HKSAR v. Lam Ming Wing

CACC 152/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 152 OF 2007

(ON APPEAL FROM HCCC 220 OF 2006)

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BETWEEN

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Before: Hon Stock VP, Yeung JA and Wright J

Date of Hearing:  26 November 2009

Date of Judgment: 26 November 2009

Date of Reasons for Judgment: 14 December 2009

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.On 16 January 2004, Mr Wan Miu-sum (“Mr Wan”) and Ms Wan Hang-chun (“Ms Wan”), both working for Hing Lung Real Estate, were outside Mr Chan Kam-shek’s (Mr Chan”) fruit stall at the junction of Tai Kwong Lane and Heung Sze Wui Street in Tai Po waiting to board the car of Ms Wan’s husband when they were attacked by two persons.

2.The attackers threw corrosive fluid at Mr Wan and Ms Wan, causing them serious injuries, particularly to Mr Wan’s face. Mr Chan also received a splash of the corrosive fluid in his left eye.

3.The prosecution alleged that the applicant (Lam Ming-wing) had counseled and procured the throwing of the acid on another two persons, namely Mr Wan Hang-ping and Madam Cheung Ching, but due to mistaken identities, Mr Wan and Ms Wan were targeted instead and that Mr Chan was also injured accidentally in the process.

4.The incident led to an indictment consisting of two charges of throwing corrosive fluid with intent to cause grievous bodily harm to Mr Wan and Ms Wan (“the 1^st and 2^nd charges”), one charge of assault occasioning actual bodily harm to Mr Chan (“the 3^rd charge”) and one charge of conspiracy to throw corrosive fluid at Mr Wan Hang-ping and Madam Cheung Ching (“the 4^th charge”) against the applicant.

5.The applicant pleaded not guilty to the charges and appeared before Deputy Judge Longley, sitting with a jury, in the High Court for trial. The applicant was convicted of the 1^st, 3^rd and 4^th charges, but acquitted of the 2^nd charge. The judge sentenced the applicant, on the three charges, to the respective terms of 18 years, 2 years and 18 years to run concurrently.

6.The applicant, represented by Mr Mr John Griffiths SC and Mr Simon SM Yip, sought leave to appeal against both conviction and sentence. The application relating to sentence was out of time and the applicant sought an extension of time to do so.

7.On 26 November 2009, we dismissed both applications. We indicated that we would hand provide our reasons in due course and this we now do.

The Prosecution Evidence

8.The attack on the three victims and their resulting injuries were undisputed. According to Mr Wan, when he was about to board the front passenger seat of the car, he felt liquid thrown onto his face. Some of the corrosive liquid, intended for Mr Wan, splashed into Mr Chan’s eye.

9.Ms Wan saw somebody coming across the road in the direction of the vehicle and she heard Mr Wan crying out for help. She was then also splashed with some corrosive liquid and she said it seemed as though it was the man who had crossed the road who threw the cup that he was holding at her.

10.The victims’ clothes were all stained with sulphuric acid.

11.Mr Wan suffered very serious burn injuries with a 3^rd degree scald over face (around 5%) and a 2% 3^rd degree scald over right hand. The initial medical report suggested that corrosive fluid was poured directly onto his face, bilateral hands and knees, resulting in full thickness burn to those areas. The total burn area was 11% of the body and 6% of the face.

12.Mr Wan underwent several operations, including debridement of wound on 17 January 2004, debridement and partial thickness skin graft on 19 January 2004, debridement and split thickness skin graft on 23 January 2004, and debridement and partial thickness skin graft to left eye on 27 February 2004.

13.There were also numerous follow-up treatments when Mr Wan was found to have the following complications: facial scars leading to bilateral lower eyelids eversion and incomplete closure of eyes, distortion of the lips, loss of hair of the eyebrows, stenosis of right nostril. There were also scar contracture behind the right ear and hypertropic scar on the right neck.

14.Mr Wan was treated with silicone sheet and pressure garments for his scarring and had several more operations to improve the problems caused by his scarring.

15.The clinical psychologist indicated that Mr Wan suffered from Post-traumatic Stress Disorder (“PTSD”) manifesting in the form of re-experience of the trauma event, nightmares, and associated emotional reactions. Despite the remission of the PTSD, Mr Wan remained troubled emotionally as a result of the disfigurement disabilities in the form of anger and depression.

16.Ms Wan’s condition was less serious. When admitted to the hospital after the attack, her condition was satisfactory. There was a 1% third degree scald over her forehead in between eyes and a small 3^rd degree scald over right face. There was also another 2^nd degree scald over right hand dorsum and around anterior neck.

17.After intensive wound care with irrigation and dressing, Ms Wan discharged herself from hospital against medical advice on 17 January 2004. There were outpatient dressing and topical ointment, and Ms Wan had active burns scar which required silicone gel to control.

18.Mr Chan only suffered left eye chemical injury with foreign body sensation but no cornea abrasion.

19.None of the victims was able to identify the assailants. However, Chan Ying-kin (“Chan”) who admitted to be one of the attackers gave evidence against the applicant. Chan had pleaded guilty to a charge of throwing corrosive fluid at Ms Wan and was sentenced to 8½ years’ imprisonment.

20.Chan said he came to know the applicant when he was 13 and had been living in the applicant’s house since 2003. Chan said that Ip Kam-lung (“Ip”), whom he had known from school days, was also living in the same house.

21.According to Chan, the applicant called him in the evening of 15 January 2004 when he was with Chow Kin-sang in a video games center, asking them to go back to his house.

22.When they saw the applicant in his bedroom, the applicant told them that Wan Hok-lim, a district councilor and the boss of Hing Lung Real Estate Company, wanted to blind his son’s eyes because the son had cheated him out of a lot of money. The applicant further said that he owed Wan Hok-lim a favour and if the job was done, there would be a financial reward and they would have a rich new year.

23.The applicant further told Chan to use corrosive fluid on the son in order to blind him and that the best time to carry out the attack would be when the victim was leaving work. The applicant also said that Ip would help to identify the victim.

24.Chan then drove Chow Kin-sang home in a friend’s car, as Chow did not want to be involved.

25.The next morning, Ip called Chan saying that he was coming with the applicant and that Chan should wake up and wait for them. When Ip and the applicant arrived, they took a bottle of corrosive fluid, some cups and paper bags from a car and placed them next to the front door of the house. The applicant told Chan that those items would be used to blind the son of Wan Hok-him.

26.At 3 p.m. on 16 January 2004, Chan and Ip drove past Hing Lung Real Estate Company and then to Mok Sau Chuen School, which was 10 to 20 metres from Hing Lung Real Estate Company, where Ip said it would be the best place to wait for the victim to go off work.

27.According to Chan, in the course of the journey, Ip, for the first time, suggested that the wife of the intended victim (“the wife”) would also be attacked. Chan said he was shocked at the suggestion, as the applicant had only mentioned the attack on the son.

28.At Chan’s insistence, they returned to the house to clarify the matter with the applicant. When Chan asked the applicant if the wife were to be attacked, the applicant said, “Yes, it would be done to the wife as well.” When Chan indicated that it would be difficult for him alone to attack two people, the applicant took Ip aside for a talk and Ip then said that he would come along as well.

29.In the presence of the applicant, Chan and Ip poured corrosive fluid into two cups and put caps on them outside the house before they drove to the Mok Sau Chuen School. They also agreed that Ip was to attack the man and Chan was to attack the wife.

30.According to Chan, they carried out the attack when the man and the woman, whom they thought to be the targets, were putting things into the back of a vehicle. Ip pulled back the man’s hair and poured the corrosive liquid onto his face and Chan then threw the liquid inside the cup he was carrying in the face of the woman before they fled and disposed of the cups. Chan also said he saw Ip washing his hand with a water-hose in front of a garage. Chan said he himself suffered some acid burns on the face, wrist and back of the hand.

31.After the attack, Chan and Ip returned to the applicant’s house and they told someone to burn their clothing and applied ointment to their injuries before Chan returned to his mother’s place in Tai Yuen Estate.

32.The next day, according to Chan, the applicant called him and said, “This is fucking troublesome, it was wrongly done. It was inconvenient to talk about it over the phone, come over.”

33.Chan went to the applicant’s house at night after taking a rest and the applicant told him that there would be no payment as they had attacked Wan Hok-lim’s daughter and her husband instead of his son and his wife.

34.After the applicant was arrested, the police interviewed him on 2 March 2004.

35.During the interview, the applicant mentioned a meeting with Wan Hok-lim in early January 2004 when Wan Hok-lim complained about his son (“Wan Hang-ping”) and daughter-in-law (“Cheung Ching”) being very unfilial and he further told the applicant that if someone wanted to teach his son a lesson, there was no need to “give him face” and that he would even offer a reward. The applicant said that he told Wan Hok-lim that he would ask around.

36.The applicant said he left his mobile phone number to Wan Hok-lim so that he could be contacted. On or about 10 January 2004, Wan Hok-lim contacted the applicant and they had tea when Wan Hok-lim again said “his damned son was ungrateful to the extreme” and that he wanted to ask someone who was cash-strapped to teach him a lesson by beating him blind.

37.Wan Hok-lim telephoned the applicant again the next day to inquire if he could find someone to teach his son a lesson and the applicant then told “Ah Lung” i.e. Ip about it, saying that if he was cash strapped, he could approach Wan Hok-lim.

38.According to the applicant, Ip said he also had grudges against Wan Hang Ping and he “wanted to get one more person to go with him to check him out and let out some steam”. The applicant suggested that if Ip wanted to take it up, he should contact Wan Hok-lim. Ip responded by saying, “Why not let me earn his share of money by teaching his son a lesson.”

39.The applicant said he did not want to be involved, but nevertheless told his two friends, Chan and Chow Kin-sang about it, saying that he was just a middleman and that if they wanted to do it, they should contact Ip.

40.On about the 16 January 2004, Ip contacted the applicant saying that he wanted to teach the son a lesson as he also had grudges against him. The applicant said he would not take part, but would ask two friends if they would do it with Ip.

41.The applicant claimed that he had advised Ip, “Stop when it should be”. The applicant also said that on the day of the attack, he saw Ip and Chan carrying pipe-cleaning fluid or nitric acid, and he advised them not to go too far and “it would cause death to someone” as they were carrying some very dangerous stuff.

42.The applicant further said during the interview that when he heard about the attack, he accused “them” of not having regard to the consequences. He said he did not want to talk with them about the incident, as he did not want to be involved. The applicant appeared to suggest that Ip had misunderstood him and had gone too far.

43.The applicant also said that after the incident, Wan Hok-lim told him that it was his nephew who was splashed with corrosive fluid.

The Defence Case

44.The applicant, when giving evidence in court, accepted that the answers he gave at the interview were given freely and voluntarily and that they were true. He adopted what he said at the interview as part of his evidence. The applicant, however, suggested that Chan had lied to wrong him.

45.The applicant said that he built his house, but Ip would only give him rent when he was employed. He said Chan had also been living there nine to ten months before January 2004, as he had nowhere to live.

46.The applicant said his relationship with Chan was poor, as Chan had taken his younger brother to consume cough syrup, and his younger brother ended up in a psychiatric institution. He also said he had scolded Chan and Ip for cheating public assistance by making false claims for rental assistance.

47.The applicant said he knew Wan Hok-lim as the district councilor and the boss of Hing Lung Realty Company when he helped him to mediate a dispute, and in early 2004, he telephoned to congratulate him on his election as the Deputy Chairman of the Tai Po District Board.

48.According to the applicant, Wan Hok-lim telephoned him in early January 2004 and at a subsequent meeting, Wan Hok-lim asked him if he was involved in young kids seeking “tor tei” fees from his son’s construction site. The applicant said he was not but he guessed that it was Ip who had been arrested in connection the incident.

49.Wan Hok-lim then accused his son of being disobedient and ungrateful and suggested that people needed not give him face and he would be more than happy if his son could be taught a lesson, although he did not mentioned that he wanted his son to be blinded.

50.The applicant said he tried to discourage Wan Hok-lim from his train of thought and suggested that it would be best for Ip to contact Wan Hang-ping directly in relation to the “tor tei” fees.

51.The applicant said he contacted Ip to ask about the “tor tei” fees. When Ip said it was a trivial matter, the applicant told Ip to contact Wan Hang-ping to sort out the matter and he also told Ip that Wan Hok-lim was on very bad term with his son.

52.The applicant said at a meeting three to four days later, Wan Hok-lim asked him about the progress of the “tor tei” fees matter between Ip and his son. When the applicant said he had not paid attention to the matter, Wan Hok-lim said his son was ungrateful and was a “bastard”. Wan Hok-lim even said, “If there is anyone in need of money, then he can teach my son a lesson. I can pay some money” and that it would be best if his son could be beaten until he was blind.

53.The applicant said he again tried to discourage Wan Hok-lim and said that there was no need to do anything so extreme. The applicant further suggested that the problem would disappear after Wan Hok-lim had several nights’ sleep. The applicant said Wan Hok-lim did not suggest that his daughter-in-law should be punished.

54.The applicant said subsequently Wan Hok-lim telephoned him again asking if he could find someone to teach his son a lesson, and he replied, “Let me see”. It was suggested that when the applicant said in the interview that he would ask around to see if he could get someone to teach the son a lesson, it was just a slip of the tongue.

55.The applicant admitted that he had spoken to Ip about two matters, first that Wan Hok-lim was unable to mediate in the “tor tei” fees matter, and second that Wan Hok-lim wanted someone to beat up his son until he was blind.

56.The applicant said he was just chatting around. He also said that when he was talking to Ip, Chan and Chow Kin-sang about the attack on Wan Hok-lim’s son, he never intended what he said to be taken seriously, which was different from what he said during the interview.

57.However, the applicant admitted that Ip had asked for his help in looking for somebody to carry out the attack and he had spoken to Chan and Chow Kin-sang about it although he said he only meant it as a “joke” that he did not expect what he said to be taken seriously.

58.The applicant denied the suggestion that he had gone with Ip to buy the corrosive fluid. He also denied suggesting that the corrosive fluid should be used to blind Wan Hing-ping or Cheung Ching.

59.The applicant said when he heard about the attack, he was worried because he thought that Ip and Chan had misunderstood what he had told them and had wrongly believed that they could make money by blinding Wan Hang-ping.

60.The applicant denied telephoning Chan the day after the attack that as they had attacked the wrong people, he would not get paid.

61.In gist, the applicant was saying that in so far as Chan thought that he had asked him and Ip to launch the attack, Chan had misunderstood him.

The Judge’s Summing Up

62.Apart from the undisputed evidence of the attack on the three victims and the injuries they suffered, the judge detailed the evidence of Chan and the contents of the applicant’s record of interview. The judge also took the jury carefully through the applicant’s evidence and compared his evidence with the contents of his record of interview.

63.The judge reminded the jury that they could accept part of a witness’s evidence and reject the other parts. The judge reminded the jury that they must consider all the evidence and suggested to them, “Defence evidence sometimes casts a doubt on the prosecution case. Sometimes it even strengthens the prosecution case”.

64.The judge told the jury that it was open to them to infer the applicant’s guilt from the admissions he had made in the interview, which he had adopted as part of his evidence.

Grounds of Appeal

65.Mr Griffths suggested that the prosecution case in respect of all four charges substantially depended on the evidence of Chan and it was wrong for the judge to suggest to the jury that they could accept part of his evidence and reject the other parts when it was Chan’s evidence and the applicant had given the instruction for Wan Hang-ping and his wife to be attacked.

66.Mr Griffiths emphasized that the applicant, during the interview, had denied any encouragement, involvement or association with the attack on the victims.

67.Mr Griffiths submitted that the four charges against the applicant should stand or fall together and that the judge should so direct them. In so far as the jury found the applicant guilty on three charges, but not guilty on one charge, Mr Griffiths suggested that their verdicts were inconsistent.

68.Mr Griffiths submitted that the judge was wrong to tell the jury, “Defence evidence sometimes casts a doubt on the prosecution case. Sometimes it even strengthens the prosecution case”. He complained that the judge had effectively invited the jury to treat the prosecution and defence evidence in an identical manner.

69.Mr Griffiths suggested that the judge ought not direct the jury that it was open to infer the applicant’s guilt from the admissions he made at the interview without explaining to them adequately the effect of the applicant’s admission.

Discussion

70.The general principle with regard to inconsistent verdicts by the jury is succinctly set out in HKSAR v Chan Shek-wai (unreported, CACC 472/2001) when Stuart-Moore Ag CJHC said at p 11 of the judgment of the court:

“So far as general principle is concerned, the burden of showing that verdicts are inconsistent falls squarely upon an appellant. Furthermore, not only must inconsistency be established but this must be shown to have been such as to call for interference by an appellant court. In R v Durante [1972] 56 Cr App R 708 at 714, the court adopted a passage taken from R v Hunt [1968] 52 Cr App R 580, which cited the words of Devlin J (as he then was) in the unreported case of  Stone, namely:

‘When an appellant seeks to persuade this Court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.’”

71.In HKSAR v Chan Kai Lam (unreported CACC 311/2003), this Court suggested a robust approach in dealing with an appeal based on alleged inconsistency in verdicts by referring to the following passages from leading authorities on the subject:

“To succeed the appellant must show, firstly, that the verdicts are logically inconsistent, secondly, that they are so inconsistent as to demand interference by an appellate court – i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained.

All of these directions and those to which we have earlier referred, serve to illustrate yet again the importance of according respect to the verdict given by a jury. Having said that, obviously if the verdict amounts to what can effectively be described as nonsence, then it cannot be allowed to stand.”

72.We agree with the written submission of Mr Zervos SC, for the respondent, that the jury’s verdicts were entirely explicable having regard to the evidence on the 1^st, 3^rd and 4^th charge when comparing with that on the 2^nd charge.

73.Chan gave clear and unequivocal evidence that the applicant had offered him a reward to blind Wan Hok-lim’s son with the use of corrosive fluid and that the best time to carry out the attack would when the victim was leaving his place of work at Hing Lung Real Estate Company. Chan said that the applicant took a bottle of corrosive fluid and other items from the car and said that they would be used to blind the intended victim.

74.When Chan indicated that it would be difficult for him to do the job alone, the applicant had a discussion with Ip and Ip then said he would come along as well. Indeed, Chan and Ip prepared for the attack by pouring the corrosive fluid into cups in the presence of the applicant.

75.After Chan and Ip had carried out the attack, at the wrong target as it turned out, the applicant complained to Chan and said there would be no payment because of the mistake.

76.Although the applicant tried to distance himself from the actual attack, the admission he made during the interview clearly involved him in the attack. The applicant described how Wan Hok-lim repeatedly asked him to get someone to teach his son a lesson by “blinding” him and that he was prepared to offer a reward.

77.Having promised Wan Hok-lim “to ask around”, the applicant said he then told Ip about it and said if he was cash strapped, he could approach Wan-Hok-lim. Despite the fact that Ip had expressed the interest of trying to earn the money by teaching Wan Hok-lim’s son a lesson, the applicant did nothing to dissuade him, but instead told Chan and Chow that if they wanted to do it, they should contact Ip.

78.The applicant expressly told Ip, on learning that Ip had intended to launch the attack, that he would ask two friends if they would do it with Ip. The applicant admitted that he was present when Chan and Ip were preparing for the attack just outside his house. The applicant further admitted that he contacted Chan and Ip on hearing about the attack.

79.The jury’s rationale for acquitting the applicant on the 2^nd charge whilst convicting him in relation to the other charges is, on a reading of the summing up and on viewing the evidence as a whole, entirely understandable.

80.The jury had been warned of the possible motivation that Chan had to exaggerate or indeed lie and it is likely that the jury was unwilling to accept the evidence from him, which was unsupported by admissions made by the applicant in his interview.

81.We note in this regard the judge’s reminder to the jury that the applicant’s own evidence supported that of Chan in a number of important respects most particularly that what Wan Hok-lim wanted was somebody to blind his son; and, further, that the video interview evidence was, possibly, significant in a second way, namely that it was evidence independent of Chan that the applicant had counseled and procured the commission of the offence which Wan Hok-lim wished to be carried out.

82.The summing up deals in detail with the applicant’s own evidence of the several meetings which he held with Chan and Ip, in each of which the object mentioned was that of teaching the son a lesson. It was the son who was to be beaten until he was blind and, in particular, we note the following reminder in the summing up of the evidence of the applicant that “although Wan Hok-lim had complained about his daughter-in-law at the meeting, he had not suggested that the daughter-in-law be taught a lesson or attacked.”

83.It was clear therefore, from the verdict returned, that the jury found that Wan Hok-lim had wanted harm done to his son rather than to his daughter-in-law; and that it was apparent on any view that the applicant had counseled an attack on the son but that the injury was not prepared to conclude that Chan’s evidence of specific encouragement by the applicant to attack the daughter-in-law was correct.

84.This analysis was supported by the question, which the jury put to the court after it had retired to deliberate:

“Question for the 4^th count. Given that the members of the jury have an evidence to believe that the defendant did conspire together with Chan Ying-kin, IP Kam-lung and other persons unknown to unlawfully and maliciously throw upon Wan Hang-ping sulphuric acid but are not sure that he did conspire with the others to throw upon Cheung Ching the acid, could the charge of the 4^th count still stand?”

85.The jury’s approach was a benevolent one to take in favour of the applicant, but the jurors were entitled to give the applicant the benefit of the doubt, as they were instructed.

86.Properly analyzed, there was no irrational inconsistency in the verdicts of the jury. The applicant’s acquittal of the 3^rd charge was not inconsistent with his conviction on any of the other charges.

87.Our conclusion in this regard disposed also of the second ground of appeal, which was that the judge ought to have directed the jury to the effect that if they acquitted on any of the charges against the applicant, they should follow suit on all the other charges. The third ground, to the effect that no reasonable jury properly directed could have arrived at these conclusions, also failed.

88.There was then a complaint that the judge told the jury that it was open to them to accept part of what a witness said and reject the rest.

89.This is a general, standard and correct direction, which relates to the approach of the jury to the evidence of witnesses. When the judge came to the evidence of Chan himself, he adequately warned them of the dangers of relying on his evidence and said, “before you rely on his evidence in this trial, you should be sure that he is giving truthful evidence…”; that his evidence should be approached “with considerable caution and [you should] see how far it is supported by other evidence”. We saw no misdirection or any danger of an injustice in the direction of which the applicant made complaint.

90.Mr Griffiths complained that in giving the direction to the jury, the judge effectively invited the jury to treat the prosecution evidence and the defence evidence in the same manner.

91.It was difficult to know what was meant by that assertion. A direction of the kind given is logically accurate, and it is permissible so long as the judge makes it clear that the burden of proof remains throughout on the prosecution and that even if the defence evidence is rejected, it is for the prosecution to prove its case beyond a reasonable doubt.

92.For the reasons we have provided, that direction was, in the context of this case, a particularly appropriate one to give. The judge took considerable trouble to emphasize that the burden of proof remained always on the prosecution and that the applicant did not have to prove his innocence.

93.The suggestion that the judge had invited the jury to treat the evidence of the prosecution and that of the defence in an identical manner was also unfounded.

94.Contrary to Mr Griffiths’s suggestion that the applicant had denied any encouragement, involvement or association with the attack, the applicant, during the interview, had admitted that he had told Ip that if he was cash strapped, he could approach Wan Hok-lim after Wan Hok-lim expressly said that he wanted his son to be blinded.

95.The applicant further admitted that he had told Chan and Chow to approach Ip if they wanted to do it. The applicant even admitted that he was present when Chan and Ip were actually preparing for the attack with the use of corrosive fluid. What he did was inconsistent with his suggestion that he did not want to be involved.

96.As the applicant had given evidence, and in doing so, had adopted the exculpatory parts of the interview, the issue for the jury was whether his evidence was or may have been true. There was no need for the judge to specifically direct the jury as to those exculpatory parts (see R v Vu Trong Minh [1995] 1 HKCLR 24 and HKSAR v Kwan Chi Wing, (unreported CACC 201/2008).

97.In our view, the direction to the jury was comprehensive, fair and proper. None of the matters put forward by Mr Griffiths caused any concern. The applicant was rightly convicted of the 1^st, 3^rd and 4^th charges and there was nothing unsafe or unsatisfactory about any of the convictions. The application for leave to appeal against conviction was therefore dismissed.

Sentence

98.The applicant procured the services of two young men, with promise of a monetary reward, to throw corrosive acid at the intended victim with the expressed instruction to blind him. What the applicant did is hideous and deserves the most serious condemnation.

99.The applicant’s instruction was faithfully and ruthlessly, although mistakenly, carried out when according to Chan, Ip pulled back the hair of Mr Wan and poured corrosive liquid onto his face, resulting in the most serious facial and other injuries as depicted in Mr Wan’s photographs. The adverse physical and psychological impact of those injuries on Mr Wan is tremendous.

100.Acid throwing cases are bad enough in themselves, but this was a particularly bad case of its kind. The judge remarked, not surprisingly, that in all the years he had been involved in the law, he could not recall an offence of more cold-blooded and unmitigated wickedness than that committed by the applicant.

101.The judge referred to the fact that Mr Wan’s injuries were appalling, requiring numerous surgical operations and resulting in severe disfigurement and impairment to eye sight with which this unfortunate victim, an entirely innocent man leaving after a day’s work, would have to live for the rest of his life.

102.As one might expect, Mr Wan suffered post dramatic stress disorder and continues to suffer emotionally from his disfigurement and disabilities. The judge further added that as aspect of the case which greatly aggravated culpability was the fact that this was not an attack arising from any personal grievance, but was an attack on a total stranger for financial reward – a contract to blind; by which the judge did not for a moment seek to lessen the gravity of an attack carried out for some personal grievance but by which he sought to distinguish this case from others.

103.That distinction could readily been seen by comparing the facts underlying the cases which Mr Griffiths had prayed in aid in suggesting that the starting point adopted in this case was manifestly excessive. Those cases, R v Wong On Lin [1995] 1 HKCLR 224, HKSAR v Wong Siu Kwan (unreported CACC 166/2001), HKSAR v Wong Lai (unreported CACC 134/2002, and HKSAR v Lau Bo-ki (unreported CACC 412/2005), did not help the applicant at all for, save for one, they are all cases involving distressed and anguished members of love triangles, a proposition altogether different from the premeditated contract attack represented by the facts of the present case.

104.The last case cited Lau Bo-ki (supra) was a case in which acid was poured into a flat under a door, resulting in the death of an old lady. Those facts are quite different from the facts of this case.

105.Finally, Mr Griffiths suggested that the judge had not sufficiently considered that the sentence Chan received on the 2^nd charge only reflected a starting point of 15 years. Mr Griffiths appeared to suggest that the applicant’s culpability was less than that of Chan or Ip. We did not agree.

106.We had not been presented with the transcripts of the sentencing process in Chan’s case, so we were not armed with the facts, which the sentencing judge in that case took into account. Be that as it may, and quite apart from the fact that it was a sentence imposed by a different court on a different occasion, the fact is that Chan was recruited by the applicant and the applicant was the man to whom the instigator of the whole cruel scheme turned as someone who would ensure that it was put into effect. The difference in the starting points was therefore justified.

107.The overall sentence of 18 years’ imprisonment imposed on the applicant, albeit not a lenient sentence, was fully justified. We did not find the total sentence of 18 years’ imprisonment manifestly excessive.

108.Quite apart from the delay on the part of the applicant in applying for leave to appeal against sentence, there was no merit in his substantive grounds of appeal against sentence. The application for leave to appeal against sentence out of time was therefore also dismissed.

Mr Kevin P Zervos, SC, DDPP & Ms Irene Fan, SPP (Ag.) of the Department of Justice for the Respondent.

Mr John Griffiths, SC & Mr Simon S M Yip instructed by Messrs Francis Kong & Co.