THE QUEEN v. YICK BING

IN THE COURT OF APPEAL

1987, No. 531
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. The applicant at his trial faced three charges of murder. The victims were a Mr. and Mrs. Wong and their son who died in a fire which the jury, it is clear, were satisfied was deliberately started by the applicant. The jury however accepted that he was suffering from diminished responsibility and. on each charge, found him guilty of manslaughter.

2. The trial judge when sentencing set out the facts as follows:

"This is indeed a remarkably tragic case, as Mr. Sarony says. An elderly couple, Mr. and Mrs. Wong, and their son were killed in a fire in that flat which was started by their tenant, this accused. This was the result of a long standing dispute over the use of the kitchen and the accused imagined that Mrs. Wong had poured boiling water on him and that their sons pushed him. He went to bed angry, woke up furious and decided to quietly burn down the house so that the proprietor's family would have nowhere to stay.

He collected old clothes, doused them in paraffin, piled them outside the bedrooms of Mr. and Mrs. Wong and their sons and went outside the front-door and then set a light to them. He knew sufficiently what he was doing to note that the time was 3.20 a.m.

Then he escaped, ran out of the backdoor and climbed down into the street. He gave no warning to anybody about what he had done. So when the flat caught fire, everybody was still in bed.

The results were of course simply disastrous. The son was killed - one of the sons was killed when he lay in his bed. The other son was badly burned but was fortunate to be able to escape out of the back-door. Mr. and Mrs. Wong were badly burned but they couldn't get out through their bedroom door and so they had to try to escape out into the balcony where they were rescued. And they eventually died after one month and two weeks from the time of the fire."

          The trial judge went on to describe the jury's verdict in the following terms:

"It is clear the accused knew what he was doing and that it was wrong. The jury have accepted that he was suffering from diminished responsibility and I suspect they accepted the evidence of Dr. Simson that his lung cancer and the atherosclerosis from which this man is suffering caused hypoxia which is a loss of oxygen to the brain and that caused a loss of control and impaired the judgment of the accused."

3. The trial judge was satisfied upon the medical evidence, about which there was no real dispute, that "his life expectancy is now 3 to 6 months". The latest medical evidence which we have before us places his life expectancy at 3 months.

4. The trial judge appreciated that normally a sentence should be imposed or at least a sentence should be tailored to avoid the possibility that an offender will not live to be released. He was, however, concerned that no matter how debilitated the applicant might now be or might shortly become he would, nonetheless, have the strength to light matches and cause another tragedy. He said "his future behaviour is uncertain and his temper could easily flare up again it he is crossed." The trial judge considered the correct sentence in the circumstances was life imprisonment Which he impsoed. That sentence is now under appeal.

5. Mr. Sarony for the applicant has urged five grounds of appeal. They can fairly be sumnarized as follows: the trial judge failed to give proper weight to the undisputed medical evidence that the applicant was terminally ill, would become increasingly debilitated and had a life expectancy of not more than 3 months.

6. What we must ask ourselves is whether this is one of the rare cases in which it was appropriate for an appellate court to interfere on the ground of a convicted offender's ill health. The Probation Report, which we called for so that we would have before us all of the facts, concludes by saying that, in the circumstances, whether the appellant could benefit from probation is much in doubt. We called for the report, however, not because we considered that this was a case in which, probation as properly understood, would be appropriate but to see whether we could by the using of a probation order somehow ensure that the applicant did not die in prison.

7. We have had a letter placed before us today from the Nam Long Hospital which states that if beds are available they would take the applicant but it stipulates that they would have to be sure that he would be returned to a prison hospital if he proved at all difficult with staff or other patients. We are not encouraged by this letter as it places a proviso upon the acceptance of the applicant which, in practice, could create real difficulty in the implementation of any order we might make.

8. The order contemplated would, as we have already indicated be an entirely artificial use of the Probation Ordinance. We are satisfied after anxious and compassionate consideration that the circumstances do not justify the making of such an order.

9. The application must therefore be dismissed.