HKSAR v. YEUNG MOK YEH

CACC 483/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 483 OF 2004

(ON APPEAL FROM HCMP NO. 2209 OF 2004 AND HCCC 239 OF 1990)

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and

CACC 57/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 57 OF 2005

(ON APPEAL FROM HCMP NO. 2211 OF 2004 AND HCCC 239 OF 1990)

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BETWEEN

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court) :

Introduction

1. These two applicants were tried before a judge and jury upon an indictment which alleged that on 14 April 1990 at Chung On Street, Tsuen Wan, they murdered Hung Man Tat.  They denied murder, although they offered to plead guilty to manslaughter.  The trial proceeded upon the murder allegation and that is the offence of which each was convicted on 4 July 1991.  

2. At the time of the offence, each applicant was aged 16 years 8 months.  Section 70 of the Criminal Procedure Ordinance, Cap. 221 then provided that if it appeared to a court that a person convicted of the offence of murder was, at the time the offence was committed, under the age of 18 years, an order was to be made that that person be detained in safe custody in such place and manner as the court thought fit “until Her Majesty’s pleasure be known”.  Accordingly that was the sentence imposed by the trial judge, Gall J.

3. In 1993, by reason of the repeal of section 70 of the Criminal Procedure Ordinance and an amendment to section 2 of the Offences against the Person Ordinance, Cap. 212, the penalty mandated for the offence of murder became life imprisonment, a term to be imposed regardless of the age of the convicted person.

4. Subsequently, section 2 of the Offences against the Person Ordinance was further amended so as specifically to cater for imprisonment of those convicted of murder but who were under the age of 18 years at the time of the offence.  That section now reads:

“Any person who is convicted of murder shall be imprisoned for life.  However, if it appears to the court that a person convicted of murder was under 18 years of age at the time of the offence, the court has a discretion as to whether the person should be sentenced to imprisonment for life or to imprisonment for a shorter term.”

5. At the same time, section 67B of the Criminal Procedure Ordinance was enacted.  It now reads:

“	(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.”

6. It followed that after these two statutory provisions came into effect, a judge, when imposing a sentence upon a person convicted of murder but who was aged under 18 years at the time of the offence, could either impose a fixed or determinate sentence, or, on the other hand, pass a sentence of life imprisonment specifying the minimum term to be served before that person became eligible for release.  Eligibility for release is not to be confused with requirement for release at the expiration of the minimum period.

7. None of these provisions assisted any of those who had been convicted of murder for offences committed by them when they were aged under 18 years and sentenced before these changes; or, for that matter others who were serving discretionary life sentences.  In other words, there was in place for such persons no regime by which they could know in advance the term or the minimum term of imprisonment that they were required to face.  Legislation was then enacted that required the Chief Justice, in respect of those already serving discretionary life sentences, or who were detained at Executive discretion, to submit to the Chief Executive a recommendation, in respect of each such person, specifying a minimum term that the prisoner should serve in relation to the offence for which he was sentenced to imprisonment or was detained.  These provisions did not, however, withstand judicial scrutiny for it was held that the power given to the Chief Executive to determine minimum terms were judicial powers and, given the terms of article 80 of the Basic Law, properly exercisable only by the courts: see Yau Kwong Man v Secretary for Security [2002] 3 HKC 457.  This ruling resulted in yet further legislation enacted in 2004 whereby fresh determinations in relation to existing prisoners were to be made by the courts.

The new provision

8. The relevant provision for present purposes is section 67C of the Criminal Procedure Ordinance:

“	(1)	As soon as practicable after the commencement of this section and in any event within 6 months after such commencement, the Secretary for Justice must, in respect of each prescribed prisoner, apply to the court for a determination by a judge under this section.
	(2)	If, within 6 months after the commencement of this section, the Secretary for Justice does not make any application in respect of any prescribed prisoner under subsection (1), the prescribed prisoner may also apply to the court for a determination by a judge under this section.
	(3)	Subject to subsection (4), the judge hearing an application under subsection (1) or (2) must determine the minimum term that the prescribed prisoner must serve for the relevant offence.
	(4)	Where the prescribed prisoner is serving the relevant sentence in respect of the conviction of murder committed when he was under 18 years of age, then, subject to the consent of the prescribed prisoner to the application of this subsection to him, the judge has the discretion as to whether-
		(a)	to make a determination under subsection (3); or
		(b)	to determine instead that the relevant sentence be quashed, and be substituted by a sentence of imprisonment for a fixed term of such duration as the judge considers appropriate.
	(5)	In making a determination under this section-
		(a)	subject to paragraph (b), the judge may take into account any material submitted to him by the Secretary for Justice or the prescribed prisoner that is, in his opinion, relevant to the determination; and
		(b)	the judge must not take into account the previous recommendation or the previous determination.
	(6)	Notwithstanding subsections (3) and (5), if the term determined under subsection (3) (whether or not also by application of subsection (4)(a)) as the minimum term that the prescribed prisoner must serve for the relevant offence is longer than the term specified as the minimum term to be served by the prescribed prisoner for the relevant offence under the previous recommendation, the term so determined is, for all purposes, to be treated as equal to the term so specified.
	(7)	If, when making a determination under subsection (3) (whether or not also by application of subsection (4)(a)), the judge is of the opinion that there are any special considerations or circumstances relating to the prescribed prisoner or the relevant offence which should be taken into account in any future review of the relevant sentence, the judge must make a report in writing to the Chief Executive specifying details of those special considerations or circumstances.”

9. A “prescribed prisoner” includes a person serving a mandatory life sentence in respect of the conviction of murder committed when the prisoner was aged under 18 years, or a person detained at Executive discretion in respect of the conviction of any offence: see section 67G.

Application

10. There are a limited number of prisoners to whom this section in fact applies.  In Yau Kwong-man, the number was given at fifteen.  We are told by Mr Saw SC, for the respondent, that there are only thirteen such prisoners previously convicted of murder but who were aged under 18 years at the time of the commission of the offence and in respect of whom no minimum term or fixed term was set.  All these thirteen cases have come before Pang J and he has, as we understand the position, made, in each case, a determination under subsection (4)(b) of section 67C; that is to say, a determination of a fixed term, rather than the setting of a minimum term. 

11. It is the fixed term determinations in respect of these two applicants that is now under appeal before us.  It is not suggested that the learned judge ought to have opted for a determination under subsection (3), but rather that the term that he has fixed in each of these two cases is manifestly excessive.  The term he has fixed in the case of each of these two applicants is one of 27 years’ imprisonment, and it is against that determination that these applicants seek leave to appeal.

The facts

12. It is convenient to recite the summary of the facts from the judgment of the Court of Appeal upon the application of both men when they sought leave to appeal against their murder convictions:

“	2.	It was common ground at the trial that on the evening of 14th April 1990 the applicants were members of a large group of youths who had armed themselves with knives and had set out in search of another group of youths whom they believed had assaulted their leader earlier that evening.  The applicants and several other members of their group eventually succeeded in locating four or five youths whom they suspected of having been involved in the earlier assault.  When one of these youths attempted to escape by running down the road, the applicants took off in pursuit and succeeded in catching him after he had fallen over.  They then attacked him with their knives as he was lying on the ground.
	3.	In video recorded reconstructions of the incident and cautioned statements, the admissibility of which was not challenged at the trial, the 1st applicant admitted that he had given the order to chop the victim twice and had himself inflicted one chop wound, and the 2nd applicant admitted that he had chopped the deceased once, but could not remember on which part of his body the blow had landed.
	4.	The deceased sustained seven chop wounds consisting of two to his head, one in which his jawbone, right trapezius and sternomastoid muscles and jugular vein were severed, one to his left elbow, one to the back of his left hand and one to his right thigh.  The underlying bone was fractured in each of the arm injuries.  It was the neck wound which was the cause of death.
	5.	Neither applicant gave evidence.  However, in the course of his video recorded reconstruction the 1st applicant sought to blame the 2nd applicant for having inflicted the fatal neck wound.  In his statement in answer to the charge of murder he denied that he had had any intention of killing the deceased.  The 2nd applicant, in his cautioned statement to the police, while saying that he could not remember what parts of the deceased's body he had chopped, asserted that the 1st applicant had chopped the deceased on the head, trunk, hands and legs.  In reply to the charge of murder he said "I did not have the intent".  The judge correctly directed the jury that whatever one applicant said in a statement to the police was not evidence against the other.
	6.	A prosecution witness, Mr. Mo Man-chiu, testified that during the course of a discussion in a hut at Tai Mo Shan to which the applicants had fled after the killing, the 1st applicant had admitted to him that he had chopped the deceased twice on the head, and that the 2nd applicant admitted that he had intended to chop the deceased on the shoulder but had accidentally chopped him on the neck.”
	See R v Yeung Mok-yeh and Kwan Wing-kei [1993] 1 HKCLR 172, 173-174.

13. Because of the emphasis that has been laid by counsel appearing on behalf of the applicants on the fact that this killing arose out of a gang dispute, our attention has also been drawn by Mr Saw to the fact, again not in dispute, that the deceased was himself no part of any gang but was on his way with a friend to a wedding.  It may be, and we shall so assume, that the applicants thought the victim and his friend to be part of some opposing group.

14. It is also the fact, as the judge quite rightly took into account, that the incident occurred in a public place, which the judge described as “a very busy thoroughfare”, and took place shortly after 7 p.m. in full public view.

The judge’s approach

15. The judge said:

“This was a brutal attack by the two respondents who were among an armed group of youth with triad background.  The deceased was a youngster of 18 and he was ruthlessly hunted down by a rival gang and chopped to death while lying defencelessly on the ground. …  the respondents and a number of others were armed with lethal weapons which they did not hesitate to use on their defenceless victim.”

16. The judge commented upon the fact that the jury self evidently had rejected the applicants’ contention at trial that they did not intend either to kill or to cause grievous bodily harm.  He suggested that: “If there be a scale of gravity for the offence of murder, I cannot consider this case to be one which is down at the lower end of this scale.”

17. The judge then referred to HKSAR v Cheng Yat Ming No 2 [1997] 3 HKC 365, a case in which a 17-year-old who had not brought with him any weapons and who had responded to a degree of provocation was the recipient of a fixed term of 28 years’ imprisonment.  The judge took the view that the present case was more serious, and said that he would adopt a sentence of 30 years’ imprisonment.

18. Having so stated, the judge then went on to consider, in some considerable detail, reports that had been submitted on behalf of each applicant showing very good progress by each during the period of their incarceration thus far.  Yeung was a grade B+ prisoner who had passed a significant number of examinations whilst in prison and is now enrolled in the Bachelor of Business Administration program organised by the Open University of Hong Kong.  He has also become a devout Christian, and the judge referred to assistance given by him to the police in a case that ultimately went to court and in respect of which he had offered to be a prosecution witness.  There is no suggestion in his case of a long-term threat to society.  The judge accepted that he had shown genuine remorse and “had made commendable efforts to rehabilitate himself”.  He concluded: “To give credit for his efforts during the past 14 years I am prepared to reduce three years from the original term of 30 years.”  Thus it came to be that he fixed a term in Yeung’s case of 27 years.

19. Kwan had once been a grade A+ prisoner but this had been downgraded to B+.  He too has made considerable efforts to improve himself and has passed a number of public examinations and is engaged in a number of courses offered by the Open University of Hong Kong.  In his case as well, the judge took the view that he had expressed genuine remorse for the crime and had made a genuine effort to rehabilitate himself and also had the full support of his family members and of a Church group and, furthermore had the prospect of full employment upon release.  So, for these reasons, the judge said that he ‘would likewise reduce the 30-year term to one of 27 years.’

The appeal

20. We have received submissions from Mr Donald and Mr Grossman SC for Yeung and Kwan respectively.  They were separately represented because it was at one stage thought that some issue might arise as between the two applicants but, as matters transpired, that issue fell away.

21. The gravamen of the submissions was the same for both applicants, though there were matters of detail that differed.  It was said that the 27-year fixed term was manifestly excessive given:

(1)	the age of the applicants that the time of the offence;
(2)	that there had been no intention to kill;
(3)	that the events did not disclose a high level of sophistication or preplanning;
(4)	that it was but a revenge attack in which killing was not the prime motivation;
(5)	that there was no financial gain envisaged;
(6)	that the applicants admitted their roles upon arrest;
(7)	that the applicants had clear records prior to these events;
(8)	that the applicants had performed exceptionally well in prison, thereby showing remorse and a readiness to be released into normal society;
(9)	that there was no particular need for a deterrent sentence, since Hong Kong was not an inherently violent society;
(10)	that on the ladder of seriousness, within the context of murder cases, the present case does not stand on a high rung;
(11)	that the referral by the judge to the case of Cheng Yat-ming was arbitrary, and that there are other cases more appropriate to the circumstances of this case to which he ought to have referred as a useful benchmark.

22. We were invited by counsel to say that the time had arrived at which it was just that these applicants be released into society and that, accordingly, this Court should replace the terms fixed by Pang J with sentences that would permit the release of these applicants either immediately or within a short time.

Analysis

23. Despite the unusual factual and historical framework within which the relevant statutory provisions were cast, our role as an appellate court in relation to the sentences passed at first instance remains the same as is its traditional role upon applications for leave to appeal against sentence, which is to say, to determine whether the terms imposed by the judge below were either manifestly excessive or wrong in principle.

24. One matter which caused this court some concern, and upon which we invited submissions, was the extent to which, if at all, the judge below was entitled to make a specific deduction on account of the performance of each of these applicants whilst imprisoned from the term which otherwise would have been appropriate.  The issue arises because in the normal framework of a court’s sentencing function, the court takes care not to intrude upon the province which the legislature has entrusted to others.  The function of the courts in sentencing is to sentence for the offence, having regard to the character of the crime and to individual circumstances.  The circumstances in which a sentencing court will be faced with somebody who is in a position to pray in aid prison circumstances, whether they be the manner in which present conditions bear against him or whether, on the other hand, how well he has done in prison, will be rare.  This is just as well, for once a court engages in such exercises, it inevitably becomes enmeshed in matters increasingly removed from those which reveal the appropriate sentence for the offence, and in matters which are more appropriately the province of others, especially those who are best placed to compare the progress of one prisoner against others and with the benefit of an in-depth knowledge of the prison regime and with aspects of post-release prospects for rehabilitation.  So it is, for example, that the circumstances in which an appellate court will look at the events post-sentence, and in particular how an offender has fared in prison, are well circumscribed : see HKSAR v Yeung Kwai Kuen [2002] 3 HKC 395.  What we have in effect been invited by counsel to do in this case – and it follows that this is what it is suggested the judge below should have done – is to substitute ourselves for the Long-Term Prison Sentences Review Board, established by the Long-Term Prison Sentences Review Ordinance, Cap. 524.  That is not, in our judgment, the judge's function even in the peculiar circumstances for which section 67C is intended.

25. We have little doubt but that the unusual statutory provision which is subsection (5) of section 67C is primarily directed at enabling the court to determine whether or not an indeterminate sentence is appropriate, for which purpose a judge will necessarily require reports that disclose the progress of the prisoner since sentence and the prognosis for his future development.  Yet we cannot say, given the manner in which the section is drawn, that that was the sole purpose for which such reports were intended to be used by the judge.  Had that been the intention, the subsection would have made that clear.  Furthermore, since in the normal course of the sentencing process a judge is required to make some assessment as to remorse and genuinely praiseworthy conduct between offence and sentence, it would not be right to exclude such considerations in the peculiar situation for which section 67C was enacted.  Accordingly, we are satisfied that the conduct of these applicants after the imposition of the original sentences in 1990 was properly taken into account by the sentencing judge.  We should add that what the judge has done in taking these factors into account is not to be taken by the Board as a binding determination of the date upon which these applicants should be released.  He has in the main viewed the conduct of the applicants since their incarceration as clear evidence of genuine remorse, a factor which a judge will normally take into account.  It remains for the Board still tofulfil its statutory duty as normally it would.

26. We were, in the course of submissions, taken to the statutory scheme now prevailing in the United Kingdom by which judges are guided as to the setting of minimum terms; as well as to decided cases in that context in relation to youth.  We do not think that the terms set elsewhere are of particular use.  Policy considerations, particularly for offences of the kind with which we are called upon to deal in this particular case, may vary significantly from one jurisdiction to another.  That is not to say that sentencing decisions elsewhere, in the debate which they reveal as to the weight to be given to various factors, are anything other than helpful.  So, for example, we see in two of the cases that were drawn to our attention, R v Sullivan [2005] 1 Cr App R 23, and R v Peters [2005] EWCA Crim 605, a repeated emphasis upon the extraordinary range of factual situations underlying murder cases.  It is precisely for that reason that in manslaughter cases courts are loathe to set guidelines, or to state starting points.  So, too, when comfort is sought in the present appeals from the suggestion that there was no intent to kill, those decisions articulate the truism that an intent to kill does not necessarily make a case more serious than another in which there is no intent to kill.  So, for example, an intent to kill is a necessary ingredient of mercy killing, yet the essential criminality will be less than in many cases where there is no intent to kill, of which the case now before us is but one example.  Peters made a further point, pertinent to this particular appeal which bears repeating:

“One of these deaths occurred as the result of a fight between rival groups of young men in broad daylight, during the course of an incident which was or might well have been witnessed by people and indeed children going about their lawful activities.  At the time of his killing, this particular street turned into a dangerous place.  Such a crime has a significant public element.  It produces huge public dismay.  It is therefore an aggravating feature… .”

27. Mr Grossman rightly urged upon us the youth of these applicants at the date of the offence, pointing out that youth normally carries with it immaturity, and consequently demands of the courts an approach of particular care and understanding.  With that we agree, although in addressing those within these age brackets, by which we mean 16 or 17 or 18 year-olds, a mathematical approach must be avoided, and the courts will have regard to the true relative maturity of the individuals.  As to this, we have no particular information about these applicants and we do not assume them to have been either immature or mature for their age at the time of the offence.  Yet, all this said, cases of the present nature produce a particular deterrent requirement.  Within the framework of our society, Triad gangs are a scourge, and they thrive upon the recruitment and participation of the young and it is in that light that high sentences indeed are called for in cases of gang violence resulting in serious injuries or death.  This is not to warrant a mechanistic approach that disregards the circumstances and role of individuals, but it is to say that in this context, the judicial jaw must be set tightly against lenience.

28. The fixed term determined by the judge below as a starting point did not fall outwith the range of sentences traditionally imposed for this type of offence by persons of this age.  The legislature has prescribed life imprisonment for murder but the legislation itself recognizes that the mere fact of youth may well be, and often is, such as to warrant a less serious punishment.  In other words, the fact of youth is already inbuilt to the legislative framework, by its move in those cases away from a mandatory term unaccompanied by the fixing of a minimum term, and by the provision of the alternative of a fixed term; which of course is not to say that there is no flexibility.  But it is to say that for an offence of this kind, where a group goes out in search of its victims, armed with knives, and thereafter, in a public place, mercilessly set about a young man who has offered no provocation or offence, causing the death of that young man, a fixed term of 27 years, even granted strong evidence of remorse, cannot be said to be manifestly excessive.

29. A point was made on behalf of Yeung that no specific deduction was afforded him for the assistance which he gave in relation to another case.  We are satisfied that the judge took it into account as evidence, amongst other factors, that the applicant was rehabilitated and remorseful; and we are satisfied that it does not, in all the circumstances, justify a distinction in the fixed term as between the two applicants.

30. All the issues raised have been properly raised and were clearly worthy of this Court's consideration, for which reason we grant each applicant leave to appeal and treat the hearing of the application as the appeal.  However, for the reasons we have provided, the appeal of each appellant is dismissed.