HKSAR v. Hui Chi Wai and Others

CACC000078A/1999

CACC 78/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 78 OF 1999

(ON APPEAL FROM HCCC 433 OF 1997 & 8 OF 1998)

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Coram: Hon Stuart-Moore VP, Mayo VP and Stock JA in Court

Date of Hearing: 31 August 2001

Date of Judgment: 31 August 2001

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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):

1On 20 July 2001, this Court handed down judgment in this case in respect of applications for leave to appeal against conviction. For the avoidance of doubt, since the written judgment does not so specify, the judgment was the judgment of the Court. By that judgment, we dismissed the application of all but the 3rd applicant. We granted him leave to appeal in respect of the murder conviction, allowed the appeal, quashed that conviction, and substituted a conviction on Count 2 for an offence under section 19 of the Offences Against the Person Ordinance, Cap. 212.

2It falls for us now to sentence D3 in relation to Count 2, and to deal with his application for leave to appeal against sentence in relation to Count 3.

3In relation to the conviction on Count 2, we impose the maximum term permitted by law, which is three years' imprisonment. As our earlier judgment makes clear, there is no doubt in our minds that this applicant assaulted Ah Kai with intent to cause him grievous bodily harm but, given the fact that the judge withdrew that option from the jury, we felt bound to substitute a conviction under section 19. D3's conduct was vicious and cruel. He was responsible for what we have described as the Tsap Kwun incident, and he also struck Ah Kai with a folding stool. There can be no question but that the maximum permissible term under section 19 should be imposed and, accordingly, on Count 2, D3 is sentenced to three years' imprisonment.

4As for Count 3, that is the prevention of lawful burial count, there was an application for leave to appeal against sentence but that has been abandoned and, accordingly, it is dismissed. But Mr Percy today asks that the sentence on Count 3 should not be ordered to run wholly consecutively to the sentence that we have just imposed on Count 2. He draws to our attention the many diplomas earned by this applicant whilst in prison. We note the efforts he has made. But we also note that this man took a full part in the plot to obliterate traces of the crime, and in the disposal of the body. This was conduct on the part of all the applicants, including this applicant, involved in that aftermath of the killing, which revealed an horrific disregard for any vestige of decency. It was D3 who fetched bottles of sulphuric acid so that the body could be burned, and who stood guard whilst, for hours on end, the body was burned, and he described in his interview that he was told that at one stage that only the lower half of the corpse was gone whilst other parts of the body remained. Finally, the remains, such as they were, were chucked, like garbage, into a refuse collecting vehicle. The sentence of four years' imprisonment was hardly too long. The suggestion that it should not run wholly consecutively to the term imposed in relation to Count 2 is, in the circumstances we have described, untenable. It must run consecutively to the sentence imposed in relation to Count 2 and we so order, making a total of seven years' imprisonment.

Representation:

Mr Duncan Percy assigned by the Legal Aid Department for D3 (Mak Ka Ho)

Mr A A Bruce, SC leading Mr Simon Tam, SGC, instructed by the Department of Justice for the Respondent