HKSAR v. So Ka Wai and Another

HCCC121/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 121 OF 2012

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT: D1 and D2 were originally charged with the following offences: the 1st count, conspiracy to throw corrosive fluid with intent to do some grievous bodily harm, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 29(c) of the Offences Against the Person Ordinance, Cap. 212; and the 2nd count, conspiracy to do an act tending and intended to pervert the course of public justice, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap. 221.

Both D1 and D2 pleaded guilty to the 1st count, and I found them guilty as charged after they each admitted to the set of Summary of Facts relevant to their individual case.

I also acceded to the prosecution’s application to have the 2nd count left on the court file and not to be proceeded with without leave of the court.

The particulars of the 1st count were as follows:

“So Ka-wai and Chan Lap-tak, on or about the 27th day of October 2009, in Hong Kong, conspired together with Kay Sik‑hong Billy, Tang Chong-hou Leonardo, Lam Wai-sai, Lee Yin-nam, Lai Kwok-leung and other persons, unlawfully and maliciously to throw at or upon Neil Simon Mitchell a corrosive fluid, namely sulphuric acid, with intent to do some grievous bodily harm to the said Neil Simon Mitchell.”

The Admitted Facts

The backgrounds are common to both defendants. The victim, Mr Neil Mitchell, a barrister, was instructed by the Department of Justice to prosecute on fiat a District Court case, HKSAR v Kong Hon Yui Kevin, DCCC No. 84 of 2008. The trial, which was set down for 15 days, commenced on 19 October 2009.

On 27 October 2009, when the victim left the District Court building during the lunch break at about 1 pm, a man holding a paper cup containing fluid ran up to the victim from behind and threw the fluid into the victim’s face. The man then ran away.

When the victim tried to wipe the fluid from his face, a second man ran past him and threw some fluid over the victim. Most of the fluid went over his jacket.

The victim felt a burning sensation in his left eye and mouth. He ran back into the court building to seek help. He poured water over his face and he also went to the washroom to rinse his face and hands. He was later taken to the Ruttonjee Hospital, where he was examined by Dr Wong Mei‑kam. The victim was found to suffer from chemical injury to his left eye, left ear and cheek. His left cornea was hazy, with severe chemical burns, and there was mild redness over his face and lips.

Continuous irrigation was performed, and he was admitted into the hospital. The victim was referred to the Eye Clinic of the Pamela Youde Nethersole Eastern Hospital. Dr Yiu Man-kit found the victim had an alkaline chemically induced injury to the left ocular surface, left ear and cheek. The left ocular surface was the primary site being affected, and presented a pH of 7.5 to 8.0. The victim’s left eye suffered conjunctival damage. The left Lasek flap was grossly oedematous with dark particles present in the inferior fornice.

The victim was treated with saline irrigation of the eye. The Lasek flap dislodged and was found to be broken during the irrigation process. The victim was admitted to the Eye Ward. His condition gradually improved with treatment. By 27 November 2009 - that should be a month after the incident - the left corneal epithelium had largely healed. By 26 January 2010, the victim’s ocular conditions were stable and the best corrected vision was normal.

Police investigation resulted in the recovery of two glass bottles containing some blackish fluid inside a rubbish bin in the West Park near the District Court building. The police also located two paper cups containing blackish fluid in a rubbish bin outside the District Court building. The blackish fluid inside the two bottles was found to contain a concentration of sulphuric acid of 66 per cent and 53 per cent weight by weight respectively. Such high concentration of sulphuric acid is highly corrosive, which would cause severe burn to the skin and permanent damage to the eyes.

D1 was arrested on 28 October 2011 when he came back to Hong Kong from the mainland. D2 was arrested on 2 November 2011, also when he returned to Hong Kong from the mainland.

D1 was interviewed by the police under caution on the same day. D1 said it was “Ah Ki” - that is, Lai Kwok-leung, a co‑conspirator mentioned in the particulars of the offence - who telephoned him and asked him whether he wanted to do a job. The job was to make a person unable to appear in court. D1 told “Ah Ki” he would not do the job himself, but would find others to do it.

D1 went with “Ah Sai” - that is, Lam Wai-sai, another named co‑conspirator - to familiarise themselves with the scene. He, together with “Ah Sai”, also bought pepper to mix with water to throw on the victim.

On 27 October 2009, D1 introduced Kim Lung - that is, Chau Kim‑lung - and Ah Nam - Lee Yin-nam - to “Ah Ki” at the scene. Both Chau Kim-lung and Lee Yin-nam were also co‑conspirators named in the particulars of offence. On this occasion, “Ah Sai” was also present. “Ah Ki” then told them the victim had already gone into the court, and they were told to wait in case they needed to do the job later. They then waited nearby.

Later, “Ah Ki” told them to get into position. D1 went to the nearby footbridge and waited. Other people were waiting at the front and back entrance of the District Court building. After a few minutes, D1 became impatient and walked away. “Ah Sai” soon called him and told him he - that is, “Ah Sai” - had done it and he had thrown it. “Ah Sai” also told D1 that two other persons also came out to throw it over the victim. “Ah Ki” then offered $25,000 to D1 as a reward. D1 in turn offered “Ah Sai” $20,000. However, in the end, D1 was only given $7,000. He kept 1,000 and the balance was divided among Kim Lung, “Ah Nam” and “Ah Sai”.

When D1 heard that the police were arresting people, he sneaked into the mainland by boat to hide from the police. D1 admitted that he did conspire with the others to throw at or upon the said victim a corrosive fluid, namely sulphuric acid, with intent to do some grievous bodily harm to the said victim.

D2 was also interviewed by the police under caution on the same day of his arrest. That is, 2 November 2011. D2 said that about two weeks before the attack, he was approached by someone, who was not named, to do a job, with a reward of $60,000. Initially, the job involved stopping a woman from appearing in court. Later the plan changed to that of stopping a European man from appearing in court.

D2 in turn contacted “Ah Ki” and offered him the job for half the price; that is, $30,000. D2 had discussed with “Ah Ki” various ways of stopping the person from appearing in court, including pouring a liquid over the victim so that the victim had to be hospitalised. One day before 27 October 2009, D2 and “Ah Ki” followed a Westerner when the latter left the District Court building.

On 27 October 2009, D2 confirmed with “Ah Ki” that “Ah Ki” had arranged with others to be at the scene, ready to do the job. D2 then waited on the 8th floor of the District Court building. D2 later received a call from “Ah Ki” informing him that the job was done. D2 then went to the ground floor, and he saw the victim with injuries on his face.

D2 then left the scene and called that unnamed someone to report that the job was done. One day later, that someone called D2 and told him that the boss was not satisfied and refused to pay the reward. Despite chasing that someone, D2 did not receive any money. He himself gave $10,000 to “Ah Ki”, and he left Hong Kong for the mainland to avoid detection.

D2 also admitted that he did conspire with the others to throw at or upon the said victim the corrosive fluid, namely sulphuric acid, with intent to do some grievous bodily harm to the said victim.

Background and Mitigation - D1

D1 is a 30-year-old single man with seven previous convictions. Most of them involved the possession of dangerous drug, and none similar to the present offence.

He studied up to Form 4 in Hong Kong and has worked as a cleaner, a transportation worker, and a decoration worker. He was unemployed at the time of the offence. Prior to the arrest, he lived with his parents and his younger brother. His mother suffers from depression and his brother suffers from rheumatoid arthritis.

In mitigation, Mr Fan, counsel for the 1st defendant, informed me that D1 committed the offence due to financial difficulties. Mr Fan submitted that D1 “played a relatively minor role in the commission of the offence. He was not the mastermind of the crime committed, and he acted as a secondary recruiting agent for the main culprit”.

Mr Fan informed me that D1’s gain was limited to $1,000, and asked me to pass a lenient sentence on D1.

D1 had written to me, expressing his remorse and asking for forgiveness from the victim. D1 promised to study hard and repay the society.

D2

D2 is a 35-year-old man with three previous convictions and none similar to the present offence. One involved the possession for the purpose of trade infringing copies of sound recording in which copyright subsisted, one of AOABH - that is, assault occasioning actual bodily harm - and one of behaving in a disorderly manner in a public place.

He studied up to Form 5 in the UK, and had worked as a salesman, a kitchen worker, and a merchant.

D2 is not married, but he has a girlfriend living in the mainland. They have a daughter now aged 11.

I was provided with a number of letters written by D2’s said girlfriend, his daughter, his mother, his sister, his aunt, a District Councillor and the chairman of a youth group. There is no need for me to reiterate the contents of these letters. Basically, they all put emphasis on D2’s remorse and ask for leniency. D2’s girlfriend and daughter also said they could not live without D2.

D2 also wrote to me. He wished to express his remorse and apologise to the victim, to his family, and to the society at large. He promised to make use of the time in gaol to better himself so as to turn a new leaf when he completed his gaol term.

Mr Simon Ng, counsel for the 2nd defendant, in mitigation emphasised that D2 was not the mastermind of the attack, though he cannot downplay the role taken by D2. Mr Ng also informed me that D2 had given a non-prejudicial statement to the police and is willing to be a prosecution witness if called upon to do so.

Authorities on Sentence

Throwing corrosive fluid with intent to do some grievous bodily harm is a serious offence. A person convicted on indictment is liable to imprisonment for life. Mr Edward Brook, counsel for the prosecution, referred me to a total of eight authorities to demonstrate the range of sentences for this particular offence. Two of these are in fact sentences imposed by Madam Justice Beeson when sentencing the co‑conspirators of this case.

Throwing corrosive fluid can be broadly divided into three categories:

(1) those involving cases of passion in which a spurned spouse or partner sought revenge by attacking the victim to ensure disfigurement or incapacitation of the victim. See HKSAR v Wong Siu Kwan CACC166/2001; The Queen v Ngai Kwok Hing CACC514/1992;

(2) those involving cold-blooded attacks on strangers for reward. See HKSAR v Lam Ming Wing CACC152/2007; HKSAR v Yu Wai Chiu CACC300/2000; and R v Chan Chi Lun [1989] 1 HKC 70; and

(3) those involving assailants who try to injure as many victims as possible by throwing corrosive fluid from a high place. See HKSAR v Lo Ching Ho HCCC135/2010.

This case clearly falls into the second category. That is, cold-blooded attack on stranger for reward. This case is particularly serious, as the purpose of the attack was to stop the victim from appearing in court to prosecute a case in his capacity as the prosecutor.

From the Admitted Facts, clearly a number of persons were involved. There was a degree of planning. A “casing of the scene” was done beforehand, and more than one person threw the corrosive fluid onto the victim.

I would add that despite the assertion of D1 to the police during their interview that only pepper and water were mixed together to throw onto the victim, it is clear from the evidence that the fluid thrown onto the victim was a substance with a high sulphuric acid content. There is of course no admission that D1 took part in obtaining the corrosive fluid used in this case.

This is a cold-blooded and calculated attack by a group of men on a total stranger with the aim to injure the victim to ensure that he could not carry out his duty as a prosecutor. This case can be considered one of the most serious in the second category.

While neither D1 nor D2 was the mastermind, I do not accept that they played a minor role. It would appear D2 was the person contacted by that unnamed someone. He was offered 60,000 for the job. He in turn recruited “Ah Ki” to do the job, offering half of the offered reward. “Ah Ki” was the person who then in turn recruited D1, and then D1 recruited the others - that is, “Ah Sai”, Kim Lung and “Ah Nam” - to do the job.

D1 and D2 did not simply recruit others. D1 went with “Ah Sai” to familiarise themselves with the scene. He went to buy the substance, which he claimed to be pepper, to mix with water and to be thrown onto the victim. On the day of the attack, he went with the three persons he recruited to the scene and was present when “Ah Ki” briefed them on the job to be done. He waited nearby, and when told to get into position by “Ah Ki”, he went to the footbridge near the District Court building.

As for D2, he had discussed with “Ah Ki” the various ways to stop the person from attending court, including pouring a liquid over the victim so that the victim had to be hospitalised. He went with “Ah Ki” to follow a Westerner when the latter left the District Court building on the day before the attack. On the day of the attack, he met “Ah Ki” at the District Court building, and he confirmed with “Ah Ki” that “Ah Ki” had arranged for the others to be at the scene ready for the job. D2 then waited on the 8th floor of the District Court building, and only went downstairs after he heard from “Ah Ki” that the job was done. He left the scene after seeing the injured person with the injuries on his face.

I have already set out the injuries sustained by the victim. It is indeed fortunate for the victim that he did not suffer any permanent disability. However, in an offence of this nature, whether the injury is grave or minor is largely fortuitous and weighs little in favour of the perpetrator. See the case of Chan Chi Lun.

Although both the 1st and 2nd defendants have said that they did not receive the reward offered, I do not consider that a mitigating factor.

For such a serious and despicable offence as this one, a substantial custodial sentence is called for to both punish and deter others. There is no tariff for this type of offence. Each case has to be considered with reference to its own facts. Since Madam Justice Beeson has sentenced some co‑conspirators, I have considered her reasons for sentence to ensure there is consistency in the sentence imposed.

Having considered the gravity of the offence, the roles played by D1 and D2 respectively, and the sentence imposed by Madam Justice Beeson on the fellow co‑conspirators, I am of the view that a starting point of 18 years is appropriate in the case of D1 and D2.

The only mitigation is their plea, for which I will give the full one-third discount. The family or personal background of the defendants are not such as to be appropriate for me to exercise my discretion to further reduce the sentence.

I should add that the assertion that D2 had given a non‑prejudicial statement and is willing to give evidence for the prosecution is not enough at this stage for me to act upon to reduce his sentence. There is nothing from the prosecution to show that D2 had rendered useful assistance to the authorities. Should D2 be shown to have given useful assistance to the authorities in the future, such matter could be taken into consideration either by the Court of Appeal or by the Long-Term Prisoners’ Sentence Review Board.

The Actual Sentence

For the 1st count, the 1st defendant is sentenced to 12 years’ imprisonment.

D2, for the same 1st count, 12 years’ imprisonment.