HKSAR v. YIP HON MING

CACC 240/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 240 OF 2016

(ON APPEAL FROM HCCC NO 62 OF 2016)

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J U D G M E N T

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1.  The applicant was indicted for the manslaughter of Wong Loi-shing (“the deceased”) on 17 June 2015, contrary to common law and punishable under section 7 of the Offences against the Persons Ordinance, Cap 212. He pleaded guilty to the offence and was sentenced by Toh J (“the judge”) on 20 July 2016 to 5 years’ imprisonment. On 1 August 2016, the applicant filed a Notice of application for leave to appeal against his sentence by way of Form XI. He now seeks leave to appeal against his sentence.

The facts

2.  At about 1:30 am on 14 June 2015, near Tai Yin House, Fu Tai Estate, Tuen Mun, New Territories, a security guard (PW1) on duty at a guard post near Tai Yin House heard noises of a quarrel coming from outside. He looked out and saw a taxi pulled up about 30 feet away with the front of the taxi facing towards the guard post.  He then saw a man in a yellow T-shirt (the applicant) pull open the driver’s door of the taxi and forcibly drag the driver (the deceased) out of the car.  The two men scuffled with each other, and the applicant was then seen punching the deceased’s face two or three times; the deceased had fought back by punching the applicant once in the face.  As the two continued to scuffle with each other, a second male appeared and walked up to the applicant.  PW1 saw this second male scold the deceased and also punch him in the face two or three times.

3.  Meanwhile, a passing driver in another car (PW2), seeing two men grabbing each other’s neck and arms, and observing that the deceased had white hair and appeared to be elderly, alighted from his car in an attempt to stop the dispute.  PW2 noticed that the deceased’s face was injured and bleeding, and he could smell alcohol on the applicant.  PW2 pulled the applicant away, whereupon the applicant pointed at the deceased, scolded him with foul language and said to the deceased “Don’t go away, you will be in trouble once my followers arrive, as you cursed my mum”.

4.  The dispute had attracted other onlookers to the spectacle, as a result of which the applicant also scolded the onlookers with foul language.  Whilst still shouting at the onlookers, the applicant suddenly rushed up to the deceased and punched his head several times, which blows the deceased attempted to fend off.  PW2 immediately intervened to pull the applicant away again and told the deceased to leave.  The deceased accordingly retreated so that there was a distance between them.  At this point, another male appeared to reinforce the applicant by shouting at the deceased with foul language, and pointing at, and scolding, those watching.

5.  The deceased subsequently walked over to PW1’s guard post, but the applicant rushed in front of him before PW2 could restrain him and punched the deceased’s upper body twice with both fists.  The deceased was apparently unaware of the attack and fell backwards onto the ground, where he lay flat facing upwards.  The applicant kicked the deceased, albeit not with great force, seemingly trying to find out whether he was still conscious. Another passer-by, who was a female (PW3), saw the applicant bend down and slap the deceased’s face a few times, telling him to get up and not to “play dead”. PW3 told the applicant “not to beat the old man anymore”, whereupon the applicant told her loudly to go away and that it was none of her business.  PW3 called the police as she left the scene.

6.  The applicant and the other male then fled the scene.

7.  The deceased was admitted to Tuen Mun Hospital at 2:13 am the same day.  He was conscious at that time and able to give a statement about the incident to a police officer at 3:10 am.  In the statement, he said that he had picked up a male passenger in Tsim Sha Tsui East, who told him to go to Fu Tai Estate.  He smelt alcohol on the male, who was asleep during the journey.  He woke the male up when the taxi had arrived; the male then said he wanted to go to Tin Shui Wai instead and began to scold him.  The male got off the taxi and he also got off as the male did not pay his fare. When he reached the male, he was punched in the face and head.  Another male then appeared to reinforce that male.  The statement was interrupted when the deceased was required to be taken for an X-ray.

8.  At the hospital, an urgent computed tomography scan of the deceased’s brain showed severe head injuries in the form of extensive skull fractures, acute subdural hematoma mainly on the left side and subarachnoid haemorrhage.  The deceased was the same day admitted to the neurosurgical unit where he underwent an emergency brain operation.  He was transferred to the Intensive Care Unit but remained in a deep comatose state, while his condition remained critical.  At 2:45 pm on 17 June 2015, the deceased was certified dead.

9.  An autopsy of the deceased revealed a number of external recent injuries, including: bruises over his left eyebrow, left eye, left side of the nose, and lateral aspect of the head, as well as over the front of the chest, left elbow, left and right wrists, back of the right forearm and back of the right elbow; and abrasions over the middle back of the head, nose, left side of the face, tip of the chin and top of the left shoulder.  The internal injuries found included: facture lines to the skull, a layer of non-adherent acute subdural haematoma over the left cerebral hemisphere and a small amount of acute subdural haematoma beneath the left cerebral hemisphere, while the brain was congested and markedly swollen.

10.  The forensic pathologist commented that a bruise over the left lateral aspect of the deceased’s head and a small abrasion over the middle back of his head were recent blunt force injuries, which could have been inflicted by a blunt hard object or when it bumped against a blunt hard surface.  The injuries were probably caused by a moderate to large amount of force causing significant acute brain dysfunction, and could account for the deceased’s comatose state and his subsequent death.

11.  It was the pathologist’s opinion that the deceased died as a result of unsalvageable head injuries caused by blunt force trauma.

12.  The applicant was arrested at 7:24 am on 14 June 2015 at Fu Tai Estate.  Under caution, he claimed that he had been too drunk the night before and could not recall anything.  PW2 and PW3 later identified the applicant at subsequent identification parades.

13.  DNA obtained from bloodstains found on the deceased’s shirt collar could have originated from the applicant.  Further DNA from saliva found from the offside rear of the taxi could also have originated from the applicant.

14.  By admitting the facts upon his plea, the applicant accepted that, by his unlawful and dangerous act, he unlawfully killed the deceased.

Mitigation

15.  During mitigation, it was submitted by counsel then appearing for the applicant that there were discrepancies between what PW1 and PW2 saw, such as the actions of the other male and whether the applicant had pushed or punched the deceased causing him to fall to the ground.  However, counsel contended that it was “a chaotic situation” and the deceased had been either punched or pushed, so that he fell onto the pavement hitting his head and causing his death.

16.  The applicant was 26 years of age at the time of the offence, and married with three children aged 2, 8 and 10 years.  He was a noodle chef and the only source of income for his family.  His first conviction had been when he was 15 years old, whilst his last convictions in 2012 and 2013 had all been for traffic offences, albeit that they included the offences of dangerous driving and driving whilst disqualified.  It was said that the applicant had become drunk when out with friends on the night in question and that there was no premeditation.

17.  A number of sentencing authorities were submitted, as a result of which counsel urged that a sentence in the range of 1 to 3 years’ imprisonment after plea was appropriate.

Reasons for sentence

18.  In her reasons for sentence, the judge accepted that the applicant’s previous convictions for assault occasioning actual bodily harm were committed when he was still a teenager.  The judge also agreed that the applicant had shown his remorse by his early plea of guilty, and that there was no premeditation in respect of the offence.  The judge, however, considered that this was not akin to the so-called “one-punch” manslaughter cases referred to in some of the English authorities cited to her.  She said:

“In those cases, on many occasions, it’s because of drinking in pubs and these people come out of the pub and cause unnecessary violence, and someone is knocked backwards and then hits his head on the pavement and dies. The deceased in this case was going about earning his livelihood. He was doing his lawful job as a taxi driver to earn a living. And the aggravating factors in this case is that the defendant, after initially hitting the deceased, was actually pulled away by a passer-by, but he did not desist, he continued to run up to the deceased to attack him.”[1]

19.  She later went on to make remarks, which have given rise to the second ground of appeal[2]:

“There appears to be a growing tendency for our taxi drivers to be attacked, after being accused of driving the wrong way or a longer distance than necessary. If that is the case, a report to the police would have helped matters and there is no necessity to resort to violence. Resorting to violence, even if the taxi driver had overcharged or been in the wrong, is nowhere a mitigating factor. Taxi drivers, particularly those who ply their trade at night, have to be protected from this unnecessary violence as they are very susceptible to what is commonly called ‘stranger violence’; that is, violence from strangers. And in this case, this unnecessary violence had resulted in the loss of life.”

20.  The judge also regarded as an aggravating feature the fact that the applicant was heard to threaten the deceased, and that his “followers” were coming, and concluded that this was not a case of “one-punch” manslaughter.

21.  Applying hitherto accepted authority in Hong Kong, the judge said she would not indicate a starting point[3].  Accordingly, the judge sentenced the applicant to what she considered to be an appropriate sentence of 5 years’ imprisonment.

Grounds of appeal

22.  In his perfected grounds of appeal, Mr CK Leung, on behalf of the applicant, averred that the sentence, bearing in mind those factors in mitigation and aggravation of the offence, was manifestly excessive and should instead have been in the range of 3-4 years’ imprisonment (Ground 1).  Further, he contended that there was no evidential basis for the judge to take into account “a growing tendency” for taxi drivers to be attacked (Ground 2).

23.  In support of Ground 1, the authorities of Attorney General v Chuk Chi-hoi [1988] 1 HKLR 341, R v Kan Wah-Cheung [1991] 1 HKLR 595,and HKSAR v Tsang Siu Ching [2001] 1 HKLRD 523 were submitted in support of the contention that the sentence was manifestly excessive.

24.  In Attorney General v Chuk Chi-hoi, the 20-year-old respondent with three others was involved in an assault on two men, one of whom died as a result.  The two men had tried to escape several times but each time their pursuers caught up with them.  When the two men were lying prone on the ground in the final stages of the attack, there was evidence that the respondent had kicked at the other man’s body but no evidence that he had assaulted the deceased, who later died from head injuries.  The respondent had a number of previous convictions related to violence.  A sentence of 6 months’ imprisonment for manslaughter was imposed by the trial judge, which was increased to 2 years’ imprisonment upon review.

25.  In R v Kan Wah-cheung, the 21-year-old appellant and others had attacked a group of persons after a verbal altercation in a housing estate; the deceased had been beaten with tree branches, kicked and punched sustaining laceration of the lungs and fractured ribs, as a result of which he died.  Silke VP, giving the judgment of the Court, stated that[4]:

“It may well be that the time has come when disputes which degenerate into fights, with or without the protagonists being armed, and in a public place – or more seriously in the close confines of a housing estate – from which death results, should attract, upon conviction for manslaughter, a sentence of at least 5 years’ imprisonment after trial. Such sentence could be increased depending upon the degree of violence, the nature of the weapons used, the deliberate nature of the attack and the number of the attackers.”

On appeal, the sentence was reduced “with some reluctance” from 4 years to 3 years’ imprisonment, the Court considering that it would be wrong to visit upon the applicant the suggested level of sentence indicated in the judgment.

26.  In HKSAR v Tsang Siu Ching, the applicant tried to break up a fight between the deceased and his girlfriend. The applicant grabbed the deceased tightly around his neck and threw him backwards towards a cabinet.  There was then further fighting between the two men, during which the deceased bumped against a wall, began bleeding, fell to the floor and became unconscious.  The deceased was carried to a bed in the expectation that he would regain consciousness and the applicant and the deceased’s girlfriend then left to go for a meal.  When they returned, they discovered that the deceased had died.  They then attempted to dispose of the body.  A sentence of 3½ years’ imprisonment on a plea of guilty to manslaughter was upheld upon appeal, although the Court did say that the sentence could have been slightly higher.

27.  In the present case, Mr Leung submitted that the circumstances of the attack on the deceased were no more serious than those in the three authorities to which I have just referred.  Accordingly, a sentence of 5 years’ imprisonment after plea was manifestly excessive.

28.  As for Ground 2, it was submitted that the judge erred in considering, without any evidential foundation, that there appeared “to be a growing tendency for our taxi drivers to be attacked”, when the prosecution had made no such admission nor called any evidence; nor was it a matter on which judicial notice could be taken.  Accordingly, it was an irrelevant consideration.

29.  Finally, Mr Leung argued that the sentence of 5 years’ imprisonment meant that the judge must have taken a notional starting point of 7½ years’ imprisonment, which was manifestly excessive given that no weapon was used, and when there was no evidence to suggest that the applicant had invited reinforcements.  He also points out that there was a difference between PW1’s observation that the deceased had been dragged from his taxi by the applicant by force and the deceased’s own account to police officers before he died that he got off the taxi as the applicant had yet to pay for the fare and asked the applicant to pay.  He recognised, however, that both versions appeared in the Summary of Facts admitted by the applicant.

The respondent’s submissions

30.  Mr Derek Wong, on behalf of the respondent, distinguished the cases relied upon by the applicant’s counsel.  He submitted that the respondent in Attorney General v Chuk Chi-hoi had not actually assaulted the deceased.  In HKSAR v Tsang Siu Ching, the impugned acts had taken place inside a domestic flat.  As for R v Kan Wah-cheung, the case involved two groups fighting each other, and there was no evidence that the applicant had caused the fatal chest injuries to the deceased.

31.  Accepting the principle stated in R v Kan Wah-cheung that fights in a public place should attract a sentence of at least 5 years’ imprisonment after trial for manslaughter, he stressed that that should be the minimum sentence envisaged before consideration of other aggravating features, of which there were several in the present case.  These included: the gratuitous and sustained attack involving multiple blows, even when the deceased had retreated and the applicant was separated from him; resorting to violence whilst intoxicated; the applicant’s criminal record indicating a clear propensity for violence; the display of aggression in a public place in the presence of on-lookers; a substantial age disparity of 29 years between the applicant and the victim; fleeing the scene without calling for medical assistance; and the need to deter violence against people in vulnerable positions, such as taxi-drivers going about their lawful business in the early hours of the morning.  He argued, further, that there was no compelling mitigation.  He submitted that, given the aggravating features present, the applicant could have expected to receive a sentence of 9 years’ imprisonment after trial.

32.  As for Ground 2, Mr Wong submitted that the judge’s comments on the need to protect taxi drivers were made in the context of the need to deter violence against people working in vulnerable positions.

Consideration

33.  It seems to me that the judge was perfectly correct to reject the submission that this offence was akin to a “one-punch” case of manslaughter, as they are sometimes referred to in the English authorities.  This was a sustained course of gratuitous aggression by a young man on a taxi driver more than twice his age, who was going about his lawful business at night and in the early hours of the morning.  Our courts have long ago said, in relation to so-called cases of “one-punch” manslaughter, that sentencing norms in the United Kingdom are seldom, if ever, applicable to circumstances in Hong Kong: see R v Lo Bing Sun (unrep., CACC 660/1993, 23 May 1994), at page 5.  Indeed, one of the authorities cited by counsel in the court below (not Mr Leung), namely, R  v Coleman [1992] 95 Cr App R 159 was expressly disapproved by the majority in R v Lo Bing Sun. As the Court remarked, at pages 5-6:

“…this city is a very crowded and tense environment and the unlawful and dangerous act constituted by a blow such as the one here must be deterred. The huge variety of circumstances in which the offence of manslaughter is committed leaves sentencing very much at large. We must be conscious of the fact that a human being has lost his life.”

34.  The Court in that case, by a majority, upheld a starting point of 3 years’ imprisonment where the applicant, who had been drinking, struck the deceased a single blow to the mouth, as a result of which he fell down and hit his head on the ground, the impact from which caused his death.  It is true that the applicant there was said to have had a history of violence, but this applicant also has a propensity for violence or behaviour associated with violence.  He had twice been convicted of assault occasioning actual bodily harm, albeit as a teenager, and had other convictions for assault, blackmail and false imprisonment; yet he was still only 26 at the time of present offence.

35.  Although Mr Leung has sought to suggest that if 3 years’ imprisonment after trial is appropriate in a case of “one-punch” manslaughter, then a notional starting point of 7½ years’ imprisonment for the present offence would be manifestly excessive, the argument does not fully recognise that this was far removed from a case of “one-punch” manslaughter and involved significant aggravating features.  The more obvious and important aggravating features present in this set of facts were that this was a sustained course of gratuitous violence by a man with a propensity for violence, who was at the time fuelled by alcohol, against a much older man who was going about his lawful business as a taxi driver in the early hours of the morning, attended by threats and the participation of another assailant (albeit, it would seem, uninvited).  With respect, I do not see any similarities with the authorities placed either before the judge or before me.

36.  Clearly, taxi drivers are vulnerable people, particularly at night and in the small hours of the morning.  That is why the courts have, for example, for many years said that taxi robberies demand severe deterrent sentences above the normal range described in Mo Kwong-sang v R [1981] HKLR 610: see R v Tran Van Anh [1993] 2 HKCLR 122, at 124; Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139, at 143.  If that sentiment lay behind the judge’s remarks concerning deterrence, they would have been uncontroversial and unimpeachable.  Indeed, she did go on in the same paragraph about which complaint is made to say that “taxi drivers, particularly those who ply their trade at night, have to be protected from this unnecessary violence as they are very susceptible to what is commonly called ‘stranger violence’…”[5].

37.  Notwithstanding the attractive way Mr Leung has put his submissions, I do not see any reasonably arguable grounds of appeal against the sentence of 5 years’ imprisonment.  At the end of the day, this was a needless loss of life wholly caused by the applicant’s gratuitous, sustained and unprovoked violence.  Although Mr Leung has raised the troubling question for the courts of the balance which sometimes needs to be struck between minor incidents of violence, or gross negligence, and the catastrophic consequences to which they sometimes lead, this is not such a case.  The violence was not minor, it was wholly gratuitous and it was sustained, even when the deceased had retreated and when a public-spirited citizen had twice tried to, and did, intervene to separate the applicant from the deceased.

38.  The application for leave to appeal against sentence is, therefore, refused.  The applicant is duly advised that he has the right to renew his application for leave to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] Reasons for Sentence, Appeal Bundle, p 13C-G.

[2] Reasons for Sentence, Appeal Bundle, p 13L-Q.

[3] HKSAR v Wong Shui Mouk, (unrep., CACC 239/2007); R v Lee Sau Ping (unrep., CACC 189/1995).

[4] [1991] 1 HKLR 595, at p 597G-H.

[5] See para 19 supra.