HKSAR v. YIP CHU SUM

CACC 367/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 367 OF 2001

(ON APPEAL FROM HCCC NO. 16 OF 2001)

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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):

1 On 11 September 2001, the applicant pleaded guilty before Beeson J to a count upon an indictment which alleged that on 16 September 2000 he attempted to murder a man named LAI Wai Shing. The judge sentenced the applicant to a term of 13 years' imprisonment, and this is his application for leave to appeal against sentence.

The agreed facts

2 It is convenient to take the facts from the summary which the applicant agreed. The victim LAI Wai Shing owned three taxis, one of which was driven by the applicant. Lai lent the applicant money on which he charged interest at an annual rate of about 240%. At the time of the offence the outstanding debt was about $45,000.

3 On 16 September 2000 at about 4:10am Lai and the applicant were sitting in the applicant's taxi outside Block 17, Richland Gardens, Kowloon Bay, discussing repayment of the debt, when the applicant suddenly started to hit Lai's head with a spanner. Lai left the taxi but slipped, fell and then fled, but he was pursued by the applicant who continued to hit him over the head with the spanner. Lai ran on for about twenty feet before collapsing into unconsciousness. Lai later estimated that the attack had lasted for about three minutes. An ambulance came and took him to hospital. He had multiple scalp lacerations with no underlying fracture, haematoma or focal neurological signs. His injuries were sutured, and he was discharged from hospital on 22 September 2000. He has made a good recovery.

4 Lai gave the police the applicant's mobile telephone number. The police telephoned the applicant, who agreed to attend Ngau Tau Kok Police Station. There, he was questioned under caution and said "He is a loanshark. He was pressing me hard to return the money therefore I wanted to hit him to death."

5 Officers found a 30cm long knife in the tool box of the applicant's taxi and, when asked about it, the applicant said: "The knife is owned by me. I took it from my home, I planned to kill LAI Wai Shing with it. However on second thoughts I prepared to hit him with a spanner, so that others would think it was done by a head bash gang. I came here to surrender, I am not afraid to admit it. I wanted to kill him."

6 Later the same day, he said that he had hit Lai over the head seven to eight times with the spanner because "He asked me to give him $8,000 and I couldn't give him. He declared to harm my family members if I failed to give him so I attacked him." He said that he had planned the attack the previous day, and had armed himself with the knife and the spanner in the small hours of 16 September when he had arranged to meet Lai to discuss the debt. He claimed that during those discussions, Lai had said that if the applicant could not repay "the interest is a hand and a leg." He said that whilst he had been attacking Lai, a taxi drove past; he had been very frightened and therefore left the scene in his taxi to discard bloodstained clothing and the spanner on a hillside, and had then taken the call from the police which invited him to attend the police station.

Mitigation

7 Mitigation was advanced to the sentencing judge in detail by Mr Poll, who appeared then for the applicant, and appears for him upon this application. The applicant was, at the time of the commission of the offence, aged 39 years, a married man with one child and had not previously offended, save for an offence of fighting in a public place in 1995 for which he was made the subject of a conditional binding over order for 12 months. In essence, and this is to précis the mitigation significantly, it was said that the applicant had found himself in difficulties because he had incurred gambling debts, had then borrowed from his employer Lai, who was charging extortionate interest rates. The applicant is said then, in about August 2000, to have fallen upon further difficulties because his father was sent to a home, and also because a taxi which he was driving in the course of a second job was involved in an accident for which he had to pay compensation. So he had to borrow further from Lai, but Lai was exerting severe pressure on him to repay and was making threats, somewhat obliquely at first, which the applicant took to be threats to harm him and his family; and the applicant was willing to assume that he was indeed at risk as was his family if he did not pay up, because he knew of an incident in which Lai had set fire to the home of another taxi driver debtor, or so the applicant alleged or thought. It was contended that on 10 September 2000 the applicant had gone to the police to make against Lai an allegation of loansharking, but that the police had not pursued the matter because the applicant had no documentation to support his complaint. So the applicant decided that he would kill Lai, and armed himself with a knife and a spanner with that intention. He met Lai on the night in question, apparently at Lai's request, and during the discussion, threats to his family and to himself were renewed, and the applicant attacked him at that point with the intention of killing him. Later blows delivered after Lai had left the taxi but were not aimed, it was said, with an intention to kill, but with an intention to make Lai stop shouting out. It was put that the applicant's action had been those of a desperate man, and that the judge sentenced on the footing that the applicant had been sorely provoked.

8 The judge also had the advantage of a report by a consultant psychologist. It is of limited use. It recounted the applicant's version of events and that the applicant had been short of sleep at the time of the killing, and had been under stress and intense fear. The suggestion is that although he suffered no psychosis, his mental functioning must have been severely impaired.

Sentence

9 In her detailed and careful sentencing remarks, the judge treated the applicant as a man with a clear record. She accepted that, prior to the attack, the applicant was "probably in a state of mental and emotional turmoil." She did not however accept that the attack was an impulsive one. It was, in her view, a premeditated and planned attack. She thought that the applicant probably believed that the threats made "if they were made at all were able to be backed up" but she expressed slight scepticism as to whether or not the victim was in a position to threaten one of his drivers (the applicant) as alleged. She noted that the injuries were in the event not serious, but that the applicant had intended to use a knife of substantial proportions with a 10 inch long blade, and only changed the weapon of attack to a spanner in the hope of lessening the chance of detection. Noting from her reading of cases that where there has been planning and premeditation, sentences appeared to range between 20 and 25 years' imprisonment, she took a starting point of 20 years' imprisonment and, taking into account his plea of guilty, his good character, and the fact that "he was under some pressure at the time of this offence" she sentenced the applicant to a term of 13 years' imprisonment.

Hints of scepticism

10 Mr Poll's first complaint is directed at the degree of scepticism expressed by the judge about the threats. She said, for example, that "I accept that it is likely that the accused believed that the threats if they were made at all were able to be backed up" (emphasis added); and, a little later: "I am a little sceptical as to whether or not the victim would have been in a position to threaten one of his own drivers in a manner that he was allegedly stated to have done."

11 The emphasis of the judge's remark had earlier been on some doubt as to whether the threats were seriously intended, but that is a different question from whether the threats were made at all. One has, we believe, to assess the judge's comments in full context. Mr Poll's mitigation had been advanced on the basis that, whilst the applicant was sinking further and further into debt, he the applicant, realized that Lai "would possibly take measures to enforce the payment of money" and that he, the applicant, had thought that because of the previous fire incident, when Lai started insisting on repayment he, the applicant, became frightened, realizing that he and his family were "possibly in danger". Mr Poll went on in mitigation to say that on 15 September, that is the day before the attack, a threat was made in oblique language. So, when the judge said that the accused thought that the threats were real "if indeed they were made at all", it may very well be that the judge was referring to the obliqueness of the threats and the possibility that the applicant was reading more into the comments made by the complainant than the complainant intended.

12 Nonetheless, there can be no question but that the applicant was asserting, and had asserted in his interview with the police, that on 15 September, and more specifically on 16 September, Lai had made comments about going to see the applicant's wife and son and about taking interest on the debt by way of an arm and a leg, and that they were serious threats. We are of the view that the judge ought to have sentenced on the footing that those comments had indeed been made. The prosecution did not seek to gainsay the mitigation. In the interview with the police on the day of the attack, the applicant told them that the victim was a loanshark, and that in the taxi the victim had, at least by clear implication, threatened to harm the applicant's family, and the applicant as well, and that that was why, ultimately, the applicant had attacked him. The prosecution had had much time in which to ask the victim whether this was or was not true and, since there was no suggestion advanced that it was not true, and since it was not inherently improbable, sentence was to be passed on the footing that the mitigation about the threats, actual or implicit, was correct. We do, however, note in passing that the suggestion that the applicant had been to the police in September was contradicted by what the applicant said in his interview when he was expressly asked if he had thought of going to the police; he answered that he had never thought about making a report. Nor was there any mention in the several interviews of an incident in which Lai had set fire to premises in retaliation for non-payment of a debt.

A merely contingent plan?

13 It is further said that the judge failed to appreciate the fact that whilst there was formed before 16 September some plan to attack it was only a contingency or tentative plan, which was subject to the applicant's hope that matters could yet be resolved as to his indebtedness, and that the plan would not have been implemented, but for the threats offered in the taxi which mentioned the applicant's wife and son and the applicant himself, and the fact that Lai used his mobile telephone apparently to call associates, the applicant thinking that it was to call them to attack his family. We are satisfied, having read the papers and, most particularly, the interviews given by the applicant on the day of his arrest, that matters are not that black and white, and that to talk of a mere contingent plan is unrealistic and too favourable to the applicant. The account which emerged from the applicant himself in those interviews, and it is detailed, was that he borrowed several sums of money from Lai from January 2000 onwards and that, as time wore on, Lai pressed him for payment. There can be no doubt but that what was in the first instance worrying the applicant was the fact that he had a debt which he could not pay, and that he was being pressed for payment. We cannot ignore the fact that that pressure in itself was one that could be alleviated by Lai's demise. Hints of pressure on the rest of the family only came late in the day. On 15 September, according to the applicant's account, Lai told the applicant that he, Lai, needed money and that $8,000 was to be paid the next day, and they were to meet at the place where the taxi drivers went to change shifts. At the same time, Lai had said that if the applicant could not come up with the money he, Lai, would ask the applicant's wife for it. Lai had already spoken to the wife in August in the company of two men. According to this interview, it was at that point that, on 15 September, the applicant decided to attack Lai. Indeed it may be that the decision was taken even earlier, because the applicant told the police that he had picked up the spanner a few days before his arrest on 16 September. He had had it in his bag for a few days. On 15th, when the demand was made for payment, the next day, he, the applicant, wanted Lai dead. Then he said to the police that when Lai reacted on 16th in the taxi to the applicant's comment that he had not the money, by saying that he would get it from the applicant's wife and son, the applicant "really feared he would disturb my wife. So in the end, I went ahead with what I'd been thinking about for a couple of days bashing him with that spanner." When Lai made those comments "I finally decided to attack Lai."

14 The judge can hardly in the circumstances be criticised for saying that the attack was premeditated. It is clear that the applicant had planned to attack, and had armed himself to do so. Whilst it is true that there is a suggestion in the interview that the decision to attack was cemented by the events in the taxi on the morning of 16 September, we think that the matter can fairly be put this way. This was not an impulsive act, as has been suggested. It was not a sudden response to an unexpected event, or to unexpected provocation. There may have been some remote chance that the attack might not be carried out, but the chance was high that it would be, and the decision before 16th to attack and the arming of the applicant to do so, are in this case features which must go in aggravation of sentence. That is the true flavour of the matter.

Some other cases

15 The real question however which we have to address is whether, looking at all the circumstances of this particular case, the starting point taken by the sentencing judge and the resulting sentence after plea was or was not manifestly excessive. This requires, we think, a global view and feel, rather than dissection of one aspect of the judge's comments or another.

16 The offence of attempted murder is one for which no sentencing guidelines exist. That should come as no surprise, because the circumstances of that offence will vary considerably from case to case. For this reason, too, the citation of earlier cases which establish no principle or guideline are frequently of limited use in an appeal against sentence. Yet, in this case they cannot be ignored entirely because of the judge's use of the twenty years starting point by reference to cases in which premeditation was a feature, and because the cases to which we have been referred suggest that the sentence imposed in the present case was more appropriate to circumstances of a more ominous and aggravating type.

17 In R v NG Kin-ming [1994] Crim App No. 275, a sentence of 20 years' imprisonment after trial was imposed by the Court of Appeal in a case where the defendant had sent a parcel bomb to a hotel, and the packet containing shrapnels, tacks, and nails exposed causing severe injuries, including very bad burns to a victim's hands, face and body.

18 In HKSAR v DINH Van-duong, CACC 632 of 1996, the Court of Appeal upheld the sentence of 20 years' imprisonment after trial in a case of an attack by two men upon the victim; the two men, armed with knives, repeatedly stabbed the victim in the chest. The one applicant who was appealing against sentence, had a bad criminal record, including offences of violence.

19 R v CHONG Chiu-wo, Crim App No 390 of 1988, was a truly horrific case in which an employee of a bank attacked his boss and also a female fellow employee. He used a knife and pistol, and he repeated struck the boss on the head, felt his neck pulse, hit him again, and then cut his throat. The lady was struck on the head with a bag, and then with a fire extinguisher, and then her throat too was cut. A sentence after trial of 25 years was upheld.

20 R v LAU Sun-wah and others, Crim App No 288 of 1985, was a case of a triad attack on a man whose business the triads wanted to close. Two men went to attack him, which they did with beef knives and they inflicted severe injuries: deep cuts to the left shoulder which caused the bone fracture, a chop wound to a forearm, which went into the muscle, and a number of other serious wounds. The applicants were convicted after trial of attempted murder. The sentence imposed, which might well be thought to be light indeed, was in each case, one of 14 years' imprisonment which, not surprisingly, was a sentence with which the Court of Appeal did not interfere.

21 In R v CHAU Pui-wan, Crim App No. 623 of 1996, a sentence of 10 years' imprisonment imposed after trial was upheld by the Court of Appeal. The applicant was a lady who had set fire to her business partner by the use of a fire accelerant, and had seized hold of him whilst he was burning to see that he did not escape. She and the victim had been business partners and emotionally involved with each other, and she would appear to have been under stress as a result of loss of funds which she had invested in the business, and was being harassed by creditors, and she said that the victim had not repaid her what was due. The information to hand is scanty, and there must have been more detail before the Court by which that sentence was reached.

This Case

22 This is a difficult case in which to judge what the appropriate sentence should be. On the one hand, the nature of the offence is, by definition, very serious. The applicant has admitted that he had intended to kill. Furthermore, one cannot gainsay the fact that the applicant had formed the notion to kill before the day in question, and had armed himself in advance, even though he asserts that the intention only finally crystallized into the act upon further provocation. Furthermore, and although the report showed that there were no fractures to the skull and no haematoma, we have seen the photographs taken of the scene of the crime, of the knife with which the applicant had armed himself, as well as of the injuries to the victim. The knife is a vicious knife, and the spanner a substantial weapon, and the photographs of the victim show vividly how the applicant must have rained blows all over the victim's skull. So, whatever the background and the provocation and the stress, these are features not lightly to be treated.

23 On the other hand, this case does not quite have the remote and indiscriminate attributes of the more serious of the cases which we have cited. We have here a hardworking family man who was clearly under considerable stress, stress caused in the first instance by his own folly in gambling and running into debt but, on the facts which he put forward, and which were not contradicted, there was also considerable stress deliberately created, and provocation offered, by the complainant. Since there was a degree of planning to what happened, it is not provocation which would have amounted to a defence to a charge of murder had the victim died, but in the present case, stress and fear were real factors. It was suggested, also, that the stress was aggravated by lack of sleep in the days preceding the attack. Unlike the triad or the contract killer, this applicant was acting out of character, and not in concert with others to kill. Furthermore there was evidence that he had cause to fear that the threats levelled against him were seriously intended. One has to take considerable care before according to stress and fear too much weight lest it be thought that it in any way justifies what was done, yet, in this case, its significance is that it explains why this applicant acted out of character. That he ought, despite the provocation and stress, not to have acted as he did, and take the law into his own hands, speaks for itself, and is why he faces, on any view, a substantial term of imprisonment. The injuries which he inflicted were, in the event, not nearly as serious as in some other cases of attempted murder, although it may well be that the applicant would have continued with the attack had he not been frightened off by an approaching taxi. Furthermore, the facts did not speak for themselves, which is to say that by the nature of the attack one might not necessarily have assumed that this was an attempted murder. The complainant himself had not asserted such an intention. What made the intention to kill apparent - and there was an alternative count of wounding with intent - was the applicant's own conduct in going to the police and telling them that he had hoped for the victim's death; and, of course, his own plea of guilty to the count of attempted murder. Mr Chapman for the respondent accepts that the applicant displayed swift and genuine remorse.

Conclusion

24 We think, in the circumstances, that the sentence imposed by the judge was, in the event, manifestly excessive. An appropriate starting point in this case was one of 16 years' imprisonment and, given the various mitigating factors, we think that a sentence of 10 years' imprisonment is the sentence which ought to have been imposed. Accordingly, we grant the applicant leave to appeal against sentence and, treating the hearing of the application as the appeal, we allow the appeal, set aside the sentence of 13 years' imprisonment, and substitute a sentence of 10 years' imprisonment.