HCCC37/2010
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A A
B HCCC 37/2010 B
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E CRIMINAL CASE NO. 37 OF 2010 E
____________
F F
G HKSAR G
H and H
I I
CHI Chi-hong, Ken (池志康)
J ____________ J
K K
Before: Hon Wright J
L Date of Hearing: 9 August 2010 L
Date of Sentence: 9 August 2010
M M
Offence: (1) Blackmail (勒索罪); (2) Possession of an offensive weapon
N in a public place (在公眾地方管有攻擊性武器); (3) Throwing corrosive N
fluid with intent (有意圖淋潑腐蝕性液體)
O O
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P P
SENTENCE
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Q Q
R R
1. You were charged originally with the commission of eight
S offences, but an amended indictment was proffered in which the third to S
eighth counts were combined in one. When this matter came before this
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court for a pre-trial review in June you indicated your intention to plead
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guilty to those charges. This you did today and have been convicted upon
C your own pleas and your agreement of the summary of facts. C
D D
2. The three counts are one of blackmail contrary to s. 23(1) of
E the Theft Ordinance, Cap. 210, which occurred on 14 July 2009 in E
Mongkok in which you made an unwarranted demand, with menaces, from
F F
Chan Chi Ming to pay the sum of $380,000 and one of possession of an
G offensive weapon in a public place on the same date and place, contrary to G
s. 33(1) of the Public Order Ordinance, Cap. 245. The third count, which
H H
plainly is the most serious of the three, is one under s. 29(c) of the
I Offences against the Person Ordinance, Cap. 212, arising from the fact that I
on 6 September 2009 in Mongkok you threw sulphuric acid with intent to
J J
cause grievous bodily harm to Chan Chi Ming: it is a matter of fact that, in
K doing so, you also caused harm to five other people. K
L L
3. The maximum penalties provided by law are: for the
M blackmail offence, 14 years imprisonment; for the offensive weapon M
offence, 3 years imprisonment for a person of your age; for the third
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offence, life imprisonment.
O O
4. The summary of facts which you have agreed read, in regard
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to the first two charges:
Q Q
"1. Chan Chi-ming (Victim 1) operates together with his wife
Tam Wai-fan a hawker clothing stall outside 34 Tung Choi Street,
R Mongkok in the Ladies market. R
2. During 2006, Victim 1had lent money to an individual
S called Fei Lung in consequence of that individual rendering S
assistance to him in a business matter. Thereafter Fei Lung had
T attempted unsuccessfully to obtain further monies from Victim T
1in the sum of $400,000. Victim 1 paid $20,000 in the hope that
this would be the end of the matter. Then in mid-June 2009, the
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accused arrived at Victim 1’s stall and invited him to have a
meeting with Fei Lung in Shenzhen after claiming to be Fei
C Lung’s follower in the 14 K triad society. Victim 1 declined. C
On 14 July 2009 at about 10:30 PM the accused accosted Victim
D 1 as he made his way home... He approached and asked Victim D
1"When would you repay the $380,000 owed to my big brother.”
E
Victim 1 stated he did not owe any money to his "Big Brother"
E
whereupon the accused took out a pen knife some 5 inches long
from his right front trouser pocket and attempted to poke Victim
F 1 in the abdomen. There was a struggle during which the accused F
himself was cut then he fled the area. Victim 1 went home, then
fearing for the safety of his family made a police report."
G G
H 5. You were arrested in respect of those two offences a week H
later and identified by Mr Chan at an identification parade. In a subsequent
I I
interview you claimed that you had overheard Fei Lung demanding
J $380,000 from Mr Chan, that you were short of cash yourself so decided to J
see whether you could extract some money from him.
K K
L 6. You were subsequently charged with these offences and L
M
appeared in the magistracy where you were remanded in custody. On 3
M
September 2009 you applied for and, perhaps surprisingly, were granted
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bail until 7 September 2009. Those dates are relevant given the date of
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commission of the third offence.
O
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7. I turn now to what it was that occurred on the 6 September
Q 2009. This also appears from the summary of facts which you have agreed. Q
At about 5:50 pm that day Mr Chan was sitting on the pavement near his
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stall when he saw you walking quickly towards him. You were holding a
S flask in your right hand. You called to Mr Chan using his nickname, S
unscrewed the flask and threw the contents towards his face. Having done
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this you ran off along Tung Choi Street. Mr Chan went to a nearby
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restaurant where he was assisted in washing himself with fresh water.
C Regrettably, this appalling act did not only affect Mr Chan at whom it was C
aimed: Mr Chan’s wife; a fellow stallholder and friend; two other stall
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holders; and a visitor to a nearby stall, Li Juan whom I name for reasons
E which will become apparent, were also burned by the liquid in the flask - E
six people in all including Mr Chan, although four other bystanders
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apparently were in contact with the acid when those six people moved past
G them. G
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8. When you ran off you were pursued by the wife of Mr Chan
I who was shouting. Two off-duty police officers intervened and I
apprehended you. You were identified by her as the person who had
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thrown acid earlier and admitted this to be so. There was then a struggle
K during which two items fell from your bag, a glass bottle which broke and K
a plastic bottle. When you were arrested and cautioned you said that Mr
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Chan had harassed your wife, made you a cuckold and had deceived you in
M a business transaction. You added "Today I bought the strong acid M
specially for throwing it at him". You now accept that there had never been
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any question of Mr Chan harassing your wife or of you being involved in
O any business transaction with him. O
P P
9. The fact that you went out specifically to purchase the acid in
Q order to throw it at Mr Chan and then decanted it into a suitable vessel, Q
R
indicates premeditation of and preparation for the attack on Mr Chan. This
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was not a spur of the moment action.
S S
T
10. Subsequently, two bottles seized at your home were found to
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contain a liquid containing 98% weight by weight of sulphuric acid.
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Forensic examination of the flask, broken glass fragments and broken
C bottle all revealed the presence of sulphuric acid, traces of which were also C
found on some of the clothing of the victims. The plastic bottle which fell
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from your bag was found to contain sodium hydroxide, a strong alkali.
E Sulphuric acid having a concentration of 97 to 98% is described as being E
"...highly corrosive, capable of causing severe burn to skin and permanent
F F
damage to eyes". It is, sadly, a fact that it is far from rare for precisely this
G type of damage to be seen in these courts. G
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11. I turn now to the injuries sustained by the various people
I mentioned in Count 3 but qualify the description I am about to give with I
the observation that mere words, especially couched in technical terms,
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cannot properly convey the horror of the injuries that you intentionally
K inflicted upon Mr Chan and the further consequences of that conduct to the K
other victims, particularly Li Juan. The photographs that are before me
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bring out, starkly, the effects of your behaviour: I have photographs of the
M injuries inflicted shortly after the event and updated photographs in respect M
of a number of the injured persons.
N N
O 12. Of the six people named in Count 3 as having been injured by O
your conduct, Mr Chan and Ms Li were by far the more seriously injured.
P P
Mr Chan, a 54-year-old male, sustained a full thickness burns over his
Q forehead, left ear, left anterolateral neck, central chest, whole left upper Q
R
limb, left leg and right forearm being a total of some 16% of his body area.
R
He was hospitalised from the day of the offence, 6 September 2009, until
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15 October 2009. He underwent surgery on 19 September 2009 for
T
debridement of the necrotic tissue and skin grafting. He is, even now, still
T
being seen on a regular basis by the plastic surgery team at Queen Mary
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Hospital: although the burns have healed the resultant scarring is still being
C monitored and he is being treated with pressure garment treatment at C
present. He carries truly dreadful disfigurement as a result of your attack.
D D
E 13. Ms Li is a 24-year-old female. She was taken to Kwong Wah E
Hospital where she was found to have full thickness burns involving face,
F F
neck, anterior chest wall, right arm and hand, and right calf and foot to a
G total body surface area of 7%. She underwent two debridements and, G
presumably, skin grafts and was discharged on 3 October 2009. I have no
H H
desire to add to her anguish by describing her wounds but to call them
I ghastly would be an understatement. At the pre-trial review the prosecution I
was asked to obtain impact statements from the persons injured: the only
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one of any real assistance is Ms Li’s. The following extract from it gives a
K flavour of the devastating effect on her: K
L
"... after being admitted to the hospital for about a week, I was
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arranged to undergo a skin transplantation surgery in which the
doctor transplanted skin from my right thigh to my neck, my
M chest, my right forearm and upper arm. The doctor arranged a M
follow-up consultation for me... a month after I was discharged.
When I attended Kwong Wah Hospital in follow-up consultation
N N
a month later, I was told by the hospital staff that I still owed the
hospital a consultation fee of nearly $100,000 and I had to pay
O the fee before attending any follow-up consultation. As I did not O
have a job, I was not able to pay the money back to the hospital
and could no longer attend any follow-up consultation. I did not
P consult any other doctor and in about November 2009 I bought a P
pressure garment... I have not consulted a doctor ever since
Q because I do not have money.
Q
... the scars left affect my appearance. Since the incident
R happened, I do not dare to go to crowded place. My neighbours R
laugh at me and I do not dare to go out to meet people.... I
always feel a prick on the injured skin and it hurts like I was just
S S
burnt. My skin stiffens after the skin transplantation. Besides, the
pressure garment recommended by the doctor has to be worn 24
T hours. I cannot sleep at night because of the garment the prick. T
My daily life is seriously affected for I have to wear the garment
during the four seasons of the year. When going out, I am really
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worried that others will see or know that my skin has been badly
injured.
C C
This incident also affects the relationship between my husband
and me. We are now a nominal couple and our relationship is in
D name but not in reality. He does not touch me since the incident D
happened. He does not care about me and I have not seen him for
E
3 to 4 months already. The incident makes me feel sad all the
E
time and causes many impacts to me. I have lost a lot including
my husband. I am afraid that I will be alone as nobody wants to
F be with me. I always recall the course of how the incident F
happened and then cry alone."
G G
14. TAM Wai-fan, Mr Chan’s wife, was treated and discharged,
H H
the diagnosis being mixed first and second degree chemical burn wounds
I over the face, both sides of neck, both upper limbs, abdomen and both I
lower limbs involving around 2 to 2.5% of the total body surface area.
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K 15. WONG Mei-ling was taken to Queen Elizabeth Hospital K
where she was treated for second degree chemical burns over both arms,
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right forearm and right foot involving less than 1% of the total body
M surface area. She was discharged after treatment. M
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16. LAM King-fong was taken to Queen Elizabeth Hospital where
O she was treated for first to second degree burns to her left cheek and right O
chest, right forearm and left thigh covering a total body surface area of 6%.
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She was discharged after treatment.
Q Q
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17. XU Xizhung was taken to Queen Elizabeth Hospital where he
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was treated for second degree chemical burns over his right forehead, right
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arm, and left calf to a total body surface area of less than 1%.
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18. Fortunately, the wounds and residual scarring of the latter four
C named persons were, comparatively speaking, minor. The four other C
bystanders with whom the acid was in superficial contact were treated and
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discharged.
E E
19. The throwing of the sulphuric acid at Mr Chan can only be
F F
described as deeply wicked. It is unclear to me precisely why you did it but
G from the facts which you have agreed there are only two inferences: either G
this was commercially motivated in the sense that it was part of an ongoing
H H
attempt by Fei Lung to recover the imagined debt from Mr Chan and you
I were participating, whether gratuitously or for reward, in that attempt; or, I
if you told the truth about your demands of Mr Chan being a solo attempt
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on your part to squeeze some money out of him under the pretext of acting
K on behalf of Fei Lung, it was an act of pure revenge against Mr Chan K
presumably for having made a complaint to the police and identifying you
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at the identification parade. No matter which it was, it does not reduce your
M culpability. M
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20. The evil contained in this offence is reflected by its title: the
O substance is thrown intending to cause grievous bodily harm. You did not O
intend to kill Mr Chan. What you intended to was to cause him the
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maximum physical consequences that it is possible for one human being to
Q inflict on another short of death. What you set out to do was to cause him Q
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immediate pain and suffering from the burning by the sulphuric acid and
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then to condemn him to spend the rest of his life bearing the scars which
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you had inflicted upon him.
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21. This is sadistic conduct which is designed to inflict lifelong
C physical and mental pain on the victim. C
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22. Judges say from time to time that a particular offence causes
E revulsion in the community. That is never better illustrated than this E
offence which is specifically designed to maim and to create revulsion
F F
towards the victim, who in reality is entitled to sympathy and
G understanding, rather than towards the perpetrator of the crime who should G
be subject to universal condemnation.
H H
I 23. Acid is all too commonly used as a means of inflicting pain I
and disfigurement and extracting revenge in a domestic environment: in
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those situations, as tragic as they may be, there is no danger to third parties.
K In this particular matter, the consequences of your conduct extend well K
beyond Mr Chan. That conduct has caused pain, discomfort and minor
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disfigurement to other people: it has caused irreparable harm to Ms Li.
M Whilst it may be said on your behalf that you did not intend any specific M
harm to anyone other than Mr Chan, to take with you a quantity of
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sulphuric acid such as to cause the damage it did and then to throw it about
O in a market place, simply must mean that you would have known the O
inevitability of causing harm to people other than Mr Chan - yet you
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callously and recklessly persisted. I regard that as a materially aggravating
Q feature. Q
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24. Every time Mr Chan or Ms Li looks at his or her body, every
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time he or she glances in a mirror or sees his or her reflection in a shop
T
window each will be reminded of the enormity of your conduct. Each will
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have to live the rest of their lives seeing, on a daily basis, the product of
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your viciousness. Each will have to confront, on a daily basis, the
C prejudice which exists in our community towards persons who differ from C
the norm, who are disfigured.
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E 25. There is a real need, and this is one of the four pillars of E
sentencing, for deterrence in a case like this. It is necessary that people
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who might be tempted to follow your example and to resort to violence of
G this nature be aware that they run the risk of very substantial term of G
imprisonment.
H H
I 26. Deterrence is often expressed as being general, in the sense I
that I have just mentioned, and specific, in the sense that it is aimed at
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discouraging an offender from repeating the same form of conduct. It is
K clear from your criminal record that deterrence has been wholly ineffective K
insofar as you are concerned.
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M 27. You started offending when you were 13 years of age and M
your very first offence was one involving violence. At the time of
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commission of this offence you were 28 years old. You have already
O amassed convictions for 21 offences. They show a wide spectrum of O
criminality: assault with intent to rob, criminal damage, common assault,
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theft, robbery, possession of dangerous drugs, driving under the influence,
Q managing a vice establishment, possession of an offensive weapon, Q
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assaulting a police officer, fraud and assault occasioning actual bodily
R
harm. It is plain that you are no stranger to violence. That, too, is an
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aggravating feature insofar as you are concerned.
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28. I have been referred to a number of cases in relation to this
C offence and the sentences have been imposed in them. They are, essentially, C
unhelpful other than to indicate that a custodial sentence, and almost
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inevitably a substantial custodial sentence, is appropriate. Sentences in
E offences of this kind are entirely fact sensitive. Inasmuch as it may be of E
any assistance at all, other than to demonstrate that cases are fact sensitive,
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there is an aggregation of previous decisions to be found in HKSAR v Lam
G Ming Wing CACC 152/2007 at §103. G
H H
29. I have been provided, by your counsel, with a letter from you
I in which you profess remorse. I say, openly, and that I do not accept that to I
be genuine. I note the second letter which indicates that you claim to have
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found religion during your incarceration. Your expression of remorse is
K driven by the fact of your apprehension and your awareness that you will K
face a substantial term of imprisonment.
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M 30. In regard to the sentence to be imposed in respect of the M
blackmail charge, I have been referred to a number of decisions which
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indicate a general trend for a sentence of this offence where a weapon is
O produced or where there are triad overtones of approximately 4 years O
imprisonment. In this matter, there were both. Whether you were employed
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by Fei Lung or whether you were acting alone, the nature of your threat
Q was such that triad involvement was implicit. In addition, you used the Q
R
weapon which formed the subject matter of the second charge.
R
S S
31. As to the second charge, it is plain that you armed yourself
T
with the knife specifically to threaten and, if he resisted, as he did, to carry
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out the threat to Mr Chan. You used the knife on him. Fortunately, Mr
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Chan was made of sterner stuff and resisted your attempts to assault him
C resulting in you being wounded, presumably in a minor fashion, by your C
own weapon. There is a measure of natural justice to be found in that
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outcome.
E E
32. In respect of the blackmail offence I take a starting point of 5
F F
years imprisonment after trial. In respect of the second count, possession of
G an offensive weapon, I take 2 years imprisonment as the starting point after G
trial. In respect of the third offence, I take 18 years imprisonment as the
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appropriate starting point after trial. I acknowledge that this is a substantial
I sentence. It is intended to be. I
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33. You did not plead guilty to these offences at the earliest
K opportunity, which would have been during committal proceedings in the K
magistracy. I acknowledge, however, that in accordance with current
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sentencing practice I am obliged still to afford you a full one third discount
M for your pleas at this stage, whether I regard that as deserved or not in this M
case. I will reduce the sentences accordingly. There is no further mitigation
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available to you.
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34. That reduces the sentence on Count 1 to 3 years 4 months
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imprisonment, on Count 2 to 1 year 4 months imprisonment and on Count
Q 3 to 12 years imprisonment. Counts 1 and 2 are closely associated conduct Q
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and it is appropriate that the sentences be served concurrently with one
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another. I so order. In principle, those sentences should be served
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consecutively to that on Count 3 as they are separate and distinct acts.
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35. I then have to have regard to your overall criminality and to
C ensure that it is properly reflected in total sentence imposed upon you. If I C
ordered that the sentences on Counts 1 and 2 be served consecutively in
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their entirety to that on Count 3 you would serve a period of 15 years 4
E months imprisonment. Your conduct deserves condign punishment. E
However, I am satisfied that, overall, a period of 13 years 6 months
F F
imprisonment is appropriate. I consequently order that the sentence on
G Count 3 is to commence 1 year 6 months after the commencement of the G
sentences on Counts 1 and 2.
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I 36. You have recently been sentenced to further periods of I
imprisonment in respect of separate and distinct offences committed prior
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to these. I see no reason why these sentences should not be served
K consecutively to those sentences and, insofar as it may be necessary, I so K
order.
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M M
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O O
(A R WRIGHT)
P Judge of the Court of First Instance P
High Court
Q Q
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S
Mr P J Power, Senior Assistant Director of Public Prosecutions of the
S
Department of Justice, for the HKSAR
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Mr Caesar Lo, instructed by Messrs Antony So & Co (DLA), for the
Accused.
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