R. v. NG KIN MING

IN THE COURT OF APPEAL

1994, No. 275
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. Ng Kin Ming was convicted after trial of (1) attempted murder and (2) causing an explosion likely to endanger life. He was sentenced to imprisonment for 25 years on count 1 and 15 years on count 2. The learned trial judge ordered five years of the 15 years for count 2 to run consecutively to the 25 years for count 1, whilst the balance of 10 years was to run concurrently with the sentence on count 1. The totality was therefore one of 30 years' imprisonment.

2. Having heard counsel, we dismissed the appeal against conviction and allowed the application for leave to appeal against sentence. Treating the hearing of the application for leave to appeal against sentence as the hearing of the appeal. We allowed the appeal by reducing the sentence on count 1 from 25 years to 20 years and ordering the sentence of 15 years on count 2 to run concurrently with the sentence on count 1. The totality of the sentences was thus reduced from 30 years to 20 years.

3. We now give our reasons for our decisions.

4. The facts may be shortly stated

5. At about 2:30 pm on 13 February 1991, the victim Mr Lam Man Tat was on duty behind the reception counter of Holiday Inn Golden Mile Hotel. He received a parcel by mail. He took it to an office in the rear of the reception counter and placed it on a table. As it was the day before Valentine's Day his parcel attracted the attention of quite a number of his colleagues. After opening the outer wrapping of the parcel the victim noticed two red packets traditionally used for containing money gifts. The two packets were placed on top of a red card placed in the centre of the parcel. As the parcel was very well wrapped, he thought the only way to open it was to tear away the red packets and the red card. When he attempted to do so, the parcel exploded.

6. The parcel was an open metal box wrapped in paper. It contained a large number shrapnels, carpet tacks and nails.

7. The explosion caused serious injuries to the victim: very bad burns to the face, hands and body. A female staff who was passing by was also injured. It also caused extensive damage to the office. A shrapnel was found embedded in the ceiling.

8. Ng Kin Ming's defence was that he was not the one responsible, that he did not do it. There was however ample evidence to show that he was the one responsible for sending the explosives.

9. The main ground of appeal is that the learned trial judge misdirected the jury on the issue of mens rea for attempted murder.

10. It is of course trite law that the only mens rea for attempted murder is the intent to kill. Without addressing ourselves to the different passages in the judge's summing up which counsel for the appellant said were erroneous, we think it necessary to say only that the summing up, taken as a whole, could well lead the jury to think that an intent to do grievous bodily harm would suffice. In our judgment, to the extent indicated above, the trial judge made an error.

11. Having said this however, in our judgment the facts of the case were such that, having regard to the contents of the parcel and the force of the explosion, the jury would inevitably convict the accused of attempted murder if properly directed.

12. It is for this reason that we applied the proviso and dismissed the appeal against conviction on count 1.

13. The appeal against count 2 is dismissed.

14. As to sentence, the judge, with respect erroneously, took into account the remission the accused might earn whilst serving his term of imprisonment. Remission is a possibility, earned by good behaviour whilst in prison, and not a certainty. It should therefore never have been taken into account whilst assessing sentence. Also, a totality of 30 years is approaching very close to the worst case of this type. One could, without much difficulty, imagine crimes worse than that committed by the appellant, such as terrorist activities or random attacks in a crowded place.

15. Taking all the circumstances into consideration we considered a totality of 20 years appropriate. We therefore reduced the sentences in the manner indicated.