HKSAR v. CHAN MAN LOK AND ANOTHER

CACC 522/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 522 OF 2000

(ON APPEAL FROM HCCC 401 OF 1999 AND 185 OF 2000)

____________________

____________________

________________________

J U D G M E N T

________________________

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

Introduction

1. On 21 November 2000, the Applicants, D1 and D3, were both found guilty by a jury on the first count of the indictment of manslaughter following a lengthy trial before Nguyen J. They were acquitted of murder. On arraignment, they pleaded guilty to a second count of false imprisonment and a third count of preventing the lawful burial of a corpse. All the counts related to the same victim, Fan Man-yee (the deceased).

2. On 6 December 2000, each Applicant was sentenced to a discretionary term of life imprisonment. The judge also imposed minimum terms of twenty years to be served pursuant to the provisions of section 67B of the Criminal Procedure Ordinance, Cap. 221. The Applicants now seek leave to appeal against sentence.

The facts

3. The salient facts of the case have been set out in the judgment we handed down on 2 May 2003 when dismissing the appeals of D1 and D3 against conviction. In the same proceedings, the appeal of D2, who had similarly been convicted of manslaughter, was allowed. We propose, therefore, for ease of reference, to cite some of the passages from the earlier judgment in order to provide the general background against which D1 and D3 were sentenced, namely:

"1. This case concerns the killing of a woman, aged 23, who was taken from her home and made a prisoner in the flat occupied by the Applicants. Whilst there, she was kept in degrading conditions, subjected to torture and constantly assaulted. After she died, her body was dismembered.....

11. On 26 May 1999, police officers went to a flat on the third floor of 31 Granville Road in Tsim Sha Tsui as a result of information provided to them by a 13-year-old girl named Lau Ming Fong (PW2). On the first floor canopy, facing Granville Road, they discovered a plastic bag containing the decomposed heart, lungs, liver and intestines of the deceased. Inside the flat, they found most of the deceased's skull. This had been sewn into a 'Hello Kitty' doll. No other parts of the deceased's body, except a tooth, were ever located.

12. In due course, it was discovered that the deceased had been abducted from her address on 17 March 1999. From there, she had immediately been taken to the flat in Granville Road where she died in mid-April 1999.....

14. Behind some of the gruesome facts which emerged from the case, there lay an extensive criminal background. This was relevant towards explaining the relationships between the Applicants themselves, and between them and the deceased, as well as providing a motive and an explanation for other events which took place. D1, aged 33, knew the deceased from his work as a cashier at a vice establishment where she had worked as a prostitute. D2 and D3, aged 26 and 19 respectively, stated that D1 was their 'Big Brother' and that as such they were his triad followers.

15. It was the prosecution's case that the deceased was abducted by D2 and D3 on the instructions of D1 in order to secure payment of a debt which was said to be owing by the deceased to D1. This debt had started in a relatively modest amount but, notwithstanding its repayment, it had seemingly escalated out of all proportion to the original sum. After the abduction, the deceased was kept at the flat in Granville Road where the Applicants were living. Over the course of the next four weeks, the prosecution alleged that she was so severely maltreated that eventually she died from the injuries she received at their hands.

16. In general terms, it seems that the deceased slept on the floor of her room although for a time she was made to sleep inside a wooden wardrobe. When her physical condition began to deteriorate, it appears that some of her wounds became infected. This in turn created a bad odour. It may well be that the deceased's state, in particular her legs and feet, had been allowed to become so serious that if medical treatment had been sought for her, a police enquiry into how she had come by her injuries would have been inevitable. In such circumstances, the prosecution suggested, the Applicants .... probably (felt) unable to release the deceased without putting themselves in jeopardy.

17. ..... It was (the evidence of 15-year old PW2 who gave evidence under immunity) which enabled the prosecution to put before the jury a pattern of conduct on the part of all the Applicants showing that they were unrelenting in their violence towards the deceased.....

19. There was no issue at trial, so far as D1 and D3 were concerned, that the deceased had been abducted and held against her will at the Granville Road flat or that she had been subjected for about a month to numerous assaults, indignities and torture. None of the Applicants disputed that the deceased had died in the flat or that her body was later dismembered and disposed of by them.....

21. ..... PW2 admitted hitting the deceased with a water pipe and with her hands. She described several very serious assaults being made on the deceased by the Applicants, sometimes acting alone and otherwise in varying combinations.

22. The first of the violent incidents described by PW2 came about during the first evening that the deceased spent in captivity. This was just after she had been brought back to the flat by D2 and D3. The deceased was in fear and she was asked by D3 why she had not repaid the debt she owed to D1 and why she had not returned telephone calls. D3 then kicked the deceased more than fifty times to all parts of her body, counting aloud the times he kicked her and sometimes asking the deceased where he should strike her. PW2, who had been watching, said that this was one of the occasions she had also struck the deceased with her hand and that this was done on D3's instructions. Neither D1 nor D2 were present in the room during this incident.

23. In the second incident, which may have been on the second day of her captivity, D1 was asleep in the flat while D2 and D3, in a cruel and cowardly fashion, maltreated the deceased by burning her and then rubbing chilli oil or sauce into the wounds. PW2 described this as having "fun". She said that plastic drinking straws and a plastic bottle were melted with cigarette lighters and dripped onto the deceased's feet. For some of the time, D2 held the deceased's legs to prevent her from moving and she was instructed to laugh or smile while molten plastic was being dripped onto her. PW2 also participated, and later she saw D2 and D3 using a cigarette lighter to burn the deceased's feet. She described the skin on the deceased's feet as completely disappearing in places leaving blistering. D2 and D3 then applied the chilli, amongst other things, to the wounds on her feet. They also put some into the deceased's mouth as well as on other wounds she had on her face and body and then, having used a stick with a rough surface to rub the sauce into her wounds, they applied more chilli. The deceased was left in great pain. Not satisfied, D2 then urinated into her mouth. Next, D2 and D3 forced the deceased to eat human excrement. Lastly, cooking oil was poured into her mouth.

24. The third incident involved D3 who tightly tied the deceased's hands to an overhead rack with elastic wires, forcing her to remain standing for many hours. In the result, her hands became considerably swollen. This was said to have been done to prevent the deceased scratching the scabs that had formed over the wounds on her feet.

25. The fourth incident involved D1 who struck the deceased's hands with a water pipe. Again, this was because the deceased had been scratching the scabs on her wounds. D1 made the deceased spread her fingers on the floor and he then struck them with force more than once. PW2 left the room where this happened for a time and when she returned she saw that the deceased's face was swollen and covered with blood.

26. The fifth incident involved all the Applicants. The deceased was held by D2 and D3 while D1 used his knee to hit her in the chest on what was said to have been no more than ten occasions. Throughout, D1 was asking the deceased questions. She replied with words to the effect that she was sorry and that she would not do it again.

27. The sixth incident described by PW2 was really a series of assaults on the deceased spread over a period of several days. As to these, they occurred on a daily basis. These were committed by D2 and D3 and sometimes also by D1. These attacks on the deceased were sometimes carried out by kicking, and sometimes by striking her with hands, fists, water pipes or a wooden table leg. On one occasion, PW2 observed "bubbles" on the deceased's head after the beating she had been given.

28. The seventh incident came after the deceased had been found by PW2, D3, 'Ah Sam' (from the flat on the second floor) and 'Ah Yee' (D2's girlfriend) lying on the toilet floor. This was in the early hours of the morning after they had returned from a discotheque. D1 was informed and he then struck the deceased several times on the breasts with a water pipe, remarking that the deceased had uneven breasts. When questioned about some discrepancies in her account, PW2 said: 'In those days they assaulted her every day, so I cannot recall every detail so clearly.'

29. The eighth incident was, according to PW2, on the evening of the same day as the previous assault. PW2 heard banging noises similar to the sounds she had previously heard when D2 and D3 would kick the deceased or beat her with water pipes. When PW2 went into Room 3, the deceased was on the toilet floor as if picking up something. She could not see what this was but the deceased was putting whatever it was into some tinfoil she was holding. D1 told PW2 that the deceased had dropped 'ice' onto the floor. PW2 left the room but later, when she again heard banging sounds coming from Room 3, she went inside and saw the deceased in great pain, wriggling her body, panting, crying out and in difficulty with her breathing. D1 and D3 were with her. PW2 said that the deceased looked like a 'junkie' who was tortured by the urge for drugs. D1 told her that the deceased was suffering from withdrawal symptoms. When the deceased became motionless, D1 proceeded to ignite a cigarette lighter against the deceased's feet which made her move them. D1 then asked D3 and PW2 to lift up the deceased, but when she was leant against the wall, she slid down to the floor. Importantly, in terms of the causation of death to which issue we shall have to return in some detail, this incident seemingly took place on the night before the deceased died.

30. In summing up to the jury, the judge dealt with a number of other assaults as well. These were general allegations where PW2 had seen D2 and D3 each striking the deceased with a water pipe all over her body, except the head. PW2 described how the deceased had been told not to make any noise while being hit. This may account for an outsider, on only one occasion, hearing cries for help. Mr Wong, a neighbour who lived on the fourth floor, gave evidence of hearing a female voice calling out for help and being sworn at by a man.

31. PW2 had not been alone in observing the deceased being assaulted at the Granville Road flat. Ng Wan-ming ('Ah Sam') lived in the flat below, on the second floor. He described how, in one incident, he had observed D2 and D3 beating the deceased with their hands and fists. On another occasion, he saw D2 and D3 kicking and hitting the deceased. This witness also observed the pitiful state of the deceased's arms and legs.

32. It appears that the deceased's condition deteriorated to a considerable extent in the last few days of her life. Eventually, when it was thought that the deceased had died, PW2 was asked by D3 to check. She found the deceased had no heartbeat and that her limbs were stiff. She also noticed a white discharge inside and outside the deceased's nostrils.

33. As the body began to decompose, the Applicants moved a refrigerator into the flat. They removed the shelving and put the deceased's body inside it. It was later decided to dismember the body and dispose of the remains....

34. On any view, the deceased had been savagely beaten and cruelly maltreated over a period of about a month.....".

The applications

4. It was submitted by Mr Whitehouse and by Mr Raffell, for D1 and D3 respectively, that the sentences of life imprisonment were wrong in principle and manifestly excessive. Mr Raffell's alternative submission, which was not advanced on behalf of D1, was that if D3's life sentence was upheld, the minimum term of twenty years was manifestly excessive.

5. Counsel for both Applicants sensibly accepted that D1 and D3's actions amounted to acts of extreme cruelty and brutality over a considerable time. Mr Whitehouse submitted, however, that none of the persistent assaults, taken individually, was necessarily life-threatening. Whilst this may be so, it is apparent that taken in combination, and with no hope of medical attention ever being given to improve her condition, the deceased was almost inevitably going to die. Without in any way going behind the jury's verdict, we consider this case came very close to the line which divides murder and manslaughter.

6. Mr Whitehouse also contended that as the precise reason for the manslaughter verdict is unknown, it was possible that the jury may have convicted on the basis that the victim had overdosed on drugs and that the beatings to which she had been subjected had "significantly contributed" to her death. This was not an argument which we consider carries any weight. As we indicated generally in our earlier judgment between paragraphs 55 and 91, and as we stated in particular in paragraph 67, "the overwhelming weight of the evidence was that death resulted not from drugs but from the maltreatment to which the deceased had been subjected". At paragraph 90, we went on to say that we took the view, as "the jury must inevitably have done", that the possibility of the deceased having taken a drug overdose could realistically, on the evidence as a whole, be excluded.

7. In a further ground of appeal, Mr Whitehouse submitted that the judge had erroneously concluded that the criteria set out in R v Hodgson [1968] 52 Cr App R 113 at 114 had been satisfied. We shall deal in due course with what was said by the English Court of Appeal in R v Hodgson which was adopted in the decision of this court in R v Fong Lung-fai [1968] HKLR 249 at 252. In short, Mr Whitehouse's point was that nothing which was stated in the psychiatric or psychological reports about D1 indicated that he was so unstable that he would be likely to commit a serious offence of violence in the future. He accepted that if the contrary had been the case, there might have been some justification for imposing a life sentence as the only proper way in which to protect the public. However, there was, Mr Whitehouse argued, insufficient evidence before the court to make such a determination.

8. A similar submission was advanced by Mr Raffell. He placed reliance on R v Pang Chun-wai [1994] 1 HKCLR 137 where, at 142, this court again confirmed the three criteria which have to be satisfied, set out in R v Hodgson (and reaffirmed in R v O'Dwyer [1988] 86 Cr App R 313), before a discretionary life sentence could properly be imposed. Litton JA, as he then was, stated that the criteria were "equally applicable in Hong Kong". Mr Raffell suggested that if lack of remorse was a factor in determining whether the second criterion in R v Hodgson had been fulfilled, some degree of remorse was to be found in the pleas of guilty to the second and third counts of the indictment by D1 and D3. We disagree. The evidence of their complicity in those offences was overwhelming and their pleas of guilty were in the nature of 'confession and avoidance'. By confessing to the lesser offences, they merely hoped to avoid being found guilty of the more serious offence in the first count.

9. Mr Daryl Saw, SC, on the Respondent's behalf, submitted that all the criteria in R v Hodgson [1968] 52 Cr App R 113 at 114 had, for present purposes, been satisfied. It was stated in that case, where the Court of Appeal was dealing with an appellant who had committed serious sexual offences, that the three conditions which should be met before a discretionary life sentence was justified were:

"(1) where the offence or offences are in themselves grave enough to require a very long sentence;

(2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and

(3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence."

10. Mr Saw recognised that it was the second criterion, on which D1 and D3's counsel had focused in the court below and in these proceedings, which for present purposes properly gave rise to concern. He argued that, when considering the "nature of the offence", it was important for the sentencer to consider such questions as the remorse, or lack of it, exhibited by an offender, together with the attitude displayed by the offender towards the victim, when deciding the stability of his character and whether he was likely to commit such an offence in the future. Mr Saw submitted that although many of the reported cases where discretionary life sentences have been imposed have concerned offenders who have committed more than one serious offence of a violent or sexual nature, the second criterion could not be limited to serial offenders because, if that had been the legislative intent, this would have been spelt out in clear terms. He invited us to examine the Applicants' conduct over the whole time during which the deceased was tortured, beaten and detained and to conclude from the "nature of the offence", and the complete lack of any remorse exhibited by the Applicants, that they were, to adopt the words in the second criterion (above), of: "unstable character likely to commit such offences in future". He laid particular emphasis on the extreme nature of the degradation to which the deceased was subjected over the whole month of her captivity which could only have been committed by persons who were significantly unstable.

11. R v Hodgson was cited with approval in the more recent decision of the English Court of Appeal in R v Cobb [2002] 1 Cr App R 67. The appellant in that case had been a male nurse at a hospital. He administered a stupefying drug to a nurse who died as a result. He repeated this action again when, three years later, he administered the same drug to three female patients with the result that they lost consciousness. He raped two of the patients whilst they were unconscious. The appellant, who had no previous convictions and was aged 38, was found guilty of manslaughter, two counts of rape and four counts of administering a stupefying drug. A psychiatric report concluded that, as the appellant had no history of sexual offences, the risk of him offending in the future was "medium to low". The judge made his own assessment and passed a life sentence having found that there was a very substantial continuing risk. The court at page 73 stated that:

".... The assessment of risk of future offending is one entrusted to the sentencing judge. He has to reach his own conclusion. He is the one who, at the end of the day, has a duty to do what he can to protect other women from offences of this kind. He concluded having read the report and having taken it into account that there was a substantial continuing risk. We are quite sure he was right to reach that conclusion."

12. Mr Saw drew to our attention a number of passages taken from reports which had been ordered by the sentencing judge in support of his contention that life sentences were appropriate in the present case. The clinical psychologist's report about D1, now aged 37, dated 4 December 2000, concluded that:

"He has history of criminal record since his early adulthood and was impressed to have led a loose life all along the years. During the assessment, he presented himself in a positive light. With reference to the incident, he admitted the present offences. He appeared to have minimised his personal responsibility by putting the blame on others. Given the continuous torture towards the victim and the sadistic behaviour in dismembering the deceased, he seemed to be a person who possesses psychopathic traits like impulsivity, irresponsibility, remorseless, and lack of empathy. Although he was not impressed to be at high risk of extreme violence in future, in view of his psychopathic tendencies, continuous drug use, and lack of insight towards his acts, he can still be at risk to himself as well as to the community." (Appeal bundle p. 1413)

13. Regarding D3, now aged 23, the psychologist who had also had the benefit of seeing psychological reports about D3 prepared about seven years earlier, set out the results and analysis of the personality test upon him saying that: "individuals with similar profile as Mr Leung (D3) usually have the following characteristics":

"Intermittently explosive: these people tended to experience intense anger and hostility but failed to express in a modulated and adaptive manner. Many of these individuals over-controlled their negative emotions most of the time. When they could no longer repress their emotions, they would 'explode' in an outburst of passion and react violently. The finding was consistent with his previous psychological reports done in 1993. Responsible psychologists opined that Mr Leung mainly employed denial and suppression to handle his aggressive and negative feelings. His family members also considered him as an 'even-temper' person who rarely had open and direct conflicts with his family and friends. However, sporadic violent acts were evidenced. He was repeatedly arrested for his aggressive behaviours and would at times hit his girlfriend.....

On the Psychopathy Checklist, he possessed some psychopathic traits such as being callous, irresponsible and remorseless. However, he did not meet all the diagnostic criteria and was better described as anti-social rather than psychopathic." (Appeal bundle p. 1426)

14. D3's attitude towards the offence, according to the same report was that:

"Frankly, Mr Leung admitted that he found the victim disgusting. He perceived her refusal to repay debts as a disrespectful gesture towards him..... She therefore deserved some sorts of punishment. Mr Leung admitted hitting and torturing her. However, he showed little empathy for his victim and tended to minimize (the) victim's suffering. For instance, he did not think burning her instep caused any serious harm. Rather, he blamed the victim for repeatedly scratching her wounds.

After the death of the victim, Mr Leung was very frightened. He expressed little sorrow for the deceased. Rather, he feared the case be known to the police .....

All along, Mr Leung wanted to escape from his criminal responsibility." (Appeal bundle p. 1425)

The psychologist concluded by saying that D3 was:

".... not impressed to be at high risk of extreme violence in the future. However, in view of the early onset of his conduct problems, his repeated offending and his lack of genuine remorse, I am reserved about his future prognosis. He should benefit from psychological intervention on handling his emotions. However, the effectiveness will be very much depended on his motivation and determination to change." (Appeal bundle p. 1427)

15. Although there were also psychiatric reports before the judge in the court below, these contained little of any value for present purposes. The Applicants were neither mentally ill nor in need of psychiatric treatment.

16. The judge, having taken a detailed overview of the particularly horrifying nature of the manslaughter and of the reports which were before him, concluded, in the light of the criteria taken from the judgment in R v Hodgson (above) that the Applicants had:

"manifested psychopathic tendencies and that (they were) likely, if at large, to remain a danger to people with whom (they) may come into contact for an indefinite time ....." (Appeal bundle p. 1409)

17. He went on to say, with reference to the second criterion in Hodgson's case:

"In relation to criteria number two, which is the criterion that all defence counsel have submitted to me has not been met, I conclude that the offences show mental instability in the character of all three of you, and this, coupled with the need to protect the public, to my mind justifies a life term for each of you. There is clear evidence of mental instability, as opposed to mental disorder, which poses a risk to the public. My conclusion is that all three of you are likely to represent a serious danger to the public for an indeterminate term ....

The crime committed by you merits condign punishment. The public is entitled to be protected from people such as you and it is the duty of the court in passing sentence to reflect this and also to reflect the abhorrence of the community which it has for the offences committed. There are matters relating to all of you and to the offence which should be recorded for the purpose of reviewing the sentences in the future, and these matters will be specified in the report in writing to be submitted to the Chief Executive in accordance with section 67B of the Criminal Procedure Ordinance." (Appeal bundle p. 1409)

18. We have considered, as the judge plainly did, whether there was any basis for drawing a distinction between the Applicants. D1 was not only much older than D3 but was also the apparent leader who had initiated these horrifying events and the psychological reports had put them both in a category which was said to show "no high risk of extreme violence in future". In this context, we have noted, with regard to the suggestion which might be made that D1 had exercised influence over D3, that the psychologist stated:

"Even though (D3) was susceptible to other's influence, he did not appear to mutilate his victim under the strong influence of his peers. Neither did he act under drug influence or suffer from formal psychopathology. Rather, his violent acts was more related to the following:

His unassertive and intermittent-explosive personality - Violence towards the weak might represent his maladaptive means to assert himself. Besides, he might have displaced all his pent-up anger on the victim.

His desensitisation of violence due to childhood and triad experience.

His lack of empathy towards the victim.

Although Mr Leung expressed some remorse, it was more to do with the sentence rather than real sorrow for the deceased. Up till now, he still put the blame on the victim." (Appeal bundle p. 1426)

19. The judge was in an ideal situation to have made an assessment of the Applicants. Each of them had given evidence in his own defence for more than two days.

20. In passing sentence, the judge extensively reviewed the evidence, highlighting a few of the incidents which brought home the true horror of the Applicants' behaviour leading him to remark that he was unaware, in recent years, of any court being called upon to hear evidence of "such cruelty, depravity, callousness, and brutality .... by human beings on another human being". The conduct of these Applicants had, in fact, shown no mercy and no pity at any stage of the deceased's long ordeal. As her physical condition inevitably deteriorated, the beatings to which she was routinely subjected continued unabated. This aspect was summarised by the judge in these words:

".... if you three could have treated a corpse with such disrespect, savagery and callousness, and such a lack of feeling for a human's body, then I have no doubts that when the deceased was alive you were treating her not as a human being but as an object for you to vent your anger and frustration upon.

Some of the attacks were admitted to have been inflicted because you were looking for fun, but there was also a feeling on the part of the three of you of a sense of superiority over the deceased who was your prisoner and upon whom you could perpetrate the most vile acts." (Appeal bundle p. 1404)

21. Even after her death, as the judge had indicated, no regret or remorse was exhibited by D1 or D3. A particularly harrowing insight into D1's behaviour at that stage was dealt with by the judge in these terms:

"In the midst of cutting flesh from the corpse, and in the midst of the cut flesh being cooked, the three of you, or some of you, ate noodles in the vicinity of the cut corpse. Throughout the dismemberment and the cooking of the body and the sawing of the bones, notwithstanding the stench of the decomposing flesh, you, the 1st defendant, allowed your common-law wife and your young son to remain on the premises, whether or not they knew what was going on.

The 2nd defendant said both to the police and in court that while the 1st defendant was cutting the flesh from the corpse, he, the 2nd defendant, felt that the 1st defendant 'was psycho'. (D2) said that while the 1st defendant was cutting the flesh he 'seemed to be elated'. (D2) said in court that while the 1st defendant was cutting off the deceased's head it was as if he was out of control. (D2) had the impression that the 1st defendant was then happy and enjoying himself. The 1st defendant was facing the head and the skeleton and said to the corpse, 'Be good, don't move, I will make you look beautiful again.' Then he tore her hair off. D2 said that after the flesh was put in the fridge D1 said, 'Cook the flesh properly for the dog to eat.' (Appeal bundle p. 1404)

22. The judge, in our opinion, bore all the appropriate principles in mind when deciding upon sentence of which only one factor was the unusual gravity of the acts leading to the deceased's death. It was primarily for the judge to assess whether D1 and D3, or either of them, represented a danger to the public for an indeterminate time.

Conclusion

23. We have concluded that the judge, having properly considered the principles which he had to apply and not having been shown in regard to any aspect of sentencing to have erred in his approach to the exercise of his discretion, rightly imposed life sentences on D1 and D3.

24. We shall grant leave and, treating the hearing as the appeal, we dismiss the appeals of D1 and D3.

25. As exception was taken to the length of the minimum sentence D3 is to serve, we should indicate that we have also given this our full consideration. We do not propose to interfere with the order which the judge made. In this regard, also, the appeal is dismissed.

Remarks: