HKSAR v. LIU PAK SHING

CACC 415/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 415 OF 2008

(ON APPEAL FROM HCCC NO. 155 OF 2008)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  On 18 November 2008 the applicant was convicted on his own plea of the offence of murder.  Sentence was adjourned for reports.  On 10 December 2008 Wright J imposed a sentence of life imprisonment and, pursuant to the provisions of s. 67B of the Criminal Procedure Ordinance, Cap. 221, ordered him to serve a minimum period of 22 years’ imprisonment.

2.  The applicant now seeks leave to appeal against sentence.  It is put on his behalf that the judge ought to have imposed a determinate sentence, an option open to him because at the date of the offence the applicant was aged under 18 years; alternatively, that the minimum term imposed was wrong in principle. 

3.  The applicant was born in December 1991.  At the date of the killing with which this application is concerned, 22 January 2008, he was aged 16 years.

4.  He was charged with another youth, Leung Wing-tung, upon an indictment containing two counts:  

(1)   The first count alleged that on 1 December 2007 the two youths unlawfully and maliciously wounded and injured an Indonesian helper called Fitriani with intent to do her grievous bodily harm.  Leung pleaded guilty to this count and was sentenced to four years’ imprisonment, which took into account his guilty plea and the fact that he had offered to testify in the trial of the applicant.  The applicant pleaded not guilty to this count and in his case it was left on the file and not to be proceeded without leave of the court.

(2)   The second count alleged that the applicant and Leung, inside premises belonging to a dog-training establishment in Tai Po, murdered Fitriani on 22 January 2008.  To this count, the applicant pleaded guilty on the first day of the trial; Leung pleaded not guilty and in relation to Leung the count was left on the file.

The facts

5.  The judge correctly described the facts of the case, which had been agreed by the applicant, as revealing “wanton brutality”.

6.  Fitriani was aged 24 years and had been employed since early 2007 by the owner of the dog kennels, Mr Wong.  He ran dog obedience training classes as well as youth training programmes.

7.  The applicant joined a training course in November 2006 and after that course was completed, he was permitted to continue working at the kennels on a voluntary basis, sometimes staying overnight.  There he met Fitriani.  He relinquished the voluntary training in mid-2007, but resumed it once or twice a week from early December 2007.

8.  The agreed facts record Mr Wong’s opinion that the applicant looked after the dogs well, and that although he had a quick temper, he appeared to enjoy a good working relationship with Fitriani.  Only three days before she was killed, the three of them dined together and all seemed well.  Mr Wong was satisfied with the way she performed her duties.

9.  The applicant had known Leung since schooldays.  They lived on the same estate and saw each other frequently.  

10.  In November 2007, the applicant told Leung that he did not like the volunteers at the kennels because he, the applicant, did not receive proper recognition for his work.  He said that he intended to go there to hit people.  On 1 December 2007 he arranged to meet Leung in Yuen Long where he announced that he intended to hit the Indonesian domestic helper at the kennels.  The applicant purchased some gloves and brought a balaclava from his home saying that they had to wear gloves to avoid leaving fingerprints.  Fitriani was in her hut, where the applicant beat her with a large and heavy torch.  She was admitted to hospital with scalp lacerations which required stitches, swelling by her eyes, and a left parietal fracture.  These, broadly, are the facts that founded the first count on the indictment.

11.  One night in January 2008, the applicant told Leung that he wanted to kill someone at the kennels, because the people there had never given him recognition for his work and he hated them very much.  On 22 January 2008, he telephoned Leung saying that he intended to carry out his plan to kill people at the kennels.  Leung’s version is that he, Leung, tried to dissuade the applicant.  The two arranged to meet at the Yuen Long Plaza.  From there, they took a bus and a taxi to the kennels.  Leung tried again to dissuade the applicant from proceeding with his plan but the applicant said that it was not a problem because there would be no police patrols in the area at that time of night.  His plan, he said, was to telephone Fitriani and ask her to open the kennel gates on the pretext that he wanted to collect some belongings.  He would then telephone her again pretending that he had left the compound so that she should lock the gates.  He would hide inside the kennels, waiting for her to do so, at which point he would kill her.

12.  The applicant donned a pair of gloves and a balaclava.  He told Leung to wait for him and to act as a lookout.  Half an hour later the applicant returned out of breath to Leung and handed his jacket to Leung who found a knife wrapped in it.  The applicant said that he had murdered someone; that hehad stabbed Fitriani five or six times.  The knife and balaclava were thrown away.  Bloodstains were wiped from the applicant’s clothing and the two youths then went to a bar to play video games.  From there, the applicant went home to change his clothes but returned shortly thereafter to the video game bar and played games for the next 13 hours or so.

13.  The following morning, Mr Wong found the deceased covered in blood on the lawn by the kennels. The police were called.

14.  A post-mortem was carried out.  The judge has helpfully summarised the results of that examination as follows:

“   [The post-mortem] revealed that she had sustained no fewer than 22 wounds.  14 of those wounds were stab wounds to her chest and back, the remaining eight being wounds to her arms, which were described as being defensive wounds caused when she raised her arms to try to protect her body from being stabbed.

    The forensic pathologist who performed the post-mortem concluded that death was due to massive bleeding from stab injuries to the heart and lungs.  He described the injuries in detail: the wounds to [her] torso varied in depth from 3½ to 19 cm, while those to her arms were between 2 and 12 cm deep.

    By way of example, one 12 cm deep wound caused a partial collapse of her lungs; another stab wound, 16 cm deep, cut through the anterior wall of the heart sac, entering the pericardial cavity, then penetrated the anterior wall and then the posterior wall of the left ventricle before cutting through the posterior wall of the heart sac – in simple English, this wound went right through the heart; a 13 cm deep wound penetrated through the left upper lobe, cutting through the anterolateral wall of the heart sac before penetrating through the anterior wall of the right ventricle terminating in the right ventricular cavity – a second direct hit on the heart; another, 19 cm deep stab wound cut [her] liver.” 

15.  On 24 January 2008, the applicant telephoned Leung and discussed with him a plan to set up an alibi: if the police questioned either of them, they were to say that they had been at Leung’s house on the night in question and had gone in the early hours of the morning to play video games.  Since internal lifts at Leung’s premises were monitored by CCTV cameras they had to pretend to have entered and left by the staircase.  Leung was made to promise to stick to the story if the police asked.

16.  Two days later, the applicant telephoned Leung to say that the police had called and that the applicant had to go to the police station.  He asked Leung to go with him to support his alibi.  The two young men were interviewed by police later that day and gave statements according to the concocted alibi.  Two days later however, Leung, when again questioned by the police, told them the truth.  The applicant was arrested.

17.  In his interview with the police, the applicant admitted the December offence and described how, wearing gloves and a balaclava, he had climbed into Fitriani’s hut and had repeatedly struck her over the head for about two minutes with a torch and had kicked her until she had collapsed unconscious on the kitchen floor with her head bleeding.  He had decided to hit her so that she would learn from her mistakes because he felt that she did not do a good job at the kennels.

18.  The applicant admitted as well that he went to the kennels on 22 January 2008 intending to kill Fitriani.  He had telephoned the deceased as planned asking her to open the gates and to lock up one of the dogs that was usually allowed to roam free in the compound at night, because he feared that the dog might bite.  He went to the kitchen, put on his gloves and a balaclava and picked up a 30 cm long fruit knife, a knife later recovered by the police from undergrowth.  He telephoned the deceased once more, this time pretending to have left the premises.  When she returned from locking the gate, he grabbed hold of her, covered her mouth with his hands, pressed her to the ground and then stabbed her many times, including twice in the heart.  He continued to stab her until she stopped moving.  He had killed her, he said, because she had failed to take good care of the dogs.  Furthermore, his boss had not listened to his complaints.

Reports

19.  The sentencing judge had the advantage of a number of reports, each of which we have studied.  The probation officer’s report reveals a childhood of some neglect and an unsatisfactory record at school where he was known for bullying and exhibiting a hot temper.  There was some history of drug abuse but this was not suggested to have had any connection with these offences.  Once he had left school, prematurely, the applicant obtained work in a training centre for dogs (not the kennels in this case) where he quarrelled with co-workers and exhibited a propensity easily to become excited.  He told the probation officer that he wanted to scare the deceased, not to kill her, but that he had lost control when he worried that her screaming would be heard by neighbours.  He denied that he had talked to Leung about a plan to kill.

20.  There was a psychiatric report from Dr Yuen, a visiting consultant psychiatrist at the Siu Lam Psychiatric Centre.  The applicant told the psychiatrist that he had had no intention of killing the victim; he had just wanted to teach her a lesson.  He was angry with Leung for failing to keep his promise about the alibi – had Leung maintained the agreed story, he, the applicant, would not have been convicted.  As for family history, Dr Yuen learnt from the applicant’s mother that the applicant had behaved violently at home.

21.  Dr Yuen noted that there was a history of persistent irritability and aggression and that the applicant had “a lot of psychological problems.”  His attitude whilst in custody had been carefully monitored and there was revealed little remorse for his wrongdoing.  Dr Yuen concluded that the applicant “has marked personality problems and the propensity to further violence is high.  It is difficult to predict the risk of long-term danger to the public at this stage but the short-term risk is definitely high.  It normally would take a long time to change a person’s personality and so even if he is going to improve, it would not be in the foreseeable future.  He is not psychotic.  A disposal under hospital order is not required.”

22.  Then there is a psychologist’s report from Ms Michelle Liu.  To her, the applicant made complaints about the deceased saying that she had neglected the dogs, had talked him down in front of the boss and that he had complained to the boss about her – assertions that sat ill with Mr Wong’s assessments reflected in the agreed facts.  To this interviewer as well, the applicant denied an intention to kill and again he blamed his friend for not backing up the false alibi.  Ms Liu also said that the applicant demonstrated little remorse for his offence, showed little appreciation of the anguish which he had inflicted upon the victim and she recorded his assertion that he did not need help to improve his temper.

23.  Psychological tests revealed a normal intellectual function.  The psychologist concluded that the applicant was egocentric and short-tempered, a person who easily resorted to aggression, and that “his violent re-offending risk is not low.  He has demonstrated some psychopathic tendencies which include being manipulative, being impulsive, and lacking remorse to his destructive behaviors.  In view of such personality traits that tend to be socially maladaptive and his history of violence, his re-offending risk is worth careful professional attention.”  His lack of interest in treatment did not bode well for beneficial psychological treatment.

The judge’s approach

24.  The judge first asked himself whether this was a case that warranted life imprisonment or a determinate sentence.  In that regard he reminded himself of the point made in HKSAR v Hui Chi Wai & Ors (No. 2) [2003] 2 HKC 582 that s. 2 of the Offences against the Person Ordinance, Cap. 212 required the imposition of a life sentence for the offence of murder with an option in the case of those aged under 18 years at the time of the offence to pass a lesser term; and that it was not intended by that provision that life imprisonment might only be imposed where the youthful offender posed a long-term danger to the public.  That said, it was evident in this case that such a danger was presented.  The judge concluded, correctly in our view, that “it must be… that your future conduct is unpredictable.  It is the sane man who acts, without apparent motive, in the manner in which you have acted, who poses a real danger to society.”  He noted as well from the reports that material assertions made by the applicant to those who had interviewed him were at odds with the summary of facts which he had agreed and he concluded that the applicant was a person who would say whatever it was that he perceived would be of benefit to him.  The judge was satisfied that the applicant “for a period which cannot presently be determined, will remain a real threat to society.”

25.  As for the offence itself, he noted that this was a premeditated crime carried out in a callous and remorseless fashion, and that there had been displayed thereafter an utter lack of remorse evidenced by a number of facts, including the careful concoction of an alibi and the later anger of the applicant at Leung for not sticking to it.  It was apparent to the judge that the plea of guilty was not evidence of any remorse but was, rather, “nothing other than a capitulation to the reality of the situation in which you found yourself as a result of developments as the trial date approached; it was offered only at the last possible moment before the trial commenced”.  This, no doubt, was a reference to the fact that the plea of guilty was tendered only after Leung had offered to give evidence for the prosecution against the applicant.  The judge noted as well that the applicant had little or no insight into his psychological problems.

26.  Against the background of these factors, the judge expressed himself satisfied that this was a case in which a sentence of life imprisonment was necessary and appropriate.

27.  The judge then addressed the question of the minimum period which the applicant would be required to serve before he was considered for release.  In this regard he noted the nature and violence of the offence, the premeditation involved, the lack of remorse and the lack of the applicant’s insight after the event.  He acknowledged the plea of guilty and took into account the fact that the applicant would not be considered for release until the minimum period had been served.  He referred to a number of other cases and, in the event, ordered the applicant to serve a minimum period of 22 years’ imprisonment.  He remarked that that period meant the applicant would be aged 40 years before being considered for release.  It was a period “for which the public will definitely be protected from you.  It is a period which will provide for long-term observation, to enable those skilled in assessment of such matters adequate time in which to determine your suitability for release.  On the other hand – and this is of importance – whilst it is a very long period it is not such a crushing period so as to extinguish any hope in you for your future.  If you are released at that stage you will still have the opportunity to reintegrate into society and to establish a life for yourself.”

Life imprisonment versus a determinate sentence

28.  Mr Ross, for the applicant, argues that whilst the criteria for the imposition of a discretionary life term apply in this case, persons eligible for a discretionary life sentence are those guilty of the worst cases, and he submits that this does not fall within that range.  The criteria which he has in mind are those mentioned in HKSAR v Hui Mak Kwan [2003] 4 HKC 441 at p. 446 H-I, that, first, the offence is in itself grave enough to require a very long sentence; that it appears from the nature of the offence or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future; and, further, that if further offences are committed, the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.

29.  In support of his argument, Mr Ross has drawn our attention to a number of murder cases overseas where life imprisonment has been imposed where the facts, he suggests, were more gruesome or worthy of condemnation than the present, such as cases of serial killers or the murder of a child.  He refers us as well to a number of murder cases in Hong Kong in the last 10 years or so where those aged under 18 years at the date of the offence were the recipients of determinate sentences and in respect of which cases he emphasises a further material distinction, namely, that none had pleaded guilty, as did this applicant.

30.  There are several difficulties in the path of Mr Ross’s contentions:

(1) As we indicated in Hui Chi Wai, above, s. 2 of the Offences Against the Person Ordinance is to be distinguished from other instances permitting the imposition of a discretionary life sentence.  In a s. 2 case, the starting point is a requirement that a sentence of life imprisonment be imposed for murder – a requirement that reflects the peculiar gravity of the offence of murder – but where there is available an option in the case of those aged under 18 years at the date of the offence to impose a lesser term; whereas in the case of other offences the maximum available is a sentence of life imprisonment, reserved however for the Hui Mak Kwan combination of circumstances that prove the exception rather than the rule.

(2) Whilst under s. 2 life imprisonment may be imposed upon a person aged under 18 years of the date of the offence even if he does not pose a long-term danger to the public, the important fact in the present case is that this applicant does pose such a danger.  It is a key fact and one that distinguishes the case from other Hong Kong murder cases involving youthful offenders to which Mr Ross has referred us where the courts have imposed determinate sentences; and, in any event, there have been murder cases in this jurisdiction which have drawn terms of life imprisonment, even where the youthful offender has not posed a long-term danger.  

(3) In this category of offence there is limited utility in comparing cases because the factual circumstances which constitute the offence of murder are infinitely varied and it is easy enough in the context of murder cases to find a case where the facts might be viewed as more horrific than another.  It suffices for present purposes to say that the circumstances of this case were particularly grave.  This applicant had decided well in advance to kill an entirely innocent person, a person who had offered him no offence, a person whom he had previously attacked for no reason at all other than that which his aggressive imagination seems to have conjured.  Mr Ross has categorised this case as being less serious than some of the gang killing cases we have studied.  We do not agree.  There was no rivalry here; there was no peer pressure; there were no leaders and no followers.  This was a wholly gratuitous killing.  And there has been not a jot of remorse.  To the contrary, there is a lie by the applicant that the victim had offered offence; there is his lie that there was no intent to kill; and there is his grievance harboured for the fact that but for Leung breaking his promise to support a false alibi, the applicant might have been acquitted.

31.  It was argued that the plea of guilty itself should have persuaded the judge to impose a fixed term rather than a term of life imprisonment.  The plea of guilty was in no way reflective of any remorse or of any understanding by the applicant of the gravity of the crime and, most particularly in this case, the plea did not transform someone who posed a long-term danger to the public into someone who did not.  This is not to say that in other circumstances, a plea of guilty will of itself necessarily result in the imposition of a determinate sentence rather than an indefinite one: the weight that it will carry will depend upon all the circumstances, in particular the gravity of the offence itself and what in truth the plea signifies.  In the circumstances of the present case, given the facts surrounding the murder and in particular the clear long-term danger to the public presented by this applicant, the plea of guilty correctly carried scant weight in the decision whether to impose a determinate sentence.

32.  The decision of the judge to impose a term of life imprisonment is unimpeachable.  The judge would have been failing in his duty had he passed any other sentence.

The minimum term

33.  Mr Ross says that in determining a period of 22 years’ imprisonment as the minimum term, the judge failed to give any or sufficient credit for:

(1) the applicant’s plea of guilty;

(2) the fact that the applicant spent a year in custody prior to sentence; and

(3) the fact that the period imposed has no regard to such remission as the applicant would otherwise be accorded for industry and good conduct.

34.  The minimum term envisaged by s. 67 B is one which reflects the punitive and deterrent element dictated by the offence and the current circumstances of the offender: see Hui Chi Wai & Ors (No. 2) above at p. 592.  Such period as the prisoner may be required to serve thereafter will be dictated by considerations of rehabilitation and the need to protect members of the community from reasonably foreseeable harm.  The impact of factors of the kind particularised by Mr Ross are to be viewed in the unusual sentencing context with which s. 2 of the Offences against the Person Ordinance is concerned.  That context differs from others in that murder is the only offence for which the prescribed sentence is a mandatory one, namely, life imprisonment for those aged at least 18 years at the time of the offence.  That reflects the policy of the law which is to deter and also to “[convey] emphatic denunciation of what continues to be regarded in our society as the most serious of crimes”: Lau Cheong and another v HKSAR (2002) 5 HKCFAR 415 at p. 453.  That policy, that emphatic denunciation and imperative for deterrence, does not fall away merely because the offender happens to have been aged less than 18 years at the time the offence.  What the legislature has done, in the latter instance, is to acknowledge that the fact of youth may in a particular case permit a less rigid result and that the hopelessness that normally attends the imposition of life imprisonment with no indication of a minimum term is augmented in the case of a young person.  It is in that context that it is inappropriate to expect the relatively inelastic and generous discount for a plea of guilty given in cases other than murder.  That is not to say that there should be no recognition for the plea of guilty; and it is not to say that in the setting of a minimum term, mitigating factors relevant to the offence and the circumstances of the offender do not come into play.  It is, rather, to say that at the forefront of the sentencing judge’s mind must be the signal gravity of the offence of murder and the policy that is at the heart of s. 2 of the Ordinance.  In a case such as the present where the offence is murder, where the facts reveal a grave case of its kind, and where the plea of guilty, though facilitating the course of justice, was not indicative of any remorse, the effect of the plea on the minimum term cannot warrant anything like the degree of recognition afforded in non-murder cases.  

35.  So too, as in the instance of manslaughter cases (see R v Lee Sau Ping Cr. App. No. 189 of 1995), it is not incumbent upon a judge in murder cases, in the fixing of a minimum term, to indicate a starting point and then identify specific discounts accorded for particular mitigating factors.  Sentencing is aptly said to be an art and sentencing in cases of the present kind envisages a large element of judicial experience and ‘feel’ whereby a judge takes an overall view of the matter and decides what minimum term is appropriate, having regard to the policy of the law, the facts of the case, and the circumstances of the offender remembering that the minimum term is the punitive, retributive and deterrent aspect of the sentence and at the same time that “a minimum term which denies any realistic possibility of rehabilitation or recovery, however remote, [is] contrary to the spirit of the legislation… .”: Hui Mak Kwan, above at p. 449.

36.  There is, in our judgment, no merit in the contention advanced by Mr Ross that the judge failed to accord weight to the time spent in custody prior to sentence and to the fact that the period imposed has no regard to remission for industry and good conduct.  It is true that that period is not taken into account by the correctional services authorities in calculating the date upon which the minimum term has expired but that is a fact common to all these cases and there was in this case nothing unusual about the length of time in custody prior to trial.  As for the second factor, the minimum term is not a fixed term sentence which by reason of statutory provision is amenable to remission by the prison authorities for good behaviour; the minimum term is what it says it is, a term which the court determines to be the least period in fact to be served as demanded by retributive and deterrent considerations.  There is no reason to believe that the judge was not alive to this obvious effect of a minimum term sentence.  

37.  We have been referred to a large number of cases in which those under 18 years at the date of the offence have been the subject of sentences of life imprisonment with minimum terms specified, or of determinate sentences, for the offence of murder.  Subject only to the particular matter which we next discuss, the minimum term imposed in this case was well in line with minimum terms specified in other murder cases where a life sentence has been imposed, and with minimum terms which determinate sentences have envisaged.

38.  In examining the results of the relatively large number of cases to which we have been referred, we are conscious of the limited utility in this field of comparing sentences and we do not propose to rehearse the facts of, and the resulting sentences in, those cases save for three.

39.  Hui Chi Wai & Ors (No. 2), above, was a particularly gruesome case in which a group of youths tortured a young man aged 16 years in the course of an attack which lasted for several hours.  There was in that case no intention to kill but, in the circumstances, that fact made little difference.  There was an offer by some to plead guilty to manslaughter, an offer that had no prospect of acceptance, and all pleaded not guilty to murder but were convicted.  The two leaders of the attack, aged 17 and 17½ years respectively at the time of the offence, were sentenced to life imprisonment and the minimum terms imposed upon appeal were 22 years each.

40.  In HKSAR v Lee Kar Yeung (unreported, CACC 315/1998; 15 October 1999) the victim, referred to as “a sometime moneylender” was lured to a flat by persons to whom he had loaned money and was there murdered in brutal circumstances.  The body was never found.  The applicant was found guilty of murder after trial.  He was aged 15 years and 10 months at the time of the offence.  The murder was described as one that “can be seen in an unusually clear way to have been premeditated.”  A determinate sentence of 30 years’ imprisonment was imposed, a term that in the normal course would result in release after 20 years.

41.  Then there is HKSAR v Harman Preet (unreported, CACC 190/2004; 17 March 2005).  At the time of the killing, the applicant was two weeks short of his 18th birthday.  He had pleaded not guilty to murder but was convicted.  He had killed a prostitute.  It was a brutal killing with the infliction of multiple stab and chop wounds and it was clear that the applicant had intended to kill his victim.  The judge described the killing as cold-blooded and brutal, with the use of a sharp knife and a heavy sharp chopper and “the wounds to the applicant’s hands also [provided] an indication of how determined he was to kill the deceased as she tried to fight for her life.”  His semen was found on an anal swab taken from the deceased.  In that case the court at first instance imposed life imprisonment and the Court of Appeal substituted for the original minimum term a minimum term of 20 years’ imprisonment.

42.  For reasons which we have canvassed, the effect of a plea of guilty to murder will usually have significantly less impact than in the case of pleas of guilty to other offences, the more so when the plea is not evidence of true remorse.  But it should have some impact and this is the only case of all the murder cases we have been shown in which there has been such a plea.  In the light of the range of sentences which have been revealed by the cases to which we have been taken, of which we have referred to three as illustrative, and in the light of the plea of guilty, we have concluded that the minimum term should be one of 20 years rather than 22 years.

Conclusion

43.  Accordingly, we grant the applicant leave to appeal against sentence, treat the hearing of the application as the appeal, quash the 22 year minimum term and substitute therefore a minimum term of 20 years.  The life sentence remains undisturbed.  To this extent, the appeal succeeds.