ATTORNEY GENERAL v. LI YING KUEN and Another

IN THE COURT OF APPEAL

Application for Review
1995, No.7

HEADNOTE

Respondents aged 16 and 17 pleaded guilty to counts manslaughter and blackmail. Trial judge ordered they be detained in a Training Centre. Application for review. Judge placed too much weight upon the interest of the offenders and failed to give sufficient weight to the interest of the society. Training Centre Orders quashed. Respondents are ordered to be imprisoned for five years on the manslaughter count and four years on the blackmail count and the sentences are ordered to be concurrent.

IN THE COURT OF APPEAL

Application for Review
1995, No.7

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The respondents pleaded guilty before Saied J. on 6th February 1995 to manslaughter and to blackmail. The first count had originally been one of murder but the court was prepared to allow the applicants to enter pleas to the lesser offence of manslaughter on that count. The manslaughter count particularized that the two respondents had on 29th August 1994 unlawfully caused the death at the rooftop of Chi Wo House, Wo Che Estate, Shatin, of Hung Siu-chung. The blackmail count particularized that the two respondents had, on 13th August 1994, with a view to gain for themselves, made an unwarranted demand of $500,000 Hong Kong currency from Hung Siu-bun with menaces.

2. The deceased, who was 13 years of age at the time of his death was last seen alive at 2 p.m. on Monday 29th August 1994. On the following day his body was discovered inside a pump room on the roof of Chi Wo House, Wo Che Estate. An ambulance officer called to the scene found that his mouth and nose were taped. His eyes were partially taped and his ankles, wrists and neck were tied with wire. Wire had been twisted four times around his ankles, eight times around his wrists and five times around his neck. The cause of death was certified to be "pressure on the neck" but the pathologist was not able to say whether the death occurred at the time when the wire was twisted around the neck.

3. Dr. Dickens of the Department of Pathology of the University of Hong Kong at Queen Mary Hospital said that it was a "distinct possibility" that the deceased might have accidentally strangled himself while trying to escape from "the bonds about his wrists which were attached to the wires around his neck". This may well explain why the court was prepared to accept the plea to manslaughter.

4. On 30th August prior to the discovery of the body the deceased's brother had received a pager message from someone claiming to be the deceased instructing him to go home and collect a letter from the mail box. The brother contacted his father who collected the letter which read:

"Your son is with us. I give you one day's time. Raise five hundred thousand dollars before 3 o'clock Wednesday, the 31st August. Collect the corpse if a report is made to the Police."

Both of the respondents were known to the deceased and his family and both had talked in the past of kidnapping the deceased. Both took part in a search for the deceased.

5. The 1st respondent, when interviewed by the police, said:

"Ah Sir, this case was done by me but I want to talk only after returning to the Police Station."

When the police interviewed the 2nd respondent he said:

"Ah Sir this case was done by Ah Kuen and I. Now I do not want to talk in the street, go to Police station and then talk."

At the police station the respondents were interviewed separately. They told the police that the deceased had gone with them to the roof of Chi Wo House to smoke; that an argument developed about borrowing a video game in the possession of the deceased, that a fight ensued and that the deceased was punched. The 1st respondent said that during the fight he had held the deceased around the neck from behind while the 2nd respondent had punched him. The 2nd respondent said that during the fight both he and the 1st respondent had held the deceased on the ground while he struggled. Both of the respondents said that after a time the victim became unconscious and they became scared that he would revive and report them to the police and that, to prevent this, they tied him up and left him in the position where his body was later found. They both said that they later decided to demand a ransom from the deceased's parents for his safe return and that they prepared a ransom note constructed by pasting Chinese characters from a newspaper onto a blank sheet of paper and placed it in the letter box of the deceased's family. This they said was done to deter the family from reporting to the police that the deceased was missing.

6. The 1st respondent was 16 years and 10 months at the time of the offence and the 2nd respondent was 17 years and 10 months. Both were considerably older than the deceased. Each had left school in 1992 and had held various jobs up until they became unemployed prior to the killing.

7. The judge before sentencing obtained psychiatric reports, psychological reports, detention and training centre reports and probation reports.

8. As regards the first applicant psychiatric reports came from Government Psychiatrists Dr. S.K. Leung and Dr. T.K. Lai. They are dated 27th February 1995. The conclusions, which are identically worded, make it quite plain that the doctors had co-operated closely in the preparation of their reports. Dr. Leung indicates as much but Dr. Lai does not. It seems to us that it would have been preferable for the doctors to have presented a joint report rather than separate reports, which at first sight, suggest conclusions arrived at independently. The conclusion was as follows:

"In my opinion, Li was brought up in a relatively deprived social environment and showed features of Conduct Disorder, although available clinical evidence is insufficient to establish a firm diagnosis of such. This index offences was most likely a reflection of his immature and impulsive character which lacks an empathic concern for others. He failed to perceive the gravity of their irresponsible action on the victim and even undertook further manoeuvre in the form of a blackmail to cover up their mistakes. Psychiatric intervention would play a limited role at present. Nevertheless, in view of his relatively young age, lack of a pervasive pattern of antisocial behaviour, and a motivation for change, I believe that Li would benefit from further detention and training in a disciplined environment, with emphasis on aspects like education, counselling, empathy learning and social skill training."

9. A Government psychologist Ms. Wu Kit-ying reported on 23rd February 1995 as follows:

"According to the present assessment, no particular symptoms of cognitive dysfunctioning psychotic features or intense emotional problems were found. Ying-kuen was considered as an immature young man who was lacking of future planning."

The Legal Aid Department obtained a psychiatric report dated 24th January 1995 from Dr. Chung-kwong Wong. That doctor reported:

"43. My psychiatric diagnosis for the Defendant is Conduct Disorder which is not a psychotic condition. The Defendant is not mentally insane. He is fit to plead.

44. Despite the fact that he was fully aware of the wrong-doing he was committing at the time of the offence, I believe he intended only to kidnap but not to kill the deceased.

45. Among other consideration, the Court might like to consider the following factors in deciding on the disposal of this case: (i) that the Defendant has never been given a proper chance in life because of the very abnormal upbringing and the violence he suffered; (ii) that at this point because of the fixated psychological growth and all the violent experiences, the Defendant indeed is potentially dangerous to society; (iii) that given a consistent supportive environment there is a good possibility that the Defendant will grow up and mature psychologically.

46. I would thus like to recommend to the Court that the Defendant is to be granted some measure of leniency. Underneath the facade of the offender is in fact a psychologically very immature young adult. Given time and continuous efforts, there is a likely chance that he will grow up to be a useful member of society."

Dr. Wong having been furnished with the report of the probation officer, the report of the clinical psychologist, and that of the two psychiatrists to which we have already referred made a further report to the Legal Aid Department dated 13th March 1995 as follows:

"7. I agree completely with the Probation Officer that the Defendant should not be given probation. Rather he should be given a custodial sentence. What he requires is a consistent and disciplined environment to help him 'grow up'. Bearing in mind that undesirable peer influences should, if possible, be kept to a minimal, and that supervision and training should be maximized, I am inclined to recommend Training Centre, rather than the ordinary Prison.

8. My opinion for the Defendant and the Co-Defendant are largely similar."

10. As regards to the second applicant the Government Psychiatrists Dr. L.Y. Chow and Dr. S.T. Lai also furnished reports both of which were dated 27th February 1995.

11. The conclusions in these reports were differently worded but each was satisfied that the respondent suffered from Conduct Disorder, which Dr. Chow explained as being "a repetitive and persistent pattern of behaviour in which basic rights of others or major age appropriate societal norms or rules are violated." Dr. Chow considered that it might be beneficial for him to receive further psychological treatment but Dr. Lai was satisfied that the "role of psychiatric intervention would be limited at present".

12. Mrs. Lu Chan, a Senior Clinical Psychologist, furnished a report on 1st March 1995 in which she concluded:

"..... the remand is an intellectually normal individual with no identifiable signs of major psychopathology. Being rather naive and simplistic in his outlook, he is not particularly insightful towards his own behaviour and the possible consequences it may carry. Psychological intervention is not called for at this stage in view of the absence of major psychological problem."

13. It is to be noted that this respondent appeared to have a relatively normal childhood. He had, however, on occasions run away from home and had exhibited a refusal to accept normal discipline. Dr.Chung-kwong Wong furnished a report to the Legal Aid Department on 24th January stating that he was satisfied that the 2nd respondent suffered from Hyperkinetic Conduct Disorder. He said that children suffering from Hyperkinetic Syndrome have a short attention span, distractability, overactivity, excitability and impulsivity. This syndrome leads to Conduct Disorder. The doctor stated that by the time such children become adolescents, even though the Hyperkinetic Syndrome might have largely subsided, the conduct disorder element will persist and that this was the case with the defendant.

14. It seems that the experts were agreed that the 2nd respondent suffered from Conduct Disorder. Other findings of Dr. Wong are also pertinent. He made it plain that conduct disorder is not "a psychotic condition" and as to the 2nd respondent generally he said:

"He was in full contact with reality. He was not depressed. His thought and speech were normal and no delusions or hallucations were elicited. There was no cognitive deficit. He gave me the clinical impression that he was of low intelligence but not to the extent of mental handicap."

Dr. Wong finally said:

" Among other consideration, the Court might like to consider the following factors in deciding on the disposal of this case: (i) that the Defendant has never been given a proper chance in life because of the undiagnosed Hyperkinetic Conduct Disorder he suffered throughout childhood; (ii) that at this point because of the fixated psychological growth and the experiences of this violent offence, the Defendant indeed is potentially dangerous to society; (iii) that given a consistent supportive environment there is a good possibility that the Defendant will grow up and mature psychologically.

46. I would thus like to recommend to the Court that the Defendant is to be granted some measure of leniency. Underneath the facade of the offender is in fact a psychologically very immature young adult. Given time and continuous efforts, there is a likely chance that he will grow up to be a useful member of society."

The judge, having considered this material, acknowledged "the enormity of the tragedy" and "the utter callousness of the manner and the extent of the assault upon the deceased for such a paltry matter as the loan of a video game".

15. Having considered the reports, he said:

"Those reports which set out the respective family circumstances in which these two defendants grew up are indeed, in my view, a sad indictment of the general efficiency, competence and above all the concern the parents had for the welfare of their sons. One unique omission, and a very sad and disturbing one at that from the attitude of the parents towards their sons is any indication of affection or any attempt at trying to understand their personality and their behaviour. Those reports bring out in stark and yet emphatic terms what the stress of life upon some working families can in the end spell for their children."

The judge here lays very substantial and, we think, not really justified stress upon the failure of the parents.

16. He then dealt with the classical principles of sentencing set out by Lawton L.J. in James Henry Sargeant (1974) 60 Crim.App.R. 74 at 77. The four principles to which reference is made are: "retribution, deterrence, prevention and rehabilitation". He sets out the comments of Lawton L.J. as to retribution, deterrence and prevention. Having read Lawton L.J.'s remarks as to rehabilitation he refers to the statement of Dr. Thomas in the second edition of "Principles of Sentencing" at p.18:

"The public have no greater interest than that he should become a good citizen. The difficult task of the court is to determine what treatment gives the best chance of realising that objective."

He refers to the opinion of the psychiatrists that the respondents given detention and training may well become useful members of society. He indicates that detention in a training centre not only gives the opportunity for rehabilitation but also carries with it punitive and deterrent elements. He states:

".....it seems to me absolutely clear that in dealing with such young offenders, the courts concerned should not so much be on retribution in the strict sense as it should be on the rehabilitation of them, for as I have indicated, they will have to return to society, and the greater public interest must be that they become good citizens.

The tragedy that occurred cannot be undone. The grief that was caused to the family of the deceased is permanent. What the court can hope for and the society can hope for is that such young persons, who have lived through disgraceful and appalling childhood, through no fault of their own, will not behave in such fashion again."

The judge then ordered that both applicants be detained in a training centre. It is that order which the Attorney General now seeks to review.

17. We are satisfied that the judge placed too much weight upon the perceived shortcoming of the parents and upon what he regarded as the "disgraceful and appalling childhood" of the respondents and, having done so, led himself into the error of over-emphasizing the rehabilitation aspect of sentencing. All the reports agreed that the respondents knew perfectly well what they were doing. They quite knowingly perpetrated a life threatening assault upon the deceased and then, accepting the version which is most favourable to them, attempted to cover that up by making a blackmail demand which they hoped would prevent the family from reporting to the police that the deceased was missing. We cannot help but remark that this version, coming as it does from the respondents themselves, is a not entirely convincing one. However the judge acted upon it and we shall also.

18. We note also that when sentencing the judge appeared to be concerned solely with the actions that caused the death of the deceased. He nowhere mentions the second count in which the respondents, having caused the death, displayed a vicious disregard for the feelings of the family by attempting to terrify them into silence. We are satisfied as the Attorney General urges us to be that the judge failed properly to balance the competing sentencing considerations. We are in the position described by Scarman L.J. in R. v. Inwood (1974) 60 Cr.App.R. 70 at 72 when he said:

"In the balance that the court has to make between the mitigating factors and society's interests in marking its disapproval for this type of conduct, we come to the irresistible though unpalatable conclusion that we must not yield to the mitigating factors."

19. We must bear in mind the interests of society as well as the interests of the offenders. We are conscious of the abhorrence which right-thinking members of society must feel towards these offences. We have no doubt that they call for immediate custodial sentences. After trial sentences of ten years on the manslaughter count and of six years on the blackmail count would have been proper as would have an order that they be concurrent. We bear in mind, however, the pleas of guilty, the youth of the offenders and the fact that we are imposing sentences of imprisonment in place of orders for detention in a training centre. In all the circumstances we consider that the appropriate orders are such as will result in overall sentences of five years.

20. The Attorney General's application is granted. The Training Centre Orders are quashed and each respondent is ordered to be imprisoned for five years on the manslaughter count and four years on the blackmail count and the sentences are ordered to be concurrent.