HKSAR v. LO MAN KIT

CACC 79/2024, [2025] HKCA 178 On Appeal From [2024] HKCFI 1216 in the high court of the hong kong special administrative region court of appeal criminal appeal no 79 of 2024 (on appeal from HCCC NO 243 of 2023)

BETWEEN

HKSAR Respondent and Lo Man Kit (盧文傑) Applicant Before: Hon Macrae VP in Court Date of Hearing: 19 February 2025 Date of Judgment: 19 February 2025 Date of Reasons for Judgment: 20 February 2025

R E A S O N S F O R J U D G M E N T On 14 March 2024, the applicant was sentenced on his own plea by Andrew Chan J (“the judge”) to 11 years and 3 months’ imprisonment for the offence of attempted murder, contrary to Common ‍Law and sections 159G and 159J(1)(a) of the Crimes Ordinance, Cap 200. After hearing mitigation, the judge adopted a starting point of 15 years’ imprisonment, for which he discounted the sentence by 25%, since the plea had only been indicated following the applicant’s committal to the High Court for trial on 21 August 2023 but before the matter was listed for trial. The applicant duly applied for leave to appeal against his sentence. Mr Raffell initially put forward 6 grounds of appeal against sentence on the applicant’s behalf, as follows: Ground 1 The starting point was manifestly excessive and the ultimate sentence was also manifestly excessive; Ground 2 The judge failed to consider (i) the previous plea negotiation and (ii) the short time frame between the date of the committal hearing and the applicant’s guilty plea, and gave only 25% discount; Ground 3 The judge failed to take into account relevant mitigating factors; Ground 4 The judge failed to take into account any authorities cited in the skeleton mitigation; Ground 5 The judge erred in relying on an authority, the criminality in which is not comparable, and the starting point is manifestly

excessive; Ground 6 The judge erred in giving the applicant’s act of suffocating Madam Lee using a pillow too much weight. I indicated at the outset of the application that the crime of attempted murder is not one for which there are any guidelines and that the circumstances are invariably peculiar to the individual case. On that basis, I was prepared to grant leave for the sentence to be examined by the Court of Appeal. However, I did not consider Ground 4 was arguable. The fact that counsel cites a particular case in mitigation does not require the judge to deal specifically with that case. Sentencing is an art and judges are not required to join issue on every point or authority made to, or placed before, them in mitigation. As for Ground 5, I did not read the judge’s comments in sentencing as any more than pointing out that in a similar case involving a relationship between two people which had turned sour, the Court had upheld a sentence after trial of 13 years’ imprisonment and stated the general proposition that some cases were more serious than others by virtue of the extent of the victims’ injuries or the fact that a defendant’s actions would almost inevitably have resulted in the death of the victim had circumstances not intervened. Indeed, arguably, I would have thought the authority cited by the judge assisted the applicant if its circumstances are said to be worse

than those in the present case. Accordingly, I indicated that I would not be prepared to grant leave to appeal on Grounds 4 and 5. As for Ground 2, Mr Raffell recognised at the outset the difficulty he faced with his argument in light of the decision in HKSAR v Ngo Van Nam. In any event, he agreed that this appeal was really an argument in relation to the starting point for sentence. I would not grant leave to appeal on Ground 2. However, I said I would be prepared to grant leave to appeal on Grounds 1, 3 and 6. Neither Mr Raffell nor Ms Ma, for the respondent, sought to argue against that disposal of the application. Leave to appeal was accordingly granted on that basis. (Andrew Macrae) Vice President Ms Clara Ma SPP, of the Department of Justice, for the Respondent Mr Andrew Raffell, instructed by Vitus Lawyers, assigned by the Director of Legal Aid, for the Applicant