HKSAR v. LAU KWOK LEUNG

CACC 227/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 227 OF 1999

(ON APPEAL FROM HCCC 267 OF 1998)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 16th April 1999, the Applicant was convicted, following a trial before Nguyen J. and a jury, of manslaughter by reason of lack of intent. He was acquitted of murder. The Applicant had in fact pleaded guilty to manslaughter at the outset of the trial and to the only other count on the indictment which alleged robbery. The judge imposed sentences of eight years for manslaughter and four years to be served consecutively for robbery, making twelve years in all. The Applicant now seeks leave to appeal against this sentence.

2. The facts of the case appear sufficiently from the sentencing remarks of the judge and, reading from page 51Q of the bundle, he said this:

"When Madam Leung Wing went to sleep on the night of 19 May 1998 she expected that she would be allowed to enjoy her sleep in peace and safety. She probably felt safer than an ordinary person because she was living amongst fellow villagers, people whom she knew all or most of her life.

That was probably why she only had a piece of nylon rope to secure the metal door of her modest hut. Little would she know when she went to sleep that a young man, a fellow villager who at least nodded at her when he passed her, and somebody who was in tight financial straits because he had decided to absent himself from work for a few days, which resulted in his being dismissed from his job, little did she know that such a young man would intrude into the privacy of her home and take from her all of her meagre possessions - approximately $20,000 and her necklace.

She was on government assistance and allegedly did not trust banks so the $20,000 that she carefully hid in a metal box beneath the mattress on her bed appeared to have been all the worldly possessions that she had. Not only did you take away all of Madam Leung's valuable possessions, but you also took away her most valued possession, her life. You strangled her to death. She was but 66 years old, and according to Dr. Yu all her organs that he examined were healthy and she appeared to have been in good health.

You told the jury that you strangled her to stop her from screaming and thereby enabling other fellow villagers to find out that you were the culprit who was stealing her possessions. The prosecution said that she was killed because she woke up and saw you and recognised you, and therefore you could not allow her to live. Whatever the reason, there was a struggle between you and her, and in the course of that struggle the back of the deceased's head had heavy impact with a hard object which caused her scalp to be heavily bruised. She also suffered fractures of many of her ribs on both sides of her body.

The jury found that you did not intend to kill her or to cause her grievous bodily harm. It is important in the name of law and order and the stability of the society that the message must go out that any person who enters another person's home to steal, and in the course of stealing kills the occupant of the house, must be severely punished."

3. In his perfected grounds of appeal, Mr. McNamara, on behalf of the Applicant, complained that the twelve-year starting point which the judge went on to take was too high, and he pointed to a number of comparable cases in which this court had confirmed starting points of between eight and nine years.

4. In a second ground of appeal, Mr. McNamara submitted that the sentences should not have been made consecutive to each other because the offences arose from the same course of events. Again, Mr. McNamara provided us with a number of cases of robbery resulting in manslaughter, where it has previously been the practice to pass concurrent sentences for robbery and manslaughter arising out of the same facts.

5. The judge approached sentence by taking into account the Applicant's obvious remorse at the time of his arrest. He had fully cooperated with the police. He took also into account that the Applicant admitted that it had been his plan to steal from the victim but not to do her any violence.

6. The question we ask ourselves, bearing in mind the dreadful facts of this case when viewed as a whole, is whether a sentence of twelve years in total was manifestly excessive for a man who had broken into the home of a comparatively frail and elderly lady and killed her in the course of robbery. We do not think so. Indeed, we venture to suggest that where any person goes into the house of another in order to steal and, for whatever reason, ends up killing an innocent occupant in circumstances amounting to manslaughter, the court will be very slow to interfere with a sentence in the region of twelve years.

7. In R v Lee Sau-ping (CACC 189/95), Chan J. (as he then was) said of manslaughter:

"This is one class of offence where a judge may well not be able conscientiously to fix a starting point. There is a wide-range of sentence, from probation to life imprisonment. A sentencing judge may well feel having taken an overall view of the matter that all he can finally do is to decide on the appropriate sentence."

8. It is apparent from the judge's remarks in the present case that he had in mind totality. He said so in terms in a passage which we have not cited. This seems to account for the very low sentence he imposed for the offence of robbery in the victim's home. The judge appears to have been concerned to achieve a just result for the crimes when taken together. The offences were, however, inextricably linked and the better sentencing practice would have been to impose an appropriate sentence on each of the charges making the sentences concurrent to each other. As we have already indicated, for an offence of this gravity we feel that twelve years' imprisonment for manslaughter in circumstances such as these was appropriate. The proper sentence for the robbery might well have been in the region of seven years. However the sentences are arranged, this Applicant has had no injustice caused to him and the sentence, in our judgment, was not a day too long.

9. The application is dismissed.