HKSAR v. CHAN LAP TAK

CACC 472/2012

[2019] HKCA 295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 472 OF 2012

(ON APPEAL FROM HCCC 121 OF 2012)

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REASONS FOR JUDGMENT

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Hon M Poon J (giving the reasons for judgment of the court):

1.  The applicant pleaded guilty to one charge of conspiracy to throw corrosive fluid with intent to do grievous bodily harm[1]. It was alleged that the applicant committed the offence jointly with the first defendant and five other named co‑conspirators. He was sentenced to 12 years’ imprisonment by Barnes J on 9 November 2012. At the hearing before us, we granted leave to treat the applicant’s Notice of Abandonment filed on 1 December 2014 as a nullity and set aside the abandonment. We granted leave to appeal against sentence out of time. We allowed the appeal, set aside the sentence of 12 years and replaced it with a sentence of 10 years. We indicated that we would hand down our reasons in due course. That we do now.

Procedural History

2.  On 11 October 2013, by a Form XI Notice of application, the applicant applied in person for leave to appeal against sentence out of time. On 1 December 2014^[2] he abandoned the application by a notice of abandonment.

3.  By an affirmation on 26 January 2018, the applicant applied in person to re‑open his application for leave to appeal against sentence.

4.  The Legal Aid Department has since taken up this case.  A notice of motion was filed on 7 November 2018 together with a 2nd affirmation in support (affirmed on 6 November 2018), whereby the applicant seeks leave to treat the abandonment in 2014 as a nullity and, if allowed, for leave to appeal against his sentence out of time, and other consequential orders^[3].

Facts

5.  The summary of facts^[4] to which the applicant admitted was in gist as follows.

6.  On 27 October 2009, Mr Neil Mitchell, counsel on fiat prosecuting a criminal case in the Wanchai District Court, was approached by two men when he left the court building for lunch.  Two men threw corrosive fluid from paper cups they were holding onto the face and jacket of Mr Mitchell at the pavement outside the entrance.  He felt a burning sensation in his left eye and mouth and was later taken to the hospital.  He suffered from chemical injury to his left eye, left ear and left cheek.  Chemical burns to his left cornea were only finally healed by 26 January 2010.

7.  The corrosive fluid was sulphuric acid at a concentration between 53% and 66% weight by weight.

8.  The applicant fled to the Mainland afterwards and was arrested when he returned to Hong Kong on 2 November 2011.  He stated under caution that he was contacted about two weeks prior to the incident by someone (“X”) (not named by the applicant) to carry out a job to stop a woman, which subsequently changed to a Western man with a bald head, from attending court for a reward of HK$60,000.00.  He then recruited Lai Kwok Leung (“Ah Ki”) (one of the named co‑conspirators in the charges) at a price of HK$30,000.00 to do the job.  One of the ways they discussed was to pour fluid over the victim so that he would be admitted to hospital.  One day prior to 27 October 2009, the applicant and Ah Ki went to the court building to identify the targeted Westerner and on the day in question, he waited on the 8th floor of the building for the others to carry out the job.  On learning that the job was completed, he went to the ground floor and saw the victim with injuries on his face.  He then left and notified X.  However, X told him the day after that the boss was not satisfied and refused to pay the reward.  In the end, he had to give HK$10,000.00 out of his own pocket to Ah Ki.  He then left Hong Kong for the Mainland to avoid detection.

Reasons for sentence

9.  The judge stated that throwing corrosive fluid with intent to do grievous bodily harm was a serious offence, liable to life imprisonment on indictment.  She took a serious view of the facts of this case as this was a cold‑blooded and calculated attack by a group of men on a total stranger for reward with the aim to injure the victim to ensure that he could not carry out his duty as a prosecutor[5].

10.  The judge noted that the applicant, whilst not the mastermind, was actively involved in recruiting others and was physically inside the court building at the time of the attack to make sure the job was done.  A starting point of 18 years was adopted.  A one‑third discount was given for the guilty plea, but the judge held that the assistance rendered by the applicant giving a non‑prejudicial statement had neither “borne fruit” nor achieved “tangible results”.  No further discount was given and the applicant was sentenced to 12 years’ imprisonment.  The judge further stated that any useful assistance given by the applicant in future could be taken into consideration either by the Court of Appeal or by the Long‑Term Prisoners’ Sentence Review Board.

Application to treat abandonment as nullity

11.  The applicant referred to the transcripts of two mention hearings on 27 February and 25 November 2014 before Cheung CJHC (as he then was), exhibited (CLT‑3) in the applicant’s 2^nd affirmation.

12.  During the 1^st mention hearing on 27 February 2014 the prosecution acknowledged that the applicant had provided information but it was premature to tell whether the assistance was useful.  By the time of the adjourned mention hearing on 25 November 2014, still no arrest had been made.  Miss Wong, on behalf of the applicant, submitted that after the dialogue with CJHC, the applicant was labouring under the impression that should he abandon his leave to appeal out of time against sentence, he could re‑apply in future should there be good reason.  Shortly thereafter, the applicant filed a Notice of Abandonment.

13.  The unnamed X, turned out to be a Mr Chim (“Chim”), was arrested in February 2017.  The applicant positively identified Chim in an identity parade and confirmed that he was willing to testify against Chim.  On 23 January 2018 Chim pleaded guilty to conspiracy to pervert the course of public justice and was sentenced to 25 months’ imprisonment.  Three days after Chim’s plea, the applicant applied by affirmation to re‑open his application for leave to appeal against sentence.

14.  Miss Wong submitted that the applicant, acting in person in the two mention hearings in 2014, abandoned the application in the expectation that he could re‑apply again in future should there be any good reason, which he understood to be the arrest and conviction of Chim.  As such, although his act of signing the Notice of Abandonment was deliberate, he never abandoned his appeal against sentence in full knowledge of the nature and consequences of the nature or effect of signing.  Miss Wong submitted that in the present case, the abandonment could be treated as a nullity.  It was further submitted that should the court find against the applicant on this matter, the court can invoke s 83P of the Criminal Procedure Ordinance, Cap 221 to invite the Chief Executive to refer the case back to us to for disposal. 

15.  The respondent accepted that, on the basis of the two mention hearings, there was evidence to show that the applicant did not understand the nature and effect of signing the notice of abandonment such that his mind could be said not to go with the act of abandonment.

Our views

16.  The principles applicable to an application to treat an abandonment as a nullity were stated by Kwan JA in HKSAR v Ip Wai Ho Micky [2015] 5 HKLRD 567 at para 23:

“23. . . . The burden is on the applicant to persuade the court by credible evidence of facts which would satisfy the nullity test (HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 100 at [14] and [16]). He would need to show that the abandonment ‘was not the result of a deliberate and informed decision’. In other words, he did not intend to abandon the appeal, or did not understand the nature or effect of signing the notice of abandonment such that his mind could be said not to go with the act of abandonment (R v Bridges (1998) 104 A Crim LR 322 at [329]‑[330]). . . .”

17.  Having read the contents of the transcripts of the two mention hearings, received by this court pursuant to s 83V(1)(a) of the Criminal Procedure Ordinance, Cap 221, we are of the view that Cheung CJHC was obviously having in mind s 83P of the Criminal Procedure Ordinance, Cap 221, mentioned earlier, and an entirely different procedure, whereas the applicant had misunderstood him to mean he could re‑open his application for leave to appeal against sentence should there be good reason, especially in view of the fact that the applicant revived his application soon after he identified Chim upon the latter’s arrest.  This is completely different from cases where applicants were wrongly advised on the prospects of their appeals[6]. We are satisfied that there is before us credible evidence that can satisfy the nullity test.

18.  Therefore, we granted leave to treat the applicant’s Notice of Abandonment filed on 1 December 2014 as a nullity, set aside the abandonment, and proceeded to deal with his appeal against sentence.  We do not feel it necessary to express our views on s 83P of the Criminal Procedure Ordinance, Cap 221, suffice it to say that such a power is only to be deployed in extremely exceptional circumstances.

Grounds of appeal against sentence

19.  The sole basis of the appeal against sentence was the applicant’s assistance to the police, in that the information provided by the applicant was acknowledged to be useful in bringing Chim to justice.  Ms Claudia Ng for the respondent confirmed that as a result of the applicant’s non‑prejudicial statements and his positive identification of Chim, Chim was charged with conspiracy to pervert the course of public justice.  The applicant was listed as a prosecution witness, but as Chim pleaded guilty the applicant was not required to testify.

Discussion and conclusion

20.  In Z v HKSAR (2007) 10 HKCFAR 183, Li CJ referred to the discount approved by the Court of Appeal in respect of those who gave assistance to the authorities.  At paragraph 23 he said:

“23. The Court of Appeal is well placed to consider the range of reductions of sentence for co‑operation with the authorities. 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 p.340. (Compare its earlier decision in HKSAR v Ng Shek Yu (unrep., CACC No.178 of 2000, [2001] HKEC 243) 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). HKSAR v Lee Yat Fan (Unrep., CACC No. 414 of 1999, [2001] HKEC 662). Where the level of co‑operation is such as to place the appellant in the ‘supergrass’ category, a maximum discount of two‑thirds has been used. R v Chan Fu Kui [1986] HKLR 967 at p.968, HKSAR v Ng Shek Yu (at p.3).”

21.  The Court of Appeal in HKSAR v Lo Sze Tung, CACC 190/2017, [2018] HKCA 421, reviewed the authorities relating to the 40% to 50% discount, in particular, where a defendant agrees to testify for the prosecution but is prevented from fulfilling his promise because the offender pleaded guilty.  We are of the view the applicant falls within this range.  Miss Wong acknowledged that to be the usual range.

22.  We were of the view that a discount of 44.4 % is appropriate for this applicant taking into account the totality of his assistance.  We therefore allowed the application to appeal against sentence, set aside the sentence of 12 years and replaced it with a sentence of 10 years.