ATTORNEY GENERAL v. WONG YIM PING and Another

1994, NO. 7
Application for Review

H E A D N O T E

Review of Sentence - Manslaughter - R2 tried to obtain sexual gratification from his employee the deceased girl. R1 was also his employee and she assisted him. They made the deceased unconscious by applying chloroform. When she did not completely lose consciousness he went out and bought more chloroform and applied it on her. She died.

Court held the facts were very close to murder.

IN THE COURT OF APPEAL

1994, NO. 7
Application for Review

________________

________________

J U D G M E N T

________________

Hon Yang, C.J.:

1. This is the Attorney General's application for review of the sentences for manslaughter passed on the two respondents (hereafter referred to as R1 and R2 respectively). The sentence against R1 was seven years' imprisonment. That imposed on R2 was eight and a half years' imprisonment.

2. At the conclusion of the hearing we reviewed the sentences. We increased R1's sentence to twelve years and that of R2 to fifteen years. R1's application for leave to appeal against sentence was refused.

3. We now give reasons for our judgment.

4. The events which led to the victim's death occurred on 24th July 1993 in room 1605 of the Royal Park Hotel, Shatin. The victim, a young woman, was then only twenty-one years of age. R2 (a man) was her employer and R1 (a woman) was her colleague. The hotel room was booked by R2.

5. As the judge said, the death of the victim occurred as a result of a course of conduct which had been carefully planned. The plan was for R1 to lure the victim to the hotel on the pretext of celebrating R1's birthday. Then, while R2 waited in an adjoining room, R1 would first make the victim drunk by causing her to drink spirits, knowing that she did not normally drink alcohol. R1 would then render the victim unconscious by administering chloroform, following which R2 would enter the room, indecently assault the victim and record the act on videotape. The object of the evil scheme was to gratify R2's perverted sexual inclinations.

6. On 20 July 1993, in order to carry out their scheme, R2 booked room 1605 for 24 July at the hotel and, on being requested to do so, provided the booking clerk with his credit card number. When he arrived at the hotel on 24 July he was told by the receptionist that the room was not ready. R2 told the receptionist that he would return later and that a girl surnamed Wong would arrive at about midday. At about 12.30pm R1 arrived at the hotel produced her identity card and was given the key to the room. At about 4.15pm R2 returned and was given the key to room 1603. Later, at about 4.30pm a hotel employee noticed two females in room 1605 when he delivered two cups of tea there.

7. Having left the victim to the room, R1 rendered her drunk by plying her with tequila. R1 then soaked a towel with the entire contents of a bottle of chloroform laced with perfume and applied it to the victim's face. When it appeared that the chloroform was not having the desired effect, R1 summoned R2 to the room. R2 told R1 to lie on the victim's body to render her-unconscious. At that stage however the victim vomited.

8. R2 then left the hotel room and drove to Tuen Mun where he obtained another bottle of chloroform, returned with it to the room and gave it to R1 with instructions that she should apply its contents to the victim and to summon him from the adjoining room after she had rendered her unconscious. When it became apparent that, despite this further application of chloroform by R1 the victim was still semi-conscious, R2 himself applied more chloroform. He then set the video camera into operation so that he could film what he was about to do, removed the victim's clothing, fondled her breasts, brushed his penis over her body and then masturbated and ejaculated over her. He told R1 to use a towel to wipe the ejaculate from the victim's body and to insert her finger into the victim's vagina. However, R1 merely rested her finger on the entrance to the vagina.

9. Both respondents then dressed the victim, following which R2 took a shower. On returning to the room where the victim was lying, they discovered that her body was cold. R2, instead of immediately calling for medical assistance, vainly attempted to resuscitate the victim. Both respondents then had a discussion in the course of which they agreed that the victim was near death. R2 suggested to R1 that she take the blame, assuring her that he would care for her family and give her $500,000 afterwards.

10. R2 then told R1 to instruct a member of the hotel staff to call an ambulance. Both the respondents then removed incriminating items from the room and, after the victim had been taken to hospital in an ambulance, drove to the hospital, disposing of the video equipment and the empty chloroform bottles on the way.

11. At the hospital R1 told the doctor that the victim had ingested alcohol and inhaled chloroform and that when R1 had returned an hour later she found that the victim was unconscious. Although when he examined her at 9pm on 24 July the doctor was of the opinion that the victim was clinically brain dead, he attempted to revive her by giving her artificial ventilation. However, she died of the effects of the chloroform at 1.11pm on 26 July. The doctor observed that she had sustained a large facial burn caused by the application of the chloroform.

12. When interviewed separately by the police the respondents gave a concocted story. R1 told them that she had supplied the victim with a bottle of chloroform which she had purchased earlier to clean a signboard but was still carrying with her. She then left the room to join R2. On returning she found the victim lying on the floor with a towel impregnated with chloroform under her face. She felt her body and found that it was cold.

13. R2 told the police that R1 was his employee and mistress and that the victim was his temporary employee. He said that R1 had come to his room, masturbated him and then told him that the victim was in a coma in room 1605. On examining the victim, he discovered that her upper body was naked and that she was lying unconscious on the floor. He tried to revive her and, when it became apparent that his attempts were in vain, he notified hotel security. He was unaware that the victim had inhaled chloroform.

14. Later R1 was again questioned by the police. During the course of the questioning she began to weep and made a full confession. When R2, who was still trying to brazen it out, was confronted with R1's confession, he too made a confession.

15. In passing sentence, the judge said:

"It is difficult to imagine more reprehensible premeditated behaviour. It is outside the sort of behaviour which one normally sees in a manslaughter case. In my view, the starting point for sentence after trial in a case such as this cannot be less than 14 years' imprisonment. That is where I begin."

16. The judge took into consideration the matters urged on him by counsel in their addresses in mitigation of sentence. He noted that R1 and R2 had offered to plead guilty to manslaughter even before the committal, their attempts at resuscitation, their request for medical help, their going to the hospital and informing her family, and the fact that they both had clear records.

17. In respect of R1 the judge added five mitigating factors, namely, that it was her confession which led to R2's confession, that she had indicated her willingness to be a prosecution witness, that she was under R2's domination, that what was done was for R2's gratification and not hers, and that she had a young son.

18. We had the advantage of reading the skeleton arguments advanced on behalf of R2 by his counsel Mr Plowman, much of which counsel for R1 Mr Mitchell Heggs adopted, and of hearing both counsel's addresses. Mr Plowman drew our attention to, inter alia, R2's co-operation with the police and his assistance in a video reconstruction of the events.

19. Reliance was also placed, by both Mr Plowman and Mr Mitchell Heggs on the following passage in the judgment of Huggins VP in Attorney General v. Lau Chiu-tak [1984] HKLR 23 (at p.25) with which we respectfully agree:

"Nevertheless, we emphasize that this court will be much more easily persuaded that a sentence is manifestly excessive than that it is manifestly inadequate - not because the test is different but because there is a presumption in favorem libertatis which the Crown has to overcome."

20. Counsel further submitted that sentences beyond ten years are not usual in cases of manslaughter. This is undoubtedly true, but sentences beyond ten years are sometimes passed when appropriate, having regard to the extreme seriousness of the conduct causing death: vide R. v. Barrell (1992) 13 Cr.App.R.(S) 646,649.

21. In the present case, the respondents' conduct was premeditated and their plan ruthlessly executed. The act of obtaining another bottle of chloroform and applying its contents to the victim when it must have been obvious that she was in a state of distress demonstrated a callous disregard for her life. Her death was not the result of a spontaneous or impulsive act which, had time for thought been given, would not have occurred.

22. Although it has been urged upon us that the respondents demonstrated remorse by summoning an ambulance and by attending at the hospital and notifying the victim's family, it is plain to us that no other realistic avenue was open to them. Their identity was known to the hotel staff, the victim was R2's employee and R1's colleague and, since she had gone to the hotel in all innocence to attend a birthday party, would have been expected to tell her mother, as indeed she did, that she was attending a party at the hotel and intended spending the night there. The respondents knew that they could not disassociate themselves from the scene.

23. Furthermore, the concoction of a false story in a desperate attempt to exculpate themselves instead of immediately admitting what they had done and giving the doctor a true account of the quantity of chloroform they had applied to the victim and thereby assisting him in deciding upon the best form of treatment, does not sound of genuine remorse.

24. We observe that for the offence of administering drugs to obtain or facilitate an unlawful sexual act a maximum sentence of 14 years' imprisonment is provided for under section 121 of the Crimes Ordinance, Cap 200. Had the present offence not resulted in the tragic death of the victim the maximum sentence under section 121 would have been entirely appropriate. The fact that death was the result of their appallingly callous conduct calls for the imposition of an even heavier sentence.

25. We adopt, with respect, the dictum of Lawton LJ in R. v. Prime (1983) 54 Cr.App.R.(S) 127 (at p.133):-

"Retribution is a word which in recent years has been out of favour with criminologists. In modern sentencing policy it means no more than this, that there are offences which are so grave that the only way that judges can demonstrate that society will not tolerate a particular kind of conduct is by passing a sentence which truly reflects the abhorrence which right-minded members of the public have of the offender's conduct."

26. In the circumstances we think the proper starting point for sentence after trial in the present case is 20 years. Giving a discount of about 25 percent for the mitigating factors, we think the appropriate sentence for R1 is 15 years, and that for R2 is 18 years. It follows that the sentences imposed by the judge were manifestly inadequate.

27. We take into account the judgment of Silke VP in Attorney General v. Wong Kwok-wai [1991]2 HKLR 384 (at p.389):-

"In exercising the discretion which we consider this court to have we think that there should be borne in mind that, where a person is serving a prison sentence, this court should, generally, impose the sentence it thinks the trial judge should have imposed and without a discount. A discount can, however, be properly considered in cases where the respondent is very close to the end of his sentence or where the sentence imposed by this court is greatly in excess of the original sentence."

28. We therefore impose on R1 a sentence of 12 years' imprisonment and R2 15 years' imprisonment.

29. The Attorney General's application is allowed to the extent indicated.