HKSAR v. YEUNG MOK YEH AND ANOTHER

HCMP2209 and 2211/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NOS.2209 and 2211 OF 2004

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(HEARD TOGETHER)

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J U D G M E N T

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Background

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 Ordinance.

2. The respondents Yeung Mok Yeh and Kwan Wing Kei belong to a class of prisoners who were convicted of the offence of murder at the time when they were below the age of 18.  They were both tried and convicted of one count of murder on 4 July 1991 before Gall J sitting with a jury.  On the same day they were sentenced to be detained at Her Majesty’s pleasure in accordance with the then section 70 of the CPO.  At the time of their convictions they were aged 17.

3. On 18 October 2004, I directed that their applications be heard together.

4. For reasons which I have stated in paragraphs 19 to 28 in HKSAR v. Lai Hung Wai, HCMP2208/2004, I took the view that prisoners belonging to this category should be given a fixed term sentence instead of passing a minimum term of imprisonment pursuant to section 67C(3).

Applicant’s observation

5. Mr Darryl Saw, SC, for the applicant submitted that I had fallen into error in my reasoning stated in paragraph 26 of my judgment in Lai’s case.  He contends that a prisoner who had previously been sentenced to be detained at Her Majesty’s pleasure and who was then detained at Executive discretion had never been required to serve a life sentence pursuant to any legislative provision.  That being the case, he says, there was no infringement of Article 12 of the Bill of Rights Ordinance.

6. Further, Mr Saw submitted that there was no need for the court to impose a notional life term before proceeding to determine a fixed minimum term under section 67C(3).  When a prisoner has served out the minimum term, the Long Term Prisoners Review Board does not order further detention of a prisoner at the expiration of the term.  The prisoner remains detained by reason of his original sentence and not by any direction of the Long Term Prisoners Review Board.  The issue whether the Board is exercising an executive or judicial power does not arise.  As they would still be lawfully detained, there is no requirement for the prisoner to appear before the court again for an order for further detention.

7. Even if I was wrong in my interpretation of section 67C(3) and (4) of the CPO in respect of this class of prisoners, I would still be of the view that the proper approach, in so far as they are concerned, is to quash the original sentence and pass a fixed term sentence.  A minimum term sentence is indeterminate in nature and is open-ended.  As far as I am aware there has never been a case where a prisoner is released automatically after serving the minimum sentence.  The shortest period of imprisonment already served by a prisoner under this category is, as at 1 November 2004, 12 years and 2 months.  In a case where a person was sentenced when he was below the age of 18, it would mean that the prisoner would have spent over two thirds of his adult of life in prison.  If they are to ask the question “how much longer?”, they ought to be given an answer in unequivocal terms.  The possible adverse effects of a prolonged state of uncertainty are that it may defeat the prisoners’ motivation and they would gradually become institutionalized.  A fixed term would serve to remove any element of uncertainty in their minds.  These prisoners, like all others, are entitled to know the exact period of punishment for which they are to receive for the offence which they have committed.

The offence

8. I would now turn to the background of this case.  Both respondents were jointly charged with one count of murder.  The offence took place on 14 April 1990 in Tsuen Wan area.  They were both arrested four days later on 18 April and had been in remand ever since.  The background of this case is stated in the report by Gall J to the Governor dated 9 July 1991 :

“… upon the Crown case both Accused were seen pursuing the Deceased in a street in Tsuen Wan on the 14^th of April 1990.  The Deceased was seen to fall to the ground and each Accused produced a knife and chopped at the Deceased.  He died of a massive cut wound to the neck which severed his jugular vein.  The Deceased had 6 other chop wounds to his body including two to his skull.

       Each Accused admitted pursuing and chopping the Deceased as alleged by the Crown.  Neither admitted to the Police stabbing the fatal blow.  No issue was taken in Court to their participation in attacking the Deceased with knives.  It was the contention for a person who had assaulted one of a group with whom they associated and that whilst they were armed with knives and chopped the Deceased neither had the intention to either kill him or cause him serious harm.

       Clearly the jury found that the Accused each carried out with common intent the actions they admitted and inferred that each did so with the requisite intent to constitute the offence of murder.”

9. The respondents’ appeal against their convictions were dismissed by the Court of Appeal.  The evidence of the case was referred to in detail by Macdougall JA in the judgment of the Court of Appeal dated 6 August 1992.  He said :

“      It was common ground at the trial that on the evening of 14 April 1990 the applicants were members of a large group of youths who had armed themselves with knives and had set out in search of another group of youths whom they believed had assaulted their leader earlier that evening.  The applicants and several other members of their group eventually succeeded in locating four or five youths whom they suspected of having been involved in the earlier assault.  When one of these youths attempted to escape by running down the road, the applicants took off in pursuit and succeeded in catching him after he had fallen over.  They then attacked him with their knives as he was lying on the ground.

       In video recorded reconstructions of the incident and cautioned statements, the admissibility of which was not challenged at the trial, the 1^st applicant admitted that he had given the order to chop the victim twice and had himself inflicted one chop wound, and the 2^nd applicant admitted that he had chopped the deceased once, but could not remember on which part of his body the blow had landed.

       The deceased sustained seven chop wounds consisting of two to his head, one in which his jawbone, right trapezius and sternomastoid muscles and jugular vein were severed, one to his left elbow, one to the back of his left hand and one to his right thigh.  The underlying bone was fractured in each of the arm injuries.  It was the neck wound which was the cause of death.

       Neither applicant gave evidence.  However, in the course of his video recorded reconstruction the 1^st applicant sought to blame the 2^nd applicant for having inflicted the fatal neck wound.  In his statement in answer to the charge of murder he denied that he had had any intention of killing the deceased.  The 2^nd applicant, in his cautioned statement to the police, while saying that he could not remember what parts of the deceased’s body he had chopped, asserted that the 1^st applicant had chopped the deceased on the head, trunk, hands and legs.  In reply to the charge of murder he said ‘I did not have the intent’.”

10. This was a brutal attack by the two respondents who were among an armed group of youth with triad background.  The deceased was a youngster of 18 and he was ruthlessly hunted down by a rival gang and chopped to death while lying defencelessly on the ground.  He died from multiple chop wounds.  I do not agree with the part of the submission by Mr Donald for the respondents that “Normally these attacks result in someone being assaulted, perhaps wounded and nothing further; unfortunately on this occasion a youth was killed.”  The respondents and a number of others were armed with lethal weapons which they did not hesitate to use on the defenceless victim.  This was an attack by one gang of youth on another in retaliation for an earlier attack on one of their members.  It has nothing to do with misfortune.

11. The incident took place in Chung On Street in Tsuen Wan which, as I understand, is a very busy thoroughfare.  The attack took place shortly after 7.00 p.m. in full view of the public.  This must reflect on the mentality of those belonging to the attacking gang of which the respondents were a part.  They had displayed a total disregard of public sentiment and human decency. 

12. The respondents’ pleas to manslaughter were rejected by the prosecution.  At the trial both elected not to give evidence and no witness for the defence was called.  Their defence was lack of intention to kill nor to cause grievous bodily harm.  This line of defence must have been rejected by the jury in view of the lethal weapons they had with them and also on the basis of the unanimous verdict.  If there be a scale of gravity for the offence of murder, I cannot consider this case to be one which is down at the lower end of this scale.

13. In HKSAR v. Cheng Yat Ming No.2 [1997] 3 HKC 365, the applicant aged 17 was convicted of murder and was sentenced to life imprisonment.  Since the date of his sentence, the Long Term Prison Sentences Review Ordinance was enacted and it was open to the court to sentence a person under the age of 18 who was convicted of murder to a fixed term sentence.  In that case the applicant was owed money by the deceased and he went to the home of the deceased to collect the debt.  In the course of subsequent exchanges the deceased denied the debt and assaulted the applicant.  The applicant lost control of himself and strangled the deceased with a belt.  The Court of Appeal held that the incident did not involve a large measure of premeditation on the part of the applicant.  The applicant did not bring with him any weapons and the incident took place over a short passage of time.  The applicant was found not to be suffering from any psychiatric illness and there was no reason for the Court of Appeal to believe that it would be a danger to the public if he was to be released from detention.  The Court of Appeal saw fit to impose a fixed term sentence of 28 years’ imprisonment.

14. The present case is a triad related gang attack with a fair degree of planning.  In that respect it is more serious than Cheng’s case.  I would adopt a prison term of 30 years.

Performance during incarceration

15.  Before they committed this offence, both had been school drop-outs and spent most of their time with undesirable elements.  Not surprisingly they became involved with the triad elements in their neighbourhood.  Being part of gang would have no doubt boosted their ego albeit for all the wrong reasons.  While being incarcerated both defendants appeared to have been genuinely remorseful and this was evidenced by the efforts they had spent in obtaining a number of academic qualifications. 

Yeung Mok Yeh

16. Yeung has given his consent that the provisions of subsection 4(a) and (b) are applicable to him.  He has been in custody for over 14 years since 18 April 1990.  He was born on 23 August 1973.  Since his incarceration, he has settled down and became a model prisoner.  His conduct has been classified an overall rating of B+.

17. In the past 14 years he had committed four disciplinary offences which I consider to be minor if not trivial.  The last transgression was in April 2003 when he refused to return to the workshop as ordered by an officer.

18. He had pursued a fairly impressive academic career in prison.  Over the years he had collected an array of distinctions and credits in the various examinations conducted by the Pitman Examinations Institute, the London Chamber of Commerce and Industry and the City & Guilds of London.  In 1995 he sat the Hong Kong Certificate of Examination and passed all nine subjects with three credits.  This I consider to be a rather impressive performance considering the fact that he had dropped out of school by the time he was in Form 3.  He is now enrolled in the Bachelor of Business Administration programmeorganized by the Open University of Hong Kong.

19. He was chosen by the Correctional Services Department to meet with prison visitors and to give counselling to juvenile delinquents.  He is a role model of his kind.  In the meantime he has become a devout Christian and has full support of members of his Christian group.

20. In October 2001, the respondent took the initiative in giving assistance to the police by offering to be a prosecution witness in the retrial of a prisoner who was then detained in Stanley Prison.  His efforts to give assistance to the police had resulted in putting his own safety at risk and being threatened by other prisoners.  For security reason, he was then transferred from Stanley to his present place of detention.

21. In the latest report by the clinical psychologist Michael Tsang Hing Pui, dated 21 October, the respondent is described as

“… generally calm, placid and confident. … there was no evidence of any psychomotor agitation or depression.  He did not appear depressed and he denied any depressive symptom. ” 

22. At paragraphs 29 and 30 of the report Dr Tsang observes :

“29.   Results on the psychological tests suggest an individual with adequate control of his impulses.  There are no signs of any major psychopathological disorders.  Nevertheless, he does appear to show a need to be accepted.  Since he may likely come across with a lot of frustration and/or disappointments, he would likely require continuing support in helping him generate more realistic expectations and fit-in to the society.  It would be helpful for him to learn ways to defuse any frustration or anger before they become overwhelming.

30.     Overall, Mr. Yeung appears to have made significant progress in his rehabilitation.  On the basis of this assessment, he does not appear to be a threat to the society at the present time.”

Future arrangement

23. I have been shown a considerable number of letters prepared by friends, relatives and church colleagues.  They were uniformly supportive.  He would be offered employment if he is to be released.  There appears to be adequate family support from his siblings.

24. This is a case where the respondent has shown genuine remorse and had made commendable efforts to rehabilitate himself.  To give credit for his efforts during the past 14 years I am prepared to reduce 3 years from the original term of 30 years.  Having taken into consideration all the factors which I have outlined previously, the respondent Yeung Mok Yeh would have to serve a fixed term of 27 years.  Although this would not result in his immediate release, but at the very least, the element of uncertainty will no longer be a factor to defeat any further efforts in self-motivation.  His genuine efforts in turning over a new page in his life must be suitably recognized.

Kwan Wing Kei

25. Kwan has given his consent that the provisions of subsection 4(a) and (b) are applicable to him.  This respondent has been detained since 18 April 1990.  He was born on 31 August 1973.  During his period of detention he had consistently attained a grading of A+ for his overall performance in prison.  However, this was downgraded to B+ in the year 2003 and 2004.

26. During the past 14 years there were four occasions on which he was reported to have transgressed prison rules.  The last recorded incident was in April 2003 when an officer found two pieces of sandwich on the respondent’s desk.  This is the factor attributable to his overall performance being downgraded to B+.  The respondent is also a model prisoner for which he was chosen by the Correctional Services Department to meet prison visitors and also to counsel juvenile delinquents as in the case of Yeung.

27. He had quitted school after completing Form 1.  The respondent had resumed his academic studies with some degree of success while in prison.  He has since passed a number of public examinations and is currently enrolled in distant learning courses offered by the Hong Kong Management Institute.  He has also taken up a number of courses offered by the Open University of Hong Kong with the view of completing a degree programme.  His academic achievement, although not as impressive as that of Yeung, can be treated as evidence of the respondent’s genuine efforts to improve and to rehabilitate himself.

28. In the report by the clinical psychologist Michael Tsang Hing Pui dated 21 October the respondent is observed to be :

“Behaviorally, he was polite, cooperative and appeared quite forthcoming.  Throughout the two interview sessions, he appeared generally calm, placid and confident.  There was no evidence of any psychomotor agitation or depression.” 

29. In the report summary Mr Tsang observed :

“… He now understands that his previously admiration of the gangsters was out of a need to be accepted and belong.  He denied ever having really joined the triad gang.  His performance in prison and academic pursuit would support his determination to make changes and that he has made serious and significant effort at rehabilitation throughout his imprisonment.

Mr. Kwan has come to some realization that he should work through his problems and not only to blame on others.  He has re-built a close knit relationship with his family.  Should he be released early, the support of his family would clearly be an asset to him in any attempt to lead a responsible life.”

Mr Tsang concluded by saying :

“Overall, Mr Kwan appears to have made significant progress in his rehabilitation.  On the basis of this assessment, he does not appear to pose a threat to the society.”

30. Based on the available material before me I am of the view that the respondent has expressed genuine remorse for the crime which he committed and had made a genuine effort to rehabilitate himself.

31. The respondent has full support of his family members, friends and church group and this is evidenced by the abundance of letters submitted to this court on his behalf.  He also has the prospect of being offered full time employment upon his release.

32. As in the case of Yeung the efforts of this respondent in rehabilitating himself over the past 14 years has to be given recognition.  In this regard I would likewise reduce the 30-year term to one of 27 years.  This, I hope, as in the case of Yeung, would remove any elements of uncertainty from his mind and the possible risk of stifling self-motivation on the prisoner’s part.  Although this prison term of 27 years will not result in the respondent’s immediate release, I hope the determinate sentence would, for the period of the remaining term, give him every opportunity to prepare himself for eventual release.

Conclusion

33. For the reasons I have stated, I would exercise the powers vested in me pursuant to section 67C(4)(b) of the CPO, and I order that the sentences passed on the respondents by Gall J on 4 July 1991 be quashed and that each be substituted by a sentence of imprisonment of 27 years.