THE ATTORNEY GENERAL v. CHEUNG SHU-TAI & OTHERS

IN THE COURT OF APPEAL

1993, No. 12
(Application for Review)

________________

________________

_______________

J U D G M E N T

_______________

Mortimer, J.A. (giving the judgment of the Court)

Before we deal with the Attorney General's application for review of sentence, Cheung Shu-tai appealed originally against the sentence imposed upon him, but through counsel he has abandoned that appeal on the recognition that there was no basis upon which he could challenge the sentence.

1. Turning to the Attorney General's application for review of sentence in respect of the four respondents, we have set out the facts in the application of two of those respondents for leave to appeal against conviction. It is not necessary to repeat them save to say that each of the respondents was convicted of a joint offence of causing an explosion likely to endanger life or cause serious injury to property, contrary to s.53 of the Crimes Ordinance, Cap.200. It suffices to say that on 13th August 1992 a bomb made out of a cut plastic Coca-Cola bottle packed with commercial explosives which was attached underneath a car in Park Tower, Causeway Bay, exploded, causing devastating damage to that car and to the cars nearby. The intended victim, Ho Kwok-leung was saved from death or serious injury because he noticed smoke from the burning fuse when he came to his car. He was fortunate that he was away from the car fetching a fire extinguisher when the explosion took place.

2. The roles which each of the respondents in that offence was as follows. Yim Chun-lung was the mastermind of the offence and could be said to be the main culprit. He was a business associate of the victim and he wanted the victim either killed or seriously injured. He was also the pay master. He approached Wong Kwan- pak, his brother-in-law, to assist in this enterprise. He did so with enthusiasm. The way in which he assisted was to recruit Law Tin-ho who owed Wong money. Law knew about explosives from his experience as a fisherman and from Mainland China he obtained the explosives, the detonator and the fuse. He had the necessary skill to make the bomb. This included a magnet to attach the bomb to the underneath of the car and a fuse of sufficient length to time the explosion to occur when the victim was either at the car or driving it.

3. Cheung Shu-tai was recruited by Law with the offer of money which he denies that he ever received. His particular part in the offence unclear. He is 55 years of age and at the time was a street sleeper. He was recruited two days before the explosion. According to Law, at that time he wanted someone else to plant the bomb and to ignite the fuse. It is certainly not clear that Cheung did either of those things.

4. Cheung Shu-tai, Wong Kwan-pak and Yim Chun-lung were tried. After trial, they were convicted. Law pleaded guilty before the trial and had indicated his intention to plead guilty long before the trial. He then gave evidence against the other accused. When it came to sentence, the judge's summary of the parts played by each of the respondents is undoubtedly accurate. He reviewed not only the fact of the case and the serious nature of the offence, the public abhorrence for this type of offence and noted that it was a miracle in the circumstances that no one was injured. He pointed out the undoubted risks to the public, not only from the explosion in the car park where it actually took place, but the risks to the wider public if the car was being driven on the road at the time.

5. We express some sympathy with the judge for the sentencing problem he faced. He had little guidance about this type of offence because fortunately in recent times such an offence is almost unknown in Hong Kong. Faced with the problem he chose 12 years as his starting point. He then took into account the personal circumstances and history, first, of the two main culprits, Yim and Wong. He reduced Yim's sentence to 9 years; and Wong's to 8 years, the distinction between the two being Wong's age. At the time he was only 20 years. In the judgment of this Court the judge rightly came to the conclusion that there was little to choose in culpability between those two respondents. Both had the intention to kill or to seriously injure the victim.

6. So far as Law is concerned, the judge rightly took into account his plea of guilty- he had pleaded guilty early or had indicated his intention of doing so - and that he had given evidence for the Crown, no doubt at some personal risk. The judge reduced the sentence which he would otherwise have passed in broad terms by about 50% and gave him 5 years.

7. One of the matters which he took into account was his intention. He was not able to say that he had the actual intention of killing or injuring the victim. How much weight in mitigation this should be given is questionable, for the offence of causing an explosion of a nature likely to endanger life or cause serious injury to property is itself a very serious offence.

8. So far as Cheung in concerned, the judge took the view that his involvement in the offence was very different and much less than the other respondents. Taking that into account he was sentenced to 5 years imprisonment.

9. The Attorney General's application for review is on three main grounds:

(1) That having regard to the gravity of the offence the judge was wrong in adopting a starting point for sentence of 12 years. It is submitted by Mr Saw that the starting point ought to have been much higher.

(2) That the judge was wrong in granting such substantial discounts from that figure having regard to the nature of the offence.

(3) That the judge ought to have imposed a sentence which more adequately reflected the circumstances that the explosion was intended to endanger life rather than simply to damage property - at any rate so far as the two main culprits are concerned.

10. So far as the judge's reasons for sentence are concerned and his summary of the factors to be taken into account, they cannot be faulted. There are two matters, however, in which this Court considers the judge was clearly in error. First, in his choice of 12 years as a starting point, and secondly, for the size of discount that he gave in the circumstances of this particular case for the mitigating features which had been advanced.

11. It has not been suggested by counsel and, indeed, it could not in our judgment, be useful to suggest that this is a case where guidelines for sentencing are either possible or in the present circumstances in Hong Kong, required. However, it is an offence which will always be serious Public abhorrence for an offence which puts ordinary members of the public in serious danger is obvious. It will always call for heavy punishment in which retribution and deterrence will be the main considerations. Nevertheless, to balance the matter, there are undoubtedly more serious instances. One obvious one is where terrorists seek to attack the integrity of the state by causing widespread public fear in a wave of bombings. Such cases would call for extreme and condign punishment. This is not such a case. Nevertheless, as we have indicated, it is a case of considerable gravity in which members of the public and the victims are put at serious risk. As the judge said in sentencing:

"It was indeed a miracle that no one was hurt."

12. On the facts of this case, it is the opinion of this Court that the starting point ought to have been in the region of 15 years. From that some adjustment is possible having regard to the matters urged in mitigation and taken into account by the judge. The weight to be given to those matters will of course vary. We do not wish to say anything about the matters which the judge took into account, but in a case of this nature, so far as Yim Chun-lung and Wong Kwan-pak are concerned, he gave them too much weight. Giving them proper weight, we reduce the sentences of 15 years as a starting point to 14 years in respect of each. Yim Chung-lung and Wong Kwan- pak.

13. Law Tin-ho falls into a different category, because of his plea and the fact that he gave evidence for the Crown. He is still prepared to give evidence in a trial yet to take place of the driver of the car which took those who planted the bomb to the place. We consider that the judge's reduction of sentence in his case of approximately 50% was correct and the sentence which ought to have been passed, had the judge chosen the correct starting point, was one of 7 years imprisonment.

14. It follows from what we have said in relation to those three respondents that the Attorney General's application to review those sentences must be allowed. The sentences passed by the judge were manifestly inadequate and wrong in principle having regard to the offence and the role which each played in it. In each case we allow the review and substitute sentences of 14 years for Yim Chun-lung and Wong Kwan-pak and a sentence of 7 years imprisonment for Law Tin-ho.

15. We turn now to the Attorney General's application to review Cheung Shu-tai's sentence. Cheung's involvement in this offence was very different from that of the others. The evidence given by Law against Cheung that he had been anxious to light the fuse and took it upon himself to do so was suspect. Law had said no such thing in his earlier statements. The matter was left to the jury because of one question and answer in Cheung's voluntary statement to the effect that he was standing nearby and if anyone had come, he would have informed Law who was at that time lighting the fuse or planting the bomb. Nevertheless, his role compared with the others was a minimal one. He is 55 years old, nearly double the age of the others. He was a street sleeper at the time. He is uneducated and, we believe, an illiterate. The purpose of him being brought in two days before is unclear. In these circumstances the judge, who was presiding at the trial and who saw him give evidence, was in a better position than this Court can ever be, to judge his particular participation. In those circumstances we are not persuaded that the sentence of 5 years passed by the judge was either manifestly inadequate or wrong in principle and the application for review in his case is refused.