HKSAR v. AU YEUNG CHUN YEE

CACC 438/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 438 OF 2014

(ON APPEAL FROM HCCC 397 OF 2013)

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REASONS FOR DECISION

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Introduction

1.  On 12 December 2014 the applicant was sentenced to 7 years’ imprisonment by Deputy Judge McMahon (“the judge”) for the offence of manslaughter.  She subsequently applied for leave to appeal that sentence and on 3 February 2016 I granted her leave to do so.

2.  The applicant now applies for bail pending appeal.  At the hearing of her application I refused it and said I would hand down my reasons for doing so at a later date.  This I now do.

The background to the offence

3.  The circumstances surrounding the commission of the offence are set out in my judgment granting leave.  For present purposes it is sufficient to note that the applicant, with four others, was charged with the joint enterprise murder of a 15½-year-old boy by the name of Tsang Ming Sze that took place at Lohas Park, Tseung Kwan O on 8 August 2012.

4.  The applicant and one other co-accused, D5, pleaded guilty to manslaughter and they both testified for the prosecution against the remaining accuseds.

5.  The applicant had been aggrieved by the conduct of the deceased and enlisted the assistance of her co-accuseds to teach the deceased a lesson.  Events got out of control and the deceased was so badly beaten that the co-accuseds decided it was better to kill him and dispose of his body.

6.  At the time of the offence the applicant was only 15 years 10 months old and the co-accused males who administered the beating to the deceased were 20 years 11 months, 27 years 11 months and 33 years 8 months of age.  

The Reasons for Sentence

7.  The judge adopted a starting point of 14 years which he reduced by 50% to 7 years for the applicant’s plea of guilty and for the assistance she rendered to the prosecution in testifying against her co‑accuseds.[1]

8.  The reason why the judge adopted 14 years as his starting point was because of the applicant’s conduct as instigator of the offence and in luring the deceased to the scene of the assaults.  He noted that the basis of the applicant’s plea was that although she lacked the intent to kill or do grievous bodily harm to the deceased, she intended or foresaw considerable injury being done to him.  He said the applicant was heavily involved in the events leading to the death of the deceased and described her culpability as being “at the higher end of the hugely variable manslaughter range of sentences.”

The grounds of appeal

9.  In the Amended Perfected Grounds of Appeal Against Sentence the applicant makes two complaints.  The first ground of appeal complains that the judge had insufficient regard to all the mitigating factors advanced at trial which it is submitted, cumulatively render his starting point of 14 years too high.  Another factor was the delay of 28 months from the date of the offence and the applicant’s sentencing by which time the applicant was 18 years of age.

10.  The second ground of appeal asserts that the judge was wrong to characterize the applicant’s part in the offence as close to the dividing line between manslaughter and murder.

The position of the respondent

11.  The respondent does not oppose the application for bail.

Discussion

12.  The power to grant bail pending appeal is found in section 83R of the Criminal Procedure Ordinance, Cap 221.  Although the power is not fettered it must be exercised judicially and the court should only grant bail when it is just to do so.[2]

13.  The principles on which the judicial discretion is exercised derive from the common law and this was analysed by Tang VP (as he then was) in HKSAR v Lau Man Kin [2010] 1 HKLRD 336.  For present purposes it is sufficient to quote from the headnote of the report of that judgment:

“Bail pending appeal was exceptional and the discretion must be exercised judicially when it was just to do so. Generally, it should be granted only where it appeared that the appeal would be successful or where there was a risk that the entire or a substantial part of the sentence would have been served by the time the appeal was heard.”

14.  I have already granted leave to appeal on the basis that the grounds of appeal are reasonably arguable.  For the purposes of this bail application I am willing to accept that it appears the applicant’s grounds of appeal will be successful and that the Court of Appeal will reduce her sentence.

15.  The applicant’s appeal is listed for hearing, together with that of her co-accuseds who are appealing their convictions, on 14 June 2016.  Judgment on the applicant’s appeal can be expected on that day or shortly thereafter.

16.  The applicant’s earliest date of release is 15 September 2017 and in her affirmation she says that by 15 April 2016 she will have served the equivalent of a term of 5 years’ imprisonment.[3]  A term of 5 years’ imprisonment would, on the discount awarded by the judge, reflect a starting point of 10 years’ imprisonment.  At the hearing of the application Ms Draycott SC, who appeared for the applicant, said that the 5-year mark will actually be on 17 May 2016.

17.  The relevance of these dates of when the applicant will be released from prison and when a judgment on her appeal will likely be available is so that the court can determine whether, if bail is not granted, there is a real likelihood that the applicant will have served the whole or a substantial part of the sentence of imprisonment before the outcome of the appeal is known.  Such a likelihood would render the applicant’s right of appeal nugatory or illusory.   

18.  This is an appeal against sentence where the basis of the appeal is not an attack upon the nature of the sentence, namely a sentence of imprisonment, but only upon its length.  If not granted bail the applicant will, by the time the outcome of her appeal is known, have served a sentence of slightly more than 5 years’ imprisonment. There is no chance that she will have served her whole sentence of 7 years or anywhere close to that. 

19.  It seems to me that in that situation it is not sufficient for the applicant to show only that there is a likelihood her appeal will succeed in reducing her sentence.  She has to go further and show that if not granted bail there is a likelihood that she will have served a sentence greater than that which will be imposed on her should her appeal succeed.  That is, that the Court of Appeal, if minded to allow the appeal, would adopt a starting point of or less than 10 years’ imprisonment and so would impose on the applicant in substitution for the sentence imposed by the judge, a sentence of 5 years’ imprisonment or less. 

20.  In seeking to persuade me that there is a real prospect of the applicant receiving from the Court of Appeal a sentence of 5 years or less Ms Draycott emphasized the limited role of the applicant in the beating of the deceased, her age and the ages of the main perpetrators.  Whilst conceding that the applicant set in train a course of events that led to the death of the victim, those events quickly got out of her control.  To the extent that she was able, she tried to prevent serious, and ultimately fatal, harm coming to the deceased and she played no role in the final attack upon him.

21.  Ms Draycott argued that the period she has spent in custody is appropriate punishment for her and the likelihood is that at the hearing of her appeal the Court of Appeal will impose no greater sentence than 5 years’ imprisonment, from a starting point of 10 years.  Ms Draycott accepts that if she is wrong in this assessment then the applicant will be faced with having to return to custody but, she submits, there is, for the reasons contained in her submissions, only a small risk of that happening.

22.  Mr Daryanani for the respondent, reminded me in his submission that in the Summary of Facts the applicant admitted that at the second scene she intended or foresaw that the victim would be further beaten and that she complied with the instruction given to her to enter the women’s toilet to check that no-one was there who might witness the events. 

23.  After giving Ms Draycott’s submissions anxious consideration I concluded that, on the basis of the materials before me, I was not persuaded that it can be said there is a likelihood of the Court of Appeal allowing the appeal to the extent of reducing the applicant’s sentence to 5 years’ imprisonment or less.  The applicant’s appeal is simply not one where it is possible to be confident, at this stage and on the limited materials before me, that such an outcome is likely. 

24.  In these circumstances I was mindful of the observation of Edmund Davies LJ in R v Gruffydd & ors (1972) 56 Cr App R 585 where he said at 589:

“But once bail is granted pending an appeal, judges who later hear it are presented with an additionally heavy problem. Bail inevitably raises hopes, and to wreck them by ordering a return to custody is a painful duty for any judge. Nevertheless, there are times when such a duty is unavoidable.”

25.  The distress and hardship to a person as young as this applicant should she be granted bail now and then, in only two months’ time, be required to return to custody would be especially cruel and difficult to bear.

Conclusion

26.  For these reasons I refuse the application.

[1] D5 was sentenced to 9 years’ imprisonment from a starting point of 18 years that was adopted by the judge.

[2] Per Tang VP in HKSAR v Lau Man Kin [2010] 1 HKLRD 336, applying R v Oscar Lai Ka To CACC 229/1992, unreported, 14 September 1993.

[3] The respondent calculated it as amounting to 4 years 10 months’ imprisonment.