HKSAR v. CHEUNG CHU KONG

CACC 334 /2018

[2019] HKCA 998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 334 OF 2018

(ON APPEAL FROM HCCC NO 169 OF 2018)

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J U D G M E N T

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1.  Following his plea of guilty before a magistrate, the applicant was committed to the High Court on 10 September 2018 to be sentenced before Poon J (the judge) on three counts of attempted murder, contrary to common law and punishable under sections 159G and 159J(1)(a) of the Crimes Ordinance, Cap 200. On 26 October 2018, the applicant was sentenced to a total term of imprisonment of 8 years. He now seeks leave to appeal against his sentence.

The background facts

2.  The applicant was charged with attempting to murder his own children X, Y and Z, who were aged 6, 4 and 2 respectively at the time.  On 20 March 2017, having purchased two bags of charcoal at the supermarket, the applicant arranged for the three children to sleep together with him in his bedroom.

3.  In the early hours of 21 March 2017, the applicant’s domestic helper (PW2) heard Z crying in the applicant’s bedroom.  Accordingly, she opened the applicant’s bedroom door and took Z into her own bedroom to continue sleeping.  It was accepted that Z would normally sleep with PW2, whilst X and Y would sleep with the applicant.  PW2 smelt smoke in the applicant’s bedroom but associated the smell with “god worshipping”.

4.  Later at about 5:10 am, the applicant’s wife (PW1), who had moved away from the flat for several months, received a call from the applicant’s business partner telling her that the applicant was absent from work.  Since the applicant had never absented himself from work before, PW1 went to the flat at 6 am to find out what had happened.  Upon entering the premises with her own keys, she smelt burning and noticed smoke coming from the applicant’s bedroom.  She quickly entered the applicant’s bedroom and opened all of the windows to ventilate the flat.  X was found to have wet trousers, while Y had some saliva and white foam coming from his mouth.  On seeing a bucket of burning charcoal in the room, PW1 made a report to the police.

5.  The applicant was subsequently arrested and, under caution, admitted that he had consumed alcohol and sleeping pills that night and tried to die with his children.  On 22 March 2017, the applicant attended a video-recorded interview, in which he said, inter alia, that he was in debt and wanted to commit suicide.  He admitted buying the charcoal and storing it initially on the back staircase; and said that he wanted to commit suicide with his children, thinking that no one would take care of them if he died.  He said he had ignited the charcoal with a gas torch in the bedroom when the windows and door were shut.  He did not give the children any medication, nor did he hurt them apart from burning the charcoal. 

Mitigation

6.  The applicant was 37 years of age at the time of his sentence.  He had been educated to Form 5 level and started working as a delivery worker at the age of 17.  He had begun a logistics business in 2010 but had incurred debts in the business downturn in 2016.  The applicant’s marriage broke down in 2016 and his wife left the matrimonial home.  They divorced in 2017.  Before the commission of the offence, the applicant had taken alcohol, Zopiclone and marijuana.  Apart from being diagnosed with alcohol dependence syndrome causing mental and behavioural disorder, the applicant did not suffer from other psychiatric illnesses^[1].

7.  A clinical psychologist interviewed the applicant after his arrest and prepared a report.  He was of the view that the present offences stemmed from the applicant’s inability to cope with the stress of the failures of his marriage and work.  The applicant was said to have inadequate consequential thinking and a reckless personality^[2].  The psychologist was concerned at the risk of recidivism unless the applicant could control his use of alcohol^[3].

8.  A psychological report was also called for in order to assess the impact of the offence on X.  She was not found to have any post‑traumatic stress reaction, or emotional or behavioural disturbances that warranted clinical attention^[4]. Nor did she fear for her own safety.  On the contrary, she said that she missed her father.  This was confirmed by the wife, who said that the children were missing their father.  She said that she did not want them to grow up without a father.  She asked the court for leniency by imposing a shorter term of imprisonment.

9.  It was submitted on his behalf that the applicant was a hardworking man and a loving father who cared very much for his family.  The commission of the present offences was not planned very much ahead and carried out in a moment of despair.  It was in society’s long term interests for the family to be re‑united as soon as possible. 

Reasons for sentence

10.  The judge said that whatever the predicament in which an adult finds him- or herself, there was no justification for taking the lives of his or her children.  Such conduct must be deterred in order to reflect society’s abhorrence.

11.  The judge found that there was premeditation and at no stage did the applicant shrink from what he was intending to do.  The fact that the applicant had voluntarily consumed alcohol and that the children were of tender age were aggravating factors.  She was of the view that the nature of the offence demonstrated a high level of culpability, and however much she may have been touched by the letter written by X, the degree of criminal responsibility exhibited by the applicant could not be taken lightly by the courts.  Until the applicant had made amends and learned to exercise self-control and manage his stress, he was not in a position to protect and provide guidance to his children.

12.  Accordingly, the judge adopted a starting point of 12 years’ imprisonment on each count, reducing it by one-third for the applicant’s guilty pleas to 8 years’ imprisonment on each count concurrent.

Grounds of appeal

13.  Mr Grounds, counsel on behalf of the applicant both here and below, has advanced two grounds of appeal, namely:

(1) That in all the circumstances of the present case, the judge erred in adopting a starting point of 12 years’ imprisonment which was manifestly excessive (Ground 1); and

(2) The judge erred in her consideration of the following aspects:

 i. By placing too much weight or emphasis on public abhorrence and deterrence, as public abhorrence and deterrence would not deter those determined to kill themselves;

 ii. By emphasising, or relying upon, the lack of spontaneity in the applicant’s actions, when almost all suicides involve premeditation and some degree of planning or forethought;

 iii. By giving weight to the notion that “at no time did he desist from the idea”;

 iv. By not understanding the build-up of causes that led to the applicant’s actions, when she held that this was not a case where the applicant was no stranger to mental ill health and was suddenly overwhelmed with negative emotions when his wife left him;

 v. By not properly understanding the reasons for the applicant doing as he did;

 vi. By giving insufficient weight to the best interests of the children which involved having the applicant at liberty as soon as possible so that he could contribute to their upbringing and welfare;

 vii. By not realising that there was no realistic prospect of the applicant repeating his actions, since the children were living with and being looked after by their mother;

 viii. By placing too much weight on the tender ages of the children when the reason the applicant did as he did was because of their young age, and the prospect that no one could take care of them;

 ix. By double-counting the issue of “tender age” as an aggravating factor;

 x. By not properly considering the various reports and the positive aspects contained in them, but instead concentrating upon the negative aspects of the psychologist’s report; and

 xi. By not properly considering the various cases submitted in mitigation (Ground 2).

14.  In respect of Ground 1, it was submitted that by comparison with other cases of attempted murder, the applicant’s offending was less serious.  Since those cases imposed sentences which were slightly longer than the sentence imposed on the applicant, the sentence in the present case was manifestly excessive.  He cited, in particular, the sentence of 13 years’ after trial passed at first instance in HKSAR v Lee Wai-keung^[5], where the defendant had attempted to kill the victim by throwing her out of a window on 20^th floor of a building.

15.  It was contended that the facts in HKSAR v Cheung Hung‑mai^[6] bore considerable similarity to the present case.  There, the defendant suffered from adjustment disorder and substance abuse.  The psychiatric report showed that the defendant had no signs of depression and mental disturbance but the risk of impulsive behaviour, including violent acts and suicidal ideation in times of heavy stress, was assessed to be moderate.  The defendant attempted to kill himself along with his 3‑month old son.  The defendant pleaded guilty and, from a starting point of 6 years’ imprisonment, he was sentenced to 4 years’ imprisonment.

16.  Mr Grounds nevertheless recognised that there are no sentencing guidelines in Hong Kong for the offence of attempted murder and that the cases cited represent a range of sentences imposed, some at first instance, in the particular circumstances of the offence before it. 

17.  In respect of Ground 2, Mr Grounds submitted that the judge failed to properly consider certain aspects of the case, which are set out above at paragraph 13. 

18.  Finally, it was argued that the reports sought by the judge were generally favourable to the applicant.  Although the judge highlighted the one matter which was arguably unfavourable, namely the risk of re-offending as a result of alcohol abuse, she did not properly consider the other favourable aspects referred to in the reports.

The respondent’s reply

19.  Mr Siu, on behalf of the respondent, noted that there were no sentencing guidelines for the offence of attempted murder; hence the citation of other cases which establish no principle or guidelines were of limited use on appeal.  The real question for an appellate court was whether in all the circumstances, the starting point taken by the judge and the resulting sentence after plea was manifestly excessive.  That process required a global view of all the circumstances rather than a “point‑by‑point” examination of the various features of the case.

20.  Mr Siu referred me to the Definitive Guidelines issued by the Sentencing Council in England and Wales (“the Guidelines”), which, in respect of the offence of attempted murder, state:

“3. The culpability of the offender is the initial factor in determining the seriousness of an offence. It is an essential element of the offence of attempted murder that the offender had an intention to kill; accordingly, an offender convicted of this offence will have demonstrated a high level of culpability. Even so, the precise level of culpability will vary in line with the circumstances of the offence and whether the offence was planned or spontaneous. The use of a weapon may influence this assessment.”

21.  The Guidelines go on to state:

“6. However, although the degree of (or lack of) physical or psychological harm suffered by a victim may generally influence sentence, the statutory definition of harm encompasses not only the harm actually caused by an offence but also any harm that the offence was intended to cause or might foreseeably have caused; since the offence can only be committed where there is an intention to kill, an offence of attempted murder will always involve, in principle, the most serious level of harm.”

22.  The respondent added that it was also a specific aggravating factor listed in the Guidelines that the victim was particularly vulnerable, for example, because of age or disability.  It was submitted that if the Guidelines were to be applied in the present case, a starting point of 15 years’ imprisonment in a sentencing range of 12 to 20 years’ imprisonment would be appropriate.  Although the Guidelines do not bind the courts of Hong Kong, Mr Siu argued that the factors and principles which underlie them are of considerable referential value in sentencing for this offence.

23.  In response to the applicant’s various contentions under Ground 2, the respondent submitted the passing of the sentence in a case such as this should convey society’s emphatic denunciation and abhorrence of a deliberate plan to kill three innocent children.

24.  Of the complaint that the judge did not place sufficient weight upon the best interests of the children, the respondent submitted that it would be rare that the children’s interests should prevail against society’s obvious interest in the proper enforcement of the criminal law.  In fact, the children would be taken care of by the mother and the judge had already properly considered the effect of the applicant’s incarceration on the children.  The prospect of the applicant re-offending remained unless and until the applicant could desist from his abuse of alcohol.

25.  The judge’s mention on two occasions that the children were of very tender age did not mean that the factor was double counted, as any fair reading of the Reasons for Sentence as a whole made clear.

26.  In respect of Ground 1, the respondent submitted that the offences committed by the applicant were extremely serious and demonstrated a high level of culpability.  Lee Wai-keung concerned a wholly different set of facts and was of very limited value in the determination of the present appeal.  As for Cheung Hung-mai, the respondent acknowledged that the facts were similar to those in the present case; however, the judge properly considered and rightly distinguished the present case from it.

Consideration

27.  The question for me at this stage is whether it is reasonably arguable that the sentence of 8 years’ imprisonment on a plea of guilty to three counts of attempted murder is open to appeal.  It is very tempting in cases of this nature to say that there must be an argument because the circumstances of the crime are so singular and sad, and the offences so uncharacteristic of an obviously hard-working man of good character (although he had been bound over without charge in 2016 for assaulting his wife).  Yet, it is clear from the way the judge expressed her reasons that she was well aware of the nature of the case she was sentencing and exercised considerable thought and care in dealing with it.

28.  There are two particular circumstances which emerge from this case, to which the judge attached significance, and with which I doubt any appellate court would disagree.  First, the crime was clearly planned when the applicant went out to buy charcoal sometime after 6:30 pm on 20 March 2017.  CCTV cameras caught the applicant leaving a supermarket with two bags of charcoal at 7:23 pm on the same night.  Initially, he placed the charcoal at the rear staircase outside the flat.  He then arranged for his youngest child (Z) to sleep with him instead of with PW2 that night, so that all of the children would die from carbon monoxide poisoning.  The windows and doors were closed to effect his purpose, while he himself took a sleeping pill and alcohol.  PW2 entered the applicant’s bedroom to take Z to her own room when she heard her crying in the early hours of 21 March 2017.  At about 6 am, PW1 entered the flat to rescue the applicant and the remaining children. 

29.  If one accepts the point made by Mr Grounds that most intended suicides are by their very nature pre‑meditated, and that the degree of planning is a more significant factor with the crime of attempted murder in its more conventional form, then equally, one must appreciate that the applicant set in motion a long drawn-out and determined process from which, as the judge remarked, he at no time ever sought to draw back.  Indeed, he effectively and voluntarily incapacitated himself with drink and drugs.

30.  Secondly, the victims of the crime were no less than three very young, vulnerable and entirely innocent children, for whom the applicant was in a position of unquestioning trust, authority and responsibility.  Their lives were only saved and tragedy averted by the actions of the applicant’s domestic helper and, subsequently, his estranged wife.  However desperate and pitiful the applicant may have believed his circumstances to be, he had no right whatsoever to decide that his children, who would have trusted him unquestionably as their father, should die.

31.  The judge identified two important principles underlying the sentencing of cases of this nature: the first is to mark society’s abhorrence of such crimes; the second is to deter others who might be minded to do the same thing.  The repugnance which the public would feel for offences of this nature and the need to deter others from doing the same thing, in circumstances where the perpetrators would not expect themselves to have to face any consequences if they succeeded, must inevitably trump the forgiveness of the victims and the consequent loss (for some time) of their father.

32.  Had the three children died and the applicant lived, he would have faced three concurrent sentences of life imprisonment for murder.  A case which was not referred to by the parties, but which I have found of some interest on its facts and in the principles which may be derived from it, is the English case of R v Fiona Donnison[7].  Although in certain respects its facts are necessarily different, and there seems to have been a question-mark over whether the appellant had herself made a genuine suicide attempt, Lord Judge CJ, giving the judgment of the Court, endorsed the sentencing judge’s description of the murder of the appellant’s two defenceless, young children aged 2 and 4 as a “grotesque breach of trust”[8].  Despite calling it a “truly tragic case”[9], the Court nevertheless upheld a minimum term of 32 years’ imprisonment of the life sentence.

33.  Whether one agrees or disagrees with individual aspects of the judge’s sentencing remarks in the present case, an appellate court must look, as Mr Siu rightly submits, at whether the overall sentence of 8 years’ imprisonment upon pleas of guilty to three counts of attempted murder of entirely blameless young children, in the circumstances put before the court, was manifestly excessive and/or wrong in principle.  The sentence in this case may be severe, but the culpability involved in an offence of attempted murder, in which the offender’s intention is to kill innocent children, is necessarily of a high level.  Despite the very full and impassioned submissions of Mr Grounds on the applicant’s behalf, I do not consider that there are reasonable grounds of appeal against sentence in this case.

34.  The application for leave to appeal against sentence is accordingly refused. 

[1] AB p 38, Psychiatric Report.

[2] AB p 43, Psychological Report, at para 16.

[3] Ibid.,at para 16.

[4] AB p 47, Victim Impact Report, para 8.

[5] HKSAR v Lee Wai-keung, HCCC 20/2009, 29 June 2009.

[6] HKSAR v Cheung Hung-mai, HCCC 131/2017, 3 July 2017.

[7] R v Fiona Donnison [2013] 1 Cr App R (S) 39.

[8] Ibid., at para 37.

[9] Ibid., at para 3.