HKSAR V LAM WAI SAI AND OTHERS

HCCC 144/2010

IN THE COURT OF HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 144 OF 2010

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Between:

HKSAR

v

Lam Wai-sai (A3) (林偉世)

Lee Yin-nam (A5) (李彥南)

Lai Kwok-leung (A6) (賴國樑)

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Before: The Honourable Madam Justice Beeson

Date: 31 March 2011 at 4.28 pm

Present: Mr Keith Oderberg, on fiat, for HKSAR Mr Lee Kwok-chuen, Victor, instructed by Anthony So & Co, for the 3rd Accused Mr Ng Wei-ho, Jerry, instructed by Messrs Christopher K Y Wong, for the 5th Accused Mr Luk Wai-hung, Albert, instructed by Kenneth Poon & Co, for the 6th Accused

Offence:(1) Conspiracy to throw corrosive fluid with intent to do some grievous bodily harm (A1 to A6) (串謀意圖使身體受嚴重傷害而淋潑腐蝕性液體) (2) Conspiracy to do an act tending and intended to pervert the course of public justice (A1 to A3 and A6) (串謀作出傾向並意圖妨礙司法公正的作為)

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

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COURT: The three defendants now before me were originally D3, D5 and D6 on the original indictment in High Court Case 144 of 2010, but eventually they were D1, D3 and D4 on an amended indictment.

D1 and D4 faced Charges 1 and 2. D3 faced Charge 1 only.

Charge 1 was as follows. Lam Wai-sai, Chau Kim-lung, Lee Yin‑nam and Lai Kwok-leung, on or about the 27th day of October 2009, in Hong Kong, conspired together and with Kay Sik-hong, Billy, Tang Chong-hou, Leonardo, 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 case was fixed for a trial of 25 days starting on 15 February 2011. All four defendants maintained pleas of not guilty, and the trial proceeded by way of four separate voir dires, one for each defendant.

On 11 March 2011, while submissions were being made on a preliminary issue, all counsel sought an adjournment, and subsequently, on Monday, 14 March 2011, I was advised that D1, D3 and D4 wished to change their pleas. Those defendants did so, with the result that all three pleaded to the 1st charge of conspiracy to throw corrosive fluid with an intent to cause serious bodily harm.

The prosecution did not proceed with the 2nd charge, which was a conspiracy tending and intended to pervert the course of public justice.

The defendants having pleaded guilty on 14 March 2011 admitted a Summary of Facts, as they applied to their individual cases, on 16 March 2011. On their admitting the facts, convictions were entered against D1, D3 and D4 for Charge 1 on the amended indictment. The prosecution asked that Charge 2, faced by D1 and D4, remain on file not to be proceeded with without leave of the court or the Court of Appeal.

The prosecution advised that they were not proceeding further against D2, who faced the 1st charge only, and that Charge 2, insofar as it applied to D2, was to be left on file not to be proceeded with without leave of the court or the Court of Appeal, and the 2nd defendant was discharged accordingly.

The background facts are common to all three defendants. On 27 October 2009, the victim of this case, Mr Neil Mitchell, a barrister, was prosecuting on fiat in the District Court in District Court Case 84 of 2008, the defendant being Kong Hon-yui, Kevin. The trial had already commenced.

On 27 October 2011, when the court adjourned for lunch at about 1 o’clock, the victim made his way down the external stairs from the court building, intending to cross Harbour Road towards the Grand Hyatt Hotel. As he reached pavement level, a man with a paper cup containing fluid ran up to the victim from behind and to his right, and threw the liquid into his face. Having done so, the attacker ran to the right of Harbour Road and disappeared.

The victim tried to remove the liquid from his face and clothing, but as he did so, another man ran past and threw more fluid at the victim, but this time the fluid landed only on the victim’s clothing.

Almost immediately on contact with the first lot of fluid, the victim felt a severe burning sensation in his left eye and mouth area. He went back into the court building to seek help and doused his face with water to relieve the pain and damage. He was later transported to Ruttonjee Hospital, where Dr Wong Mei-kam examined him.

The victim was found to have corrosive injuries to the left eye, left ear and cheek. He had corneal haziness with severe chemical trauma and mild generalised redness over the face, including the lips. Treatment was continuous irrigation, and the victim was transferred to the specialised eye clinic at the Pamela Youde Nethersole Eastern Hospital.

There, Dr Yiu Man-kit, on examination, found that the victim had an alkaline chemically-induced injury to the left ocular surface, left ear and cheek. There was evidence of pH 7.5 to 8 in the primary area of injury. The left eye suffered conjunctival damage, with a grossly oedematous Lasek flap with the presence of dark particles in the inferior fornice.

Continuous irrigation treatment was maintained. During treatment, the Lasek flap was found to be dislodged and broken. The victim was admitted to the specialist ward, and his condition began to improve slowly. He was discharged on 30 October 2009. By 27 November 2009, the trauma was found to have largely healed, leaving the victim with intact visual acuity, and by 26 January 2010, the injuries were found to have fully stabilised, with intact corrected vision.

The 1st defendant, Lam Wai-sai, was arrested on 21 December 2009, and under caution admitted that he had been recruited by one Pau Yu-wai on behalf of “Ah Ki”, who was a friend of D1’s. He was offered $10,000 reward to participate in what he believed was the “splashing” of someone at the District Court, but he received only $2,500. His task was to act as a lookout to warn other conspirators if police officers were in the area when the attack was about to occur.

On the morning of the day of the attack, the 1st defendant met “Ah Ki”, who gave him a paper cup which he was told contained dirty water. The liquid was blackish in colour and had a strong smell. The 1st defendant believed that other members of the group were going to use corrosive fluid in the attack. Eventually, he saw an expatriate man being followed by “Ah Ki”, who identified that man as the target.

The target left the lift lobby of the court, and D1 was walking directly behind him. Soon after that, the 1st defendant saw another man throw fluid from a paper cup at the target. He became scared and ran away. A second man was seen to throw a dark-coloured liquid at the target after the first throw, and the 1st defendant ran from the scene in the direction of the Wanchai Fire Station, and took a taxi home.

The first defendant’s Antecedents Statement shows that he is aged 21. He was born in China and came to Hong Kong in 1997. He completed lower secondary level education. After leaving school he worked as a construction site worker, a waiter, and a casual worker. At the time of his arrest he was unemployed. He is single and lives with his parents, two elder brothers and an elder sister.

He has a criminal record beginning in September 2004 with a shoplifting offence for which he was fined. In December 2004 he was given a 3 months’ suspended sentence for unlawful sexual intercourse with a girl under the age of 16. In 2006 he was convicted of concurrent offences of manslaughter, assault occasioning actual bodily harm, and preventing the lawful burial of a corpse. For the manslaughter he received 5 years’ and 6 months’ imprisonment; for the assault, 8 months’ imprisonment; and 1 year and 10 months’ for the prevention of the lawful burial of a corpse. The sentences for the assault and manslaughter were concurrent. The sentence for preventing the burial was ordered to run consecutively, and I am informed that he was released from prison in January 2009.

In mitigation, counsel relied on the defendant’s age, his alleged remorse, his alleged valuable information, the fact that he was not the mastermind, the fact that it was a small quantity of liquid, and that the acid was diluted. It was suggested that this defendant was used by others, although I am highly sceptical of that claim. I do accept that he was not a mastermind, but I do not accept that he was used by other people, nor do I accept that he is so naïve as to believe that what he was given to throw was dirty water.

The 3rd defendant, Lee Yin-nam, under caution after his arrest, admitted that he had been telephoned by “Ah Pau Yu‑wai” about midnight on 26 or 27 October 2009 and had been asked to go to Wan Chai the next morning. He was told that he would be paid $10,000 to beat up an expatriate. Later he was told that the plan had changed, and that the plan was to pour corrosive fluid on the expatriate.

The 3rd defendant saw Pau preparing a liquid in two cups. Pau gave one cup to the 3rd defendant and asked him to do the pouring if he had the courage to do so. The 3rd defendant described this liquid as being a bit sour and irritating to the nose. He believed it was a corrosive substance.

On 27 October 2011, he went to the court building and met Pau, who introduced him to a man with dyed gold hair who was referred to as “the boss”. He was told to await further instructions, and eventually, he said, he went to sleep at the rear of the court building, waking at 12.30 pm. Soon after, he was told that he might not need to throw the liquid, but he continued to wait behind the court building until he was told he could leave. He said he dumped his cup of liquid in Jordan. He was told later by another of the group that that person had in fact poured liquid on the expatriate. The defendant received $2,500 for his participation in the conspiracy.

This defendant was aged 19 years. He was born in Hong Kong and completed Form 1 level education. On leaving school, he worked as an apprentice baker. At the time of his arrest, he was working as a waiter, earning 6,800 a month. He is single, and lives with his grandfather and uncle. He also has a mother and younger sister.

He has two previous convictions, one in 2007 for possession of dangerous drugs, for which he was placed on probation for 15 months. In May 2009 he was convicted again of possession of dangerous drugs and sent to DATC with a conviction recorded.

In mitigation I was advised that he was only 17 at the time, that he had fallen asleep at the crucial moment, that he had saved the court’s time by pleading guilty, and in a letter to the court he told the court about his broken family, his remorse, the fact that he had joined a triad society and that he was now reconciled with his mother as a result of this particular case.

I should point out that the saving of time in this case, given the length of the voir dire, is not very much of a point in mitigation, although I accept that the court did not have to empanel a jury.

The 4th defendant, Lai Kwok-leung, was arrested on 22 December 2009, and under caution stated that he had been approached by a co‑conspirator, “Ah Billy”, who was D1 on the original indictment, named in the 1st count, and was asked if he could help that person earn some money. Later, somebody called “Ah Kit” contacted him and said he wanted someone to be chopped. This defendant referred the request to “Ah Billy”. Later, the 4th defendant learnt that the target, instead of being chopped, was to have corrosive fluid thrown over him.

The 4th defendant visited the court on a number of days, and on one occasion travelled to Duddell Street in Central in an unsuccessful attempt to locate the target. The 4th defendant had been told by “Ah Billy” that “the stuff” had been concealed in a flower bed near the court building and that the stuff was a corrosive fluid of some type.

During the preparation for the attack, this defendant met a law clerk, Stephen Chung, who worked for the solicator Kong, who was the defendant in District Court Case 88 of 2008. On 25 October 2009, someone contacted the 4th defendant and told him that he had arranged for two other people to assist in the attack.

On 27 October, D4, “Ah Billy” and others met near the court building. D4 said he saw “Ah Billy” and two men sitting near a flower bed at the front of the building. He was telephoned by “Ah Kit”, who told him that the target was coming down the elevator. The 4th defendant walked behind the target when he reached the ground floor and indicated to the attackers that the expatriate in front of him was the target. He then saw two men run up to the target and throw fluid.

After the attack, the 4th defendant left the scene with “Ah Billy” and another man. Later he was given $3,000 by “Ah Kit”, and he gave that amount to “Ah Billy”.

This defendant is aged 38. He was born in Hong Kong and completed Primary 5 education in Hong Kong. After school he worked as a driver, a construction site worker, a salesman and a merchant. At the time of his arrest, he was earning approximately HK$10,000 a month. He is divorced and lives alone. He has family in Hong Kong, his parents and elder sister, younger sister, a younger brother, and a son aged 15.

This defendant has an old, comparatively minor criminal record. He was convicted of theft in 1986 and placed on probation for 18 months. In 1988 he was convicted of robbery and sent to detention centre, and in 1990 he was bound over for unlawful sexual intercourse with a girl under the age of 16.

In mitigation, the old and minor record was pointed out, and I accept that he has led an unblameworthy life since 1990. Letters were put before the court from the defendant himself, his employer, his girlfriend and his sisters, all of whom pointed out how responsible he was and sought leniency on his behalf.

However, I note in particular with this defendant that he played a major role in organising the personnel, and that it was he who pointed out the target for those persons who were conducting the actual physical part of the attack. I have also been advised that he has given a non-prejudicial statement, but I have no further information about that matter.

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 of, or the reason for, the breakdown of a relationship or the loss of consortium. The aim of the perpetrator is both punishment for the emotional damage and to ensure 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, or 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 commercial arrangements carried out by a person or persons who are recruited and are paid for doing so. 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 in preparing for the attack. This present case comes under the second type.

There is also now a third scenario which occurs where 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 balcony, with the aim of injuring as many people as possible. This is the least common scenario, but in some ways very much more damaging because large numbers of people may be affected, and it is very difficult to guard against it or to trace the perpetrators because of the random nature of the attack.

As I said, 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 greed or, in some cases, gang loyalty.

This was a very serious offence, as is shown by the fact that the maximum sentence for offences of this type is life imprisonment.

The defendants pleaded guilty to conspiracy to throw corrosive fluid with intent to commit grievous bodily harm, and the conspiracy attracts the same sentence as the substantive offence.

The starting point for sentence for these offences which has been upheld or adopted by the Court of Appeal in Hong Kong ranges from a high point of 18 years’ imprisonment, in HKSAR v Yu Wai Chiu CACC300/2000 and also HKSAR v Lam Ming Wing CACC152/2007 which was referred to me by Mr Oderberg, to approximately 2 years’ imprisonment in R v Ngai Kwok Hing CA 514/1992.

In each case, the factual scenario will vary greatly 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 was a real and specific intention to cause injury, and other individual features which may bear on the culpability of the offender or offenders.

In the present case, the victim was targeted because of his employment as a prosecutor against a person who was effectively an inspiration and guiding light for the attack. The attack appears to have been 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 confirms just how harmful it 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 does it appear that he suffered any permanent scarring as a result of the attack.

However, for offences such as this, the nature of the injury bears little relevance to sentence. It is noteworthy that section 29 of the Offences Against the Person Ordinance, Cap.212 states clearly that the offence is committed whether injury is suffered or not.

In this case, there was premeditation and planning involved in the offence. Those organising the attack required the prosecutor to be put out of action so that the trial would stop, and it appears that the method of disabling the prosecutor was left to the underlings to decide. A number of persons was recruited to carry out various roles, some as lookouts, some to identify the victim, and others were chosen or volunteered to throw the fluid.

The highest rate of payment disclosed was to be the sum of $30,000, which was the sum for which D1 on the original indictment - that is, Kay Sik-hong, “Ah Billy” - had agreed to take part. In the event, he received $3,000 against that sum.

Another defendant, the 3rd defendant in this case on the amended indictment, was paid $2,500, which he spent. In another instance, Tang Chong-hou, D2 on the original indictment, was recruited by “Ah Yick” with payment of $15,000 offered. He in turn recruited a friend, “Ah Fai”, to assist, and he proposed to give “Ah Fai” $5,000 of the sum that he was to be paid.

Once the personnel had been gathered together, it was necessary for them to be shown the District Court and, if possible, the prosecutor who was the target. This 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 to be 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 acid. The first cup was thrown, as far as I can work out, by the 2nd defendant on the original indictment, and this caused the victim to sit down on the steps in an effort to remove the fluid, and at that point, a second cup of fluid was thrown over the victim, with the quantity of liquid going onto the victim’s clothing.

All the defendants say that they left the scene immediately after the fluid was thrown, although it appears that the 3rd defendant in this case on the amended indictment may have left later, because he said he had gone to sleep while waiting at his post as a lookout.

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. There was premeditation, planning, preparation and payment by a large group of participants with the purpose of interfering with the criminal justice system, all of which features bring this offence into the most serious category for sentencing.

Although there are a number of cases referable to this type of offence, most of them are of little assistance in determining sentence, because they are not fact specific. There are no tariff or guideline cases, but there is a number of cases which have a more general aspect. One is HKSAR v Wong Siu Kwan (CACC166/2001), in which a number of general principles are considered by the court as they were extracted from various cases to that date.

The case of Lam Ming Wing (supra) deals with a case of the second type, which had very much more serious results for the victim than had the victim in the present case, although I hasten to add that is not a matter of mitigation. The Court of Appeal in Lam Ming Wing there dismissed the appeal against an 18-year sentence for an offence of which the judge commented that he could not recall an offence that was more cold‑blooded or of greater unmitigated wickedness. A number of matters in that case are similar to the present one.

As for the third type of case, I was referred to the judge’s reasons for sentence in HKSAR v Lo Ching Ho, High Court Case 135 of 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 persons, two of them seriously. That defendant had a personality disorder, but was neither mentally ill, nor insane. He knew what he was doing, and he was ultimately sentenced to 13 years’ imprisonment on a plea of guilty.

A number of cases was considered in the course of those reasons being set out. Again, they are of limited use in the second type of case which is what I am now dealing with, but it is helpful to have an overview of cases relevant to the third scenario, which is likely to become more common, and some principles are, in any event, of general application.

I go back further, however, to a case in 1989, R v Chan Chi Lun [1989]1HKC70. The facts were comparable to those in the instant case, but the results of the attack on that victim were much more serious. The trial judge, when 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.

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 in that case commented:

“It is our view that in offences of this nature whether the injury be grave or minor is largely fortuitous and weighs little in favour of the applicant.

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.”

The final comment of that court was:

“We are satisfied that the remarks of the trial judge were entirely appropriate, and we endorse them. 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.”

Sadly, 22 years after that case, the type 2 offence continues to flourish.

For cases of the second type, which are of a commercial, contractual or gang nature, mitigation is very difficult. When 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 or by forbearance to enforce an obligation, or forgiveness of a debt, and then takes part in the venture without knowing or inquiring about the purpose or motive for the attack and/or without inquiring about the nature, the type, or, the strength of the substance to be used, they must be taken to have agreed to whatever is done in relation to those matters in the course of the attack.

It cannot excuse a participant’s actions to claim later, in what might be termed “pseudo mitigation”, that he or she 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 are severe with lasting physical or mental damage, or whether there has been a full and quick recovery of the victim. It is not the result of any act of virtue by a perpetrator. Rather, it depends on the skills of the substance thrower and other random factors which affect his aim.

Here, two throwers were used, presumably to militate against the possibility of missing the target altogether.

The chief mitigation in this case is the pleas of guilty entered by these three defendants, albeit they were made at a late stage and did not result in any significant saving of court time; although, as I said earlier, the services of a jury were not wasted. Claims that this is not the worst type of case are not valid. In my view, this case does come into the worst category. There was motive, planning, calculation, preparation, payment, triad features and unthinking agreement by these seven underlings.

I have taken into account the matters that were put before me in mitigation for these defendants. Some because of their ages or because they were privy to the arrangements at an earlier stage or to a greater degree than others can be considered more blameworthy than others. I accept that all the defendants who pleaded guilty are entitled to one-third discount for their plea, but having considered the mitigation advanced, I am of the view that no mitigation other than the plea of guilty is really available to them.

I also consider it appropriate in this case to distinguish those defendants who played greater or lesser roles in the incident, and I propose to take different starting points to note that distinction.

In respect of the 1st and 3rd defendants, I take a starting point of 15 years, and sentence each of them to 10 years.

For the 4th defendant, I take a starting point of 18 years, give him the full discount, and sentence him to 12 years’ imprisonment.