HKSAR v. So Hon To, Stephen

CACC 39/2022 [2026] HKCA 1035

On appeal from [2022] HKCFI 1503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 39 OF 2022

(ON APPEAL FROM HCCC NO 331 OF 2020)

________________________

BETWEEN

________________________

________________________

JUDGMENT
AND
REASONS FOR JUDGMENT

________________________

The Court:

1.The applicant[1], together with Su David (“David”)[2], was charged with conspiracy to murder Lam Ching Fung (also known as “Hobbit”), contrary to section 5 of the Offences against the Person Ordinance, Cap 212 (“Count 1”)  and conspiracy to possess arms and ammunition without a licence, contrary to section 13(1)  and (2)  of the Firearms and Ammunition Ordinance, Cap 238, and sections 159A and 159C of the Crimes Ordinance, Cap 200 (“Count 2”).  Following a trial in the High Court before D’Almada Remedios J (“the judge”)  and a jury, the applicant was convicted (whilst David was acquitted)  on 3 March 2022 of both counts, and sentenced on 10 March 2022 to an overall term of imprisonment of 27 years.  

2.The applicant applied for leave to appeal against both conviction and sentence.  At the conclusion of the leave hearing against conviction, we refused the application and dismissed the appeal.  We reserved our judgment in respect of the application for leave to appeal against sentence.  We indicated that we would hand down our reasons for dismissing the appeal against conviction and our judgment in respect of the sentence in due course, which we now do. 

The prosecution case

3.It was alleged that the applicant and David conspired with Chak Wing Sze (“PW1”)  and other persons to commit the respective offences in Counts 1 and 2.  The conspiratorial agreement in Count 1 was entered into between an unknown day in November 2018 and 31 December 2018, and in Count 2 was entered into between an unknown day in March 2018 and 1 January 2019.

The applicant’s instruction to kill Hobbit

4.The applicant met PW1 on the Internet and they met for the first time at the end of 2016 when PW1 was 16 years of age[3].  They, together with David and others, played war games on several occasions between 2017 and 2018[4].  Having discovered that PW1 had an affection for him, in January 2018, the applicant asked her to be his sex partner, to which PW1 agreed[5]. Sometime in early November 2018[6], the applicant asked PW1 to follow Hobbit and to switch to a more secure instant messaging application, Wire, for their future communications[7].  In particular, the applicant told her that Hobbit had accused him of being a terrorist and had implicated him and David, which might lead to their arrest.  The applicant therefore asked her to kill Hobbit[8]. In response, PW1 gave him a perfunctory answer “Or” (in transliteration)[9].

Obtaining arms and ammunition

5.In late November 2018[10], the applicant instructed PW1 to follow Hobbit again[11]. He also gave her a camouflage bag and then a rifle bag for safekeeping.   Inside the camouflage bag were three pistols, two silencers, two magazines and more than ten boxes of ammunition; inside the rifle bag was a rifle[12].

6.In early December 2018, as instructed by the applicant, PW1 called Hobbit and played him a voice message, in which he was told to go to Tai Wo Hau before 10:00 pm on a certain day in December 2018[13].

Failed operation on 6 December 2018

7.On 6 December 2018, as directed by the applicant, PW1 brought two saws, two bottles of bleach, and white petrol/turpentine to a derelict school in Tai Wo Hau where they had played war games before[14]. She also brought some of the arms and ammunition previously provided by the applicant and passed them to David and another person at Kwai Chung Park at 7:00 pm[15].  She saw David and that person wearing masks and caps[16]. David also took off his jacket, put it in a rucksack and kicked it into a ditch[17].  According to her understanding, the two of them were to ambush Hobbit, whilst she was to act as a lookout downstairs at Hobbit’s house[18]. It transpired that, although the applicant asked her in advance to bring an extra telephone to make an audio recording[19], she misunderstood him and did not have an extra telephone to give to David.  As a result, the applicant called off the operation[20].  On her way home, the applicant sent her a Wire message saying “If next time again you are so careless like this, next time you have to go to kill Hobbit yourself.”[21]  PW1 explained in court that she did not know at the time the purpose of the operation but guessed it was to kill Hobbit[22].

Further attempts to kill Hobbit

8.A few days after the failed operation, PW1 went, as she was instructed by the applicant, to buy some chemicals from a dispensary in Sham Shui Po[23]. She understood that the applicant intended to kill Hobbit by sending the chemicals through a courier[24] and by causing an explosion[25].  The plan failed because she did not buy the requested amount of chemicals[26].

9.The applicant told PW1 that Hobbit should be killed on or about 1 January 2019 with the use of a fruit knife or a gun[27].  The applicant also promised PW1 that “home settlement payment” would be paid to her family members if she lost her life[28].

10.On 26 December 2018, PW1 met the applicant because he wanted to test fire a golden-barrelled gun[29].  It transpired that there was an issue with its firing pin, so no shot was fired. 

11.On 28 December 2018, the applicant and another person went to PW1’s home to inspect the firearms in the camouflage bag and rifle bag[30]. On 29 December, he met her again and gave her a fully loaded magazine[31].  On 30 December, they had test firing[32], and the applicant successfully fired a shot[33].

12.PW1 was subsequently told by the applicant to arrange with David to test the gun on 1 January 2019 and go to Hobbit’s home herself to ambush him, whilst the applicant himself would be travelling to Japan that day[34]. The applicant and David, however, were arrested on the morning of 31 December 2018.  Accordingly, the plan to kill Hobbit on 1 January 2019 did not materialise. 

The defence case

13.The applicant elected to testify.  He challenged the voluntariness of his video-recorded interviews (“VRIs”); in the 4^th, 6^th and 7^th he had admitted to unlawful possession of arms and ammunition with PW1 and David.  He said in evidence that the admissions were made as a result of acts of misconduct by the police; in particular, he said that, although he was legally represented in the 5^th VRI, Sergeant 34337 later told him not to ask for a lawyer any more, otherwise there would be consequences[35]. He denied that the admissions were accurate and said he was in possession of toy guns and ammunition only.  Whilst admitting having test-fired the gun on 30 December 2018, the applicant claimed that he did not know the gun was real until then and therefore took the gun off PW1 for safety reasons.

14.The credibility of the applicant was challenged by the prosecution in cross-examination.  The prosecution made the point that he did not make a timely complaint of the alleged misconduct to his mother (DW2)[36], his lawyer, Mr Tung (DW5)[37], who was present in the 5^th VRI, or any other police officers present in the 5^th, 6^th and 7^th VRIs[38].  In his closing speech, prosecuting counsel therefore submitted that:[39]

“Even he saw Mr Tung in his version, 2^nd defendant’s version, he did not tell Mr Tung he was being coached, threatened. He only told Mr Tung he was tired. He explain he want to get this finish so that he could as soon as possible -- having seen my lawyer, then I will go back to take a rest. Right. It sounds genuine, but it’s not convincing at all. If you are facing for a case to resolve your tiredness like this, is it not better to have a good bedding in the hospital? Or you would like to go to the police cell. It only meant for temporary remand.

When he saw Mr Tung in the room in 3.47, about that time, on 1 January they were alone just the two of them, no police officer. You can find this information in the third Admitted Facts. When there was only two of them, if you had been ill-treated, threatened by the police to such an extent that you were so scared, you have been looking (sic)  for a lawyer and this lawyer now present in front of you, will you not complain to him, telling him as clear as possible, as comprehensive as possible? Is it really because he want to avoid being further ill-treated after the lawyer left? This is not possible.

…

Remember at the beginning I mention the defendant personal background to you.  He is not a kid.  He has life experience in different aspect.  The 2^nd defendant I submit to you -- I hope that you will accept -- he is just trying to make up his story against the police.  If the police have ill-treated him at all, he can easily say in the VRI, which is recorded, and then he receive immediately after the completion a copy of it, he say, ‘Well, just now you coach me.  Just now you force me to say this.  Just now you refuse me lawyer.’  Why he didn’t say this?  Again, is it because that he want to have a better treatment after Mr Tung left?  No.  According to him, he was not even get any better treatment at all, apart from he chose not to answer in the VRI.”

The summing-up

Onus of proof on the prosecution and effect of the applicant testifying

15.At the outset of the summing-up, the judge directed the jury’s attention to the burden of proof and told them that:[40]

“if you think Stephen’s evidence or David’s case is true or may be true, then you should find them not guilty on all charges.”

16.When outlining the defence case to the jury, the judge also instructed them: [41]

“If you find, members of the jury, that Stephen’s evidence is true or may be true, you shall find Stephen not guilty.”

17.The judge specifically reminded the jury that a defendant has a right not to testify in court.  In light of the fact that David elected to exercise that right while the applicant elected to testify, the judge gave the jury this direction (which became the impugned direction in Ground 2):[42]

“It is for you to decide whether you believe the evidence of the defendant or his witnesses, or whether their evidence may be true. I have previously told you that if the account by the defendant or put forward by the defendant is or may be true, then you can take that into account.”

Formation of a conspiratorial agreement and mens rea

18.The judge instructed the jury that there were four matters which the prosecution was required to prove in respect of each of the conspiracies in question, as follows[43]:

“So the agreement to commit a crime is called a ‘conspiracy’. The agreement or conspiracy is itself a crime. In this case, the defendants in Count 1 are charged with a conspiracy with Chak and other person or persons unknown, to murder, that is, to kill Lam Ching-fung, otherwise known as Hobbit. Before you may convict the defendants, you must be sure, one, there was an agreement to kill. Two, that the defendants joined in the agreement with Chak, who is named in the indictment, or person or persons unknown. Three, that the defendant knew he was agreeing to the agreement to kill. And, four, that when the defendants did so, they intended that they or some other party to the agreement would carry out the agreement to kill.”

19.Of the first matter, namely whether there was an agreement of the kind alleged by the prosecution and how it was proved, the judge stated:[44]

“… an agreement does not have to be reached by any formal means, for example, in writing. All that is necessary for there to be an agreement is for two or more persons to agree either by words or by conduct in a common design, each having the intention to bring about the unlawful object of the agreement.

The prosecution may seek to prove the existence of an agreement in a variety of ways. In some cases, they may seek to do so by direct evidence. For example, by calling a person who actually heard the agreement being made. Another case is the prosecution may seek to prove the agreement by asking you, the jury, to infer, to infer its existence from the evidence tendered before the court.

In the present case, the prosecution seeks to prove the agreement and the nature of the agreement by calling Chak, as she was part of the agreement, and by inference, of which I shall give you directions later. So I should say by Chak, who was a party to the agreement. Accordingly, in deciding whether there was a criminal conspiracy as charged in this case, and, if so, whether the defendants were a party to it, look at all the evidence as to what occurred during the relevant period, including the behaviour of the defendants and of Chak. If, having done that, you are sure that there was the conspiracy as charged and that they were a party to it, you must find them guilty. If you are not sure, you must find them not guilty.

…

But to prove a conspiracy, it is not necessary to prove that the crime was carried out. The agreement plus the intention that it be carried out is sufficient. So, one, to prove conspiracy, it is not necessary to prove that the crime was carried out. The agreement plus the intention that it be carried out is sufficient. It is therefore not necessary for the killing to be carried out.” (Emphasis added)

20.The judge then explained to the jury the difference between motive, on the one hand, which is not an ingredient of the offence, and agreement and intention to kill, on the other, which are ingredients of the offence, that:[45]

“… Murder is committed when a person unlawfully kills another and at the time of doing so he intends to kill another person. Motive is not an essential ingredient of the offence of murder. So the prosecution do not have to prove a motive for the killing. It is part of the prosecution case that Stephen had a motive to kill Hobbit, as he was annoyed with him for reporting him to the police, telling them he was a terrorist, and that Hobbit owed him money. However, remember, the prosecution do not need to prove motive. For the offence of conspiracy to murder, the prosecution must prove that the defendants agreed and intended to kill a person. The prosecution do not have to prove that the defendants intended to kill Hobbit or Lam Ching-fung. They just need to prove they intend to kill a person. If you are not sure that the defendants agreed and intended to kill a person, you will find the defendants not guilty of murder.”

21.The judge went on to summarise to the jury the evidence which the prosecution relied on, that:[46]

“ The prosecution seek to prove the existence of this agreement in a variety of ways. First, in this case, it seeks to prove the agreement by direct evidence. That is, by calling Chak, who they say is a person who is a party to the agreement to kill and possess firearms. In this case, in the present case, in relation to conspiracy to murder and conspiracy to possess arms and ammunition against Stephen, the prosecution seek to prove the agreement and nature of the agreement by Chak’s evidence and, in relation to Count 2, on Stephen’s admissions in his video recorded interview.

So what does Chak say? Chak said on two occasions in November, in about November, or December 2018, Stephen gave her arms and ammunitions in a camouflage bag and a rifle bag, and then after that, on D2's instructions in December 2018,

1, she was to play a message to Hobbit on the phone via Google Translate, telling him to meet at Tai Wo Hau.

2, she bought detergent, bleach, turpentine, and she put two saws at and this I call them ‘chemicals’ in Tai Wo Hau derelict school on 6 December, and

Chak was to meet and hand two pistols, two silencers, two magazines loaded with the bullets to David at Kwai Chung Park, and

that Chak was to wait at the downstairs of Hobbit’s residence as a lookout, and,

as the operation on 6 December was aborted and a result of Chak’s carelessness in providing David with an extra phone, next time she would have to kill Hobbit herself.

I am on my sixth point,

6, that in December, Stephen told Chak to buy chemicals and detergents in Sham Shui Po, which was for blowing up Hobbit, by sending them through courier. She says by killing Hobbit by way of explosion and,

7, in December, Stephen told Chak to buy two outfits to go to Hobbit's house and for her to shoot Hobbit with a gun, firing two shots at his body, three at his head, and this killing was only to be done after January, as if before, the entire team would be apprehended.

8, Stephen told her if she was successful, she would be rewarded with a Glock pistol and he and Samuel would pool money together.

9, if she died or she was arrested by police, they would pay her family or pay her money.

10, on 29 December, Stephen gave Chak the black sling bag containing the silver slide gun and bullets and magazine, and on 30 December Stephen went with Chak to Shing Ming Primary School,where he successfully fired the gun containing the ammunition and pierced the plank of wood.

And, 11, Stephen instructed Chak to test the gun herself with David on 1 January, then after testing the gun she should go to Hobbit's place and to lay ambush on him, that is, to kill him and

Chak was arrested on 1 January 2019 when she was in possession of the silver pistol.

So, members of the jury, if you accept Chak’s evidence and if you find her to be an honest and reliable witness, you may have no difficulty in being sure that there was a conspiracy between herself and Stephen, and that Stephen was a party to it in the sense I have explained.  So if you accept that, you should have no difficulty in finding Stephen guilty on both counts.  If you do not accept Chak’s evidence, then you will find Stephen not guilty on the conspiracy to murder.”

Right to silence not amounting to an admission

22.In relation to the right to silence, which the applicant elected to exercise in the 5^th VRI, the judge told the jury that:[47]

“When the police conduct a video-recorded interview, as you have heard in this case, a video-recorded interview is taken when that person is a suspect, suspect for committing a crime. And I will explain to you later that suspect has a right to silence.”

23.Later, on the same topic, the judge stated that:[48]

“I have told you in the trial about right of silence. Any person suspected of a criminal offence or charged with one is entitled to say nothing when asked about it. You must not hold their silence or refusal to answer questions against them. The exercise of the right to silence cannot amount to any admission of any kind nor can it be taken to reflect a guilty conscience. Can you remember, in Stephen’s fifth video recorded interview, he had nothing to say in answer to many questions asked of him.”

24.The judge continued:[49]

“Turning to the fifth VRI, Stephen there said he had nothing to say. I have already directed you in regard to the right of silence and that is what you should do in this case, that, of course, in law a person is entitled to say nothing when questioned by the police about his or her alleged involvement in the offence. And you remember in each video recorded interview, that Stephen was told expressly he is under no obligation to say anything. So it would be quite wrong if Stephen, having decided to exercise his right of silence, found that his exercise of the right of silence was used against him. You must not do that. It is important that you bear in mind that Stephen’s silence cannot be used against him in any way at all. It cannot amount to an admission of any kind nor can it be taken to reflect a guilty conscience.”

The sentence

25.The applicant was aged 32 at the time of sentence and had a clear record.  The judge referred to HKSAR v Tsiang On Yan[50] in which the Court of Appeal affirmed the generality of 12 years’ imprisonment as the appropriate starting point for a substantive offence contrary to section 13 of the Firearms and Ammunition Ordinance.  Accordingly, the judge used 12 years’ imprisonment as the basic starting point for Count 2.  The judge also took into account several matters which she regarded as aggravating factors, including the following:

“The potential risk posed by the arms and ammunition in this agreement by the defendant and Chak and others, that risk was to kill others. One of the firearms had been test-fired for the purpose of intending to use that to kill others. It was used on 30 December 2018.

Another gun, the golden barrel gun, was tested but was non-functional. D2 was able to examine the gun and tell Chak the reason why it was so because of the firing pin. An expert had confirmed that.

The firearms were loaded when it was returned to Chak on 6 December.  D2 gave these ammunition to Chak to store in her house.  The storage of them, they were not secured or locked.”

26.The judge enhanced the starting point for Count 2 by 2 years to 14 years’ imprisonment, which is the maximum sentence for the offence.

27.The judge then turned to Count 1.  In passing sentence on that count, she drew attention to the following:

“The first plan to kill was aborted as a result of Chak’s failure. Two guns, two silencers, magazines loaded with bullets were given to a male in the presence of another male. The location was at a derelict school in Tai Wo Hau which he had instructed Chak to set up, to cover up any killing that might have taken place there and to be covered up with chemicals.

D2 had given Chak elaborate instructions to buy outfits and wigs to disguise her identity and he taught her how to fire the shots at Hobbit. Chak was an ignorant and young girl who was manipulated by D2. She foolishly agreed to follow D2’s instructions to kill Hobbit. It was fortunate that she was arrested. It was fortunate that the police were able to impede and hinder their agreement to carry out the killing. The police had arrested Chak, D2, Samuel and D1 on 31 December 2018 and January 2019. The police are to be commended for their work as they were able to foil this heinous crime of murder that was to take place and they were able to seize many arms and ammunition.

…

The 2^nd defendant played a major role in this agreement.  He was the planner, and he was instrumental in this conspiracy to murder.  He had used what would appear, at least from the 6 December operation, two males far younger than him.  Chak was 10 years his junior.  He preyed on Chak’s naivety, adoration of him, young age and immaturity.  They were his foot soldiers while he was the commander.  I consider him to be a major threat to society.  I consider that only a lengthy sentence should be imposed.”

28.In the result, the judge passed a sentence of 27 years’ imprisonment for Count 1, which she ordered to run wholly concurrently with the sentence for Count 2.

The grounds of appeal against conviction

29.Mr Simon Young, with him Mr Simon So, advanced three grounds of appeal against conviction. 

Ground 1

The parties’ submissions

30.Ground 1 alleges that the judge gave a “misdirection on the intention element in Count 1”, in that:

“1. The trial judge misdirected the jury on the facts sufficient in law to find that PW1 … had the intention to bring about the unlawful object of the agreement, i.e. to kill LAM Ching-fung. See Appeal Bundle, pp 111H-113B.

2. In the circumstances of this case, it was a material irregularity for the trial judge to fail to direct the jury on the issue of intention in the following specific terms:

a. Before convicting the Applicant of conspiracy to murder, you must be sure PW1 … intended the agreed course of conduct to result in the death of LAM Ching-fung.

b. It is not enough for PW1 … to only contemplate that LAM Ching-fung’s death might result from carrying out the agreed course of conduct.

c.   Any inference that PW1 … had such an intention must be compelling and be the only reasonable inference that can be drawn from the proven primary facts.”

31.Mr Young puts forward as the legal basis of Ground 1 this proposition (the “Intention to Kill Proposition”), namely that, for the offence of conspiracy to murder, the prosecution must prove, inter alia, that the conspirators intended the victim to die.  He relies on R v Siracusa[51], Yip Chiu Cheung v The Queen[52], and HKSAR v Harjani Haresh Murlidhar[53]:

(1)  The charge involved in Siracusa was conspiracy to import prohibited goods.  When considering the mens rea of that offence, O’Connor L.J. observed that:[54]

“The mens rea sufficient to support the commission of a substantive offence will not necessarily be sufficient to support a charge of conspiracy to commit that offence. An intent to cause grievous bodily harm is sufficient to support the charge of murder, but is not sufficient to support a charge of conspiracy to murder or of attempt to murder.”

(2)  In Yip Chiu Cheung, the defendant was charged with conspiring with an undercover agent and another to traffic in dangerous drugs. When discussing whether the undercover agent had the requisite mens rea to commit the offence, Lord Griffiths observed that:[55]

“The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence. As Lord Bridge pointed out, an undercover agent who has no intention of committing the crime lacks the necessary mens rea to be a conspirator.”

(3)  In Harjani, the offence was conspiracy to deal with property reasonably believed to represent proceeds of crime.  The Court of Final Appeal set out the components of the offence of conspiracy as follows:[56]

“(1)  An agreement between two or more persons.

(2)  The future course of conduct agreed under that agreement to be pursued.

(3)  The intentions of the parties under the agreement.

(4)   Finally, it must be shown that if the agreement is carried out in accordance with the parties’ intentions, this will necessarily amount to or involve the commission of an offence by one or more of the parties to the agreement or would do so but for the existence of facts which render the commission of the relevant offence impossible.”

In respect of component (3), the Court of Final Appeal observed as follows:[57]

“ Then comes paragraph [87(3)]: the identification of the intentions of the parties under the agreement. The course of conduct agreed between the parties under the agreement will obviously be a part of the parties’ intentions. However, the term ‘intentions’ goes beyond just considering the physical acts agreed to be done under the agreement. They must relate also to the consequences the parties intend by their agreed acts. For instance, to take a common example: A and B make an agreement that the following week they will put poison in V’s drink to give to him. The agreed course of conduct is the physical act of putting poison in V’s drink and giving it to him; the intended consequence is that V will take that drink when it is given to him and is poisoned to death. That the intended consequences are important to be considered is perhaps an obvious statement to make. This is also the view of learned academic writers: see Smith, Hogan and Ormerod’s Criminal Law. Using the poison in the drink example, the authors are of the view that if consequences are not considered but instead only the physical acts comprising the course of conduct, this would be ‘absurd’.”

Then, with reference to the murder example, the Court of Final Appeal stated the components of the offence as follows:

“(1)  The agreement is made between A and B.

(2)  The agreed course of conduct is to put poison in V’s drink next week.

(3)  Their intentions are that he will drink the poison and will die.

(4)   If the agreed course of conduct is pursued and the agreement is carried out in accordance with the said intentions, the offence of murder will necessarily be committed.  The requisite actus reus for the offence of murder consists of the act of killing V by putting poison in his drink, which it is intended V will take.  The requisite mens rea consists of the intention to kill V next week, this intention being in existence at the time the agreement was made.”

32.Mr Young has no complaint insofar as the judge’s directions on the intentions of those charged with the offence are concerned.  The focus of Ground 1 is the judge’s directions in respect of PW1’s intention.  Mr Young submits that in the circumstances of this case, the judge needed to direct the jury specifically to find that PW1, a named conspirator, had an intention (in common with the applicant)  for the victim to die, and that simply being reckless was not enough.  He submits that in those instances where the judge directed the jury on intention, she was referring only to the intentions of the applicant and D1.  He further submits that on the evidence, whilst PW1, an 18-year-old girl receiving and following orders given by the applicant, might have contemplated the possible death of Hobbit (that is, being reckless), she never said explicitly in her testimony that she intended him to die.  None of those eleven points highlighted by the judge to the jury (the “eleven points”)  mentions PW1 having the intention for Hobbit to be killed.  There are, Mr Young submits, in fact many reasons to doubt whether she had such an intention.  Relying on R v Woollin[58], he further submits that if foresight was to be the basis for inferring PW1’s intention, it had to be foresight of a virtual certainty that Hobbit would be killed.

33.Mr Lui’s response may be summarised as follows:

(1)  His primary position is that, even assuming the validity of the Intention to Kill Proposition, the applicant’s argument in Ground 1 is premised upon a fundamentally flawed assertion that PW1 might not have had the intention to kill Hobbit.  Mr Lui submits that on the evidence, PW1 must have intended to kill Hobbit, and the applicant’s assertion that she might not is completely divorced from the evidence at trial.  Mr Lui accepts that PW1 might have initially (before 6 December 2018)  been unsure or non-committal about the applicant’s plan to kill Hobbit.  However, as things progressed and in light of the further pursuit of the plan thereafter, there could be no doubt that the applicant was serious about killing Hobbit and not anything less, and PW1 agreed and intended to carry out the plan;

(2)  Mr Lui submits, in any event, that what has to be proved is that the person “intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve”, even if he may be indifferent as to whether the offence will in fact be committed (R v Anderson[59] and Siracusa[60]).  He submits that the judge’s directions cannot be impugned;

(3)  Mr Lui further submits that any reliance on Woollin is misplaced because foresight  was not the basis of the prosecution case.

Discussion

34.Ground 1 can, in our view, be readily dismissed.  In short, we accept Mr Liu’s primary position.

35.Even assuming the validity of the Intention to Kill Proposition, as Mr Liu does in putting forward his primary position, Ground 1, in our view, suffers from two problems, both fatal to its arguability.

36.First, in the context of the judge’s directions on intention, the distinction Mr Young draws between the charged defendants and PW1 is, in our view, splitting hairs and artificial.  We have set out the judge’s relevant directions above.  The judge had in clear terms directed the jury that to convict, they must be sure, amongst other things, that there was “an agreement to kill”[61], and that the defendants “joined in the agreement with [PW1], who is named in the indictment”[62].  There could have been no doubt in the jury’s minds that PW1 was, on the prosecution case, a party to the conspiratorial agreement as an unindicted co-conspirator.  Then, on the issue as to “whether there was an agreement of the kind alleged by the prosecution”, the jury was told of the necessity for an agreement “for two or more persons to agree either by words or by conduct in a common design, each having the intention to bring about the unlawful object of the agreement”[63].  We emphasise the word “each”.  PW1 as a member of the conspiratorial agreement was clearly covered and included.  She had to have the intention to bring about the object of the agreement, the agreement being one to kill.  The judge then, when explaining how the prosecution sought to prove its case, repeated that PW1 “was a party to the agreement”[64].  When explaining to the jury that there was no need to prove that the crime was carried out, the judge made clear that “the agreement plus the intention that it be carried out is sufficient”[65].  And before summarising to the jury PW1’s evidence (the eleven points), the judge again told the jury that on the prosecution case, PW1 “is a party to the agreement to kill”[66].  To suggest, despite those repeated explanations and directions, that the jury might nonetheless remain in doubt as to whether PW1 also had to have the intention to kill is in our view untenable.  

37.Secondly, the evidence is, in our estimation, overwhelming that PW1 did have the intention to kill.  Mr Young submitted in the course of his oral submissions that despite all that PW1 had done, it was still not “crystal clear” whether she had the intention to kill Hobbit, and that there could be a “lacuna” in that regard.  He pointed to PW1’s age; her emotional involvement with the applicant; the perfunctory answer (transliterated as “Or”)  PW1 gave when the applicant in early November 2018 first asked if she could help by killing Hobbit[67]; the inconsistency as to whether she forgot to or deliberately did not bring along an extra telephone to David during the failed operation on 6 December 2018[68]; the answer “Let me consider it first” when after that failed operation the applicant said to her that “If next time again if you are so careless like this, next time you have to go to kill Hobbit yourself”[69]; and her not having mentioned in her VRI or non-prejudicial statements certain aspects of the detailed plans for the killing of Hobbit[70]. Mr Young also pointed to a discussion between the judge and counsel in the absence of the jury as to whether it was the prosecution case that the applicant as the elder one was influencing the younger ones, including PW1.  We have considered all those matters.  In our view, they pale into insignificance in the face of the totality of the evidence, and in particular the eleven points highlighted by the judge to the jury.  We accept Mr Lui’s submissions, that while PW1 might have been non-committal before 6 December 2018, there could have been no doubt that she had the requisite intention to kill thereafter, so much so that the defence had never in the course of the trial suggested to her that she did not have that intention, or that she was only playing along.  In our view, Mr Young’s submissions that PW1 might not, or might not have been shown to, have the intention to kill are also untenable.

38.We should mention two further matters:

(1)  We note Mr Young’s reference to Woollin.  That case in our view has no application to the facts of the present case.  The prosecution case is not on foresight, but on actual intention; and

(2)  We have so far assumed in the applicant’s favour the validity of the Intention to Kill Proposition.  Given the evidence before us and our acceptance of Mr Lui’s primary position, we do not find it necessary or indeed appropriate to delve into the validity of that proposition, save to comment that it is not a straightforward point, that none of the authorities Mr Young relies upon is directly on point, and that whilst the example of conspiracy to poison the Court of Final Appeal gave in Harjani is highly persuasive, it was only given by way of illustration, and that the interaction between the mens rea for murder (which can be either an intention to kill or to cause grievous bodily harm)  and the mens rea requisite to support a conspiracy may need to be further and specifically considered.

39.We found that Ground 1 had no merit.

Ground 2

The parties’ submissions

40.Ground 2 alleges that the judge misdirected the jury on the burden and standard of proof, in the following respects:

“1. The trial judge misdirected the jury by telling them that if they believed the Applicant’s account ‘may be true’ then they ‘can take that into account’, when the Applicant’s acquittal was the only possible consequence if the jury found his account might be true (as this would mean the jury had a reasonable doubt about whether he committed the offences).

2.  In the circumstances of this case, where the Applicant’s material testimony was diametrically opposed to that of the immunity witness, PW1 (CHAK Wing-sze), the trial judge’s failure to give a full and proper Liberato direction constituted a material irregularity that casts doubt on the safety of the convictions under Counts 1 and 2.”

41.Mr Young contends that the present case was one where the testimonies of the applicant and PW1 were “diametrically opposed”, and that the judge failed to give the standard form Liberato direction, instructing the jury that if they found the applicant’s material testimony might have been true, they must acquit him.[71]  He bases his argument on the following three passages of the judge’s summing-up, in which she directed the jury on the treatment of the applicant’s testimony:

“Direction (a): In the opening of the summing-up:[72]

‘… if you think Stephen’s evidence or David’s case is true or may be true, then you should find them not guilty on all charges.’

Direction (b): When outlining the Applicant’s case:[73]

‘If you find, members of the jury, that Stephen’s evidence is true or may be true, you shall find Stephen not guilty.’

Direction (c): In the directions on the Applicant having given and called evidence:[74]

‘I have previously told you that if the account by the defendant or put forward by the defendant is or may be true, then you can take that into account.’”

42.Mr Young takes issue with Direction (c), which he contends purported to follow Specimen Direction 114 (Defendant who Has Given and/or Called Evidence)  but materially departed from it.  He argues that the directions were short statements of law, decontextualized from a full Liberato direction, and that they omitted the words “must be acquitted”.  He further argues that a full Liberato direction was significant to how the defence evidence was to be treated by the jury in the present case, and that its omission was therefore material. 

43.Mr Young contends that, despite the earlier correct directions in the opening and in outlining the defence case, the direction relating to the applicant having given and called evidence (Direction (c))  was a misdirection which overshadowed them.[75]

44.Mr Lui submits that the Liberato message was duly conveyed to the jury in the earlier directions (Directions (a)  and (b)). Moreover, in the impugned direction (Direction (c)), which concerned the defence evidence as a whole and was intended to supplement, rather than detract from, those earlier directions, the judge was not dealing with the determination of the ultimate issue of guilt, and a Liberato direction was therefore not applicable.

Discussion

45.Before we address this ground, we consider it necessary to put Directions (a), (b)  and (c)  in their full and proper context:

(1)  Direction (a):

“ So the question here, members of the jury, for you to decide is: has the prosecution made you, the jury, sure, sure that the defendants agreed to kill and agreed to possess arms and ammunition? The defendants do not have to prove they did not agree. It is for the prosecution to prove on the evidence before you that they agreed. If the answer is yes, you are sure on the evidence that David and Stephen agreed to kill or possess arms, you should have no difficulty in finding them guilty. If you are not sure, then you will find David and Stephen not guilty.

On the other hand, members of the jury, if you think Stephen’s evidence or David’s case is true or may be true, then you should find them not guilty on all charges.”[76] (Direction (a)) (Emphasis added and Direction (a)  in bold.)

(2)  Direction (b):

“ Stephen’s case therefore, members of the jury, is that you, members of the jury, should not therefore rely on any of the video-recorded interviews. You should ignore them and if you, however, do not ignore them, members of the jury, Stephen says what he said in there is not true, ie that he knew that they were real arms and ammunition. They were not true. What he said in the witness-box is true that they were toy guns and ammunitions.

More particularly, of course you understand his case is that the admissions that he threw the bullet case in the bin is not true. If you find, members of the jury, that Stephen’s evidence is true or may be true, you shall find Stephen not guilty. (Direction (b))

The defence case for Stephen say Mr Tung gave evidence which supports Stephen’s evidence that he was denied access to a lawyer. There is no dispute that Mr Tung made complaints to the Tai Po Police Station and Sheung Shui Police Station against the OCTB and the Duty Officer for not allowing him to meet with D2, with Stephen. There is no dispute that Mr Tung was there in the late evening of 31 December 2018 and 1 January 2019 and yet he still was not able to see Stephen despite Stephen being in the police precinct. That is in Sheung Shui Police Station.

The defence say that Miss Chow, Stephen’s girlfriend, supports his evidence that he was with her at Spaghetti House, eating cheese fondue on 6 November and - December, sorry, thank you, December - and that he went to a concert with her on 29 December 2018.

As for his third witness, his mother, he says that his mother said quite clearly that the police had left the medicine at the house. And as for the fourth witness, the cleaning lady from Tsui Wo House, she says that she throws out the rubbish from the rubbish bin on the lobby every day, before 10 am every day, and she was working there on 31 December.

So if you find the defence witnesses’ evidence also to be true or may be true, you will find that it supports of course some of D2’s evidence and it casts doubt on the prosecution evidence in respect of those particular issues that they have given evidence about. So if it casts doubt, members of the jury, that means you cannot be sure.”[77] (Emphasis added and Direction (b)  in bold.)

(3)  Direction (c):

“ Now, on the other hand, Stephen gave evidence. He chose to give evidence and he chose to call defence witnesses. He was not obliged to give evidence. He was not obliged to call any witnesses. As I said, he does not have to prove his innocence. He does not have to prove anything. However, he chose to give evidence and to call witnesses on his behalf. You must take into account what he and his witnesses have said when considering issues of fact that you have to determine. It is for you to decide whether you believe the evidence of the defendant or his witnesses, or whether their evidence may be true. I have previously told you that if the account by the defendant or put forward by the defendant is or may be true, then you can take that into account. (Direction (c))

Now, let me say this, members of the jury. Even if you entirely reject the account given by Stephen, that is, you disbelieve him, you do not rely on what he says, that would not relieve the prosecution of its burden of making you sure, by the evidence that they have called, of the defendant’s guilt in respect of each charge which you have to consider. So if you entirely reject the defendant’s evidence and the evidence called on his behalf, put it aside and ask yourself, ask whether the prosecution has proved his guilt on the prosecution evidence which you do accept.

If, on the other hand, you find in relation to an issue in the case that the defendant’s evidence or that called on his behalf is or even may be true, then you are not entitled to find against the defendant on that issue and you must take his evidence into account. It also follows that if you reject part of the defendant’s evidence and evidence called on his behalf but find that some of it is true or may be true, put aside the part you reject and concentrate on the defence evidence which you find is true or may be true and on the prosecution evidence which you are sure is true.”[78] (Emphasis added and Direction (c)  in bold.)

46.As explained by the Court of Final Appeal in HKSAR v Kwan Tat Yee [79], the purpose of a Liberato direction is to convey to the jury that, where there is conflicting evidence, a preference for some evidence over other evidence does not resolve the ultimate issue, which is whether the prosecution has proved the elements of the relevant offence beyond reasonable doubt.  The jury’s consideration of the strengths and weaknesses of conflicting evidence must not be confused with the determination of the ultimate issue.[80]  Telling a jury, pursuant to a Liberato direction, that they must acquit if they either believed certain evidence or consider that it may be true, or that they are not entitled to find against a defendant in those circumstances, assumes that such evidence is exculpatory.  However, defence evidence which supports the defence case but is not conclusive does not fall into that category.  Such evidence will normally be covered by directions to the jury relating the evidence to the issues in the case, including the ultimate issue, and the prosecution’s onus of proof.[81]

47.In his oral submissions, Mr Young acknowledges that, in his written argument, he had overstated the Court of Appeal’s judgment in Kwan Tat Yee, namely that a Liberato direction “should” be given when the jury are invited to make a choice between the prosecution and defence evidence.[82]  As the Court explained, the question “whether” a Liberato direction should be given arises when there is such a choice.[83]  He also acknowledges the respondent’s points that the judge conveyed to the jury the Liberato message.  The respondent submits that Direction (c)  supplemented, and did not detract from, Directions (a)  and (b)  on the general burden and standard of proof. 

48.Mr Young accepts the correctness of Directions (a)  and (b).  That being so, this fact has a significant bearing on Direction (c), not the other way round, as Mr Young contends.  Direction (c)  did not overshadow Directions (a)  and (b).  In our view, Direction (c), when considered in its full and proper context, appropriately instructed the jury on the burden and standard of proof.  The jury were clearly told that, if they found the applicant’s evidence was true or may be true, they should find him not guilty, and that is something they would have borne in mind when the judge gave Direction (c), she reminded them of what she had previously instructed them.  However, as we have already indicated, Mr Young focuses only on a small part of the judge’s overall directions on the burden and standard of proof when complaining about Direction (c).

49.Mr Young also contends that the judge’s directions were inconsistent with defence counsel’s closing speech in two material respects: first, in relation to defence counsel’s submission that if the applicant may be telling the truth on a material issue, they must acquit him[84]; secondly, in relation to the submission that, even if the jury were sure PW1’s evidence was credible, they still had to go on to consider whether the applicant’s evidence undermined her version.[85] We are satisfied that the judge’s instructions to the jury were consistent with defence counsel’s speech, as reflected in the comprehensive directions in her summing-up. 

50.We concluded that Ground 2 was not sustainable.

Ground 3

The parties’ submissions

51.Ground 3 alleges that there was a material irregularity in the cross-examination of the applicant, in that:

“It was a material irregularity for prosecuting counsel to cross-examine the Applicant on his failure to complain of earlier police mistreatment during his fifth and sixth video-recorded interviews (VRIs), where

a. the Applicant, acting on legal advice, was exercising his right of silence at the material times;

b. prosecuting counsel’s improper line of questioning forced the Applicant to divulge his privileged communication with his solicitor;

c. in consequence, the jury was less likely to believe the Applicant’s allegations of police mistreatment, because he had failed to make a timely complaint in his VRIs;

d. as such, the Applicant’s right of silence was used adversely against him, undermining his challenge to the confession evidence, which implicated him on Count 2; and

e.  the trial judge did not specifically direct the jury to ignore prosecuting counsel’s improper use of the Applicant’s silence, giving only a general right of silence direction which did not remove the damaging impact on the Applicant’s credibility.”

52.In summary, the complaint under Ground 3 is that the applicant’s failure to complain of police mistreatment in his VRIs, and the judge’s treatment of the resulting cross-examination in her summing-up, unfairly affected his credibility in respect of Count 2.

53.Mr Young submits that it was wrong for prosecuting counsel to suggest that the absence of any complaint made against the police during the 5^th VRI signified that the applicant’s allegations were false, and that this was effectively an impermissible use of his silence against him.[86] He submits that, notwithstanding the judge’s directions on the right of silence, the safety of the applicant’s conviction is in doubt because the cross-examination and the prosecution’s closing speech tainted the jury’s assessment of the applicant’s allegations. 

54.Mr Lui submits that the impugned cross-examination and remarks in the closing speech were directed at the applicant’s credibility in relation to his complaints of police impropriety, not at the admissibility of the 5^th VRI.  He further submits that the judge adequately directed the jury on the right of silence, and that, as the complaint concerns only Count 2 and not Count 1, any irregularity, even if established, would not be material. 

55.The applicant participated in seven VRIs, and it was only in respect of the 5^th VRI that he exercised his right of silence.  In that interview, held in the presence of his lawyer following his request for legal advice, he declined to answer questions.  Mr Young contends that the applicant was improperly cross-examined as to why he did not record that he had been mistreated and denied access to a lawyer by the police during his previous VRIs (the 1^st to 4^th VRIs), while his lawyer was present.  No objection was raised to the question, and the applicant answered that he had been told by his lawyer that this could be done later.[87]  He was also cross-examined as to why he did not record that he had been threatened into conducting the 6^th VRI, during which he answered questions.  He stated that he had not done so because he thought the police would plant a gun on him.[88]

56.Later in the cross-examination, the applicant was asked about the fact that, in the 5^th VRI, the police had put to him whether he was willing to take them to seize the exhibit (the bullet case and the wooden board), and whether this was true.  Defence counsel objected on the basis that the applicant had a right of silence, although he noted that the same question might have been asked in a subsequent VRI (when the applicant did not exercise his right of silence).  The judge disallowed the question and directed the jury on an accused’s right of silence.[89]

57.Prosecuting counsel, in his closing speech, addressed the applicant’s allegations of police mistreatment and his failure to complain, emphasising that the applicant had maintained his right of silence in the 5^th VRI, adding that this was “absolutely his right”.[90]

58.The judge, in her summing-up, emphasised an accused’s right of silence, and specifically addressed the occasion when the applicant remained silent in the 5^th VRI.[91] She said[92]:

“ Turning to the fifth VRI, Stephen there said he had nothing to say. I have already directed you in regard to the right of silence and that is what you should do in this case, that, of course, in law a person is entitled to say nothing when questioned by the police about his or her alleged involvement in the offence. And you remember in each video recorded interview, that Stephen was told expressly he is under no obligation to say anything. So it would be quite wrong if Stephen, having decided to exercise his right of silence, found that his exercise of the right of silence was used against him. You must not do that. It is important that you bear in mind that Stephen’s silence cannot be used against him in any way at all. It cannot amount to an admission of any kind nor can it be taken to reflect a guilty conscience.”

59.Significantly, the judge stressed to the jury that they were not to use the applicant’s silence in the 5^th VRI against him “in any way at all.”

60.It was the prosecution case that, save for the 5^th VRI, the applicant had voluntarily participated in the VRIs and had answered questions willingly when he had the opportunity to record any police mistreatment.  In those VRIs, he admitted that he possessed arms and ammunition.  As explained by the judge[93]:

“ So what the prosecution say is what he says in regards to those admissions are true. That is what they say: those admissions are true. Of course, as I said, Stephen’s case is none of those admissions are true. Stephen says that the confession was made as a result of oppression, inducements, threat of assaults, and threats of trumped up and more serious charges against him. Stephen says he was denied a lawyer and he was told what to say. That is, he was coached and a police officer rehearsed with him what to say in those video recorded interviews.”

61.As already noted, the 5^th VRI, at which the applicant remained silent in the presence of his lawyer, did not form part of the prosecution case because there were no admissions on which the prosecution could rely.  In the remaining VRIs, he answered questions admitting possession of arms and ammunition, but he challenged the voluntariness of those answers on the basis of alleged police misconduct, an issue which was left for the jury to resolve.[94]

62.In light of the defence case, prosecuting counsel cross-examined the applicant on his reactions during the VRIs and his failure to complain about police misconduct when his lawyer was present.  The purpose of the cross-examination was to undermine the applicant’s credibility regarding his complaints of misconduct by the police and to address, in general, the voluntariness of his admissions of possessing arms and ammunition.  As pointed out by the respondent, it was not the prosecution’s argument that, since the applicant had not previously made these complaints, his defence was a recent fabrication, or that, if his complaints were rejected, his defence case should also be rejected.  Where the voluntariness of a confession is disputed, adverse inferences against a defendant’s credibility may be drawn from a failure to complain about allegations of police misconduct which form the basis of the claim of involuntariness (HKSAR v Lam Sze Nga[95]; HKSAR v Chan Chu Leung[96]).

63.This was not a case where the defendant had exercised his right of silence throughout, as occurred in Lee Fuk Hing v HKSAR[97]; HKSAR v Ata Asaf [98], upon which the applicant relies in support of his argument.  The applicant’s focus on the 5^th VRI takes the issue out of context and fails to address the legal basis of the cross-examination.  The issue is to be considered against the background of the clear directions on the right of silence already referred to[99], and the fact that no objection was taken by the defence, which indicates that it was a matter of relatively minor importance.  As pointed out by the respondent, the prosecution relied on a myriad of matters to discredit the defence case, thereby undermining his claims that he lacked familiarity with the firearms and had limited contact and involvement with the others involved.[100]

64.In the VRIs before and after the 5^th VRI (the 4^th, 6^th and 7^th VRIs), the applicant made admissions that he knowingly handled genuine firearms and disposed of a bullet case in the ground-floor rubbish bin of his home.  The prosecution highlighted these admissions as inconsistent with his testimonial evidence.

65.The applicant testified that he had been threatened with force and misled by the police, and that the police had fabricated evidence and coached him in his answers in the VRIs.[101]  He claimed that, before he gave his 1^st VRI, his requests to speak to a lawyer were denied.  However, as already noted, he was permitted to consult a lawyer before the 5^th VRI and then exercised his right of silence.  He further claimed that, under threat by the police, he answered the questions in his 6^th and 7^th VRIs.  He also testified that he did not tell his lawyer that he had been threatened and coached, but only that he was tired, in order to avoid any further mistreatment after the lawyer had left.  Having given this evidence, it was legitimate for prosecuting counsel to test his account in cross-examination regarding the allegations of police misconduct and to question him as to why he did not complain during the recorded interviews when he had not exercised his right of silence.[102] 

66.We concluded that Ground 3 had no merit.

The grounds of appeal against sentence

The parties’ submissions

67.Mr Young argues that the sentence of 27 years’ imprisonment for Count 1 is manifestly excessive.  He submits that the judge failed to take into account the fact that it was a conspiracy which did not result in the actual murder of the targeted person. He further submits that the judge erroneously enhanced the sentence on Count 2 by 2 years, since the factors leading to such enhancement were subsumed in the starting point of 12 years’ imprisonment itself. 

68.Mr Lui submits that, given the applicant’s role and the number of serious aggravating features involved in this case, and in order to reflect the abhorrence of his egregious conduct, the term of 27 years’ imprisonment for Count 1 cannot be impugned and should be affirmed.  He also submits that, for Count 2, the 2-year enhancement is justified as it is a more serious case than Tsiang On Yan.  Given the multiple aggravating factors in the present case, including the fact that some of the firearms had actually been used for testing and the applicant had, in a conspiracy with others, possessed more than triple the amount of arms and ammunition in Tsiang, the sentence of 14 years’ imprisonment cannot be criticised as too high.

Discussion

69.The conspiracy to murder in the present case was no mere fantasy or role play that got out of hand, nor was it a rehearsal or preparation for something that may or may not ever have happened.  It was the real thing, an egregious and intentionally murderous plan, masterminded and orchestrated by the 28-year-old applicant, who manipulated and used three young people, to kill and then dispose of the body of someone whom the applicant thought had wronged him, and him alone.  PW1, who was a decade younger than the applicant, entered his orbit as an impressionable and infatuated young girl in 2017, when she was a minor, although she was a few days past her 18^th birthday in November 2018, when the plot was hatched.  D1 was 16 years and 6 months of age at the time of the conspiracy, and legally a minor.  The plan involved a number of firearms, silencers and numerous rounds of ammunition, as well as explosive material.  Disguises were procured and one of the firearms was test-fired at a deserted building.  And while the applicant was content to use others to carry out his plan to kill, he was also careful to distance himself from the crime by having dinner in Shatin at the time of the first abortive attempt on the victim’s life on 6 December 2018, and then setting up an alibi in Japan at the time of the second attempt to murder the victim after 1 January 2019.

71.We reserved our decision on sentence because 27 years’ imprisonment after trial is a very long sentence in respect of a crime that mercifully failed in its objective.  However, the failure of the plan was a matter of pure luck for the victim and the applicant can derive no benefit from the fact that a killing or maiming did not actually eventuate.  As the Court put it in HKSAR v Fok Ka Po Joe (No 2)[103]:

“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 R v 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:[104]

‘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.’”

72.Although this authority was concerned with the offence of conspiracy to throw corrosive fluid with intent to burn, contrary to section 29(c)  of the Offences Against the Person Ordinance, which also carries a life sentence, the principle is the same.  Had the plan succeeded, the applicant would have been charged with murder and faced life imprisonment.

73.It is also perhaps worth noting, in view of what we have just said, that the Court in Fok Ka Po Joe (No 2) considered it an aggravating factor that A3 had introduced and involved a minor in the crime[105]:

“38. In our judgment, the Judge was right to view (A3’s)  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.”

74.The applicant in the case before us was no youngster himself and was considerably older and more experienced than the three teenagers (including at least one minor), whom he inveigled into the conspiracy and prevailed upon to carry out his orders, which, if successful, would have resulted in the death of the victim.

75.The conspiracy was clearly well-planned and, despite various setbacks along the way, the applicant regrouped and persisted with an improvised plan, so that the entire exercise spanned at least 6 weeks. It did not arise on the spur of the moment, nor did the applicant ever draw back from his ultimate intention to have the victim murdered.  It was the applicant’s role and use of others, his obsession with and knowledge of firearms as well as his ready access to multiple firearms, silencers and rounds of ammunition and his perseverance in carrying out the conspiracy that led the judge to consider that he was “a major threat to society”[106]. We regret to say that we agree with that assessment and regard the applicant as a continuing danger to society, from which he must be removed from the community for a very considerable time.

76.It is this factor which marks the applicant out from other cases of attempted murder, such as, for example, HKSAR v Kong Pui Lam & Anor[107], where despite the egregious nature of the offence, which was carried out for money, none of the several aggravating factors to which we have referred were present.  In any event, it is very difficult to draw comparisons with other cases on very different facts where the factual permutations are myriad.  This case, of course, involved a conspiracy to murder spanning at least six weeks, not an attempted murder.  Any sentence must include a strong element of deterrence.  And although it is tempting to view such a sentence as richly deserving of condign punishment, given its purpose, its planning and the other aggravating features present, we consider that, in all the circumstances, it is too high.  A proper sentence after trial for the facts of this case would have been 24 years’ imprisonment.

77.In relation to the sentence on Count 2, it should be remembered that three pistols and a rifle were involved, as were silencers and numerous rounds of ammunition.  The judge was following authority when she considered a starting point of 12 years’ imprisonment after trial in respect of this count; indeed, that would have been an appropriate starting point for one firearm in working condition.  In view of the various aggravating factors present, the judge enhanced the sentence by 2 years’ imprisonment to 14 years’ imprisonment, saying[108]:

“I understand that is the maximum sentence but I cannot envisage a graver situation. Given the amount of ammunition, the arms and the intention to be used of these arms.”

Effectively, for the reasons she gave, the judge was adopting the maximum sentence for the offence.  As this Court has said in HKSAR v Chang Yau Hung Alexander[109], where the maximum sentence had been adopted as the starting point on a charge of theft:

“We accept the generality of the principle in Yau Wai Hang, referred to at [29] above, and that the maximum sentence should be reserved for the worst case of its type. The problem with such a general proposition is that it would always be possible to imagine an even worse set of facts than the one before the court. However, as the Court in R v Ambler[110]cautioned:

‘… judges should not conjure up unlikely worst possible kinds of case. They should consider the worst type that came before the courts and ask if the instant case came within the broad band of that type.’

Applying that test, it seems to us that the theft from an individual of US$10 million (which is the equivalent of HK$78 million)  by a solicitor in breach of trust, resulting in a complete loss of the entire amount to the victim without the prospect of any restitution, comes within the broad band of the worst type of theft case to come before the courts.  In our judgment, the starting point of 10 years’ imprisonment, which is the maximum for the offence, was entirely appropriate.  There is no merit in Ground 1.”

78.We regard the sentence on Count 2 as appropriate in the circumstances, the judge having presided throughout over the trial and having been able to gauge the seriousness of the case presented to the jury. In any event, the sentence of 14 years’ imprisonment was made wholly concurrent with the sentence on Count 1.

79.In our judgment, the overall sentence in this case should have been 24 years’ imprisonment.  Accordingly, we reduce the sentence on Count 1 by 3 years and leave the sentence on Count 2 as 14 years’ imprisonment to run wholly concurrently with the sentence on Count 1.  In the result, the overall sentence is reduced from 27 years’ imprisonment to 24 years’ imprisonment.

Conclusion

80.For the foregoing reasons, we refused the application for leave to appeal against conviction and dismissed the appeal. In respect of the application for leave to appeal against sentence, we grant the applicant leave, reduce the sentence on Count 1 to 24 years’ imprisonment, and maintain the sentence of 14 years’ imprisonment on Count 2, to run wholly concurrently with the sentence on Count 1.  

Mr Ira Lui, ADPP, and Mr Jerome Ching, SPP, of Department of Justice, for the respondent

Mr Simon Young, instructed by Bobby Tse & Co, assigned by Director of Legal Aid, and Mr Simon So, instructed by Bobby Tse & Co, on pro bono basis, for the applicant