HKSAR v. LAU KA SHING

HCCC 447/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 447 OF 2012

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

 

COURT: In September 2011, you involved yourself with one of two groups of youths who assembled in a mall in Mong Kok. This assembly came about because of some sort of dispute that had arisen between two people in an exchange on the Internet.

As is far from uncommon in Hong Kong, it was decided that the two people would meet to have a talk about their dispute which seems to be local code for gathering together two gangs and fighting it out. You went along and it is not entirely clear to me how you personally were recruited to join in this event, but what is clear is that after some time had been spent there, and it seems there had been some non‑aggressive contact between the two groups which then escalated, the deceased, a 41‑year‑old male, was seen by one of the two people who had been involved in the Internet dispute, to be lying on his back in the mall.

What then was seen appears from the Summary of Facts, which you have agreed, that the 1st prosecution witness, the man who had been involved in the dispute on the Internet, saw four to five persons kicking the deceased’s head. The significant paragraph of the Summary of Facts reads that that witness saw one of the males, whom he knew to be you, kicking the deceased. It continues that the witness pushed the accused away. I will interject and point out that he tried to stop you from further assaulting the deceased. It then continues:

“But the accused took a few steps forward, jumped up and trampled on the deceased’s head with his right foot with force.”

Those words conjure up a horrible picture. A worse picture, however, is to be seen on the closed-circuit television. I think a more accurate way of describing what you did was you took a flying kick in the direction of the deceased and landed on his head. That was confirmed by another witness who was a security guard at the mall.

This happened on 3 September 2011. The deceased was taken to hospital but he did not die until some months later, 27 March 2012. He obviously had a very hard time in hospital. The pathologist commented that his death was due to bronchopneumonia developed as a result of chronic debilitation from head injuries.

He also expressed the opinion that the injuries to the deceased’s head which he described as:

“Left peri-orbital bruising, right parietal scalp haematoma, fracture of the left orbit, traumatic subarachnoid haemorrhage and intra-ventricular haemorrhage as could have been caused by kicking and stamping on the head.”

You were arrested and understandably you were charged with murder. You were subsequently identified at an identification parade by the 1st prosecution witness as the person who took a few steps forward, instantly jumped up and trampled on the deceased’s head by force.

Now, the impression that I am given by the Summary of Facts is that that witness himself was perhaps no shrinking violet. But he went on to say what you did “was so cruel that it left a deep impression on me”.

Counsel has referred me to a number of authorities, and in particular to that of Law Chung Hin. The Court of Appeal there said of the 2nd accused in that case:

“One matter which concerned us was the statements in his interviews with police that he had kicked the victim after the 1st accused’s running and jumping attack 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.”

In analysing the sentence there imposed at first instance, the Court of Appeal added that:

“The act of the 1st accused in running to the deceased and jumping on his belly was, by its nature, a highly dangerous and vicious act.”

I have the benefit of the reports upon you which have been prepared in the last two weeks and whilst they may show that you have gone astray in the more recent years, what they do show is that you are not stupid. You were nearly 18 at the time of this event and it seems to me, looking at your background and psychological report, that a person of your intelligence and age would not have had the slightest difficulty in realising that to jump up and in the air after you have been pulled away by somebody, run along, jump in the air and land with a foot or both feet (I do not know which) on the deceased’s head was about the most dangerous thing you could possibly do to anyone lying on the ground having already been kicked by you and your buddies.

The Court of Appeal actually in Law’s case said, and it is a remark that seems to me to be appropriate to invite to your attention in the context of this case:

“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 up and deliberately jumps upon the stomach of a youth lying n his back.”

How much more true of jumping on the head of somebody lying on their back.

I am prepared to acknowledge the force of what Mr Grounds has said on your behalf about your background and about the fact that you acted perhaps a little out of character in the circumstances of this offence.

The psychologist’s report suggests that you may have behaved in the manner you did as a result of wishing to keep in with your peers to be shown to be perhaps worthy of their friendship or companionship or admiration or whatever and it is not hard to understand that in the heat of the moment a person of your then age would do that, or would feel like that. But I still have a fundamental difficulty that that would cause you to behave in the way you did. To describe your conduct as barbaric is probably under-emphasising its nature.

You have been found guilty on your own plea of manslaughter and that is the offence for which I am obliged to sentence you. It is an offence, and it is probably the one offence, where a court is not required to stipulate a starting point and then look for mitigation and give whatever are the prescribed or appropriate deductions. It is largely because it is an offence which is so fact‑sensitive.

Mr Grounds has provided me with a number of previous sentencing decisions. They are only of limited utility in matters of this nature but they do give an indication of the type of sentences that are imposed.

I have read all the material that has been placed before me, including your latest letter today. It is correct, and I note specifically that this is the first time you have been in trouble with the law. You have certainly started on a very high level.

Although your youth may, in some way, explain why you behaved in the manner you did rather than exercised the restraint which maturity may well have brought to you, it is not mitigation. It does appear that you have developed some insight into the enormity of your conduct and it seems to me that as years go by and you become older and more mature this is something ‑‑ the fact that you caused the death of another human being as a result of a very momentary event, that is something you are going to have to live with forever.

Balancing all of these factors it seems to me that the appropriate sentence for you to serve is one of 8 years’ imprisonment. That is the sentence you are to serve.