HKSAR v. Fan Pak Kei

CACC000062A/2000

CACC 62/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 62 OF 2000

(ON APPEAL FROM HCCC 333 OF 1999)

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Coram: Hon Leong, CJHC, Stuart-Moore VP and Wong JA

Date of Hearing: 12 June 2001

Date of Judgment: 12 June 2001

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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):

1.On 9 February 2000, the Applicant (D2) was sentenced by Nguyen J to a total of sixteen years' imprisonment for manslaughter (count 1) and two counts of inflicting grievous bodily harm (counts 2 and 3). He had earlier confirmed the pleas he had entered in the magistrates' court before his case was transferred to the Court of First Instance. The Applicant was aged about sixteen years and two months at the time of these offences.

2.A similar pattern of events applied also to his co-defendants, D1 and D3 who were sentenced to sixteen years and fifteen years' imprisonment respectively. D2 was about sixteen years and four months old and, although D3 was aged eighteen, he was able to advance some personal mitigation which enabled the judge to make a slight reduction in his case.

3.We have already set out the background to this matter in a judgment delivered on 18 July 2000 which dismissed the applications for leave to appeal against sentence in the cases of D1 and D3. At that time, D2 was expected to give evidence in the trial of a further person who was involved in this case. We therefore adjourned consideration of D2's case until after that trial in order to gauge the additional credit which might be due to him on sentence.

4.It suffices to say, so far as the background to the present matter is concerned, that on 28 January 1999 at about 12.55 p.m. in Allied Plaza, Nathan Road, three young men were responsible for an arson attack on a ground floor shop which sold VCDs. Apparently, the motive for the attack arose from ill-feeling between one of the people who ran the shop and an employee of another VCD business in Allied Plaza.

5.Two incendiary devices were thrown into the shop by D1. These were made of highly inflammable thinner contained inside bottles, each with a piece of cloth in the necks of the bottles to act as wicks. A fireball effect resulted.

6.A 21-year-old man who was collecting his photographs from a film processing shop opposite was set alight. He died a month later from his burns which covered about 85% of his body. Two other equally innocent victims also received burns in varying degrees.

7.The highly efficient police investigation which followed, helped by a valuable lead from a member of the public, is set out in the earlier judgment to which we have made reference. D2 was eventually arrested and he admitted that the motive for the attack was a desire by someone to get revenge. He had no personal grudge against those whose shop was fired-bombed.

8.On any view, as we said when we dismissed D1 and D3's applications for leave to appeal, this was an offence of manslaughter of the worst kind. The dreadful consequences of throwing incendiary devices like these were, as the judge found, well within the contemplation of the offenders. We expressed the view that the lack of personal motive for revenge put all of the defendants engaged in this joint enterprise in a position similar to hired assassins who generally act in cold blood for a fee.

9.The starting point of twenty-four years taken by the judge was entirely appropriate and in normal circumstances we would not interfere with D2's sentence which reflected a reduction by one-third to take into account his pleas of guilty.

10.We are now aware that there is an appreciable change in D2's circumstances. He has, as he said he would, given evidence in the trial of one of the core group of men responsible for ordering the arson attack to take place. We have been told, and we accept, that D2's evidence was crucial to the outcome of that trial. D2 had named a total of three others who were responsible for planning the attack. Two of them are still at large, but eventually the third man in that group was found. D2 gave evidence against him in accordance with the information he had supplied. This culprit, Liu Kwai-wing, is now serving life imprisonment for murder.

11.These matters cannot be overlooked. Without the cooperation of those such as D2 who provide information about other offenders, often more seriously involved in the crime than themselves, it would be impossible to prosecute them at all. Those who do provide the information, as D2 has done, must expect that there is some danger in doing so. That particularly applies in this case where there is clearly a triad background to all of the events. For this reason, amongst others, the courts have maintained a consistent policy of reducing sentences by 50% for offenders who have pleaded guilty and given evidence against their accomplices.

12.In the present case, D2 is now entitled to a discount of an additional four years. We were invited to regard D2 as a "supergrass" following what was said in R v Suen Shek and Others [1988] 1 HKLR 524. All that we need to say in that regard is that if that case provided in 1988 any authority for what might be described as a "supergrass", which we very much doubt, it is not a case which nowadays can do so. The facts in that case reveal that the appellant provided information to police at some risk to himself. In such circumstances, he was deserving of no more than a 40% to 45% discount.

13.We shall, in the light of the events which have occurred after sentence was imposed on him, grant leave to D2 and, treating the hearing as the appeal, we shall reduce his term of sixteen years' imprisonment on count 1 to a sentence of twelve years' imprisonment. The concurrent terms of two years' imprisonment on counts 2 and 3 will be reduced in each case to eighteen months, to be served concurrently with each other and with the sentence on count 1, making twelve years in all. The appeal succeeds to this extent.

14.We should perhaps add that, in the event that others are arrested and tried in relation to this matter, it will then be a matter for the Executive to consider whether some further discount is appropriate. This case is clearly one of the greatest gravity, and we respectfully venture to suggest that some further reduction in sentence might well be appropriate if D2 has to go into the witness box again in order to testify against the remaining offenders who are at the present time still at large.

Representation:

Mr Robert S.K. Lee, SADPP and Ms Evelyn Tsang, GC, of the Department of Justice, for the Respondent.

Mr Christopher Coghlan, instructed by the Legal Aid Department, for the Applicant.