Case Detail

CACC 4/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 4 OF 2003

(ON APPEAL FROM HCCC 138 of 2002)

____________________

BETWEEN

	HKSAR	Respondent
	and
	MA CHIU SING (馬照聲)	Applicant

____________________

Before : Hon Stuart-Moore VP, Burrell and Suffiad JJ

Date of Hearing : 15 June 2005

Date of Judgment : 15 June 2005

______________________

J U D G M E N T

______________________

Stuart-Moore, VP (giving the judgment of the Court):

Background

1. On 17 August 2004, this court (differently constituted) gave judgment (see HKSAR v Ma Chiu-sing [2004] 2 HKLRD 974) setting out its reasons for quashing the applicant’s conviction on counts 3 and 4 of an indictment alleging that he unlawfully and maliciously attempted to administer to or cause to be taken by an unknown person a noxious substance, namely carbofuran, with intent to injure, aggrieve or annoy such person, contrary to section 23 of the Offences Against the Person Ordinance, Cap. 212 and section 159G of the Crimes Ordinance, Cap. 200. The applicant had pleaded guilty to both these counts.

2. The same indictment contained 3 additional counts to which the applicant also pleaded guilty (counts 1, 2 and 5). These alleged maliciously sending letters threatening to murder or kill unnamed persons, contrary to section 15 of the Offences Against the Person Ordinance.

3. The appeal relating to conviction on counts 3 and 4 came before this court by a somewhat circuitous route. Originally, the applicant only applied for leave to appeal against sentence which amounted in all to 6 years and 8 months’ imprisonment on the 5 counts to which he had pleaded guilty. However, it quickly became apparent that the applicant’s pleas of guilty to counts 3 and 4, which required proof of specific intent, could not be permitted to stand. The mitigation, borne out by the Summary of Facts to which briefly we shall turn in due course, revealed that it was an integral part of the applicant’s case that he did not intend to cause harm to anyone, having issued warnings about what he had done and having identified the exact locations where contaminated food had been left. Mr Grenville Cross, SC, DPP, then representing the respondent, duly conceded that the pleas of guilty to these counts had been entered in error. His application for a retrial of those counts was refused on the ground that there was little prospect of conviction upon them.

4. The court next turned its attention to sentence. On counts 1, 2 and 5, on which the applicant had received concurrent sentences of 5 years’ imprisonment (contrary to the headnote in the report of this case at page 975A which is in error), this court, in the knowledge that the judge had taken 7½ years’ imprisonment as a starting point for each offence, adjusted the length of the applicant’s sentence by ordering partially consecutive sentences on counts 2 and 5 so that he was still left with a totality of 6 years and 8 months’ imprisonment to serve. This was because, whilst the sentences for the section 23 offences in counts 3 and 4 for which the applicant had received concurrent terms of 1 year and 8 months’ imprisonment to run consecutively to the sentence of 5 years on the other counts had been quashed, the evidence on those counts was relevant to the ‘section 15’ counts (1, 2 and 5) and added to their gravity. (It is to be observed that headnote (4) at page 975I is also in error as this court adopted a starting point for the section 15 offences of 7½ years’ imprisonment, not 7 years as stated).

5. The matter now returns to this court as a renewal of an application for leave to appeal out of time against conviction. This is confined to the conviction on count 5. When the leave of the single judge was sought on 6 January 2005, that application was refused.

6. The applicant, as we have indicated already, pleaded guilty to count 5 on his arraignment. This occurred on 28 November 2002 and he was duly sentenced on 13 December 2002. The applicant then applied for leave to appeal against sentence on 3 January 2003 which, again as we have indicated, led to the applicant making, at the court’s invitation, a late application for leave to appeal against conviction regarding counts 3 and 4. This resulted in the judgment (above) given on 17 August 2004 which was in his favour on conviction but against him on sentence.

7. On 6 September 2004, over 1½ years after sentence was imposed following his pleas of guilty, the applicant applied for the first time for leave to appeal against conviction on count 5. After leave had been refused by the single judge on 6 January 2005, the applicant renewed his application to this court on the following day.

The facts

8. The background facts, taken from the Summary of Facts, are summarised in the earlier judgment concerning this case and there is no need to repeat them all. In essence, the evidence revealed that the applicant, signing himself ‘HK Bin Laden’, sent identical letters to 3 newspaper offices indicating, as was in fact true, that he had put poison into a certain food product in a supermarket and threatening that, if certain members of the Government had not resigned within a month, no further warning would be given before ‘the next poisoning action’. This would target other more general locations, perhaps killing countless people. These letters, which enclosed a small sample of the poison he had used, ended with the threat that he was not to be underestimated or thought of as someone not having “enough guts” to do this. The letter went on:

“ … if my demand cannot be met, I guarantee that I will plan the HK version of 9/11 …”

9. The particulars of count 5 were that on 2 October 2001, the applicant, “maliciously, knowing the contents thereof, sent a letter to Apple Daily Co. Ltd, threatening to kill an unnamed person or persons”. After the applicant had pleaded guilty, counsel confirmed that the plea accorded with the applicant’s instructions. It was also in agreement with the admissions made by the applicant to the police when he was interviewed. When the Summary of Facts was read out in court, the applicant was asked if he understood what had been said. He replied that he both agreed with and understood the summary.

Ground of appeal

10. In a series of 6 letters, the applicant has set out at length his ground of appeal. It amounts to a complaint that by reference to the date in the 5^th count (2 October 2001) it is apparent that this related to sending a threatening letter by fax to the Apple Daily, as this was the date on which the newspaper company received such a fax. However, it is the applicant’s case that he sent a letter by ordinary mail on the same day, namely 27 or 28 September 2001, as the threatening letters which were sent by him to two other newspapers. The precise terms of this ground read as follows:

“ Due to serious negligence, the trial judge failed to notice from the video interview that I had made it clear that the letter was posted to Apple Daily. The details were clearly stated in the Summary of Facts. “He had posted these to the offices of Oriental Daily News, Sing Tao Daily and Apple Daily.” The (content of the) charge laid against me, (namely), sending fax to Apple Daily is different from what I said in the summary.

On the one hand, it was shown in the Summary of Facts that it was Apple Daily that I posted the letter to; on the other hand, I pleaded guilty to the charge of sending fax to Apple Daily. However, the trial judge was not aware of the problem. He should first ask for clarification from the prosecution before he could pass the right and appropriate sentence.

Since I did send letter of threat to Apple Daily, I did not wish to raise defence by quibbling over the issue whether it was sent by mail or fax. It was to avoid making the judge angry and thus resulting in a severe sentence. As a result, I pleaded guilty. The police officers handling this case were well aware of the fact that I did not send any fax to Apple Daily. In order to lay a charge against me, that group of police officers concealed the evidence so as to get me prosecuted. (This is because it would be difficult to charge me with sending letter of threat to Apple Daily if Apple Daily did not receive any.)

For the sake of my interest and justice, I now make an application for appeal out of time against conviction.”

11. In an affirmation seeking to explain why he was out of time for making this application, the applicant stated:

“ Now I have understood that the judge of a court should deal with a case in a clear and fair approach. After thorough consideration, I reckon that it is necessary to have the truth clarified so as not to let that group of law-violating police officers have their way. One ought to admit what he has done, and is not supposed to admit what he did not do. It is not alright to admit what I did not do. Therefore, although it is out of time, I am making this application to lodge an appeal against conviction in accordance with the principle of justice. In addition, the trial judge was indeed negligent. He accepted my wrong plea of guilty without considering carefully the doubt of the case.”

It goes almost without saying that this explanation provides no excuse for the lateness of this application.

12. The applicant’s letters, taken together, give rise to an application which is nothing short of impertinent. What they amount to is a statement in terms by the applicant that he sent a letter to Apple Daily threatening to murder or kill. However, he has now decided that he has a defence to count 5 because, although he sent such a letter through the mail, he never sent an identical copy of it by fax on 2 October 2001. In the process and for good measure, the applicant has chosen to accuse the judge and the police of dereliction of their duties.

Conclusion

13. Leaving aside (in the absence of legal argument on the applicant’s behalf) the question as to whether this court has jurisdiction to entertain this application (see: R v Pinfold [1988] 1 QB 462), there having already been an appeal against conviction in this case, there is in any event no merit or substance whatever to the application.

14. The applicant pleaded guilty and admitted the facts. There was nothing equivocal about the plea. The Summary of Facts admitted by the applicant states that as well as contaminating foodstuffs in supermarkets situated at Sham Shui Po and in Central, he typed out the threatening letters, printed them, and then placed each of them in an envelope together with a sample of the insecticide he had bought in Zhuhai and had used to contaminate foodstuffs. The allegation that the applicant had sent the letter to Apple Daily was plainly proved and admitted. Whether this was done by fax or by post or, more likely, both, was in the present circumstances neither here nor there. The date in count 5 was an immaterial averment.

15. The application, being bereft of merit, is dismissed.

16. Having given the applicant an opportunity to address us about the propriety of an order for loss of time in the present circumstances, we have concluded that this is precisely the kind of case to which section 83W of the Criminal Procedure Ordinance, Cap. 221, was intended to apply. We make an order that 3 months of the time which the applicant has spent in custody pending the hearing of this application shall not count towards the sentence which he is presently serving.

(M. Stuart-Moore)	(M.P. Burrell)	(A.R. Suffiad)
Vice-President	Judge of the Court of First Instance	Judge of the Court of First Instance

Mr Cheung Wai Sun, DPGC and Mr Peter Power, SGC, of the Department of Justice, for the Respondent.

The Applicant, in person.

CACC000004/2003

CACC4/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 4 OF 2003

(ON APPEAL FROM HCCC NO. 138 OF 2002)

_________________________

BETWEEN
	HKSAR	Respondent

	AND

	MA CHIU SING（馬照聲）	Applicant

_________________________

Coram: Hon Ma CJHC, Stuart-Moore V-P & Cheung JA in Court

Date of Hearing: 17 August 2004

Date of Judgment: 17 August 2004

______________

J U D G M E N T

______________

Hon Ma CJHC (giving the judgment of the Court) :

1. On 13 December 2002, the Applicant was convicted on his plea before Pang J on 3 counts of maliciously sending letters threatening to kill unnamed persons, contrary to s. 15 of the Offences against the Person Ordinance, Cap.212 (charges 1, 2 and 5 on the indictment) and on 2 counts of attempting, unlawfully and maliciously, to administer to or cause to be taken by an unknown person a noxious substance (namely carbofuran) with intent to injure, aggrieve or annoy such person, contrary to s. 23 of the Offences against the Person Ordinance (charges 3 and 4). The same day, the Applicant was sentenced to 5 years for each of the three s. 15 offences (the sentences to run concurrently) and 1 year 8 months each for the two s. 23 offences (these 2 sentences also to run concurrently). The 2 sets of sentences were, however, ordered to run consecutively so that in total, the Applicant was sentenced to 6 years 8 months imprisonment.

2. The facts surrounding the 2 sets of offences were contained in the Prosecution's Summary of Facts which were agreed by the Applicant. In brief, they were as follows :-

(1) At about midday on 28 September 2001, the police received a telephone call from the Applicant in which he said he had put poison into some packets of Maggi instant cup noodles at a Wellcome Supermarket on Lai Chi Kok Road. The police were told to find these cup noodles otherwise the poison would kill people. Upon investigation by police officers, no instant noodle packets or cups were found displayed but instead, there were other Maggi cup foods on sale, all of which were removed out of caution. After examination, it was discovered that one of the cup foods did contain poison, namely 14 mg of carbofuran. Carbofuran is used as an agricultural pesticide. Once taken by humans beyond acceptable limits, it might cause, depending on the dosage of intake, headaches, dizziness, blurred vision, abdominal cramps, vomiting, sweating, diarrhoea, breathing difficulties, convulsions, comas or even death. The acceptable intake of carbofuran in humans is approximately between 0 to 0.002 mg per kilogramme of body weight. The amount of carbofuran found in the cup food was therefore very harmful if consumed by humans. These facts formed the basis for the first of the 2 charges under s. 23 (charge 3).
(2) On the same day (that is 28 September 2001), the General Affairs Manager of the Oriental Press Group received a letter contained in an envelope with the postmark of the day before. The envelope was marked urgent. The letter which was in Chinese was written by the Applicant and signed using the name "HK Bin Laden". The letter stated (the following is a certified translation) : -

"Final Warning to TUNG Chee-hwa, the Sinner through the Ages
I have already put poison in the food in the supermarket. Since this time, (it) is only a warning, therefore, I would make a report to the police myself to tell them the location of the poisoned food. However, if the Sinner(s) through the Ages, TUNG Chee-hwa, LEUNG Oi-see, LEUNG Kam-chung, TSANG Yam-kuen, and TSANG Yuk-shing, who calls a stag a horse and who calls black white, of the Democratic Alliance for Betterment of HK which helps the tyrant to do evil, and

CHAN Yuen-han who loves the Communists/ Communism but/and betrays Hong Kong, if the above rubbish who have brought calamity to Hong Kong and the people of Hong Kong fail to step down within one month, no notice will be given next time when poison is administered. And the poison used will not be the kid's stuff like this time. The locations of the poisoning next time may be in restaurant(s), may be the water heater in canteens, and etc.
Don't ever think that (you) can catch me. Do you think you can post a cop permanently in all the places (?) Furthermore, I will wait for the suitable location, the proper time and the right opportunity before I do the poisoning. One person, ten persons, or one hundred persons may be killed next time. However, when compared with the serious fact that there are people committing suicide everyday under the rule of TUNG Chee-hwa, it is only a small thing. I love Hong Kong, seeing that Hong Kong is doomed to die under the control of this group of people, I have no choice but to take this action. If the above (named) group still has scruples, (they) should step down at once in order to save Hong Kong.
Don't underestimate my ability and the poison (I) possess, and don't ever think that I don't have enough guts to do so, if my demand cannot be met, I guarantee that I will plan the HK version of 9/11, so that the international community will know that the people of HK are so dissatisfied with TUNG Chee-hwa, the Sinner through the Ages, that the accusation has to be made in blood.
Please find attached one pack of 'Kid's stuff' Poison.

Hong Kong is my home I love Hong Kong

HK Bin Laden"

(3) This letter formed the basis for the first of the 3 charges under s. 15 (charge 1). A similar letter was received by the Sing Tao Daily on 28 September 2001 and a fax in those terms was also received by the Apple Daily on 2 October 2001. The latter 2 incidents were the subject matter of the remaining charges under s. 15 (charges 2 and 5).
(4) On 1 October 2001, a journalist at the Oriental Daily received a telephone call from the Applicant, who identified himself as the person who had poisoned some instant cup foods at a Wellcome Supermarket on 28 September 2001. The journalist was told of the Applicant's annoyance that his previous acts had not received the high profile he had expected. He said the purpose of his acts was to air the grievances he held against the Chief Executive. Later that day, in another call to the same journalist, the Applicant stated that he had contaminated a bottle or jar of Cadbury's Chocolate Powder, located again at a Wellcome Supermarket but this time at the store on Queen's Road Central. He wanted the journalist to report this latest threat.

(5) Upon investigation at the supermarket, it was discovered that one of the jars of chocolate contained traces of carbofuran. The amount of that substance was 27 mg. This constituted the basis for the second of the s. 23 charges (charge 4).
(6) After the Applicant was arrested on 2 October following police investigations tracing the calls made by him, he was interviewed under caution. In the video-recorded interviews, the Applicant said the following :-

(a) The reason for poisoning the cup food and the chocolate powder was to bring pressure on the Chief Executive, senior Government officials and certain high profile politicians to resign. He believed that things would improve in Hong Kong if those persons did that.
(b) In the case of the cup food, the Applicant placed the cup in the innermost part of the display shelf in the supermarket and covered it up with other foods because he was worried that someone might actually purchase the contaminated food and consume it.

3. Initially, the Applicant sought leave only to appeal against sentence. However, following the first hearing of the application for leave to appeal against sentence at which this Court questioned the equivocality of the Applicant's plea to the s. 23 charges, the Applicant now seeks leave to appeal out of time against the 2 convictions under s. 23. The reason for saying that the Applicant's pleas to the s. 23 charges should be reversed was that it was an integral part of his case that he did not intend to cause harm to anyone. After all, he had given warnings and even identified the exact location of the contaminated foods.

4. It was explained to us the reason why the Applicant pleaded guilty to the two s. 23 charges in the first place was that he was advised that the necessary mental element in the crime of attempting to commit an offence under s. 23 could be established by showing mere recklessness. This is conceded by Mr Grenville Cross, SC, DPP to be erroneous. The necessary mens rea in establishing an attempt to commit a crime is the same as that required for the full offence. In the context of an offence under s. 23 of the Offences against the Person Ordinance, it is therefore necessary for the prosecution to prove an intention on the part of the accused to injure, aggrieve or annoy a person to whom a poison or other noxious substance has been unlawfully and maliciously administered or by whom a poison or noxious substance had been taken. It is insufficient simply to prove recklessness on the accused's part.

5. As we have noted, the Applicant's case was that he had not intended to harm anyone even though he had placed contaminated foodstuffs in supermarkets that could have been purchased by anyone. This, if true, would have been insufficient to found the necessary mens rea for an offence under s. 23. His plea was therefore wrongly entered and we are satisfied that it should now be reversed.

6. Mr Cross, while accepting that the conviction for the s. 23 offences should be quashed, nevertheless contended that a retrial should be ordered. We see little point in this. While the offences charged under this section undoubtedly involved serious and dangerous acts on the Applicant's part, the facts as contained in the prosecution's Summary of Facts (as admitted by the Applicant) cannot in our view give rise to any reasonable prospect of a conviction, or to put it in another way, a conviction on a retrial would be improbable (see Archbold Hong Kong 2004 at paragraph 4-19). The facts objectively demonstrate, at least there is a reasonable doubt, that the Applicant did not have the requisite mens rea for a s. 23 offence to be established. As we have said, recklessness is insufficient.

7. In the circumstances, we therefore allow the Applicant's leave to appeal against conviction out of time, and treating the present hearing as the hearing of the appeal proper, we allow the appeal and quash the convictions under s. 23 of the Offences against the Person Ordinance (charges 3 and 4).

8. We now turn to the Applicant's application for leave to appeal against sentence for the three s. 15 offences.

9. Here, it was essentially submitted by Mr Paul Wu for the Applicant that : -

(1) All the Applicant did was to air his grievances and complaints against the Chief Executive and the Hong Kong Government, albeit in an improper manner. After all, he did say he loved Hong Kong. The Applicant had acted out of sheer stupidity, rather than out of any malice.
(2) The amounts of poison placed in the cup food and the chocolate powder were not lethal doses and anyone who consumed the contaminated food could expect to recover after treatment.
(3) The Applicant did not intend to harm anyone, hence his warnings. Although he did refer in his letters to serious threats, he did not carry them out. The threatening expressions used in the letters were "mere puffs" (as Mr Wu described them).
(4) Prior to his convictions for these offences, the Applicant had led a blameless life, was of exemplary character and had even rendered community service.
(5) Overall, the sentence of 6 years 8 months was manifestly excessive.

10. These submissions no doubt applied to both sets of offences but as we shall presently explain, although the sentences imposed for the s. 23 offences are now to be discarded, the facts that formed the basis for those offences are relevant in this context.

11. In our view, the seriousness of the s. 15 offences is such as to merit a heavy sentence, certainly at the upper end of the scale (10 years imprisonment being the maximum period of imprisonment). The 2 letters and fax were sent to the 3 largest circulation newspapers in Hong Kong and intended by the Applicant to stir up the public's awareness of the cause which he was advancing. This cause had apparently as its objective the resignation of the Chief Executive, top Government officials and other political figures. The method of advancing the Applicant's cause was to threaten the people of Hong Kong with acts of poisoning, not just using the "kid's stuff" that he had used in the case of the cup food and chocolate powder. Furthermore, the poisoning would occur in less easily detectable locations such as restaurants or the water systems of canteens, and no warnings would be given in future. The threats contained in the letters were intended to be taken seriously if his demands were not met. The words "I guarantee that I will plan the Hong Kong version of 9/11", together with the way the Applicant signed off referring to himself as "HK Bin Laden", if these had been published to the public as the Applicant intended, would have sent a chill throughout Hong Kong never previously experienced. This was, to put it in proper perspective, akin to a threat of terrorism. To say that this was not intended is to fly in the face of the contents of the letters. And, it ought to be remembered, there actually were significant amounts of poison in the cup food and chocolate found in the supermarket. The Applicant's threats were therefore serious and he did intend to harm people unless his demands were met. "Harm" is perhaps an understatement as the Applicant used the word "kill" in his letters. Neither the terms of the letter nor his actions indicate that he was making "mere puffs".

12. The Applicant did not give himself up. It was, as the judge noted, only through the responsible and efficient way that the matter was handled by the management of the Oriental Daily and the Apple Daily that enabled the police to act swiftly and decisively to arrest the Applicant. We shudder at what might have happened if the police had been unable to arrest the Applicant so quickly. The Applicant's previous good character have to be seen against what he did and said in the present case and the very real threats that he posed.

13. In sentencing the Applicant for the three s. 23 offences, the judge used a starting point of 7 1/2 years for each offence, reducing it by one-third to reflect the plea of guilty. He then ordered the sentences to be served concurrently despite being of the view that they were really separate offences. He did so owing to the totality principle (meaning that he took into account the 20-month concurrent sentences passed for the s. 23 offences).

14. We would not disturb the starting point of 7 1/2 years for each of the offences. However, the 3 offences were indeed separate offences since each of the letters and the fax was directed to different newspapers, with the contents intended by the Applicant to be disseminated to the different subscribers of those publications. As we have said, the overall sentence imposed by the judge included the s. 23 offences. Although these offences are now to be discarded, the facts surrounding them are relevant to sentencing for the s. 15 offences. Apart from anything else, they underlined just how seriously the Applicant's threats were to be taken.

15. Accordingly, we take as a starting point a sentence of 7 1/2 years for each offence, reduced to 5 years for the pleas of guilty. However, we order that the terms of imprisonment for the 2nd and 5th charges to be made consecutive to the term of 5 years for the 1st charge to the extent of 10 months apiece. This means that in total, the Applicant is sentenced to a term of 6 years 8 months imprisonment. In our view, this reflects the correct totality of the sentence in the present case.

16. We therefore formally order that the application for leave to appeal against sentence is dismissed but, exercising the power under section 83B of the Criminal Procedure Ordinance, Cap.221, we substitute the concurrent sentences of 5 years for the three s. 15 offences (charges 1, 2 and 5) with part consecutive and part concurrent terms amounting to 6 years 8 months. This coincidence with the overall sentence imposed by the judge is deliberate. If original sentencing had been left to us, the overall sentence might well have been higher and the Applicant can perhaps consider himself fortunate in this regard.

(Geoffrey Ma)	(Michael Stuart-Moore)	(Peter Cheung)
Chief Judge, High Court	Vice-President	Justice of Appeal

Representation:

Mr Paul K N Wu, instructed by Director of Legal Aid, for Applicant

Mr I G Cross, SC, DPP, Mr Peter Power, SGC and Ms Denise S F Chan, SGC, for DPP/Respondent

HKSAR v. MA CHIU SING

Related cases with same parties

Files (2)

“	Due to serious negligence, the trial judge failed to notice from the video interview that I had made it clear that the letter was posted to Apple Daily. The details were clearly stated in the Summary of Facts. “He had posted these to the offices of Oriental Daily News, Sing Tao Daily and Apple Daily.” The (content of the) charge laid against me, (namely), sending fax to Apple Daily is different from what I said in the summary.

	On the one hand, it was shown in the Summary of Facts that it was Apple Daily that I posted the letter to; on the other hand, I pleaded guilty to the charge of sending fax to Apple Daily. However, the trial judge was not aware of the problem. He should first ask for clarification from the prosecution before he could pass the right and appropriate sentence.

	Since I did send letter of threat to Apple Daily, I did not wish to raise defence by quibbling over the issue whether it was sent by mail or fax. It was to avoid making the judge angry and thus resulting in a severe sentence. As a result, I pleaded guilty. The police officers handling this case were well aware of the fact that I did not send any fax to Apple Daily. In order to lay a charge against me, that group of police officers concealed the evidence so as to get me prosecuted. (This is because it would be difficult to charge me with sending letter of threat to Apple Daily if Apple Daily did not receive any.)

	For the sake of my interest and justice, I now make an application for appeal out of time against conviction.”