HKSAR v. Lo Man Kit

CACC 79/2024, [2025] HKCA 1019

On Appeal From [2024] HKCFI 1216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 79 OF 2024

(ON APPEAL FROM HCCC NO 243 OF 2023)

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REASONS FOR JUDGMENT

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

1.On 19 February 2025, the appellant was granted leave by the Single Judge to appeal against his sentence of 11 years and 3 months’ imprisonment, passed by Andrew Chan J (“the judge”) on 14 March 2024. The appellant had pleaded guilty in the High Court to an offence of attempted murder, contrary to Common Law and sections 159G and 159J(1)(a) of the Crimes Ordinance, Cap 200 (Count 1).

2.On 22 October 2025, having heard from the parties, we allowed the appeal against sentence, reducing it to 9 years’ imprisonment. We indicated that we would hand down the reasons for our decision in due course, and this we now do.

3.The appellant originally faced two counts of attempted murder contrary to Common Law (Counts 1 and 2) and one count of arson with intent, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance (Count 3, as an alternative to Count 1). After the case was committed to the High Court for trial but before the matter was listed for trial, the appellant indicated his intention of pleading guilty to Count 1, on the basis that the other two counts would remain on the court file marked not to be proceeded with without leave of the court. The judge adopted a starting point of 15 years’ imprisonment, from which he only gave the appellant a 25% discount in view of his late plea.

4.The appellant had originally put forward six grounds of appeal before the Single Judge. However, leave was granted on only three grounds, namely:

(i)  The starting point, and accordingly the ultimate sentence, was manifestly excessive (originally Ground 1);

(ii)  The judge failed to take into account relevant mitigating factors (originally Ground 3); and

(iii)  The judge erred in giving the appellant’s act of suffocating Madam Lee (the victim) using a pillow too much weight in all the circumstances (originally Ground 6).

The summary of facts

5.The appellant was indicted for attempting to murder Madam Lee on 29 April 2022. He and Madam Lee had formed a relationship in 2017 and at one time lived together in a rented public housing unit (“the Flat”). After discovering that the appellant had been having an affair, Madam Lee decided, in October 2021, to end the relationship and asked the appellant to move out of the premises. The appellant nevertheless retained a key to the Flat and on occasion would return to the premises in an effort to try and reconcile with Madam Lee. His overtures were, however, rebuffed by Madam Lee, who had already begun a relationship with another man.

6.On the day of the incident, the appellant, pursuant to an arrangement made two days earlier, came up to the Flat at 7 pm to collect his remaining personal belongings. When, some two hours later, Madam Lee returned home, she found the appellant in the kitchen and asked him to come out for a talk. However, during the ensuing discussion, the appellant became emotional and pushed Madam Lee onto the sofa, grabbed her arms and pressed her down with his body. Whilst doing so, he threatened to rape her, at which point she said she would call the police. She then struggled with the appellant before he released her after about 30 seconds.

7.The appellant then went into the kitchen and after about 5 seconds, there was an explosion and Madam Lee saw flames. The appellant came out and pressed her onto the floor, grabbed her hands with one of his hands and attempted to suffocate her with a pillow with the other, saying that he had already settled his affairs and they would die together. Madam Lee shouted for help and begged the appellant to stop, whilst all the time struggling fiercely. She then declared that she would break up with her new boyfriend, at which the appellant stopped trying to smother her. The incident with the pillow had lasted in all about 10 seconds. Madam Lee then told the appellant to go and put out the fire in the kitchen, which he did. By that time, there was a considerable amount of smoke and a strong smell of town gas. Madam Lee took the opportunity to escape (to a friend’s flat in the same building) as the appellant was attempting to put out the fire. A security guard meanwhile reported the case to the police.

8.At just after 10 pm, when Fire Services Department officers arrived at the scene, smoke had already filled the main corridor. The officers broke into the Flat, where they found the appellant unconscious and sitting on the floor of the living room. After extinguishing the fire in the kitchen, the officers discovered that the gas pipe to the stove had been manually loosened, while the switch of the gas pipe remained turned on. Subsequently, the Government Chemist concluded that one possible explanation was that the gas hose had been detached deliberately with a tool, such as the spanner (which was found in the adjacent cupboard), and the resulting accumulation of gas in the kitchen had caused a mild explosion and/or fire, thus causing the damage to the kitchen.

9.Madam Lee and the appellant were subsequently conveyed to hospital for treatment. Madam Lee sustained minor injuries during the incident in the form of abrasions over her cheek and elbow. The appellant remained silent upon arrest and caution.

Mitigation

10.In his written mitigation, Mr Raffell, counsel both at trial and this appeal, pointed out that at the committal stage, the appellant had indicated his willingness to plead guilty to the alternative charge of arson endangering life, which was declined by the prosecution. Subsequently, about two weeks after committal, the appellant agreed that he would plead guilty to Count 1. It was submitted that, although the plea was not made at the earliest opportunity, the appellant had caused little inconvenience or delay to the prosecution or the court; accordingly, counsel urged the judge to consider a discount for his plea of close to one-third.

11.It was argued that the victim suffered no serious injury. Moreover, it was not a planned attack, but even if there was an element of planning, premeditation was not always an aggravating factor: see the first instance decisions in HKSAR v Chow Jie[1] and HKSAR v Lam Kam Loy[2]. Furthermore, when the appellant held a pillow over the victim’s face, she had nevertheless been able to talk and shout out, indicating that this was not a “focussed and serious attempt to smother her”[3]. It was contended that whatever the appellant did in the kitchen, he was trying to kill himself. Although he did try to prevent the victim leaving the Flat for a time, she was ultimately able to escape.

12.It was submitted that the offence was out of character for a person who had not been in trouble before. A number of letters of mitigation were adduced from friends, his employer and family members, describing the appellant as an outstanding, decent, hardworking and family-orientated individual. The aggravating feature of deliberately setting fire to an apartment in a housing estate was acknowledged.

Reasons for sentence

13.Whilst accepting that there were no specific sentencing guidelines for the offence of attempted murder, the judge referred to the Court’s comments in HKSAR v Lee Wai Keung[4] concerning some of the factors that should be considered in such cases, such as the nature and extent of the injuries to the victim(s) and the almost inevitable consequence of death occurring but for a timely intervention.

14.Although Madam Lee had not sustained serious injuries, the judge pointed out that she must have been terrified by her ordeal and, had it not been for her quick thinking, she would very probably have succumbed that evening. He held that there was a premeditated attempt to kill, since the appellant had entered the kitchen before Madam Lee had returned to the Flat. He found that the appellant had deliberately detached the gas hose from the pipe with a spanner. Deliberately starting a fire in a public housing unit at night was not only extremely dangerous, it had put the lives of Madam Lee and other residents in serious jeopardy. The fact that the fire was set after the appellant had threatened to rape and strangle Madam Lee greatly increased his criminality.

15.The judge adopted 15 years’ imprisonment as the appropriate starting point. Given that the plea had been indicated after committal but before the fixing of trial dates, the judge considered a 25% discount for plea appropriate, in accordance with the milestones referred to in HKSAR v Ngo Van Nam[5]. The resulting sentence thus became 11 years and 3 months’ imprisonment.

Grounds of appeal

(Starting point)

16.Mr Raffell contended that although there was no specific guideline for the offence, the sentence should nevertheless fall within a certain range of consistency. It was argued that the summary of facts could not support the judge’s finding that there was premeditation on the appellant’s part, given that there were only some 5 seconds between his entering the kitchen and the explosion. It was submitted that 10 years’ imprisonment would have been an appropriate starting point in the circumstances.

(Mitigating factors)

17.Counsel contended that events had resulted from the appellant’s unfortunate emotional reaction, during which he had attempted to kill himself as well. The holding of the pillow over Madam Lee’s head had not prevented her from communicating with the appellant and shouting out during this action. Whilst the facts were serious, the appellant had not fully committed himself to a planned attempt to kill Madam Lee.

18.Complaint was made that the judge did not mention, and therefore did not properly consider, the appellant’s good character, nor was any credit given for the appellant’s attempt to put out the fire.

(Authorities)

19.It was contended that the judge had ignored the cases cited by the defence, including Chow Jie and Lam Kam Loy, suggesting that even if the attack had been planned, that was not always an aggravating factor. It was submitted that Cheung Hung Mai[6] was a case similar to the present, where the starting point had been 6 years’ imprisonment. As for the authority referred to by the judge, namely Lee Wai Keung, the degree of criminality was far more serious: the defendant had stabbed the victim with a vegetable peeler for no apparent reason and then struck her with a chopper several times, leaving her with serious injuries, which required an emergency operation and resulted in her staying in hospital for seven days. Yet, the starting point adopted in Lee Wai Keung of 13 years’ imprisonment was lower than the starting point in the present case.

(The act of attempting to suffocate Madam Lee)

20.It was submitted that the prosecution had by letter of 20 February 2024 clarified with the defence that Count 1 was concerned with the lighting of a fire causing an explosion in the kitchen; while Count 2 was concerned with the attempted suffocation of Madam Lee, which was an act separate from Count 1. Furthermore, the duration of the attempted suffocation, and the fact that Madam Lee could still converse with the appellant, indicated that he had not been serious about suffocating her. Accordingly, the judge had placed too much weight on this act.

(25% discount for guilty plea)

21.Although Mr Raffell accepted that the appellant was not entitled to a one-third discount for his late plea, he nevertheless urged the Court to consider permitting a greater discount.

Respondent’s submissions

22.With respect to the starting point, Ms Clara Ma, on behalf of the respondent, submitted that since there were no sentencing guidelines for attempted murder, the cases cited by the appellant, especially those which were first instance decisions, were of limited utility. The appellant’s actions were extremely serious and demonstrated a high level of culpability, endangering not just the life of Madam Lee, but potentially many others in the building as well. Setting a fire in a public housing unit at night time should be regarded as a serious aggravating feature justifying a higher starting point.

23.Ms Ma pointed out that the explosion and fire had already happened when the appellant pressed Madam Lee onto the floor and attempted to suffocate her with a pillow. As the judge had observed, if Madam Lee had not told the appellant that she would break up with her boyfriend and urged him to go to the kitchen to put out the fire, she might not have survived. The respondent submitted that the judge was right to find that the crime was clearly planned and that the appellant had already been in the kitchen before Madam Lee arrived back at the Flat. Furthermore, the judge was entitled to accept the Government Chemist’s opinion on how the explosion came about.

24.In relation to the cases relied upon by the appellant, the case of Lam Kam Loy concerned arson with intent, while Chow Jie involved a defendant with limited intellectual capacity. Accordingly, such cases were of limited value. Furthermore, the facts of Cheung Hung Mai were distinguishable, inasmuch as there had been a spontaneous, spur-of-the-moment attempt to kill, without any aggravating features.

25.As for the point in respect of the attempt to suffocate Madam Lee, Ms Ma pointed out that all the judge had said was that “further, the [appellant] also tried to kill Madam Lee by strangulation”[7], which along with all the other circumstances of the case had obviously increased his criminality. There was nothing to suggest that the judge had placed too much emphasis on the attempted suffocation of Madam Lee.

Discussion

26.An attempt to murder is a very serious offence in the criminal calendar, for which the maximum penalty is life imprisonment. It should be remembered that the principal ingredient of the crime is the defendant’s intent: in the context of attempted murder, the intent necessary is an intention to kill, not merely an intention to do grievous bodily harm: see the judgment of Lord Goddard CJ, on behalf of the five-member division of the Court of Criminal Appeal in R v Whybrow[8].

27.Having said that, there are no guidelines for sentence in such cases because the permutations of fact and circumstance are myriad, from foiled contract or gang killings to failed suicide pacts. As the Court in Lee Wai Keung held[9]:

“Some cases are more serious than others because of the nature and extent of the injuries sustained by the victim. Some cases are more serious by reason of the fact that the course adopted by the accused would almost inevitably have resulted in the death of the victim had there not been an intervention. In the instant case, both aggravating factors are present.

The injuries sustained were serious and death was almost a certainty had she fallen from the 20^th floor flat. We do not consider that the sentence of 13 years’ imprisonment can properly be criticized. It is neither wrong in principle nor manifestly excessive.”

28.This passage is of further interest when applied to the facts of the present case because, terrified though Madam Lee must have been by her ordeal, she did not suffer significant injuries and, whilst the appellant certainly intended to kill Madam Lee, she was herself able, through courage and quick-wittedness, to avoid what may otherwise have been the inevitable and dreadful consequences of his actions. Yet, the starting point adopted in the present case was higher than that approved in Lee Wai Keung.

29.On the other hand, the one aggravating feature that was absent from the facts in Lee Wai Keung, and which the judge specifically raised with defence counsel during his mitigation in the present case[10], was that the appellant had deliberately started a fire in a public housing unit at night, thereby exposing the other residents of the estate to very grave danger. Hong Kong is a city where most people live in flat accommodation in close proximity to one another. Fires can get quickly out of control in a crowded city and are as unpredictable as they are deadly. As Deputy Judge Sir Brian Keith remarked when sentencing at first instance in Lam Kam Loy:

“The danger of starting a fire in a flat in a multi-storey residential building late at night, when the building might be expected to be at its most occupied, has rightly been regarded as another aggravating feature in view of the havoc which can be wreaked if the fire spreads unexpectedly.”

Accordingly, those who deliberately start fires in residential buildings, for whatever reason, with the potential for catastrophe for other residents, must be firmly deterred by the courts with the prospect of severe penalties.

30.There was some argument before us as to the extent of the appellant’s planning for this offence. Certainly, he was in the flat for some two hours before Madam Lee returned home. The immediate proximity of the adjustable spanner and its evident ability to loosen the bolt of the gas hose from the main pipe, which the Government Chemist considered had been done manually, is certainly consistent with some form of preparation on the appellant’s part. On the other hand, it is conceivable that he may have decided to disconnect the hose from the pipe later whilst in a highly agitated state. Whatever the position, an explosion and fire was how he intended to bring about Madam Lee’s death and he was the one who deliberately disconnected the hose with a spanner with that purpose in mind. Clearly, there must have been some thought given by the appellant to what he was intending to do.

31.In respect of the suffocating of Madam Lee with a cushion with one hand, whilst we would not agree with the description of this action as half-hearted, it was not persisted with for very long. Nevertheless, it was part of the overall facts of the incident, supporting the fact that the appellant intended to kill Madam Lee. The judge was entitled to regard it as part of the overall circumstances.

32.In our judgment, we consider that the facts of the present case merited a starting point of 12 years’ imprisonment. The starting point adopted by the judge of 15 years’ imprisonment was, therefore, manifestly excessive. No issue was ultimately taken with the judge’s determination that the reduction for plea should have been 25% and we adopt the same discount, which is in accordance with relevant authority. Accordingly, the sentence becomes 9 years’ imprisonment.

33.For the above reasons, the appeal against sentence was allowed. The sentence of 11 years and 3 months’ imprisonment was accordingly reduced to 9 years’ imprisonment.

Ms Clara Ma SPP, of the Department of Justice, for the Respondent

Mr Andrew Raffell, instructed by Vitus Lawyers, assigned by the Director of Legal Aid, for the Appellant