HKSAR v. YIP KIM WAH AND ANOTHER

HCCC 328/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 328 of 2014

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HKSAR
v
Yip Kim-wah (A1)
Wong Chi-wah (A2)

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Before: Hon E Toh J

Date: 21 August 2015 at 3.13 pm

Present: Mr Nicholas Adams, leading Mr Jonathan Tai, on fiat, for HKSAR
Mr Kevin B Egan, leading Mr Shaphan H Marwah, instructed by S H Chan & Co, for the 1st accused
Mr Martyn Richmond, instructed by S H Chan & Co,for the 2nd accused

Offence: (1) Theft (盜竊罪) (against 1st accused)
(2) Theft (盜竊罪) (against both accused)
(3) Causing grievous bodily harm with intent to do so (有意圖而導致身體受嚴重傷害) (against both accused)

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

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COURT: The victim, Mr Lau, is a respected journalist and was senior editor of the Ming Pao News. He is a quiet man with regular habits and there is no evidence whatsoever from the evidence of any enemies he may have had in the course of his dailylife.

He came to give evidence in court. He was not cross-examined that he had any financial or personal discord with anyone. He is a manof regular habits and one of his routines was to drive from home and to have breakfast at Sai Wan Ho before he started his workday.

The two defendants were contracted some time before the attack to, and I quote, “teach him a lesson” and were to be paid about$100,000 each for their efforts. They then began surveillance on Mr Lau by following him to and from his place of work and decided,in the end, to strike when he parked his car on the seaside promenade in Sai Wan Ho before he went for his breakfast.

In order to carry out this nefarious activity, they bought a beef knife in Shanghai Street and stole a motorcycle and registrationdisk. They also made a false registration plate to be put on the stolen motorcycle to make good their escape and avoid detection.They also, both of them, planned on wearing motorcycle helmets in order to hide their identities and facial features, and they woregloves throughout.

Their plan was originally to attack Mr Lau on 25 February but, on that day, Mr Lau did not go to Sai Wan Ho for his usual breakfastso the plan had to be aborted and postponed to 26 February.

On 26 February, the 1st defendant was the driver of the motorcycle and the plan was that the 2nd defendant would commit the actualattack on Mr Lau. As a result, Mr Lau was severely injured on his back and legs. With what can be described as superhuman calm, MrLau was able to telephone 999 for assistance immediately after the attack.

Mr Lau’s injuries were severe, necessitating a stay in hospital for several months and followed up by physiotherapy for three timesa week, each time for three and a half hours, and he is still doing physiotherapy when he came to court to give evidence. One cansay his recovery is largely due to his resilience and willpower. Life will never be the same again for him because he will forevercarry the scars of the attack, both psychologically and physically, for the rest of his life.

It is a totally senseless, brutal and vicious attack on a human being and, in this case, on a journalist. There is no evidence thathe was attacked because of his profession but members of the press should be equally protected as are any of our citizens as theygo about their daily business without fear.

Those who use the law of force or violence must expect to be visited by the full force of the law. This was a brazen attack and asthe Court of Appeal observed in HKSAR v Kay Sik Hong Billy [2014] volume 4 HKC 202, this was an attack brought against the very foundations of the rule of law in Hong Kong. The attack must be horrifying for right-thinkingmembers of the public because it happened in broad daylight on our streets.

In mitigation, Mr Egan has said on behalf of the 1st accused that this case is not as grotesque as another which I shall shortly bereferring to, the case of Tsang Ho Wai [2008] 4 HKC 1, because in that case, it was an attack on a 7-year-old, and that the sentence need not be one of general deterrence because it isnot prevalent. But the principle of a deterrent sentence is also, and largely, to stop other people wanting to make quick money fromdoing harm to others because they will think twice if they know that a deterrent sentence will be meted out.

The 1st defendant submitted a letter from his sister testifying to the family’s love for him and the family blamed themselves forwhat has happened to the 1st defendant. I can only say that the 1st defendant has only himself to blame for what has happened tohim as he is aged 39 and no longer a teenager.

The letter from the pastor in Lai Chi Kok Reception Centre says he has turned to Christianity and hopefully this will make him a betterperson.

Mr Richmond, on behalf of the 2nd defendant, puts forward some cases in which the starting points vary and submits that in view ofthose cases, that the starting point in this case should be one of between 12 to 14 years’ imprisonment. From the range of sentencesin the cases, one can see that there is no sentencing guideline for offences of this nature and each offence must be looked at onits own specific facts. Some of the attacks may be out of revenge, out of business disputes or because the sentence for the particularoffence of wounding is coupled together with other offences.

On behalf of the 2nd defendant, Mr Richmond also submitted three letters to this court, the first one was written by the 2nd defendant’ssister who pleaded for leniency on the 2nd defendant’s behalf and the second letter is from the same pastor in Lai Chi Kok ReceptionCentre who says that the defendant has developed a more humble personality because of religion.

The third letter is from the Fanling Charitable Association Limited who testify to the fact of charitable works, and similarly forthe case of the 1st defendant from the same organisation also testifying to the 1st defendant’s charitable activity.

But all this pales into insignificance against the gravity of the present offence. Whilst it is true that both defendants have notcommitted any major offences in the past and, as observed by Mr Richmond, there have been no offences of violence, but again, inview of the gravity of the present offence, that is not mitigating circumstance.

There are no mitigating circumstances for either defendant in this case. There has been not an iota of remorse shown. They carriedout this coldblooded attack for financial gain and cold-bloodedly, after chopping Mr Lau, both of them went shopping for shoes andit was a particularly chilling sight to see both of them on the CCTV camera, smiling and relaxed as they walked down the shoppingmall.

While it is true that the particular facts of HKSAR v Tsang Ho Wai & Others [2008]4 HKC 1, are different from the present case, but what the Court of Appeal observed in that case still holds true in that theysaid that persons who commit serious acts of violence against others for financial reward would be treated with particular severityby the courts of Hong Kong, as will those who pay for such offences to be carried out.

The Court of Appeal went on to say that an assault on a victim as a contract should be regarded as an aggravated offence and sentencersshould bear this in mind when selecting an appropriate starting point for sentence after trial.

As Mr Richmond rightly observed, there is no evidence whether the victim, Mr Lau, was attacked because of his profession but I dohave to say this, that we are very lucky in Hong Kong to have a free press and journalists, particularly in a civilised society,hold out a beacon light to shine on the disadvantaged or on the injustices in society to provide a voice for those who cannot speakfor themselves, and therefore, members of the press and journalists are all citizens and must equally enjoy the protection of thelaw.

We also, in Hong Kong, enjoy the protection of our very efficient police force and in this case, I must commend the police, particularlyRegional Crime Unit, Hong Kong Island, Team 1 on a very meticulous and efficient investigation and a professional one in discoveringthe stolen motorcycle, only hours after the attack, parked some way from the scene of the attack which led very quickly, with theco-operation of the mainland authorities, to arrests.

This sort of attack in some countries would have been considered almost unsolvable because there was no way of identifying the assailantsas they were disguised in helmets, and the place of attack was on a quiet seaside promenade.

After listening to counsel and reading the cases I have been referred to, I am of the view that a deterrent sentence for Count 3 isabsolutely necessary in this case. In the case of The Queen v Kay Sik Hong Billy & Others cited above, the Court of Appeal considered that the starting point of 18 years’ imprisonment was high but not excessively so.

The similarity in this case to that of Kay Sik Hong’s case was that the defendants in both cases were mercenaries paid to attack and seriously wound the victim. In fact, I would observethat the planning in this case was even more sophisticated than was done in the Kay Sik Hong case. Not only was there surveillance in this case but the planning was to disguise themselves with helmets and to steal a motorcycleas a getaway vehicle and to go to the mainland, hoping to escape detection. This was indeed a brazen attack on the rule of law inHong Kong.

So having considered the facts in this case, I will sentence in this way.

In Count 1, the 1st accused is sentenced to 6 months’ imprisonment.

On the 2nd count, the 1st and 2nd accused are each sentenced to 12 months’ imprisonment, and the 1st accused will serve the 12 monthsconcurrently with the 6 months in Count 1.

Count 3, the sentence will be one of 19 years’ imprisonment. In the case of the 1st accused, he will serve those 19 years’ imprisonmentconcurrent with the sentences in Counts 1 and 2. In the case of the 2nd defendant, the sentence of 19 years will be served concurrentto the sentence in Count 2.