HKSAR v. MOK CHUN YIN

HCCC243/2017

[2018] HKCFI 1652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 243 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant, Mr Mok Chun-yin, faces three charges. Charge 1 is murder, Charge 2 is theft and Charge 3 is attempted theft. He pleads guilty to Charge 2 and Charge 3. In respect of Charge 1, he pleads not guilty to murder but pleads guilty to manslaughter, which is not accepted by the prosecution. He is convicted of murder in respect of this charge by a jury after trial.

Facts admitted in evidence in the trial

The defendant and the deceased, Ms Chan Man-yi, Arbe, a Dragonair flight attendant, came to know each other in late 2012 and became lovers. Because of an incident occurred in September 2013 in which the defendant treated Arbe badly, the relationship of the two turned sour. Arbe developed a new relationship in November 2013.

On 4 December 2013, the defendant, after getting to know that Arbe was going to work at 4.30 pm that day, entered the building where Arbe lived at 1.50 pm and waited outside the door of Arbe’s home. He dashed into the flat when Arbe opened the door. While the defendant and Arbe were inside the flat, Arbe rang her office to ask for sick leave. According to the father and younger sister of Arbe, the voice of Arbe in the call was different from her normal voice.

After that, the defendant killed Arbe by strangling her neck with either a ligature which was the scarf Arbe was wearing at that time, or ligature and his hands. He squeezed the body of Arbe inside the sunken compartment of a wardrobe in Arbe’s room and covered it with clothing and bags. He also concealed her uniform, shoes, handbag and suitcase to create an appearance that she had gone to work. Before leaving the flat at 5.17 pm, the defendant took away the mobile telephone and bank card of Arbe.

The defendant tried to operate Arbe’s bank account with the bank card at 6.10 pm on the same day at an ATM machine in MTR Tuen Wan Station. The attempt failed due to invalid password. The account of Arbe at that time had a credit balance of $3,543.09. The defendant sold the mobile telephone of Arbe at 4.43 pm on 7 December 2013 to a phone shop in Mongkok for $1,200.

The defendant left Hong Kong for China in the evening of 7 December 2013, after telling 2 friends that he had killed Arbe. One of these friends tells the court, inter alia, that the defendant told her that he had wanted to kill Arbe on the previous occasion.

The family of Arbe was under the impression that she had gone to work and only discovered her body inside the wardrobe on 8 December 2013, after Arbe’s younger sister being told by a colleague of Arbe that Arbe was absent from duty.

The defendant was arrested by the Chinese authorities and was returned to Hong Kong on 1 February 2017. When the defendant was arrested by the Hong Kong Police for murder, he said under caution that he killed Arbe when he was blinded with anger after getting to know that she had a boyfriend. In the video-recorded interview subsequently conducted, he said he had no intention to kill Arbe but did so under the provocation of Arbe.

The defendant gives evidence in the trial that on the day in question he went to the flat of Arbe to collect the scarf and sweater he had lent to Arbe with prior arrangement with her. He was let into the flat by Arbe. He talked to Arbe about reconciliation and succeeded in persuading Arbe to go back together with him. Arbe then called to her office to ask for sick leave so that they could go to meal and movie in the evening.

The defendant, however, discovered from the WhatsApp messages in Arbe’s mobile telephone that Arbe had a new boyfriend. When he confronted Arbe with the messages, Arbe made insulting and taunting remarks against him, saying inter alia, that the defendant was worse than her new boyfriend in all aspects and the defendant could not satisfy her sexually as her boyfriend did. She had done that with the new boyfriend and she wanted to do it with her new boyfriend more than with the defendant. She told the defendant to drop dead and scratched and squeezed the defendant’s neck making the defendant suffocate.

Arbe had also once been unfaithful to the defendant while they were lovers by going to the home of a pilot on the false pretence that she was having meal at her grandfather’s place, for which the defendant had forgiven her. The defendant became very, very angry and after removing one of Arbe’s hands which grabbed his neck, he strangled Arbe’s neck with his hands. He only stopped when Arbe became incontinent. He tried cardiopulmonary resuscitation on Arbe but there was no response. He says that he killed Arbe because he was provoked by Arbe. His mind was blank and he could not control himself. He did not intend to kill Arbe.

He has no dispute about the concealment of Arbe’s body and her uniform as well as the matter in relation to his taking of Arbe’s mobile telephone and bank card. He fled Hong Kong after telling 2 friends about the killing and taking $100,000 to $200,000 from his family without the knowledge of his parents.

He has a lover in China who bore him a son, who is now aged two-and-a-half years.

Criminal record

The defendant has a clear criminal record in Hong Kong but was bound over in the sum of $1,000 to keep the peace, by abstaining from using violence against any person or committing or attempting to commit any criminal acts involving the use of violence or the threat of violence against any person. He is in breach of the bond by committing the offence in Charge 1.

Mitigation

Counsel for the defendant points out that the sentence of murder is prescribed by the law but he stresses that the defendant admitted at the outset the killing of the deceased and maintains the admission throughout the trial. The defendant sincerely feels sorry for what he had done. The defendant said in the video-recorded interview that he bitterly regretted for killing Arbe. He is sorry and extremely remorseful for the trauma caused to Arbe’s parents, younger sisters, relatives and friends and for ruining their lives tragically. The defence counsel points out that the same trauma is caused to the parents and the grandparents of the defendant as well as his lover and son in China.

As regards the charge of theft and attempted theft, the defence counsel tells the court that the defendant indicated his plea as early as in March 2018 and urges the court to give him appropriate discount. As to whether the court should enforce the bond for which the defendant has breached, the defence counsel says that he is leaving the matter for the court.

Sentence

The defendant admits at the outset that he killed Arbe but seeks to rely on having no intention to kill and/or provocation to reduce the offence of murder to the lesser offence of manslaughter. The defendant is of course fully entitled to conduct his defence in the way he sees fit. In doing so, however, he is not only putting himself on trial, he is also putting Arbe on trial.

During the trial the defendant makes all sorts of allegations against Arbe, including her attack on him and her making comparison between himself and her new boyfriend as well as her insulting and taunting remarks that the defendant’s sexual ability being not as good as that of her new boyfriend. Obviously all these allegations are not accepted by the jury. The defendant obviously tells all these blatant lies to try to save himself from the charge of murder, an offence which he had no doubt committed.

The privacy of Arbe is also unfairly infringed during the trial in that some aspects of her private life is disclosed in court. The defendant, because of his jealousy and his possessive character, took away the life of a young lady who had all the chances of living a fulfilling and promising life, yet he chooses to make spurious and outrageous allegations against her. He has not shown the least respect for the deceased whom he repeatedly says he loved very much.

Before killing Arbe, the defendant had in fact exercised violence upon her on one occasion. It comes to light after the conviction of the defendant that the September incident mentioned earlier was in fact about the defendant having a dispute over money affairs with Arbe and attacking her by grasping her neck and covering her mouth. He also threatened to buy a knife to hurt Arbe’s family. This was the incident for which the defendant was ordered by the court to enter the bond mentioned earlier. The defendant obviously has not learned a lesson from the incident and went further as to kill Arbe. The trial also rubs salt in the wound of the parents and younger sisters of Arbe, forcing them to relive the awful memory of the horrendous death of their daughter and elder sister.

The defendant expressed for a number of times remorsefulness for what he had done in the video-recorded interview and does the same in the trial. Counsel for the defendant points out that the defendant is sincerely remorseful. The court must say that it fails to see any remorsefulness on the part of the defendant, not even a single hint of it. This is testified to by what the defendant does during the course of this trial.

Furthermore, as rightly pointed out by Ms Ching for the prosecution, the defendant is an irresponsible and egotistic person. Despite being a fugitive he fell in love with a woman shortly after fleeing to China and even gave birth to a son, paying no regard at all to the future of the child. Although difficulties may be caused to the lives of the mother and son in China, the court does not have a choice in terms of sentence for the offence of murder. It is prescribed by the law to be life imprisonment and the court so sentences the defendant in respect of Charge 1.

As regards the charges of theft and attempted theft, the sentencing is academic. The court finds it difficult to believe that a person could be so cold-blooded and calm that after killing a person he could go about to steal the property of the victim whom he claims he loved very much.

For the Charge 2 of theft, the court adopts a starting point of 8 months imprisonment and for the Charge 3 of attempted theft of the money in the bank account of Arbe, a starting point of 6 months imprisonment. The defendant indicated his plea of guilty to these two charges in March this year for which the court is giving him a discount of about 20 to 25 per cent, thus sentencing him to 6 months imprisonment for Charge 2 and 5 months imprisonment for Charge 3.

Considering the nature of the case and taking the totality principle into account, the court orders that 2 months of the sentence of Charge 3 to run concurrently with that of Charge 2. The resulting sentence of 9 months imprisonment naturally has to run concurrently with the term of life imprisonment.

In view of the substantial sentence the defendant is serving, the bond for which the defendant has breached is not enforced.