HKSAR v. LAW CHUNG HIN AND ANOTHER

CAC C 133/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 133 OF 2011

(ON APPEAL FROM HCCC NO. 275 OF 2010)

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REASONS FOR JUDGMENT

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Hon Stock VP (giving Reasons for Judgment of the Court):

Introduction

1.  These applicants were arraigned as the second and third defendants ( D2 and D3) upon an indictment containing one count of murder alleging that they and a man called Mok (who was D1) on 18 January 2010 murdered Ng Fong Kai.

2.  They pleaded not guilty to murder but guilty to manslaughter.  The plea was accepted by the prosecution and on 21 March 2011 they were sentenced by Madam Justice Poon as follows:

D1: eight years’ imprisonment;

D2: seven years three months’ imprisonment; and

D3: eight years’ imprisonment.

3.  D2 and D3 applied for leave to appeal against sentence.  On 9 November 2011, we granted leave, treated the hearing of the applications as the appeals, allowed the appeals, set aside the sentences in the court below and substituted in the case of D2 a sentence of 5 years’ imprisonment and in the case of D3 a sentence of 6 years’ imprisonment.  We said we would give our reasons later. These are the reasons.

The Facts

4.  The facts of the case are amply set out in the summary of facts which were agreed:

“GENERAL BACKGROUND.

This tragic incident arose out of a dispute between two groups of young men aged between 14 years and 19 years at the time. The three accused persons were all members of or followers of members of the Wo Shing Wo triad society. Another associate, named Kam Mo Tat, claimed to NG WAI-LUN (D3) to have been beaten up by another group of young men, including the deceased victim, NG FONG-KAI (aged 15 years, also a member of a triad group), in December 2009 at the Universal Cyber Café. Kam had asked D3 to assist him in getting revenge on the members of this group. In turn D3 approached MOK TSZ-Yeung, D1 requesting him to arrange a revenge attack on the other group of young men.

On the night 14^th January 2010 Dl and D3 assembled a group of between 15 to 20 young men to carry out a revenge attack. They went to Wong Tai Sin MTR station, gathered together and left for Lung Chi House where the attack upon the deceased and his 4 friends took place.

THE ATTACK.

Towards midnight on the 14^th January 2010 NG FONG-KAI (aged 15 years) and his 4 friends were sitting around a chess board table in a playground outside Lung Chi House (Group A). They were chatting and smoking. Shortly after midnight on the 15^th January 2010 they were approached in an aggressive fashion by the group of young men that included the 3 defendants (Group B). One of group A asked “What’s up?” There was no answer but Dl said, “It’s them.” The attack started immediately.

Group A were outnumbered by several to one. They were attacked mainly by punches and kicks. But, at least two members of group B used bottles of “Jolly Shandy” as weapons. The attack seems to have lasted several minutes. All of group A suffered some assault and injury.

Several of Group B, including all 3 defendants, took part in kicking and punching Ng Fong-kai. D1 appears to have lead this individual assault by dragging Ng Fong-kai out of an “arbour” and kicking, punching and using his knees to assault him. Finally D1 stamped or jumped down upon Ng’s body after running at him. The attackers in group B then ran away from the scene. Ng Fong-kai was lying on the ground and appeared to be unconscious.

An ambulance attended the scene. Ng Fong-kai was taken to hospital. His symptoms included low blood pressure and blood in his abdominal cavity. Emergency surgery was performed on him. Unfortunately, this was not successful and he died shortly after midnight on the 18^th January 2010.

AUTOPSY REPORT.

Dr. Chiao Wing-fu is a Senior Medical and Health Officer, attached, at the time, to the Kowloon Division of the Forensic Pathology Service. On the 21^st January 2010 he carried out an autopsy on the body of Ng Fong-kai. The most significant findings were as follows:

1. Several bruises and abrasions and “bruised abrasions” were found on Ng's body.

2. There were scars consistent with surgical procedures in several places on Ng’s body.

3. Internally nothing remarkable or untoward was found on most of his internal organs and skeleton.

4. Toxicological analysis indicated only the presence of drugs administered as part of proper hospital treatment.

5. Dr. Chiao certified the cause of death as “rupture of the liver”.

6. In the Dr. Chiao's expert opinion this would have been caused by “blunt force trauma to the abdomen.” Further, in his opinion such blunt force trauma could have been caused by “a forcible blunt force impact over the abdomen, such as bumping, kicking, stamping and heavy punching.”

In a further report dated 9^th January 2011 Dr. Beh Swan Lip a Clinical Associate Professor in Forensic Pathology in the Department of Pathology, Faculty of Medicine at the University of Hong Kong states that he has “no doubt” that the cause of death was a blow delivered by “running, jumping and landing on the front of the body of the deceased victim while he was lying faced up on the ground.”

INTERVIEWS WITH THE DEFENDANTS.

Dl Mok Tsz-yeung.

Dl was arrested for the offence of murder on the 21^st January 2010. After being cautioned he denied being at the scene and having anything to do with the matter. Between 6.07 p.m. to 8.12 p.m. he was interviewed under caution and the interview was recorded on video. He said he had not gone to the relevant area. He later said he had done so, with D3. He persisted in his denial that he had taken any part in the incidents that lead to the death of Ng Fong-kai. He did say that he had a Wo Shing Wo big brother nicknamed, “Fei Pau.” He also mentioned Kam Mo Tat, but seemed to suggest that he himself was in dispute with Kam.

Despite his denials as detailed above by his plea of guilty and his agreement to this summary of facts he has now accepted that he did take part in the attack upon Ng Fong-kai and his friends as set out above.

D2 Law Chung-hin.

D2 was arrested for the offence of murder on the 21^st January 2010 at Wong Tai Sin police station. After caution he said, “It was Ho Lok (D1) who stamped him to death.” Between 2.20 p.m. to 3.01 p.m. on the 23^rd January 2010 D2 was interviewed under caution and the interview was recorded on video. D2 admitted having assaulted one of group A with a Jolly Shandy bottle and having taken part in the attack on Ng Fong-kai. He said he had kicked his leg, “a few times only.” He said that it was Ho Lok (D1) who had pushed Ng Fong-kai to the ground and had jumped or stamped on his chest.

D2 stated that he had visited Ng Fong-kai in hospital. The reason he gave for this was that he appeared to want to apologise to Ng about what had happened because he felt remorseful. He reiterated in the interview that he was “very remorseful” about what had happened.

D3 Ng Wai-lun.

D3 was arrested for the offence of murder on the 19^th January 2010. After caution he said, “… on the night the case happened, my big brother Ho Lok (D1) blew the whistle to ask me to come out and help.” Between 4.31 p.m. to 5.39 p.m. on the 20^th January 2010 he was interviewed under caution and the interview was recorded on video. In this interview he said that Kam Mo Tat had asked him for a “favour.” Despite being reluctant to help him he had eventually contacted his “big brother” (D1) and asked him to help Kam. D1 was also reluctant but eventually as a favour to D3 agreed to do “enlistment”. He goes on to describe meeting on the 14^th January 2010 in order to attack, what turned out to be Group A. He indicated that he was friend of “Ah Kai” [Ng Fong-kai]. He described Ah Kai being “trampled” and everyone then running away. He said after “his friend” Ah Kai had passed away he had felt very remorseful.

By his plea of guilty and his agreement to this summary of facts D3 has accepted his role in the attack on Ng Fong-kai as set out above.”

The defendants

5.  Whilst there was no application before us by D1, his role in the offence and his background was relevant, since the gravamen of the complaint by both applicants was that the judge erred in drawing no distinction for sentencing purposes between D1 on the one hand and the applicants on the other.

D1

6.  D1 was aged 19 years at the date of the offence.  In October 2009, which is to say only a few months before this killing, he was convicted of assault occasioning actual bodily harm.  It was an aggravating feature in his case that the present offence was committed whilst he was on police bail for the earlier incident.

7.  The reports on him – the psychologist’s report and a probation officer’s report – which were before the judge, reveals D1 to be a person with psychopathic tendencies, an arrogant bully who claimed to have about 20 followers and who claimed as well to have been involved in numerous gang fights.  He admitted that it was he who had arranged the revenge attack in this case.  It is noticeable that when first interviewed by the police, he denied any involvement in the incident.  He was described by the psychologist as “a violent, rebellious and manipulative person.”

8.  It is clear, in other words, that he was the prime mover amongst the group – including these two applicants – who associated with him; and it is clear as well that he bears prime responsibility for the death of the young man who was the victim in this case.

9.  We would say in passing that it is, on its face, surprising that his plea of not guilty to murder was accepted.  It is difficult to see what intention, other than one to cause serious harm, could be in the mind of an assailant who takes a run up to, and deliberately jumps upon, the stomach of a youth lying on his back.

D2

10.  At the date of this offence, D2 was aged 14 years.  In March 2010 he had been convicted of assault with intent to rob in respect of an offence committed prior to this killing.

11.  He intimated at an early stage his intention to plead guilty to manslaughter and after the pre-trial review, when the prosecutor indicated that he was willing to accept the plea and when D1 and D3 had indicated that they intended to plead not guilty, he offered to give evidence on behalf of the prosecution.  That offer was declined.

12.  The sentencing judge had the advantage of two reports in respect of D2: a probation officer’s report and the psychologist’s report, both of which we have read and which we commend for their thoroughness and utility.

13.  The reports carry an account of a youth from a broken home who demonstrated wayward behaviour at the Primary Three stage of schooling and who was expelled from school in Form Two.  At the age of 13, he joined a triad society.  It is evident from the reports that he was capable of constructive self-reflection which render him suitable for counselling and, further, that he has demonstrated genuine remorse for the offence, as was evident from his visit to Ng Fong Kai at the hospital before Ng died.

14.  It will be noticed as against him that he assaulted one of the attacked group with a bottle.

15.  One matter which concerned us were the statements in his interviews with police that he had kicked the victim after D1’s running and jumping attack on Ng and that he had kicked the deceased in the head.  If correct as an account of what in fact happened, these would be serious facets of his behaviour affecting sentence.

16.  In this regard, we noted that the summary of facts makes no reference to those alleged admissions by D2.  It records merely the admission that this applicant kicked the deceased’s leg “a few times only”, although an earlier part of the admitted facts records that the three defendants took part in punching and kicking Ng.

17.  We see from the pathologist’s report considerable support for the contention that the victim was assaulted about his head; and the pathologist also refers to the statements made by this applicant.

18.  The question therefore arises upon what factual basis D2 was sentenced.  Why the prosecutor saw fit to omit from the summary of facts these cardinal concessions apparently made by D2, we cannot say; but we are told by Mr Hemmings who appears for him that they were not contained in the original draft summary of facts although had they been, they would not have been admitted by D2.  He points out as well that the witness statement made by a neutral observer of the events suggests that after the jumping by D1 on the victim’s body, the group scattered with no suggestion of any attack upon the young man after that particularly horrific episode.

19.  The judge makes no allusion to the factual basis, in this particular regard, upon which she sentenced D2.  Despite the submissions of Ms Lau, for the respondent, to the contrary, it seemed to us that we were in the circumstances bound to assume that the judge sentenced on the basis of the summary of facts and no more; and the result at which we arrived in relation to D2 should be viewed in that light.

D3

20.  D3 was aged 16 years at the date of this offence.  He had two previous convictions, each for an offence of affray.  For those offences, he was convicted in May and September 2010 but was on bail pending trial when he took part in the events that led to Ng’s death.

21.  The reports in this case showed him to come from a solid and respectable family.  The unusual feature of his history is that in 2003, in consequence of a medical condition, he began to lose his hair.  He then became a target of teasing and ridicule by classmates – the type of cruelty to which, unfortunately, schoolboys often resort – and his mood changed and he became antisocial.  He then became acquainted with undesirable peers – in other words, triad elements – who accepted him into their circle. This in turn sealed his bond with them and rendered him susceptible to doing whatever he sensed pleased them.  The psychologist proferred the opinion that he would benefit from the help of professional therapists to assist him to cope, if possible, more constructively with his illness.

22.  It will be noted as against him that it was he who had instigated the whole affair in the sense that, at Kam Mo Tat’s request he, D3, asked D1 to help Kam secure revenge.

23.  It was put in mitigation on behalf of both applicants that neither contemplated the particular attack visited upon Ng by D1, namely, D1’s running jump at and upon Ng, the act which led to the rupture of Ng’s liver and to his death, although it was conceded – as indeed the pleas themselves implied – that something of the kind must have been taken by them to be a possibility in a gang attack of this nature.

Sentencing approach by the judge

24.  The judge noted the emphasis placed by counsel for these two applicants upon the fact that the beating and kicking of Ng by them was of an altogether different order from the particular attack by D1 which resulted directly in Ng’s death.  In that regard the judge said:

“The crux of the matter, however, is that each of them had chosen to join in an organised criminal gangs and set out to beat the deceased. Any person who attached himself to such an attack, whether or not he himself inflicted the injuries, bears equal responsibility for the acts of the co-accused. It is against the strength of authorities that in circumstances such as the present case blame should be apportioned amongst the defendants.

In fact, the basis for their pleas is obviously that all three defendants committed an intentional and unlawful act which caused the death, and that the act was dangerous in the sense that it was one which all sober and reasonable people realise must subject the victim to the risk of some harm.

Youth, family situation, ignorance, misguided loyalty, or misinterpretation of “yee hei” provides no excuses or mitigation for an offence of such gravity.

I consider a sentence of 8 years’ imprisonment appropriate in such circumstances for each of the three defendants.

In the case of D2, however, the indication of an early plea might have some bearing on the pleas of D1 and D3. I am prepared to knock off 9 months for that.

Whilst the reports or letters in mitigation might provide explanation as to the cause of this tragedy, I find nothing in them which reveal extenuating circumstances justifying a departure from that sentence.”

25.  It would seem from the papers before us that the facts of the earlier offences committed by each of the defendants were not placed before the sentencing judge.  If that is correct, then it is unfortunate and surprising.

The grounds of appeal

26.  On behalf of D2, it was said that the judge failed to take into account:

(1)   the fact that the actual role and degree of participation of each of the present applicants was significantly less than that of D1;

(2)   the favourable matters contained in the pre-sentence reports; and

(3)   the fact that D2 was aged only 14 years at the time of the offence.

27.  On behalf of D3, it was said:

(1)   that the starting point of eight years’ imprisonment was manifestly excessive;

(2)   that the judge did not pay sufficient regard to the different roles of the applicants; and

(3)   that the judge failed to take into account D3’s unusual personal circumstance.

Other cases

28.  The courts have shied in cases of manslaughter from providing guidelines because the facts underlying convictions for such offences vary enormously and appropriate sentences can range from probation to substantial terms of imprisonment.  Nonetheless, this particular category of conduct , namely, gang fights or gang revenge attacks resulting in obviously foreseeable harm but non-intentional death, is, regrettably, an all too frequent subject of consideration by the courts of this jurisdiction; not least as a feature of the scourge of triad membership and triad violence, luring youth into its wholly negative antisocial net.

29.  It is in this type of context that the courts have said that there must be some internal consistency of sentence so that those guilty of manslaughter in broadly comparable circumstances receive broadly comparable sentences: R v Ko Kam-hung [1991] 2 HKLR 433.

30.  In R v Kan Wah-cheung [1991] 1 HKLR 595, where the appellant and others had attacked a group of persons, including the deceased, who had been making a noise outside a block of flats on a housing estate , the Court said, at 597:

“It may well be that the time has come when disputes which degenerate into fights, with or without the protagonists being armed, and in a public place – or more seriously in the close confines of a housing estate – from which a death results, should attract, upon conviction for manslaughter, a sentence of at least 5 years’ imprisonment after trial. Such sentence could be increased depending upon the degree of violence, the nature of the weapons used, the deliberate nature of the attack and the number of the attackers. Any person who attaches himself to such an attack, whether or not he himself inflicts blows, must consider himself at risk of a sentence of that quantum. It is a lamentable fact that a great many of these street fights concern youths or young persons. While section 109A of the Criminal Procedure Ordinance should be fully borne in mind by sentencing judges nevertheless youth, unless it be extreme youth, of itself may not be a strong mitigating factor.”

31.  In Attorney-General v Tam Ka Lok & Ors [1990] 1 HKC 201, five respondents who had triad affiliations took part in a revenge attack on two members of a rival group.  They were armed with weapons such as wooden poles, clubs, a knife and a water pipe and launched a concerted attack upon the two victims, one of whom was killed.  They each pleaded guilty to manslaughter.  The judge took a starting point of six years’ imprisonment for the manslaughter and imposed sentences between 18 months to 5 years’ imprisonment upon the respective respondents.  Two points of relevance to the present case emerged from that judgment: first, that the court took the view that the starting point of six years’ imprisonment was on the low side and, second, that it was appropriate for the identified ringleader or the striker of potentially fatal blows to receive a stiffer sentence than the others.

32.  In R v Ko Kam-hung, to which we have earlier referred, the applicant and others became irritated by a group of persons who were playing with remotely controlled model cars at a housing estate and the attacking group rushed down and attacked them.  The applicant punched and kicked the deceased, and whilst the deceased was on the ground, the applicant placed a large dustbin lid over the deceased’s head together with others and jumped up and down on it; conduct which resulted in the deceased’s death.  No weapons were used and there were no triad overtones to the incident.  The applicant, who had surrendered himself to the police, pleaded guilty to manslaughter and was sentenced to 8 years’ imprisonment, a sentence which the court considered to be “by no means inappropriate.”  The court took the remark in Tam Ka-lok that the starting point in that case of six years’ imprisonment was “on the low side” as indicating that that court had had in mind about eight years’ imprisonment as a starting point.

33.  In R v Wong Wing Yau [1992] 2 HKC 233, another one of the assailants who pleaded guilty to participation in the same attack as that covered by the judgment in Ko Kam-hung, above, had his sentence for manslaughter reduced from eight years’ imprisonment to four years’ imprisonment, the court noting that what had happened in that case was “a more or less spontaneous eruption of violence”, the assailants did not go to the scene armed and the use of the large dustbin lid was the spontaneous act of Ko in circumstances in which the applicant could not be assumed to have agreed to that particular conduct.  

34.  In HKSAR v Kong Yiu Kam and Lo Wai Ming, CACC 41/1999, 21 May 1999, unreported, there was a dispute over drugs and the attacking group went back the next day and set upon the deceased and beat him with fists and continued to kick him on the head whilst he was on the ground.  The court took the view that the starting point adopted by the sentencing judge of nine years’ imprisonment was on the high side but that the resulting sentences of six and seven years respectively were not amenable to justifiable reduction.

35.  In R v Cheung Chi–man, CACC 14/1992, 5 May 1993, unreported, the applicant pleaded guilty to manslaughter and was sentenced to eight years’ imprisonment.  A group of about 10 persons including the applicant approached the deceased and demanded to know whether he belonged to a triad society.  The group was armed with poles, steel pipes and wooden folding chairs and the deceased was beaten into unconsciousness, suffered a fractured skull and subsequently died.  The applicant was aged 19 years at the time of the offence.  The sentence was said to be within the proper range and the application was dismissed. 

36.  HKSAR v Mok Yu-chuen and another, CACC 269/2008, 5 November 2009, unreported, was a case involving a fight between two groups; a revenge confrontation as in the present case, in which the attacked group was bludgeoned with water pipes resulting in one death and the applicants were acquitted of murder but convicted of manslaughter.  One of the applicants was aged 14 years at the time of the offence and was imprisoned for six years and the other applicant was sentenced to imprisonment for seven years.  The applications for leave to appeal against sentence were dismissed.

Analysis

37.  The serious features of this particular case are that this was a planned attack, not a dispute which degenerated into violence; and that there were in the group to which the applicants belong a large number of assailants, much larger than the small group upon whom the attack was launched.  The case is also to be viewed in light of the fact that it was steeped in triad overtones.  The attack upon the deceased was prolonged and vicious.

38.  It is true that the group did not go armed with weapons such as knives or poles, but they had bottles which were used.  Moreover the act which caused Ng’s death was not a random occurrence as may be occasioned in the course of a two-sided fight.  This is an important feature of the case not to be overlooked: Ng was offering violence to no-one, at any stage of the incident.  Others in the group with whom he was peacefully sitting managed to make good their escape but Ng was deliberately dragged from the place where he was, into an open area specifically in order that he could be set upon by the gang; and the act of D1 in running to him and jumping on his belly was by its nature a highly dangerous and vicious act.

39.  Mr Luk SC for D3 sought to draw comfort from other cases in which weapons were used, but, as this Court so often seeks to emphasise, sentencing is an art which must be attuned to the particular facts.  There are some categories of case such as drug trafficking cases where sentencing policy has dictated a rigid approach but manslaughter cases tend to be at the other end of the spectrum, lending themselves necessarily to acute sensitivity to the facts of each case and the circumstances of each offender.  Given the facts of this case which we have highlighted it cannot justifiably be contended that the sentence imposed on D1 was in the least excessive.

40.  That said, we are satisfied that the judge erred in not distinguishing between the culpability of D1, on the one hand, and that of the applicants on the other.

41.  D1 was clearly the ringleader.  Tam Ka Lok, above, itself suggested that it was appropriate for an identified ringleader or the striker of potentially fatal blows to receive a stiffer sentence than the others.  It was D1 who led the individual assault on Ng by dragging him out of the arbor and it was he who deliberately struck the fatal blow, which was a particularly vicious blow.  He was as well the person who, albeit at D3’s request, assembled the assailant group in the first place; he was also several years older than the other two defendants and was the dominant personality in the group.  Although there are particular circumstances of aggravation in the cases of D2 and D3, their culpability and their individual circumstances, when compared with those of D1 merited different treatment from that accorded to D1.

42.  Those who join in triad related attacks, let alone attacks that result in someone’s death, must not be allowed to hope for lenience at the hands of a court on account of age; for it behoves the courts to send to the youth of this jurisdiction a strong deterrent message.  Extreme youth will sometimes warrant sentencing recognition but we note in D2’ s case that he has a previous conviction for violence for an offence committed shortly before the present offence, and that he was on police bail at the time of the present offence, an aggravating factor, and that he admitted to using a bottle on one of the assaulted group.  These are serious features of his conduct but it remains the fact that he was not directly party to the particularly vicious conduct by D1 that was the direct cause of death; that he pleaded guilty at the earliest possible stage; showed remorse which on the facts must be taken to have been genuine; and that his offer of evidence was taken by the judge to have been instrumental in the subsequently plea of guilty in the cases of D1 and D3.  Furthermore, unlike D1 and D3, he was not party to gathering or in causing to be gathered the group for the attack.  

43.  In all these circumstances, we considered an appropriate sentence in his case to be one of 5 years’ imprisonment.

44.  D3 was one of those who took part in the kicking and punching of Ng.  He it was who asked D1, at the request of another, to arrange the revenge attack, and the admitted facts tell us that he with D1 assembled the group to carry out that attack.  He is older than D2 by a couple of years but young nevertheless and several years younger than D1.  That said, this offence was committed whilst he was on bail for another offence of violence, clearly an aggravating factor.  There is no suggestion that he used a bottle in the course of the assault on the victim group and we know that he did not take part in the jumping on Ng’s body that was the direct cause of death.  In the result, his culpability lies, in our judgment, somewhere between the culpability of D1 and D2.  His personal circumstances are unfortunate in that it is clear that he suffered considerably in terms of self image because of the illness which resulted in hair loss and it may be that the attraction of misplaced camaraderie that comes from belonging to a group explains why he fell under the influence of young triads.  But there must be a significant limitation to the degree to which this can be taken to be a mitigating factor; for it is one thing to join a group, another to join a violent group and quite another to be an instigator of a revenge attack, let alone one that leads to somebody’s death; the death, in this case, of a youth.

45.  In all these circumstances, we took the view that a sentence of 6 years imprisonment was warranted.