Kay Sik Hong v. HKSAR

FAMC No. 55 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 55 OF 2006 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACC NOS 278, 279, 286 & 287 OF 1994)

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Between:

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing: 13 December 2006

Date of Determination: 13 December 2006

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D E T E R M I N A T I O N

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Chief Justice Li:

1.On 23 May 1994, the applicant was sentenced by Sears J to a total of 20 years’ imprisonment for numerous offences arising out of a series of robberies with the use of firearms.  Earlier on 6 May 1994, he had pleaded guilty.  His co-defendant, Leung Kwok-wai (“Leung”) had also pleaded guilty and was sentenced to a total period of 22 years imprisonment.

2.The crimes in question are described as “heinous” in the applicant’s notice of application.  Their serious nature was stressed by the Judge when sentencing.

“You two for a number of months embarked upon your own major crime wave in Hong Kong.  You robbed banks, supermarkets, game centre and residential property.  You callously shot down an off-duty police officer in a supermarket robbery causing him to become paralysed.

The use of guns in Hong Kong’s crowded streets or their banks and shops causes great panic and alarm, it leads to innocent people being shot and great fear being caused to those who work in such banks and stores.  It must be made clear that those who use guns should expect little mercy.  The public expect to be protected from people such as you and they expect the Judiciary in Hong Kong to take into account such wish to be protected.

On one occasion, you broke into residential property and again shot an innocent person.  I do not differentiate between you upon sentence, although one may have committed more offences than the other, and that your pleas of guilty cover the whole spectrum of serious crime.”

3.The Judge stated that a number of the offences should carry consecutive sentences.  But as this would mean a sentence of some 120 years, he took the view that he should assess their overall criminality and find a sentence which properly reflects the public outrage for such crimes.  He held that the appropriate sentence is 32 years.

4.The Judge then took into account their guilty pleas and their provision of information to the Police.  He said:

“However, I must take into account the fact that you have pleaded guilty and saved considerable time and expense.  You provided information which may well have caused you to plead guilty to these offences where the police may have had little evidence other than your confessions.  Furthermore, people should be encouraged to plead guilty in Hong Kong.  It reduces the substantial waiting time there is for criminal cases and is the best indication of remorse.”

He sentenced Leung to 22 years imprisonment.  As to the applicant, the Judge stated:

“you appear to have provided more information to the police and, of course, should you provide additional information, you are always entitled to petition the Governor for a reduction in your sentence.  I therefore reduce your sentence to one of 20 years’ imprisonment.”

5.On 3 November 1994, the applicant’s application for leave to appeal against sentence was dismissed by the Court of Appeal (Yang CJ, Power VP and Macdougall VP).  Leung’s similar application was withdrawn with the leave at the hearing.  The Court held that there is nothing to indicate that the overall sentence of 20 years imposed on the applicant was not an entirely proper one in the circumstances.  The Court concluded:

“The applicant committed a series of appalling offences which repeatedly put the public at risk.  As the judge said, persons committing such offences can expect little mercy from these courts.”

6.The applicant has served more than 12 years of his sentence and is scheduled for release in August 2007.

7.The applicant now applies for leave to appeal against the decision of the Court of Appeal of 3 November 1994 on the substantial and grave injustice limb and seeks the requisite extension of time for such application.

8.Before applying for leave, the applicant had on 10 December 2005 petitioned the Chief Executive to exercise his power under Article 48(12) of the Basic Law to commute his sentence.  He had been encouraged to petition the Chief Executive by the Long-term Prison Sentences Review Board.  On 8 October 2006, the Chief Executive decided to remit his sentence by one month.

9.Mr Bedford for the applicant, assigned by the Bar Free Legal Service Scheme, has said all that could be said on his behalf.  In support of his application, the applicant essentially relies on the assistance he had provided to the Police and the ICAC since he was sentenced which had led to the prosecution and conviction of certain persons.  Four instances are referred to in the applicant’s affirmation:

(1) The conviction of his fellow gang member and accomplice Ng Kwok-chun (“Ng”) of robbery.  On 18 February 1997, Ng was sentenced to 17 years.  The applicant was willing to give evidence at his trial but he was not called upon to do so.  At the time of Ng’s arrest in 1996, the applicant had received threats to prevent him from giving evidence.  Because of those threats, the applicant had to be transferred to another prison.

(2) The conviction in 2003 of Lo Wai-chung, an officer of the Correctional Services Department, for corrupt activities for which he was sentenced to one year imprisonment.  The applicant gave evidence at the trial.

(3) The conviction in 2003 of Cheung Kwok-yip for indecent assault for which he was sentenced to 28 months’ imprisonment.

(4) The conviction in 2005 of Cheung Wai-ming for common assault on the applicant himself for which he was sentenced to one month imprisonment.  The charge was of assault occasioning actual bodily harm and the applicant gave evidence at the trial.  Cheung Wai-ming had threatened to kill the applicant if he helped the ICAC by testifying at the trial of one Cheng Wui-yiu.  As a result of these threats, the applicant had to be transferred to solitary confinement for his own safety.

10.The last instance was an assault on the applicant himself.  In the first instance relating to Ng, it should be noted that the applicant may well have provided assistance both before and after sentence.  In mitigation before the Judge, his counsel had referred to assisting the police in providing information as to three other persons (apart from his co-defendant and one Chan Pak-kin who was a wanted person), and had stated that if and when they are apprehended, the applicant would co-operate in these cases.

11.The applicant’s assistance to the authorities in the four instances occurred after the applicant was sentenced.  Indeed, in the last three instances, the criminal offences in question for which prosecutions were brought and convictions secured were committed in the recent past between 2003 and 2005.  These matters were for the Chief Executive to consider in considering the applicant’s petition for commutation of sentence.  The applicant is scheduled for release in August 2007.  His disappointment at the Chief Executive’s decision to commute his sentence by only one month may be understandable.  But these matters could not give rise to any viable argument that substantial and grave injustice has been done to the applicant in relation to his sentence.

12.Accordingly, the application for extension of time and for leave to appeal are dismissed.

Mr Nigel Bedford (instructed by Messrs Henry Wan & Yeung and both assigned by the Bar Free Legal Service Scheme) for the applicant

Ms Louisa Lai (of the Department of Justice) for the respondent