THE QUEEN v. IP MOU YUEN

--------------

----------------------

J U D G M E N T

----------------------

Hon. Yang, C.J.:

1. This is the judgment of the Court.

2. This case is referred to the Court of Appeal by order of the Governor under Sec. 83 P of the Criminal Procedure Ordinance, Cap. 221.

3. The appellant was convicted of murder on 9th March 1982 after trial by jury before Penlington, J. (as he then was) and sentenced to death. His appeal against conviction was dismissed by the Court of Appeal on 22nd June 1982.

4. He then petitioned to the Governor for clemency and commutation of the death sentence. On the 16th March 1983, the death sentence was commuted to one of imprisonment for life.

5. The facts need only be briefly stated. On the 7th June 1981, the appellant strangled the victim to death with a piece of nylon knotted around his neck causing death by asphyxiation. In his cautioned statement, the appellant admitted to having killed the victim in the course of a quarrel over some clothing which he believed the vicitim to have stolen from him.

6. The grounds of appeal are that (1) the appellant was at the time of the murder under 18 years of age and accordingly a sentence of death should not have been passed, and (2) that by virtue of new and admissible evidence which was not made known to the learned sentencing judge, the sentence of death imposed upon the appellant was not a proper sentence.

7. Section 70 of the Criminal Procedure Ordinance is relevant. It provides:

    "(1)     Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court at the time the offence was committed he was under the age of 18 years; but the court shall direct the finding of the jury to be recorded, and thereupon the court shall order such person to be detained in safe custody in such place and manner as the court thinks fit, until Her Majesty's pleasure shall be known.

    (2)    The judge shall immediately report the finding of the jury and the detention of such person to the Governor who shall order such person to be detained in such place and under such conditions as he may direct.

    (3)    The Governor at any time may order that a person so detained shall be released on licence, in such form and subject to such conditions as the Governor may direct and a licence so issued may be revoked at any time and on such revocation, the person may be arrested without warrant."

8. By affirmation filed for the purpose of this appeal, the appellant states that he was in truth 11 days below the age of 18 on the day of the murder, his genuine date of birth being the 18th June 1963 and not 14th September 1960 as stated on his Hong Kong Identity Card.

9. According to his affirmation, the appellant "sneaked into Hong Kong" in August 1978 and knowing no one here and therefore being obliged to make a living by himself, misrepresented his age to the Immigration Department in order to obtain an adult's identity card. He did not reveal his true age to the Court at trial.

10. To prove the appellant's true age, five documents are exhibited before this Court, viz. -

(i)    The original Notarial Certificate issued by the Notarial Office, Weiyang County, Guangdong Province confirming that he was born on 18th June 1963.

(ii)    The photostat copy of his Birth Certificate showing that he was born on 18th June 1963. This Certificate was issued from the Qiuchang Health Centre in Weiyang County.

(iii)    The original Notarial Certificate issued by the Notarial Office of Weiyang County containing a letter from the Headmaster of Guanshan Primary School to the effect that the appellant attended his school as a Primary 1 pupil in September 1970 when he was seven years of age. The school was in 1970 until 1988 known as the Hongshan Primary School.

(iv)    The original Notarial Certificate issued by the Notarial Office of the same County containing (a) a letter from Xiangshan Middle School of that County to the effect that the appellant studied in that school as a Form 1 pupil and he was then 12 years old, and (b) there was also a certificate issued by the same school showing that the appellant was 14 when he graduated in July 1977.

(v)    The copy of the memorandum of the Government Chemist appending his report on examination of document (i) and document (iv) (b), but drawing no conclusion as to their authenticity or otherwise.

11. The appellant concludes his affirmation with the prayer that the sentence of death be set aside and that an order that he be detained until Her Majesty's pleasure shall be known be imposed in substitution.

12. Insofar as the documentary evidence is concerned, the Crown indicate that they are not in a position to say whether the relevant documents are forged or authentic.

13. By s. 83V(2) of the Criminal Procedure Ordinance the Court of Appeal shall receive the evidence (a) if it appears to this Court that the evidence is likely to be credible and would have been admissible at trial; and (b) this Court is satisfied that it was not adduced at trial but there is a reasonable explanation for the failure to adduce it.

14. There seems to be no reason why authorities in China should take part in any attempt to deceive the authorities in Hong Kong in this respect. The documents exhibited bear all the appearance of being genuine. We are therefore disposed to accept these as authentic.

15. It is not in dispute that such documents would have been admissible in the Court below.

16. The reason for the failure to produce evidence of the appellant's age at his trial is, according to his affirmation, it was only recently that it came to his knowledge that death penalty could not be imposed upon an offender who was under the age of 18 years at the time of the commission of the offence. He did not know, at the time of his trial, that the death sentence should not be passed upon him due to his age, and there is nothing to suggest that his legal advisers, who apparently relied only on his identity card, had reason to suspect that he was at the time of the murder under 18 years of age. We are therefore satisfied that there is a reasonable explanation for the failure to produce evidence of his age.

17. In spite of the documentary evidence as to age, we were nevertheless of the view that we should, ex abundante cautela, ask for medical examination for the purpose of ascertaining the appellant's age, if possible. We accordingly adjourned the hearing of the appeal for this purpose. We now have the medical report.

18. Professor C. Metreweli of the Department of Diagnostic Radiology and Organ Imaging of the Faculty of Medicine at the Chinese University wrote:

    "I can categorically state that there are no radiological methods that if applied today to Mr. Ip would be able to determine whether he is 28 or 30 years old. Furthermore it would not have been possible to accurately estimate Mr. Ip's age had radiological bone dating been attempted in 1982."

19. Dr. Hans-Peter Philipsen of the Oral Biology Unit of the Prince Philip Dental Hospital of the University of Hong Kong suggested that if individual teeth (- and it may well have to be five to eight teeth) be removed from the person concerned then an age estimation by histologic examination could be made, but one may have to accept an average error of plus or minus 3-8 years". The doctor "cannot envisage a reliable method of age estimation other than histologic evaluation of sections of teeth removed from the person in question".

20. In the light of these expert opinions, it would appear that no conclusion could be drawn on the appellant's age except by having his teeth removed for examination. And according to Dr. Philipsen, the best examination, recently carried out by Dr. Xu Xiaohu of the Faculty of Forensic Medicine, Sun Yat-sen University of Medical Sciences, China, would still arrive at an average error of plus or minus three years, or less, depending on the number of teeth available for examination.

21. We therefore rely on the documentary evidence.

22. The next matter that caused us concern is the way s. 70(1) is drafted, in particular the words "if it appears to the Court ... he was under the age of 18 years". It was thought an argument could be made that in the present case it did not appear to the sentencing judge that the appellant was under 18 years of age. Upon reflection, we are persuaded that this Court may put itself into the shoes of the sentencing judge and if it appears to us now that the appellant was at the relevant time under 18, then an order may properly be made for his detention in custody until Her Majesty's pleasure shall be known.

23. In the light of our view as to the appellant's age, we allow the appeal, and order that the death sentence, and the commuted sentence of life imprisonment be set aside. In substitution, we order that the appellant be detained until Her Majesty's pleasure shall be known.