HKSAR v. HUI MAK KWAN

CACC 2/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 2 OF 2003

(ON APPEAL FROM HCCC 404 OF 2001)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1. The Applicant was 78 years old when, on 20 November 2002, he pleaded guilty before V. Bokhary J to manslaughter on the basis of diminished responsibility. His plea of not guilty to murder was accepted.

2. Following two adjournments for further psychiatric reports to be obtained, on 16 December 2002, the judge sentenced the Applicant to life imprisonment with a minimum term of 30 years to be served.

3. The Applicant now seeks leave to appeal against conviction and sentence. He has been granted legal aid only in respect of the latter application.

Conviction

4. So far as the Applicant's conviction is concerned, he was legally represented in the lower court. The Applicant not only pleaded guilty to manslaughter but he also admitted the Summary of Facts. The relevant portions of these facts provide a sufficient overall picture of the offence which occurred in the following circumstances:

"At about 4-15pm on the 23rd July 2001 the defendant took a chopper from his home and went to an open space outside Lung Hong House. He approached Leung Kwok-kuen, aged 50 (PW1), a person whom he did not know. At the time Leung Kwok-kuen was sitting on the ground and reading a newspaper. The defendant held the chopper in his right hand and chopped Leung Kwok-kuen twice on the head, once on his right leg and once on his left leg. In this course of this attack the defendant was heard to yell 'chop you to death' or words to that effect. Leung Kwok-kuen ran from the scene to a flowerbed about 100 meters away outside the Faith Hope Nursery where half a dozen elderly people were sitting passing the time of day. Leung called out that he had been chopped and that the police should be called. At about that time the defendant arrived at the flowerbed outside the Faith Hope Nursery. Leung ran to the ground floor of Lung Chak House and collapsed into unconsciousness.

The deceased, Chan Choi-keung, aged 73, was one of those persons sitting around the flowerbed. He was holding a walking stick. The defendant still holding the chopper walked slowly towards the flowerbed. He was talking to himself as he walked. He approached the deceased and chopped him several times. The deceased fell back into the flowerbed. The defendant turned away and spoke to himself in loud tones. He turned again and chopped the deceased again. The deceased called for help. The defendant turned away again and then turned back and chopped the deceased again. He then went and lent against some railings opposite the flowerbed and continued to speak to himself. The deceased lay in the flowerbed covered with blood. The defendant was then apprehended by witnesses and shortly after that the police arrived on the scene.......

The police interviewed the defendant. He told the police that he was not involved in the murder of the deceased - he really only had a fight with him. He said that he was going to fight a heroin pusher who lived on the 14th floor. He said that he couldn't find the man but then he saw another man who lived at Block 19 - this man according to the defendant had always helped the heroin pusher. He told the police that he then had a fight with somebody and in the course of the fight he took a chopper and chopped the person who was holding a walking stick. He explained that he had taken the chopper from his home with a view to chopping the heroin pusher but had failed to find that person. He said also that he had been hit by the deceased with a wooden stick before he had chopped the deceased. The defendant recalls only chopping the deceased once." (Appeal bundle p. VI-IX)

5. There are no grounds for treating the Applicant's plea of guilty as a nullity. He was mentally fit to plead and to give proper instructions to his lawyers. The application in relation to conviction, therefore, fails.

Sentence

6. Before imposing sentence, the judge was able to consider a number of psychiatric reports. On the basis of the information contained in these reports, the judge concluded that the Applicant was "undoubtedly a very grave danger to others" and that a life sentence was necessary. She went on to say:

"Under section 67B of the Criminal Procedure Ordinance, Cap. 221, I am required to specify a minimum term which the accused must serve. Because of the accused's advanced age, perhaps this is less meaningful in the present case than in many others. But I must still specify a minimum term, so I do so and I specify 30 years. This is calculated on the basis that as things presently stand, there is no prospect of the accused not being a danger to the public and unless things change in practical terms, life must mean life.

No doubt the prison authority would provide the necessary psychiatric treatment to the accused as and when the circumstances arise." (Appeal bundle p. 20)

7. Mr Percy, on the Applicant's behalf, made no complaint about the imposition of the life sentence. Realistically, he has accepted that this was one of those rare cases where, despite the plea of guilty, a discretionary life term was the only appropriate sentence for the judge to have imposed.

8. As Mr Daryl Saw, SC, on the Respondent's behalf, has pointed out in a lengthy written submission for which we are grateful, all the criteria for imposing a discretionary life sentence as set out in R v Hodgson (1968) 52 Cr.App.R.113 were satisfied in the present case. The same criteria are applicable in Hong Kong (see: HKSAR v Hui Chi-wai & Ors (No. 2) [2003] 2 HKC 582, HKSAR v Chan Man-lok & Another, CACC 522/2000 (unreported) and HKSAR v Cheung Lai-man, CACC 533/2002 (unreported)).

9. The criteria are, firstly, the offence or offences are in themselves grave enough to require a very long sentence; secondly, where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and thirdly, if further offences are committed, the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.

10. The circumstances of the instant offence, in regard to the first criterion, were undoubtedly grave enough to require a very long sentence. The Applicant attacked a defenceless total stranger for no apparent reason, inflicting horrific injuries on him. Since then, he has demonstrated no sign of remorse. The second and third criteria were clearly satisfied by the material contained in the psychiatric reports.

11. The reports which were ultimately placed before the judge had been prepared by three psychiatrists. We do not need to dwell on the detail contained in these reports having regard to the fact that it is not suggested that the life sentence was inappropriate in itself. Suffice it to say, Dr S.Y. Chung, who had been engaged by the defence, took the view that the Applicant needed to be detained in a psychiatric hospital, albeit he accepted that the Applicant's "delusional disorder" could "not be cured by psychiatric treatment". Dr S.H. Lui and Dr W.K. Choi, on the other hand, each took the view that a hospital order was inappropriate. From their reports, it is apparent that the Applicant's condition is untreatable and that the Applicant would remain a danger to society if released. Dr Lui described the Applicant as suffering from a "personality disorder of the paranoid type" which, he stated, gave rise to a prognosis which was as bad as for "delusional disorder". A similar opinion was expressed by Dr Choi.

12. The view that the Applicant would be likely to re-offend, which was also expressed, is to some extent reflected in one of Dr Choi's reports where he referred to the Applicant as having to be moved for a time to Siu Lam Psychiatric Centre because of his attacks on other inmates.

13. We turn to the imposition of a minimum term of imprisonment which the judge in this case had assessed at 30 years. Section 67B of the Criminal Procedure Ordinance, Cap. 221 ("the Ordinance"), provides as follows:

"67B. Minimum term to be specified in respect of person sentenced to life imprisonment

(1) When imposing a discretionary life sentence on a person for an offence, the judge must specify as part of the sentence a minimum term that the person must serve for the offence.

(2) If, when imposing an indeterminate sentence of imprisonment on a person for an offence, the judge is of the opinion that there are matters relating to the person or the offence which should be recorded for the purpose of reviewing the sentence in the future, the judge must make a report in writing to the Chief Executive specifying those matters."

14. In Cross and Cheung, Sentencing in Hong Kong, 3rd Edition, at pp. 282-3, the learned authors helpfully comment on these provisions as follows:

"When the court specifies a period under subsection (1), the period, known as the 'tariff period', is calculated according to the punishment or retribution required to deter the accused and others from committing similar grave offences: R v Hollies (1995) 16 Cr App R (S) 463, 468. The court should indicate clearly to the accused how it has calculated the tariff period. The discretionary life sentence, it is clear, falls into two parts: (a) the relevant part which consists of the period of detention imposed for punishment and deterrence, taking into account the seriousness of the offence and (b) the remaining part of the sentence during which the accused's detention will be governed by considerations of risk to the public. The period which is specified is thus not a finite sentence at the end of which the accused will be released. It is only the period before which he should not even be considered for release by the board which reviews life sentences: R v Fox (1994) 15 Cr App R (S) 370."

15. As can readily be observed, the requirement to set a minimum term of imprisonment for someone who is sentenced to a discretionary life term is mandatory. It was Mr Saw's submission, which he responsibly and respectfully advanced, that in fixing the minimum term in the present case that the judge had misapprehended her role. We are grateful to him for his close analysis of the situation which emerges from the facts presently before us and, for these purposes, we accept and adopt the argument he put before us.

16. It is apparent that integral to the operation of section 67B of the Ordinance, is the Long-Term Prison Sentences Review Ordinance, Cap. 524. This makes provision for the review of prison sentences imposed on prisoners sentenced in Hong Kong to indeterminate or long-term sentences, namely, sentences of ten years or more. Section 8, which contains the principles upon which the Board is required to exercise or perform its duties and functions, provides that the Board must have primary regard to the following principles:

"	(a)	in any case where the prisoner has not been completely rehabilitated, the rehabilitative effect of releasing the prisoner from detention before the unremitted part of the prisoner's sentence is served;
	(b)	the benefits to the prisoner and to the community arising from the prisoner being supervised after release with a view to securing, or increasing the likelihood of securing, the prisoner's rehabilitation (in any case where the prisoner has not been completely rehabilitated) and successful reintegration into the community;
	(c)	whether the part of the prisoner's sentence already served is sufficient, in all the circumstances (in particular given the nature of the offence for which the prisoner is being detained), to warrant consideration being given to having the prisoner released from detention early;
	(d)	the need to protect members of the community from reasonably foreseeable harm that could be inflicted by the prisoner as a result of having been released from detention early."

17. The Board is authorised (pursuant to section 15) to make recommendations to the Chief Executive in respect of prisoners who, in its opinion, should have their prison sentences remitted or converted to determinate periods; to order the conditional release of prisoners who are serving indeterminate prison sentences; and to make supervision orders in respect of prisoners who, having been sentenced to indeterminate sentence of imprisonment, have had their sentences converted to determinate sentences by the Chief Executive on the Board's recommendation.

18. As Mr Saw conceded, the concerns expressed by the judge when fixing the minimum term in the instant case were misplaced because ultimately, this Applicant could not, while undergoing a life sentence, be released back into society without the Board being satisfied that this could safely be achieved.

19. The so-called tariff period of 30 years imposed in the instant case effectively removed from the Long-Term Prisoners Review Board any discretion regarding the Applicant's future. The Applicant could not, if this term was allowed to stand, be considered by the Board until, in the unlikely event that he ever attained such an age, he reached the age of 108. In the circumstances, therefore, the judge, albeit unintentionally, had defeated the clear intent of the legislation when she announced that the term of 30 years was "calculated on the basis that, as things presently stand, there is no prospect of the accused not being a danger to the public and, unless things change in practical terms, life must mean life". From this passage, it seems that the judge had assumed that it was for the sentencer to determine the long term danger to the public of the accused. This, of course, is only correct in part because this factor is recognised by the imposition of a life sentence. However, a minimum term which denies any realistic possibility of rehabilitation or recovery, however remote, must, with respect, be regarded as contrary to the spirit of the legislation when taken as a whole.

20. The point which has arisen is not a new one. In HKSAR v Hui Chi-wai & Ors (No. 2) [2003] 2 HKC 582 at 591, Stock JA, giving the judgment of the Court of Appeal, when referring to section 67B of the Ordinance, said:

"The section is not designed to provide a sentence of imprisonment in lieu, as it were, of a life term. It is designed to draw from the court a minimum term of years which the convicted person must actually serve before release, remembering however, and this is an important caveat, that it is inherent in the phrase 'minimum term' that the court does not say that that is the stage at which the convicted individual is to be, or even should be, released. Those who are entrusted with the function of monitoring prisoners serving indeterminate sentences, or long term determinate sentences, and with making recommendations, where appropriate, for release or for the conversion of indeterminate terms to determinate ones, may very well in individual cases decide against the prisoner's release at the end of the minimum term and, indeed, may decide that release is not permissible for some considerable time beyond that date, or indeed at all.

The exercise of the power under s 67B (Cap 221) is one which should be viewed in the context of relevant provisions of the Long-Term Prison Sentences Review Ordinance, Cap 524."

21. The judgment went on to describe, at p. 592, the scheme set out in the Long-Term Prison Sentences Review Ordinance, stating that:

"when deciding upon a minimum term under s 67B, what the court is primarily addressing is the punitive and deterrent element dictated by the offence and the current circumstances of the offender."

22. We should add, of course, that the minimum term which is imposed under section 67B of the Ordinance is not, unlike other substantive sentences, subject to any remission under the provisions of Rule 69 of the Prison Rules, Cap. 234. Furthermore, bearing in mind that the Applicant had pleaded guilty to the offence, he would normally have been entitled to some discount on the minimum term which was imposed just as he would have been if he had been sentenced to a determinate term of imprisonment.

Conclusion

23. Having regard to all of these considerations, it is clear to us, with respect, that the judge erred in her assessment of the appropriate minimum sentence she should impose. This, in our view, resulted in the imposition of a term which was manifestly excessive. It has, therefore, become necessary for us to undertake the task afresh.

24. We bear in mind that it is by no means clear that the Applicant will ever cease to be a danger to the public. Present indications are to the contrary. He has expressed no remorse and appears to have little or no insight into his mental state. However, considering the Applicant's advanced age, his plea of guilty and the fact that the Long-Term Prisoners Review Board will be able to assess him in due course, we consider that the appropriate minimum term to be served by the Applicant, under section 67B of the Ordinance, should be 10 years.

25. Accordingly, we shall grant leave. Treating the hearing as the appeal, we quash the 30-year minimum term and substitute a minimum term of 10 years' imprisonment. The life sentence will, of course, remain undisturbed. To this extent, the appeal succeeds.