HKSAR v. CHEUNG CHI-HIM, HERMAN AND OTHERS

CACC 62/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 62 OF 2000

(ON APPEAL FROM HCCC 333 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 9 February 2000, the Applicants (D1 and D3 respectively) confirmed, as did D2, before Nguyen J the pleas of guilty each of them had entered in the magistrates' court to one charge of manslaughter and to two charges of inflicting grievous bodily harm. D1 and D2 were sentenced to sixteen years' imprisonment on the first charge and D3 received fifteen years' imprisonment. Concurrent sentences were imposed on the remaining charges as they arose from the same incident. Leave to appeal is now sought by all of the defendants in respect of the sentence imposed on the first charge, but D2's application has had to be adjourned to a later date for reasons specific to him.

2. The summary of facts demonstrates that this was a manslaughter of the worst kind. It occurred on 28 January 1999 at Allied Plaza at 760 Nathan Road.

3. A ground floor shop unit at G13 ("the shop") was a business where pirated VCDs were sold. In the weeks leading up to 28 January 1999, a dispute had arisen between Ngan Kwan-shan, who was one of the men responsible for running the shop, and an employee of another VCD business in Allied Plaza. The dispute resulted in Ngan paying $5,000 as compensation in settlement. Sadly, the matter was, as it now appears obvious, far from settled.

4. On 28 January 1999 at about 12.55 p.m., two employees in the shop heard the sound of breaking glass and saw smoke and fire. They were able to leave their shop premises immediately. However, three others who were innocent shoppers in the vicinity were less fortunate. The shop, which was in a fairly small and crowded shopping mall, had been targeted for an incendiary bomb attack at a time of day when it could be anticipated that there would be many people around, including of course the staff who operated the shop itself which had been targeted for this attack.

5. As the judge remarked when he passed sentence, two "incendiary devices" had been used in the arson attack. Both devices were physically thrown by D1. One of them landed in the corner of the shop and the other was dropped just outside it. The defendants had previously bought some thinner, which was highly inflammable, which they had put into two bottles and then used pieces of cloth by sticking them into the bottle necks to act as wicks.

6. The liquid burned very rapidly after these devices were thrown and a fireball effect resulted. The force of the explosion set a twenty-one year old man alight. He had been waiting to collect photographs in a photo-finishing shop opposite the shop targeted for attack. At hospital, about 85% of his body was found to have been burnt. He died just over a month later of injuries which were so terrible that the pain he must have suffered is indescribable.

7. Two other equally innocent victims received burns. Madam Yeung Yuk-lan, the victim in count 2, was forty-eight years old and 30% of her body was burnt necessitating two months' hospitalisation following a period in intensive care. Her grievous injuries have left her with permanent disability and permanent disfigurement, quite apart from the constant pain she has had to endure since the day of the incident.

8. The third victim was less seriously burnt and he is fortunate also in the sense that he is not expected to suffer permanent disability.

9. The defendants might have got away with what they had done if it had not been for the public spiritedness of a taxi driver, Mr Shum, who had overheard the conversation in his taxi between three male passengers who travelled in the taxi at about 2.30 a.m. on 28 January 1999 in order to go to Shek Lei Estate. One of the passengers stated that "Luen Hop" would be blown up the next day and that it should be done at noon. That passenger also said that he didn't care if people were injured.

10. The information provided by Mr Shum led to a most thorough police exercise in detection which was aided by one stroke of good fortune. Police began by reviewing all of the closed circuit television tapes from the cameras used in some of the lifts in the estate blocks at Shek Lei. Whilst this process was underway, DPC 23896 Chan Chi-tak recognised D3 in one of the tapes as someone from whom he had taken a witness statement in the past. The significance of this was that D3, when he had been interviewed by that detective, had been an employee of one of the businesses operating in the same shopping arcade where this arson attack took place. This break-through in the investigation ultimately led to all the defendants being arrested. Each of them readily admitted their respective involvement in the offence. D2 admitted that the motive arose from a desire by someone to get revenge and that he had been asked to "bomb him for me".

11. None of the defendants, it is accepted, had any personal grudge against the persons responsible for the shop which was fire-bombed.

12. It was submitted by Mr John Dunn, for D1 and D3, that the sentences on the defendants were manifestly excessive having regard to their lack of foresight as to the fatal consequences and the horrific injuries which were caused by their actions; their youth (D1 was 16 at the time and D3 was 18); their lack of personal motive; and that there was some evidence that they were being "controlled by older people". It was submitted that the starting point of twenty-four years' imprisonment, which was taken by the judge as the appropriate sentence to be imposed after trial, was too high.

13. Mr Dunn drew the court's attention to a number of cases which, while providing no tariff for this kind of offence, were indicative that the sentences in the present case were above what can perhaps be described as the "normal sentence imposed in similar situations". In The Queen and Ho Ka-fai & Others CACC 370/1994, A1 was convicted of murder and A2 and A3 were convicted of manslaughter arising from a petrol bomb attack on an old people's home. What distinguished A1 from the other applicants was that A1 knew there were occupants living in the home whereas A2 and A3 either did not or may not have known of this. However, they were aware that others must have been likely to be in the building where the Home was situated. The trial judge stated in the course of passing sentence that:

".... each of you (A2 and A3) played a full and equal part in the arson attack upon this old people's home.

It was on the 2nd floor of an occupied building. You knew full well there were people in the building because you had hidden from them on the staircase. It is at least possible that each of you was told that the Tse Oi Home for the Aged was not occupied because it was presently under decoration."

14. The Court of Appeal reduced the sentence of twelve years imposed on A2 and A3 to a sentence of ten years' imprisonment. In the present case, there is no question that D1 and D3 knew that others were likely to be put in very great peril by their actions. They chose, and deliberately chose, a time of day which could not have been more likely to have caused injury to others. If they had intended merely to damage property, this could have been achieved at a wholly different time of day or night although it has to be said that an arson attack of this kind on premises such as these is almost invariably likely to put others in danger.

15. While it is certainly true that these were long sentences for such young offenders, the fact remains that it is difficult to imagine a more callous or irresponsible criminal enterprise than this, short of murder itself. Nothing which this court proposes to say should give the slightest encouragement to others who embark on revenge attacks of this kind in a crowded community such as Hong Kong's, to think that the proper sentence to be imposed should be anything short of the top end of the scale.

16. The so-called "lack of personal motive" on the part of the defendants themselves merely puts each of them in a similar position to a hired assassin who has no personal motive of revenge but acts in cold blood for a fee. If they had deliberately killed, these defendants would of course be serving life imprisonment. The dreadful consequences of throwing such incendiary devices as these were, as the judge understandably found, well within the contemplation of the defendants.

17. A sentence which was substantially aimed at the deterrent effect it would provide was clearly called for. These were willing participants who harboured no ill-feelings towards the people who worked in the premises which were attacked, and they were deserving of the most condign punishment.

18. We were, despite the way in which Mr Dunn skilfully put his arguments, not impressed by his argument that the defendants acted under the control of older people. There was no compulsion upon the defendants to act in this way. Mr Dunn said that they had acted under the influence of "peer pressure" in the way that young people who join gangs often do, and that apparently they acted without any payment at all. These matters merely provide some of the reasons why deterrent sentences are imperative to dissuade other young persons from joining such enterprises.

19. There is no substance in these grounds and leave to appeal is refused. The application, so far as it concerns D1 and D3, is dismissed.

20. Before leaving this case, the judge roundly commended the taxi driver who I will refer to only as "Mr Shum" and DPC 23896 Chan Chi-tak and the highly capable team of officers whose joint efforts brought three very dangerous young men to justice. We wish to endorse the comments the judge very properly made at the time of sentencing.