HKSAR v. VU THANH BINH

                 CACC 51/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 51 OF 2005

(ON APPEAL FROM HCMP NO. 2219 OF 2004)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court) :

1. On 19 January 2005 Pang J imposed a term of 28 years’ imprisonment upon this applicant pursuant to the provisions of section 67C(4)(b) of the Criminal Procedure Ordinance, Cap. 221.  This is an application for leave to appeal from that term.

2. The applicant was convicted on 7 July 1994, together with another, of the offence of murder.  The murder took place on 25 May 1990 in a transit centre for Vietnamese boat people at Kai Tak.  The applicant was sentenced to life imprisonment but was aged 17 years when the offence was committed.  The Secretary for Justice brought the matter afresh before the courts (section 67C(I) Criminal Procedure Ordinance, Cap. 221), so that a determination could be made whether to pass an indeterminate sentence together with a minimum term or, on the other hand, a fixed term of imprisonment.  Pang J determined upon a fixed term and it is that term that is the subject of this application.

3. The facts of the offence have been summarised by Pang J as follows:

“3.   The offence occurred in the afternoon of 25 May 1990 in a transit camp for boat people in Kai Tak.  Three days before the incident, the deceased had won some $20,000 in gambling.  According to an eyewitness who gave evidence as a prosecution witness, at about 5 o’clock early that evening, he heard sounds of commotion.  He went to see what was happening and saw the respondent’s [applicant’s] co-accused holding a gun at the deceased’s temple with one hand and a knife at the neck of the deceased with the other hand.  The respondent was also seen pointing a knife at the deceased and demanding money from him.  He then saw the respondent plunging the knife into the deceased’s chest.  According to the Forensic Pathologist, the cause of death was a 5.6 cm long stab wound to the chest with injuries to the heart.  The stab wound went through the heart and penetrated into the lung and the total length of the track was about 21 cm.

4.    It was 13 months later, on 8 June 1991, when the respondent was arrested by the police.  In an identification parade conducted some five days later, the respondent was positively identified by the prosecution witness who had witnessed the attack.

5.    At the trial, the respondent elected not to give evidence.  Through his counsel, it was suggested to the prosecution witness that his testimony in court about witnessing the respondent attacking the deceased was total fabrication.  The suggestion was denied by the prosecution witness.  The jury returned a verdict of guilty on the murder charge.  On 12 October 1995, the respondent’s appeal against his conviction was dismissed by the Court of Appeal.

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8.    This case has its roots in a gambling dispute.  Some three days before the attack, the respondent was seen gambling with the deceased together with a number of others and the deceased had apparently won some $20,000.  Shortly before the attack, the prosecution witness saw the respondent together with his co-accused threatening the deceased with a gun and knives.  The knife the respondent was holding was described as a Rambo type knife with a black blade which was about 18 inches in length.  Apparently the deceased was fatally wounded in the manner which was described earlier.  Having attacked the deceased, the respondent and his co-accused then went up to the prosecution witness and threatened him.  The witness was stabbed in the face before he managed to escape.  There is little room for doubt that the respondent had intended to kill the deceased.

9.    The respondent and his co-accused managed to stay away from the authorities for over one year before they were eventually arrested by the police.  At the trial the respondent accused the prosecution witness of fabricating the account against him.  It cannot be said that the respondent was in any way remorseful at the time of his trial.”

4. Prior to the commission of the murder, this applicant had twice been convicted of a criminal offence, including an offence of possession of an offensive weapon.  Pang J had before him a number of reports which are referred to in his judgment.  They reveal quite a number of disciplinary offences whilst incarcerated and some improvement in his behaviour since the question of a minimum term has come to the fore, although it is said by the prison superintendent that “overall speaking, slight improvement was noted, but still far from satisfactory.”  The appellant has told one of the psychiatrists that the stabbing itself occurred when he was scared “and in order to hold the people [accomplices of the victim whom he thought were pressing in towards him] back he stabbed the victim once”.  Pang J concluded from this that even to date it cannot be said that this appellant is completely remorseful.  Pang J remarked that the circumstances of the present case were particularly serious, the assailants having armed themselves with a gun and each with a knife; and that it was a vicious attack with an obvious intention to kill; and that a bystander who was later to become a prosecution witness was assaulted by the appellant with a knife in the hope of silencing him.  We note that the trial judge referred to the killing as “a very brutal killing where the unarmed victim was given no chance whatever”.

5. Pang J took a sentence of 30 years’ imprisonment as the appropriate starting point but reduced that by two years from the original term on account of certain assistance given by the appellant to the authorities, with the result that the determinate sentence imposed was one of 28 years’ imprisonment.

6. This Court, as presently constituted, has been engaged in a series of cases within this category, that is to say cases of murder committed by those under the age of 18 years at the date of their offences and in respect of whom some years later and by virtue of statutory provisions coming into force in and after 1993, a judge of the Court of First Instance has been called upon to put a time limit on the sentences, either by a determinate term or by fixing a minimum term that will have to be served.  The facts of these cases differ as to the circumstances of the offenders.  Some, although convicted of murder, admitted the attack in question and offered pleas of guilty to manslaughter; others did not.  Some had previous convictions, others did not.  Some attacks were premeditated, others were not.  In some, the offender went to the place of the attack already armed; in at least one, the weapon was picked up at the scene of the crime.  And, beyond that, although all aged under 18 years at the date of the offence, some were only just under that age, others younger.  We are of the view that this offence was a particularly brutal, calculated and serious one and that no complaint could have been made had the sentencing judge adopted a higher starting point.  The only question that arises is whether the resultant 28 years’ imprisonment accords sufficient weight to assistance given by the applicant to the authorities.

7. We have closely examined the nature and circumstances of the matter in respect of which this applicant is said to have given assistance.  We take the view that the deduction given by the judge was generous and we rather doubt that it was justified, but we will not interfere with it.  As for the effort said to have been expended by this applicant in prison to rehabilitate himself they are not exceptional and do not in our judgment evidence remorse.  The application is dismissed.