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CACC 423/2015
[2019] HKCA 134
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 423 OF 2015
(ON APPEAL FROM HCCC NOS 120 AND 432 OF 2014 (CONSOLIDATED))
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| BETWEEN |
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HKSAR |
Respondent |
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and |
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Fok Ka Po, Joe (霍家寶) (D1) |
1st Applicant |
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Yeung Ming Ming (楊明明) (D2) |
2nd Applicant |
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Ng Yan Lok (吳殷樂) (D3) |
3rd Applicant |
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| Before: |
Hon Macrae VP, McWalters JA and Pang JA in Court |
| Dates of Hearing: |
7 August 2018 & 16 January 2019 |
| Date of Judgment: |
1 February 2019 |
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J U D G M E N T
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Hon Macrae VP (giving the Judgment of the Court):
1. The three applicants faced a joint count of conspiracy to throw corrosive fluid with intent to burn, contrary to section 29(c) of the Offences against the Person Ordinance, Cap 212 and sections 159A and 159C of the Crimes Ordinance, Cap 200. Following their convictions for the offence before then Deputy Judge Campbell-Moffat SC (“the judge”) and a jury on 11 November 2015, the 1st applicant (“A1”) and the 2nd applicant (“A2”) were in due course each sentenced to 18 years’ imprisonment, whilst the 3rd applicant (“A3”) was sentenced to 19 years’ imprisonment.
2. On 9 May 2018, this Court granted leave to appeal against conviction to all applicants but dismissed their appeals[1]. A2 was further granted leave to file a notice of appeal against sentence out of time.
Facts
3. We have set out the facts of this case in our previous judgment in relation to conviction[2]. The conspiracy had its inception on 22 February 2013 at a meeting in a seafood restaurant in Lei Yue Mun, Kowloon, at which A1, A2 and others were present. It culminated with the events of 8 March 2013, following a ‘tip off’ from A1 via, amongst others, A2 as to the whereabouts of the victim (“PW1”), when PW1 was splashed at her workplace with a 92% concentration of sulphuric acid by a 15‑year‑old boy (“PW3”), who was acting on the immediate instructions of A3.
4. Fortunately, PW1 had managed to turn away in time so as to avoid the full force of the sulphuric acid. Nevertheless, she sustained patchy full‑thickness burns to her right face, both ears, right neck, right upper arm (particularly the right posterior elbow), right hand, waist and both legs. The total area affected was 3.5% of her body surface. Upon her admission to hospital on the same day, she underwent excision and closure of the wounds under general anaesthetic. She remained in hospital for 10 days and was discharged on 18 March 2013. We shall return to the residual consequences of the injuries on PW1’s long term health in due course.
5. A female co‑worker, who had come to the assistance of PW1, also received patchy burns to her face, both forearms and right leg. She was able to be discharged from hospital following treatment on the same day.
6. The conspiracy was described by the judge in her summing‑up as “a linear conspiracy”[3], in which one person would lead to the involvement of another, who in turn would bring another or others into the conspiracy. Over the course of 14 days, at least nine people were involved in the plot. A1 admitted in his video-recorded interview that he had been asked by Ho Ping Yee (“Madam Ho”), with whom he was on friendly terms, to arrange for her “to meet some people with background”[4] in order to “splash” corrosive liquid on PW1, one of his colleagues at work[5]. He explained that “people with background” meant “triad background”[6]. As a result, he introduced Ho Hoi Kin (also known as “Ho Lan Chai”), who in turn introduced A2 (also known as “Shea Chai” or “Shea Gor”) to Madam Ho[7].
7. A2 then brought Lin Chun Kit (“Lin”) into the conspiracy, who was to give evidence for the prosecution as an accomplice witness (PW2). Lin in turn contacted a male known as “Ah Sam”, who said that he would arrange for someone to throw the acid at PW1 for $40,000. Accordingly, PW2 contacted A2 to relay the request, having increased the demand to $60,000. PW1’s details were subsequently passed to PW2.
8. At the end of the line of contacts was PW3, who was arranged by A3 (also known as “Ho Lok”) to throw the sulphuric acid at PW1 for a reward of $3,000: indeed, it was A3 who actually supplied PW3 with the cup of sulphuric acid which was thrown at PW1.
9. The conspiracy was, therefore, a sustained course of conduct spread over two weeks, resulting in two attempts on 6 and 7 March 2013 to find PW1 at her home before the acid was eventually thrown on 8 March. Clearly this was a planned, premeditated attack involving a number of men on a defenceless young woman, who had done none of the conspirators any harm and who was unknown to all of them save A1, with the intention of disfiguring her for life with a powerful concentration of sulphuric acid. The engagement of so many participants, each one being responsible for introducing another to the conspiracy, until a 15‑year‑old boy was recruited to carry out a cold‑blooded “contract” attack for money was redolent of triad involvement. Quite apart from A1’s admissions to this effect, it is to be noted that A2 had two previous convictions for inviting, inciting or inducing another to become a member of a triad society, and two convictions for claiming to be a member of a triad society. As the judge remarked when she came to sentence the applicants and the other conspirators, “there was a significant triad involvement in this case”[8].
Reasons for sentence
10. Given the context of a conspiracy involving nine men, it is important to see how the judge regarded the different roles of the individual defendants she was sentencing. It was, after all, a lengthy trial and she would have been in a good position to judge the relative roles of those concerned.
(in respect of A1)
11. Of A1’s role in the conspiracy, the judge said this, inter alia[9]:
“There is no hint of remorse for the part you played. You have remained defiant to the end. What you did was such a huge breach of trust. You played a major part in this conspiracy. You were the first port of call for (Madam Ho). If not for you, this offence would definitely not have happened as we know that her earlier attempts to harm (PW1) had failed.
…..
You used your position in the company to locate (PW1) on 8 March, knowing what fate awaited her, even though she had been your colleague and had done you absolutely no harm. Unlike the other defendants, you knew this young lady, and yet you still callously played a very significant part in this crime. You knew exactly what you were doing and the likely horrific consequences. You helped to plan this vicious attack and you brokered the financial deals. You were (PW1’s) right-hand man.”
12. The judge developed her characterisation of the applicant’s breach of trust in the following terms[10]:
“An aggravating feature of this case is that you were prepared to have someone throw acid over a person whom you knew and who was a work colleague and who had done you no personal harm. This was not therefore a crime of passion as is often the case and your part in it must have been in a cold and calculating manner, simply because of your friendship to (Madam Ho), because you have offered the court no explanation for this state of affairs …
Given your involvement in this matter from the outset and your willingness to be directly involved at the end, plus the aggravating feature of your knowledge of the victim, I take the view that a starting point of 18 years is not a day to long for this horrendous attack.”
(in respect of A2)
13. The judge said of A2, inter alia[11]:
“… you are in a similar position to Lin Chun Kit in that you agreed to be another link in the chain of recruitment and also a go‑between. But you did more still than that by their verdict, the jury clearly disbelieved all that you said in evidence and found you to be the user of the third mobile phone number which was known to be heavily used by the person seeking the whereabouts of (PW1) on the day of the offence.
Unlike some of the other defendants, you had met (Madam Ho) and you said yourself that she seemed ferocious, so you could tell the anger and bitterness motivating her desire for revenge. You also knew that throwing corrosive liquid was a very serious matter because you commented on it at the meal on 22 February.
You, like Lin Chun Kit, were prepared to be the liaison between the likes of Cheung Hang Ming and (A1), and it was you who was chasing for payment after the event and who threatened (Madam Ho), through A1, when payment was not forthcoming. He told us in evidence that you were very threatening and I have no doubt that that was the case.
…..
I consider that for your participation in this matter, the appropriate starting point is also 18 years and as you have no mitigation which would afford you any reduction in that sentence and you have been found guilty after trial, you also will go to prison for 18 years.”
(in respect of A3)
14. The judge took a particularly dim view of A3’s role in the conspiracy, since he had been the one to recruit a minor, PW3, to throw the acid at PW1 in his place[12]:
“You were the one who identified a 15‑year‑old boy to do the job for you, showing your cowardice by leaving the scene at the time of the offence and no doubt knowing that he was likely to be frightened of the repercussions if he did not do as he was told because of the position you held yourself out to have within his small social circle.
... Even though you were young, at 19 years of age, compared to your co‑conspirators, what you did, in recruiting such a young man...
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