HKSAR v. LAI KA LUNG

 CACC 136/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 136 OF 2005

(ON APPEAL FROM NO. HCCC 206 of 2004 )

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reasons for judgment

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Hon Yeung JA (giving reasons for judgment of the Court):

Introduction

1.  On 19 July, we granted leave to the applicant – Lai Ka Lung to appeal against sentence. Treating his application as the appeal proper, we allowed his appeal and reduced his sentence by one year. We indicated that we would give our reasons in writing and this we now do.

Background

2.  On the morning of 5 August 2001, the applicant’s group had an altercation over a small amount of money with another group of young men, including the victims, at the “100 Feel Disco” in Portland Street.

3.  The two groups, despite mediation attempt by one of the victims – Wong Pui-tat (the deceased), failed to resolve the dispute and they were told by the security personnel of the discotheque to leave and not to make any trouble.

4.  Outside the discotheque, the applicant’s groups, consisting of not less than five people attacked the three victims – Wu Wing-shing (Wu), Lam Kwok-kit (Lam) and the deceased one by one. The applicant was one of the three men holding knives in the attack.

5.  The men, with knives, attacked Wu for about 30 seconds. Lam was then punched and kicked and then stabbed. They both suffered extensive lacerations all over their bodies. Lam also had a deep penetrating wound to the abdomen resulting in a laceration of the large intestine.

6.  The applicant, and his group then chased the deceased to punch and kick him. Subsequently, the deceased was found dead on the pavement in Portland Street.

7.  There were multiple bruises and abrasions on the deceased’s head, neck and limbs. There was a deep bruise in the underlying muscles on the right upper back of his chest with a further deep bruise in the underlying subcutaneous tissue on his lower back. Post mortem examination showed a small rupture on the front wall of the left ventricle at apex of the heart and a vertical laceration 6 cm long and 3 cm deep of the liver. The cause of death was rupture of the heart and liver.

8.  The pathologist commented that the external injuries were consistent with having been produced by blunt force and the shallow cut wounds by a sharp object. The fatal injuries to the heart and liver were consistent also with having been produced by a blunt impact, and those impact, given the location of the heart and liver, were said to have been of large magnitude.

9.  Four members of the attacking group, but not the applicant, were arrested immediately after the attack and charged with various offences, two with one count of wounding with intent; one with two counts of wounding with intent and one (i.e. D3) with one count of manslaughter, and two counts of wounding with intent. The victims were named as Wu, Lam and the deceased.

10.  They were all convicted after trial before Gall J and a jury. The wounding charges resulted in 4 ½ years’ imprisonment and the manslaughter charge against D3 resulted in 7 ½ years’ imprisonment. The sentences were ordered to run concurrently.

11.  Within hours after the attack, the applicant fled Hong Kong and remained in the Mainland until March 2004 when he returned. He was soon arrested for other matters and then charged with murdering the deceased, and wounding Wu and Lam.

The Pleas

12.  The applicant pleaded guilty before Beeson J (the judge) to two charges of wounding with intent and also indicated that he would plead guilty to manslaughter on the murder charge. Indeed the applicant had indicated such pleas some six months before the trial was due to start.

13.  The plea to manslaughter was accepted and the applicant was thus convicted of two counts of wounding with intent and one count of manslaughter on his own pleas.

The Sentence

14.  The judge sentenced the applicant to five years’ imprisonment on each of the wounding charges and 8 ½ years’ imprisonment on the manslaughter charge, all to run concurrently.

15.  The judge adopted a starting point of ten years for the manslaughter charge and reduced it by 1 ½ years for the guilty plea.

16.  The applicant sought leave to appeal against the sentence of 8 ½ year sentence on the manslaughter conviction only.

The Grounds of Appeal

17.  Mr John McNamara, for the applicant, put forward three grounds of appeal, namely (1) that there was disparity between the sentences on the applicant and those on D3 who took part in the same attack and was convicted of the same offences; (2) that the starting point of 10 years for the manslaughter offence was too high; and (3) that the judge failed to give the applicant the customary one third discount for his guilty pleas.

Discussion

The disparity

18.  In sentencing the other defendants involved in the attack including D3, Gall J took the view that the incident was not entirely a one sided matter and it was “more of a fight than an attack”. He further took the view that “at least one knife was in possession of the group”. (Emphasis added)

19.  However, the “Summary of Facts” against the applicant presented to Beeson J depicted a different scenario. It was not a fight, but an attack by an armed group against the three unarmed victims, one after another. There were also three knives involved not one.

20.  The applicant must be sentenced on the facts relating to the charges against him. When the facts are different, there is simply no basis for any argument based on disparity.

21.  In any event, a disparity in the sentences imposed on different offenders for the same offence(s) is not, in itself, a ground for an appellate court to interfere with a sentence if the sentence is otherwise appropriate having regard to the nature of the offence and to the offender himself (see R v Leung Hoi [1973] HKLR 238, R v Ngai Sum-tin [1978] HKLR 137 and R v Fung Siu-keung [1981] HKLR 608).

22.  The issue was further elaborated in R v So Hung-lee and Another [1986] HKLR 1049 where Barker JA explained it at p. 1051 of the judgment as follows:

“	There are, unfortunately, conflicting decisions in the courts of Hong Kong as to the principles to be applied when it is alleged there is such disparity. Thus in Leung Hoi…Ngai Sum-tin…Fung Siu-keung… and Chun Chi-cheung (1983) HKLJ 123, the approach of the courts was to ignore the sentence passed on a co-accused and to consider merely whether the sentence actually passed on the accused was appropriate. As was said by Pickering J in Leung’s case at p. 247:
	‘	We would suggest that the criterion is the appropriateness of the  sentence passed upon the appellant and that only when it is shown  that such sentence, considered in isolation, is wrong should an  appellate court begin to consider the more lenient sentence  imposed on a co-accused.’
	And later:
	‘	If the sentence is appropriate there can be no justifiable sense of grievance however fortunate a co-accused may have been in regard to the leniency of the sentence imposed upon him.’
	However, in other cases, namely Lee Kwan-yiu Crim App No 727/1981, Wong Siu-ching Crim App No 333/1984, Mok Sin-wah Crim App No 419/1984 and Sae Lo Vimun Crim App No 532/1984, the Court of Appeal appears to have taken the view that disparity is of itself a ground for interfering with a sentence.
	An examination of the four later cases suggests that in none of them was any reference to the earlier Hong Kong cases.
	They should therefore be regarded as having been decided per incuriam, in view of the earlier Hong Kong cases cited above, and should not be followed.
	For the sake of completeness we should add that reference to the English cases on disparity of sentence shows that there are conflicting decisions, and in the circumstances it is not necessary or indeed desirable to cite any of them.
	We therefore restated the principles set out in the four earlier Hong Kong cases, which we see as follows.
	Two situations can arise. The first is where there is a disparity between sentences passed on the same occasion by the same judge. In this case the sentence should be varied by the court if, but only if, it can be shown that the judge has not properly apportioned the blame between the accused. If the sentence was otherwise appropriate and the judge was under no misapprehension of the roles of the various accused, then the sentence should stand…
	….
	The second is when different sentences are passed on different accused for the same offences by different judges on different occasions. In this case, the only consideration must be whether the sentence passed on the appellant was appropriate. As Roskill LJ (as he then was) said in R v Stroud (1977) 65 Cr App R 150 at p. 152:
	‘	It is said that there is here such a glaring disparity that this Court ought to interfere in order to remove what is said to be a grievance on the part of the appellant Stroud.
	That argument pressed to its logical conclusion would mean, as Scarman LJ pointed out during the course of the appeal, that because one inadequate sentence is wrong, the other prisoner must also get a glaring inadequate sentence in order to produce what is said to be a proper adjustment between the two and to avoid disparity. In the view of this Court that is quite wrong.’”

23.  In a more recent Hong Kong case (HKSAR v Yu Pak Lun [2003] 2 HKLRD 568), this court stated, “that the approach adopted by the courts was to ignore the sentence passed on a co-accused and to consider merely whether the sentence actually passed on the appellant was appropriate. Therefore, the court should not compare the two defendants’ sentences in order to determine whether D1’s sentence was appropriate…”

24.  Mr McNamara complained about the judge’s comment – “if he had wanted parity, he should have stayed and faced the music as the rest of them did”.

25.  With respect, and contrary to Mr McNamara’s submission, the judge’s comment is perfectly correct in law and principle.

26.  The ground of appeal based on disparity was not made out.

The Starting Point

27.  The judge clearly took the view that the sentences imposed by Gall J on the other defendants were too lenient when she said, “I must state that I would have taken a higher starting point than the judge did at the trial”.

28.  The judge accepted that there might have been some degree of spontaneity about the fight erupting. However, the judge took the view that the offences were highly prevalent and often very serious ones in that they result in the victims’ death or serious wounding.

29.  The judge pointed out that the evidence against the applicant was strong, that he took a leading role in what was going on in the fight, and that he was armed with a 3 – inch flick knife.

30.  The applicant has 11 previous convictions involving dishonestly, violence and dangerous drugs.

31.  We shared the judge’s view that the offences in question are indeed most serious. For a dispute over a small amount of money, the applicant together with others inflicted extreme violence on the victims. The physical violence was such that Wu and Lam were seriously injured and the deceased died almost instantly from the rupture of his heart and liver. 

32.  The fact that the applicant and some of his accomplices were armed with knives suggests that either they had planed, or were at least prepared and ready for, the attack. The suggestion that it was a spontaneous attack is a lenient view to take.

33.  This is a very bad case in which one young man who had tried to mediate a dispute was killed in his prime and two others were seriously injured. The applicant’s unlawful and vicious conduct must be deterred.

34.  We were not persuaded that the staring point of 10 years was manifestly excessive.

35.  This ground of appeal also failed.

The One Third Discount

36.  Having adopted a starting point of 10 years, the judge did not state why she only gave a 15% discount and not the customary one-third discount.

37.  It has been the practice of this court to give a discount of sentence of one-third to an accused who pleads guilty. In HKSAR v Chui Chi Wai & Another [2000] 1 HKLRD 704, Wong JA said at p. 707:

“Since the decision of R v Ng Wing Kwong (unrep Crim App No 62 of 1995) in 1995, this Court has on a number of occasions in recent years pronounced that a full one-third discount is the norm rather than the exception for a timely plea of guilty and it is in exceptional circumstances that a lesser discount than one-third should be given.”

38.  The applicant had indicated long before the hearing that he would plead guilty to the wounding charges and to manslaughter on the murder charge. Prima facie, the applicant should be entitled to the one-third discount.

39.  The only possible reason for not giving the full one-third discount was the fact that the applicant had fled after the incident, which the judge emphasized as follows:

“In respect of the claim that he intended to surrender, I note that the fight took place at about 10.30 in the morning on 5 August 2001 and, within an hour, this accused had left to go to Macau. Counsel advised that he returned to Hong Kong in mid-2003 but I note that, in his letter to the court, he said he had sneaked back on more than one occasion during that period. Accepting that he did come back in mid-2003, he made no attempt to surrender himself to the police. He was arrested for other offences on 11 March 2004. One of the offences for which he was arrested was using somebody else’s identity card, so it was quite obvious he had no intention of surrendering to the police and was continuing to lead the lifestyle that he had led before, albeit in a slightly different capacity.”

40.  We did not accept Mr McNamara’s submission that the judge had adopted a higher starting point because the applicant had fled. The judge clearly took the view that the proper starting point should be 10 years. We were prepared to accept, however, that the judge reduced the one-third discount to 15% because of it. The question was whether the judge was right to do so.

41.  The rationale for a reduction of sentence in case of a plea was examined by the High Court of Australia in R v Cameron [2002] 187 ALR 65. In the joint judgment of Gaudron, Gummow and Callinan JJ at p 67, the relevance of a plea of guilty is stated as follows:

“It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v R it was said: ‘…a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.’ It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.”

42.  Kirby J was more explicit when he said at p 81:

“The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate further as a reinforcement for the prisoner’s resolve to avoid repetition of such conduct in the future and as an example to others. However, ‘remorse’ is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight. The main features of the public interest, relevant to the discount for a plea of guilty, are ‘purely utilitarian’. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service.. …it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence.”

43.  Ms Anthea Pang, for the respondent, emphasized the applicant’s lack of remorse in relation to the offences. We were not persuaded, for the reasons given by Kirby J in Cameron (supra), that the lack of remorse was a valid reason for not allowing the usual discount for guilty pleas.

44.  However, the applicant’s attempt to avoid detection by sneaking into and out of Hong Kong on somebody else identity card would certainly make the police’s effortsof tracking him down much more difficult. It would possibly have increased the costs of the police investigation.It might be more difficult for the prosecution to establish its case because of the lapse of time and certainly would not facilitate the course of justice.

45.  The court is entitled to take those matters into account and give an accused, who has absconded, a smaller discount than one-third for guilty pleas.  As Stock JA observed in HKSAR v Chow Tak-fuk, CACC 428 of 2004,unreported:

“…those might be minded to flee should not be led to believe that if ultimately they return they will be in no worse a position than had they not fled in the first place.”

46.  However, by imposing the sentence of 8 ½ years’ imprisonment, the judge had in effect reduced the usual discount by more than 50% (from one-third to only 15%).

47.  We were persuaded that such reduction was excessive. We were of the view that a discount of 25% instead of one-third would be adequate to reflect the applicant’s flight.

48.  In the circumstances, the proper sentence on the manslaughter charge (a starting point of 10 years with a discount of 25%) should be one of 7 ½ years’ imprisonments.

49.  We therefore granted leave to the applicant to appeal against sentence and treating the application as the appeal proper, we allowed the appeal.

50.  The sentence on the manslaughter charge was reduced by one year to 7 ½ years’ imprisonment to run concurrently to the sentences on the wounding charges, which were not disturbed.

51.  This means that the total sentence was reduced from 8 ½ years to 7 ½ years’ imprisonment.