may feel in the cause which has led them to demonstrate, and a peaceful demonstration is turned into a conflict where serious injury is a possible, if not probable, consequence, this will almost inevitably call for condign punishment. The courts owe a duty to protect those who, from time to time, find themselves in the front line having to maintain law and order in the face of mob violence. More often than not, it is the police who bear this responsibility. On this occasion, it was the Immigration Department. Sufficient measures have to be taken which will not only punish such offenders for acts of violence which put others in danger but will also act as a deterrent to others who, in similar circumstances, might otherwise be inclined to take the law into their own hands.

34. We consider that the sentences imposed on D2 to D7 were appropriate bearing in mind the extreme gravity of their actions. This was a case of arson in a public building, committed in a small and crowded room. It had been planned to take place if the authorities refused to give way to their demands.

35. Accordingly, the applications of D2 to D7 are dismissed.

Sentence of D1

36. We turn, finally, to a consideration of the sentence to be imposed on D1 under the provisions of section 83A of the Criminal Procedure Ordinance, Cap. 221.

37. Whilst D1 played no physical role in throwing or pouring thinner onto others or in setting it alight, we are satisfied from what he did and said, that he was well aware of the action which would be taken if the demands of the protesters were not met. Although he was an accessory to manslaughter in counts 1 and 2 and to arson in count 3, D1 was in a real sense the influential leader of the group of demonstrators whose commission of the offence of arson led to the deaths of two people.

38. Mr John McNamara, on D1's behalf, conceded that it was obvious D1 knew that the protesters had thinner in the bottles they were holding but he submitted that D1's sentence should not be any longer than the sentences imposed on D6 and D7. D1, like them, had made no offer to plead guilty.

39. Mr McNamara also submitted that D1, having spent a year under the shadow of a life sentence, had suffered a hardship none of the others involved with him had had to undergo.

40. We were provided, lastly, with a letter from Bishop Joseph Zen for which we are grateful. This provided an optimistic outlook about D1 for the future.

41. We have noted that there was no evidence to prove that D1 personally arranged for thinners to be brought up to the 13th floor of Immigration Tower or that the idea of using flammable liquid originated with him. However, his awareness that thinners were present in Room 1301 enabled D1 to utter death threats at the immigration staff; threats which were fulfilled soon afterwards with the tragic consequences which have brought D1 before the court. D1 orchestrated to a considerable extent the events which led up to the deaths and he must bear the heaviest penalty for so doing. In saying this, we acknowledge Mr McNamara's submission that the prosecution in the court below accepted D1 had earlier told immigration officers that, in the event of trouble, they should remove him from the room in order to cool matters down (see para 9(5) above).

42. The sentence we impose on D1 is 14 years' imprisonment on counts 1 and 2. These sentences are to run concurrently with each other and to the five years' imprisonment he is serving on count 3. We have been informed by Correctional Services Department that D1's sentence on count 3 has now almost been served and that, on 12 December 2003, he would be due to be released if that sentence had stood alone. For the avoidance of any doubt, the sentence of 14 years we have imposed on D1 will, to adopt the phraseology in section 83W of the Criminal Procedure Ordinance: "begin to run from the time when it would have begun to run if passed in the proceedings from which the appeal lay". In this way, D1 will not be penalised by having almost completed his five-year sentence for arson.

Hon Stock JA:

43. The issue raised on this application for leave to appeal against sentence, namely, the considerations which should guide a sentencing tribunal before whom an accused has been convicted of a lesser offence to which he offered initially to plead guilty, is an issue which has, as far as I am aware, not hitherto been the subject of close analysis by this Court. As Stuart-Moore VP has explained above, Lau Chi-chiu is in a category of its own, where the defence run is wholly consistent with the basis of the plea offered. I agree that in such a case, there should be no distinction drawn between the discount allotted upon a timely plea and that given upon conviction of the lesser offence only, where a plea of guilty was initially offered but rejected.

44. The situation which prevails in the case with which we are here concerned is different, in that the defence run was consistent with a full defence. But it is not an uncommon situation, especially where the indictment charges murder. In such a situation, the correct approach will depend upon a host of factors which will vary from case to case, and it would be inappropriate to set some tariff discount to cater for all cases where a verdict matches the original offer. Such an approach would undermine the very fact that sentencing is an art. That said, however, the Australian authorities to which reference has been made, and one or two besides, provide analyses which bear study by judges faced with the problem. I am safe in asserting that those authorities were not drawn to the learned trial judge's attention, for they were not drawn to ours either - it was this Court that provided them to counsel for consideration; and so one knows not to what extent the judge had in mind the principles to which they refer. I think that a proper application of those principles would have resulted in a discount materially larger than that given to the second to fifth applicants.

45. The unlawful act which is now identified by counsel for the respondent, and by the judgment of the Vice-President, as having underpinned the manslaughter verdict, is the crime of arson. My dissenting judgment of 12 June 2003 dwelt in part upon the lack of any or adequate identification, suitable to the manifold issues in the case, of the unlawful act, by the trial judge in his summing up, and upon the inevitability of a manslaughter verdict given the content of the directions. However, for the purpose of this sentencing appeal, I am bound to proceed on the proposition now put forward by Mr Shum for the prosecution, not articulated expressly as such in the court below by anyone, nor by counsel for the respondent in the course of the appeal against conviction, that the unlawful act was arson. Arson presupposes the destruction or damage by fire of property, with an accompanying intention to damage the property, or recklessness whether the property be damaged; or, in the more serious form of the offence, an additional intent to endanger life, or recklessness whether life be endangered. Mr Luk S.C., who signed the indictment and also prosecuted the case in the court below, did not by Count 3 assert the more serious form of arson, although Count 3 may well have been intended to provide a fall-back count in the event that all else failed. Even to this day, no-one has articulated, beyond saying that it was arson, which type or degree of arson is to be treated as the basis of the conviction. If it were said to have been recklessness, I would re-iterate the point I stressed in my earlier judgment at [134], that the judge told the jury that recklessness had no part in their consideration of the case.

46. Be that as it may, the fact is that the verdicts returned represent a far cry from the case which the prosecution set out to prove. The prosecution case is summarized, accurately, I believe, at para [121] of the judgment of 12 June 2003, and it was that these applicants went to the Immigration Department in order to set fire to persons in those offices. The evidence came nowhere near showing such a plan; or even a preconceived determination to commit arson come what may. By contrast, four of the applicants made a firm offer to plead guilty to manslaughter, and whilst we have no details of the basis upon which that plea was offered, it should be assumed to have been upon the very basis upon which the manslaughter verdicts were returned. It follows that the extensive course which this trial took was not a result of the manner in which these applicants ran their defence at all, but was the result of a decision by the prosecutors to run their case along lines which in the event failed; and, also, of the decision of D1, D6 and D7 to contest the case in any event.

47. In R v Cameron 187 ALR 65, the High Court of Australia suggested that to express the rationale for the discount afforded an accused for his plea of guilty, in so far as that discount did not depend upon factors others than remorse, as resting upon a saving of time and expense, was not reconcilable with the requirement that a person be not penalized for pleading not guilty, and that the rationale was better expressed in terms of credit to an accused for his 'willingness to facilitate the course of justice'. It is clear from a study of the case that that Court viewed that fact as one to which substantial weight was to be given 'even when the plea is not accompanied by any remorse or contrition' (page 75 at [42]). So, too, the judgment of Kirby J merits study for present purposes for its analysis of the element of remorse : see pages 81 to 82. That analysis, as it seems to me, illustrates that we, the courts, as well as advocates before the courts, are apt to treat all pleas of guilty as indicative of an equal level of remorse; when of course, that is a fallacy. Kirby J's view, as expressed in that judgment, at page 81, is that :

"The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner's resolve to avoid repetition of such conduct in the future and as an example to others".

48. I share the misgiving that much that is said about remorse as part of the standard discount is unrealistic, as well as the sentiment that in most cases when we accord a one-third discount for a plea of guilty, the factor which is most at play is the public interest factor attached to the applicant's willingness to allow proceedings to take their short course, without the need for the attendance of witnesses, a factor of especial importance in some categories of case.

49. Yet there are cases, and this is one, which by their nature might be expected to draw forth significant or particular remorse by those responsible for the consequential harm caused, but where the way in which a case is ultimately fought, after an offer of a plea to a lesser offence has been rejected, may well detract significantly from the suggestion that the original offer heralded remorse of a deeply felt kind.

50. At the end of the day, as Kirby J puts it at page 83 :

"Elements of intuition and judgment remain to be given weight in arriving at the aggregate sentence finally imposed."

51. I do not suggest that in the normal case of a plea of guilty, the courts should depart from the general rule, now well ensconced within our sentencing system, that such a plea should attract other than at least a one-third discount. But where there has been a plea of not guilty even to the lesser count or charge after a rejected offer of a guilty plea, and the verdict returned is a vindication of that offer, questions of intuition and judgment come most particularly into play. The court will have to recognize the degree to which a trial has run its course and the process prolonged for reasons which do not lie at the door of the accused; the degree to which, if at all, the nature of the defence run detracts from early suggestions of true, genuine, remorse; and the fact that the raising of an issue by the accused which might lead to outright acquittal (see the comments of Hidden J in this regard in R v Cardoso at [23] above) is not necessarily a factor which should materially tell against an accused in terms of the discount which he would otherwise receive. So, for example, the difference between conduct amounting to provocation such as might warrant a verdict of manslaughter, and conduct by the deceased which could give rise to a defence of self defence, may be a question of degree; a question of judgment. In such a case, depending on the circumstances, it may well be unjust to reduce the discount to any material extent at all simply on the footing that the case was in the event fought to the full. Conversely, there will be cases where the rejected offer is followed by a defence wholly at odds with any factual basis which could possibly have underpinned the offer; and in such a case, little weight indeed is likely to be given to the suggestion of genuine remorse.

52. It is said by Mr Shum in this case that the testimony of the applicants fell into the latter category; in other words that it was wholly at odds with the offers to plead guilty. That, in my judgment, is too simplistic and stark a view of the matter. It was not that black and white. The applicants at all times admitted a part in the events in question although, given the video tape evidence, it was difficult for them to do otherwise. They accepted that they carried bottles. Two accepted that their bottles contained thinner, and one of those two that he had poured the thinner. D2 admitted that he had poured thinner over himself and said that Lam had spoken of setting light to themselves in order to frighten the officers; but that he himself had no flame and had told Lam not to light. That account is not too far from one which spells complicity in a plan to set a fire with recklessness as to the consequences. D3 had a bottle of thinner and hoped to use it to frighten. Again, the factual dispute was within a short compass. The suggestion he advanced that he poured nothing, even if believed, might not have saved him, given the directions about joint enterprise. D4 and D5 took the defence they advanced one stage further, however, suggesting they thought that they had water in their bottles, and a lie of this kind, as we must for present purposes assume it was, must reflect to the disadvantage of those applicants when it comes to the question of discount, for by its nature, and given the factual setting of this whole case, it derogates somewhat from any suggestion of true remorse for a protest having gone far too far.

53. I agree with Stuart-Moore VP that the discounts given to D6 and D7 were over generous. They have nothing to complain about.

54. The cases of D2, D3, D4 and D5 are more difficult. I am conscious of the fact that this is an appeal and that tinkering with assessments by a trial judge is to be avoided. Yet the trial judge had not the benefit of the authorities we have cited, and we have here had an opportunity to study the principles in some depth; and, in my judgment, the application of those principles to the facts of this case show that, whilst the applicants are not entitled to the full one-third discount, sufficient discount was not accorded to the original offers made by them. Had the pleas tendered been accepted, there can be no question but that, assuming the same starting point of fourteen years' imprisonment, the sentence imposed upon each of these applicants would have been one of 9 years and four months' imprisonment. If we abjure for a moment the language of percentages, we see that the difference is one of 56 months of which, as a result of the sentences in fact passed, only 24 months represents the willingness of these applicants at the outset to let justice run its short course to the result which the jury eventually decided was the proper result. In my judgment, the correct sentences in the case of D2 and D3 was one of 10 and half years' imprisonment, and in the case of D4 and D5 a sentence of 11 years. For my part I would give leave and allow the appeals to that extent.

55. As for D1, I agree that the appropriate sentence in his case is one of 14 years' imprisonment.

Stuart-Moore VP:

56. Accordingly, by a majority, the applications by D2 to D7 for leave to appeal against sentence are dismissed.

57. So far as D1 is concerned, his sentences on counts 1 and 2 for manslaughter will be 14 years' imprisonment. These sentences will run concurrently with each other and with his sentence for arson on count 3.