HKSAR v. Lau Yun Keung

DCCC 329/2021

[2021] HKDC 1372

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 329 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of doing an act or a series of acts tending and intended to pervert the course of public justice, contrary to Common Law[1].

2.Full particulars of the offence are set out in the re-amended summary of facts admitted by the defendant today.  In summary the defendant assisted Cheung Chi Him and Fan Pak Kei, two suspects in a suspected case of arson, to evade arrest by sheltering them from the police. 

Arson

3.At around 12:55 p.m. on 28 January 1999 an explosion occurred on the ground floor of Allied Plaza, 760 Nathan Road in Mong Kok resulting in a fire in which three people suffered burn injuries, one of whom sadly died as a result of the injuries, and damage to a CD/VCD shop.  Photographs showing the damage to the shop and the injuries of two of the persons have been submitted to court.

Assistance provided by the defendant

4.On 10 February 1999 the police found the defendant, Cheung Chi Him and Fan Pak Kei in a flat in Yuen Long.  Cheung had burn injuries on his leg.

5.The flat had been rented by the defendant’s wife on 31 January 1999, three days after the arson.

6.Cheung Chi Him, Fan Pak Kei and the defendant were arrested for arson.

7.The police arrested a total of five persons Cheung Chi Him, Fan Pak Kei, Cheng Yi On, Liu Kwai Wing and the defendant.  The defendant was released unconditionally on 16 April 1999.  A sixth person Lau Wai Ming, Tommy is still wanted by the police. 

8.On 9 February 2000 Cheung Chi Him, Fan Pak Kei and Cheng Yi On pleaded guilty to manslaughter and two charges of inflicting grievous bodily harm.  Cheung and Fan were sentenced to sixteen years’ imprisonment and Cheng to fifteen years’ imprisonment.

Re-arrest

9.On the day of sentence Fan indicated he wanted to assist the prosecution. 

10.The defendant was rearrested on 10 February 2000 but released the following day. 

11.In May 2000, after Fan provided information to the police implicating the defendant, Liu and Lau in the arson, the defendant was placed on the wanted list. 

12.Liu Kwai Wing was arrested and convicted after trial of murder and two charges of inflicting grievous bodily harm.  On appeal the murder conviction was reduced to manslaughter and Liu was sentenced to twenty-six years’ imprisonment. Fan’s sentence was reduced to twelve years’ imprisonment on appeal.

13.The police were however unable to locate the defendant.  According to immigration records the defendant had never left Hong Kong since his initial arrest and did not replace his identity card in the 2003 to 2007 Hong Kong smart identity card replacement exercise resulting in his identity card ceasing to be valid on 17 September 2007.

14.The defendant was rearrested on 9 December 2020 when he attempted to change his identity card pursuant to the new identity card replacement exercise.

15.Under caution in video recorded interviews conducted in 1999 and 2020, the defendant admitted, inter alia, that the night before the arson he was having a midnight snack with Cheung, Fan, Cheng and Lau when Lau said someone had assaulted his friend at Allied Plaza and that there was talk about someone not paying money; that night Cheung, Fan and Cheng all slept over at his home in Shek Lei Estate; when he woke up he saw Cheung, Fan and Lau returning to his home; Cheung’s leg had burn injuries; they immediately turned on the television and watched news about an arson in Allied Plaza; after Lau left Cheung told him that Lau had taken them to Allied Plaza that morning; his wife rented the flat where they were arrested and that he had also rented a flat on Mui Wo for one night.

Mitigation

16.I have carefully considered everything said on behalf of the defendant by Mr Lam, including that the defendant acted out of loyalty, Cheung being his cousin and Fan his friend[2].

17.In the intervening years the defendant lost contact with his parents and family members and his wife divorced him.  Mr Lam explains that because Cheung’s family blamed the defendant for Cheung being sentenced to a long term of imprisonment the defendant could not face his family members and led a life of self-banishment[3].

18.I have read the mitigation letter written by the defendant in which he expresses his hope that his mother and son will forgive him and asks for the opportunity of early rehabilitation. 

19.I have also read the letter written by Mr Lam, a priest with the Christian Prison Pastoral Association Limited, who asks for leniency on behalf of the defendant who he describes as having the courage and determination to improve and reform himself while in custody. 

20.I take into account the defendant has no previous convictions.

Guidelines

21.There are no guidelines.  Deterrent sentences are required to mark the seriousness of the offence and to send a message to others who would or might consider similar conduct.  

22.In assessing the seriousness of the offence relevant factors include the seriousness of the underlying offence; the nature of the conduct; the period of time over which the conduct continued and the effect of the conduct on the course of justice itself[4].

23.Mr Lam submits that the assistance rendered by the defendant was just a short delay in the arrest and prosecution of Cheung and Fan[5].  In support of his submission Mr Lam refers the court to the sentence imposed in DCCC 95/2012 where the underlying offence was burglary and  the assistance was to provide a wheelchair to help the burglar who had injured himself when jumping down from the balcony of the home he burgled[6].

24.Mr Lam submits that case is similar to the present case[7].  I do not agree.  In my view the present case is far more serious. The underlying offences of manslaughter and inflicting grievous bodily harm arising from the arson are very serious.  The defendant sheltered Cheung and Fan in a flat specifically rented for this purpose and stayed there for ten days until their arrest by the police.  The defendant also rented a flat for one night in Mui Wo.

25.The defendant is to be sentenced only for the assistance he provided to Cheung and Fan in impeding their apprehension and prosecution.  The fact that Fan provided information to the police implicating the defendant in the arson is not to be taken into account in assessing the seriousness of the offence and the culpability of the defendant[8]. This explains why after being released in April 1999 the defendant was placed on the wanted list and goes towards explaining why he was not re-arrested until 9 December 2020, twenty years later.

26.I am satisfied a starting point of 3 years’ imprisonment is appropriate.

Timely plea of guilty

27.The defendant’s plea is not a timely plea of guilty.  The defendant had clearly avoided arrest by the police for almost twenty years.  The defendant did not surrender. 

28.I am satisfied the appropriate discount is one of 8 months’ imprisonment which is a discount of just over 22% and which reduces the sentence to 2 years and 4 months’ imprisonment.

Computation of sentences of imprisonment

29.Mr Ching informs the court that after the defendant was arrested on 10 February 1999 he was brought to North Kowloon Magistracy on 12 February 1999 when he was remanded in custody.  The defendant remained in custody until 16 April 1999 when the charges laid against him were withdrawn.  The defendant was also held in police custody for two days on his second arrest in February 2000.

30.Section 67A (1)  of the Criminal Procedure Ordinance provides that the length of any sentence of imprisonment imposed on a person by a court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to the sentence or the offence for which it was passed, or with any proceedings from which those proceedings arose[9].

31.Mr Lam submits that the provisions of section 67A (1)  apply and asks that the court endorses on the certificate of sentence the period the defendant was in custody.   Alternatively, if the court is of the view that section 67A (1)  does not apply, Mr Lam submits the court should exercise its discretion and reduce the sentence by the 68 days the defendant was in custody in 1999 and 2000[10].

32.In my view the period the defendant was in custody in 1999 was not by an order of a court in connection with any proceedings relating to the sentence to be imposed today or arises from any such proceedings.  The present court proceedings whilst arising out of the same incident in 1999 are in my view separate court proceedings.  Section 67A (1)  therefore does not apply and the sentence of imprisonment to be imposed will not be treated as reduced by the period the defendant was in custody in 1999.  This is also the view of Mr Ching on behalf of the prosecution[11].

33.Section 67A (1A) also does not apply, the period spent in custody not being immediately prior to the defendant’s first appearance in court.  

34.The two days spent in custody in February 2000 will also not be treated as reduced as the custody was police custody and not by order of the court and was not immediately prior to the defendant’s first appearance in court. 

35.In the circumstances I do exercise my discretion and reduce the sentence by 2 months and 7 days to 2 years and 1 month and 23 days’ imprisonment.  

36.The defendant is convicted and sentenced to 2 years and 1 month and 23 days’ imprisonment.