HKSAR v. CHEUNG KWOK KAY

CACC 377/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 377 OF 2000

(ON APPEAL FROM HCCC 24 OF 2000)

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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. On 11 August 2000, the Applicant was convicted, by way of alternatives to the more serious counts of murder and wounding with intent, of manslaughter (count 1) and three counts of unlawful wounding (counts 2 to 4) following a trial before Suffiad J and a jury. The Applicant was sentenced to eight years' imprisonment on count 1 and to what purported to be concurrent terms of five years' imprisonment on each of the remaining counts. The statutory maximum for each of these wounding offences, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212, was three years' imprisonment.

2. The Applicant now seeks leave to appeal against sentence. The application for leave to appeal against conviction which the Applicant had originally advanced in written self-made grounds was not pursued and we dismissed this at the outset of today's hearing.

Prosecution's case

3. The case against the Applicant was presented on the basis that he had participated in one of two alternative ways at about 2.00 a.m. on 31 August 1999, in a horrifying attack by about twenty participants armed with beef knives and poles on a smaller group of young men inside a pub known as the 'Windmill'. This was situated on the ground floor of premises in On Lok Road, Yuen Long. One of the victims was killed and three others were left seriously wounded.

4. There were three significant pieces of evidence connecting the Applicant to the attack. Firstly, his identity card was found in the street about 50 metres from the scene of the killing. It was this discovery which led to the Applicant's arrest. Following this, the Applicant began by providing false details of an alibi. However, later on, he admitted that he had acted as a lookout for his group when they went on the attack inside the 'Windmill'. The third piece of evidence, of perhaps less significance in the light of the jury's verdicts of guilty to the alternative charges, related to the identification of the Applicant as one of the group who physically went inside the 'Windmill' armed with a pole.

Defence case

5. The Applicant did not give evidence at his trial and no witnesses were called on his behalf.

Grounds of Appeal

6. Mr Stirling, who also appeared on the Applicant's behalf in the court below, has advanced two grounds of appeal. Firstly, he submitted that the starting point of twelve years for manslaughter which had been adopted by the judge was manifestly excessive.

7. We can say straightaway that we disagree with this submission. The judge expressed the seriousness of these offences, which had triad overtones, with his customary precision and clarity. Dealing with the incident itself, he said that it was:

".... a vicious attack with wooden poles and beef knives by the attacking gang, upon a rival gang drinking in the early hours of 31 August, 1999, in the Windmill bar in Yuen Long. The victims were all unarmed at the time of the attack. The attack was, furthermore, premeditated, in the sense that the attackers had gathered at Ngau Hom and had waited there for about four hours. During these four hours, the attackers had received information from someone inside the Windmill bar. And it was only then, that they launched the attack with the vicious weapons used." (Tr. pp. 52-53)

8. The judge went on to describe the Applicant's culpability in these terms:

"Your counsel (has) urged on your behalf .... that you went along to this attack out of foolishness rather than out of wickedness. This is a matter that I have much hesitation in accepting for the following reasons. Firstly, the jury, by their verdict, found that you did intend for some harm to the victim, albeit not grievous bodily harm. Secondly, in your cautioned interview you admitted that you had played the role of a lookout during the attack, and although that was a long and detailed statement made by you, there was no suggestion by you .... that you had gone there with an intention other than to assist the attackers, knowing full well that they were going there to attack this rival gang with poles. Thirdly, it was also admitted by you that you had been present at Ngau Hom, waiting with the other attackers during those four hours before the attack. During those four hours you must have come to know, full well, the intentions of the attackers." (Tr. p. 53)

9. As to the actual role played by the Applicant in these offences, the judge said:

"I do, however, accept what was said by Mr Stirling, in that the jury, in convicting you of the lesser offence of manslaughter, probably accepted what you had admitted in your cautioned statement, such that your role in this incident was that of a lookout, rather than as one of the attackers holding a pole. I shall therefore sentence you on that basis." (Tr. pp. 53-54)

10. One feature of the case, which the judge took into account when he reduced his starting point from twelve years to eight years, was that the Applicant had offered to plead guilty to the lesser charges on which he was ultimately convicted. We consider this to have been a discount which might in normal circumstances be regarded as somewhat generous, bearing in mind that the Applicant never in fact entered pleas of guilty to the less serious alternatives. However, Mr Stirling has very properly told us that the Applicant did not enter his plea of guilty to manslaughter because of the advice he had given to the Applicant, and it seems to us, therefore, that the Applicant should not in those circumstances have been penalized for not having entered a plea of guilty and no doubt the sentencing judge took the same view.

11. If we make any criticism at all of the judge, and it certainly does not assist the Applicant, it is that he allowed Mr Stirling's application for an adjournment in order that a probation report could be prepared. It was totally unrealistic to expect that the probation report could add, in case of this seriousness, any significant contribution to the sentencing process. The Applicant, aged 21, had been before the courts on seven previous occasions. The last of his convictions related to a wounding charge contrary to section 19 of the Offences Against the Person Ordinance when he was ordered to be detained at a training centre. The facts of the present case were grotesque and the sentence was inevitably going to involve a long period of incarceration.

12. It is not in the least surprising that when the probation report was eventually put before the court, it turned out to be entirely unhelpful to the Applicant. It demonstrated that the Applicant had expressed no remorse for what he had done. He was described as "a rebellious, aggressive, wayward youth who has instilled the evil triad culture since his teens ...." The probation officer concluded by saying that the Applicant's "poor self-control, close linkage with triad members, and his internalized concepts of triad sub-culture overwhelm all the rehabilitative measures given to him".

13. The killing was aggravated in our opinion by a large number of factors to which the judge had made reference. In particular, it was an organized and premeditated triad revenge attack involving a gang of about twenty members armed with a variety of vicious weapons which were used to inflict terrible injuries on victims who were defenceless.

14. In the Applicant's favour, all that can be said is that at no stage in his confession to the police about the role he played did he admit knowing about the presence of knives, albeit he was well aware that the gang were carrying poles. Indeed, it may well be that it was this factor in the evidence which was the reason he was acquitted of murder.

15. The Applicant's sentence of eight years' imprisonment was not a day too long. He may have acted as a lookout for his gang but this was no reason to reduce his sentence to below the tariff which would have been appropriate for those in his gang inflicting violence on others. His role was important to the overall plan and he shared equal guilt with all the others responsible for this attack. If his identity card had not been found, he would probably not have been discovered at all.

16. We should say, before turning to the second ground of appeal, that in the course of argument Mr Stirling referred us to a summary of the judgment in HKSAR v Kong Yiu-kam and Anor CACC 41/1999 which appears in HKLRD [1999] Yearbook at para. 324 which provides a seriously misleading headnote. This reads:

"Manslaughter - gang revenge attack - starting point of 9 years excessive - appropriate starting point between 6 to 8 years"

17. In fact, by looking at the original judgment in that case, it is apparent that the Court of Appeal had not described the sentence of nine years as "excessive".

18. Furthermore, later in the summary from the Yearbook, the text reads:

"Held: dismissing the appeal, that generally a sentence ranging between 6 to 8 years' imprisonment was appropriate for gang revenge attacks depending on the circumstances."

19. Reference is made a little later on to two judgments which purport to be authority for that proposition. These were R v Ko Kam-hung [1991] 2 HKLR 433 and R v Kan Wah Cheung [1991] 1 HKLR 595. Both of those cases dealt with offences where pleas of guilty had been entered. A reading of the full judgments in those cases reveals that no conventional weapons had been used or carried in the gang attacks which had led to the death of the victims. Furthermore, as Miss Sin, to whom we are grateful for her considerable research in her response to this application, pointed out, the sentences of six to eight years to which reference was made in the summary, related not to starting points but to the sentences eventually imposed after pleas of guilty had been entered.

20. So far as the second ground of appeal is concerned, we shall, for the reason we have already explained, give leave to appeal. The concurrent sentences on counts 2 to 4 of five years' imprisonment in each case must be quashed as these sentences exceeded the maximum which is prescribed by law. This, of course, should have been pointed out by counsel appearing in the court below. If this had been done, it may be that there would have been no need for these proceedings, which have otherwise been on wholly unmeritorious grounds.

21. Treating this hearing as the appeal, we shall substitute sentences of three years' imprisonment on each of the wounding counts, bearing in mind their gravity, to run concurrently with each other and concurrently with the sentence of eight years' imprisonment for manslaughter. The overall sentence being served by the Applicant remains unaltered.