R. v. CHU KWAI YING and Another

IN THE COURT OF APPEAL

1996, No.250

(Criminal)

_______________

_______________

_______________

J U D G M E N T

_______________

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

1. The applicants pleaded guilty before His Honour Judge Bailey in the District Court on 22nd April and 19th April 1996 respectively. They faced a joint charge (charge 1) with two others of assaulting Ho Suk-yee on 12th September 1995, thereby occasioning her actually bodily harm, contrary to Common Law and punishable under section 39 of the Offences Against the Persons Ordinance, Cap.212. Charge 2 accused the female applicant (D1) of a further assault, with one other named person (D3), on Ho Suk-yee thereby occasioning her actual bodily harm. This offence was at a different location but on the same date as charge 1.

2. Charge 4 was closely linked to charge 2. It related to the 1st applicant and accused her and D3 of assault on 12th September 1995 on Ho Suk-yee by beating her with intent to cause her to do acts which she was not legally bound to do, contrary to section 25 of the Crimes Ordinance, Cap.200.

3. In charge 6, the 2nd applicant (D4) was accused of preventing the burial of Ho Suk-yee's body between 12th and 22nd September 1995, contrary to Common Law.

4. The 1st applicant, aged 37, was sentenced to 2 years and 8 months' imprisonment on charges 1 and 2 and to 3 years' imprisonment on charge 4. The learned judge ordered that the sentences on charges 2 and 4 should be served concurrently while 18 months of that sentence should be served consecutively to the sentence on charge 1. The total sentence on the 1st applicant amounted, therefore, to 4 years and 2 months' imprisonment.

5. The 2nd applicant, aged 36, who was the 1st applicant's cohabitee, was also sentenced on the 1st charge to 2 years and 8 months' imprisonment. On charge 6, he received a sentence of 4 years' imprisonment of which 12 months was ordered to be served concurrently to the sentence on the 1st charge, with the balance to be served consecutively. In his case, therefore, he received a total sentence of 5 years and 8 months' imprisonment. It is against those sentences that these applicants now appeal.

6. The principal grounds of appeal can be summarised in this way. The trial judge took as his starting point for sentence on charges 1 and 2 the maximum statutory sentence. It is submitted he should not have done and that, having done so, he then failed to reduce the sentence in accordance with accepted guidelines where guilty pleas are entered. Further, it is submitted that all the offences should have been treated as one continuing offence, making wholly concurrent sentences an appropriate order. It is submitted finally that a starting point of 5 years' imprisonment on the 6th charge was too high.

7. The facts were straightforward, although unusual and very grave. On 21st September, 1995, police discovered the decomposed body of a 20-year-old girl named Ho Suk-yee in first floor premises at Yuen Long belonging to the 1st applicant. The body was found wrapped inside a plastic bag tied with nylon string. At a post mortem carried out later on the day the body was discovered, the pathologist found various cut wounds to the body which had been inflicted after death. In addition there were 6 sizeable bruises on various parts of the body. Those bruises were not serious enough in themselves to have caused death but they were inflicted before death with blunt force. No cause of death could be established because of the extent of decomposition in the body.

8. Both applicants were arrested. The 1st applicant admitted that she had known the deceased since August 1995. The Summary of Facts fails to provide the full background to this tragic case. It suffices to say that both applicants admitted to police the assaults upon the deceased which were alleged against them. They admitted, so far as the 1st charge is concerned, physically striking the deceased as well as being present whilst D2 and D3 took turns to assault her.

9. So far as the 4th charge is concerned, the 1st applicant forced the deceased on sit on an invisible chair whilst holding a bucket in her outstretched hands. Each time she fell over, she was kicked by D3 in the applicant's presence. The only instruction given by the 1st applicant to D3 was that the deceased should not be hit in her "important parts".

10. Perhaps a further insight to these facts comes from the 1st applicant's previous convictions which include managing a vice establishment, aiding and abetting the keeping of a brothel and assisting in the management of an unlicensed massage establishment. She also had convictions for burglary and possession of drugs, and had previously been sent to a training centre and to a drug addiction treatment centre.

11. The 2nd applicant had criminal convictions for being a member of a triad society, theft, possession of drugs and living on the earnings of prostitution. In his case, the summary of facts revealed that aside from the assault charge (charge 1), he found the victim next morning lying on a sofa, apparently dead. He was afraid to call the police because of the bruises on her body and so he decided to hide the body. Later he bought a sleeping bag to put the body into and when that became saturated, he bought a plastic suit bag which he put the body inside. 7 days after her death, he discovered maggots, and so he used a pair of scissors to cut into the waist of the deceased in order to observe the degree of decomposition. When he had done so, he decided to leave the body in the premises where the police found it, and not to return.

12. Mr. McGowan submits on behalf of these applicants that the maximum sentence should only be reserved for the most serious cases. We have no doubt that this was one of the most serious cases of its kind and we agree with what the learned judge had to say on that aspect:

"This was an unprovoked assault on a vulnerable victim; a 20-year-old female being set upon by four assailants. There was no sudden loss of control leading to violence. This was a deliberate beating of a victim who could not possibly defend herself against four assailants. As such it deserves to be treated as the most serious form of assault occasioning actual bodily harm."

13. We would also agree with what the trial judge said in relation to charge 4, that this amounted to deliberate torture of the victim by requiring her to perform impossible and painful acts. The starting point of 4 years' imprisonment chosen by the learned judge was entirely appropriate.

14. Following this ill-treatment, both applicants later saw the victim in a distressed state. With a callous disregard for her welfare and motivated by fear of the consequences of their own guilt, each of them did nothing to provide the medical assistance she so badly needed.

15. These applicants can regard themselves, in the view of this court, as remarkably fortunate that they have somehow avoided being charged with manslaughter. The learned judge, mindful that they were not so charged, was nevertheless careful to avoid any temptation to view this case as one of unproved murder.

16. In relation to charge 6 where five years' imprisonment was taken as the starting point, we are unable to say that this was excessive. The body lay hidden for more than a week, with all the consequent distress that is bound to have caused relatives or friends of the deceased. The mutilation of the body aggravated the offence.

17. Next, Mr. McGowan submitted that the sentences should have been made wholly concurrent to each other because they are linked in such a way that they can be regarded as forming one incident involving the same victim. Again, we do not agree. These offences may have involved the same victim but they were separate and distinct. All were deserving of individual punishment save that, as the learned judge found, in respect of charges 2 and 4 these could properly be made the subject of concurrent orders because of the close link with each other.

18. Finally, Mr. McGowan has submitted that an insufficient discount for pleading guilty, particularly in relation charges 1 and 2, was given to these applicants. He points out that on those charges only an 11% discount was given, by reducing the sentences from a maximum of 3 years to 2 years and 8 months. In this regard, he has modern authority on his side. We are mindful, however, of what was said in The Queen v. Cheng Cheuk-man (1994) 3 H.K.C. at p.235 and The Queen v. Lam Wei Mei, Criminal Appeal No. 197 of 1995 (unreported). In the former, no discount from the maximum sentence allowed by law was given. In the latter, as in the present application, a nominal discount from the maximum was given. In both cases, pleas of guilty were tendered. This Court upheld the sentences imposed.

19. The cases where this will happen will be the rare exception to the rule that a substantial discount will usually be given for a plea of guilty, and we have to ask ourselves, on charges 1 and 2 whether or not this case is one of them. We have come to the conclusion that it is one of the rare exceptions. This Court has repeatedly tried to encourage judges to provide discounts on sentence to those who plead guilty. In this particular case, the learned judge was faced with a dilemma. He considered that the maximum of three years was an inadequate penalty having regard to the particular circumstances of these assaults, and we can sympathise with the situation in which he found himself.

20. The learned judge had allowed some of these sentences to run concurrently to a degree that was generous and reasonable, and we take the view that the overall sentences cannot be faulted. Accordingly, these applications are dismissed.