HKSAR v. YIK PO MAN

CACC 112/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 112 OF 2000

(ON APPEAL FROM HCCC 251 OF 1999)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 22 March 2000, the Applicant, aged 20, was convicted of manslaughter by reason of lack of intent, following her acquittal on a charge of murder after her trial before Beeson J and a jury. The Applicant was sentenced to nine years' imprisonment for manslaughter and to a consecutive term of twelve months' imprisonment for preventing the lawful burial of a body to which she had earlier pleaded guilty. The matter now comes before this court as an application for leave to appeal against the overall sentence of ten years' imprisonment on the ground that the sentence was manifestly excessive.

Issues at trial

2. The deceased, who was 22 years old when he was killed by the Applicant on 10 February 1999, had been a long-term friend of the Applicant's. He was the father of the Applicant's daughter who was born before the Applicant had attained the age of 16. The Applicant and the deceased had begun cohabiting in 1994 at the address in Tuen Mun where the deceased ultimately met his death.

3. About four days after the killing, the deceased's body was found inside a tin trunk in the storeroom of the flat. It was covered in salt and had been severely mutilated. The left, lower arm and the left leg from the knee to the ankle were missing altogether although the left foot was inside the tin trunk together with the other remains of the body. The flat itself had been cleaned and the deceased's belongings had been taken away. The Applicant admitted responsibility for the killing. Her principal defence was summarised by the judge in her summing up in these terms:

"The accused says that she was attacked without warning by the deceased and that in trying to defend herself, she stabbed him with a knife. When the attacks did not stop, she then went on to attack him with a stool and eventually with a hammer. The accused says she was only acting in self-defence ...."

4. Self-defence was clearly rejected by the jury and so also was the alternative defence of provocation which the judge told the jury they should consider if the attack which the Applicant alleged the deceased had made on her had so provoked her that she lost her self-control. In this context, the Applicant had testified that this was the last in a long line of assaults perpetrated on her by the deceased during the time they had lived together.

5. The jury, in the end, concluded that the Applicant lacked the necessary intent for murder. This was obviously a very different verdict from the one which the prosecution was seeking as their case, in the words of the judge, amounted to this being "an intentional and wholly unprovoked killing".

6. The prosecution had alleged that the Applicant had developed relationships with other men and that the Applicant no longer viewed the deceased with great affection.

7. The post mortem had revealed that multiple stab and cut wounds were the cause of death. Of the 13 wounds inflicted before death, only one was life-threatening. In combination, these would have led to significant blood loss. Although there were lacerations found on the head and neck, these could have been caused by a hammer or a stool. Such blows might in turn have caused unconsciousness but no significant brain injury was found to have resulted from them.

8. Other injuries to the deceased's body either were or might have been inflicted after death, including a major stab wound to the region of the chest and abdomen and the large gaping wound associated with it. It is unnecessary to give details of the mutilation of the body as it is apparent that this was done after the deceased had died with a view to the disposal of the corpse in small pieces.

Sentencing remarks

9. In passing sentence, the judge said:

"The facts show that on 10 February at the flat where she was living with the deceased, she killed the deceased using a series of weapons. There was no independent evidence as to the cause of the attack or the killing, but it appeared that there may have been a quarrel between her and the co-habitee which set off this matter."

10. The judge made reference to all the important matters which had been raised in mitigation saying, amongst other things, that:

"I have (had) urged on me the fact that this is a young woman who had and has a child that she cared for, that she was living a possibly unhappy life with her co-habitee and she was in fact living a double life because her life with the co-habitee was not known at that point to her parents."

11. The judge went on to say:

"However, I also have to take into account that a young man was killed in respect of this case. He was killed in a particularly unpleasant fashion and his body thereafter was treated with a great deal of disrespect, a matter which must have brought great pain to his family. Cases like this are always difficult, and they're not cases in which a starting point is easily ascertained, and I don't attempt to set a starting point for this offence."

Grounds of appeal

12. Although six grounds have been included for argument in the perfected grounds of appeal on the Applicant's behalf, in reality Mr Mullick, as he himself has put it, was essentially seeking to argue that a term of ten years was manifestly excessive. Five of the grounds merely enlarged on this central theme.

13. Mr Mullick, who also appeared in the court below, made a number of criticisms of the judge's approach to sentence including the fact that no starting point had been taken.

14. It is well established that in cases of manslaughter there is no requirement to take a starting point. This is a crime with infinite variations which will have a bearing on the appropriate sentence the judge should impose. In the worst cases, only a sentence of life imprisonment will be appropriate and sometimes this will apply even to a plea of guilty in circumstances where, for example, the defendant is suffering from a state of mind which has made him a long term danger to the public and for whom a hospital order is not appropriate. At the other end of the scale, a probation order might not be inappropriate in certain circumstances. The majority of offences of this kind generally fall into a band of sentence in the region of between three years and twelve years' imprisonment, which again demonstrates the huge variations in sentence.

15. The variety of factual situations encountered in the one offence known as manslaughter is obvious and it causes no surprise to those who practise in these courts that there should be such a wide range of sentence for the offence. For this reason, the comment made by P. Chan J (as he then was) in The Queen v Lee Sau-ping CACC 189/1995 (unreported) is wholly apt. This was that:

"This is one class of offence where a judge may well not be able conscientiously to fix a starting point. A sentencing judge may well feel, having taken an overall view of the matter, that all he can finally do is to decide on the appropriate sentence."

16. In this case, although Beeson J was entitled to arrive at a sentence based upon all the material factors which the prosecution and defence had placed before her without stating in terms the starting point she had taken, we notice in particular that the judge had taken into account that the Applicant was of previous good character and had offered to plead guilty to manslaughter at the outset of the trial.

17. There can be little doubt that the judge rightly described the deceased as having been killed in a "particularly unpleasant fashion" and we reject also the criticism Mr Mullick has made of that observation. We reject also the mild criticism which has been made of the judge's decision to impose a consecutive sentence in respect of the second count to which the Applicant had pleaded guilty. The additional distress to the victim's family which is likely to have been caused by such callous conduct was rightly marked by a consecutive sentence bearing in mind, as the judge clearly did, the totality of sentence. The sentence for the offence in count 2 might well otherwise have been considerably longer. The judge made no error in principle in making these sentences consecutive.

18. Returning, therefore, to the central theme of Mr Mullick's submissions, we have given anxious consideration to whether this sentence, having regard to all the circumstances of the case, can properly be described as manifestly excessive in its overall length. It is apparent that the judge had in mind all the material features of the case. The trial had extended over a full month and the judge accurately spelt out some of the salient points to be borne in mind on sentence. We consider Mr Mullick's strongest point to have been that more weight could possibly have been given to reflect the jury's verdict that the Applicant had not intended to cause serious harm, let alone to kill. It was also contended that there was evidence to suggest that the deceased had, or may have, assaulted the Applicant before she killed him and that what may have started out as self-defence had gone beyond the bounds of what was lawful through fear or panic. This, it was submitted, would explain why the jury, when there was potentially so much evidence to show an intention to cause really serious harm, acquitted the Applicant of murder and convicted her of manslaughter.

19. This verdict had also to be set into the context of the Applicant's testimony that there had been a history of prior domestic violence. Above all, and fundamentally affecting all aspects of Mr Mullick's submissions, the Applicant was 19 at the time this offence was committed. Additionally, she was living in difficult circumstances having to bring up a child whose birth had never been registered, seemingly because she was underage when her baby was born.

20. As against these factors, Mr Saw, SC, on behalf of the Respondent, has reminded us of a number of passages taken from judgments of the Court of Appeal dealing with the way in which a sentencing judge may approach sentence where it is unclear what the precise basis of the jury's verdict may have been. In Kwok Yau-shing v R [1967] HKLR 664, the Court of Appeal observed:

"Where the verdict of the jury is equally consistent with either conclusion, it may well be - although we refrain from expressing any view - that the judge is entitled to take a more serious view of the facts, and sentence accordingly. But where the verdict of the jury is only logically consistent with the view that in arriving at their verdict they must have accepted, whether in whole or in part, the evidence of the prisoner as to provocation or self-defence, or that it might reasonably be true, we do not think it is open to a trial judge, by the sentence that he imposes, virtually to disregard their view and to give no effect to it."

21. Consistent with these observations, Fuad JA said in R v Cheng Chi-keung [1983] 1 HKC 371 at page 374H-L:

"A sentence must, of course, be consistent with the jury's verdict. However, where the factual implication of the jury's verdict is ambiguous, the judge is not bound to assume that the jury convicted on the basis of a view of the facts most favourable to the accused. He is not obliged to attempt the process of assessing what the jury's verdict involved in relation to the facts and can reach his own independent determination of the facts. The cases of R v Whittle [1974] Crim LR 487 and R v Nuttall [1968] Crim LR 193 are examples of the application of this principle."

22. Equally, in Attorney General v Seabrook, Application for Review No. 3 of 1990 (unreported), Sir Derek Cons, Ag. CJ at page 6 said:

".... in a situation of this kind, where a jury may have come to its decision upon more than one factual situation, it is the duty of the judge, for sentencing purposes, to decide for himself from the evidence that he has heard together with the jury what is the correct factual situation: R v Riccardo Tonti, (unreported) Crim. App. No. 178/88 ........"

23. With these considerations in mind, Mr Saw submitted that there was a more sinister version of events than the one propounded by Mr Mullick which the judge was entitled to have in mind. It was this version, he submitted, which made this a bad case of manslaughter requiring a heavy sentence. His argument was that the cumulative effect of so many cuts and stab wounds which had brought about the deceased's death had been inflicted over a considerable period of time. Nothing in the jury's verdict by itself established that the Applicant was attacked by the deceased. He may or may not have attacked her. Equally, the verdict could not be said to show, as Mr Mullick had contended, that the Applicant had reacted in fear or panic.

24. As to these submissions, we consider that the judge was entitled to have formed a serious view of the Applicant's conduct on the evidence presented before the jury. There was evidence that what had taken place between the Applicant and the deceased had occurred over some considerable period of time. This came from the prosecution's first witness, Lau Chi-shing, who was referred to in the trial as 'Ah Shing'. He had been a close friend of the deceased and had seen the deceased, shortly before the killing, during the early hours of 10 February 1999. He told the deceased that he believed the Applicant was seeing another man. He went on to give the deceased his reasons for believing this, including the fact that he had had to make up a story for the Applicant on a previous occasion to cover up for her actions. On hearing this, the deceased said he was going to speak to the Applicant immediately and told Ah Shing to wait 10 minutes while he did so. After an hour had elapsed, Ah Shing realised the deceased was not coming back. He then went to the flat occupied by the deceased and the Applicant. He spoke of having knocked on the door about seven times over a considerable period of time. The first time he knocked, he heard a hoarse voice saying "Don't hit". In fact, Ah Shing said that on several occasions after this he was able to hear the deceased, in a voice which was different from his normal voice, asking someone not to hit him. After the first knock on the door, he spoke to the Applicant and continued to knock on the door while loud music could be heard coming from the flat. Ah Shing informed the Applicant he had an appointment with 'Man Chai' (the deceased) and that he had invited Man Chai to go out with him for a drink. The Applicant told Ah Shing to go away. Ah Shing stood his ground and later, when he knocked again, the Applicant opened the door and threw a bag into the corridor which contained his battery charger. At this point he called out to Man Chai and the Applicant told him to go away. Ah Shing then kicked the grille outside the flat and asked why the Applicant was telling him to go away when Man Chai had not done so. The radio was then turned up to a higher volume and Ah Shing knocked again. The Applicant then opened the door saying that it was not convenient, that Man Chai was not free and would not come out. Ah Shing continued to remain outside the flat, receiving no response to his occasional knocks on the door. In her summing up, the judge said:

"Now, that might indicate that already by that stage the deceased was not in a position to either go to the door, or to call out, or to make conversation with Ah Shing."

25. At one point during these events, Ah Shing heard the voice of another female and even caught a glimpse of this person when the Applicant offered to re-charge Ah Shing's mobile telephone. He passed his telephone to the Applicant. Dealing with this in the summing up (at page 28), the judge reminded the jury of this episode in these terms:

"He says he did not ask her to do that. She volunteered that. He then heard her say, or ask, 'Man Chai, is it right to insert this part of the phone?' He said, 'I heard Man Chai's voice. He was not saying anything about that. His voice said, "Mom, I just shit, please help me to wipe it." ' "

26. Later, on 10 February 2000, the Applicant twice met up with the prosecution's second witness, who was an ex-boyfriend. He had extensive contact that day with the Applicant who appeared to be looking her usual self and behaving as normal. They had two meals together.

27. With those features of the evidence in mind, Mr Saw submitted that the judge was entitled not to have sentenced on the basis that the Applicant had acted largely in self-defence. In his submission, the evidence supported the view that at least from the time Ah Shing arrived at the door of the flat until he heard and saw the second female in the flat, the deceased was still alive, having been rendered motionless and having to beg someone to stop hitting him and for assistance.

Conclusion

28. On any view, the manner of the killing was a dreadful one and so also was the manner in which the Applicant chose to dispose of the deceased's body. The judge, who was entitled to have acted upon 'Ah Shing's' evidence, had a difficult task in arriving at a just sentence which balanced, on the one hand, the appalling nature of the crime with, on the other hand, the mitigating factors which had been very properly advanced by Mr Mullick. We consider that the evidence given by Ah Shing was important because it showed that, whatever had sparked off the Applicant's violence towards the deceased, the Applicant had not at any stage called for medical help when there must have come a time that she realised the deceased badly needed attention. The Applicant's failure to obtain assistance was all the more culpable when, to her knowledge, Ah Shing was immediately available outside her door. The failure on the Applicant's part to call for medical assistance added, in our view, considerably to the gravity of the offence.

29. At the conclusion of the hearing on 19 October 2000, we were invited by Mr Mullick to adjourn the proceedings until a later date in order to give himself and the Legal Aid Department time in which to make proper enquiries into the present state of health of the Applicant's five-year-old daughter. Mr Mullick had received instructions a few days before the hearing to the effect that the Applicant's daughter had a serious medical condition but he had not at that stage been supplied with a medical report to confirm what he had heard. Mr Mullick felt that it would be in the Applicant's best interests for this to be properly researched before the court came to its conclusion on this application. This was in spite of the fact that we made it clear that, in a matter as serious as this, an extraneous factor of this kind was unlikely, however sympathetically the court might view the matter, to affect the outcome of the application.

30. There is now before the court a report dated 19 October 2000 from the Queen Elizabeth Hospital. Fortunately, the child's condition can be treated without any need for surgery. As we have stated already and as we impressed upon the Applicant on the last occasion this matter was before the court, whilst we have every sympathy for the Applicant in her anxiety for the well-being of her child, the gravity of this homicide was such that we feel quite unable to make any adjustment to the sentence on the basis of her child's ill health.

31. We have had considerable time in which to consider our decision and to look with care at the various factors which the judge had to take into account in arriving at a proper sentence. We have concluded, for all the reasons we have set out, that the sentence cannot be described as manifestly excessive. Accordingly, the application is dismissed.