HKSAR v. Luk Chi Kan

CACC 273/2021, [2023] HKCA 1300

On Appeal From [2022] HKCFI 83

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 273 OF 2021

(ON APPEAL FROM HCCC NO. 366 OF 2020)

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BETWEEN

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J U D G M E N T

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Background

1.The applicant pleaded guilty to one count of “throwing corrosive fluid with intent”[1]and was sentenced by Andrew Chan J (the judge) to 9 years and 9 months’ imprisonment on 9 November 2021.  He now seeks leave to appeal against his sentence.  The respondent does not oppose this application.  Accordingly, the application was dealt with on the papers without a hearing. 

The sentence

2.In a gist, the prosecution case was that in the evening of 27 November 2019, when PW1 was going home, the applicant threw corrosive fluid at his face and body, causing him excruciating pain.  The applicant successfully fled from the scene but surrendered to the police on 29 November 2019.  Under caution, the applicant divulged that he was acting under the instructions of Ho, who was PW1’s wife and the applicant’s then girlfriend.  

3.As a result of the attack, PW1:

(a)  suffered 3% chemical burn to his head, neck, upper body and upper limbs, as well as injuries to his eyes; 

(b)  was hospitalized until 20 December 2019; and

(c)  had serious depressive and post-traumatic syndromes. 

4.The applicant was aged 31 at the time of sentence and had a previous clear record.  After referring to HKSAR v Lau Ching Him[2], the judge adopted a starting point of 15 years’ imprisonment.  From that, he gave the applicant a discount of 3 months for his voluntary surrender and a further one-third discount for his timely plea.  In respect of the applicant’s assistance in the prosecution of Ho, the judge took the view that, at that stage, there was not yet any meaningful assistance which would warrant any additional reduction.  The resulting sentence was 9 years and 9 months’ imprisonment. 

The applicant’s assistance

5.On 1 February 2021, the applicant provided a 6-page non-prejudicial statement against Ho.  Initially, Ho pleaded not guilty to the charge of throwing corrosive fluid and a trial was fixed to commence on 23 February 2023 for which the applicant was a willing prosecution witness.  Eventually, Ho tendered a guilty plea 9 days prior to the commencement of her trial.  On 23 February 2023, Ho was convicted and sentenced by another judge to 10 years and 8 months’ imprisonment[3]. 

The applicant’s ground of appeal

6.By a sole ground of appeal advanced on behalf of the applicant, Mr Trevor Beel seeks a reduction in the applicant’s sentence based on his assistance provided. 

7.Mr Gary Leung, for the respondent, does not oppose the granting of leave.  He further submits that the appropriate discount relating to the applicant’s assistance should be more than 40% but less than 50%. 

Consideration

8.Having examined the parties’ submissions and the ground of appeal, I consider that it is plainly arguable that the sentence passed on the applicant could be further reduced on the basis of his assistance to the prosecution.  Leave is accordingly granted.

Mr Gary Leung, SPP, of the Department of Justice, for the Respondent

Mr Trevor Beel, instructed by M/s Tai, Tang & Chong, assigned by the Director of Legal Aid, for the Applicant