HKSAR v. CHEUNG KA MAN

CACC 36/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 36 OF 2005

(ON APPEAL FROM HCMP NO. 2218 OF 2004)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. This is an application for leave to appeal against a sentence imposed by Pang J on 18 January 2005 pursuant to the provisions of section 67C of the Criminal Procedure Ordinance, Cap. 221.  The applicant, who was aged 17 years 11 months at the date of the offence with which we are concerned, is a prescribed prisoner as defined by that section, namely, a person detained at executive discretion in respect of whom an application has been made by the Secretary for Justice for determination by a judge of the sentence to be substituted for that order of detention.  It is unnecessary to rehearse the history behind the provisions of section 67C or the provisions themselves: they are fully rehearsed in earlier decisions, including HKSAR v Yeung Mok-yeh CACC 483 of 2004 and HKSAR v Kwan Wing-kei CACC 57 of 2005, 18 July 2005, unreported.

The facts

2. On 11 August 1992 the applicant was convicted upon one count of murder after trial before Bewley J and a jury.  The facts are comprehensively and sufficiently dealt with by the report to the Governor made by Bewley J:

“The defendant was convicted by a jury of the murder of a 13½ year old girl named Lam Pui-yu.  At the time of the commission of this offence the defendant, having been born on 10^th February 1973, had not attained the age of 18 years.  

It was admitted by the defence that the deceased girl had been strangled to death by the defendant, but it was submitted on his behalf that the proper verdict was manslaughter, not murder, on the grounds that he had been provoked to such an extent that he lost his self-control and thereby acted as he did.  After a trial lasting three days and a retirement of four hours the jury, by their verdict of murder, rejected the submission. 

The defendant had been courting the deceased for about a year.  There was evidence that, although he was very attentive, he was also unusually possessive, tending to exhibit symptoms of jealousy when she spoke to other youths.  This had caused disputes between them and by January, 1991 there were indications that the deceased wish to end the relationship. 

The defendant habitually met the deceased when she left the fashion shop in Tsuen Wan where she worked.  On 28^th January he was unable to do so he was unable to do so because he himself was working later than usual.  She told him on the telephone however that she intended to spend the evening with a friend but would ring him later.  In fact she had a date with a new boyfriend.

At 9.00 p.m. the deceased telephoned the defendant and said she would be home soon after 1.00 a.m. but would ring him again before then.  When she failed to so do and also did not answer his pager calls, the defendant was worried and went to the estate in Tuen Mun where she lived.

At 3.00 a.m. the deceased was taken home in a taxi by the new boyfriend.  When she met the defendant she told him she would like to have a talk and as it was cold they went up to the 18^th floor.  Her home was on the 21^st floor.  The defendant did not give evidence and the only direct evidence as to what occurred between them is the statement that he made under caution to the police on 26^th March, 1991.

In his statement the defendant said the deceased told him that she wanted a separation and admitted that she had had sexual relations with someone else.  The defendant was stupefied by this bombshell and seized her neck with both hands until her face turned black and blood came from her nose and mouth.  She did not struggle or cry out.  The defendant in his statement does not make clear the reason for his next move.  He said ‘she played me, relying on her beauty.  After that I used a cigarette lighter to light her hair’.  He then left the staircase and went back to Tsuen Wan by taxi.

At 7.00 a.m. the girl’s body was found by neighbours on the staircase between the 18^th and 19^th floors and the police were called.  Almost all her upper clothing was burnt.  Her face and mouth were burnt.  A white scarf was around her neck, part of which was in her mouth in the form of a gag.

In the opinion of the pathologist who examined the body on 30^th January the deceased had been asphyxiated mechanically, possibly by means of the white scarf.  The gag had been inserted with some force before death but was not itself the cause of death.  He found deep bruising beneath a bruised abrasion on her forehead, which was caused by a hard object.

The pathologist could not rule not manual strangulation but thought it unlikely on account of the absence of bruising or fracture of the windpipe or voicebox.  The soft material of the scarf would have left no marks.

The defendant appeared at his place or work at 12.30 p.m. on 29^th January.  He told a workmate that he had killed his girlfriend because ‘she followed another one’.  He looked gaunt and haggard and requested a place to stay.  He also asked his employer to pay his wages into his workmate’s bank account.  Both requests were refused.  The defendant was carrying a brown handbag.  The defendant then disappeared until he contacted the police on 26^th March.  He arrived at the police station later that day with his parents and his solicitor.

In his statement he also said he did not know if the deceased had been carrying anything but he did not take anything of value from the body.  He admitted he had been wearing a white scarf that night but said he had thrown away all his clothes.

There was evidence that the deceased had been carrying a brown handbag but was not wearing a scarf.  No handbag was found at the staircase and there was no identification on the body.

It was the Crown case that the defendant had gagged the deceased and then strangled her with his scarf in an act of deliberate retribution following her admission of unfaithfulness and request for a separation.  It was suggested that the burning was an attempt to destroy the body in order to avoid suspicion falling on the defendant.  The deceased’s hair was not burnt except for the fringe above her forehead.  It was submitted that her handbag had been taken also to prevent identification of the body.

Counsel for the Crown pointed out that, in spite of having two months in which to think about what he was going to tell the police, there is no mention in the defendant’s cautioned statement of the white scarf around the deceased’s neck, nor of the gag, nor of the blow on the head.

It was left to the jury to decide if the defendant’s actions – in particular his failing to call for medical assistance, attempting to burn the body throwing away his clothes and hiding from the police – might have been those of a panic-stricken man who had been guilty only of a sudden loss of self-control.  The jury also had to consider if the placing of the gag in the deceased’s mouth before he strangled her could be reconciled with such a loss of self-control.

By their verdict the jury answered these questions in the negative, a decision with which I agreed.”

The sentences

3. Bewley J ordered, as he was then bound to do, that the appellant be detained until Her Majesty’s pleasure be known.  The applicant appealed against conviction but his appeal was dismissed on 19 February 1993.  Following the enactment of section 67C of the Criminal Procedure Ordinance, the Secretary for Justice made the requisite application to determine the sentence of this, as well as of other, prisoners.

4. Pang J substituted a determinate sentence of 28 years’ imprisonment, and it is against the length of that term that this appeal is launched.

5. In his judgment, Pang J took the view, for reasons he had provided in earlier judgments, that the appropriate sentence was one of a fixed term of imprisonment under subsection (4)(b) of section 67, rather than imprisonment for life with the prescription of a minimum term under subsection (3).  His conclusion that all prisoners in the class of this applicant, namely, those who were aged under 18 years at the time of their conviction for the offence of murder, were intended to be the subject of fixed terms, rather than indeterminate terms with the imposition of a minimum period to be served, has been held to be erroneous: see HKSAR v Harman Preet CACC 190 of 2004, 17 March 2005, unreported.  Although it is not suggested by either party to this application that the judge erred in fixing a term, we are bound in the circumstances of the judge’s general approach to the discretion conferred by section 67 to look at the choice afresh to ensure that no error in that regard has been made.

The argument

6. Mr Coghlan’s argument is that the term of 28 years is clearly excessive.  Summarising his argument broadly, it is that:

(1)	in the circumstances of this case, the facts of and surrounding the offence were such as to make the term manifestly excessive;
(2)	the overall result is unfair given that by reason of the training centre order to which we shall shortly make reference, the applicant is required to serve an additional term which makes the whole clearly excessive; and
(3)	the judge has appeared to hold against the applicant “significant absence [of participation] in volunteer communal work, social awareness programmes or in religious activities”, thereby failing, it is said, to recognise limitations inherent from the applicant’s academic record and social background.

The reports

7. In determining the appropriate sentence, the judge had regard to a number of psychiatric reports, to a Correctional Services Department report and to a social welfare report.  The psychiatric and psychological reports show that the applicant left school at the age of 14 years and, as is obvious from the facts of the case, found – and it seems still finds – difficulty in the type of rejection which lay behind the commission of the offence.  It seems that, apart from some disciplinary matters – quite stale now and none of any great consequence – whilst in prison, he has performed well as a prisoner; especially in the last six or seven years.  He has, like many other prisoners, sat a number of examinations and his education performance has been described as satisfactory.  He receives visits from his family who support him.  It is said that he is indeed remorseful for the offence.  There does seem to be a degree of concern about his ability to cope with perceptions of rejection or denial, but it is said that the possibility of a recurrence of violence when faced with the prospect of betrayal, actual or perceived, is low.  Support by psychological therapy is deemed necessary towards his rehabilitation.  Dr Yuen, a visiting consultant psychiatrist at Siu Lam Psychiatric Centre, highly experienced in assessments of these kinds, says that it is difficult to predict whether, faced with circumstances similar to those which the applicant confronted of the time of the offence, he might again act distractedly; but he concludes that the applicant is not an antisocial or psychopathic person; that he has behaved well within the institution and is, of course, getting older.  Dr Yuen recommends “more psychological exploration to deal with possible unresolved psychological conflicts”.  We note also the suggestion by a Dr Leung, instructed on behalf of the applicant, that “a definite date of release would help motivate him to make plans for his future realistically”.

8. Pang J referred to a case which he said was not dissimilar to that of this applicant, namely, HKSAR v Lau Kin-hang CACC 357 of 1997, a case in which an appellant aged 16 years killed his former girlfriend and received a determinate sentence of 29 years’ imprisonment.  The judge took the view that the appropriate sentence, bearing in mind the decision in that case, was one of 29 years’ imprisonment.  He said this:

“I note also that the respondent has spent some efforts in educational pursuit but his achievement and results obtained appear to be mediocre.  There is also a significant absence of the respondent having participated in volunteer communal work, social awareness programmes or in religious activities.  Had the respondent’s motivation been otherwise, I would have regarded such efforts to be a cogent factor in post-sentence mitigation.  There remains, however, the fact that the overall performance of respondent was graded as “A”, and that he had passed a number of public examinations albeit at the elementary level.  For his efforts, I am prepared to give a discount of one year from the sentence of 29 years so that the resulting term is one of 28 years’ imprisonment.”

Analysis

9. In the July 2005 judgment in Yeung Mok-yeh, this Court accepted that the particular and unusual statutory scheme under which these limited number of cases arise do require a judge exercising powers under section 67C to have regard to the progress of the prisoner since the original sentence and to the prognosis for his future development.  But we hinted too at the difficulties inherent in a body not itself immersed in such matters in comparing the progress of one prisoner with another, and the danger of the courts assuming the role of the Long-term Prison Sentences Review Board.  This case, as well as our role in reviewing other cases in this small category of executive discretion cases, illustrates that difficulty; and we apprehend that the main, though perhaps not the only, reason for the powers in these cases of looking at post initial incarceration reports in such cases is to determine whether progress and remaining dangers are such as to warrant a fixed term rather than an indeterminate term.

10. In this case, we have a prisoner who has clearly made good progress in some departments and, perhaps in relation to other prisoners has not progressed as much as they.  Yet it is difficult for those not on the spot and not constantly engaged in the process of comparing progress of this kind to make a fair judgment, save where factors are very obvious.  We have examined the other cases in this category in which Pang J has passed judgment and we note that in some where overall performance was less than Grade A, as it was in this case, greater credit has been given, though each case has its own factors.  Accordingly, there may be something in Mr Coghlan’s submission that the negative comments of the judge about the programmes in which the applicant has not engaged evidence undue adverse weight to particular factors.  But there are two particular matters that have persuaded us that the sentence should be reduced in this case.

11. In May 1990, the applicant was made the subject of a probation order in respect of an offence of claiming to be a member of a triad society.  It will, however, be remembered that upon the commission of the offence with which we are directly concerned, the murder offence, the appellant ‘disappeared’ and surrendered himself later to the police, on 26 March 1991.  By reason of his absconding, he rendered himself in breach of the probation order wherefore, on 23 April 1991, he was sentenced to a training centre order.  The time served in the training centre was between 23 April 1991 and 10 August 1992.  It is accepted that under the regulations as they presently stand, the period which he served in the training centre will not count towards service of the present sentence with which we are concerned.  Mr Coghlan points out that the circumstances of the absconding, for which the applicant came to be in breach of probation, were entirely connected with the present offence; the suggestion being that it is artificial and unfair to view the two matters as unconnected, which is the effect of what has happened.  He says that the present sentence should run from 28 March 1991.  We think that there is something in what he says and it does not appear to have been a matter pressed before the judge below.  We do not think it appropriate to order a date from which the present sentence should be deemed to run but rather, instead, to make an adjustment in sentence to give effect to the point.

12. It barely needs saying that the offence with which we are concerned was extremely serious and that, if a determinate sentence is warranted, that sentence must be very long indeed.  The circumstances of cases of this kind vary enormously and comparisons are not always satisfactory.  The judge used a particular case where a similar sentence was imposed, but there are other cases that can be used by comparison in the applicant’s favour.  We have examined a range of other cases within this limited category where the judge has imposed similar, or ever lower, sentences but where the facts were somewhat more serious; and they include cases of attacks by groups, cases involving considerable premeditation; and cases involving triad elements.  We note that in the other case which we are called upon to deal with today, an offender and his associate went armed with a gun and knife and the applicant stabbed the victim through the heart with his knife.  In that case there appear to be no mitigating circumstances whatsoever (though the matter is still to be argued).  And yet in that case a starting point of 30 years’ imprisonment was adopted, only one year greater than that in this case.  The culpability in the two cases appear significantly different and that differences of that kind should adequately be reflected.  Whilst the defence of provocation did not in this case succeed, there can be little doubt but that there was some and that the amount of premeditation was little.  In addition we note that the applicant surrendered himself to the police, which although not a mitigating factor of great consequence in the circumstances, is a mitigating fact nonetheless.  We note the case of Lau Kin-hang to which the judge below referred but this Court is faced with facts of their own, with the advantage of a comparison of a much larger number of cases presenting a variety of circumstances, the fact in this case that the applicant surrendered himself, and yet the further factor or dimension of the training centre order.

13. We have given some thought to the question whether this is a case for an indeterminate term under section 67C, rather than a fixed term.  The only matter that might warrant the former course is the slight question mark over the applicant’s ability to control his jealousy.  However, the risk in this regard has been estimated as low and none of the professionals has suggested an indeterminate term; nor is it a course urged upon us by the respondent to this application.  We are content therefore to let the matter proceed on the basis of a fixed term under section 67C(4)(b).

Conclusion

14. In the circumstances of this case and for the various and particular reasons which we have provided, we think that there is merit in this application.  Accordingly, the applicant is granted leave to appeal and, treating the hearing of the application as the appeal, we allow the appeal to the extent of substituting for the term of 28 years’ imprisonment a term of 24 years’ imprisonment.