HKSAR v. YIM YU HANG AND ANOTHER

HCCC 149/2018

[2020] HKCFI 143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 149 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The two defendants - Yim Yu-hang, D1, and Chow Ching‑yin, D2 - were jointly charged together with another person, Wong Long-ki, nicknamed “Mao Chai”, with the murder of Kwok Wai-nok, the deceased. They both pleaded not guilty to the charge. The jury found D1 not guilty of murder but guilty of the manslaughter of Kwok Wai‑nok Bosco by reason of gross negligence. As for D2, the jury found him guilty of murder.

The facts of the case

The facts of the case as disclosed by the evidence was that the deceased was a wargame enthusiast who also traded in war game and military equipment. The prosecution case was that on 27 May 2017, the deceased and his friend nicknamed “05” went to Black Hill to take part in a night hike with D1 and Mao Chai. Upon reaching a certain point up the hill, 05 was asked to stay behind with Mao Chai while D1 took the deceased higher up the hill to test some equipment. About one to two hours later, D1 returned alone and told 05 that the deceased had to leave urgently. 05 left and later learned that the deceased did not return home.

The deceased’s family reported him missing to the police, and both D1 and Mao Chai were asked to go to the Tseung Kwan O Police Station to assist. The body of the deceased was found down a slope on Black Hill on 29 May 2017. The deceased was certified dead at the scene.

Dr Poon, who attended the scene and examined the deceased, was of the view that the death took place one to two days before he took the rectal temperature of the deceased at 1245 hours. A post-mortem was performed on the deceased on 1 June 2017 by Dr Poon. Dr Poon opined that the cause of death appeared to be stab wounds to the neck and head injuries. It was Dr Poon’s view that the stab wounds to the neck of the deceased resulting in excessive bleeding caused the death of the deceased, while the injuries to the head resulting in significant bleeding also contributed to the deceased’s death.

D1, D2 and Mao Chai were all arrested for the murder of the deceased. D2 admitted under caution when he was arrested at his home that it was he who had killed the deceased. The prosecution relied on circumstantial evidence and asked the jury to infer that there was a joint plan among the three, that is D1, D2 and Mao Chai, to entice the deceased to go night-hiking to isolate him from his friend 05, to take him alone higher up the hill with the intention to either kill him or to cause him really serious bodily harm.

The defence case, through the evidence of D2, was that the deceased was not very honest in his dealings with others when trading in wargame equipment. According to D2, D2 was unhappy with the way the deceased had dealt with him over the sale of two military radios, and he had told D1 about it. A plan was then hatched to get the deceased to go night‑hiking at Black Hill and to play a trick on him. D2 hid himself higher up the hill without letting the deceased know he was there. D1 brought the deceased alone up the hill to where D2 was hiding, leaving the friend of the deceased, 05, behind with Mao Chai.

D2’s evidence was that the deceased became angry when D1 brought up the unresolved matter between the deceased and D2. When the deceased saw D2 upon D2 making his appearance, the deceased dashed forward to attack D2. The deceased tried to hit both D1 and D2 with various objects, including a magazine for holding bullets, a broomstick and a metal pipe. According to D2, the deceased also used an airgun to shoot at both D1 and D2.

D2 said he then snatched the various items held in the deceased’s hand and hit him back. D2 admitted hitting the deceased all over the body with the broomstick and the metal pipe. After being hit on the head with the metal pipe, the deceased was stunned and stopped for a while. D1 then stood between the deceased and D2 and told D2 to stop hitting the deceased. After D2 threw away the metal pipe, the deceased pushed D1 away and dashed towards D2 again and pushed D2 onto the ground. When the deceased was straddling over D2’s body, he hit D2 with an object in his hand.

D2 managed to throw the deceased off and straddled the deceased instead. D2 then snatched the object from the deceased’s hand and hit the deceased with it. Although D2 said he did not know what that object was at the time, he admitted he did say to D1 later that same day, that is in the afternoon on 28 May 2017, at an indoor wargame place called “DGW” that he had used “a knife and a pole” to attack the deceased and that he had thrown both items down the hill. D2 also said something similar to “20 slashes with the knife and eight strikes with the pole” to D1 while at DGW.

Now back at the scene, according to D2, he did not know how many times he had hit the deceased with that object while straddling the deceased. The deceased then apologised to D2 and begged D2 to stop. D2 stopped and went to check on D1 who was lying dazed on the ground, according to D2. D1 asked about the deceased, so D2 went to check on the deceased. He found the deceased disorientated but could still move. The deceased also said something but D2 could not hear what was said.

D2 said that he then told D1 the deceased had fainted and told D1 to go downhill first, and D1 left, leaving D2 behind. D2 said he then checked the deceased again and he noted that the deceased was not moving or breathing. He thought the deceased had died and he was in a panic. He did not want the deceased’s body to be found, so he dragged the body to the side of the hill. As he did not want to see the face of the deceased, he covered the deceased’s head with a rice bag and tied the mouth of the bag around the neck of the deceased.

D2 said while he was dragging the deceased, he tripped at the edge and both he and the deceased fell down the slope. D2 left the deceased down the slope and climbed back up to the trail himself. He packed the deceased’s stuff and threw the airgun, the metal pipe and stuff belonging to the deceased which he did not pack down the slope. He also threw a folding knife, which he found lying on the ground, down the slope.

After D2 went down the hill, he went to the Lam Tin Park and cleaned himself. He contacted D1 who then went to the Lam Tin Park with Mao Chai to meet up with him. D2 told D1 what had happened and he begged D1 to help him hide the matter and to dispose of the equipment belonging to the deceased. D1 promised to help and took the deceased’s equipment away.

In the afternoon on 28 May 2017, D2 went to the DGW for a pre-arranged war game with D1 and others. After the game, they went to have dinner. After D1 and Mao Chai left for the Tseung Kwan O Police Station after dinner, D2 went to a workshop where D1 kept the wargame equipment he was trading in - that is D1 was trading in - and retrieved items belonging to the deceased, Bosco. He then disposed of them somewhere in Mongkok.

D2 stressed that there was no plan to harm the deceased. The plan was to play a trick on the deceased, to find an opportunity to talk to the deceased, and to resolve the problem regarding the military radios between him and the deceased. There was never any joint plan to kill or cause the deceased really serious bodily harm.

As the prosecution case was relying on circumstantial evidence against both D1 and D2 for the murder of the deceased, in particular, the WhatsApp messages found in a chat group called “Midnight Outing Group” of which both D1, D2 and Mao Chai were members, the fact that the jury returned a verdict of not guilty of murder in the case of D1 must mean that the jury was unable to draw the only reasonable inference that D1 was party to a joint plan or joint enterprise to either kill or cause really serious bodily harm to the deceased.

D1 was found guilty of manslaughter on the basis of gross negligence. The jury must have found that by creating the situation in which the deceased was brought by D1 alone to go higher uphill and then met with D2, and that the deceased was rendered unconscious by an act or acts of D2, D1 left the helpless deceased behind without getting help by either reporting to the police or calling for an ambulance, and that when D1 later learned from D2 at the Lam Tin Park what D2 had done to the deceased, in particular, hiding the body of the deceased to conceal what D2 had done, D1 agreed to help D2 to conceal the matter and still did not get help for the deceased, D1 was in breach of his duty of care to the deceased.

D1’s breach of duty of care caused the death of the deceased as the medical evidence from Dr Poon indicated that the deceased bled to death from the stab wounds and the head injuries one to two days before his body was examined on 29 May 2017. The jury must also have found that the breach of duty of care constituted gross negligence in that the circumstances were such that a reasonably prudent person would have foreseen death, so that the jury considered D1’s actions justified a criminal conviction.

As for D2, although the jury found him guilty of murder, it is clearly not on the basis of any joint enterprise with D1, but rather, on D2’s own evidence that he inflicted the stab wounds and head injuries on the person of the deceased which caused the death of the deceased. The jury must also have found that the prosecution has successfully proved that D2 was not acting in self-defence at the time, and that at the time when D2 inflicted the injuries on the deceased, in particular, by repeatedly stabbing the deceased, causing the deceased numerous stab wounds to the deceased’s neck, that D2 did so with the intention to kill or to cause really serious bodily harm to the deceased.

The sentence of D2

As D2 was over 18 years of age at the time he committed the offence of murder, there was only one sentence to be passed for this offence of murder, that is life imprisonment. So on 29 November, I sentenced D2 to life imprisonment.

The sentence in relation to D1

I adjourned the sentence on D1 until 6 December after I heard mitigation on 29 November 2019. On 6 December, as the trial of Wong Long‑ki was still in progress, I decided to further adjourn the sentence to 20 December, that is today, so as not to cause any prejudice to the trial of Wong Long‑ki.

The background and mitigation

The antecedent statement of D1 was read in Court. In short, he was born in 1990 and was of clear record prior to the present conviction. He worked as a decorator and he lived with his parents prior to his incarceration.

Mr Grounds, mitigating on behalf of D1, stressed the importance of honouring the verdict of the jury. He referred to the case of the Boston Massacre to illustrate this point. He also referred to the case of HKSAR v Lam Wai Man [1999] 3 HKLRD 855 to assist this Court. Mr Grounds did not attempt to play down the seriousness of the offence committed by D1. On the contrary, he frankly accepted and submitted that it is a serious matter when a person died as a result of someone being in breach of duty of care and not getting help for the incapacitated victim.

Mr Grounds stressed that D1 pleaded guilty on the basis of gross negligence manslaughter on the first day of trial in January 2019, which was not accepted by the prosecution. D1 again pleaded guilty to manslaughter on this basis when the trial took place in November 2019, and again the prosecution refused to accept his plea.

With reference to the case of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, in which the Court of Appeal set down the appropriate discount for pleas of guilty given on the first day of trial being 20 per cent from the starting point, Mr Grounds urged this court to exercise discretion in allowing D1 a 25 per cent discount instead of a 20 per cent discount. Mr Grounds submitted that because of the complexity of the case and the volume of materials he had to go through within a short period of time after being assigned the case by the Legal Aid Department, he only managed to look at the general issue after tackling all the other issues involved in this case.

Consequently, it was only a few days before the trial in January 2019 that D1 was properly advised and D1 indicated his intention to plead guilty to manslaughter on the basis of gross negligence. Mr Grounds stressed this case is very different from a case involving the trafficking of dangerous drugs, one which would be relatively easy for the defence to indicate any guilty plea earlier. Mr Grounds also submitted that an extra 5 per cent of discount would make a big difference if the starting point is a lengthy sentence.

Then the following is my consideration and reasons for sentence: I have already indicated when I set out the facts of this case what the basis of D1’s conviction of manslaughter of deceased must have been. I now have to decide what is the appropriate starting point for such an offence committed under the circumstances of this case.

In the case of Lam Wai Man referred to by Mr Grounds, the defendant was the mother of the 21-month-old child victim. She pleaded guilty to a charge of cruelty to a child and manslaughter on the grounds of gross negligence. The facts disclosed that the defendant took the victim to see a doctor, who found the child had large bruises over his body and face, was in a semi-conscious state, and suffered from a critical brain injury. Despite the doctor’s advice to rush the child to a hospital for immediate treatment, the defendant took the child home. The defendant took the child to the hospital on the next day. The child was found to have suffered from cardiac arrest and emergency treatment was carried out.

A forensic pathologist, Dr Poon, was called in as child abuse was suspected. Dr Poon found multiple injuries on the child’s head and body which had been inflicted over the previous two weeks. The injuries included ligature marks, burn marks, and cane marks. The child died two weeks later from the brain injury. If the child had been taken to hospital immediately after the brain injury was detected, his chance of survival would have been 70 to 80 per cent. However, by the time the child was admitted to hospital, the chance was reduced to around 5 per cent.

In sentencing the defendant, the trial judge stated the defendant was proactive in abusing the child victim and found that even if she did not inflict all the injuries, she bore a significant responsibility for them. He adopted a starting point of 9 years for the cruelty offence and 12 years for the manslaughter. The trial judge stated the totality of the sentence should be 9 years. So after giving the defendant the full discount for plea, he imposed a sentence of 6 years and 8 years, respectively. And the judge ordered 1 year on the cruelty charge should run consecutively to the sentence on the manslaughter.

The defendant’s application to appeal against sentence was dismissed by the Court of Appeal. The Court of Appeal said that was a very grave case of its kind and there was no reason to interfere with the sentence imposed. The court said to find otherwise would be:

“...to ignore a cardinal principle of sentencing which is to take into account the consequences to the victim.”

The facts of Lam Wai Man are, of course, quite different from the present case. This incident happened between 27 and 28 May 2017 in the course of a few hours, not over a period of weeks. The victim here was a grown man, not a child of tender age. Nevertheless, the case of Lam Wai Man does give one a sense of what the court has considered to be an appropriate sentence when a person’s life was taken away from him or from her.

What D2 did to the deceased was appalling, to say the very least. All D2 cared was to save his own skin after inflicting those horrendous injuries to the deceased. D1, in breach of his duty of care, did not seek help for the deceased. He not only condoned what D2 had done to the deceased, he went as far as to agree to dispose of the deceased’s belongings and took the deceased’s items with him, which amounted to a further act of concealing the fact that the deceased was left lying alone up on the hill, dying.

While there is no evidence before this Court whether early intervention would or could have saved the deceased, it remains a fact that without medical intervention, the deceased faced a certain death, which, unfortunately, in this case did happen.

When I consider the appropriate starting point, I must not ignore the cardinal principle of sentencing, that is to take into account the consequences to the victim, deceased. D1 was of a clear record before his conviction, which will be reflected in the starting point. After considering the circumstances of the present case, the role played by the 1st defendant, I am of the view that a starting point of 10 years is appropriate here.

It is a fact that D1 pleaded guilty to manslaughter on the basis of gross negligence when the charge was put to him both in January and in November 2019, but his plea was not accepted by the prosecution. As the jury found him not guilty of murder but guilty of gross negligence manslaughter, it will only be fair for this Court to give him the appropriate discount.

Having considered the submission of Mr Grounds, I agree with him that in view of the complexity of this case, it is proper for me to exercise discretion in giving D1 a higher discount than the usual one of 20 per cent tendered on the first day of trial. I will give the defendant a 25 per cent discount. A 25% discount from the starting point of 10 years will result in 7½ years of imprisonment. So for the offence of manslaughter by reason of gross negligence, D1 is sentenced to 7½ years’ imprisonment.