HKSAR v. LAM ALBERT HON

CACC 510/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 510 OF 2006

(ON APPEAL FROM HCCC NO. 60 of 2006)

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J U D G M E N T

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Stuart-Moore VP, (giving the judgment of the Court):

Background

1.  On 9 December 2006, the applicant was convicted by a jury of the murder of Choi Wai-lok (the deceased), a boy of fifteen who was at the same school as the applicant.  The murder took place on 7 December 2005 when the applicant was 17 years and 4 months old.

2.  The evidence heard during the trial before Beeson J revealed no motive for the killing as the applicant has maintained his innocence throughout.  There were three aspects of the case on which, the prosecution relied to prove its case.  These were, in short form, the finding of blood from the deceased on the applicant’s coat and one of his shoes (‘contact’ evidence); circumstantial evidence, related to the applicant’s conduct immediately before and after the killing together with his possession of the deceased’s mobile telephone; and an alleged remark to the police which, if true, could only mean that the applicant was the killer.

3.  There was no issue at trial that the deceased had been murdered.  The sole issue for the jury was whether the prosecution had established the applicant’s guilt based upon the combination of factors to which we have referred.

4.  In view of the applicant’s age, the judge was able to exercise her discretion under section 2 of the Offences Against the Person Ordinance, Cap. 212, to impose a determinate sentence.  On 15 December 2006, the applicant was sentenced to 29 years’ imprisonment. 

5.  The applicant now seeks leave to appeal against conviction and sentence.

6.  Mr Bruce SC, on the applicant’s behalf, very properly indicated, in circumstances where he was unable to furnish any grounds of appeal in relation to conviction, that he would confine his submissions to the length of the applicant’s sentence.

7.  The applicant presented four homemade grounds of appeal against conviction which he set out in writing at some length, submitting that the verdict was unsafe or unsatisfactory.  Before we turn to these, a brief review of the facts is necessary.

The facts

8.  The deceased was killed between about 12.30 am and 2.30 am on 7 December 2005 in Quarry Bay Park, Hoi Tai Street, Quarry Bay.  During the previous evening between 6.53 pm and 10.31 pm, the applicant called the deceased on his mobile telephone on five occasions and the deceased used his mobile telephone to call the applicant twice.  Shortly after the applicant’s third call to the deceased, at about 10.00 pm the deceased left home taking with him his black Motorola mobile telephone.   The applicant left his home at Tai Koo Shing at 10.20 pm.  Depending on the route taken, this is a ten to twenty-minute walk away from the crime scene.  The applicant did not return home until 1.16 am on 7 December 2005.  He then left again at 2.03 am.  CCTV security film at his address showed that the applicant was by this stage wearing a different jacket.  He returned after twenty-four minutes.

9.  At about 11.57 pm, on 6 December 2005, it is known that the deceased was in the applicant’s company at a 7-Eleven shop in King’s Road, Quarry Bay, because they purchased four cans of beer and were given a timed and dated receipt.  Thereafter, they were seen in the Quarry Bay Park together where they were described as chatting and laughing together.  The deceased’s parents were unable to get in touch with the deceased, despite frequent calls to his mobile number, from 1.35 am onwards.

10.  The deceased was found at 2.30 am on 7 December 2005 by a security guard who was patrolling Quarry Bay Park.  The deceased was lying outside some changing rooms in a pool of blood.  The police and an ambulance were summoned.  The deceased had no discernible pulse and death was formally certified shortly afterwards.  The post mortem conducted by Dr Lai Sai-chak established that the cause of death was “bleeding from multiple stab and cut wounds”.

11.  The deceased was found to be in possession of his wallet and other personal items but his mobile telephone had disappeared.

12.  Police went to the applicant’s flat at about 3.15 pm on 7 December 2005.  The applicant was arrested and he told the police that he had only gone with the deceased “to have alcoholic drinks” and that after this he, the applicant, had “left first”.  He explained that after they arrived at the park at about 12.15 am, they sat down together for about thirty to forty-five minutes.  He then went home and went out to the park again fifteen or twenty minutes later.  A post record of this conversation contained in a notebook (exhibit 92) was signed by the applicant.

13.  After the applicant was taken to the police station, he was questioned in three video-recorded interviews but, in the presence of his lawyer, he stated in response to all the questions that he would remain silent.  These records were not, therefore, exhibited.  However, on 8 December 2005, when a police officer was dealing with some paperwork in the applicant’s presence, the applicant allegedly said: “Ah Sir, I take you to find the knife”.  The remark was made quite suddenly and when the officer heard this he asked the applicant to repeat what he had said.  The applicant repeated that he could take him to find the knife.  The applicant was then cautioned and he said that he wanted to see his father to talk to him.  The applicant signed a post record of this conversation (exhibit 94) to confirm its accuracy and voluntariness.  However, the applicant never followed up his offer to show the police where the knife could be found.

14.  At trial, the voluntary nature of the applicant’s sudden remark was disputed and a voir dire was held to decide its admissibility.  The judge ruled that it was admissible.

15.  The so-called ‘contact’ evidence which the prosecution relied upon to connect the applicant to the killing arose from an examination of the applicant’s jacket found in his bedroom and also his sports shoes.  When the jacket was found, it was wet.  It had been bleached.  Nevertheless, a cluster of blood spots remained on the jacket and a single blood spot, described also as a droplet, was found on one of the applicant’s shoes.  There was no blood on the soles of his shoes.  The blood found on both these items came from the deceased.  Expert evidence indicated that the small blood spots on the applicant’s jacket was possibly caused by force from the impact of the blood source splashing spots onto the jacket.  A possible alternative way for these spots to have found their way onto the jacket, by the moving of a blood-stained object over its surface, was less likely in the expert’s view.

16.  The third plank in the prosecution’s case was the evidence of circumstance.  This covered a range of matters.  The applicant’s palm print was found on a park bench close to where the body of the deceased was found; the deceased’s mobile telephone was retrieved from the applicant’s bedroom; the applicant had bleached areas of the same jacket which had the deceased’s blood spots on it and had changed his jacket before leaving his flat for the second time that night; the removal of the deceased’s SIM card, which has never been recovered, from his Motorola mobile telephone; and the applicant’s deletion of all records of previous calls made to and from his own mobile telephone.

17.  The murder weapon, a sharp-bladed knife, has never been found.  The pathologist concluded the Autopsy Report (exhibit 110) by saying that:

“1. Death was due to bleeding from multiple stab and cut wounds.

2.   Some stab wounds showed characteristics of being made by single-edged blade with a pointed tip (e.g. Para. #12, #16).

3.   Some wounds showed characteristics of being made by a weapon with a serrated edge (e.g. Para. #5 and #11).

4.   Some of the wounds showed bony injuries apparently made by a stout blade wielded with a considerable force (cutting through a facet joint of the neck spine, two small hand bones, and penetration of the skull vault; see Para. #12, #15, #22).

5.   One of the narrowest yet deepest stab wounds (Para #16) measured 2.5 cm long on the skin surface and was about 11 cm deep.  These measurements probably approximated the maximum width and the minimum length of the causative weapon.”

Dr Lai drew a diagram of what he believed the weapon used to kill the deceased had looked like (exhibit 137).  Its possible dimensions were 11 centimetres long by 2.5 centimetres wide.  Two of the wounds in particular, to the neck and near the right armpit, involved ‘large force’ being used and other wounds would have caused profuse bleeding.

Defence case

18.  The applicant gave evidence at his trial, admitting that he had spent time with the deceased on the night in question.  He described the deceased as his “best friend”.  First, he said, they had gone to a video games centre after which they went to the 7-Eleven shop where they bought four cans of beer.  They then climbed over the gate into the park where, in due course, they sat on a bench smoking and drinking.  The applicant said that he took the deceased’s mobile telephone to play games on it.  They also lit a small fire because they thought it would be fun.  The applicant said that he was feeling rather sleepy after twenty to twenty-five minutes and he left to go home ahead of the deceased who said he wanted to finish his beer.

19.  As the applicant made his way home, he realised, he said, that he was still in possession of the deceased’s mobile and so he went back to return it.  He then discovered the deceased lying on the ground.  The applicant said that he called to him but there was no response.  He tried to help the deceased up and knelt down to lift him up by the left shoulder and arm, but still there was no response and he could see blood on the ground.  In the photographs (exhibit 133), it is clear that the deceased had been lying in a large pool of his own blood.

20.  Although the applicant was in possession of two mobile telephones at that stage, he did nothing to alert anyone about what had happened to his good friend.  Instead, he immediately went home and washed his hands and face.  He threw his jacket into a bucket and took what he claimed to have thought was a bottle of detergent from under the sink to pour it into the bucket.  As soon as he did so, he could see the colour change and he could smell bleach.  He explained that his objective was to wash the cigarette smoke out of his jacket.

21.  He then described how he became scared of being scolded by his parents.  Eventually, he went out of his flat but he returned after a short while as he was afraid that the murderer was still in the park.  The applicant fell asleep and when he awoke he had something to eat.  He heard a radio report that a boy had died and he regretted he had not reported the matter.  Nevertheless, his reaction was to delete his own telephone records because, he said, this was his “habit” and he took out the SIM card from the deceased’s telephone because he did not want it to ring and refresh his memory about the night’s events.  Someone then called his mobile number but the applicant said that the caller did not speak although the applicant had twice said ‘hello’ before hanging up.  In fact, it was a police officer who had made this call and when the applicant’s SIM card was examined it was found that he had also deleted the record of this call.

22.  Shortly afterwards, the police arrived at his address and, when he was asked if he knew the deceased, he said that he was so frightened he said nothing although he later answered the questions contained in the police officer’s notebook, exhibit 92, which he had signed.

23.  The applicant exercised his right to silence when the police tried to interview him on three separate occasions.  He had throughout had access to his father and a lawyer.

24.  After the police had written an antecedent statement, the applicant, who speaks reasonable English, said he could understand what Inspector Donnelly, the officer-in-charge of the enquiry, was saying.  In effect, he was telling the applicant (in English) that silence was no good for him and that his cooperation would be brought to the court’s notice.  He was told that if he informed the police where the knife could be found, this would be helpful.  If he had thrown the knife into the sea, police could help to retrieve it.  At that stage, another officer started to count “one, two, three” and the applicant said that he feared a beating.  He then gave the answer recorded in the notebook, exhibit 94, to the effect that he was willing to assist in finding the knife.

25.  In cross-examination, the applicant denied that he had deleted the record of his recently made calls on his mobile telephone to avoid a link being traced to the deceased at various times just before the murder.  He claimed that he had deleted the record because it was his habit to do so.

Grounds of appeal

26.  The applicant raised four substantive grounds of appeal and we shall deal with them individually.

(1) Contact evidence

27.  The applicant contended that there had been a failure on the part of the judge to include material directions in her summing up when she dealt with the topic of contact evidence.  In one example, the applicant said that no reference had been made to the testimony given by Ms Chan Ka-man, a chemist in the Government Laboratory, that in one sample of blood, identified as the deceased’s, DNA from an unknown source had also been found.  This sample was found close to other blood samples of the deceased near the bottom of the drinking fountain in the park.  However, Ms Chan explained that as the sample came from inside the sink, it was possible that saliva had been left behind by previous users of the fountain.  In this way, the blood sample was probably contaminated by the “cellular materials” of other people “thereby resulting in the mixture DNA profile”.  On any view, therefore, this evidence was of no assistance to the applicant in his assertion that someone else had killed the deceased. 

28.  Other points raised under this ground related to the relatively small amount of blood found on the applicant’s clothing when considered alongside evidence that the deceased’s wounds would have led to extensive bleeding.  The applicant’s point was that the jury was never asked to consider this as a factor in his favour especially as some of the deceased’s wounds were said to have been the result of “forceful stabs”.  He also complained about the judge having told the jury that the bleach on the jacket may have destroyed the DNA in those stains having regard to Ms Chan’s evidence that when she carried out laboratory tests using bleach on blood stains, she had always been able to extract some DNA, irrespective of the concentration of the bleach she had used.  Ms Chan had, however, gone on to say that the successful extraction of DNA would depend on a number of factors including the quantity and condition of the DNA.

29.  These aspects of the applicant’s 1^st ground of appeal seem to us to take the matter no further forward.  On any view, the blood on his jacket came from the deceased.  Significantly, this blood was in a cluster of spots rather than a smear and whether there were other areas of blood staining on the jacket it is not possible to say in view of the bleach which had been applied to it.

30.  This ground had no substance.

(2) Right of silence

31.  Two complaints were made about the judge’s summing up in regard to the applicant’s decision to remain silent during the interviews with the police.  The first criticism was aimed at the judge’s words to the jury in two passages of the summing up which were as follows:

“… I would remind you about the right to silence which was mentioned on a number of occasions during the trial. This relates to the initial silence in the bedroom and the fact that he did not give video interviews. He had the opportunity to give a video interview on three occasions but he exercised his right to silence and did not. You will remember that he said that he followed the advice of his lawyers in this regard.

  As a matter of law, I must tell you that any person suspected of a criminal offence or charged with one is entitled to say nothing when or if they are asked questions about it. You must not hold his refusal to speak or answer questions against him. An accused has a right to remain silent and if he chooses to exercise that right, it cannot amount to an admission of any kind and it cannot be taken either as a sign of a guilty conscience.” (Appeal bundle pp. 44-45)

The judge continued later by saying:

“… He was taken to North Point Police Station. He was served with his rights and asked to see a lawyer. Then his father came, the lawyer came and over the next two days, he had various interviews with his lawyers and, on three occasions, the police asked him if he was willing to make a video interview and then he refused to do so. He exercised his rights to silence on the advice of the legal representatives.” (Appeal bundle pp. 47-48)

32.  The applicant had exercised his right of silence about which the jury were properly informed and the judge had provided them with the correct approach they should adopt towards this evidence.  Obviously, the jury was entitled to know that the applicant had been given an opportunity to put his side of the story if he wished to do so but, equally, the jury had to know that the applicant was under no obligation whatsoever to do so and that a failure to give an account of himself could not be held against him.

33.  The judge’s directions were impeccable.  The suggestion by the applicant that the judge seemed to be suggesting that he, the applicant, had not attended the interviews is incorrect.  The judge said nothing of the kind and the jury were well aware this had never been suggested.  The applicant had merely declined to answer the questions the police had asked him.

34.  The other criticism under this ground was that a number of detrimental comments about the applicant’s adherence to his right of silence were made by the judge.  One example given by the applicant was that the judge referred to the answers he had initially given to the police following his arrest (recorded in exhibit 92) adding:

“… After that, he says nothing at all until the next day when he actually makes what turns out to be Exhibit 94, the alleged admission by him that he would assist the police to find the knife.” (Appeal bundle p. 40)

35.  Another example taken by the applicant to illustrate what he called “unfair” comments by the judge was the reminder she had given the jury as to why the applicant had given the police an apparent offer to help them find the knife.  The judge repeated the applicant’s evidence that he had spoken in this way out of fear of being beaten by the police.  The applicant suggested that this tended to lend some weight to an implied criticism of his failure to answer questions in the three video-recorded interviews when in fact, as he put it, he had answered every question.  However, whilst that may be true, the replies he had made were that he would remain silent.

36.  The last complaint under this ground was that during the summing up the judge made reference to a line of questioning in the cross-examination of the applicant which had been inappropriate and, by reminding the jury about it, the judge failed “to ensure that the jury [did] not form an adverse view of the accused by reason of such an exercise”.  The passage in the summing up to which the applicant referred related to his own account of his initial reactions following his arrest and was in these terms:

  “It was suggested that his behaviour in failing to answer the Sergeant was also strange, but I would point out to you that he does have a right to silence in this matter. However, the answer was not one that was particularly incriminating, to say that he knew a boy who was his best friend and with whom he had been at school. It was also a matter that was easy to check, so you may consider his behaviour in not admitting it straightaway rather strange. But the accused indicates that, at the time he left the park, the deceased was still alive.” (Appeal bundle p. 43)

37.  We have set out already the directions the jury were given about the approach to be adopted towards the exercise of the right of silence (para. 31 above) and we are satisfied that no unfairness was caused to the applicant arising from any of the directions on this topic.  The jury would plainly have understood that the applicant had every right to remain silent and that his silence was not to be taken against him.

38.  Accordingly, this ground failed.

(3) The applicant’s remark that he would assist the police

39.  In the 3^rd ground, the applicant complained that the judge ought not to have permitted the prosecution to lead the evidence of his remark to the police that he would assist them in finding the knife.  It emerged in these proceedings that this complaint stemmed from a simple misunderstanding on the applicant’s part about the practice when a judge makes a ruling about admissibility following a voir dire.  The applicant felt that the judge should have given reasons for admitting the evidence.  In practice, the general rule is that it is unwise to give reasons at that stage of a trial.  The applicant, for his part, was in no sense disadvantaged as he was at complete liberty to re-run his argument before the jury which, in the event, he did.  The defence point at trial, which was clearly made by Mr Plowman SC in his final speech, was that no weight should be placed on the so-called admission because it had been given only by reason of the applicant’s fear of what the police might do to him if he did not say something which sounded helpful.

40.  It is fair to add that in dealing with this particular topic, which arose at about the same time the antecedent statement had been prepared, the judge reminded the jury of a number of matters that emerged at trial which could be regarded as of benefit to the applicant.  Amongst these, the judge said:

“… Perhaps there were contradictions between the evidence a witness gave in-chief and what the witness said when examined in cross-examination, or when re-examined. For instance, you might remember that DPC Sung gave several answers as to whether somebody was present during the taking of the antecedent statement.” (Appeal bundle p. 28)

Later, dealing with other points made by the defence, the judge said:

“… You will remember that the defendant agrees that he did in fact say the words that are written down in that notebook, although the reasons for his doing so were because he had been forced to do so by the pressure brought to bear by the three police officers who had come into the room. DPC52949 of course denies that anybody came into the room.

  He is not a particularly observant officer in some ways- because he was the officer who could not see the guard outside the door, but he confirms that he never left the room and that he disagrees that the officers came in and spoke as they were alleged to have done. He said also that there had been no legal representative present during the taking of the Antecedent Statement, but later corrected himself because he said he had remembered it wrongly.

  Inspector Donnelly gave an account of how his team had been searching for the weapon on both the 7th and the 8th December 200[5] without any result. He said that he was told by [DPC] 52949 about the verbal admission and he then went to report to Chief Inspector Chan. He knew at that stage that the lawyers had gone. He confirmed the two incorrect entries as to time in his notebook. He said that he had taken that information from subordinates, which, you might think, shows that he is not particularly careful about keeping his notebook. Then Inspector Donnelly said that at about 17.45, he had been stopped in the corridor and told about what the defendant had just said, but no record of that appears in his notebook. He says that his officers are trained to record in their own notebooks what they themselves have done and there was no need for him to do their recording as well.” (Appeal bundle p. 41)

41.  There was one other element that the judge touched upon when dealing with this subject.  Just after the summing up had been concluded and the jury had left the courtroom, the judge called the jury back following a short discussion with counsel.  On this occasion, the judge said:

“I am sorry to bring you back. There is a matter that I should have spoken to you about in relation to Inspector Donnelly’s evidence. You’ll remember after he’d been told about the verbal admission, there were questions put about whether or not the police had done anything further in relation to the search and his offer to assist with finding the knife, and that there was no further police action and he said, in answer to questions, that he knew of his own knowledge, why no police action had been taken.

In fact, what he told you was hearsay. He didn’t know of his own knowledge what action had been taken. He was told by somebody else so you should ignore that piece of information from Inspector Donnelly. It is a comparatively minor point but it’s important that you ignore it.

You may not even remember that particular part of his evidence, but he was asked about, once the verbal had been made and the offer to find the knife had been made by the defendant, what was done about it, if anything, and he said nothing had been done and he knew of his own personal knowledge why, but in fact it wasn’t of his own personal knowledge; he only knew because somebody else had told him. So you must ignore that information from Inspector Donnelly.” (Appeal bundle pp. 52-53)

42.  On the basis of all the judge’s directions on this topic, the applicant queried her decision to admit the evidence of his spoken offer to assist the police find the knife.  We need only say that on the evidence before the judge, it was most certainly open to her to admit the evidence.  Having done so, the matter was left fairly and squarely as an issue for the jury to determine.

43.  This ground was without merit.

(4) The balance of the summing up

44.  It was submitted in the applicant’s 4^th ground of appeal that the judge made unfair comments about aspects of the defence case which had resulted in an unbalanced summing up.  Two examples were selected.  The first was a comment the judge made about the reason the applicant had given for needing to wash his jacket and his allegedly mistaken use of bleach instead of something milder to wash the jacket.  The applicant had said he was trying to get rid of the smell of cigarette smoke left from the video games centre where he had first met the deceased.  The judge remarked that as he had left that place some hours beforehand, “one might have thought that the smoke might have disappeared by that time from being in the park”.  However, the judge went on to say: “although you will remember that he [the applicant] said they lit a fire so there may have been smoke from the fire which came into the jacket as well”.

45.  The second comment which led to complaint under this ground related to the applicant’s evidence that he had not told his parents what had happened because he feared a scolding.  This was followed by the judge’s comment, of which the applicant complained, that in the circumstances a scolding would hardly have been likely given the news he had to impart.  However, the judge continued: “but it was his fear he was describing”.

46.  The judge’s comments were not, in our opinion, out of place or inappropriate and each was balanced with a comment that favoured the applicant.

47.  The final criticism under this ground was that the judge’s summing up apparently assumed that there was a single attacker involved in the murder.  This is perfectly correct.  To have summed up on the basis that more than one person was involved and the murder would have been pure speculation and the jury had rightly been told not to speculate.  The nearest that the evidence came to any suggestion of a second assailant was the evidence given by the pathologist that more than one weapon could have been used in the killing, a possibility Dr Lai was unable to rule out.  There was, however, no evidence to suggest that a second person had been involved in stabbing the deceased.

48.  This ground had no merit.

Conclusion on conviction

49.  In our view, the applicant’s conviction was neither unsafe nor unsatisfactory.  There is nothing in the grounds raised by the applicant or from our independent review of the evidence and the summing up which casts any doubt about the integrity of the verdict.

50.  Accordingly, the application in regard to conviction is dismissed.

Sentence

51.  Mr Bruce submitted that the applicant’s sentence of 29 years’ imprisonment was manifestly excessive.  His grounds were as follows:

“1. (a) The judge placed undue emphasis on the conduct which the jury must, by their verdict, have found was committed by the applicant.

(b) The judge should by reference to the conduct referred to in the preceding paragraph have placed more emphasis on the absence of any evidence of planning, that the crime was committed alone and did not depend on the participation or involvement of others, that the crime was not committed in the course of other crimes (such as robbery, burglary, rape or the like), and that after the killing there was no misconduct with, or inflicted upon, the body of the deceased.

(c)  The judge erred in holding that the failure by the Applicant to summon assistance was an aggravating feature of his conduct. Alternatively, the judge placed undue emphasis on this failure by the applicant.

(d) The judge should have placed greater emphasis on the previous character of the applicant and the obvious prospects for rehabilitation of the applicant.

2.   To the extent that previous decisions dealing with the fixing of a determinate sentence on persons under the age of 18 having been sentenced to life imprisonment provide guidance as to the appropriate sentence in the instant case, having regard to the circumstances of these decisions in comparison with the circumstances of the instant case, the judge ought to have imposed a sentence at or towards the lower end of the scale of sentences revealed in those decisions.”

52.  The judge, having conducted the trial, was fully conversant with the facts of this extremely brutal killing.  In addition, before imposing sentence, she had obtained an up-to-date probation report which provided her with a full background history about the applicant.  Included in the information supplied by the probation officer, Mr Sam N F Li, was the fact that the family had sought various forms of treatment for the applicant which originally appear to have been thought necessary in 1996 because his parents had observed his obsessive hand-washing and muttering to himself.  He had seen a psychiatrist, a clinical psychologist and a family counsellor.  Eventually, a private psychiatrist, Dr Sylvia Chan had, in March 2005, apparently diagnosed the applicant as having “Attention Deficit/Hyperactivity Disorder with Conduct Disorder”.  In the probation officer’s concluding remarks, he noted as follows:

“13.   The gathered information shows the Accused came from a middle class family. He was commented to be a smart child who had good performance in studies. Having few friends and limited social exposure, he unwisely mixed with undesirable peers. Even worse, he became rebellious and was badly influenced by the peers. He started to transgress the law at his early teens. His parents are very concerned about him. They had sought various treatments to the Accused from different helping professions in the past years during which he showed some improvements. In sum, he is of a good nature and seems on the verge of going delinquent because the significant others all spoke favorably of him. Placing him on SP discretion and Probation Supervision was a lenient way to deal with his previous offences. It is a pity to see him misinterpreted the good will of the Court. He continued to mingle with his peers in nocturnal activities that resulting him to present serious crime. As the Accused held a plead-not-guilty attitude denying his commission of the crime, his motive in the present offence could not be assessed.” (Appeal bundle p. 106)

53.  The offences referred to in the probation report were two cases of theft for which the applicant received a probation order on 27 May 2005.  A condition attached to the order included a night-time curfew which, it follows, the applicant had breached by going out late at night with the deceased in the present case.  It is also perhaps not without interest that the deceased had been expected to be a witness for the prosecution in that case.  However, it is right to add that the applicant had pleaded guilty in the Magistrates’ Court before this became necessary.

54.  In addition, the applicant had earlier committed an offence of accessing a computer with dishonest intent in August 2002 and four months later he committed a burglary.  For both of these offences, as the probation report had indicated, the applicant was cautioned under the Police Superintendent Discretionary Scheme (SP Discretion).

55.  As can readily be gleaned from the probation report, there were already serious concerns about the applicant’s behaviour before the present offence.  The most positive feature of the report was the obvious concern of his parents who appear to have done all in their power to give the applicant a good start in life.  On the negative side, apart from the applicant’s various brushes with the law to which we have referred, it is apparent that the applicant was sent back from a school in England after only a week.  He then attended Form 3 in a private school in Hong Kong but was expelled after a month for fighting with other schoolmates.  Eventually, his parents arranged for him to go to a rehabilitation centre in Lantau Island where he appears to have prospered although the applicant was regarded by the programme assistant at the centre as “a simple-minded youngster with impulsive character”.

56.  The judge exercised her discretion in the applicant’s favour when deciding not to impose a life sentence.  In doing so, the judge had taken into account all the surrounding factors, not least that this was, as she described it:

“… a brutal murder. I note that there was no gang or triad involvement, torture, perverse conduct or interference with the body … However, there were a large number of wounds some of which were extremely forceful and from at least two of which the deceased would have died.”

57.  The judge found that there was good reason to infer that the applicant had carried the knife with him to the murder scene.  Whether he did in fact do so or whether he had hidden the knife in the park, the murder does not appear to have been committed on the spur of the moment.  Plainly, there was some foresight on the applicant’s part.  Furthermore, the applicant has shown no remorse for what he has done and to this moment he still apparently finds himself unable to own up to the enormity of what he has done despite strong and extremely compelling evidence of his guilt.

58.  The judge took into account, when deciding the length of sentence, seven previous decisions of this court providing ample authority from which to assess the appropriate range of sentence for an offence committed in present circumstances.

59.  Mr Bruce took us through a number of authorities in addition to some of those reviewed by the judge.  These did no more than confirm, as Mr Bruce conceded, that for young offenders, in circumstances such as have emerged from this case, “the generally applicable sentence appears to be something of the order of between 27 and 30 years”.  The one distinction, again as Mr Bruce conceded, is that in the present case no remorse of any kind has been shown whereas in all comparable cases of murder to which he referred us, the defendants had expressed some degree of remorse.

60.  We are satisfied that the applicant’s sentence is not manifestly excessive.  There remains one element of this case which gives rise to a cause for real concern.  On the evidence this was a motiveless killing.  No doubt the applicant did have reasons for his decision to kill the deceased but he has never revealed them.  His attempts to cover his tracks by disposing of the murder weapon and the deceased’s SIM card, by deleting the records of calls on his mobile telephone and by putting bleach on some stains on his jacket, show the applicant to be someone with a devious and scheming nature.  In some respects, therefore, the discretionary course adopted by the judge, when she chose not to impose a life sentence, might be viewed as a merciful one.

61.  The application in regard to sentence is dismissed.