HKSAR v. Lee Sai Yau

cacC 444/2005

in the high court of the

hong kong special administrative region

court of appeal

CRIMINAL APPEAL NO. 444 of 2005

(on appeal from HCCC NOs. 6/2001 & 353/2004 (Consolidated))

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BETWEEN

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Before : Hon Stuart-Moore VP, Tang VP and Stock JA in Court

Date of Hearing : 1 November 2006

Date of Judgment : 1 November 2006

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.This applicant was convicted after trial of the offence of manslaughter and sentenced to five and a half years’ imprisonment.  He now seeks leave to appeal against that sentence.

2.The case arises from the fire at the Immigration Tower building in Wanchai on 2 August 2000 when a group of persons seeking the right of abode in Hong Kong gathered in a room there to demand that they be issued with Hong Kong identity cards.  A number of immigration officers were in the room trying to evict those demonstrating and who refused to leave.  Some of the demonstrators flourished bottles containing thinner and one or more displayed flames with cigarette lighters and a conflagration occurred during which one of the abode seekers and a senior immigration officer died.  A number of prosecutions were then commenced.

3.In the first prosecution a man called Sze and six others were charged with murder and with arson.  Sze was convicted of two counts of murder and upon one count of arson and the six others were found guilty of manslaughter of the two deceased, and of arson.  Those convicted of manslaughter received sentences of 13 years’ imprisonment in the case of some and 12 years’ imprisonment in the case of others.  All those defendants ultimately succeeded upon appeal and an order was made that they all be retried on two counts of manslaughter and one count of arson.

4.In the second prosecution this applicant was indicted together with 14 others upon one count of manslaughter and one of arson.  On 14 June 2002, the applicant was convicted of arson but the jury was unable to reach a verdict in respect of the manslaughter count.  The applicant was then sentenced to a term of four and a half years’ imprisonment in relation to the arson conviction.  An order was made for his retrial in respect of the manslaughter allegation.  That retrial was, upon his application, adjourned pending the result of the appeal in the first prosecution to the Court of Final Appeal.  The applicant completed his sentence for arson on 2 August 2003 and was then granted bail pending his retrial for manslaughter.

5.The trial of the defendants in the first prosecution was consolidated with the retrial of this applicant and on 17 June 2005, Sze and six others pleaded guilty to two counts of manslaughter, the basis of the plea in each case being gross negligence.  Sze was then sentenced to a term of eight years’ imprisonment on each count, to run concurrently; the other six defendants to terms of seven years and four months’ imprisonment upon each count, to run concurrently.

6.This applicant, however, pleaded not guilty to the two counts of manslaughter and was tried by Lunn J and a jury.  His defence at trial was that he had no idea that there was any thinner in any of the water bottles in the room.  On 30 September 2005 he was acquitted of manslaughter alleging the unlawful killing of the abode claimant but convicted of the second count of manslaughter, which concerned the death of the senior immigration officer.  The basis of that conviction was manslaughter by reason of an unlawful and dangerous act, and that refers to the setting alight of the thinner.

7.In sentencing this applicant, the learned judge referred to the fact that the applicant was present in the room at the Immigration Tower with others.  He noted that the others had been present at that building on other occasions in July 2000 when demonstrations or sit-ins had been staged but that 2 August 2000 was the first occasion upon which this applicant was present.  The right of abode seekers heard repeated requests for them to leave but they refused to do so.  He noted that Sze was the leader of the group and that upon his instructions the applicant and two other men left their positions at the rear of the room and moved to sit on benches closer to the front.  The applicant was holding a water bottle and that bottle contained, as the applicant well knew, thinner.  Immigration officers came into the room from both its entrances at which point the applicant, together with a number of other men, rose to his feet and the applicant unscrewed the cap of the bottle and brandished it by raising it aloft.  He was not the only one holding such a container.  He also held a lit lighter in his hand, and other men poured and splashed thinner indiscriminately from the water bottles.  A struggle took place that was brought to an end when a fireball erupted in the middle of the room.  As a result of the fire the officer died nine days later.  The judge concluded that it was not certain by whom the fire was actually ignited but that “by their verdict the jury determined that you [the applicant] acted with the others with the intention that a fire be started.”

8.The judge further noted that the applicant was arrested in hospital on 3 August 2000 and detained, and remained in detention until released from prison on 2 August 2003.  That was in relation to the sentence imposed for the arson offence.  There was then a lapse of three years and three months before the second trial, a delay partly occasioned by the fact that the applicant himself sought an adjournment of his retrial until the determination of the appeal, in the other case, by the Court of Final Appeal.

9.At the date of the offence the applicant was aged 17 years, significantly younger than any of the other convicted persons.  The judge noted that the applicant, unlike Sze, had not made any intimidating utterances whilst in the room and he also noted the material placed before him as to voluntary work undertaken by the applicant whilst he was on bail.  In addressing the question of the appropriate sentence, the judge said this:

“…  In determining the appropriate sentence to be imposed, it must be acknowledged at the outset that this was a most serious offence.  You played your part in seeking to achieve the agreed goal of pouring out and splashing thinner and setting light to it.  Nevertheless, in light of the disparity in your age and the age of the other stipulated parties to this criminal enterprise, together with the fact that this was the first time that you were present at such a demonstration or protest at the Immigration Tower building, in my judgment, you are to be regarded as a foot-soldier being made use of by others, nevertheless a soldier who acted in accordance with the plan.

A factor to which regard is to be had in your favour is the way in which you have conducted yourself since the commission of this offence fully five years ago.  Following your release from prison in August 2003, having served three years of the sentence of 4½ years imposed upon you, you appear to have set about rehabilitating yourself.

Unchallenged evidence was received at trial that you had spent a good deal of your time actively participating as a volunteer in a Caritas centre for the aged.  … a social worker, testified of the good reputation that you enjoy amongst inmates of that home in consequence of your efforts at that place.”

10.The judge noted as well observations made as to the good use of the applicant’s time in prison by advancing his studies.  Accepting that none of the time during which he had been detained in custody from August 2000 to August 2003 would be treated as reducing the period of imprisonment to be imposed for the manslaughter offence, it followed, he said, that it was necessary in order to do justice to impose what, in isolation, was “technically a wrong sentence” in respect of the specific offence of manslaughter.  “Clearly”, he said “the sentence to be imposed must be reduced by what would otherwise have been imposed by 4½ years’ imprisonment.”  The sentence imposed was one of 5½ years’ imprisonment.  The effect of what transpired, in practical terms, is a sentence of 10 years’ imprisonment for manslaughter and arson, recognizing that had the two sentences been imposed at the same time, a sentence of 10 years’ imprisonment for manslaughter would have been imposed concurrently with a lesser sentence for arson and the question therefore that we have to address is whether the sentence imposed was in its practical and overall impact either wrong in principle or manifestly excessive.

11.In support of his application, the applicant states that he was aged only 17 years at the time of the offences and had little idea about “things in Hong Kong” and he emphasizes the voluntary work to which he has devoted himself whilst on bail.  We have considered a detailed letter that he has submitted today in which he makes a number of points including the suggestion, obviously rejected at trial, that the bottle he carried contained only water and he emphasizes the stress that has been visited upon him by reason of having undergone two trials.  He makes the further point that other defendants have already been released but in that latter regard we would merely point out that the signal difference between the course taken by the other defendants and this defendant was that they pleaded guilty and he did not.  Had he adopted that route, and it was of course open to him not to do so, he, too, would by now have served his term.

12.The conduct of this and the other culprits in spreading inflammable liquid in a high-rise building and in flourishing, at the same time, open flames is conduct that is bound to be visited with condign punishment.  The basis of the conviction in relation to this applicant was an unlawful and dangerous act and in that regard the jury was directed that they might convict on that basis if sure that the acts of the defendant were done with the intention of carrying out an agreement or plan to pour and splash out thinner and set fire to it.  We would comment that it is a matter of pure chance that the consequences, tragic though they were, were not more widespread.  Young though this applicant was, he can hardly have been unaware of the grave danger that, by his conduct, he was causing.  In the event it is not to be forgotten that the life of a serving immigration officer was taken and it is difficult to see how a sentence of 10 years’ imprisonment after a contested trial can in the circumstances be said to be manifestly excessive.

13.We have compared the sentence imposed upon this applicant for one offence of manslaughter, with the sentences imposed upon the other applicants, bearing in mind that the others upon their retrial pleaded guilty and did so in relation to two counts of manslaughter.  Those pleas were tendered on the basis of gross negligence and not on the basis of an unlawful and dangerous act, the gross negligence asserted being the flourishing of flames when there was thinner about, as part of threatening behaviour.  That may explain the fact that no pleas were offered by them to the charge of arson.  The finding of guilty of this applicant on the basis of an unlawful and dangerous act presupposes, as the matter was left to the jury by the judge, the deliberate ignition of the fire by someone and the applicant’s agreement that that be done.  That is a distinguishing fact but the starkly distinguishing fact is that this applicant contested the allegation of manslaughter whereas the others did not.  It is not entirely easy to see upon what basis he was acquitted in relation to the death of the right of abode seeker who perished as a result of the fire: but as the evidence emerged, it seems that that may have been on the basis that there was testimony to the effect that the other deceased poured liquid onto himself and this jury may well have taken the view that it was unjust that this applicant should be held responsible for that. 

14.Be that as it may, the sentencing judge was not entitled to deal with this applicant on the basis of a plea of guilty, as he did with the others.  There can be no question but that had they contested the case against them they would have received sentences in excess of ten years and approaching the original sentences imposed upon them for manslaughter that ranged between 12 and 14 years’ imprisonment.  A ten-year sentence imposed upon this applicant for the act of deliberately starting a fire in a building housing many persons in which fire death was caused, he having gone to the building with fire paraphernalia in hand, cannot be said to be manifestly excessive, even granted the applicant’s age and the good work that he carried out whilst on bail.  Nor has there been any error in principle and, accordingly, the application for leave to appeal against sentence is dismissed.

Mr Alain Sham, SADPP of Department of Justice for the Respondent

Applicant : LEE Sai-yau 李世游 in person