HKSAR v. Cheng Kan Yung

CACC 83/2020

[2021] HKCA 1186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 83 OF 2020

(ON APPEAL FROM DCCC NO 1011 OF 2018)

________________________

________________________

Before:  Hon Macrae VP in Court

Date of Hearing:  6 August 2021

Date of Judgment:  6 August 2021

Date of Reasons for Judgment:  11 August 2021

________________________

R E A S O N S  F O R  J U D G M E N T

________________________

1.The applicant pleaded guilty to one charge of attempted arson, contrary to sections 60(2) and (3), 63(1) and 159(G) of the Crimes Ordinance, Cap 200. The particulars of the offence were that, on 31 July 2018, at the reception area of 6^th Floor, East Wing, Justice Place, 18 Lower Albert Road in Central, the applicant, without lawful excuse, attempted to damage by fire the reception desk and the surrounding area, the property belonging to another, intending to damage such property, and being reckless as to whether the life of another would thereby be endangered. On 12 February 2020, the applicant was sentenced in the District Court by Deputy Judge KH Cheang (“the judge”) to 25 months’ imprisonment.

2.The applicant, having had his application for Legal Aid refused on 30 October 2020, now appears in person.  On 15 May 2020, the court received the applicant’s Form XI Notice seeking leave to appeal against conviction and sentence out of time (the application being out of time by some 2 months).  At the time of filing his Form XI Notice, the applicant had completed his sentence and was no longer in custody.  The respondent has filed submissions, dated 21 December 2020, opposing both applications.

The history of these proceedings

3.The applicant has filed no less than 6 affirmations^[1], in which he makes complaint, among other things, about the conduct of his original legal representatives, whom he accuses of not acting in accordance with his instructions.

4.At the direction of the court, counsel who initially acted for the applicant, Mr Philip Chau SC, has filed an affirmation in response^[2]. Mr Chau strongly refutes the applicant’s allegations and, with the assistance of contemporaneous notes and other documents, has endeavoured to show that there is no substance to them.  His account is supported by his instructing solicitor at the time.  Mr Chau avers that the applicant, having received advice as to his plea, originally wished to plead guilty to the charge of attempted arson.  Attached to his affirmation is a Chinese document, signed by the applicant, and dated 21 February 2019, confirming his then intention to plead guilty.  This was accompanied by a letter from Mr Chau’s instructing solicitor notifying the Legal Aid Department of the applicant’s anticipated guilty plea.  Mr Chau had previously approached the prosecution, on the applicant’s instructions, to explore the possibility of pleading guilty to a lesser charge^[3]. The approach was unsuccessful.

5.In preparation for mitigation, Mr Chau drafted a 4-page written submission, dated 28 May 2019, which was the day fixed for the original plea and sentencing hearing in the District Court.  The applicant was shown the submission before the anticipated hearing, and confirmed his acceptance of its contents by signing and dating it on 16 May 2019^[4]. In the event, the hearing did not go ahead because the applicant was taken ill and the matter was adjourned.

6.Mr Chau went on to explain that, on 2 September 2019, which was the day of the renewed hearing before HHJ Stanley Chan, he had visited the applicant together with his instructing solicitor in the cells at court. At this conference, Mr Chau recalled that the applicant confirmed his guilty plea as well as his admission of the Summary of Facts^[5].

7.However, when the court convened, matters took an unexpected turn and the applicant decided to plead not guilty to the charge.  A letter from Mr Chau, dated 3 September 2019, which was sent to Legal Aid counsel, explained that “… the case was stood down so that I could clarify the matter with the Defendant.  The Defendant then stated he wanted to discharge his legal team and represent himself”[6]. The applicant, now acting in person, made an application for bail to the judge, which was refused.

8.When the applicant appeared again at a new hearing on 20 January 2020, now represented by different counsel, the charge was read to him again and he entered a plea of guilty.  The original Summary of Facts, dated 14 November 2018, was duly read out in court and verbally admitted by the applicant.  When the judge clarified that he understood the Summary of Facts, the applicant replied “Yes, understood”^[7].

9.The court proceeded to hear mitigation from the applicant’s new counsel on the applicant’s behalf.  Upon hearing submissions, the judge adjourned the case for updated psychiatric reports.  Two psychiatrist’s reports, dated 31 January 2020, were duly prepared by Dr Lui Sing Heung and Dr Jane So Wai Lam, both visiting psychiatrists at Siu Lam Psychiatric Centre.  Their reports, the detail of which I shall refer to shortly, confirmed that the applicant was mentally fit to plead.

The Summary of Facts

10.The applicant appeared at the Department of Justice at Justice Place in Lower Albert Road, at about 3:50 pm on 31 July 2018, claiming that he had some documents he wished to submit. Accordingly, he was escorted by a security guard to the reception area on the 6^th floor.  Upon his arrival, the applicant put his shoulder bag on the reception desk and took out a glass bottle containing clear liquid, which he smashed on the desk causing liquid to spill out onto the surrounding area.  The applicant then produced a lighter, saying that he wanted to die.  However, the applicant failed to ignite the liquid and he was immediately subdued, whereupon the lighter fell to the ground.  The applicant was arrested^[8].

11.In a cautioned interview, the applicant stated that he was known to the psychiatric services and that he had had been hearing voices telling him to die.  He said he had brought paint thinner and a lighter to the Department of Justice in an effort to commit suicide.  The police found another glass bottle (Exhibit 1) in the applicant’s shoulder bag.  Subsequent testing revealed that Exhibit 1 contained about 610 ml of a colourless liquid consisting mainly of xylene and ethyl benzene.  These were highly flammable organic solvents, which are common constituents of paint thinner.  The same substance was found on glass fragments recovered from the scene^[9].

Mitigation

12.The applicant had worked as a nurse in the public health sector between 1967 and 1999, before retiring at the age of 55. At the time of sentence, he was 75 years old and married with three adult children^[10].

13.The judge was told that the applicant had been made bankrupt in the wake of the 2003 financial crisis.  As a consequence, his pension, or part of it, had been withheld by the Official Receiver’s Office. Numerous approaches were made by the applicant to access his funds, as well as applications to court, all of which were unsuccessful; the latter resulting in the applicant having a costs order made against him in the sum of some HK$240,000^[11]. Convictions for criminal intimidation in 2008 also appear to have resulted from the applicant’s unsuccessful attempts to access his pension.  It is also fair to say that much of what is discussed in the applicant’s various affirmations before this Court concerns his pension and his unsuccessful efforts to retrieve it.

14.Medical reports were produced to the judge, including a report from Dr Michelle Leung Nga Fung, diagnosing the applicant as suffering from a severe depressive episode at the time of the offence; similar conclusions were said to have been reached by the two visiting psychiatrists at Siu Lam Psychiatric Centre^[12].

15.It was explained by counsel that the applicant had gone to the Department of Justice with the intention of killing himself in front of the lawyer who was handling his litigation^[13].  It was confirmed with counsel by the judge that the appropriate discount, in accordance with the guidelines in HKSAR v Ngo Van Nam[14], lay between 20-25%, since the applicant had only pleaded guilty after his case had been listed for trial in the District Court^[15]. Counsel also confirmed that this had been explained to the applicant and he agreed and understood[16]. Because the medical reports were not up to date, the judge adjourned the case for fresh psychiatric reports.

16.Dr Lui in his report, dated 31 January 2020, stated that the applicant was settled, coherent, and of stable mood, harbouring no depressive thoughts or unusual beliefs, nor expressing ideas of aggression or self-harm.  He concluded that the applicant was suffering from adjustment and mood problems; that he was stable but should continue to have psychiatric treatment at an outpatient clinic[17].

17.The report from Dr So, also dated 31 January 2020, canvassed the applicant’s medical history, confirming that the applicant had been known to the mental health services since 2003 and that he had low mood coupled with suicidal ideation.  He had had numerous admissions to hospital, in 2008 and 2009, in relation to the stress associated with his on‑going litigation; he reported frequently hearing voices in his head telling him to die and was later diagnosed with dysthymia^[18].

Reasons for sentence

18.The judge was sceptical of the applicant’s claim that he had gone to the Department of Justice for the sole purpose of committing suicide.  The judge viewed the claim as inconsistent with his actions in smashing the bottle containing the paint thinner, which, if ignited, could have injured other people.  The judge found his conduct had been designed to stun those nearby who happened to witness the horror of the incident^[19].

19.Having considered the psychiatric reports, the judge formed the view that a hospital order was “out of the question”^[20]. He distinguished the present case from HKSAR v Ching Kam-pui[21], where the appellant had originally been sentenced after trial to 4 years’ imprisonment, which was reduced on appeal to 2½ years’ imprisonment.  He had set fire to newspapers in order to burn a wooden door; whereas in the present case, the applicant had used a highly flammable solvent to spread over the surrounding area.  The facts of the present case were more serious[22]. Accordingly, the judge adopted a starting point of 32 months’ imprisonment.

20.The applicant had tendered this guilty plea on 20 January 2020, although the case had been listed for plea and sentence on 2 September 2019.  However, at the hearing on 2 September, as discussed earlier, the applicant had suddenly indicated that he would plead not guilty.  The case was then adjourned to 5 September 2019, when trial dates were set down for 20 January 2020.  On 6 December 2019, the applicant’s solicitors had sent a letter to the court indicating that the applicant would now be pleading guilty to the charge.  Accordingly, the judge found that the appropriate discount to be given should be 21.875%, since the indication of a plea of guilty had only come about after the case had been listed for trial.  The sentence was thus reduced to 25 months’ imprisonment^[23].

The applicant’s submissions

21.The applicant has not filed any written submissions.  However, in support of his application for leave to appeal against conviction out of time, he has explained by way of affidavit, that since being discharged from prison on 13 March 2020, he had self-isolated at home in order to avoid contracting the Covid-19 virus, and was therefore unable to file his application in time.  Thus, what is before the Court by way of appeal grounds, is his Form XI Notice, as well as the applicant’s numerous affirmations.

22.The applicant began his oral arguments by going through the detail of his representation and his various complaints against the government and his previous counsel, Mr Chau.  It eventually became clear that he was not arguing against his conviction at all, but against the eventual discount he received from the judge for what had unintentionally become a late plea.  His complaint was that had he been represented properly in the first place, he would have pleaded guilty on 2 September 2019 and received a full discount of one-third.  However, since he had lost confidence in his then counsel, for various reasons he traversed in detail before me, he had felt it necessary to plead not guilty and discharge his entire legal team. It was only on 20 January 2020, when represented by new counsel, against whom he made no complaint, that he pleaded guilty; but by then he had lost the opportunity of a full one-third discount and was only entitled to a reduced discount.

23.His other complaints against the sentence were that the judge had misunderstood his intention at the time of the offence, which was only to shock and frighten and not to cause any damage to property or injury to himself or anyone else.  Accordingly, he argued that the sentence was manifestly excessive.

The respondent’s submissions

24.Ms Hermina Ng, on behalf of the respondent, submitted that there is no merit whatsoever in this application, and that by refusing to grant an extension, the court would not be shutting out a substantial and plainly arguable ground of appeal.  She noted that the applicant had pleaded guilty to the charge and that there was nothing to suggest the plea was entered involuntarily.  Nor was the plea induced by fraud; there was nothing to suggest it was the result of anything other than an informed and deliberate decision on his part.

25.Ms Ng made reference to the principles relevant to sentencing in arson cases in Hong Kong, namely that such offences are especially serious in a city with a crowded, dense population^[24].  The offence took place in an office building, on a working day, with the potential to cause significant harm to others; the offence was premeditated; the applicant adopted false pretences to enter the building; and an accelerant was used.  It was a sheer matter of luck that the fire could not be ignited.  Accordingly, the starting point of 52 months’ imprisonment was proper; and the discount of 21.875%, appropriate.

Consideration

26.The applicant obviously holds very entrenched views about the way he has been treated in respect of his pension by the government and his representation by Mr Chau, his original counsel.  But none of these complaints can amount to a reasonably arguable ground of appeal that the sentence is wrong in principle and/or manifestly excessive (still less that the conviction is unsafe or unsatisfactory).  Even if the applicant had lost confidence in Mr Chau on 2 September 2019, for whatever reason, he could have still pleaded guilty and then discharged his counsel.  He would undoubtedly have been granted an adjournment to secure different counsel, which could have been done very quickly.  Indeed, he was in fact assigned a new counsel by the Director of Legal Aid by 5 September 2019, a mere three days after the aborted hearing. 

27.Moreover, any sentencing judge was bound to call for reports in a case such as this involving an elderly defendant with a psychiatric history, which would inevitably have resulted in an adjournment of the proceedings (as indeed happened on 20 January 2020).  The applicant had already signified his confirmation of Mr Chau’s proposed written mitigation on his behalf, the preparation of which suggests that counsel was in fact being quite careful in his handling of the applicant.

28.No complaint is made about the applicant’s representation by his new counsel on 20 January 2020 and, indeed, she did a perfectly competent plea in mitigation, prefaced by a 6-page written submission.  The applicant now takes issue with the notion that he went to the Department of Justice to commit suicide; yet, that was exactly what his new counsel submitted on his behalf[25]. Indeed, that is what he had originally told the police in interview; a fact which was agreed by him in the Summary of Facts, which he admitted[26].

29.As for the actual sentence passed, I can see no reasonably arguable ground of appeal against either the starting point or the discount.

30.The applicant has given no valid reason for making his application for leave to appeal against conviction and sentence 2 months out of time, especially when he was no longer in custody; indeed, as I have explained, his application for leave to appeal against conviction was misconceived.  Accordingly, having satisfied myself that there are no reasonably arguable grounds of appeal, the application for leave to appeal out of time must be refused.

‘Loss of time’ warning

31.Although the applicant has served his sentence, I should nevertheless warn him that, while he has the right to renew his application for leave to the Court of Appeal against either conviction or sentence out of time, that Court does have the power to make a ‘loss of time’ order against him, if it were to come to the view that his renewal application was wholly without merit and should not have been made.  Since he has also made serious allegations against counsel, the Court would ordinarily make such an order for ‘loss of time’ if it were to conclude that the allegations should not have been made and/or persisted with.  Apart from this written judgment, I have given this warning to the applicant in open court and it has been duly translated for him.

Ms Hermina Ng SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1]  These are dated 19 March, 22 March, 5 May, 18 May, 2 August and 3 August 2021.

[2]  Affirmed on 12 July 2021.

[3]  See [29] of Mr Chau’s affirmation.

[4]  Exhibit “PC3” of Mr Chau’s affirmation.

[5]  See [38] of Mr Chau’s affirmation.

[6]  Exhibit “PC6” of Mr Chau’s affirmation.

[7]  AB, p 6P-S.

[8]  AB, p 9 at [1]-[3].

[9]  AB, p 10 at [5]-[6].

[10]  AB, p 23 at [2]-[3].

[11]  AB, p 24 at [5]-[6].

[12]  AB, p 25 at [10].

[13]  AB, p 18S-V.

[14]  HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

[15]  AB, p 21B-G.

[16]  AB, p 21E-F.

[17]  AB, p 35, at [4]-[5].

[18]  AB, p 35, at [3].

[19]  AB, p 14, at [18]-[19].

[20]  AB, p 13, at [16].

[21]  HKSAR v Ching Kam-pui (Unrep., CACC 269/2002, 29 January 2003).

[22]  AB, p 15, at [21].

[23]  AB, p 15, at [23].

[24]  See, for example, Secretary for Justice v SWS [2020] 5 HKC 696 at [52].

[25]  AB, p 27, at [21].

[26]  AB, p 3, at [4].