HKSAR v. KAY SIK-HONG, BILLY AND OTHERS

CACC 145/2011

IN THE COURT OF HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 145 OF 2011

(On Appeal From HCCC NO. 144 of 2010)

_____________________

Between

HKSAR (Respondent)

and

KAY Sik-hong, Billy (姬錫康) (D1) (1st Applicant)

LAM Wai-sai (林偉世) (D3) (4th Applicant)

LAI Kwok-leung (賴國樑) (D6) (3rd Applicant)

CACC 314/2012

IN THE COURT OF HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 314 OF 2012

(On Appeal From HCCC NO. 382 of 2010)

_____________________

Between

HKSAR (Respondent)

and

MA Shun-yick (馬信益) (D7) (Applicant)

_____________________ (Heard together)

Before: Hon Yuen and Lunn JJA in Court

Dates of Hearing: 27 November 2013

Date of Judgment: 6 January 2014

_____________________

J U D G M E N T

_____________________

Hon Lunn JA (giving the judgment of the court):

1. The applicants seek leave to appeal against the sentences of imprisonment, imposed upon them by Beeson J on different occasions, in respect of a count of conspiracy to throw corrosive fluid, namely sulphuric acid, with intent to do grievous bodily harm at or upon Mr Neil Mitchell, contrary to sections 159A and 159C of the Crimes Ordinance and section 29(c) of the Offences Against the Person Ordinance. At the hearing of the applications we reserved our judgment, which we deliver now.

2. All the applicants pleaded guilty to a single count of conspiracy to throw corrosive fluid. Ma Shun Yick, Jacky pleaded guilty on 29 October 2010 in the Magistracy and, having been committed for sentence to the High Court, was sentenced on 1 April 2011. Kay Sik Hong, Billy pleaded guilty on arraignment before Beeson J on 15 February 2011, whereas Lam Wai Sai and Lai Kwok Leung pleaded not guilty. However, on 14 March 2011, after 20 days of trial, in which a challenge was made in a voir dire to the admissibility of alleged admissions by them and two co-defendants, but before the ruling, each of them pleaded guilty when re-arraigned.

3. Kay Sik Hong, Billy seeks leave to appeal against a sentence of 11 years’ imprisonment imposed upon him on 1 April 2011. Lam Wai Sai seeks leave to appeal out of time the sentence of 10 years’ imprisonment imposed upon him on 31 March 2011. Lai Kwok Leung seeks leave to appeal against the sentence of 12 years’ imprisonment imposed upon him on 31 March 2011. Ma Shun Yick, Jacky seeks leave to appeal out of time the sentence of 11 years’ imprisonment imposed on him on 1 April 2011.

4. In a non-prejudicial statement, dated 7 March 2011, Ma Shun Yick, Jacky had implicated Wun Shu Fai as a co-conspirator. In April 2012, he identified him at an identification parade. Since the prosecution was willing to call him as a witness in the prospective trial of the recently re-arrested Wun Shu Fai, and the former was willing to give evidence for the prosecution, Mr Marray asked that the hearing of the application be adjourned pending the trial of Wun Shu Fai. There being no objection from the respondent, we granted the application.

THE FACTS

5. The prosecution arose out of an attack on a barrister outside the District Court Building on 27 October 2009. In the attack, sulphuric acid was thrown over the barrister, who was appearing for the prosecution in a criminal trial in the District Court. He sustained injuries as a result.

6. Each of the applicants accepted as the basis for his plea of guilty being accepted by the court a description of the factual circumstances in which the offence had occurred, of which the judge’s summary of the facts in sentencing Lam Wai Sai and Lai Kwok Leung is representative.[1]

“ 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 correctedvision.”

REASONS FOR SENTENCE

7. In her reasons for sentence in respect of each of the applicants the judge considered various judgments of this court relevant to a determination of the appropriate starting point for sentence. She said:[2]

“ 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 defendants have 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 CACC 514/1992 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 beendirected 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 role of Kay Sik Hong, Billy

. . . . . . ..

The role of Lam Wai-Sai

12. Of the role of Lam Wai-Sai in the commission of the offence, the judge said that after his arrest on 21 December 2009, he too had made admissions under caution. She noted that:[7]

“ ..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, (Lam Wai-sai) 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. (Lam Wai-sai) 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 (Lam Wai-sai) 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 (Lam Wai-sai) ran from the scene in the direction of the Wanchai Fire Station, and took a taxi home.”

13. Of the role of Lam Wai Sai, the judge determined:[8]

“ 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 naive as to believe that what he was given to throw was dirty water.”

The antecedents of Lam Wai-sai

14. The judge noted that Lam Wai-sai was 21 years of age at the time of sentencing. In August 2006, he had been sentenced to a total of 6 years and 4 months’ imprisonment for offences of manslaughter, preventing the burial of a corpse, and assault occasioning actual bodily harm. In June 2008, he had been sentenced to 4 months’ imprisonment, ordered to be served consecutively to the sentences he was already serving, for assault occasioning actual bodily harm. He had been released from prison in January 2009.[9]

The role of Lai Kwok Leung

. . . . . . ..

20. In sentencing Lam Wai Sai and Lai Kwok Leung the judge said:[15]

“ 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.”

21. The judge went on to say:[16]

“ 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.”

Starting Point and Discount

22. The judge stipulated a starting point of 15 years’ imprisonment for Lam Wai Sai and one of 18 years’ imprisonment for Lai Kwok Leung, which she discounted by one third for their pleas of guilty. In the result, Lam Wai Sai was sentenced to 10 years’ imprisonment and Lai Kwok Leung to 12 years’ imprisonment.[17] In affording them the full one-third discount, the judge acknowledged that their pleas of guilty were made:

“ at alate 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.”[18]

Earlier, she had said in respect of mitigation advanced on behalf of a co-accused:

“ ..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.”[19]

. . . . . . ..

Lam Wai Sai

34. Lam Wai Sai sought leave to appeal out of time on basis that his delay in filing his notice of leave to appeal resulted from waiting for the results of his assistance to the authorities to become manifest. It was submitted on his behalf by Mr John Marry that he had provided a significant degree of assistance to the authorities subsequent to being sentenced, which ought to be reflected in a discount of the sentence imposed upon him. In particular, it was said that, having provided a non-prejudicial statement dated 23 March 2011, in which he had provided details in respect of So Ka Wai and whom he asserted had recruited him to participate in the offence, after So Ka Wai’s arrest he had attended an identification parade on 20 November 2011 and identified him as the person who had recruited him. In March 2012, the non-prejudicial statement, together with a similar statement made by Lai Kwok Leung, was served on So Ka Wai as ‘unused’ material. It was contended that Lam Wai Sai had not been called as a witness for the prosecution only because So Ka Wai pleaded guilty on 9 November 2012. Finally, it was submitted that the fact that Lam Wai Sai had put himself at risk in consequence of his assistance was evidenced by the fact that he was serving his sentence in protective custody at Siu Lam Psychiatric Centre.

Lai Kwok Leung

. . . . . . ..

Full one-third discount: Lam Wai Sai and Lai Kwok Leung

43. Mr Wong submitted that, given that Lam Wai Sai and Lai Kwok Leung did not plead guilty to the count on the indictment until 20 days into the holding of a voir dire and then only after the conclusion of evidence, they were not entitled to be afforded a full one-third discount from that taken as the starting point.[28]

A CONSIDERATION OF THE SUBMISSIONS

44. The gravity of the offence of which the applicants have been convicted on their own pleas lies in the fact that it was a brazen attack on the administration of criminal justice, in which that object was sought to be achieved by the heinous crime of throwing a corrosive fluid over the targeted victim. The fluid was deliberately thrown into the face of the victim by the first attacker. A second attacker succeeded in throwing the corrosive fluid over the clothing of the victim only. The fact that the planning of the attack called for a second assailant evidenced the intention and determination of the conspirators that the objective be achieved. As the judge found, considerable planning and preparation went into the execution of the attack, which was carried out in public in the immediate vicinity of the District Court Building. Clearly, the intention was to injure the victim so that he was incapable of continuing his role as prosecuting counsel in a criminal trial in the District Court. The attack was one brought against the very foundations of the rule of law in Hong Kong.

45. There is no dispute that the applicants were not the instigators of the conspiracy. They were mercenaries used by others to recruit, organise and equip foot-soldiers to execute the attack. They did so for the promise of financial reward. The planning for the attack took place over some weeks and involved surveillance of the court room itself in which the victim was appearing as an advocate. He was followed to his chambers.

46. Fortunately, and it is a matter of good fortune, although some of the corrosive fluid found its way into the left eye of the victim, he did not sustain any permanent damage to his eyesight. He was admitted to a specialist ward and detained for three days. By the end of January 2010, his pre-attack visual acuity was fully restored. It appears that the victim did not sustain any permanent scarring damage to his face or elsewhere.

47. As the judge noted, in HKSAR v Yu Wai Chu[29] this court dismissed an application for leave to appeal against sentence in which the judge had taken a starting point for sentence of 18 years’ imprisonment in a case involving the throwing of concentrated sulphuric acid over the victim, a middle-aged lady. In the judgment of the court Mayo VP observed:

“ Perhaps one of the most terrifying aspects of this case was the willingness of the applicant to inflict these terrible injuries upon a total stranger simply so that he would receive a reward.”

48. Those sentiments resonate with the circumstances of the instant applications. As the judge noted, Kay Sik Hong, Billy was promised payment of $30,000, but received only $3,000. Lam Wai Sai was paid $2,500, having been offered $10,000. Lai Kwok Leung was paid $3,000.

49. In HKSAR v Lam Ming Wing[30], another attack on a total stranger for reward, the victim sustained what the judge described as appalling injuries which resulted in severe disfigurement and impairment to eyesight. This court determined that sentences of 18 years’ imprisonment imposed on the applicant after trial in respect of each of two charges of throwing corrosive fluid with intent to cause grievous bodily harm were not manifestly excessive. The applicant had secured the services of two young men to execute the attack with express instructions to blind the victim.

50. We are satisfied that the circumstances of the commission of the offence were outrageous. As the judge noted, in the judgment of this court in R v Chan Chi Lun,[31] in which the applicant was a party for reward to an attack on a young lady in which sulphuric acid was thrown into her face, Power JA:

“ In offences of this kind the deterrent effect of a sentence is, perhaps, of larger moments than in any other class of offence.”

51. In all circumstances, in particular having regard to the necessity for the imposition of a deterrent sentence, we are satisfied that, whilst a starting point of 18 years’ imprisonment is high, it was appropriate for Kay Sik Hong, Billy.

Discount/Reduction of sentence for a plea of guilty and assistance to the prosecution

Plea of guilty

52. It is well established that a defendant who tenders a timely plea of guilty is entitled to a discount of one third from the sentence stipulated as the starting point for sentence. However, as the respondent submitted, that discount is afforded only to a defendant who “pleads guilty at the first opportunity”, see R v Chung Kin Wah[32].

53. Having pleaded not guilty on arraignment and then challenged the admissibility of out-of-court admissions in voir dires, the total of which lasted 20 days and each of which was conducted for 4 to 5 days, up and until the time for the delivery of the judge’s ruling, the pleas of Lam and Lai, when they were tendered eventually, were not timely pleas. One reason that a defendant who tenders a timely plea of guilty is afforded a one-third discount is that to do so is in the public interest. As Kirby J observed in his judgment in the High Court of Australia in R v Cameron[33], cited with approval by Yeung VP in HKSAR v Ma Ming[34], the public interest includes:

“The fact a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and any inconvenience caused, to any persons summoned to perform jury service.”

54. As the judge noted, it was only in respect of the services of the jury that inconvenience and expenses were saved by the belated pleas of Lam Wai Sai and Lai Kwok Leung. Their pleas of guilty were tendered only immediately in advance of the rulings in the voir dires. In HKSAR v Chung Kin Wah, in such circumstances, this court said that it felt unable to interfere with a discount of sentence afforded to such a defendant of 20 per cent only.

55. In HKSAR v Leung Cho Yi, the trial judge had afforded the defendant a 25 per cent discount of sentence, after he pleaded guilty following an adverse ruling at the conclusion of a voir dire. This court said that he had been treated leniently, since the discount in those circumstances should “usually be in the order of 20 per cent”.

56. In HKSAR v Chan Wai Ming,William[35], this court did not interfere with a discount of only 17.8 per cent afforded to a defendant who pleaded guilty only after an adverse ruling in a voir dire conducted over two days. The court acknowledged that the trial judge was best placed to determine the appropriate discount to be afforded to a defendant in such circumstances, suggesting that no attempt had been made in Leung Cho Yi to lay down “hard and fast rules”, it having been submitted that the discount ought to have fallen within the parameters of 20 to 25 per cent. It was observed that challenges in a voir dire vary from the exercise of a judge’s discretion to a challenge to the integrity of the law enforcement officers. In the instant applications, the latter was the case.

57. Whilst there is no doubt that in sentencing Lam Wai Sai and Lai Kwok Leung the judge exercised a discretion, it was one that fell to be exercised within the framework of established authorities. With great respect to the judge, the exercise of her discretion miscarried. We are satisfied that that there was no justification for the judge affording Lam Wai Sai and Lai Kwok Leung the full one-third discounts for their pleas of guilty. Accordingly, the sentences of imprisonment imposed upon them were unduly lenient.

Plea of guilty and assistance to the prosecution

58. In the judgment of Li CJ in the Court of Final Appeal in Z v HKSAR[36], with whom the other judges agreed, the range of discounts of sentence applied by the Court of Appeal to defendants who had pleaded guilty and given assistance to the prosecution was addressed:

“ It has used various percentages of discount for different degrees of assistance. It has applied a usual discount of 40% (including the one third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y [2005] 3 HKC 337 at 340. (Compare its earlier decision in HKSAR v Ng Shek-Yu (CACC 178/2000 unreported, 1 March 2001) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.) Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third reduction for pleading guilty).”

59. Stuart-Moore VP delivered the judgments of this court in bothHKSAR v Y and HKSAR v Ng Shek-Yu. It is apparent from the judgment of the former case, which was delivered 4 years after the latter case, that the context in which he made his observations was the specific submission of counsel that Ng Shek Yu was authority for the proposition that the provision of assistance simpliciter, without a plea of guilty, entitled a defendant to a discount of 40%.

60. It is to be noted that in Ng Shek Yu the applicant was afforded a discount of 45% from the starting point taken for sentence in circumstances where his offer to give evidence against his co-conspirator for unlawful drug trafficking was thwarted by the fact that the latter had absconded whilst on bail. The trial judge declined to give the applicant any more than the one-third discount for pleading guilty, which approach this court approved. However, subsequent to sentence and whilst in custody, the applicant had reported to ICAC an approach that had been made to him to give untruthful evidence against his co-conspirator. In the result, that person had pleaded guilty to a charge of doing an act tending and intended to pervert the course of justice and had been sentenced to 18 months’ imprisonment. It follows that in that case the 45% discount was afforded in respect of information which led to the conviction for a subsequent and different offence from that for which the applicant had been sentenced.

61. It is to state the obvious to observe that the range of assistance that a defendant might provide to the authorities is potentially of wide ambit. Thus, in HKSAR v Eriksson, in which this court afforded the applicant a discount of 45% from that taken as the starting point for sentence, it was noted that the assistance provided by the applicant was considerable:[37]

“ He gave information to the police that led to the arrest of 9 individuals in four different cases. Of the 9 arrested persons, 7 were convicted of various charges and 2 were acquitted. The assistance to the ICAC resulted in the arrest of 3 persons were arraigned with conspiracy to trafficking dangerous drugs and perjury. One of them was convicted.”

62. The statement of Cheung JA in HKSAR v Chan Sau Ming[38], to which Mr McGowan made reference, cited earlier in this judgment[39], must be viewed in the context of that case. There, having pleaded guilty to a charge of conspiracy to defraud, the appellant had given evidence for the prosecution against a co-accused, but the judge had refused to afford her any discount in addition to the one-third discount for her plea of guilty, finding her to have been a reluctant witness. Noting that the respondent accepted that the applicant could be described as ‘up to proof’ of her witness statement and that there was no indication that the appellant had given evidence at variance with the rest of the prosecution case, this court said that the appellant was entitled to expect a further discount in her sentence and afforded her the same 50% discount afforded to another accomplice who had given evidence for the prosecution.

63. In HKSAR v Tse Yiu Ming, having pleaded guilty to charges of false imprisonment, theft and wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212 the applicant was put forward by the prosecution as a witness in the trial of his co-accused. The prosecution case depended on admissions made by his co-accused together with his anticipated evidence as outlined in his statement to the police. In the course of a voir dire challenging the admissibility of those admissions, the co-accused pleaded guilty. This court noted that the judge had assumed in the applicant’s favour that his “willingness to give evidence against them was instrumental in effecting their change of plea”. In the event, the applicant was afforded a discount from the starting point taken for sentence of a little less than 40%. However, observing that the overall starting point taken to sentence was “too low and that the applicant was fortunate in the circumstances to have received a sentence as low as he did” this court stated, “we do not think we are justified in interfering in this particular case.”

64. In HKSAR v Cheng Chong Shing, after he had been sentenced, the appellant had given evidence in one trial against a person alleged to have offered him advantages as an agent, reciprocal charges to that which he had pleaded guilty. However, the magistrate acquitted that defendant, although it was accepted in this court that the appellant had given evidence in accordance with his witness statement. In a second case, of conspiracy to offer advantages to an agent involving another defendant in respect of which reciprocal charges the appellant had pleaded guilty, the defendant pleaded guilty on arraignment, so that it was not necessary for the appellant to give evidence. This court described the appellant as the principal prosecution witness in each case and did not advert to any other evidence as critical to the prosecution case. In the event, although stating that it did not do so, it appears that the court afforded the appellant a discount of 50 per cent from the starting point.

Kay Sik Hong, Billy

. . . . . . ..

68. The assistance that Lam Wai Sai and Lai Kwok Keung have given to the prosecution since they were sentenced appears to lie in their confirmation of the identification of persons they named as co-conspirators in their respective non-prejudicial statements, in respect of whom proceedings were then pending. Neither was named as a prosecution witness in the prosecution of Chan Lap Tak and So Ka Wai, although their non-prejudicial statements were served on them as ‘unused’ material. In any event, it is apparent from the remarks of Barnes J[40] in sentencing Chan Lap Tak and So Ka Wai, that the prosecution case against each of them relied on their extensive admissions under caution to the police after their return to Hong Kong from the Mainland after their unsuccessful flight. She said that each of them admitted to being parties to the conspiracy to throw corrosive fluid over the victim. Nevertheless, it is clear that in identifying Chan Lap Tak and So Ka Wai in identification parades and, in the case of Lai Kwok Leung, identifying Wun from photographs, they continued after sentence to co-operate with and assist the police investigation. As noted earlier, neither are to be used as witnesses by the prosecution in the trial of Wun Shu Fai.

69. The potential benefit to Lam Wai Sai and Lai Kwok Leung of such assistance provided by them to the authorities since sentencing is to be viewed in the context of our earlier determination that the judge fell into error in affording them the full one-third discount for their pleas of guilty, with the result that the sentences imposed upon them were unduly lenient and unwarranted. Such limited further reduction in sentence that might have been afforded them for that assistance is entirely subsumed by the undue leniency afforded them in the sentences imposed upon them. Accordingly, they are not entitled to any further discount in their respective sentences.

Conclusion

70. We allow the application for leave to appeal against sentence of Kay Sik Hong, Billy and, treating the hearing of the application as the hearing of the appeal, we allow the appeal and quash the sentence of 11 years’ imprisonment and in its place impose a sentence of 10 years and 3 months’ imprisonment. We dismiss the applications for leave to appeal against sentence of Lam Wai Sai and Lai Kwok Leung.

(MARIA YUEN) Justice of Appeal (Michael Lunn) Justice of Appeal

Mr Wesley W. C. Wong, SC and Ms Fontaine Lai, PP, of Department of Justice, for the respondent

Mr James H.M. McGowan, instructed by Lo, Wong & Tsui, assigned by Director of Legal Aid, for D1

Mr Patrick Marray, instructed by Wat & Co., assigned by Director of Legal Aid, for D3 and D7

Ms Barbara Wong, instructed by C.K. Mok & Co., assigned by Director of Legal Aid, for D6

_____________________

[1] Appeal Bundle, page 48 N - 49 N.

[2] Appeal Bundle, page 42 R to 43 P; page 53 Q to 54 R.

[7] Appeal Bundle, page 49 N - 50 C.

[8] Appeal Bundle, page 50 N - P.

[9] Appeal Bundle, page 50 C - L.

[28] R v Chung Kin Wah (CACC 700/1996; unreported, 26 June 1997) andHKSAR v Leung Cho Yi(CACC 358/2008; unreported, 30 April 2009).

[29] HKSAR v Yu Wai Chu (CACC 300/2000; unreported, 20 December 2000).

[30] HKSAR v Lam Ming Wing (CACC 152/2007; unreported, 26 November 2009).

[31] R v Chan Chi Lun [1989] 1 HKC 70 at 73 C.

[32]R v Chung Kin Wah (CACC 700/1996; unreported, 26 June1997).

[33] R v Cameron [2002] 187 ALR 65.

[34] HKSAR v Ma Ming (CACC 23/2012; unreported, 12 September 2012 at paragraph 23).

[35] HKSAR v Chan Wai Ming, William (CACC 53/2013; unreported, 30 July 2013).

[36] Z v HKSAR (2007) 10 HKCFAR 183 at 194 D - G, paragraph 23.

[37] HKSAR v Eriksson; page 3, paragraph 8.

[38] HKSAR v Chan Sau Ming; pages 13-14, paragraph 24.

[40] HKSAR v Chan Lap Tak and So Ka Wai (HCCC 121/2012; 9 November 2012).