HKSAR v. LEE KAR YEUNG

CACC 315/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 1998

(ON APPEAL FROM HCCC 267 OF 1997 AND 59 OF 1998)

---------------------------

----------------------

J U D G M E N T

----------------------

Nazareth V-P (giving the judgment of the Court) :

1. This is an application by Lee Kar-yeung who was the 3rd defendant in a murder trial in which he was found guilty and sentenced to 30 years imprisonment. His application for leave to appeal against conviction was dismissed by this Court differently constituted on 27 August 1999.

2. It is of assistance in addressing the submissions to set out the substance of Mr Jerome Matthews's arguments before addressing them. The sole ground of appeal is simply this:

"The sentence of 30 years imprisonment imposed upon the applicant was both manifestly excessive and wrong in principle in that the applicant is likely to remain in custody for a period longer than he would had he been sentenced to a life term."

It is not necessary to detail the facts other than to say that this was a clearly premeditated murder. The victim was referred to as a sometime money lender or a benevolent loan-shark who loaned money to two of the persons convicted (not the applicant). He was lured to a flat and murdered in brutal circumstances compounded by the clumsy methods used by the accused persons. The body was never found. The applicant was only 15 years and 10 months of age at the time of the offence.

3. With that we can turn to Mr Matthews's skeleton argument which, as we have said, it is helpful to outline at the outset. He accepts that the case was a very serious one involving premeditation. The mitigation that was advanced at trial was on the basis that after serving either a life sentence or a lengthy determinate sentence, the applicant would be in his mid-40s at the time of his release. It is submitted "that the legislature would not have given the courts the option of imposing a determinate sentence had it not been their intention that such a sentence, while still reflecting the abhorrence of society to the commission of offences such as this, should result in an offender who was relatively young at the time of commission of the offence, serving as long, or even as almost long a period, as he would had a life sentence been imposed". Life prisoners, it is asserted, normally serve no longer than 25 years although they become eligible for parole after 12 to 14 years. They are on occasion released on parole a few years prior to having served 25 years. Mr Matthews acknowledges that he is unaware of the situation pertaining to youths of 15 years of age at the time of commission of the offence sentenced to life imprisonment.

4. It is convenient to pause at this point in his submission. We have to say we are not ourselves aware, nor do we have any reason to believe, that life prisoners normally serve no more than 25 years, or indeed that they become eligible for parole after 12 to 14 years. Miss Lai, who appears for the respondent, is in a better position to know, having no doubt has looked into the matter. She has informed the court that the respondent is unable to accept that prisoners sentenced to life imprisonment normally serve no longer than 25 years. What she has been able to inform us is that such prisoners, if under 21, have their sentences reviewed every year, and over that age, every two years. In those circumstances the very first plank upon which Mr Matthews's submission rests provides him no support.

5. Returning to his written submission, he submits that a sentence of 30 years will result in the applicant being released from custody at about the same age he would be released on parole from a life sentence, assuming good behaviour. That broadly appears to be the case. His submission continues:

"Notwithstanding that there is no authority, it is worthy of note that the 4th accused in the case was sentenced to 18 years imprisonment having been convicted of the alternative offence of manslaughter. His involvement was almost identical to that of the applicant and it is submitted that it is a sentence in this sort of range that the judge should have considered."

It is not entirely clear upon what basis that Mr Matthews submits that this was a range that the judge should have considered.

6. Proceeding with his submission it is said that in a later case, perhaps even more brutal, Wong J (as he then was) recently imposed determinate sentences of 22 years and 20 years on youths who were respectively about 17 and 14 at the time of the murder. This, it is submitted, would result assuming time-off for good behaviour, in the defendants serving about 14 1/2 and 13 1/2 years respectively; and that such is the use of the sentencing discretion envisaged by the legislature. We find it difficult to follow how that conclusion can be reached. It is clear from the amending legislation in 1997 that it was enacted to confer upon the courts where convicted persons are under the age of 18, the option to award determinate sentences. Despite making due allowance for Mr Matthews having dealt with both his points together, i.e. that the sentence was manifestly excessive and also wrong in principle, we have to say that we find nothing in the legislation which goes beyond providing an option to the courts to impose a determinate sentence. Nor are we able to unearth any implication that sentences of 20 to 22 years were envisaged for such offenders. Indeed, in that respect, Mr Matthews sought to derive some support from three authorities listed by the respondent, i.e. HKSAR v Cheng Yat Ming, CACC 592 of 1996, HKSAR v Vo Van Hung, CACC 417 of 1994 and HKSAR v Lau Kin Hung, CACC 357 of 1997. However, the significant feature that emerges from them is that the determinate sentences imposed were of the order of 28 or 29 years. They plainly do not support any submission that sentences of the order of 22 or 20 years are called for in the circumstances of young offenders even of the age of 15. Moreover, in the several cases referred to in the course of the hearing, it became apparent that sentences received by accused persons of that sort of age were not dissimilar to that imposed upon the applicant. In those circumstances we do not accept that there was any error of principle as submitted.

7. As to whether the sentences here are excessive, the 28 or 29 years sentences in the cases mentioned are not only indistinguishable in principle but also in any significant terms of duration from the sentence of 30 years here. There are likewise no other grounds that we can see for suggesting that the sentence of 30 years was manifestly excessive. In terms of premeditation, this case can be seen in an unusually clear way to have been premeditated. Moreover, the methods involved were unquestionably brutal. In these circumstances there is no merit in the submission that the sentence of 30 years was manifestly excessive.

8. There is accordingly no good reason for interfering with the sentence. It is neither wrong in principle nor manifestly excessive. We refuse leave to appeal against sentence.