SECRETARY FOR JUSTICE v. CHEUNG KA MAN

HCMP2218/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2218 OF 2004

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J U D G M E N T

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1. This is an application by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap. 221 (“CPO”), for a determination under section 67C(3) and (4) of the CPO.  The respondent, Cheung Ka Man, belonged to a class of prisoners who were convicted of the offence of murder at the time when they were below the age of 18.

Background

2. The respondent was born on 10 February 1973.  On 11 August 1992, he was convicted before Bewley J sitting with a jury of one count of murder.  On the same day, he was sentenced to be detained until Her Majesty’s pleasure is known.  The offence took place on 29 January 1991.  At the time, the respondent was one month short of his 18^th birthday.  

3. The respondent’s appeal against his conviction was dismissed by the Court of Appeal on 19 February 1993.  The background of the case was summed up by Nazareth JA in the judgment of the court :

“On the morning of 29^th January 1991, the body of 13 ½ year old Lam Pui-yu was found by her neighbours on the staircase between the 18^th and 19^th floors of On Hei House, Tuen Mun.  Suspicion fell upon the applicant [Cheung Ka Man] who was her boyfriend.  The evidence was that he was very attentive, phoned her every day and went to collect her at the fashion shop where she worked most evenings.  He gave her a pager and was described as possessive, jealous and as having shown temper and become agitated when she talked to other boys.  Shortly before her death, her affection for him seems to have cooled.  Also, whereas she used to go back to her home every night about 11:30 until a week before she died, she then started coming home later and on one night not until 4 a.m.

About that time, a second boyfriend Tsang Kwok Chuen, whom she had known in 1988, reappeared on the scene.  They met by chance on the 26^th January 1991 and then by arrangement on the following day and on the 28^th January.  On the latter evening she dressed better than she usually did and they went out for a meal and then to a video game centre till about midnight.  After that they went on to a karaoke club where she made a telephone call to the applicant.  It was not until 2:20 a.m. that Tsang took her home by taxi to On Hei House, where she alighted and he continued on to his home.

The police were called next morning when her body was discovered by her neighbours and a number of articles were found on or near the body, but no handbag or means of identification.  There was a white scarf with part of it in her mouth and the remainder outside, badly burned.  The scientific evidence officer who attended at the scene confirmed what was shown in photographs exhibited, i.e. that almost all the deceased’s upper clothing was burnt, her face and mouth were burnt and he described that part of a white scarf that was in her mouth ‘as a sort of mouth gag’.  The evidence of the forensic pathologist who carried out the post-mortem examination was that the body was set alight after death.  He found deep bruising under an abrasion on the forehead which he said occurred before death and could have been caused by being hit by or against a hard object, including a wall.  The gag had been placed between the deceased’s teeth before death and would have been inserted with some force, but it was not blocking the airways and did not cause asphyxia.  The cause of death in his opinion was mechanical asphyxia, which could have been caused either by manual pressure or the scarf round her neck.

On the 29^th, at about noon, the applicant telephoned his workmate Leung Ka-sing and told him he was coming to work and wanted his wages paid into Leung’s bank account.  He then told him he had killed his girlfriend, saying ‘I got so angry on the impulse of the moment’.  Half an hour later the defendant arrived at work, but later disappeared and was not seen again until the 26^th March, some two months later, when he walked into the Tsuen Wan Police Station accompanied by his parents and his solicitor.

He made a cautioned statement which was not challenged.  In it he said he did not meet the victim on 28^th January after work as usual because he himself was working late, but that he spoke to her on the phone and that she told him she was going out with a friend that evening.  At 9 p.m. she phoned him and said she would be back after one o’clock and would phone him later in the evening, but she never did.  Nor did she answer the applicant’s pager calls which he had given her so that he could keep in touch with her.  He got so worried that he went to her home, getting there about 12:15 a.m. and waited for her.  She arrived about three hours later, at 3:05 in the morning and he asked her where she had been.  The girl said she wanted to talk but because it was cold, they went up to the 18^th floor, and there she said she wanted a separation from the applicant.  At this, the applicant deliberately cut his hand with a cigarette lighter.  The girl told him not to be so silly and cut her own hand in the same way.  There then appears in the applicant’s statement the following crucial passage which the judge read verbatim in his summing-up :-

‘She then said she had done something she felt regretful towards me. I asked her why.  She did not say but hesitated.  After about ten minutes she told me she had another person outside.  I said it did not matter.  She said that would not do, no, as she had had sexual relation with him.  I was stupefied and thus grabbed her neck with my hands and asked her why.  She did not utter a sound.  I suddenly saw that her whole face had turned black with blood coming out from her nose and mouth.  I then let go of my hand at once and called her, but she did not respond.  I pushed her.  She did not have any motion.  Following that I became stupefied.  Then I looked at her, wondering to myself that she did not behave like that formerly.  She played me, relying on her beauty.  After that I used a cigarette lighter to light her hair.  I did not know what I was doing either after lighting her hair.  I left after about three or four seconds and I reached the ground floor about a quarter to five.  After that I hailed a taxi to go back to Tsuen Wan.  I came to know what I did and what the matter was only after I had boarded the taxi.’

In answer to a question he said he used his hands to grab her neck and demonstrated that to the police recording officer.”

4. Some two months after the incident, on 26 March 1991, the respondent surrendered himself to the police and has been in custody since.  At the time of this hearing, he has been in custody for 13 years and 9 months.  At the trial, the respondent offered to plea to manslaughter but was rejected by the prosecution.  The respondent elected not to give evidence and no evidence for the defence was called.

5. For reasons which I have stated in paragraphs 19 to 28 in HKSAR v. Lai Hung Wai, HCMP2208/2004 and paragraphs 5 to 7 in HKSAR v. Yeung Mok Yeh and Kwan Wing Kei, HCMP2209/2004 and HCMP2211/2004, I consider the appropriate sentence for the respondent to be one of a fixed term imprisonment.

6. The respondent has given his consent through his counsel, Mr Coghlan, that the provisions of sub-section 4(a) and (b) are applicable to him.

7. The respondent quitted school after Form 1 and started associating with undesirable elements in his neighbourhood.  Before he committed the present offence, the respondent had two previous convictions.  In May 1990, he was convicted of the offence of being a member of a triad society and he was placed on probation for 12 months.  He was found to be in breach of the probation order in 1991 and was sentenced to be detained in the Training Centre.

The Correctional Services Report

8. According to the Correctional Services Report dated 21 June 2004, there were two instances when the respondent was recorded to have breached Prison Discipline Regulations.  The latest was in September 1997 when he was found in possession of a plastic lighter.  The report observed that at the beginning of the respondent’s incarceration, he came across as to be lacking in motivation towards the treatment programmes.  However, over the years of constant counselling, the respondent had become positive towards his rehabilitation.  He has shown some sense of remorse towards his past misdeeds and gained insight into the future.  His work performance is stated to be satisfactory and his overall performance is graded “A”.

9. Over the past several years, the respondent had sat examinations held by the Pitman Institute and the London Chamber of Commerce and Industry and obtained passes in a number of elementary courses.  Since the year 2000, he participated in evening remedial classes in English and Mandarin.  Also in the same year he passed the English Office Skills examination held by the Pitman Institution.  His education performance over the years was rated as “satisfactory”.

The Psychological Reports

10. There are two psychological reports before me.  The first is prepared by Mr Francis Butt and is dated 29 November 2004.  The second report is prepared by Dr Anita Leung and is dated 8 December 2004.

11. Mr Butt is of the opinion that the respondent has accepted full responsibility for the offence.  The chances of the respondent reacting to disappointment by means of aggressive behaviour as in the case of the index offence is, in the future, unlikely.   The risk of violent recidivism is rated as “low”.  The psychologist, however, has some reservations and states that the respondent has various psychological issues which have yet to be resolved.  In the final paragraph of the report, Mr Butt states :

“CHEUNG Ka-man is assessed to be an individual who is both suppressive and repressive.  As a person with a passive-dependant orientation, he has the tendency to seek for constant nurturance and emotional attachment.  In view of his dedication and devotion to his personal goal especially in the area on heterosexual relationship, his fear of rejection or denial is intense.  Through the process of retrospection and treatment, this personality weakness appears to have been improving gradually.  Instead of reacting to perceived abandonment or betrayal in a violent manner, there are signs suggesting that he has learned to have better control over his anger.  In fact, the collective assessment data reflected his chances of responding to emotional dissatisfaction through violence are low.  Nonetheless, there are definitely more rooms for improvement in his skill in emotional handling.  Supportive psychological services are deemed necessary for his rehabilitative procedures.  In any event, his risk of violent re-offending is minimal.  His prognosis is said to be promising.”

12. Mr Butt’s findings are also reflected in the report by Dr Anita Leung.  Tests performed by Dr Leung suggest that the respondent’s self-efficacy is just below average, indicating that his sense of self-efficacy or personal control is inadequate.  Dr Leung expressed her reservations in the respondent’s competence in dealing efficiently with stressful situations.  Dr Leung states in her concluding paragraphs of the report :

“In the past 12 years of imprisonment he has learnt to adjust to the environment by being complaint in a passive and helpless way.  He is neither anti-social nor anti-authority.  He is able to empathize with others’ feelings and respect others.  His risk of recidivism or posing danger to society is very low.  Yet, his coping resources are barely adequate in times of stress or crisis.

To prepare him to integrate back to society, a definite date of release would help motivate him to make plans for his future realistically.  Some intellectual stimulation to help him enhance his functioning, and psychological consultation to facilitate him to make sense of his experiences and strengthen his coping resources would be beneficial.”

The Psychiatric Report

13. In the psychiatric report prepared by Dr C.H. Yuen dated 8 December 2004, the doctor stated that the respondent committed a crime of passion which might have been an impulsive act.  He went on to state that it is difficult to predict whether the respondent would lose his common sense and act destructively again when faces with similar circumstances.  There is a recommendation at the end of the report that more psychological exploration to deal with unresolved psychological conflicts might be beneficial to the respondent.

The Social Welfare Report

14. Based on the contents of the Social Welfare Report dated 28 July 2004, the respondent’s family appears to have been supportive.  The parents and younger sister of the respondent had paid regular visits in the past.  The visits had become less frequent in the recent years, however, family members still maintained occasional correspondence with the respondent.

The appropriate sentence

15. The background of this case is not dissimilar to that of HKSAR v. Lau Kin Hang, CACC357/1997 (unreported).  In that case, the Court of Appeal substituted a determinate sentence of 29 years for the sentence of life imprisonment imposed by the trial judge.  The applicant Lau was 16 years of age when he killed his former girlfriend.  The applicant and the deceased had an argument over the break-up of their relationship.  The deceased was killed by heavy blows to her chest which tore her liver and pulmonary artery.  There was also evidence that the deceased had been strangled with a coat hanger.  Leung JA (as he then was) in giving the judgment of the court, said :

“The applicant right from the start admitted the killing and indicated that he would plead to manslaughter.  That request was refused by the prosecution.  …

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. 

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.  …”

16. Bearing in mind the Court of Appeal’s observation in Lau Kin Hang, I am of the view that the appropriate determinate sentence for the present respondent is a term of imprisonment of 29 years.  I note also that the respondent had spent some efforts in educational pursuit but his achievement and results obtained appear to be medicore.  There is also a significant absence of the respondent having participated in volunteer communal work, social awareness programmes or in religious activities.  Had the respondent’s motivation been otherwise, I would have regarded such efforts to be a cogent factor in post-sentence mitigation.  There remains, however, the fact that the overall performance of the respondent was graded as “A”, and that he had passed a number of public examinations albeit at the elementary level.  For his efforts, I am prepared to give a discount of one year from the sentence of 29 years so that the resulting term is one of 28 years’ imprisonment.

17. For the reasons I have stated, I would exercise the powers vested in me pursuant to section 67C(4)(b) of the CPO and order that the sentence passed on the respondent by Bewley J on 11 August 1992 be quashed.  The sentence is substituted by a sentence of 28 years’ imprisonment.