HKSAR v. YIP KIM WAH AND ANOTHER

CACC 307/2015

[2019] HKCA 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 307 OF 2015

(ON APPEAL FROM HCCC NO 328 OF 2014)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Pang JA (giving the Judgment of the Court) :

1.  The applicants (‘A1’ and ‘A2’) were the 1^st and 2^nd defendants at trial.  They were jointly charged with one count of ‘causing grievous bodily harm with intent’ (Count 3) and one count of ‘theft’ (Count 2).  On his own, A1 was charged with a further count of ‘theft’ (Count 1).  To these charges, the applicants had pleaded not guilty, but were convicted after trial before Esther Toh J and a jury, and were each sentenced to 19 years’ imprisonment.[1]  The applicants apply for leave to appeal against both conviction and sentence.

The Charges Explained

2.  The prosecution case was that the applicants ‘chopped’ Mr Kevin Lau Chun-to, a well-known journalist and news editor, on 26 February 2014 (Count 3).  In order to carry out the attack, but also to cover their tracks, it was the prosecution case that the applicants also stole a motorcycle (NB 3861), on either 12 or 13 February 2014 (Count 2), who then replaced its number plate and, more pertinently, its vehicle licence with one that was stolen.  That latter licence, the prosecution alleged, was stolen by A1 from another motorcycle (BW 6873) sometime between 8 and 13 February 2014 (Count 1).

The Day of Attack & Before

3.  As per paragraphs 6 to 8 of the 1^st Admitted Facts,[2] a huge number of CCTV footages were seized by the police during their investigation into Mr Lau’s attack.  They came from 31 locations from all over Hong Kong.  Based on these footages, and other leads and evidence,[3] the prosecution averred that the applicants were originally planning to attack Mr Lau on 25 February 2014.  On that day, images of the two assailants and their motorcycle were captured both near Mr Lau’s home (La Salle Road, Kowloon) and his usual place of breakfast (Lei King Wan, Hong Kong Island),[4] without any incident.

4.  Recounting that there was a sudden break in Mr Lau’s routine which the prosecution said was the reason why the attack on the 25^th was aborted, Toh J (‘the Judge’) summarised the events of 25 and 26 February 2014 as follows :[5]

“ [Mr Lau] …… gave an account of his usual routine. He goes from his home to Lei King Wan for breakfast at a local café before 11 am. He would return to his office in Chai Wan and start his preparation of online news. He says that he lives in La Salle Road, in Kowloon Tong, and to get to the restaurant he would normally use the Eastern Tunnel.

He remembered a little of what he did on 25 February last year. He said he left home as usual on 25 February but he did not go to his usual breakfast at Lei King Wan. He went to Telford Gardens instead, and then from Telford Gardens he went back to his office at about 11 am.

Then on 26 February, he said he left home about 9.30 and he went through the Eastern Tunnel as usual, parked at Tai Hong Street. He opened his car door, alighted, he turned around to take out some rubbish from inside his car and then he felt that he had been attacked. At first, he did not know what it was that had struck him. He felt numbness on his two legs. He looked up and he saw in front of his car there was a motorcycle and a person wearing a helmet was on the motorcycle. Then he saw a person wearing a helmet hop on the back of the motorcycle and the motorcycle left very fast.

He then noticed there was blood on his palm from his body. His legs felt weak. He sat on the ground. He knew he was injured and he therefore dialled 999. He was subsequently taken to Eastern Hospital and he was subsequently transferred to Queen Mary and the MacLehose Rehabilitation Centre as an inpatient. So he was in hospital for quite a few months. He said it was till July 15, and then subsequently he received physiotherapy three times a week and is still receiving physiotherapy when he came before you to give evidence. He says each time it was three‑and‑a‑half hours, so his injuries were quite extensive.

He said his car is purplish-blue and you remember he identified his car in the photographs. He said that the motorcycle he noticed stopped on the left front of his vehicle. He also recognised that in photo 8, do you remember he said he was wearing a belt. The cut was so severe that it cut his belt, and you can see it in the photograph. He also recognised the photo which was recovered from the 2nd defendant’s mobile telephone, the Samsung mobile phone, which he said was taken at a seminar function. He thought it was sometime in 2013.

In cross-examination, he agreed that he could not identify any of his attackers.”

5.  There were eyewitnesses to the attack but, like Mr Lau, they were unable to see the facial features of the assailants because they were wearing helmets :[6]

“ Then the next few witnesses were the eyewitnesses and I do not think I need to remind you of their evidence. It was clear that they each saw a different part of the attack but none of them were able to identify the attackers and you may think it is, well, quite reasonable because both of them, the one on the motorbike and the one who did the chopping were wearing helmets, so it would not have been possible to identify them.”

Establishing the Assailants’ Identities

6.  Amongst other things, the seized CCTV footages provided a link to A1’s own private car and A2’s Octopus Card, both of which were believed to have been used in connection with the attack[7].  The identities of the applicants were therefore quickly established.  They were corroborated by such evidence as A2’s right thumb print on the stolen motorcycle’s false number plate: the motorcycle itself having been located in Sai Wan Ho by 6 pm on the day of the attack.

The Arrest & Return of the Applicants

7.  On 6 March 2014, a request was made by the Hong Kong Police to Guangdong Provincial Public Security Department (‘GPPSD’) to “locate and arrest” the applicants.  On 9 March 2014, the Hong Kong Police were informed by GPPSD that the applicants had been arrested (8 March).  On the afternoon of 17 March 2014, as a result of further liaison, the applicants were handed over to the Hong Kong Police at Lok Ma Chau and were arrested.

Cautioned Statements, Interviews & Re-enactments

8.  Immediately upon being arrested by the Hong Kong Police and cautioned for Mr Lau’s attack, A1[8] and A2[9] stated respectively as follows.  They were reduced into the police officers’ notebooks as post-recorded cautioned statements :

“ I was paid to do a job only. I was responsible for driving only. It was Wah Chai who slashed at someone.”

“ I, when slashing at him, didn’t know that he was Lau Chun-to. I didn’t know that it turned out to be such a mess.”

9.  Further on the same evening, and at different stages during 18 and 19 March 2014, the applicants were taken through a number of cautioned interviews (A1, five; A2, four) and case re-enactments (one each) all of which were recorded on video, and which contained highly incriminating admissions.

10.  As a preliminary issue, however, A1 and A2 did not challenge their verbal admissions, notebook entries or first and second interviews.  These were later contested before the jury.[10]  Instead, the applicants objected to their third, their fourth and, in the case of A1, his fifth interview, plus their case re-enactments, on the ground that full and complete confessions had already been made in the earlier ones, at which point the police should have stopped and charged the applicants, as they were obliged to do under the Secretary for Security’s Rules and Directions on the Questioning of Suspects.[11]

11.  In the end, the above argument turned out to be partially successful: taking the view that case re-enactments served the unique purpose of showing how an offence or offences were committed, the Judge admitted those into evidence; all the contested interviews she ruled out after the voir dire.

12.  As was left to the jury, this is roughly what A1 admitted in his first and second interviews, insofar as it directly concerns the attack and his and A2’s escape: A1 and A2 stole the motorcycle in Count 2; A1 was also involved in stealing the motor vehicle licence in Count 1; the “beef knife” used in chopping Mr Lau was purchased a month before the attack; A1 and A2 started following Mr Lau around about a week before the incident; they failed to attack Mr Lau on 25February because they lost his car at a road junction; on the 26^th, A1 picked A2 up using his own private car; they went to Kowloon Tong, changed over to the stolen motorcycle and followed Mr Lau to his usual place of breakfast; as A1 was the driver, it was A2 who got off the motorcycle and did the chopping; after the attack, they parked the motorcycle at a nearby place and made their separate ways back to Kowloon Tong by taxi; from Kowloon Tong, A1 drove A2 to Fanling where they discarded the beef knife and some of their clothing; on the same afternoon, A1 and A2 crossed into the Mainland; after a few days, A1 came back to Hong Kong alone; he collected some cash from home, discarded everything that he had been wearing since the attack and then re-entered the Mainland again; because of the attack on Mr Lau, it was not A1’s plan to return to Hong Kong within a short period.

13.  Similar admissions were made by A2 in his first and second interviews.  Major additions included a clarification on where A1’s private car and the stolen motorcycle were parked and retrieved on the day of the attack (not just Kowloon Tong but Kowloon City as well), and that, on the same afternoon, a trip was made by the applicants to a Sheung Shui shopping centre to purchase some new shoes (A2 was afraid he might have left traces of the attack on the old ones).  It was also let on that, after spending a few nights in a bathhouse, arrangements were made for the applicants to stay with a friend of A2 in Dongguan but it was at that point that they were arrested by the Mainland police.

14.  As was mentioned above, many of the applicant’s movements, including their shoe-shopping trip and border-crossing on the 26^th, were captured on CCTV.  The case re-enactments, on the other hand, added little in terms of admissions by the applicants.

Contesting the Remaining Interviews in and as Part of the Trial Proper

15.  Whereas up to eight prosecution witnesses were called during the voir dire, the defence had called none.  This is not at all surprising given the basis on which the defence objection to the applicant’s later interviews and case re-enactments was raised: a procedural breach calling for an exclusionary exercise of the Judge’s discretion.[12]

16.  Judging from what they said in the trial proper, where they did give evidence, however, the applicants’ true case is one of threats and violence.

17.  Confining themselves to what was, in the main, deliberately left before the jury, which significantly included their first and second video recorded interviews, the applicants’ allegation in a nutshell was as follows :[13]

“ …… The 1st defendant says, because of what had happened to him, that his video recorded interview, his confession in there, are unreliable as it was not the truth and it was made as a result of the torture he had received on the Mainland and the threats and assaults when he came back to Hong Kong, and that he was threatened, essentially, that if he did not cooperate he would be sent back to China.

……

           Equally, the 2nd defendant says he confessed in Hong Kong on the video recorded interview because he was tortured also on the Mainland, and he had also been threatened that if he did not confess then he would be returned to China and also his wife and family was also threatened …....”

18.  With regards to the general issue, A1’s case was :[14]

“ …… [h]e is an electrical mechanic. He is self-employed. He has known the 2nd defendant for over 20 years, a friendship. They work and play together.

He says he did not steal any vehicle licence or motorcycle and he did not attack Mr Lau. He remembers that on 25 February he asked the 2nd defendant to go to Kowloon Tong with him to look for a former boss who owed him money. So they parked at Devon Road and he was told by a friend that that boss will be in the vicinity, so he then paid with his own Octopus card. They waited for about an hour but did not see the boss so they decided to leave.

Then on 26 February he said he left home at about 9 am and again went to pick the 2nd defendant to go to Devon Road again to try and locate this former boss. And upon arriving at Devon Road the 2nd defendant said he was hungry and went off for breakfast, so he got off and the 2nd defendant then drove his car away to go eat breakfast. The 1st accused said he waited for the debtor for an hour-odd and then he rang up the 2nd accused to go pick him up at Kowloon Tong Railway Station and then he went to buy cigarettes. The 2nd defendant after that picked him up and they went back to Sheung Shui. Then the 2nd defendant said he wanted to shop for a pair of shoes so they went to buy shoes.

He agrees that the photographs taken in Devon Road on the 25th and 26th and taken of him in 7-Eleven was actually him.

He said that on 26 February, after buying shoes, then they each went home. Then later on in the afternoon he called the 2nd defendant after 2 pm and suggested to go to the Mainland for massage and the 2nd defendant agreed. He said the 2nd defendant was married and he knew that the 2nd defendant’s wife came from the Mainland but did not know from which province. They stayed at the massage parlour in Shenzhen overnight and stayed for two or three days. Then he came back to Hong Kong by himself.

He left 44 minutes later to return to the Mainland. He said his reason for coming back to Hong Kong was to change his clothes. He said he heard about the chopping of Mr Lau on the TV in the sauna parlour. Then he said he went to Guangzhou then to the 2nd defendant’s friend’s house in Dongguan to visit a friend. Then he stayed there for a week. Then one night, while having supper with the 2nd defendant, 10-odd people came, pressed him down in plain clothes. The 2nd defendant also was pressed down and then these men took his wallet, mobile and a photo taken out and said he was Yip Kin-wah. The photo that was shown to him was like his re-entry photograph, he said.

His belt was used to tie his hands.  He was punched on the stomach. Then subsequently he was put into a car and they arrived at No. 1 Detention Centre in Guangdong Province …....”

19.  In turn, A2’s case on the general issue was :[15]

“ …… [h]e is aged 39 …… He was educated to Form 5 …… If his wife was not in Hong Kong she would live in Dongguan. He said he is a plumber and an air-con mechanic …... Again, he gives you an account that he and the 1st defendant are good friends and would meet almost daily and travelled to the Mainland often. He would visit his wife every month. He has a spare key to the 1st defendant’s white Honda, SH 9021.

He does not know why his thumbprint was found on [one of the false number plates] but he often, he said, worked in garages and he also engaged in buying and selling vehicles, though not motorcycles. There is a chance that when he visited his friend’s garage he could have come into contact with [those false number plates]. He says at the garages that he works in he would be maintaining water pipes and electricity and change lightbulbs, those kinds of things, he said. He said the garages he works in would be in the regions like Fanling, Sheung Shui, Yuen Long, Ping Che and Luen Wo Hui. He dealt in parallel vehicles from Japan, that is, small private cars.

He denied he had anything to do with the theft of the motorcycle in Count 2 and he denied he attacked Mr Lau. He said on 25 February he was living with his girlfriend in Fanling when the 1st defendant asked him to go with him to Kowloon Tong to get back money from an ex-boss, so then they went to Devon Road. There was no specific address. They were looking for a house under renovation. He said they found it, ‘And we walked to the opposite of this house and paid attention to see if his ex‑boss went in and out of the house.’ He said they waited for an hour‑odd, did not see the ex-boss, so they then went home.

26 February, again, he accompanied the 1st defendant to the same place but he was hungry when they arrived in Devon Road and there was no parking space so he got off. So the 1st defendant got off and he went for breakfast. He parked and then went for breakfast. He said that was at Kowloon City Plaza where he parked. He ate for about half an hour and then he decided to walk around in the street, not bothering to go back to Devon Road. So sometime after 10 he got a call from the 1st defendant and asked him if he had finished and asked him to return to Kowloon Tong to pick him up near the MTR entrance. So he went, drove the car, and then he picked up the 1st defendant, then they went and parked in Sheung Shui and they went shopping. He wanted to buy shoes and so he bought the Timberland shoes. After that they each went home.

Then subsequently, in the afternoon, the 1st defendant rang him and asked him if he wanted to go for massage and fun to the Mainland. So they met up and then they took the train to Shenzhen, stayed for one or two days and went to Guangzhou then to Dongguan. He said he saw his wife for one or two days in Dongguan.

Then on 8 March he was having dinner with the 1st defendant when they were rushed by 20 people, he thought, and he was pushed onto the ground and someone stepped on his head. He was very frightened. He was assaulted on the back and arms and legs and they kicked him, and all his personal property was taken from him. He was also assaulted in the car. At the detention centre he was made to squat for an hour. He was beaten on the face, chest and abdomen by fists and they kept asking him to confess.

He was also told the same thing, that Central Government was concerned with the case …….”

20.  In short, the applicants accepted being in the crucial areas on the crucial dates; they denied being the two motorcycle-driven assailants whose faces were hidden behind their helmets.

The Application to Stay the Prosecution

21.  At the conclusion of all the evidence,[16] in the absence of any such notice as was required by Practice Direction 9.7,[17] counsel for A1 with the support of counsel for A2 made a sudden application to stay the prosecution.

22.  The basis of that application[18] was said to be that because there was no extradition/rendition agreement between Hong Kong and the Mainland, the applicants’ arrest, detention and repatriation to Hong Kong, all of which were at the behest of the Hong Kong Police, were in breach of Article 5 of the Bill of Rights in that those actions were arbitrary and not in accordance with procedures established by law.[19]

23.  As an ancillary argument, which drew support from some UN and NGO-published materials, it was submitted that there was a real concern regarding the “widespread use of torture, beatings and violence” within the Mainland criminal justice system, so that :[20]

“ …… it cannot be said that the Hong Kong authorities who were making the request of the Guangdong authorities could possibly have been ignorant of the possibility that [the two applicants] would be treated in the way that they have given evidence …… which evidence has not been rebutted in any shape and form.”

24.  Although the innuendo on torture and violence was advanced as an integral part of the alleged breach of Article 5 of the Bill of Rights, the reference to unrebutted evidence in the last quoted passage was understood by the prosecution to be an opaque attack on their failure to produce GDPSD witnesses.  To that, the prosecutor’s response was as follows :[21]

“ …… the impression given, if that is the right expression, by the PTR form, that there may well be …… an application to stay if the prosecution does not make available …… Hong Kong police officers who were liaising with [GDPSD] – well we did that – as well as [GDPSD] officers who were involved. So we have tried to, by correspondence through the Liaison Bureau, to have [GDPSD] officers come here, but they have declined. And Your Ladyship has the documents that the prosecution has on that …….

So, in a sense, it looks at first as though this was going to be a complaint of non-availability of witnesses.  It’s now turned, from Me Egan’s written and oral submissions, into one of illegal rendition ……”

The documents to which he referred were Exhibits D1-1(a) to D1-1(g), a total of seven letters or memoranda between the Hong Kong Police and GDPSD.[22]

25.  Correctly, and perfectly justifiably, the Judge made known her concern and displeasure at counsel’s disregard for procedural requirements.  Out of an abundance of caution, however, she entertained the stay application and, after listening to submissions, dismissed it.

26.  Insofar as her reasons are concerned,[23] the Judge was persuaded that notwithstanding the lack of a formal agreement, a practice of mutual assistance had grown, and had the backing of Article 95 of the Basic law, that upon a request by the Hong Kong Police on a case by case basis, fugitives from Hong Kong would be apprehended and returned to Hong Kong by the Mainland authorities.

27.  Drawing support from the case law on unwilling and unavailable witnesses, and noting that there was positive evidence of the absence of visible injuries and complaints upon the applicants’ return from the Mainland, the Judge also dismissed the unavailability of GDPSD witnesses as a ground for allowing the stay application.

28.  Significantly, she remarked that “the prosecution has done everything in its power” to secure the name and attendance of the relevant GDPSD officers,[24] and that she could not see “there was any collusion or underhand manner in the way the Hong Kong Police requested the assistance of [GDPSD]”.[25]  “There was nothing to suggest that the Mainland authorities acted in any manner which was in breach of any laws of the Mainland,” she added.[26]

The Appeal against Conviction

(Grounds advanced and abandoned)

29.  As against conviction, Mr James McGowan who acted for A1 on the appeal but not at trial had advanced four grounds of appeal; Mr Martyn Richmond who acted for A2 both here and below had advanced three.

30.  Mr McGowan’s Grounds 1 to 3 and Mr Richmond’s Grounds 1 and 2 were all directed at the Judge’s ruling on the stay application.  Upon being asked some fairly fundamental questions by this Court, however, such as on what basis was the application of stay made in this case, and by whom and of what complaint must it be established for that application to succeed, counsel retreated from those grounds and confirmed they would abandon them.

(A1’s remaining ground)

31.  Mr McGowan’s Ground 4 was, again, premised upon the objection that no one really was privy to what transpired during the applicants’ detention.  It gave rise to the following double-barrelled complaint: the prosecution had the burden of proving that the applicants’ confessions were voluntary; they could only have done so by first, disclosing material on the applicants’ detention and second, by calling GDPSD officers to testify that the applicants were not mistreated; the prosecution did neither; the prosecution therefore failed to discharge their duty of disclosure, and they failed on the issue of voluntariness; it follows that the Judge was wrong to admit any of the applicants’ confessions into the evidence.[27]

32.  As was pointed out by Mr Martin Hui, SC, for the respondent, the prosecution’s duty as regards the disclosure of material located outside the jurisdiction is to “pursue reasonable lines of enquiry to identify the material” and “to take reasonable steps to obtain it”: HKSAR v Sze Mei Mun [2014] 5 HKC 513, at 549C.  See also R v Flook [2010] 1 Cr App R 30, para 37.  A fortiori, what the prosecution failed to lay hands on after making reasonable enquiries and taking reasonable steps, the prosecution was under no duty to make available to the defence.  As for the rest, it was, insofar as this case is concerned, exhaustively disclosed in the series of correspondence forming Exhibits D1-1(a) to D1-1(g)).[28] From that, it could be seen that the applicants were “detained”[29] by the “Criminal Investigation Division of GDPSD” at “Guangdong Provincial Prison”.

33.  The complaint regarding the unavailability of GDPSD witnesses is equally without merit.  Although A1’s counsel had pitched his stay application at the bottom line of suspicion,[30] the applicants’ evidence was that they were subjected to torture.  Moreover, this was known to the Hong Kong Police who, upon their repatriation, threatened to return them to the Mainland, plus giving them their own beating, to secure their confession.[31]  In the circumstances, we fail to see how these GDPSD officers can be said to be indispensable.  In their absence, the other parties who were supposedly complicit would still be available for the defence to put and make their case.  It would then be for whoever was tasked to determine the issue to decide whether the prosecution had proved voluntariness to the required standard.

34.  In the final analysis, as we pointed out during the hearing, the one problem which really undermines this ground of appeal is that it was not the Judge who “admitted” the applicants’ confessions into the evidence (see footnote 27).  Except for the case re-enactments, it was the defence who decided to leave the special issue concerning these confessions to the jury;[32] this they were entitled to do for tactical reasons: Ajodha v The State [1982] AC 204, at 223D – F.  If, as it happened in the present case, the Judge did not think it was incumbent upon her to withdraw those confessions from the jury after listening to the evidence (Ajodha, ibid, same passage), then, in the absence of clear error by the Judge, it is not a decision that can be revisited on the appeal.

(A2’s remaining ground)

35.  In short, what Mr Richmond sought to argue under his Ground 3 was that the case re-enactments were wrongly admitted.  We do not agree.  Nor do we think it is a point of any importance.  Given his verbal admission, notebook entry, and the two subsequent video recorded interviews, this ground, even if it were to succeed, would have no effect on A2’s conviction.

(Conclusion)

36.  A1 and A2’s applications for leave to appeal against conviction are refused, and their appeals dismissed.

The Appeal against Sentence

(Breakdown of the total sentence)

37.  The applicants were sentenced to 6 months’ imprisonment for Count 1 (A1 only); 12 months’ imprisonment for Count 2 (A1 & A2); and 19 years’ imprisonment for Count 3 (A1 & A2).  Ordered to be served wholly concurrently, these sentences gave rise to a composite term of 19 years’ imprisonment for both A1 and A2.

(The applicants’ backgrounds & mitigation)

38.  Aged 37 at the time of the offence, A1 had from three separate court cases mustered a total of 10 previous convictions, the most serious of which were for ‘theft’ and ‘criminal damage’.  Of the same age, and sharing a fairly similar past record, A2’s most serious previous conviction was for ‘dealing with dutiable goods’.  Whereas A1 had been sentenced to a Detention Centre as a young person, A2 had never been made the subject of a custodial sentence.  Otherwise, the applicants’ backgrounds are unremarkable.

39.  Apart from the pettiness of their criminal records, the long-term prognosis of Mr Lau’s recovery, the lack of appreciation of Mr Lau’s “status and reputation in society”[33] and the absence of evidence on the motive leading to Mr Lau’s attack, not all of which were necessarily accepted, are the major matters that were put forward in the applicants’ mitigation.[34]  In addition to submitting past sentencing decisions for the Judge’s consideration, counsel were also faced with the task of distinguishing two cases to which the Judge had drawn their attention.[35]

(Reasons for sentence)

40.  In her oral reasons for sentence, the Judge described Mr Lau as a “respected journalist”, as well as being Senior Editor at Ming Pao News.[36] She said Mr Lau was a “quiet man with regular habits”, there being “no evidence whatsoever from the evidence of any enemies he may have had in the course of his daily life”.[37]  When he gave evidence, he was “not cross-examined that he had any financial dispute or personal discord with anyone”, it was noted.[38]

41.  That said, the applicants were each promised $100,000 to “teach [Mr Lau] a lesson”, the applicants were quoted by the Judge as saying;[39] and to accomplish their mission, the applicants had gone to considerable length to make preparations.  This included the theft of a motorcycle, changing its number plate and putting Mr Lau under surveillance.  Precaution was also taken to hide their identities and facial features.[40]

42.  When the applicants finally succeeded in carrying out the attack in their second attempt,[41] Mr Lau was “severely injured”.[42] Noting the period of hospitalisation, and the amount of physiotherapy Mr Lau had to and was still going through, the Judge attributed Mr Lau’s recovery “largely [to] his resilience and will power”.  Life for Mr Lau would “never be the same again,” however, “for he would forever carry the scars of the attack, both psychologically and physically”, the Judge added.[43]

43.  Then coming back to the background of this case, the Judge made the remark that the attack was a “senseless, brutal and vicious attack on a human being and, in this case, a journalist”.  She said “there was no evidence that [Mr Lau] was attacked because of his profession”, but also emphasised the point that “members of the press should be equally protected as are our citizens as they go about their daily business without fear”.[44]

44.  On the law, having previously raised the case of HKSAR v Kay Sik Hong Billy [2014] 4 HKC 202 with counsel,[45] a case in which a starting point of sentence of 18 years’ imprisonment was upheld in respect of its principal offenders, the analogy now drawn by the Judge was: in this as in the case of Kay (conspiracy to throw corrosive acid at a barrister prosecuting on fiat), the attack on the victim was a “brazen attack”, and one that was “brought against the very foundation of the rule of law in Hong Kong” (both phrases from Kay).  The attack on Mr Lau, the Judge carried on to explain, “must be horrifying for right-thinking members of the public because it happened in broad daylight on our streets”.[46]

45.  As regards HKSAR v Tsang Ho Wai [2008] 4 HKC 1, which was the second case the Judge mentioned,[47] and where the starting point of 18 years was again upheld with respect to the most culpable of its offenders, the Judge noted the submissions of counsel on the point but was herself equivocal as to what significance the age of the victim may have on the sentence (he was aged 7, and the stepson of the woman who enlisted others to have his right hand severed).  Drawing on such dicta in Tsang as “persons who commit serious acts of violence against others for financial reward would be treated with particular severity by the courts”, or “an assault performed as a ‘contract’ should be regarded as an aggravated offence”, it was nevertheless the conclusion of the Judge that a deterrent sentence was called for in relation to Mr Lau’s attack.[48]

46.  By contrast, it is clear that the Judge did not think much of the past sentencing decisions that were placed before her.  By those decisions, defence counsel had sought to suggest that the correct sentence in this case should be in the region of 12 to 14 years’ imprisonment. Stating that “each offence must be looked at on its own specific facts”, the Judge remarked that “the attacks [in those cases] may be out of revenge”, or “out of business disputes” or “because the sentence for the offence of wounding is coupled together with other offences”.[49]

47.  Finally, in the last page and a half of the relevant transcripts, the following passages are found which more or less sum up the Judge’s thoughts and conclusion :[50]

“ As Mr Richmond rightly observed, there is no evidence whether the victim, Mr Lau, was attacked because of his profession but I do have to say this, that we are very lucky in Hong Kong to have a free press and journalists, particularly in a civilised society, hold out a beacon light to shine on the disadvantaged or on the injustices in society to provide a voice for those who cannot speak for themselves, and therefore, members of the press and journalists are all citizens and must equally enjoy the protection of the law.

……

After listening to counsel and reading the cases I have been referred to, I am of the view that a deterrent sentence for Count 3 is absolutely necessary in this case. In the case of Kay Sik Hong Billy & Others cited above, the Court of Appeal considered that the starting point of 18 years’ imprisonment was high but not excessively so.

The similarity in this case to that of Kay Sik Hong’s case was that the defendants in both cases were mercenaries paid to attack and seriously wound the victim. In fact, I would observe that the planning in this case was even more sophisticated than was done in the Kay Sik Hong case. Not only was there surveillance in this case but the planning was to disguise themselves with helmets and to steal a motorcycle as a getaway vehicle and to go to the mainland, hoping to escape detection. This was indeed a brazen attack on the rule of law in Hong Kong.

So having considered the facts in this case, I will sentence in this way :

……

Count 3, the sentence will be one of 19 years’ imprisonment.  In the case of the 1st accused, he will serve those 19 years’ imprisonment concurrent with the sentences in Counts 1 and 2.  In the case of the 2nd defendant, the sentence of 19 years will be served concurrent to the sentence in Count 2.”

48.  Apart from the fact that the applicants appeared to be completely unremorseful,[51] those were the major observations of the Judge in her oral reasons for sentence.

(Ground of appeal)

49.  Both Mr McGowan and Mr Richmond relied on one and the same ground of appeal, namely the sentence of 19 years’ imprisonment on Count 3 was manifestly excessive.

50.  Since no useful purpose can be served by attributing the constituent arguments in this ground to individual counsel, these arguments will be grouped together for discussion as follows :

(a)  Her denial notwithstanding, the Judge had in fact wrongly taken Mr Lau’s profession into account in arriving at the starting point of sentence of 19 years’ imprisonment.

(b)  The present case is less serious than the case of –

(i)  Kay Sik Hong Billy (ibid) in that, in Kay, there was clear evidence of an intention to undermine a public institution or function by attacking a victim whose role and duties are connected to it.

(ii)  Tsang Ho Wai (ibid) in that, firstly, the facts and circumstances in Tsang were even more egregious and brutal; and, secondly, Mr Lau’s injuries, though serious, are arguably less traumatic than that which was suffered by the child victim in Tsang in terms of physical and psychological impact.

Yet, without giving any reason, the Judge had sentenced the applicants to a term of imprisonment that is longer than Kay and Tsang.

(Discussion on the merits)

51.  The medical reports show Mr Lau suffered a total of six chop wounds: (1) one deep, 16-cm wound on his left back of chest, which caused his left lung to collapse (left pneumothorax); (2) one 4-cm wound on his left upper back which was down to the muscle layer; (3) one superficial, 3-cm wound on his left outer-back of thigh; (4) one deep, 20-cm wound on his left back of thigh which completely severed his sciatic nerve and posterior compartment muscles; (5) one superficial, 6-cm wound on his right inner-back of thigh; and (6) one deep, 16-cm wound on his right outer-back of thigh which, again, completely severed Mr Lau’s sciatic nerve and muscles.  In A1’s counsel’s own words, Mr Lau was “very lucky that he was not killed”.[52]

52.  In terms of treatment and hospitalisation, Mr Lau was intubated and given an emergency operation at Pamela Youde Nethersole Eastern Hospital.  He was kept in the Intensive Care Unit until 1 March 2014.  On 24 March 2014, he was transferred to Queen Mary Hospital, more specifically their Orthopaedics and Traumatology Department.  On 23 April 2014, he was moved to MacLahose Medical Rehabilitation Centre (‘MMRC’) where physiotherapy and occupational therapy were continued.  Upon his discharge on 14 July 2014, Mr Lau began his attendance at MMRC as a day patient.  From then to 19 October 2018, the total number of days of Mr Lau attending the MMRC as a day patient was 446.

53.  An undated letter from one Dr Alex CP Chow of Hong Kong Sanatorium, Department of Physical Medicine and Rehabilitation,[53] sums up Mr Lau’s more current situation (with emphasis added) :

“ At the latest consultation on 10^th September 2018, he was able to walk with the use of one walking stick. He still had mild wasting of the muscles of the right leg muscles and moderate severe wasting of the left leg muscles, particularly the anterior compartment and peroneal compartment of the left leg. Both feet showed marked wasting of the intrinsic muscles.

……

Sensory examination still showed decrease in touch sensation over the sciatic nerves distribution bilaterally.

Nerve conduction studies and needle electromyography examination still showed severe motor and sensory axonal degeneration over both sciatic nerves distribution. The functional recovery of the flexor side muscles of the left leg was still very limited and were not good candidates for transfer to the extensor side to correct the left foot drop.

As it was already four and a half years since his injury, his recovery was close to the plateau, and significant neurological improvement was not expected in the future.  He was expected to require the use of ankle-foot-orthosis on the left lower limb for the rest of his life.  He was also expected to have significant residual weakness and sensory impairment of his both lower limbs in the future.”

In his own statement dated 29 May 2018, Mr Lau said he had resumed work; but only in the afternoon, Monday to Friday.  He was responsible for the Ming Pao Group publication on education.  He frequently did school visits and gave talks to students.  But he could neither run nor jump and had to undergo a weekly 3-hour physiotherapy session at MMRC.

54.  While we do not wish to make light of the injuries the child victim in Tsang suffered, which in fact were very serious,[54] his condition was amenable to surgery (his hand was not in fact cut off), as a result of which he was able to “perform almost all his usual activities”, in as diverse a range as writing and playing basketball and table tennis, albeit it with diminished endurance.  His “growing ability and ability of adaptation” were also said to have enabled a “good prognosis in terms of the general use of his right upper limb”, with a degree of permanent compromise where heavy working force was required.  There was no mention of any finding of permanent emotional or psychological distress arising out of the event.

55.  As can be seen from what we have set out earlier, this is not the case with Mr Lau.  He is disabled for life, a result which if suspected was not confirmed before an extended and what must have been an excruciating period of hospitalisation lasting five months (26 February to 14 July 2014), to be followed by four years about a third of which was devoted to therapy as a day patient (446 days out of the period between July 2014 and October 2018).  For a middle-aged person[55] who avows to have been attacked, maimed, and has much of his (distinguished, some would say) past life taken away from him for no reason, the anguish that this misfortune must have generated is obvious.  The Judge was not wrong to say it was largely because of Mr Lau’s resilience that he was on the road to recovery, such as it is.

56.  As said, of the six chop wounds Mr Lau received, one gave him pneumothorax and two completely severed his sciatic nerves and muscles on both sides.  Since Mr Lau was still on his feet when A2 jumped back on the stolen motorcycle,[56] the speed, the force and the clarity of purpose of those who carried out the attack were beyond question.  These features in turn spoke of a well-planned and well-executed ‘job’ with no room for holding back.  We emphasise ‘well-planned’ because if one considers some of the details surrounding the attack, the care and thoroughness that had gone into its preparation are in fact rather revealing.

57.  Take the example of the stolen motorcycle.  Not only was its original number plate thrown away, but it was replaced by one made especially to match the vehicle licence A1 had stolen, which by law must also be displayed on the motorcycle.[57]  Smaller in size, this latter item was referred to as a “licence disc” in the records of interview, and the matching of the two was no doubt calculated to fool anyone who had reason to examine the motorcycle at close range.  That is the first point.

58.  Secondly, for the entire period after it was stolen, the motorcycle with its fake identity was left stationary inside a carpark in Kowloon Tong.  A1’s private car but not this vehicle was used in the exercise of locating and following Mr Lau around. In fact, it was not taken out except for the planned and actual attack on 25 and 26 February, no doubt to lower the risk of any mishap or chance detection by the police.[58] Finally, after the attack, the motorcycle was driven to a nearby parking area where it was placed under a cover.  A1’s explanation was he saw all the other motorcycles parking there were covered.[59]  As against the need to make good a speedy escape, however, that seems to us more like a pre-planned act of concealment than just pointless conformity.

59.  Our attention is also drawn to the relatively long gap period between when the ‘contract’ for teaching someone a lesson arrived and the date of its actual execution. According to A2, A1 told him about the “order” in January 2014;[60] A1 himself put it as “before the new year”.[61] The beef knife used in the attack, on the other hand, was purchased either “one odd month” before the offence, as per A1,[62] or “late January to early February”, as per A2,[63] which is roughly the same.  From the indictment, which was supported by the admitted facts, one knows that the motorcycle and the vehicle licence were stolen latest by 13 February.  The reconnaissance on Mr Lau did not commence until “about one week” before the attack.[64]

60.  In short, the applicants took their time and when they did something, serious effort was put in to ensure that it would achieve its purpose.  Further examples of the latter include the borrowing of a lorry from A2’s friend to load and then spirit away the motorcycle to a safe place for it to be ‘hotwired’;[65] the wrapping of the beef knife handle with gauze-like tape;[66] and the six to seven times of home-to-office or office-to-home tracking on Mr Lau to establish his routine.[67]  These, and what has been said about their interchanging use of different modes of transport both before and after the attack, and the quick disposal of most of the exhibits including the knife, their gloves, their helmets and other items of their clothing, do suggest to us that there was a substantial degree of planning behind the present offence, to an extent which easily exceeds other cases of the same kind.  It is certainly so in respect of Kay Sik Hong and Tsang Ho Wai.

61.  The next topic we want to explore concerns A1 and A2’s knowledge as to who and what their intended victim might be – the relevance, or limited significance of which, we will explain shortly.  But first laying the evidential groundwork of this exercise, we set out below what the applicants said in their respective records of interview on the topic.

62.  This is A1’s version of how he managed to identify his victim:[68] he was not clear who Mr Lau was, he only knew Mr Lau worked at Ming Pao Industrial Centre (‘MPIC’); having checked the address of MPIC on the internet, he waited for Mr Lau to turn up; upon being asked how he knew what Mr Lau looked like, he refused to answer; from MPIC, he followed Mr Lau home and found out where Mr Lau lived; since he saw what car Mr Lau drove, he also got to know its registration number.  On the subject of A2’s recruitment, when he was asked to repeat the exact content of his conversation with A2, profanities included, A1 said:[69] “I said, ‘someone offers one hundred to two hundred thousand (dollars) to chop Lau Chun-to, to ask if it is okay – I ask you if (you) are okay’.”

63.  In line with his verbal admission, A2 denied knowing who Mr Lau was in his records of interview.  He said he “did not know him”.[70] But he knew where this person lived, what car he drove, what car registration number he had and where he often had breakfast, because he had “gone to watch him”.[71]  In fact, A1 had shown him a photograph of Mr Lau, and had given him a piece of paper with Mr Lau’s residential address and car registration number written on it.[72]  This piece of paper was given to him in January 2014 when A1 said: “Give this person a lesson …… [and] there would be a reward …… each person [gets] $100,000”.  It was, he said, “an order” that A1 had received.[73]  It is also worth mentioning that, upon arrest, a photograph of Mr Lau was found in A2’s phone.

64.  Based on the above, it seems clear that, at the very least, A1 was aware of Mr Lau’s name, what he looked like and where his office was located even before he started following him.  This makes a lot of sense: it is hard to imagine being given less information when A1’s task was to plan an attack on a human target.  However, just as he refused to say how he could recognise Mr Lau’s face, A1 had refused to name the person paying for the attack,[74] thus drawing the line on what evidence one has regarding A1’s knowledge about his victim.  It is not much.  Ceteris paribus, the same can be said of A2.  On the face of it, he may even have known less than A1.

65.  But, as we have hinted in paragraph 61 above, we do not think knowing Mr Lau’s profession as a journalist, or the position he held in Ming Pao Group, or not, should have any effect on the sentence of someone in A1 and A2’s position, either by way of an aggravating or mitigating factor.  Depending on how it was imparted, personalities and context being most relevant, such knowledge may or may not assist the court in inferring the motive of the one behind, the one who financed the offence, but it should not in itself affect the position of the hired hand.

66.  The true culpability of the hired hand, we think, rests squarely in the fact that he had lent himself unquestioningly to the use of his master, so that he must bear the same level of blame that the offence rightly engenders.  What it means in the present case is if there is sufficient evidence to conclude that the attack on Mr Lau was because of his role or work as a journalist, then A1 and A2 should expect no leniency on account of their professed or real ignorance of who Mr Lau was.  This is not to say that there would only be one sentence, where for example the mastermind was also brought to justice.  Applying the usual distinction on roles, there may be adjustments but the range within which all the sentences fall should be the same.

67.  In the last paragraph, we used the words ‘professed’ and ‘real’ to describe an assailant’s ignorance about his victim.  We used those words judiciously.  In relation to the first description, we want to stress how easy it is to feign not knowing about someone or something, and how difficult it is to disprove it.  With the advent of social media when, to use the expression, ‘anybody who is anybody’ is fully exposed on the internet, we would also like to observe how unworthy it is to say, ‘one does not know’.  If at all true, it will just be a case of turning a blind eye. [75]

68.  Moving on to the core issue, namely the nature of Mr Lau’s attack, it is understandable why counsel should feel uncertain about the basis on which the Judge passed sentence.  Her repeated reference to the need to protect members of the press, and her characterising the present case as an “attack against the very foundation of the rule of law”, as in the case of Kay, do make one wonder.  The question, however, is not so much whether the Judge had taken Mr Lau’s profession into account as whether she was correct to have taken that into account, if indeed she had taken that into account.

69.  We say this because although the Judge agreed with counsel that “there was no evidence whether Mr Lau was attacked because of his profession”,[76] this statement is true only as regards the availability of direct evidence.  As the Judge herself had considered it relevant to mention at the beginning of her reasons for sentence:[77] “[Mr Lau] is a quiet man with regular habits and there is no evidence whatsoever from the evidence of any enemies he may have had in the course of his daily life.”  “He came to give evidence in court.  He was not cross-examined that he had any financial or personal discord with anyone,” she said in the following sentences.[78]

70.  As against that, one goes back to what has been covered earlier: the long lead time taken to execute the attack, the considerable number of times of cross-harbour tracking and surveillance, the close attention to minute details well thought out in advance, the interchanging use of different vehicles as well as public transport, the swiftness and savagery of the attack, the circuitousness of the escape route and the obviously pre-planned disposal of exhibits at locations far away from the scene.  For a wounding case, these features are highly unusual even by the collective experience of this Court.

71.  Another thing which is unusual is the loftiness of the applicants’ reward.  As observed by one of our members during the hearing, $200,000 for two assailants is not the kind of money that would feature in the triad-type cases, an observation with which neither Mr McGowan nor Mr Richmond sought to demur.  It therefore begs the question as to why someone would pay so handsomely to put harm in Mr Lau’s way: was it someone to whom Mr Lau owed money?  Or was it someone who had a personal grudge and yet did not know Mr Lau well enough to know where he lived and had to leave it to the applicants to find out?

72.  Our attention is also drawn to how very quickly the applicants disappeared into the Mainland. Despite A1’s repeated claim that he was going across the border to “have massage”, his departure from the jurisdiction was clearly for the purpose of evading apprehension.  In fact, A1 admitted that having gone to “chop others”, it was not his plan to “return to Hong Kong for the time being”.[79]  Unlike A1, A2 had never re-entered Hong Kong to either change his clothes or gather money.

73.  For a journalist who is quiet and peaceable in disposition, and whose only enemies are likely to be those whom he has offended in the course of his work, the conclusion that Mr Lau was attacked precisely because of his profession is, given all the circumstances of the case, inevitable.  That being so, a high starting point of at least 18 years is, on the strength of Kay Sik Hong, completely justified.  Given Mr Lau’s residual disability, a factor that is absent from Kay, the sentence of 19 years’ imprisonment is precedent-setting, but not manifestly excessive.  It is condign punishment for a particularly heinous case of wounding, the maximum penalty for which is life imprisonment.

(Conclusion)

74.  A1 and A2’s applications for leave to appeal against sentence are also refused, and their appeals dismissed.