HKSAR v. LAM PUI FUNG

CAC C 293/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 293 OF 2012

(ON APPEAL FROM HCCC NO. 385 OF 2011)

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REASONS FOR JUDGMENT

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Hon Yeung Acting CJHC (giving the Reasons for Judgment of the Court):

Introduction

1. The applicant (Lam Pui Fung) appeared before Deputy High Court Judge Stuart-Moore (the judge) sitting with a jury on an indictment consisting of a single charge of murder.  The applicant pleaded not guilty to the charge.

2. The victim (the deceased) was a 27-year old woman working in a one-woman brothel.  The applicant, being deep in debt, resolved to commit robbery and he decided to target a one-woman brothel because he learned from newspapers of robberies against such establishments.

3. The applicant visited the deceased and allowed himself to be fondled by the deceased before he declared robbery and arm-locked the deceased for several minutes until she became unconscious.  He then picked up the deceased and let go of her against the toilet bowl before ransacking the premises.

4. When the deceased seemed to be making some sound, the applicant took some towels and stuck her head into the toilet bowl together with the towels in order to silence her.  The applicant then took away her valuables and the deceased was subsequently found to have suffocated.

5. On 5 March 2009, the applicant pleaded guilty to robbing the deceased before Bokhary J and was sentenced to 4 years and 8 months’ imprisonment.  The applicant served that sentence in May 2011 and he had remained in custody pending the disposal of the murder charge.

6. The applicant admitted killing the deceased in the course of the robbery and was prepared to plead guilty to manslaughter before the judge.  However, his plea was not accepted by the prosecution and the case proceeded to trial.

7. On 28 June 2012, the applicant was acquitted of murder, but convicted of manslaughter.  The applicant was sentenced to 9 years’ imprisonment.

8. The judge indicated that the 9-year sentence was a new sentence to commence upon the completion of the 4-year and 8-month sentence imposed on the applicant by Bokhary J.

9. The total sentence imposed on the applicant for robbery and manslaughter is therefore 13 years and 8 months.

10. Represented by Mr James HM McGOWAN, the applicant sought leave to appeal against sentence on the basis that the sentence, in all the circumstances, was manifestly excessive and/or wrong in principle.

11. At the end of the hearing, we dismissed the application and indicated that we would hand down our reasons in due course. This we now do.

The Facts

12. This was not just a case of killing a young woman who had the misfortune of having to work as a prostitute, it was a very bad case where the applicant carried out a series of brutal and gratuitous attack on her in the course of a planned robbery when she was vulnerable and helpless.

13. We would just repeat what the judge said before he imposed the sentence on the applicant:

“There is probably no section of society which is more open to robbery and violent assault than prostitutes who work on their own. They do so to avoid working in illegal brothels. Sadly, as this court knows all too well, some of the assaults on such women who work alone end in death. It is because such women are so vulnerable that the law has to pay particular regard to their protection. Unless the sanctions are very severe, others like the defendant will be tempted to use violence on unprotected victims of this kind.

The defendant, in fact, was a copycat robber. He had read all about it in news reports of how prostitutes working by themselves would be robbed in their so-called one-woman brothels. The defendant himself is a visitor to such places. So he decided to carry out a robbery himself. His motive was to steal money so that he could carry on gambling to which he was addicted.

Nobody who has heard the facts of this case would describe it as anything other than the most brutal, cowardly killing because, first of all, you rendered that woman unconscious by putting her into an arm-lock with your right arm around her neck and using added force with your left hand to squeeze her neck until she was unconscious. At one point, you put your hand over her mouth in case she called out. You are a very big man and she was not a big lady.

When she collapsed unconscious on the floor, your first thought was to go about stealing. That is exactly what you did. Then you noticed that she was moving a bit in her hands and feet so you picked her up under the armpits and you literally dumped her like a sack of cement in her own bathroom, by just letting go of her, and she dropped heavily onto the edge of the toilet bowl.

The pathologist does not know whether it was the forehead injury or the jaw injury which was caused by the dropping of her in that manner but it was a heavy fall and one the injuries, the one to the jaw, took out a front tooth and she bit right through her tongue. You had no regard for that woman whatsoever. It was extremely violent conduct. But again, you showed how remorseless you were because your first thought again was to go stealing. You left her like that and you went and picked up some more of her things.

Then you noticed her moving again and making a sort of bubbling sound like a child does when it has saliva in its mouth. She had not moved but you then stuffed the toilet full with seven towels and she suffocated. She died a terrible death. You showed complete indifference to what you had done. You left and sold the phones and you gambled until 2 o’clock that morning until you had nothing left.

There are some cases of manslaughter where an intent to kill or cause really serious bodily harm has not been proved but which are very close to the borderline with murder.  The jury in this case, understandably, took the view that it could not be proved that you deliberately suffocated that woman.”

Counsel’s submissions

14. Mr McGOWAN accepted that there is no tariff of sentence and that there is no need to prescribe a starting point in a manslaughter case.  He nevertheless suggested that the total sentence of 13 years and 8 months on a plea of guilty for robbery and manslaughter, representing a notional starting point of 20 years and 6 months, was manifestly excessive.

15. Mr McGOWAN referred to a number of cases, including HKSAR v Lau Kwok Leung [1999] 3 HKLRD 416, HKSAR v Liu Qingyong (CACC 302/2002) and HKSAR v Luo Fu Di (CACC 107/2012) to support his contention and he suggested that a starting point of 18 years is the upper limit for sentence in robbery and manslaughter cases and “should be reserved for the most egregious cases”.

16. Mr McGOWAN also submitted that the judge should have imposed a partially concurrent sentence as the robbery and the manslaughter offences were inextricably linked.  Mr McGOWAN argued that the additional 9-year sentence imposed on the applicant for manslaughter was, in any event, manifestly excessive.

Discussion

17. As Mr McGOWAN rightly pointed out it is common, when sentencing for manslaughter, not to provide a starting point, but a finishing point. (See the judgments in The Queen v Lee Sau Ping (CACC 189/1995), HKSAR v Lin Siu Lun [2009] 6 HKC 308, HKSAR v Yip Kai Ming (CACC 414/2009).  In HKSAR v Yik Po Man (CACC 112/2000), Stuart-Moore Ag CJHC, when giving judgment of the Court, said:

“It is well established that in cases of manslaughter there is no requirement to take a starting point. This is a crime with infinite variations which will have a bearing on the appropriate sentence the judge should impose. In the worst cases, only a sentence of life imprisonment will be appropriate and sometimes this will apply even to a plea of guilty in circumstances where, for example, the defendant is suffering from a state of mind which has made him a long term danger to the public and for whom a hospital order is not appropriate. At the other end of the scale, a probation order might not be inappropriate in certain circumstances. The majority of offences of this kind generally fall into a band of sentence in the region of between three years and twelve years’ imprisonment, which again demonstrates the huge variations in sentence.”

18. The issue we had to decide was whether the 9-year sentence for manslaughter, in addition to the 4 years and 8 months for robbery, was manifestly excessive.

19. There are no guidelines for sentencing for manslaughter as there are such varieties of relevant factors.  The facts of each case must be examined to determine the proper sentence and to that extent sentences in other manslaughter cases may not be too helpful.  Nevertheless it is worthwhile to point out the facts of the cases referred to by Mr McGOWAN and in particular the manner in which the deceased in those cases were killed.

20. In Lau Kwok Leung (supra), the deceased was killed when she put up a struggle and screamed after she noticed the defendant break into her home to steal.  The defendant struck the deceased’s head with a hard object and she also suffered fractures of many of her ribs on both sides of her body.  A total sentence of 12 years for the robbery and manslaughter offences on pleas of guilty was described as “not a day too long”.

21. In Liu Qingyong (supra), the deceased, the defendant and his accomplice took part in a homosexual activity in the course of which the deceased was tied up.  When the deceased began to shout, a pillow was used to cover his face and a towel was used to gag him.  When the deceased appeared to be breathing “less”, the bonds restraining the deceased was loosened and he was placed flat so that he could breathe more easily and the defendant also attempted to resuscitate him for a considerable period of time without success.  The defendant, on a plea of guilty to a single charge of manslaughter, was sentenced to 15 years imprisonment which was reduced on appeal to 12 years’ imprisonment.  The Court of Appeal in allowing the appeal took into consideration the fact that the defendant eventually decided to make a full confession without which the whole truth of what happened might never have been known.

22. In Luo Fu Di (supra), the defendant helped an 88-year old woman, one of her mah-jong partners to bed after she complained of being tired.  The defendant then tried to steal from the deceased’s handbag.  The deceased woke up and screamed.  The defendant put her hand over the deceased’s mouth to stop her screams and the deceased died.  The defendant then left the deceased’s premises with her mobile phone, some cash and some jewellery.  The defendant pleaded guilty to both manslaughter and theft and a total sentence of 9 years was considered adequate.

23. When compared with those cases, it was, in our view, readily apparent that the way the applicant killed the deceased was much more horrific.  We did not agree with Mr McGOWAN’s suggestion that the facts in Lau Kwok Leung (supra) were more serious.

24. The applicant, almost one foot taller and 20 kilogrammes heavier than the victim, carried out a series of vicious acts of extreme violence against the deceased leading to her terrible death.

25. We do not intend to repeat the judge’s description of how the deceased was killed except to point out that the applicant not only arm-locked the deceased with such force and for such duration as to render her unconscious, indicating at least an intention to cause really serious injuries to her, but also lifted her up and dumped her such that she fell heavily onto the edge of the toilet bowl, causing serious injuries to her jaw and forehead and resulting in the loss of a tooth and her biting right through her tongue.

26. When the deceased made some sound possibly because she was in pain, the applicant stuffed the toilet with seven towels and pushed her head into the toilet.  As a result, the deceased suffocated.  The violence on the deceased, not only was exceptionally brutal and sustained, but was also gratuitous.

27. The judge, in our view, had rightly emphasized the way in which the applicant killed the deceased which demonstrated that he was completely indifferent to what he did to her.  The judge was also right to point out that women in the deceased’s trade are vulnerable and therefore “the law must pay particular regard to their protection, and unless the sanctions are very severe, others like the (applicant) will be tempted to use violence on unprotected victims of this kind.”

28. We were in complete agreement with the judge’s sentiment.  This was not just an extremely bad case, but one of the worst cases of the kind.

29. The total sentence of 13 years and 8 months is a stiff sentence for manslaughter and robbery when they are inextricably linked, but on the facts of the case and in particular on the aggravating factors identified by the judge, we were not persuaded that it was manifestly excessive.  The application for leave to appeal against sentence was therefore dismissed.