HKSAR v. Fok Ka Po, Joe and Others

Case No.CACC 423/2015[2019] HKCA 134[2019] 2 HKLRD 1[2019] 6 HKC 230

Court

Court of Appeal

Date01 Feb 2019

Judge—

Case Document

100%Judiciary

CACC 423/2015

[2019] HKCA 134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 423 OF 2015

(ON APPEAL FROM HCCC NOS 120 AND 432 OF 2014 (CONSOLIDATED))

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BETWEEN
	HKSAR	Respondent
	and
	Fok Ka Po, Joe (霍家寶) (D1)	1^st Applicant
	Yeung Ming Ming (楊明明) (D2)	2^nd Applicant
	Ng Yan Lok (吳殷樂) (D3)	3^rd Applicant

________________________

Before:

Hon Macrae VP, McWalters JA and Pang JA in Court

Dates of Hearing:	7 August 2018 & 16 January 2019
Date of Judgment:	1 February 2019

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.The three applicants faced a joint count of conspiracy to throw corrosive fluid with intent to burn, contrary to section 29(c) of the Offences against the Person Ordinance, Cap 212 and sections 159A and 159C of the Crimes Ordinance, Cap 200. Following their convictions for the offence before then Deputy Judge Campbell-Moffat SC (“the judge”) and a jury on 11 November 2015, the 1^st applicant (“A1”) and the 2^nd applicant (“A2”) were in due course each sentenced to 18 years’ imprisonment, whilst the 3^rd applicant (“A3”) was sentenced to 19 years’ imprisonment.

2.On 9 May 2018, this Court granted leave to appeal against conviction to all applicants but dismissed their appeals[1]. A2 was further granted leave to file a notice of appeal against sentence out of time.

Facts

3.We have set out the facts of this case in our previous judgment in relation to conviction[2]. The conspiracy had its inception on 22 February 2013 at a meeting in a seafood restaurant in Lei Yue Mun, Kowloon, at which A1, A2 and others were present. It culminated with the events of 8 March 2013, following a ‘tip off’ from A1 via, amongst others, A2 as to the whereabouts of the victim (“PW1”), when PW1 was splashed at her workplace with a 92% concentration of sulphuric acid by a 15‑year‑old boy (“PW3”), who was acting on the immediate instructions of A3.

4.Fortunately, PW1 had managed to turn away in time so as to avoid the full force of the sulphuric acid. Nevertheless, she sustained patchy full‑thickness burns to her right face, both ears, right neck, right upper arm (particularly the right posterior elbow), right hand, waist and both legs. The total area affected was 3.5% of her body surface. Upon her admission to hospital on the same day, she underwent excision and closure of the wounds under general anaesthetic. She remained in hospital for 10 days and was discharged on 18 March 2013. We shall return to the residual consequences of the injuries on PW1’s long term health in due course.

5.A female co‑worker, who had come to the assistance of PW1, also received patchy burns to her face, both forearms and right leg. She was able to be discharged from hospital following treatment on the same day.

6.The conspiracy was described by the judge in her summing‑up as “a linear conspiracy”[3], in which one person would lead to the involvement of another, who in turn would bring another or others into the conspiracy. Over the course of 14 days, at least nine people were involved in the plot. A1 admitted in his video-recorded interview that he had been asked by Ho Ping Yee (“Madam Ho”), with whom he was on friendly terms, to arrange for her “to meet some people with background”[4] in order to “splash” corrosive liquid on PW1, one of his colleagues at work[5]. He explained that “people with background” meant “triad background”[6]. As a result, he introduced Ho Hoi Kin (also known as “Ho Lan Chai”), who in turn introduced A2 (also known as “Shea Chai” or “Shea Gor”) to Madam Ho[7].

7.A2 then brought Lin Chun Kit (“Lin”) into the conspiracy, who was to give evidence for the prosecution as an accomplice witness (PW2). Lin in turn contacted a male known as “Ah Sam”, who said that he would arrange for someone to throw the acid at PW1 for $40,000. Accordingly, PW2 contacted A2 to relay the request, having increased the demand to $60,000. PW1’s details were subsequently passed to PW2.

8.At the end of the line of contacts was PW3, who was arranged by A3 (also known as “Ho Lok”) to throw the sulphuric acid at PW1 for a reward of $3,000: indeed, it was A3 who actually supplied PW3 with the cup of sulphuric acid which was thrown at PW1.

9.The conspiracy was, therefore, a sustained course of conduct spread over two weeks, resulting in two attempts on 6 and 7 March 2013 to find PW1 at her home before the acid was eventually thrown on 8 March. Clearly this was a planned, premeditated attack involving a number of men on a defenceless young woman, who had done none of the conspirators any harm and who was unknown to all of them save A1, with the intention of disfiguring her for life with a powerful concentration of sulphuric acid. The engagement of so many participants, each one being responsible for introducing another to the conspiracy, until a 15‑year‑old boy was recruited to carry out a cold‑blooded “contract” attack for money was redolent of triad involvement. Quite apart from A1’s admissions to this effect, it is to be noted that A2 had two previous convictions for inviting, inciting or inducing another to become a member of a triad society, and two convictions for claiming to be a member of a triad society. As the judge remarked when she came to sentence the applicants and the other conspirators, “there was a significant triad involvement in this case”[8].

Reasons for sentence

10.Given the context of a conspiracy involving nine men, it is important to see how the judge regarded the different roles of the individual defendants she was sentencing. It was, after all, a lengthy trial and she would have been in a good position to judge the relative roles of those concerned.

(in respect of A1)

11.Of A1’s role in the conspiracy, the judge said this, inter alia[9]:

“There is no hint of remorse for the part you played. You have remained defiant to the end. What you did was such a huge breach of trust. You played a major part in this conspiracy. You were the first port of call for (Madam Ho). If not for you, this offence would definitely not have happened as we know that her earlier attempts to harm (PW1) had failed.

…..

You used your position in the company to locate (PW1) on 8 March, knowing what fate awaited her, even though she had been your colleague and had done you absolutely no harm. Unlike the other defendants, you knew this young lady, and yet you still callously played a very significant part in this crime. You knew exactly what you were doing and the likely horrific consequences. You helped to plan this vicious attack and you brokered the financial deals. You were (PW1’s) right-hand man.”

12.The judge developed her characterisation of the applicant’s breach of trust in the following terms[10]:

“An aggravating feature of this case is that you were prepared to have someone throw acid over a person whom you knew and who was a work colleague and who had done you no personal harm. This was not therefore a crime of passion as is often the case and your part in it must have been in a cold and calculating manner, simply because of your friendship to (Madam Ho), because you have offered the court no explanation for this state of affairs …

Given your involvement in this matter from the outset and your willingness to be directly involved at the end, plus the aggravating feature of your knowledge of the victim, I take the view that a starting point of 18 years is not a day to long for this horrendous attack.”

(in respect of A2)

13.The judge said of A2, inter alia[11]:

“… you are in a similar position to Lin Chun Kit in that you agreed to be another link in the chain of recruitment and also a go‑between. But you did more still than that by their verdict, the jury clearly disbelieved all that you said in evidence and found you to be the user of the third mobile phone number which was known to be heavily used by the person seeking the whereabouts of (PW1) on the day of the offence.

Unlike some of the other defendants, you had met (Madam Ho) and you said yourself that she seemed ferocious, so you could tell the anger and bitterness motivating her desire for revenge. You also knew that throwing corrosive liquid was a very serious matter because you commented on it at the meal on 22 February.

You, like Lin Chun Kit, were prepared to be the liaison between the likes of Cheung Hang Ming and (A1), and it was you who was chasing for payment after the event and who threatened (Madam Ho), through A1, when payment was not forthcoming. He told us in evidence that you were very threatening and I have no doubt that that was the case.

…..

I consider that for your participation in this matter, the appropriate starting point is also 18 years and as you have no mitigation which would afford you any reduction in that sentence and you have been found guilty after trial, you also will go to prison for 18 years.”

(in respect of A3)

14.The judge took a particularly dim view of A3’s role in the conspiracy, since he had been the one to recruit a minor, PW3, to throw the acid at PW1 in his place[12]:

“You were the one who identified a 15‑year‑old boy to do the job for you, showing your cowardice by leaving the scene at the time of the offence and no doubt knowing that he was likely to be frightened of the repercussions if he did not do as he was told because of the position you held yourself out to have within his small social circle.

... Even though you were young, at 19 years of age, compared to your co‑conspirators, what you did, in recruiting such a young man whose life you have now ruined by so doing, is an aggravating feature of this case.

The Court of Appeal has time and again commented on the fact that the judge’s hands are tied to some extent in sentencing young people because leniency will result in their increased recruitment by criminal groups. I take the view that those who recruit such young people should themselves bear the responsibility of having done so and therefore the court should mark what you did when considering the sentence it must pass on you …; and you alone of the defendants in this case, chose to make this young man throw this sulphuric acid rather than carry out the attack yourself.

I therefore take a starting point of 18 years, the same that I took in respect of (A1), and I add one year for this significant aggravating feature.”

15.Pausing here, it seems to us, with respect to the judge’s otherwise comprehensive sentencing remarks, that there is some confusion as to what she meant by the “starting point”. A starting point is intended to be that term of imprisonment which a judge deems appropriate for the particular criminal conduct evidenced before him/her, before any consideration of the factors which aggravate or mitigate that conduct. As Stock VP explained in HKSAR v Muhammad Akram[13], where the trial judge had said much the same as the judge in the present case:

“We would comment in passing that a point which is arrived at after taking into account aggravating features is not an initial starting point; a starting point is the point taken before aggravating and mitigating factors”.

16.In the case of A1, the judge viewed his role as akin to the instigator of the conspiracy, who had played a prominent role throughout and who had betrayed not only the trust of his colleague PW1, with whom he bore no grudge, but also the trust of his company by allowing this horrendous crime to be brought into the workplace. A defendant’s role as instigator or organiser of an offence and his breach or betrayal of trust are common aggravating features in sentencing, which a judge is entitled to take into account in aggravation of the base starting point. Yet, it would seem that the judge factored these aggravating factors into what she termed the “starting point” of 18 years’ imprisonment. However, that begs the question of what the real starting point was for membership of this particular conspiracy, absent those aggravating features.

17.This confusion is illustrated by the judge’s sentencing at the same time of Lin, the accomplice witness (PW2), whom the judge described as “one of the people with the triad contacts”[14]. In conformity with the practice of these courts in sentencing accomplice witnesses who have successfully followed through on their promise to give evidence against their co‑accused, the judge accorded him a discount of 50% from the sentence he would otherwise have received after trial, which she assessed at 17 years’ imprisonment. Yet, again, the judge described that 17 years as the “appropriate starting point”[15], having taken into account in assessing it, his “substantial role in bringing together the triad element”[16], which was “just below (A1) in terms of responsibility”[17].

18.Furthermore, when sentencing A2, the judge expressly equated his position with that of Lin, as we can see from her sentencing remarks above. Yet, in the absence of any identifiable aggravating features distinguishing him from the part played by Lin, A2 received what was also termed a “starting point” of 18 years’ imprisonment[18].

19.Accordingly, we are, with respect, puzzled by the judge’s identification of the actual starting point, particularly when A2, whose role was compared with that of Lin, received 18 years’ imprisonment rather than 17 years’, for no discernible aggravating features distinguishing him from Lin; and when A3 had 1 year added for what was described as the significant aggravating feature of enlisting a minor into the conspiracy, making a sentence of 19 years’ imprisonment, again suggesting a starting point of 18 years.

20.It is not clear to us whether the real starting point (properly so termed) adopted by the judge for involvement in this conspiracy was 18 or 17 years’ imprisonment; or, indeed, 16 years’ imprisonment, if Lin was found to be playing a substantial role “with (his) triad contacts”, who stood “just below (A1) in terms of responsibility”, thus meriting an enhancement of perhaps 1 year from that starting point for his role. We believe counsel for the applicants shared our puzzlement. Nevertheless, it was the thrust of their submissions that whatever the true starting point adopted by the judge, it was manifestly excessive in the circumstances of this particular case.

Grounds of appeal against sentence

21.It is Mr Lee’s contention, on behalf of A1, that since A1 acted without reward and purely out of friendship for Madam Ho, who had been cheated by her husband, he could not be said to have been motivated by money, as were the other defendants, in a cold‑blooded attack on someone who was unknown to him. In the circumstances, he suggests that the starting point should have been between 10 and 15 years’ imprisonment.

22.Mr Marray, on behalf of A2, queries why there is a difference in the purported “starting point” adopted in respect of A2 and Lin, with whose role A2 was equated by the judge. Further, the level of injuries caused to PW1, whilst bad, bore no comparison with those referred to in the authorities where a starting point of 18 years’ imprisonment has previously been considered appropriate, namely HKSAR v Yu Wai Chiu[19], HKSAR v Sin Wa Chiu[20] and HKSAR v Lam Ming Wing[21]; whilst in HKSAR v Kay Sik Hong Billy[22], the offence carried out against prosecuting counsel outside Wanchai District Court constituted an attack on the very administration of justice. He argues that it must be a relevant factor to be borne in mind that the injuries in such a case do not in fact turn out to be horrendous or life changing, involving, for example, maiming or blinding.

23.Mr McGowan, on behalf of A3, also takes issue with the starting point apparently adopted by the judge and argues that it was unfair to regard A3’s introduction of a 15‑year‑old boy into the conspiracy as an aggravating feature justifying an enhanced sentence when he himself was only 19 years of age. Moreover, A3 was clearly not the instigator or organiser of the conspiracy but merely one who was told to carry out the orders of those higher up the chain of command. Counsel also appeared to take issue with the notion that this was a conspiracy with a significant triad element.

The respondent’s submissions

24.Ms Lam, on behalf of the respondent, describes this as a cold, calculating and sustained conspiracy by a number of men, some of whom had obvious triad affiliations or connections, to disfigure with highly concentrated sulphuric acid a young woman who had done them absolutely no harm whatsoever, and who was unknown to two of them, for money. There was nothing spontaneous about the crime nor did it arise, so far as the applicants were concerned, in the context of emotional turmoil or domestic strife: it was a persistent course of conduct which lasted 2 weeks, included two earlier attempts to carry out its dreadful purpose, and involved no less than nine men.

Discussion

25.The crime of throwing corrosive fluid with intent to burn and inevitably disfigure is an extremely serious offence in the annals of criminal sentencing in Hong Kong. Not surprisingly, the courts have used very charged language, such as “vile”[23], “vicious”[24], “sickening”[25], “horrific”[26], “hideous”[27], and “wicked”[28] to describe its commission. Consistent with the way society regards this crime, the legislature has determined that the maximum penalty for the offence should be life imprisonment.

26.Clearly, for a crime of this nature in a city where people live and work in close proximity to one another, deterrence is a highly relevant and significant component of the sentencing process for this particular offence. As the Court in HKSAR v Lau Ching Him[29] observed, after conducting a comprehensive review of previous appellate decisions in this area:

“… the harm caused by the offence can be so horrific with appalling long term, and frequently whole of life, consequences to the victim. Thus, the courts have emphasised the importance of the sentencing principles of denunciation, deterrence and punishment. In R v Chan Chi Lun[30] Power JA in giving the judgment of the Court of Appeal said: ‘In offences of this kind the deterrent effect of a sentence is, perhaps, of larger moment than in any other class of offence’.

The need to accommodate these principles will inevitably mean that the principle of rehabilitation will be relegated to a much less prominent role in the determination of a just sentence. The importance of giving proper allowance, indeed emphasis, to the principles of denunciation and deterrence will inevitably result in severe sentences.”

27.These offences have generally tended to fall into two categories: those which arise from emotional turmoil often in a domestic setting and those carried out by strangers upon the instructions of others for reward. It is sometimes suggested, as it has been on behalf of A1, that where the background is an aggrieved spouse or partner, the offence is somehow less serious than a revenge attack carried out by strangers for money. Whilst “it might be argued that a cold blooded hired assailant should be more severely dealt with than a person blinded by passion or jealousy”[31], the Court in Sin Wa Chiu[32] held that:

“There is no fixed tariff or bracket for this offence and a starting point of 18 years is not reserved exclusively for cases involving attacks on strangers for financial reward. The latter fact may be an aggravating factor in determining sentence but the appropriate sentence for this offence depends on the facts and circumstances of the particular case, including the obvious factor of the extent of injuries and suffering by the victim.”

As the Court in Lau Ching Him observed of this and other decisions, at paragraph 88:

“The statements of the Court of Appeal lay to rest completely any attempt to suggest that when the offence arises from a failed personal relationship it cannot attract a sentence starting point of 18 years’ imprisonment.”

Of course, where an aggrieved wife (or husband) pays for a gang of men to exact revenge on her spouse on her behalf, both categories are engaged and it would be illogical in such circumstances to say that because of her motive, her conduct should be viewed more leniently.

28.Nor should it be thought that a starting point of 18 years’ imprisonment represents a ceiling for an offence of this character, simply because it so far represents the highest sentence passed for this offence in this jurisdiction. As we have pointed out, the maximum sentence is life imprisonment and one can well envisage, depending on the circumstances and the gravity of the nature and extent of the injuries to the victim, that the starting point could be greater than 18 years’ imprisonment.

29.Although horrific injuries which disfigure or maim, causing a lifetime of suffering, misery and indignity for the victim must obviously weigh in the assessment of the gravity of the crime, it does not necessarily follow that lesser injuries demand lesser sentences. In many cases, it is a matter of sheer luck and happenstance whether injuries of such magnitude can be avoided or treated effectively in time, as to some extent occurred in this case, but it does not follow that because the injuries turn out not to be as horrific as they were intended to be, the perpetrator should derive any benefit from such a fortuitous outcome. In Chan Chi Lun, it had been submitted on behalf of the applicant that the victim’s injuries were not of the worst kind and that long‑term plastic surgery would ultimately be effective. Of this argument, the Court said[33]:

“It is our view that in offences of this nature whether the injury be grave or minor is largely fortuitous and weighs little in favour of the applicant.”

30.One must remember that the consequences for the victim continue long after the sentencing and appeal process is complete and sometimes for the rest of his or her life. In preparing for this appeal, we called for an updated report on PW1’s progress, as well as photographs of her injuries, since the attack on her more than 5 years ago. We have already detailed her injuries which necessitated her hospitalisation for 10 days. It is clear that in the wake of skin grafts to the affected areas, PW1 endured great pain and discomfort as the skin was stretched, which inevitably affected her mobility. There are still obvious scars to her waist and limbs, but fortuitously not so obviously to her face. Nevertheless, the scars to her arms and legs are unsightly, and despite undertaking plastic surgery in Korea at her own expense in order to reduce their appearance, they are permanent and painful if knocked. As a result, she does not feel able to go out wearing short skirts or shorts and is self‑conscious of her scarring. Her self‑confidence has evidently been seriously undermined since the attack, making her fearful of strangers when walking in public so that she invariably requires the company of a relative. She has been under the regular care of a psychologist, who has diagnosed her to be suffering from Post‑Traumatic Stress Disorder.

31.Whilst, PW1 may be fortunate that she has not been maimed or facially disfigured for life, her injuries are very grave and she will suffer the mental and physical consequences of her ordeal for many years to come.

32.There can be no doubt that the engagement of a gang of men, with obvious triad connotations and connections, to throw highly concentrated sulphuric acid at a young woman for reward is a particularly egregious manifestation of this offence. We unreservedly reject the suggestion that there was no sufficient evidence of significant triad participation in this conspiracy: the circumstances and evidence were redolent of triad method and involvement. Furthermore, the fact that most of the sulphuric acid missed PW1’s face as she turned away does not diminish the seriousness of what the conspirators planned to do. In our judgment, the starting point for someone who was prepared to be involved in a conspiracy as despicable as this should have been 16 years’ imprisonment. It may be noted that even 30 years ago, this Court was holding, in relation to an acid attack by two strangers with triad affiliations on a night club hostess for reward, that “for an adult offender a sentence of 15 years’ imprisonment after trial was an appropriate sentence for this dreadful offence”[34].

33.From that basic starting point, it was then necessary to determine each applicant’s precise role in the conspiracy relative to the others involved. For this, we are able to rely on the judge’s sentencing remarks, she having had the advantage of overseeing the trial and hearing the evidence, including the evidence of accomplice witnesses and the defence.

34.We have no hesitation in agreeing that A1 played a major part in the conspiracy, having instigated at Madam Ho’s behest the chain of events resulting in the recruitment of triad members to throw acid at PW1 inside the company where she worked, and of which he was himself an employee and colleague. As the judge found, A1 helped plan the attack, brokered the financial dealings of participants and was rightly described as Madam Ho’s ‘right-hand man’. There was no mitigation of any consequence in his favour. In our judgment, the starting point of 16 years’ imprisonment should have been increased by 2 years for the significant role A1 played in the conspiracy and for the aggravating feature of visiting this appalling crime upon his own company and colleague, who had done him no wrong whatsoever. Accordingly, although we have approached the starting point and ultimate sentence in a different way from the judge, her sentence of 18 years’ imprisonment in respect of A1 was entirely appropriate.

35.Whilst we are prepared to grant A1 leave to appeal against sentence, given the somewhat confusing and unorthodox way the judge appears to have approached sentence, we nevertheless dismiss his appeal.

36.In the case of A2, we cannot, as we have said, distinguish his role from that of Lin, the co‑conspirator and accomplice witness (PW2), for whom the judge considered a “starting point” of 17 years’ imprisonment appropriate in respect of a role which was deemed just below A1 in terms of responsibility. A1 was commissioned by Madam Ho to find people “with connections”; Lin was one of those with “triad contacts” recruited by A2, and he in turn found others to join the conspiracy. Given A2’s significant role in the conspiracy, we would have enhanced the starting point of 16 years’ imprisonment by one year to 17 years’ imprisonment. Since, like the judge, we see no real difference between his role and that of Lin, we consider the same sentence that the judge indicated she would have passed on Lin after trial, had he not cooperated by giving evidence for the prosecution, to be equally appropriate in A2’s case.

37.Accordingly, we allow A2’s application for leave to appeal against sentence, and treating the hearing of the application as the hearing of the appeal, we reduce his sentence from 18 years’ imprisonment to 17 years’ imprisonment.

38.In the case of A3, he was effectively one of the ‘foot‑soldiers’ recruited by those further up the chain and the penultimate player in the conspiracy. Yet, he was also the person responsible for recruiting PW3, who was 15 years of age at the time, to throw the sulphuric acid at PW1; moreover, he supplied PW3 with the actual cup of acid to be used in the attack. In our judgment, the judge was right to view his engagement of PW3 as an aggravating feature justifying an enhancement of the starting point.

39.For his role and, in particular, for involving a minor in such an appalling offence, we consider that the starting point of 16 years’ imprisonment should have been increased by one year to 17 years’ imprisonment. We have given considerable thought to whether we should enhance the starting point by more than one year, but we have been dissuaded from that course by submissions on his behalf that A3 was himself 19 years of age at the time of the offence in question.

40.In all the circumstances, we grant A3 leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we reduce his sentence from 19 years’ imprisonment to 17 years’ imprisonment.

Conclusion

41.In the result, and for the reasons we have given, A1’s sentence will remain at 18 years’ imprisonment, whilst the sentences on A2 and A3 will each be reduced to 17 years’ imprisonment.