HKSAR v. PANG CHO YIN AND ANOTHER

CACC123/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.123 OF 1998

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J U D G M E N T

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Pang, J. : (delivering the judgment of the Court)

1. The Applicants Pang Cho Yin and Tsui Yuk Ming were jointly charged and tried with the murder of Choi Sze Wan, a girl aged 15, before Madam Justice Beeson sitting with a jury in January and February 1998. The jury returned a unanimous verdict of not guilty on the murder charge but found both Applicants guilty of manslaughter. On 20 February this year, each Applicant was sentenced to 15 years' imprisonment. They now appeal against that sentence.

2. The evidence of the case was that the Applicants met the victim in a discotheque in the early hours of 6 February 1997. The girl was at the time under the influence of a cocktail of drugs.

3. At around 8 o'clock the same morning, the victim, the 1st Applicant and another young man nick-named "Yin Chai" left the disco and took a taxi to premises at the back of a pawn shop in the Yau Ma Tei area. The group was later joined by the 2nd Applicant. In the shop premises, there was evidence of indecent fondling and attempted sexual intercourse with the victim but there was, however, no forensic evidence to substantiate intercourse, whether forceful or otherwise.

4. Sometime later in the morning the victim indicated that she was about to leave the premises. The men were apprehensive that she might report their activities to the police and there resulted a concerted effort to prevent her from leaving.

5. In the ensuing struggle the Applicants and the third person "Yin Chai" forcefully held the girl down until she had lost consciousness and stopped moving. There was no evidence that any of the persons involved had tried to resuscitate the girl or that any attempts were made to summon help. At this point the group realized they had killed the girl whereupon the 2nd Applicant told the others to remove the body to the lane behind the pawn shop. The body was pushed into an alcove formed by discarded cartons and a vegetable basket was placed over the deceased's head to prevent detection of the body. The evidence suggested that this took place at between 10 to 11 o'clock that morning.

6. The body of the deceased was subsequently discovered at 1:35 in the afternoon and the police were summoned. The victim was certified dead before arrival at the Queen Elizabeth Hospital. Post-mortem revealed that death was caused by suffocation.

7. In passing sentence, the learned trial judge made the following observation :-

"There was no attempt, despite the time of day and the fact that they were in a busy area, to call a doctor, or to seek help, or even to make an anonymous call, alerting the police, to the existence of the unconscious girl in the street. This appears to have been a concerted effort by the two defendants and the third man to silence a 15 year old girl by a brutal attack that they may have known was likely to have fatal consequences, or serious consequences.

In my view, this was manslaughter closely akin to murder, manslaughter of the worst kind."

Further on, she observed :-

"I note, in particular, the lack of any action betokening remorse immediately after the incident, the lack of any call for help, and nothing but a callous disposal of the body that ensured that if there was any possibility of lives still existing, no-one else would be able to help either."

8. In her Reasons for Sentence, the learned judge referred to the cases of Attorney General v. Wong Yim Ping Application for Review No.7 of 1994 and R. v. Lee Sau Ping, Cr. App.189 of 1995.

9. Mr Mullick, Counsel for the Applicants, criticized the judge for failing to indicate a starting point when passing sentence. It was suggested that with the present term of 15 years' imprisonment, the starting point adopted by the learned judge must have been one which was above 20 years. We wish to reiterate that in offences of this nature, a sentencing judge is not required to indicate a starting point as the range of sentence available to him is entirely dependent on the criminality of the activities.

10. Having gone through the Reasons for Sentence, there is nothing to suggest that the learned judge had either overlooked or had failed to take into consideration the mitigating factors available to the Applicants as listed in paragraph 6 of the Perfected Grounds of Appeal against sentence.

11. Mr Mullick suggested that the sentence passed should have been in the region of 10 years. We are of the view that this is a bad case of manslaughter as the sentencing judge rightly observed and her Reasons for Sentence cannot be faulted in anyway. The sentence of 15 years was at the top of the appropriate range but it is neither manifestly excessive nor is it wrong in principle. The application for leave to appeal against sentence is therefore dismissed.

Stuart-Moore, J.A.:

12. I entirely agree with the judgment given by Pang J. It should be borne in mind that if the courts were to impose a sentence in circumstances such as these which is little different to the sentence that would have been imposed for the offence which the offenders are trying to conceal, then they will be perceived as sending out a signal that is palpably wrong. It is important that those who cause the death of their victim in the course of conduct designed to prevent the detection of crime should appreciate that the consequences of this will generally be very serious. If the crime in this case was attempted rape or a serious indecent assault upon an underage girl by one of the Applicants, in the presence of the other Applicant and another man, they would certainly have expected a substantial sentence for that crime.

13. The trial judge was right to have imposed a sentence that was significantly greater than the sentence they would have received in the event of conviction for a serious sexual offence, whatever that may have been. Only these Applicants know what it was that they were so anxious to cover up.

14. The consequences of their actions were tragic in the extreme and they must now pay the penalty for the dreadful crime they have committed.