HKSAR v. LIN SIU LUN

cacC 383/2008

in the high court of the

hong kong special administrative region

court of appeal

cRIMINAL appeal no. 383 of 2008

(on appeal from hccc NO. 45 of 2008)

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J U D G M E N T

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

1.  On 20 October 2008, following a trial in the Court of First Instance before Beeson J and a jury, the applicant was acquitted of a single charge of murder but convicted of manslaughter.  He was sentenced to 12 years imprisonment.  He sought leave to appeal against that sentence.  Having heard submissions, we dismissed the application.  We said we would give reasons later in the day and do so now.

2.  The circumstances relevant to crimes of manslaughter are infinitely variable.  It is for this reason that our courts are not greatly assisted by a comparison of cases save, of course, as to matters of principle.  This being the case, it is necessary to consider in some detail the circumstances of the applicant’s offence and the extent of his culpability in its commission.

3.  At the time of his death, the victim was 27 years of age.  He had been born mildly mentally retarded.  Beeson J described him as a young man who was “simple, gullible and child-like in his attitudes and behaviour”. The victim had known the applicant for a number of years and it is evident that he considered the applicant to be his friend.  However, he owed the applicant money which, it appears, he was not in a position to pay until he received severance pay from his immediate past employer.  For that reason, or so it appears, even though the severance pay was to fall due in a matter of days, the applicant determined that the victim should be punished.

4.  In the result, over a period of close to two weeks, the victim was subjected to a series of severe beatings which led directly to renal failure, pneumonia and death.

5.  The applicant, it must be emphasised, was not the sole assailant.  At his primary instigation, a number of others were drawn in to the beatings.  Altogether nine other persons stood trial for involvement in the victim’s death.  During the course of the beatings various implements were used which included a folding metal chair, a metal pole and a leather belt.  The beatings took place in at least two different locations, initially in the home of the applicant and thereafter in the home of an accomplice.  One particular beating in this second location was so severe that the victim was left unable to walk.  The following day however – the victim having signed the necessary papers – the applicant was able to collect the victim’s severance pay, keeping most of it.

6.  It is an indication of the particular vulnerability of the victim that at no time did he attempt to escape and indeed, when ordered to remain still or else be subjected to even harder blows, he complied.  There is evidence that the victim begged to be set free but the applicant and those with him were afraid that his injuries would attract police attention.  The victim was therefore not allowed to go free but moved to a third apartment where, it seems, he was to be left, forced to sleep on the floor, until he was sufficiently recovered from his injuries.  As it was, it was in this place that he collapsed and died.

7.  Despite the fact that he had the greatest difficulty walking and that his cuts, lacerations and bruises must have been manifest, the applicant did not take any steps to provide the victim with any meaningful medical treatment.  A forensic pathologist who testified at trial said that in the days before his death it would have been apparent that the victim was unwell, showing signs of kidney failure and the onset of pneumonia: dizziness, weakness, pallor, shortness of breath and coughing.  There was evidence that the victim had probably taken some non-prescription remedies such as aspirin and there was evidence that the applicant had applied gentian violet to the wounds on his legs.  That was the extent of the help that was tendered.

8.  On the night of his death, the victim complained of feeling unwell and went to the lavatory where he collapsed.  He never regained consciousness.  The applicant had been with him earlier that evening but was not there at the time when he collapsed.  Realising that the victim had died, those who were present discussed how to dispose of his body.  His corpse was found the next morning close to the Hunghom Ferry Pier.

9.  The autopsy revealed injuries to the victim’s arms and legs and back.  A conservative estimate of the injuries to the back was at least 100 although an exact count was difficult because many injuries had been inflicted one on top of the other.  While none of the injuries, taken alone, could be regarded as life threatening their totality presented a different picture, expert evidence showing that it caused a decrease in blood supply leading to a shutting down of the kidney function, severe oedema and eventually acute renal failure.

10.  As to the criminal proceedings against the applicant and the nine others who, to a greater or lesser extent, bore responsibility for the victim’s death, in 2005/2006 all of them stood trial in the Court of First Instance.  Four persons, including the applicant, were charged with murder.  The remaining six were charged with assault with intent to commit grievous bodily harm.

11.  Of the four charged with murder, the applicant and one accomplice were convicted while the remaining two were convicted of manslaughter and sentenced to a term of eight years’ imprisonment.  All of those charged with assault were convicted.

12.  In early 2008, the two convictions for murder were set aside on appeal and a re-trial ordered.  That re-trial took place before Beeson J, the results, as we have said earlier, being the acquittal of the applicant and his accomplice of the charge of murder and their conviction of manslaughter.  Both were sentenced to 12 years.

13.  We note, as the sentencing judge also noted, that at his original trial and at his retrial the applicant offered to plead guilty to manslaughter but this was not accepted by the prosecution.

14.  Before us, the applicant, who appeared without legal representation, advanced three grounds of appeal.  First, that there was an unjust disparity of sentence between the 12 years imposed on him and the eight years imposed on the two who were convicted of manslaughter in the original trial.  Second, that the sentencing judge failed adequately, or at all, to take into account the fact that he had had to endure two trials and, third, that the sentence was, in all the circumstances, manifestly excessive.

15.  As to the first ground, the alleged disparity of sentences, it is to be remembered that the sentences of eight years were imposed by the judge who presided over the original trial, the applicant in that trial receiving the mandatory sentence for murder, while the sentence of 12 years against which the applicant sought leave to appeal was imposed at the end of the re-trial by a different judge.

16.  Bearing in mind that the applicant, on all the evidence, was the primary instigator and coordinator of the beatings which led to the death of the victim, we do not see that there was any disparity in the sentences.  But, even if there was a disparity, it is well established that, where different sentences are passed upon different defendants for the same offence by different judges on different occasions, the relevant consideration is whether the sentence passed on the accused, the applicant in this case, is proper.

17.  In any event, in so far as it is relevant, a court which passes a sentence after a re-trial has the power to pass a sentence which it considers appropriate and is not restrained by a sentence passed at the original trial.

18.  The applicant complained that, having offered to plead guilty to manslaughter before each of his trials, he should be entitled to a one-third discount on a notional starting point for sentence.  On the basis that he was sentenced to 12 years, this would present a notional starting point of 18 years whereas the notional starting point for the two who were convicted in the original trial would be only 12 years, this revealing an unjustified disparity of six years.

19.  This fails, however, to take into account that a judge passing sentence for manslaughter is in no sense bound to assess a notional starting point.  As this Court, differently constituted, observed in HKSAR v Cheung Hoi Ying, CACC 314/2002, manslaughter, an offence in respect of which an appropriate sentence may range from probation to life imprisonment, is an offence in respect of which a judge may not be able conscientiously to fix a starting point.  In such circumstances, he must take an overall view of the matter, encompassing matters both of aggravation and mitigation, and come to a determination on an appropriate sentence.  As Beeson J observed in the course of giving reasons for her sentences:

“Manslaughter is not a sentencing situation where a starting point can sensibly be taken and I do not attempt to do so in this case.”

20.  In the present case, the judge was well aware of the history of the criminal proceedings and the sentences passed at the original trial.  She further took into account that the applicant had offered to plead guilty to manslaughter at the commencement of both the original trial and the re-trial.

21.  However, she was of the view – a view from which we do not dissent – that the applicant was the instigator of, and leading figure in, the beatings that led to the death of the victim.

22.  On any objective reckoning, the treatment to which the victim was subjected in the last week or more of his life was not simply prolonged and brutal but, bearing in mind his particular vulnerability, bore the marks of profound cruelty.  No medical assistance, other than of the most derisory kind, was offered to him despite the fact that it must have been apparent that he was growing weaker and sicker all the time.  The applicant showed a contempt for his well-being.  In this regard, we agree entirely with the observations of Beeson J:

“The court has a responsibility to society to protect the weak and, if need be, to protect those who are unable to help themselves. The court is under a duty to ensure that proper punishment is meted out to the perpetrators of crimes such as these and thus deter others from similar acts.”

23.  As for the applicant’s second ground of appeal, the assertion that the sentencing judge failed to take into account the fact that he had had to endure two trials and had suffered stress as a result, there is nothing in this ground.  Beeson J specifically noted that, through no fault of his own, the applicant had been forced to face a re-trial and took that into account in imposing sentence.

24.  Nor is there anything in the applicant’s third ground of appeal, namely, that the sentence of 12 years imposed upon him was manifestly excessive.  In our view, taking into account all the circumstances, and bearing in mind that the maximum sentence for manslaughter is life imprisonment, the sentence imposed was entirely appropriate and was not in any way at odds with the finding of the jury.  An exemplary sentence was demanded, one that marks the extreme disquiet that all civilised societies must feel at an unlawful killing of this kind.