HKSAR v. CHAN HO LAM

DCCC 114/2019

[2019] HKDC 976

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 114 OF 2019

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REASONS FOR SENTENCE

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The Charge & Plea

1.  The defendant pleaded guilty before me to one count of “Preventing the Lawful Burial of a Body”, contrary to Common Law and punishable under section 101 I (1) of the Criminal Procedure Ordinance, Cap 221.

The Facts

2.  This case concerns the disposal of the body of a deceased person, Mr Siu Chi Wing (“the Deceased”), by the defendant and several other persons. 

3.  The body of the Deceased, after it was found on 4 May 2018, had been examined by a pathologist at the scene.  On 7 May 2018, an autopsy was conducted.  Due to the decomposition of the body, the pathologist opined that the cause of death was “Unascertainable due to Decomposition”.

4.  The circumstances surrounding the death of the Deceased came from what the defendant told the police in his VRI after arrest.  In short, the defendant had nothing to do with the death of the Deceased, who died at a divan in the presence of the defendant shortly the Deceased had taken some methamphetamine with the defendant and two others at the divan.  At the instigation of one of the persons present, the defendant helped to dispose of the body of the Deceased.

5.  There is nothing to contradict the defendant’s account.  In fact, much of what the defendant told the police is consistent with the findings made by the pathologist.

6.  The amended summary of facts, admitted by the defendant, reads: -

“The Deceased

On 20 February 2018, Mr. SIU Chi-wing (“the Deceased”) was discharged from prison. He was under supervision order until 19 December 2018. On 27 March 2018, the Deceased was wanted for failing to report to the Correctional Service Department.

2. On 3 May 2018, the corpse of the Deceased was found in a construction site (“the Site”) of HKZM Hong Kong Link Road situated on East Coast Road, Chek Lap Kok. At all material times, the Site was without any security guard or CCTV coverage. It was surrounded by water barriers and had only one entrance. There was no gate at the entrance. Between 8:00 a.m. and 6 p.m. from Monday to Saturday, there would be about 20 to 30 workers working at the Site. When the workers left the Site, they would only secure the Site by hanging a rope across the Entrance.

3. At about 3:00 p.m. on 3 May 2018, when a construction worker (“PW1”) was moving the soil fill with an excavator at the Site, he found a broken cardboard box, some yellow nylon strips, some empty black plastic bag and a bulky plastic bag with odd smell in the soil fill. PW1 therefore informed his senior (“PW2”) of the same. Believing that the bulky bag was only garbage, PW2 asked PW1 to move the bulky plastic bag to the entrance area of the Site so that it could be removed by a garbage truck the next day. PW1 did so accordingly.

4. At about 8:30 p.m. on 4 May 2018, PW2 checked the garbage at the entrance of the Site. Feeling suspicious, he cut opened the bulky plastic bag and found the corpse of the Deceased inside with strong odd smell. PW2 immediately told the assistant safety manager of the Site (“PW3”) who made a report to the Police.

Police Enquiries

5. Dr. NG Chung-ki (“PW5”), Senior Pathologist attended the scene on 4 May 2018 to examine the corpse. He found that the corpse was a full made body with all limbs. It was slightly decomposed and tightly wrapped with layers of plastic bags. The plastic bags were secured by yellow nylon strips and adhesive tapes printed with “Worldwide Elite Express” (“WEE”) in red. There were some mothballs inside the packing.

6. On 7 May 2018, PW5 conducted the autopsy of the corpse. He found inter alia that: -

(a) Due to decomposition, the autopsy did not reveal any condition that could have accounted for the death of the Deceased;

(b) There were two lacerations on the Deceased’s head;

(c) However, there was no blood infiltration or bruising identified in the wound margins;

(d) It was not possible to determine if the lacerations were inflicted before death;

(e) Methamphetamine was detected in the Deceased’s liver; and

(f) It was not possible to determine the effects of the methamphetamine on the Deceased.

7. Upon investigation, the Police found inter alia that: -

(a) On 7 May 2018, a South Asian male attended WEE’s office in Hung Hom and paid HK$150 as deposits for three sets of cardboard boxes, barcode labels, packing forms and adhesive tapes;

(b) The person put down his contact number as “9033 7701”;

(c) Ms. CHAN Chi-kwan was the registered user of the number; and

(d) The registered address of Ms. CHAN Chi-kwan under her driving licence was known by the Police as the address of Mr. Yu Yuen-fai (“YU”) and Ms. Chan Suet-kwan Cynthia (“CHAN”).

Arrest

8. On 12 May 2018, YU and CHAN were arrested. Upon investigation, they both revealed that D was involved in the present case.

9. D was then arrested on the same day. The Police have since taken 9 VRIs with D. Under caution, he stated inter alia that: -

(a) On 27 February 2018, he was inside a divan on 2/F 169 Tung Choi Street (“the Flat”) with YU, CHAN and 3 other males;

(b) They were consuming Methamphetamine inside the Flat;

(c) The Deceased suddenly went berserk and appeared to be possessed. He hit YU and D with a plastic stool;

(d) YU blocked the Deceased from hitting D and hit the Deceased’s arm for several times;

(e) Yu, D and another male (“YAN”) then subdued the Deceased while CHAN was standing aside;

(f) Someone then used some stretch wraps in the Flat to tie up the Deceased to prevent him from moving;

(g) Shortly afterwards, the Deceased became unconscious with foam coming out from his mouth;

(h) D did first aid on the Deceased but it did not help;

(i) They then called two Chinese medicine practitioners to attend the Flat;

(j) Upon examination, the Chinese medicine practitioners confirmed that the Deceased was dead;

(k) They then turned on the air-conditioner and left the Deceased inside the Flat;

(l) About 2 days later, YU directed Yan and D to pack the Deceased’s corpse;

(m) They tied the legs with stretch wraps and put the corpse into the refrigerator;

(n) About another 2 days later, YU instructed YAN and D to further pack the Deceased’s corpse;

(o) D attended the Flat with YAN and found that mothballs, vacuum bags, plastic bags, plastic strips, plastic strip machines, cardboard box and adhesive tapes were available;

(p) YAN and him first tied the corpse with plastic strips and then wrapped it with stretch wraps;

(q) They then put the corpse and some mothballs into the vacuum bag and wrapped it up upon one more time;

(r) Afterwards, they put the package into a cardboard box and left the Flat;

(s) The way they packed the corpse was taught by YU;

(t) About 3 days later, YAN and D attended the Flat again. They carried the cardboard box down to the ground floor with a South Asian male sent by YU;

(u) The South Asian male then carried the cardboard box away to an unknown place;

(v) YAN and D threw away the remaining packing materials on the same day.

10. During the VRIs, D was shown photos of the exhibits seized from the Location. He identified the yellow nylon strips as those being used to tie up the corpse.”

Antecedent Statement and Criminal Record

7.  The defendant is now 40 years of age, locally born, he received education up to Form 3.  He had worked as a cook until 2014 and was unemployed at the time of the offence.

8.  He is singled but has a 16 years old daughter.  Before his remand, he lived with his mother and daughter in Tuen Mun.

9.  The defendant had 2 convictions recorded against him in 2002 for going equipped for stealing and possession of dangerous drug.  They are spent convictions.

Mitigation

10.  Mr Boyton, in mitigation, drew my attention to the Autopsy Report, the chronology of the events and the admissions made by all the arrested persons, including those made by the defendant.

11.  Mr Boyton drew my attention to the observation made by the Court of Appeal in HKSAR v Lee Kwan Kong & Ors [2006] 2 HKC 111 at page 140-H that:-

“The judge went on to describe the ‘only real mitigation’ in D4’s case as being the fact that she was ‘not the leader of the conspiracy’ and had acted to ‘protect another or others’. The judge, on this account, passed a 4-year sentence, pointing out that a conspiracy of this kind ‘is always serious and is particularly serious when it is in respect of a homicide investigation.’ ”

12.  Mr Boyton also drew my attention to the judgment of the Court of Appeal in HKSAR v TSANG Siu Ching [2001] 1 HKLRD 522 at page 525 B-C that the failure to call for medical assistance in relation to the manslaughter count was an aggravating factor.

13.  Mr Boyton asked me to take into account the following:-

(a) Guilty plea at the earliest opportunity;

(b) No other admissible evidence, other than the defendant’s own admission;

(c) No evidence that the defendant, or anyone else was responsible for the death of the Deceased;

(d) The Deceased had exhibited having a severe drug problem, which may be consistent with ‘Substance Induced Psychotic Disorder (SIPD);

(e) The Deceased had no relatives and his limited friends were with him at the time of his demise;

(f) The defendant was not the one to instigate and/or organize the disposal of the body;

(g) The relationship between the Deceased and the defendant could be described as ‘friends of friends’ and there was no history of ill will or rancor, between any of them;

(h) The defendant attempted to give the Deceased first aid, called 2 Chinese medical practitioners and appears to have stayed with the body of the Deceased in the Flat for the next two days.

14.  Mr Boyton submitted also that the defendant appeared to hold a superstitious belief that a ghost possessed the Deceased and he assisted the Deceased in calming that ghost.

Discussion

15.  There is no sentencing tariff for the offence of “Preventing the lawful burial of a body”, much depends on the facts of a particular case. 

16.  In R v Chu Kwai Ying [1996] 4 HKC 40, one of the cases cited by Mr Boyton, D4 received a sentence of 4 years’ imprisonment on Charge 6, ie one of preventing the burial of a body.  The Court of Appeal observed that “The body lay hidden for more than a week, with all the consequent distress that is bound to have caused relatives or friends of the deceased.  The mutilation of the body aggravated the offence.”  The Court of Appeal held that the starting point of 5 years taken by the District Judge was not excessive.

17.  In the present case, there was no mutilation to the body of the Deceased, so the aggravating factor that was present in Chu Kwai Ying is absent.  From what Mr Boyton told me, the Deceased had no relatives and his limited friends were with him at the time of his demise, hence there was no distress caused to the relatives or friends of the Deceased as a result of the offence under complaint.  However, the circumstances under which the body of the Deceased was found by PW2 must have caused him much alarm and distress.  It cannot be said the offence was a victimless crime.  Having said that, I agree with Mr Boyton that the facts of the present case are less serious than the ones revealed in Chu Kwai Ying.

18.  In Tsang Siu Ching, the appellant committed the offence of preventing the lawful burial of the body of the deceased victim to cover-up the appellant’s manslaughter of the victim.  In the present case, the facts show that the Deceased was taking ICE together with the defendant and others inside a divan.  I am sure Yu, Yan and the defendant did not make a police report about the death of the Deceased and disposed the body in the way they did because they wanted to cover up the presence of the divan and the illicit activities that took place inside the divan shortly before the demise of the Deceased.

19.  In Lee Kwan Kong & Ors, though what the appellants concerned did amount to removal of the body of the deceased and disposal of evidence, the charge they faced was one of “Conspiracy to pervert course of public justice” and the appellants were sentenced on that basis, as the Court of Appeal observed “…, a conspiracy of this kind, where the investigation involves homicide, is serious because it involves an agreement to dispose of evidence and to distance the body from the scene of the crime.” (Page 141)  It should be noted that in Lee Kwan Kong & Ors, the trial court adopted a starting point of 5 years for the charge of “Conspiracy to pervert course of public justice” and sentenced D4 to 4 years as she was “not the leader of this conspiracy” and had acted to “protect another or others”, a matter also prayed in aid by Mr Boyton.

20.  My attention was also drawn to HKSAR v Leung Sau Kuen, CACC53/2003 in which a starting point of 3 years and 9 months was taken by the trial judge for a charge of “Preventing the lawful burial of a body”.  In Leung Sau Kuen, “the applicant had killed a person, taken the steps to obliterate traces of her and fled the jurisdiction, …”. The Court of Appeal did not think the starting point was manifestly excessive and the applicant’s application for leave to appeal against sentence was dismissed.

21.  The facts of the following English authorities are more similar to what happened in the present case, all concerned deaths resulting from drug abuse and prevention of lawful burials.

22.  In R v Parry and McLean (1986) 8 Cr App R (S) 470, the two appellants were convicted of conspiracy to prevent the burial of a corpse.  The appellants were drug addicts and had been present in the flat where the deceased, also a drug addict, had died.  The appellants wrapped the body in a carpet and some plastic bags and disposed of the body in a disused quarry.  The body was found, with McLean’s help, over a month later.  Parry and McLean were convicted of conspiracy to prevent the burial of a corpse and sentenced respectively to 3 years and two and half years’ imprisonment.  The sentences were upheld on appeal.

23.  In Diane Susan King (1990) 12 Cr App R (S) 76, the body of a deceased drug addict was kept by the woman (also an addict) whose home the deceased shared.  She retained the body because she was aware that there was a warrant out for her arrest in relation to another minor offence and she did not wish to engage the police.  She was sentenced to 21 months’ imprisonment.  The English Court of Appeal allowed the appeal, quashed the original sentence and substituted it with a term of 12 months’ imprisonment.  In the judgment, Phil J observed that:-

“The offence is a serious one, as the learned Judge stated. The displeasure of the public at conduct of this kind must be marked. The gravity of the offence will however vary enormously from case to case. The length of the term of imprisonment which is appropriate will depend upon the circumstances of the particular case.”

24.  In R v Pedder (2000) 2 Cr App R (S) 36, the appellant, a drug user, kept the corpse of a person who had died of heroin overdose in his flat for 6 months, the English Court of Appeal, when considering the 18 months prison sentence that had been passed on the appellant for preventing the deceased’s burial, highlighted the severity of the offence, noting that it is ‘callous, thoughtless and cruel, in particular to the family of the person who has died.’ The court had before it a letter from the ex-wife of the deceased, who said that she had suffered much as a result of the crime.  The court also emphasized that the delay interfered with the ability of the authority to properly investigate the death.  In the present case, whilst the Deceased did not have relatives who would suffer by his disappearance.  The way the defendant had disposed of the body of the Deceased certainly had the effect of interfering with the authority to properly investigate the death of the Deceased, given the effect of decomposition of the corpse had on the autopsy.  The English Court of Appeal considered that a sentence of 18 months’ imprisonment could be appropriate in such cases.  However, in view of the fact that since the offence the appellant had attended a drug rehabilitation centre, the Court reduced the sentence to 12 months’ imprisonment.

25.  In R v Whiteley (2001) 2 Cr App R (S) 119, the defendant had not been present when the deceased had died as a result of drug overdose.  However, the defendant had given his co-accused, who was present at the death, money to buy a car in order to dispose of the deceased’s body.  The defendant then participated in the disposal of the body which was wrapped in newspaper, a curtain and a carpet, taken to a country lane, and dumped in a ditch.  Ousley J observed:-

“[I]t is important to point out that this is indeed a serious offence. This offence is not merely capable of interfering with the administration of justice, but it can be a cause of real grief for the bereaved over the identification of the body, the deprivation of the opportunity for a decent burial, and the anxieties that naturally arise over whether the person was actually dead at the time that the attempts at concealment arose.”

26.  In my judgment, having regard to: (i) the role played by the defendant in the unlawful disposal of the body; (ii) the circumstances prior to the death of the Deceased, ie he was consuming ICE together with the defendant and others in a divan; (iii) what those present had done immediately after the death of the Deceased, ie the first aid given by the defendant and the summoning of two Chinese medical practitioners to the Flat; (iv) the background of the Deceased, ie he had no relatives and had a very limited social circle; (v) the effect of the unlawful burial had on the autopsy; (vi) and the utterly cruel and disgusting manner that the body was disposed of, a starting point of 30 months’ imprisonment is appropriate.

27.  The defendant is entitled to one third reduction for his guilty plea and co-operation with the police after his arrest.

28.  Mr Boyton submitted that the defendant should be given extra credit for the confession that he made to the police, without which there would be no admissible evidence against the defendant.  In the present case, it cannot be said that the offence would not have come to light but for the confession made by the defendant.  The defendant and all the persons mentioned in paragraphs 7, 8 and 9 of the Amended Summary of Facts were arrested for “Conspiracy to Murder”, in the circumstances, it is not surprising at all that the defendant, upon his arrest, would give an explanation as to what had happened as well as what had not happened inside the Flat on the day in question.   I have considered Mr Boyton’s submissions.  In my judgment, the confession made by the defendant after his arrest should be a factor subsumed within the one third reduction. 

29.  The defendant should be given one third reduction for his guilty plea and co-operation with the police, which would bring the starting point down to 20 months.

30.  I can see no other mitigating factors which can further reduce the sentence.

31.  For the reasons given, I sentence the defendant to 20 months’ imprisonment.