KAM CHEONG v. R.

IN THE COURT OF APPEAL

1993, Nos.623 & 624
(Criminal)

H E A D N O T E

A plea of guilty to manslaughter on a count of murder should not be accepted where the agreed facts clearly indicate that the offence committed was murder, not manslaughter.

The circumstances of the crime were so grave that the maximum sentence of life imprisonment would have been justified after trial.

An overall sentence of 31 years' imprisonment was upheld for three separate incidents of (1) forcible detention of a person with intent to procure a ransom for her liberation, robbery, possession of an imitation firearm at the time of committing robbery, and two thefts, (2) aggravated burglary, manslaughter and wounding with intent, and (3) robbery.

IN THE COURT OF APPEAL

1993, Nos.623 & 624
(Criminal)

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J U D G M E N T

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Macdougall, V.-P. (giving the judgment of the Court):

1. On 13th October 1993, the applicant pleaded guilty before Ryan, J. to one count of robbery, one count of possession of an imitation firearm at the time of committing robbery, two counts of theft and one count of forcible detention of a person with intent to procure a ransom for her liberation. By means of a series of consecutive, concurrent, and partly consecutive and partly concurrent sentences, the applicant was sentenced to an overall term of 15 years' imprisonment.

2. A week later, on 20th October, the applicant also pleaded guilty before Ryan, J. to one count of aggravated burglary, one count of manslaughter, one count of wounding with intent and one count of robbery. The judge sentenced the applicant to concurrent terms of seven, sixteen and ten years respectively for the first three of those offences and ordered that eight years thereof be served consecutively to the overall sentence of fifteen years' imprisonment passed on 13th October. He further sentenced the applicant to eight years' imprisonment on the 4th count and ordered that he serve that sentence consecutively to the concurrent sentences on the first three counts on that indictment. The overall sentence passed in respect of the counts in both indictment was one of 31 years' imprisonment. The applicant now seeks leave to appeal against those sentences.

3. The admitted facts relating to the offences for which he was sentenced on 13th October were that at about 8 p.m. on 12th November 1992, Miss Suen, a student at the Chinese University, was walking to her home in Shatin, after having alighted from a bus, when the applicant suddenly appeared and attacked her. After pushing her into a ditch by the roadside, he pressed her head down. When Miss Suen called out for help, the applicant struck her over the forehead with what was subsequently accepted to be an imitation pistol. He seized her handbag, tied her hands behind her back and demanded that she tell him the personal identity number relating to her electronic teller card. After the terrified Miss Suen told him the number of the card and the applicant had written it down, he bound her feet together and carried her down the hillside to an area of flat land where he gagged her with a piece of cloth and a strip of adhesive tape, bound her feet with nylon rope and covered her body with a cloth bag. He told her that he was going to withdraw money from her bank account by using the electronic teller card which he had taken from her handbag. During the applicant's absence, Miss Suen struggled desperately to free herself from her bonds, but to no avail. About an hour later, at 11 p.m., the applicant returned and told her that he succeeded in withdrawing $6,000 from her bank account and that after midnight he would leave and make a second withdrawal of $6,000. About an hour later, after he made the second withdrawal, the applicant returned and told Miss Suen that he intended to hold her hostage and demand a ransom of $500,000 from her family for her release. He then took her to a hillside where he again bound her hands and feet and gagged her. He told her that he was going to use her identity card to buy a portaphone and that he would buy some food for her. It was not until about 5 p.m. that day that he returned with the portaphone and food. He then demanded to know Miss Suen's home telephone number. At about 7.20 p.m. the applicant telephoned Miss Suen's home and demanded a ransom of $500,000. In order to satisfy Miss Suen's brother that she was alive and under the applicant's control, the applicant allowed her to speak to her brother over the portaphone.

4. After spending the night on the hillside, with Miss Suen still his captive, the applicant again telephoned her home at about 10 a.m. the following day and again allowed Miss Suen to speak to her family. After several more telephone calls to Miss Suen's home, the applicant agreed to reduce the ransom sum to $200,000. At about 6 p.m. that day the applicant tied Miss Suen to a tree and, before departing, told her that he would release her after the ransom money had been paid. He returned an hour later and, at some time after 10 p.m., again telephoned her family, after which he told her that he was leaving to collect the ransom.

5. At about midnight, he reappeared and told her that he had collected the money. He then untied her and took her to Tai Po Road where he returned her handbag, identity card and electronic teller card and gave her some money to enable her to return home. He also allowed her to make another telephone call over the portaphone to her home to advise her family that she was returning. While the applicant was waiting with her at the bus stop, several plain clothes police officers arrived and arrested him. Under caution he admitted his involvement in those crimes.

6. The following agreed facts relate to the first two offences for which he was sentenced on 20th October. Shortly after midnight on 18th August 1982, a Mrs. Chan was awakened from her sleep at her home in Beacon Hill Road, Kowloon, to find her husband kneeling on their bed with his back towards her. A man, later identified as the applicant, was standing three or four feet from the end of the bed and holding a pistol which he pointed alternately at Mr. Chan and Mrs. Chan. Mrs. Chan begged the applicant not to hurt them. She then had a brief conversation with her husband, whereupon the applicant rushed forward and stabbed Mr. Chan on the chest. When Madam Chan attempted to support her husband, the applicant attacked her with the knife before fleeing. Madam Chan managed to crawl from bedroom to her servants quarters where she instructed her maid to telephone the police. Both she and Mr. Chan were then taken to hospital where Mr. Chan was certified dead on arrival. He had succumbed to a stab wound to the heart. Mrs. Chan was found to have sustained two stab wounds to the left side of her abdomen, one of which penetrated the jejunum, two stab wounds to her left arm and one stab wound to her back. The applicant had managed to get away with $1,000 in cash and a Bulova watch belonging to Mr. Chan.

7. When interviewed concerning these crimes the applicant stated that he had entered the Chan's flat to rob and that, unexpectedly, Mr. Chan had put up a struggle in the course of which he was accidentally stabbed.

8. As to the remaining offences, the agreed facts were that at about 8.45 a.m. on 8th July 1992, a Mrs. Tsui was inside the bathroom of a flat which she and her husband, who was a lecturer at the Chinese University, occupied at the University Staff Quarters. All of a sudden, a man, who was later identified as the applicant, appeared. He pushed Mrs. Tsui's husband towards the bed in the adjoining bedroom and held a pistol at his back. On seeing Mrs. Tsui, the applicant ordered her to come to the bed side, telling her to co-operate and that he only wanted money. He then tied up both of them and began ransacking the room. Some 30 minutes later, he left. Eventually, the Tsui's managed to free themselves and reported the matter to the police. On this occasion the applicant managed to get away with HK$5,000 in cash, US$300 in cash, a ring, a necklace, two cameras, a coin and a watch.

9. Fingerprint impressions lifted from the Chan's and the Tsui's premises were subsequently found to match those of the applicant, and, on his arrest on 15th November, he was found to be wearing the Bulova watch taken from the raid on the Chan's premises. At an identification parade held on 19th November that year, both Mrs. Chan and Mrs. Tsui positively identified the applicant as the man who had committed the crimes in their respective flats.

10. Mr. Lunn, who appeared on behalf of the applicant in this court but not in the court below, submitted that in respect of the offences for which the applicant was sentenced on 13th October, an overall sentence of 15 years' imprisonment was manifestly excessive in the light of all the circumstances of the case and having regard to the applicant's pleas of guilty which were made at the earliest moment. He further submitted that with regard to the sentences passed on 20th October, the sentence of 16 years' imprisonment on the manslaughter count was manifestly excessive and that the judge had erred both in adopting 18 years as a starting point for sentence for that offence and in allowing only two years discount for the plea of guilty. Thirdly he submitted that the overall term of imprisonment of 31 years for all of the offences to which the applicant had pleaded guilty was manifestly excessive.

11. The applicant, who is aged 33, is an illegal immigrant from China. Prior to the commission of the present offences he had made several forays into Hong Kong. In 1984, he was convicted of using an identity card belonging to another person, assaulting a police officer and theft. In 1985 he was convicted of remaining in Hong Kong without the authority of the Director of Immigration after having landed here unlawfully. In 1986 he was convicted of resisting arrest, and in 1988 he was convicted of two burglary offences.

12. We are amazed that a plea of guilty to manslaughter was accepted on the count of murdering Mr. Chan. In the light of the agreed facts, this plea should never have been accepted. The applicant, armed with a knife and an imitation pistol invaded the flat of an unarmed and defenceless couple while they were sleeping. Not only did he stab Mr. Chan to death with a well-aimed knife thrust to the heart, but he inflicted multiple stab wounds on Mrs. Chan. It was naive to accept that all of these wounds were inflicted in panic.

13. Constrained as we are to accept that the applicant was convicted of manslaughter, not murder, we can only say that on the facts of this case it was a manslaughter of the worst kind such as to justify the imposition of the maximum sentence of life imprisonment after trial.

14. The abduction of the unfortunate Miss Suen and holding her captive, bound and gagged over a period beginning at about 10 p.m. on 12th November and concluding in the early hours of 15th November must have been a terrifying experience for her. This was a ruthless and premeditated crime in the course of which the applicant resorted to violence by striking Miss Suen over the forehead with an imitation pistol in order to secure her submission. We hardly need mention the distress which Miss Suen's family must also have suffered.

15. The applicant's conduct did not involve just one course of criminal behaviour. There were three separate and distinct episodes of violence, including the robbery of the Tsui's at the staff quarters at the Chinese University. The judge aptly described the applicant as a very dangerous man. The evidence against him was overwhelming for he was caught while in the company of Miss Suen and was identified by Mrs. Chan and Mrs. Tsui, his fingerprints were found at Mrs. Chan's and Mrs. Tsui's flats and, when arrested, he was wearing Mr. Chan's Bulova watch. The pleas of guilty must be regarded in that light. In our view the overall sentence of 31 years' imprisonment was not a day too long.

16. The application is, therefore, refused.