CRIMINAL CASE NO. 144 OF 2010
CRIMINAL CASE NO. 382 OF 2010
COURT: The following defendants appear before me today to be sentenced in respect of a charge of conspiracy to throw corrosive fluid with intent to do some grievous bodily harm, contrary to section 159A and 159C of the Crimes Ordinance, and section 29(c) of the Offences Against the Person Ordinance, Cap. 212.
The 1st defendant, Kay Sik-hong, Billy, was the 1st defendant on the original indictment. The 2nd is Tang Chong-hou, Leonardo, who was the 2nd defendant on the original indictment and Ma Shun-yick, who is under a separate case No. 382/2010. I do not propose to go through the background facts because I have already set them out and they will appear in my reasons for sentence.
The 1st defendant, Kay Sik-hong, Billy, was arrested on 21 December 2009. He admitted that he had been recruited in middle of October 2009 by “Ah Ki” on behalf of another person, a lawyer, to carry out an attack on a person connected with a court case. He was to be paid $30,000 for his role in carrying out the attack. On 18 October 2009 he telephoned Ah Ki and was told the identity of the intended target and he received $3,000 as a deposit against his payment.
On 19 October, together with Ah Ki, he went to the area around the District Court the and Shui On Centre. Ah Ki showed him a bottle of black liquid concealed in a garden and told the defendant that was a mixture prepared by “Kit Chai”. On that day the 1st defendant was introduced to two men and told by Ah Ki that they were “our people”. Their attempts to locate the victim at his office in Duddell Street in Central were not successful.
On 20 October 2009, directed by Ah Ki, the defendants went back to the District Court and up to the 28th Court notice board. There the defendant saw the chosen victim walk to the vicinity of the same notice board. He telephoned Ah Ki who said that Kit Chai was the contact person and he would call the 1st defendant later. Kit Chai did telephone and told the 1st defendant not to delay the attack any further. The defendant went into the court room and saw the victim and the defendant of the case that was being tried in the District Court and he also saw a man he had met in connection with the incident earlier in the vicinity of the court and also entering the court. Soon afterwards the defendant in DCCC84/2008 walked past him and told him to hurry up or he, the defendant in that case, would go to jail. Later the same day there was further discussion between the defendant and Ah Ki about that defendant.
On 23 October 2009, having expressed his reluctance to take part in the assault to Ah Ki and Kit Chai and associates of the defendant, Jacky Ma Shun-yick offered to find a replacement for him and he, the 1st defendant, offered to return the $30,000 he had received.
On 26 October 2009, Ah Ki and the 1st defendant arranged the attack for 27 October 2009. The 1st defendant met Ah Ki and they arrived at the court soon after 9 am. In the park near the court the 1st defendant was introduced to “Ah Ho” and “Ah Wai” who appeared to be associates of Jacky Ma. Ah Ki telephoned the 1st defendant to tell him where the bottle of black liquid was in the garden. Ah Ho located the bottle and when the liquid was stirred with a stick, the 1st defendant saw smoke being emitted from the bottle.
At about 1 pm the 1st defendant saw Ah Ho run up to the victim and throw the liquid at him. The victim fell down and sat on the steps. The 1st defendant then left the scene with Ah Ho and the others, running towards the Wanchai Fire Station. Later, the 1st defendant said he heard that the victim had not been injured badly enough and he had been able to continue with the case. He said he did not receive any reward or make any profit from the conspiracy.
On 2 November 2009 the 1st defendant telephoned the Wanchai Police Station hotline notifying the police about the principal culprits involved in the case and later he took part voluntarily in the reconstruction of the case. He entered a plea of guilty to the offence on 15 February 2011. The Summary of Facts was admitted, but because the trial of other defendants was proceeding, those facts were not made public at that time.
A second charge of conspiracy to pervert the course of justice arising from the same facts was ordered to remain on file, not to be proceeded with without leave of the court or the Court of Appeal.
The 1st defendant was born in Macau on 23 September 1966 and is now aged 44. He has a lengthy and very serious criminal record. Between May 1984 and November 1993 he was convicted of offences of theft, operating unlawful gambling, going equipped for stealing, various offences of violence, possession of DD, conspiracy to rob and going equipped for stealing and various wounding charges.
In May 1984 he was dealt with for seven counts of robbery at the High Court and sentences of 10, 8 and 15 years were passed in respect of those robberies. Accompanying those charges were six charges of possessing a firearm, which fetched a sentence of 6 years each. There were two charges of possession of an imitation firearm, 6 years each. There were two counts of discharging arms without reasonable excuse, 6 years on each. There were three counts of wounding with intent to cause grievous bodily harm, which was sentenced at 8 years, 18 years and 10 years. There was one count of attempted robbery. There was one count of possession of arms and ammunition without a licence, which he was sentenced to 8 years’ imprisonment.
Although those sentences were ordered to be partly consecutive, the total must have been quite significant and this defendant cannot have been out of prison for a very long period before he took part in the present offences.
In mitigation, this defendant relies on his remorse, which is submitted as evidence by his report to the police and the information he gave after the attack. While it is accepted that he did call the police, it is not accepted that his information was what led to the arrest of the group of defendants. He has, however, given a non-prejudicial statement and was to be used by the prosecution to give evidence at the trial of the co-defendants. He offered to give evidence against the instigator if and when charges were laid against the instigator. It is submitted that he was in a lower position than the instigator but, nevertheless, from the facts it is clear that he took a major and active role in the organising of the incident.
The court was also asked to consider the aid that he rendered in prison to an inmate who was ill. It is confirmed by the Correctional Services Department that there was an incident where he reported that another inmate was ill which led to the other inmate being put into hospital for observation. However, I do not consider that this is particularly deserving of a special discount to reward inmates for simple humanitarian behaviour, as to open the floodgates to deliberate attacks on other inmates. It has been suggested that his evidence and his assistance is so significant that he should be given a 50 per cent discount.
In respect of the 2nd defendant he entered a plea of guilty to the 1st charge on 15 February 2011. He admitted a Summary of Facts but they were not made public because of the risk of possible prejudice to those co-defendants who were going to trial. He confirmed his plea and confirmed the Summary of Facts on 11 March 2011. It was indicated before that date that he was to give evidence at the trial. The 2nd charge that he faced originally was ordered to be left on file not to be proceeded with without leave of the court or the Court of Appeal.
The defendant was arrested on 21 December 2009 near the Kwai Fong MTR Station at about 3 o’clock in the afternoon. Subsequently he admitted, under caution, that in September 2009 he had been recruited by Ah Yick to carry out an attack upon a person for a reward of $15,000. The defendant recruited Ah Fai to join the plan and was going to pay Ah Fai $5,000 of his reward money.
He and his recruiter attended the Wanchai District Court on 27 October 2009 and met Ah Yick, who is Ma Shun-yick. They were instructed to go to the courtroom on the 9th floor and he and Ah Fai did so and then returned to the ground floor. They met Ah Fai in the park by the court building and this defendant was introduced to another defendant. That defendant produced a bottle of liquid from a plastic bag and gave it to Ah Fai, telling him to pour it into a paper cup. This defendant obtained a paper cup from Café de Coral and Ah Fai poured the liquid into the cup. The victim had been pointed out to D2 and it was he who poured the liquid from the cup onto the victim. He left the scene immediately through the Wanchai MTR Station.
The 2nd defendant said that he had been told that the target of the attack was a golden finger, which is the slang reference to an accomplice who is giving evidence against a defendant being tried in court. Subsequently he identified various items of paraphernalia that were connected with the attack which the police had seized from the scene in the vicinity of the attack.
This defendant was born in Macau on 6 September 1981 and is now aged 29 years. He has a criminal record, starting in 1997. They were mainly offences of dishonesty, theft, attempted theft and possessing and offering for sale infringing copies of copyright works. He has also one conviction for possession of offensive weapon in 1997 for which he was placed on probation.
A large number of his offences have been dealt with by DATC orders, thus indicating his likely drug addiction. Most offences were dealt with in the Magistracy, but in 2006, for an offence of attempted theft, he was sentenced to 14 months in the District Court and his last recorded offence was in July 2008, again, for an attempted theft. He was sentenced to 20 months’ imprisonment. It cannot have been long after he left prison for that last offence that he became involved in the present one.
I was advised, in mitigation, that he lives with his father and seven-year-old son, his common law wife having deserted the family five years ago. He was recruited by Ma and was promised a reward although he only took part of that reward. He said he was told to carry out the attack by others. He was very remorseful for having caused the injury.
It is submitted that he showed his remorse by pleading guilty on the first day of the trial and, after the second pre-trial review, he had indicated that plea. He indicated also that he was willing to give evidence for the prosecution, if necessary, but the prosecution do not need his assistance, presumably because he has limited knowledge of the whole incident. It was requested that his sentence be as lenient as possible so that after his release he could look after his son and his father.
In respect of Ma Shun-yick, Jacky, he pleaded guilty at committal on 29 October 2010 to the charge of conspiracy to throw corrosive fluid. On 15 February 2011 he indicated that he wished to reverse his plea but, after further reflection, confirmed it on 1 March 2011. He confirmed also the facts that he had admitted at committal. He had also faced the 2nd charge of conspiracy to pervert the course of justice but on his pleading to the 1st charge the prosecution did not proceed with the 2nd charge, which was left on file.
On 22 December 2009 the police interviewed the defendant under caution. He told them that on 25 October 2009 he had spoken to Kay Sik-hong, Billy, by telephone. He asked him to find someone to do a job of splashing paint onto a person so this defendant telephoned Tang Chong-hou who agreed to do the job but wanted more details. The defendant contacted Billy who said that the job was to splash an expatriate lawyer with paint. Payment of $30,000 was offered by a lawyer, Kong, who was the defendant in the District Court case and the aim was to prevent the expatriate lawyer from appearing in court on that case.
This defendant arranged for Tang Chong-hou to meet Billy on the morning of 27 October. Following the instructions of Billy, the defendant told Tang Chong-hou to prepare the fluid and anything else he thought necessary. Lam Wai-sai joined them at the meeting. Billy had arranged for the group to meet Sze Ngan-ki who would show Lam Wai-sai and Tang Chong-hou where the expatriate lawyer could be found inside the building. Lam and Tang decided to wait. Lam Sai-fai had a paper cup filled with black fluid to stir with a twig.
This defendant, Billy, Tang Chong-hou, Lam Wai-fai and Sze waited in the vicinity of the court. At about 1300 hours the defendant returned to the group having been to eat at a nearby restaurant. He heard Billy tell Tang the expatriate man was coming and that he should take action. The defendant saw Tang throw the fluid in the paper cup onto the expatriate male. The defendant and the others immediately left the scene. The defendant admitted and accepted that he conspired together with other persons to throw corrosive fluid on the victim with intent to do him grievous bodily harm.
The antecedents statement showed that the defendant is aged 38 years. He had form 2 education. He had worked as a decoration worker and an air-conditioning worker. He was a drug user and/or addict and he had parents and five brothers as family. He was divorced.
I had put before me a file very carefully put together by Miss Wong setting out the matters that were relevant, in her view, to this case. She pointed out that there was no tariff for these offences, that her client was not the prime mover, that he had not prepared the corrosive fluid, that the strength was not pure sulphuric acid and that the degree of harm, as a measure of the intent, was not in the worst case scenario. This defendant is currently serving a 6 year sentence for trafficking and it is suggested part of his sentence should be ordered to be concurrent.
The prosecution confirm that this defendant has given useful information, that he cannot substantively be called as a witness although he has given a non-prejudicial statement and that suggested that he is entitled to a substantial discount in the same manner as the 1st defendant claims he is.
There are three general scenarios for this type of offence. One is the result of a love triangle, where the spurned spouse or partner wreaks revenge on the person who is perceived as being the cause or the reason for the breakdown of the relationship or loss of consortium. The anger of the perpetrator is both punishment for the emotional damage and for ensuring that the victim will not offend again in the same manner, usually by ensuring that the victim is disfigured or incapacitated.
The second type of offence is particularly vicious because it is carried out in cold blood with a motive of revenge or punishment, to enforce a threat or to ensure the removal of a person who is seen as a blockage or an encumbrance. Such attacks are in the nature of contractual arrangements carried out by a person or persons who are recruited and paid for taking part in the venture. Such attacks are usually well planned and calculated, the perpetrators rarely have any personal connection with or knowledge of the victim, apart from what they learn or are told in preparing for the attack.
A third scenario occurs when a person, who may or may not be mentally disturbed, tries to damage as many people as possible by indiscriminate throwing of large quantities of corrosive substance, for example from a roof or a balcony, with the aim of injuring as many people as possible. This is the least common scenario but in some ways the most damaging because of the large numbers of people who may be affected. It is also very difficult to guard against it or to trace the perpetrators because of the random nature of the attack.
The present offence is of the second type, which must be regarded as a particularly vicious form of attack because those taking part act solely as mercenaries without the most rudimentary moral justification or any rationalisation other than their own greed or, in some cases, gaining loyalty.
Although there are a number of cases referable to this type of offence, most of them are of little assistance in determining sentences because the cases are fact specific and there are no tariff or guideline cases. There are a couple of cases which have a more general aspect. One of them is HKSAR v Wong Siu Kwan which covers a number of general principles and extracted from various cases up to that date, which was 2001.
In HKSAR v Lam Ming Wing CACC152/2007, a case of the second type was dealt with although that had very much more serious results for the victim than the victim in the present case. The Court of Appeal in Lam Ming Wing dismissed an appeal against an 18 year sentence for the offence of which the judge said he could not recall an offence that was more cold blooded or of greater unmitigated wickedness. There are a number of matters in that case that are similar to the present one.
In the second and third type of case I was referred to the judge’s reasons for sentence in HKSAR v Lo Ching Ho, HCCC135/2010. There, Mrs Justice Barnes set out the relevant factors in sentencing an offender who had thrown a bottle of corrosive fluid from the staircase landing between the 2nd and 3rd floors of a building and had injured six passers-by in the street below. That offender had a personality disorder but was not mentally disturbed or insane and knew what he was doing. He was sentenced to 13 years’ imprisonment.
A number of cases were considered in the course of those reasons. Again, they are of limited use in the second type of case, which is what I am dealing with, but it is helpful to have an overview of the cases relevant to the third scenario but which is likely to become more common in future. Some principles, in any event, are general application.
This was a very serious offence, as is shown by the fact that the maximum sentence for an offence of this type is life imprisonment. The defendant has pleaded guilty to conspiracy to throw corrosive fluid. The conspiracy attracts the same sentence as the substantive offence. The starting points for sentence for this offence, which have been upheld or adopted by the Court of Appeal in Hong Kong, range from the high point of 18 years which was HKSAR v Yu Wai Chiu although the case of HKSAR v Lam Ming Wing also has an 18 year sentence and it ranges from 18 years to approximately 2 years’ imprisonment in R v Ngai Kwok Hing CACC514/1992 which is unreported.
In each case, the factual scenario will vary as to the nature of the attack, the motive for the attack, the spontaneity of or the degree of planning for the attack, whether there is a real and specific intention to cause injury, and other individual features which might bear on the culpability of the offender or offenders.
In the present case, the victim was targeted because of his employment as a prosecutor by the defendant that he was actually prosecuting and who was effectively the guiding light for the attack. The attack appears to have been directed against the victim in his role as prosecutor rather than because of any personal connection with any of these defendants, and it was intended that he should be injured sufficiently to prevent his continuing with the prosecution.
The corrosive fluid chosen was sulphuric acid mixed with a paint additive, and analysis by the Government Chemist confirmed how harmful that could be to the human body. The victim suffered pain and damage to his eyes and the skin of his face. After a lengthy period, it was known that the sight of his eyes was not damaged permanently, nor did he suffer any permanent scarring as a result of the attack.
However, for offences such as this, the severity of the injury bears little relevance to sentence. Section 29 of the Offences Against the Person Ordinance states clearly that the offence is committed whether injury is suffered or not.
In this case, there was premeditation and planning involved. Those organising the attack required the prosecutor to be put out of action so that the trial would stop, and it appears that, eventually, the method of disabling the prosecutor was left to the underlings to decide. A number of persons were recruited to carry out the various roles, some worked as lookouts, some to identify the victim, and others were chosen or volunteered to throw the fluid.
The highest rate of payment disclosed was the sum of $30,000, which was the sum for which D1, Kay Sik-hong, had agreed to take part and he received $3,000 as a deposit against that sum.
Another defendant, Lam Wai-sai, was paid 2,500, having been offered 10,000. In another instance the defendant recruited a friend to assist in the operation and was proposing to share the reward money with him. This is the 2nd defendant, Tang. It transpired the 1st defendant did not receive the agreed sum. Lai Kwok-leung was given $3,000 but gave it to Kay Sik-hong. Lee Yin-nam received 2,500 which he spent.
Once the personnel had been gathered together, it was necessary for them to be shown the District Court and to have the target pointed out. That preparation took several days, with visits to the court made on at least two occasions. Initially, the method by which the prosecutor was to be put out of action was a chopping, but that was later changed to the use of corrosive fluid.
To ensure the success of the operation, two persons were deployed to throw the acid. The first cup was thrown by the 2nd defendant causing the victim to sit down on the steps in an attempt to remove the fluid. It was at that point that a second cup of fluid was thrown over the victim, but fortunately the liquid from that cup went only onto his clothing.
All of the defendants said that they left the scene immediately after the fluid was thrown.
This was a cold-blooded, calculated attack by a number of men, all of whom were strangers to the target. There was a specific intent to injure the victim and to ensure that he was incapacitated so as not to be able to carry out his duties as a prosecutor. Some of the defendants were clearly not privy to the whole arrangement, but those who pleaded guilty all knew what was proposed, and made a conscious decision to take a greater or a lesser part in the attack.
Cases of the second type, which this case is, have a commercial or gang nature and mitigation is quite difficult.
Where a person who is recruited by the mastermind or his or her agents agrees to participate in throwing corrosive fluid at a stranger and is to be rewarded for that work in cash by forbearance to enforce an obligation or forgiveness of a debt, and takes part in a venture without knowing or inquiring about the purpose or motive for the attack, and/or without inquiring about the nature, type and strength of the substance to be used, they must be taken, effectively, to have agreed to whatever is done in the course of the attack but cannot excuse their actions to later claim, or what might be termed pseudo mitigation, that they did not know the nature or strength of the substance, were unaware of the purpose of the attack, or the status of the victim and did not receive the promised payment.
Further, it is a matter of chance whether the injuries to the victim were severe with lasting physical or mental damage or whether there has been a full and quick recovery of the victim, as in this case, it is not the result of any act of virtue by a perpetrator and the chief mitigation in this case are the pleas of guilty entered by these three men and they should have a full one-third discount for those pleas.
I return to an earlier case where, in Chan Chi Lung [1989] 1 HKC 70. The facts were comparable to those in the instant case, but the results of the attack on the victim were much more serious. The trial judge, at sentencing, had referred to the crime as “evil and horrible” and went on to say:
“The fact that the result might have been even more serious is a matter of chance and cannot be regarded as reducing the gravity of the offence or your turpitude, nor can the fact that you were carrying out orders.”
He continued:
“Such attacks must be stamped out. The only way is by deterrent sentences that adequately mark the public’s revulsion of such depraved behaviour and are a sufficient deterrent to other young gangsters who may be ordered by their seniors to do such a thing.”
The Court of Appeal commented that, in their view:
“In offences of this nature whether the injury be grave or minor is largely fortuitous and weighs little in favour of the applicant.”
They went on:
“Mr Plowman urges us to take into account that there was no motive for revenge on the part of the applicant, and that he was simply recruited to the task. This is again of no real weight in his favour. Indeed, it might be argued that a cold-blooded hired assailant should be more severely dealt with than a person blinded by passion or jealousy.”
And the court finally commented:
“This was a vile and calculated offence which called for a substantial custodial sentence which would both punish and deter. In offences of this kind, the deterrent effect of a sentence is perhaps of larger moment than in any other class of offence.”
However, it appears that 22 years later the type 2 offence still flourishes as a method in enforcing business arrangements.
I have taken into account the matters put before me in mitigation for these defendants and I accept that all three men are entitled to one-third discount for their plea of guilty. In the case of the 1st defendant and Mr Ma, I am of the view that an additional period is justified for the assistance that they have given but I do not consider that it should be 50 per cent as suggested by Mr McGowan.
In respect of the 1st defendant I take a starting point of 18 years. I discount that by one-third for his plea and I discount that by a further 12 months for his co-operation. No doubt if further assistance is given in relation to any trials, that matter can be looked at again. The total sentence is 11 years’ imprisonment.
In respect of the 2nd defendant I accept that he was not the mastermind. He was the actual acid-thrower and that he was willing to give assistance although it was not required. I take the starting point of 18 years and discount that by one‑third. He is sentenced to 12 years’ imprisonment.
In respect of Mr Ma, although he was not the prime-mover he was very active in the arrangements, and I note that he has given assistance. Again I take an 18 year starting point. I discount that by one-third and give him a further year for the co-operation that he has given. No doubt in his case, too, if further consideration is required, the Executive can deal with it at a later stage. So it is a total of 11 years for Mr Ma and I order that, although strictly speaking it is very much a separate offence, but (in the interest of totality) I order that 1 year of the sentence run concurrently with the sentence he is currently serving.
Please refer to CACC145/2011 and CACC314/2012 for the relevant appeal(s) to the Court of Appeal.