HKSAR v. Lau Bo Ki

CACC 412/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 412 OF 2005

(ON APPEAL FROM HCCC NO. 19 of 2005)

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BETWEEN

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Before : Hon Stuart-Moore VP, Yeung and Yuen JJA

Date of Hearing : 9 November 2007

Date of Judgment : 9 November 2007

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Sentence

1.The facts of this case appear in the judgment which was given on 20 September 2006 when we allowed the appellant’s appeal against his conviction for murder.  In its place, we substituted a conviction for manslaughter for which he now has to be sentenced.

2.In very brief outline, the appellant, in his mid-fifties, went to the deceased’s flat on 2 June 2004 as part of a process of intimidation aimed at making the deceased’s son-in-law, who lived at her flat, repay a loan.  The appellant, in circumstances which are not entirely clear, poured a large quantity of concentrated sulphuric acid into the deceased’s flat from the container he could be seen holding in a CCTV film taken of the appellant as he made his way up to the flat by lift.

3.The deceased, aged eighty-seven, was alone in the flat at the time.  When she was found by neighbours some time after the acid attack, her front door was wide open and the metal grille security gate was unlocked but shut.  She was lying on the ground in the acid with her head against the grille.

4.Soon after the acid had been left at the deceased’s flat, the appellant left a message with her son-in-law on his mobile telephone that his mother-in-law had “fainted”.  As the appellant has never admitted any responsibility for the killing, it is not known in what circumstances he came to see this although the only reasonable and sensible inference is that the deceased’s front door was open before he left the flat and he had seen her fall into the acid.

5.The evidence was insufficient to establish a deliberate throwing of acid at the deceased.  Indeed, it was this very point on appeal which resulted in the reduction of the charge to manslaughter but, in any event, the deceased received horrific chemical burns.  These covered twenty percent of her body.  One month and eight days later she died from these injuries and other complications arising from them.  She suffered a slow and agonising death.

6.The appellant has shown no remorse for what he did.  Immediately after the acid attack, he could have called the emergency services when he saw that the deceased had “fainted” but he did not do so.  Furthermore, he denied the offence at trial and, whilst he did not give evidence himself, a false reason was provided for his presence in the deceased’s block of flats.  In addition, a number of other potential culprits, who were also owed money by the deceased’s son-in-law, were advanced as possible suspects.  Defence counsel’s closing words to the jury in his final speech were as follows:

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The prosecution say there is no such thing as a coincidence as remarkable as this.  I say coincidences are not within your sphere of consideration.  It’s the evidence that counts, and the fact of the matter is that there were others collecting debts who were capable of this awful deed and who were active at or around 2 June in pressing for payment, and who indeed, unlike the defendant, had actually threatened other members of the family.

It’s not a question of coincidence.  It’s a question of who it is who makes you sure was the assailant on that afternoon.  And what I respectfully submit to you, members of the jury, is that the prosecution most certainly haven’t made you sure that the defendant was the assailant on that afternoon.”  (Appeal bundle p. 696)

7.In these proceedings, Mr Oderberg invited us to say, based upon the findings of the scientific officer, Mr Mak, that in all probability the acid was poured onto the base of the front door and allowed to seep inside so that after the deceased had opened the front door she somehow slipped and fell into the acid.  This being the most beneficial way to regard the appellant’s actions, it is nevertheless apparent to us that the appellant was well aware of what had happened and he effectively left the deceased to die in a pool of acid.

8.We cannot take any other view of this killing than that it was of the most serious kind.  The act of pouring a large quantity of concentrated sulphuric acid into an old lady’s flat was a most dangerous act and to have left her lying in it was conduct of the most reprehensible kind.  Despite this, the appellant continued to chase the deceased’s son-in-law for the debt he owed by leaving intimidating messages on his mobile telephone.

9.The appellant has four previous convictions but these were many years ago and we can ignore them.  There are no mitigating circumstances whatsoever.  The appellant was well aware that a frail old lady lived at the crime-scene and he had even met her on two previous occasions when trying to put pressure on her son-in-law when he was acting as a debt collector on behalf of a third person.

10.This offence lay very close to murder.  The fact that it was conceded on the appellant’s behalf at the appeal that on the evidence he must be convicted of manslaughter if his appeal against conviction for murder was allowed was a sensible tactical decision to have made.  The appellant had been shown by overwhelming evidence to be guilty and all that can be said is that he had apparently been able, for the first time, to bring himself to admit that he perpetrated this cowardly and dreadful act.  This is not the same as saying that he has shown remorse.  He has not.  Indeed, since then, he has made an unsuccessful bid in the Court of Final Appeal to obtain leave to appeal against conviction which has contributed to the lengthy delay in the final disposal of this matter.

11.We take a grave view of this case.  The sentence will be 16 years’ imprisonment.

Ms Mary Sin, SADPP and Ms Memi Ng, SGC, of the Department of Justice, for the Respondent.

Mr K Oderberg, instructed by Messrs Simon C W Yung & Co., assigned by Director of Legal Aid, for the Appellant.