HKSAR v. LAU KIN HANG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 357
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. On 13 June 1997, the applicant was convicted of murder after a trial before a jury. The killing occurred on 25 June 1996. At the time of the offence, the applicant was 16 years and 6 days old. He was sentenced to life imprisonment.

2. Subsequent to his sentence, the Offences against the Person Ordinance, Cap. 212 and the Criminal Procedure Ordinance Cap. 221 were amended.

3. The amendment in effect gives the sentencing court a discretion to impose on a murder conviction a determinate sentence rather than the mandatory life imprisonment where the offender is under the age of eighteen.

4. Although the applicant was sentenced before this amendment and he is out of time in appeal against sentence, the applicant nevertheless now asks us to grant leave to appeal against sentence out of time and to exercise that discretion in the amendment to assess and impose a determinate sentence.

5. This court has accepted in two previous cases R v CHENG Yat-ming CA592/96 and HKSAR v VO Van-hung CA417/94 that the amendment has retrospective effect. In the former case, the sentence of life imprisonment was reduced to a term of 28 years where the defendant was 17 years old. In the latter case defendant was under 18 years old and the sentence of life imprisonment was reduced to one of 29 years. That being the case, the question before us is what is the appropriate sentence in the circumstances of this case.

6. The applicant right from the start admitted the killing and indicated that he would plead to manslaughter. That request was refused by the prosecution. The deceased was killed by heavy blows to her chest which tore her liver and pulmonary artery. There was also evidence that the deceased was strangled with a coat hanger.

7. The evidence shows that the applicant had gone out with the deceased before. About five days before the killing, the two had met and they talked about their relationship. The applicant wanted the deceased to come back to be his girlfriend and the deceased agreed to give it a trial period. But five days later on the day of the killing, the deceased told the applicant that she had another boy friend and the applicant was not as good looking as her newly found one. The applicant became very angry. He told the jury that he lost his control and killed the deceased suggesting that he was provoked. The judge in his direction told the jury that he thought that they would "find that the prosecution have not proved that there was no provocation". Be that as it may, it is clear that in convicting the applicant of murder, the jury did not accept that there was provocation.

8. From the evidence, it appears that the killing was in the heat of the applicant's anger and there was little premeditation. The applicant took no weapon to commit the offence. Nevertheless, the killing was a brutal one.

9. The applicant is not suffering from any mental disability. The medical experts at the trial told the jury that the applicant was a normal person psychiatrically or otherwise and he would pose no danger to the society if released to the community. The Applicant has an unpleasant childhood, his father committed suicide when he was two years old. He had been abandoned and mistreated. He has a very immature personality.

10. We have considered all aspects of the case. We are satisfied that having regard to the age of the applicant, it is an appropriate case for a determinate sentence rather than an indeterminate one. We have taken into consideration the applicant's unfortunate background and the apparent lack of premeditation in committing the offence. However, we must remind ourselves that the killing was a brutal and senseless one. We conclude that the appropriate sentence in the circumstances is one of 29 years' imprisonment. Accordingly, we treat the application for leave to appeal against sentence out of time as the appeal against sentence and allow the appeal. We set aside the sentence of life imprisonment and impose a sentence of 29 years' imprisonment.