HKSAR v. HUI CHI WAI & OTHERS

CACC 78/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 78 OF 1999

(ON APPEAL FROM HCCC 433 OF 1997 & 8 OF 1998)

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J U D G M E N T

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

History

1. By a judgment handed down on 20 July this year, we dismissed the applications for leave to appeal against conviction of all but the applicant D3. In his case we substituted a conviction on Count 2 of the indictment for an offence under section 19 of the Offences Against the Person Ordinance, Cap. 212. On 31 August, we sentenced him to a term of three years' imprisonment for that offence, and ordered that term to run consecutively to the term of four years which the trial judge had imposed on Count 3, which was the count alleging unlawful burial of the victim.

2. In the case of the other applicants with whom we are today concerned, their applications for leave to appeal against sentence were those not dealt with at the time of handing down judgment on 20 July, because we had concluded that the trial judge had omitted to fulfil the requirements of section 67B of the Criminal Procedure Ordinance, Cap. 221, which requires that when a discretionary life sentence is imposed the sentencing court "must specify as part of the sentence a minimum term that the person must serve for the offence". A discretionary life term had been imposed in respect of D1, D4, D6 and D10, but no minimum term had been specified. Accordingly, we remitted the matter to the trial judge who, on 10 August this year, made orders under section 67B as to the minimum terms in respect of those applicants. Although D8 had received a determinate sentence, we adjourned his application until after disposal by the sentencing judge of the section 67B issue, for it was obviously appropriate to consider his application in the light of the disposal of the others.

3. After the judge made orders under section 67B on 10 August, the matter returned to this court on 31 August for us to determine the applications for leave to appeal against sentence in the light of the completed orders made by the sentencing court. We decided, however, save in the case of D3, to adjourn the application in order to enable the preparation of background reports as well as reports from the correctional services institutions in which the applicants have been serving their sentences thus far. These are now to hand; we have read them; and we are grateful to those who prepared them.

The sentences imposed

4. The position of each applicant now stands as follows:

D1, who was aged 17 almost 18 years at the date of the offence: he was sentenced to life imprisonment and, in August this year, the judge made an order under section 67B(1) of the Ordinance specifying a term of no less than 30 years as the minimum term which he is to serve. In relation to Count 3, that is, the offence of preventing the unlawful burial of the corpse of Ah Kai, the victim in this case, D1 had pleaded guilty to that offence and the sentence on that count of three years' imprisonment, to run concurrently with the life term, was unaffected by the order of 10 August.

D4 who was aged 17 years at the time of the offence: he originally received the same sentences as D1, namely, life imprisonment for murder, and three years, concurrent, for prevention of burial. Under section 67B the judge ordered that he served a term of no less than 25 years in respect of the first count.

D6 who was aged 161/2 years at the date of the offence: he too was sentenced to a term of life imprisonment for murder, and three years on Count 3 concurrent; and the minimum term which was prescribed by the judge was 25 years' imprisonment.

D8 was aged almost 141/2 years at the date of the offence. In respect of the murder conviction he was given a fixed term of imprisonment of 20 years. In respect of Count 3, to which he had pleaded guilty, he was sentenced to three years' imprisonment. That term was ordered to run consecutively to the term imposed on Count 1, making a total of 23 years' imprisonment.

D10 was aged 171/2 years at the time of the offence. He was given a life term on Count 1, and the judge has specified a minimum term to be served of 30 years. In relation to Count 3, he was sentenced to four years' imprisonment, to run concurrently with that life term.

 

These applications

5. In the case of the four applicants who faced life imprisonment, it is said that the judge ought instead to have imposed fixed terms pursuant to the discretion granted by section 2 of the Offences Against the Person Ordinance, which states:

"Any person who is convicted of murder shall be imprisoned for life. However, if it appears to the court that a person convicted of murder was under 18 years of age at the time of the offence, the court has a discretion as to whether the person should be sentenced to imprisonment for life or to imprisonment for a shorter term."

It is said, in the alternative, that the minimum terms imposed under section 67B were manifestly excessive. In the case of D8, it is argued that the fixed term imposed upon him is excessive.

No intent to kill

6. The nature of the killing is, in broad terms, summarized at para 8 of our earlier judgment. Whilst the case was presented on the basis, which we accept, that there was no intent to kill, there was in this case not only an intent to cause really serious bodily harm but an intent which was expressed in a cruel, gratuitous and particularly vicious escapade of torture which spanned several hours; torture which was inflicted upon a youth aged 16 who had offered no offence, and who offered no resistance, and whose suffering and pleas were callously ignored in a spate of episodes with triad overtones. It is suggested that the fact that there was no intent to kill is a material mitigating factor in this case. In the full and particular circumstances which are revealed by the evidence, that fact, whilst we bear it in mind, makes little difference. Intent to kill or not, these assailants knew full well that they were inflicting awful suffering on this young man. He was beaten again and again; he was struck with stools and with fists and with kicks and with pipes; he was forced fed; he was made to eat lighted cigarettes; and anyone who pleaded on his behalf was scolded, and seen off. Shocked though they are said to have been by his death, that shock was a matter of self preservation. Some tried resuscitation but a factor of that kind, of which much has been made before us, does not count in some vacuum as if mitigation were based on some points system, with a given score for resuscitation, and another given score for an attempt to seek help, and so on. The value to be given to a suggested fact is contextual and when one has been beating a 16 year old for over two hours in the manner which we need not again rehearse in this case, an attempt at the very end to keep him alive really counts for little. There was no question of anyone seeking proper assistance or of confessing what they had done. On the contrary, they put the boy into a rubbish bag, burnt him to ashes, and threw him away. Cognizant though one is of the ages of these applicants, it is against that factual background that the question of sentence falls to be considered.

7. Before turning to the case of individual applicants, we address matters of general application advanced on their behalf.

Section 2

8. It is suggested by counsel that the judge, in imposing life terms on the applicants (save for D8) departed from principle in that, so the argument goes, it is well accepted that a discretionary life sentence should not be imposed save in cases where, assuming the gravity of the offence requires a very long sentence, it appears that the offender is a danger to the public, a person likely to commit such offences in the future. The answer is that in the normal case of discretionary life sentences, the sentence of life imprisonment is an option open to the court; where the offence is one for which the maximum sentence provided by law is available. Under section 2 of the Offences Against the Person Ordinance there is a different legislative approach. The approach starts from a different point. Section 2 begins with a requirement that a life sentence be imposed for murder and continues with an option in the case of those of a certain age to pass a less term. In our judgment it is not intended by section 2 that, in the case of those aged under 18 years at the time of the offence of murder, life imprisonment may only be imposed where the offender poses a long term danger to the public. Whilst age is an important factor, and whilst of course the court will have regard to the question of risk in the long term, the absence of such a risk does not in an appropriate case of itself preclude the court from imposing a life term.

Other cases

9. We have been taken to other cases as an exercise in comparison: for example, the case of HKSAR v Lee Kar Yeung Cr App 315 of 1998 where a 30 year term was imposed on a 15 year old for a premeditated murder; and the case of HKSAR v Cheng Yat Ming (No. 2)[1997] 3 HKC 365 where a term of 28 years was substituted by the Court of Appeal on a 17 year old, in place of a sentence of life imprisonment. These cases are of some use but not much, for the facts of these cases are each very different. The 28 year term in Cheng does not help these applicants given that, in that case, there was no weapon used, and the incident concerned spanned but a short time.

Premeditation

10. It is said that in this case there was no premeditated killing. That is of little weight, because the beating was premeditated: Ah Kai was fetched to the premises in order to teach him a lesson, and where there is a prolonged escapade in cruel torture, where a victim is obviously suffering greatly, and is injured, and bleeding, and bruised, and ignored, and hit with pipes and chairs and much else besides, to say that the fact that his killing was not deliberate or premeditated carries little weight.

Youth

11. It is said that the applicants were young: in the case of D1, D4 and D10, each was aged 17 at the time of the attack; D6 was aged 161/2, and D8 was aged 14. The fact of the youth of these applicants is naturally a matter of deep concern to any court, and no young person is lightly sentenced to life imprisonment, or to the terms which are the subject of the appeal in this case. That said, the courts have also a firm duty in a case as cruel and grave as was this offence, to impose a sentence which carries strong punitive and deterrent elements, and which reflects the abhorrence that society must feel at the torture inflicted upon a young man of 16; at the pack mentality of a group of thorough bullies who were supposedly teaching a lesson in respect of a suggestion by the victim that bullying by them the previous day, of an unfortunate and disadvantaged man, be reported; a group who in addition clothed their torture with triad style rituals. A reading of the reports on each of these applicants confirms the atmosphere which these applicants had created, a group which thrived upon and derived excitement from gang bullying and beatings.

D1, D6 and D10

12. It is said that D1 and D6 pleaded guilty to manslaughter, and that that constitutes material mitigation. Given the roles that those two played, this was a hollow offer on their part which they must, at all times, have appreciated had no prospect of acceptance; and which was, in the circumstances, just like their late attempt to resuscitate the deceased, no evidence of remorse, but rather an attempt at self preservation. We note, too, that there is no suggestion that these pleas were offered with a view to giving evidence for the prosecution, as happened in the case of Shek Tsz-kin to whom extensive reference is made in our July judgment.

13. As for mitigation advanced suggesting remorse and attempts at resuscitation, counsel for D6 points to D6's attempt to resuscitate and to seek help from 'underground doctors', an attempt that proceeded nowhere. We have described at para 86 of our earlier judgment the role played by D6, and one has only to rehearse it to appreciate that, in the light of his earlier conduct, his attempt to revive the applicant constitutes scant mitigation. So, too, it avails little in such a context for it to be said that there was an attempt to summon medical help. D6 flourishes the fact that he was trained in life support, an irony that will not be lost on anyone who studies his significant contribution to the death of Ah Kai. The fact is that when D6 called for help, if he did, he sought help only from the medical underworld, as it has been labeled in these proceedings. It was then far too late to do anything useful, and in any event, once it was evident that he could find no-one from that source, there was no attempt to seek proper assistance.

14. D10 was described by the judge in his original sentencing exercise as the chief culprit, and the judge said that he viewed that applicant as a very dangerous young man. D10's role, as we have described it in the judgment which relates to conviction, was horrific. He beat Ah Kai throughout the whole event at Sam Shuk's home. He punched and kicked and held him upside down so that others could beat him, force fed him with dates, hit him with a pole, beat him with a belt, directed the Tsap Kwun incident, instigated the cigarette swallowing event, refused requests to let Ah Kai leave, forced Ah Kai to kneel and apologise, assisted those who beat Ah Kai with stools, and finally beat him with a metal pipe on which he, D10, had first calmly carved his own name.

15. We have the reports which relate to D10. We do not see in them anything extraordinary which suggests that, for this offence, a term of anything other than life imprisonment could properly be contemplated.

16. D1 was the other leading participant in the attacks. Whilst it is possible that D10 played the predominant role, there is little to distinguish D1's culpability. When he arrived, he asked the others to stand aside so that he could engage in a solo thrashing of Ah Kai. He punched and kicked him for several minutes. He then joined in the Tsap Kwun incident, using a wooden stick, he hit Ah Kai with a heavy stool, and was one of the three who beat Ah Kai finally to death with pipes. For the offence which he committed, a term of life imprisonment is the only appropriate term. We should add that D1's report do not assist him. Indeed, they show a young man who thrived on bullying, and his progress in prison is not encouraging.

17. D6's conduct, although he is younger than D1 and D10, also calls for a term of life imprisonment. He squatted and beat Ah Kai about his chest; he took part in force feeding him; he took part in the beatings generally; hit Ah Kai with a wooden stick whilst others were punching and kicking; and he himself fetched the metal pipes and joined D1 and D10 in beating Ah Kai with them. His reports are unremarkable.

18. We are satisfied therefore that in the cases of D1, D6 and D10 terms of life imprisonment were warranted.

Section 67B

19. As for the minimum terms fixed by the sentencing judge under section 67B we are satisfied that they are, in each case, manifestly excessive. That is not for a moment to belittle the gravity of this crime, but we think, with respect, that it is possible that the judge has misapplied the intention of the section. The section is not designed to provide a sentence of imprisonment in lieu, as it were, of a life term. It is designed to draw from the court a minimum term of years which the convicted person must actually serve before release, remembering however, and this is an important caveat, that it is inherent in the phrase 'minimum term' that the court does not say that that is the stage at which the convicted individual is to be, or even should be, released. Those who are entrusted with the function of monitoring prisoners serving indeterminate sentences, or long term determinate sentences, and with making recommendations, where appropriate, for release or for the conversion of indeterminate terms to determinate ones, may very well in individual cases decide against the prisoner's release at the end of the minimum term and, indeed, may decide that release is not permissible for some considerable time beyond that date, or indeed at all.

20. The exercise of the power under section 67B (Cap. 221) is one which should be viewed in the context of relevant provisions of the Long Term Prison Sentences Review Ordinance, Cap. 524. In exercising its power under section 67B, the court is not in a position to address all the issues which a Review Board established by that Ordinance is required to address; for the court is not in a position to look ahead and to take into account all the issues which, by section 8 of that Ordinance, that Board must address when it reviews indeterminate and other sentences. Section 8 reads as follows:

"The Board must have primary regard to the following principles when exercising its functions or performing its duties in relation to a prisoner-

(a) in any case where the prisoner has not been completely rehabilitated, the rehabilitative effect of releasing the prisoner from detention before the unremitted part of the prisoner's sentence is served;

(b) the benefits to the prisoner and to the community arising from the prisoner being supervised after release with a view to securing, or increasing the likelihood of securing, the prisoner's rehabilitation (in any case where the prisoner has not been completely rehabilitated) and successful reintegration into the community;

(c) whether the part of the prisoner's sentence already served is sufficient, in all the circumstances (in particular given the nature of the offence for which the prisoner is being detained), to warrant consideration being given to having the prisoner released from detention early;

(d) the need to protect members of the community from reasonably foreseeable harm that could be inflicted by the prisoner as a result of having been released from detention early."

21. It will be apparent that the court, at the date of sentence, especially of a youth, will not be in a position to address the issues in section 8(a), (b) and (d), although the facts and circumstances of a case may enable a court to conclude that a particular defendant is a clear and long term danger to society. One notes also the fact (see section 15) that the Board has the power upon review to recommend to the Chief Executive the substitution of a determinate sentence for an indeterminate sentence (an indeterminate sentence includes a discretionary life term). The reviews are concluded after the passage of five years from the date of sentence (section 11). When reviews take place, the Board is assisted by reports, which may include medical and psychiatric reports and social welfare reports (section 14). In cases where the Board makes a recommendation for a determinate term, and we do not know how often that happens, it no doubt pays attention, though not exclusively, to developments which have occurred long after sentence. So too when deciding whether to recommend release, although of course the nature and circumstances of the offence will no doubt be a prime consideration.

22. So the scheme there described, as well as the common sense of the matter, rather suggests that when deciding upon a minimum term under section 67B, what the court is primarily addressing is the punitive and deterrent element dictated by the offence and the current circumstances of the offender. Those elements might be such as to require a very long minimum term, and we think that this case is in that category.

Minimum terms in this case

23. The minimum terms ordered by the judge were, in our opinion, manifestly excessive.

24. In the case of D1 and D10, we consider that the appropriate minimum terms to be specified under section 67B are, in each case, a term of 22 years. Accordingly in their cases we grant leave to appeal against sentence, treat the hearing of their applications as the hearing of the appeals, and allow their appeals against sentence to this extent only, that we set aside the orders under section 67B and, in the case of D1 and D10, substitute minimum terms in each case of 22 years.

25. As for the terms imposed in relation to Count 3, the judge took a starting point of four years' imprisonment and reduced it to one of three years in the case of those who had pleaded guilty to that count. D1, however, pleaded guilty to Count 3 at the outset, whereas the others who pleaded guilty did so later, during the course of the trial. In D1's case the reduction should, for what it is worth, have been one third, and we therefore set aside the term of three years on Count 3 in the case of D1 and substitute a term of two years and eight months to be served concurrently with the life term in respect of Count 1. The sentence imposed by the trial judge on D10 in respect of Count 3 is unaffected.

26. D6's culpability is hardly less than that of D10 and D1. It was D6 who force fed the victim; struck him with a stick during the Tsap Kwun incident; went to fetch the pipes, and himself used a pipe upon the victim. He is slightly younger than D1 and D10, in that he was then aged 16 years. A life term is warranted, but we think that the minimum period set by the judge under section 67 was too long. We grant leave to D6 to appeal against sentence, and treat this as the hearing of that appeal. We allow his appeal to this extent only, that for the fixed term of 25 years we substitute in his case a minimum period of 20 years. The judge's order in relation to Count 3 is, in the case of D6, also unaffected.

D4

27. This brings us to D4. His role was not as grievous as that of D1, D6, and D10, though it was bad enough. His role is fully described in para 68 of our earlier judgment. There is evidence that he went out to fetch food during the attack, although he took part in the early stage of the attack by kicking and punching. When Ah Kai was being struck with pipes, he assisted by kicking, and it was he who pushed Ah Kai's head into water and struck him on the head with a pole or stick three or four times. There is evidence, his own, that he did at one stage ask the others to stop hitting with pipes, and later suggested that Ah Kai be taken to hospital. We shall assume that this is so. However that may be, the fact is that he was assisting in the assault with pipes, and his remorse, such as it was, was short lived, for he took part in the disposal of the body: it is said that he kept a look out, and fetched kerosene for the exercise. We have read the reports on him, and we have also read a report submitted this morning written by a social worker from a youth service.

28. In his case we think, though with some hesitation, that a determinate sentence is warranted and, granting him leave to appeal against sentence, and treating this as the hearing of the appeal, we allow his appeal. We set aside the life sentence, and we substitute for the life term, in respect of Count 1, a term of 24 years' imprisonment. We order that in respect of the term of three years on Count 3, one year shall run consecutively to, and the balance concurrently with, the term we have imposed on Count 1; making a total of 25 years.

D8

29. Finally, we deal with D8. His case is more difficult than the case of the others. He was aged 14 years at the time of the offence. He is now aged 18 years. He was an active participant, and the evidence against him is described in para 104 of our earlier judgment. Mr Haynes has, with his usual eloquence, emphasised, quite rightly, the extreme youth of this applicant at the time of his offence; and he points to the fact that the judge appears wrongly to have concluded that, when D8 struck Ah Kai at the tail end of the whole orgy of violence, he struck him on the head, whereas the evidence suggests that he struck him on the buttocks. We shall proceed on the basis that the spatula was not used to strike the head, although this act of D8 was, it must equally be emphasised, hardly the long and the short of D8's conduct. When addressing the factors urged upon us by Mr Haynes, in particular the applicant's youth and the fact that he was part of a gang in which there were other and older participants - and as shall be seen, we take these factors into full account - it is not to be forgotten that this applicant has been convicted of the crime of murder, a murder constituted by an unusually cruel event and, whilst we do not repeat it here, para 104 of our judgment on conviction is worth revisiting to put this mitigation, as it affects D8, into context. He joined in the Tsap Kwun incident, and delivered blows when a poem was recited, and during the strike the fish incident when folding stools were used, and he was present when the pipes were used, and he used the spatula at that stage, and also joined in hitting the victim after Ah Kai had been taken to the washroom to be revived.

30. This was a prolonged episode, and there can be no question therefore of a youngster being carried away in some sudden and short lived episode. His reports are not encouraging and there is little sign of remorse. On the other hand, he was very young and no doubt was under the control and influence of his elders, some of whom were clearly forceful characters. In the circumstances we take the view that the total sentence of 23 years' imprisonment imposed upon him in respect of Counts 1 and 3 was too long. An appropriate sentence on Count 1 in his case is one of 18 years' imprisonment. As for Count 3, we order that of the three year term imposed in relation to that count one year shall run consecutively to, and two years concurrently with the term imposed on Count 1; making a total of 19 years.

31. We grant each applicant leave to appeal against sentence and, treating the hearing of their applications as the appeal, we allow their appeals to the extent which we have specified.