HKSAR v. Au Yeung Chun Yee

CACC 438/2014

CRIMINAL APPEAL NO 438 OF 2014

(ON APPEAL FROM HCCC 397 OF 2013)

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J U D G M E N T
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Introduction

1.The applicant appeared before Deputy Judge McMahon (“the judge”) on an indictment charging her with four others with one count of murder.  She offered to plead guilty to the offence of manslaughter, as did a co-accused who was D5 on the indictment. Ultimately, both these pleas were accepted.  After pleading guilty the applicant testified for the prosecution. 

2.At the end of the trial at which her co-accuseds, D2-D4, were convicted of murder, the applicant was sentenced to a period of 7 years’ imprisonment by the judge.  She now applies for leave to appeal against that sentence. 

The background facts

3.A Summary of Facts was prepared for the purposes of sentencing the applicant and was admitted by her.  This document reveals that on 8 August 2012, a 15½‑year-old boy by the name of Tsang Ming Sze was thrown into the sea off Lohas Park at Tseung Kwan O.  His drowned body was found floating face down in the sea some 200 metres off Lohas Park on 11 August 2012 around 5 pm.

4.It was the applicant’s involvement in the death of this boy that resulted in her facing a charge of murder.  Relevant to the culpability of the applicant is her age and the ages of her co-accused.  As at the day of the murder the applicant was only 15 years 10 months, D2 was 20 years 11 months, D3 was 27 years 11 months, D4 was 33 years 8 months and D5 was 16 years 11 months.

5.The catalyst for the murder was a complaint by the applicant to D3 that she was aggrieved by the deceased and wanted him to be beaten up to give him a lesson.  The reason for her grievance was that he had allegedly gossipped about her claiming that she was a promiscuous girl.   

6.On 7 August 2012 the applicant, D3 and D2 planned to invite the deceased out to drink alcohol and talk and that when they were together they would teach him a lesson.  In the early hours of 8 August 2012 the applicant and D2 telephoned the deceased several times.  He joined them around 2:30 am that day.  The place to which the deceased had been lured was the south-east pier under the bridge which crosses the north head of Junk Bay. 

7.After the deceased had been at the pier for awhile, D3 told him that he had offended his girlfriend, the applicant.  At some stage the applicant, together with another girl, were sent under the bridge to the north-east pier which was beside the south-east pier.  The entrances to the piers are 6 metres apart.  From there the applicant and her friend could see D3, D4 and the others.  Later the applicant and her friend rejoined the group at the south-east pier. 

8.D3, on the pretext of a pretend fight, then began assaulting the deceased.  D4 and D2 joined in.  The deceased was kicked and punched and at no stage made any effort to fight back.  The assault was serious and prolonged and resulted in the deceased bleeding and slumping to the ground semi conscious.  Beer was poured on him to wake him up and he was also forced to drink beer.  At one stage D3 produced an 8 inch bicycle spanner with the intention of hitting the deceased but he was stopped from doing so.  By this time the deceased had blood on his face and severe swelling to his right cheek but he appeared to be still conscious. 

9.D4 then said loudly, within the hearing of the applicant, words to the effect, “Do you all want to die together or whether he, ‘Tsang Ming Sze’, should die.”  D4 said that if they let the deceased go, he would certainly go to the police and suggested instead throwing him into the sea.  The applicant was dumbfounded by the suggestion and thought this was going too far.  She told D3 this and asked him not to throw the deceased into the sea, but D3 ignored her. 

10.The deceased was then taken towards the cycling track and D4 asked those present on the pier to clean up the area so that there would be no evidence to incriminate them.  The deceased’s possessions were taken from him.  The applicant was then instructed by D3 to ride with him on the back of his bicycle.  The applicant complied and they travelled to the end of the cycle path along the road to the paved area outside the public toilets near the Lohas Park MTR station.  Meanwhile D2, D4 and D5 escorted the deceased on foot, south, towards the same Lohas Park area. 

11.Near the Lohas Park MTR station there is a turning circle for vehicles and there are also male and female public toilets. D3 told the applicant to go into the female toilet to check if anybody was inside.  She went in whilst D3 waited outside.  The applicant came out of the toilet but did not say anything to D3 and she then waited with him for a few minutes.

12.Opposite the toilets about 60 metres away there was an area of bush along the sea side.  This area was referred to as the second scene.  D2, D4 and D5 took the deceased into this bush area and the applicant saw them doing so.  When the deceased was taken there he was further assaulted and then pushed into the sea, but this was out of the sight of the applicant.  

13.The Summary of Facts concluded with the following paragraph:

“D1’s plea to manslaughter is accepted on the basis that at the bush (scene 2) she intended or foresaw that TSANG Ming-sze would be assaulted but not a deadly assault, i.e., not an assault that would result in really serious bodily harm to TSANG Ming-sze or his death.”

The mitigation

14.Mr J Fenton, who appeared for the applicant at trial, emphasized three points in the course of his mitigation.  The first was that the applicant had pleaded guilty, the second the fact that the applicant had testified for the prosecution and third the applicant’s age.

15.In respect of the first two matters Mr Fenton submitted that an appropriate total discount for the applicant was 50%.  As to the judge’s starting point he did not suggest any particular figure but referred the judge to a number of matters relevant to that issue.  First, it was said that the applicant herself played no part in the assault upon the deceased.  Secondly, the incident commenced only because she wished to teach him a lesson and that she never had any idea that matters would become as serious as they did. 

16.Mr Fenton submitted that events spiralled completely out of control and that because of the immaturity of age of the applicant and the violent nature and age of those involved in the assault, the applicant was unable to control the situation.  In responding to questioning from the judge, Mr Fenton emphasized the difference in age between the applicant and her co-accused which he submitted had a huge bearing on how it came about that the applicant found herself in an impossible situation that was beyond her control.

17.The judge was concerned at the applicant’s conduct at the second scene and Mr Fenton in reply reminded the judge that she did not in fact speak to D3 after exiting from the toilet and did not in fact tell him that there was no one there.  In respect of what took place at the second scene the applicant was portrayed as simply being present there without in any way lending assistance to the final assault on the deceased or to the disposition of his body. 

18.It was submitted that the applicant, after leaving the first scene where the main beating of the deceased took place, was in a daze and was just following D3 when she accompanied him on his bicycle.  She was in shock and she was only meekly complying with the instructions given to her.  In simply doing as she was told she was in no way lending her support or assistance to the plan to murder the deceased and had earlier actively discouraged that course.

19.Mr Fenton also emphasized that at the first scene, at the pier, the applicant had tried to interfere on behalf of the deceased to stop them from going ahead with their plan to throw him into the sea. 

20.The judge was also informed about the background of the applicant. A number of letters that had been written on behalf of her were presented to the court and they helped to explain how the applicant had changed from successful student to troubled teenager.  They revealed that she had in her early years been a very successful student but that at about aged 13, when her mother and father’s marital relationship broke down, she began to spend time away from home and left school.  The applicant herself wrote a letter expressing remorse and indicating a desire to complete her education.

The Reasons for Sentence

21.In his Reasons for Sentence the judge set out the basis of the pleas of guilty as follows:

“The basis of the acceptance of their pleas was that it was acknowledged that they may have lacked the intent to kill or do really serious injury to the deceased, but that they intended or foresaw considerable injury being done to him.”

22.The judge described the conduct to the defendants who had pleaded guilty to manslaughter as showing they were heavily involved in the events leading up to the death of the deceased.  He said that on the facts they had admitted an immediate custodial sentence was unavoidable for them.  He described their culpability as being “at the higher end of the hugely variable manslaughter range of sentences”. 

23.In respect of the applicant he noted that she was the instigator of the attacks upon the deceased and that she had assisted in luring him to the scene of the planned attack.  The judge then said:

“Au Yeung had, I accept, attempted to mitigate for the victim before he was marched off to what amounts to the scene of his execution at Lohas Park, though she went with Lai to a women’s toilet nearby the scene of the victims final beating and disposal into the sea to check whether there was anyone there who might witness the final attack upon the victim.

The evidence accepted by the jury in those circumstances comes close to establishing the offence of murder, given that she had heard Mui suggesting that the victim be thrown into the sea before he was taken on the long walk down the cycle way and pedestrian pavement to the bushes at Lohas Park.”

24.The judge accepted that being only 15 years and 10 months’ old, the applicant was “plainly a person not with an adult’s understanding of the full potential consequences of her actions.”  He said he took her youth into account also in “accepting she may have foreseen something marginally less than really serious bodily harm being done to the victim at the conclusion of his walk towards Lohas Park.”  He said that the main perpetrators were D2 and D3, whose ages placed them in a position of dominance over the applicant and her teenage friends, and that the applicant’s continued cooperation with D2 could be explained on that basis.

25.Nevertheless, he concluded that the applicant’s action warranted a starting point for sentence of 14 years’ imprisonment.  He accepted the submission by Mr Fenton that matters did spiral out of control and, to a large extent, were taken out of the applicant’s hands by the decision of the other defendants to proceed further and to kill the deceased. 

26.The judge regarded the primary mitigation available to the applicant as her plea of guilty and her willingness to give evidence for the prosecution.  He allowed her a total discount of 50% resulting in a sentence of 7 years’ imprisonment.

The grounds of appeal

27.In the Amended Perfected Grounds of Appeal Against Sentence the applicant makes two complaints.  The first ground of appeal complains that the judge had insufficient regard to all the mitigating factors advanced at trial which it is submitted, cumulatively render his starting point of 14 years too high.  Another factor was the delay of 28 months from the date of the offence by which time the applicant was 18 years of age.

28.The second ground of appeal asserts that the judge was wrong to characterize the applicant’s part in the offence as close to the dividing line between manslaughter and murder.

Discussion 

29.As this is a leave application the applicant only has to surmount the hurdle of showing her grounds of appeal are reasonably arguable.  Again, because it is a leave application I do not intend to discuss in any detail the merits of the grounds or of the respondent’s reply submissions.

30.I note that the respondent, though submitting that the sentence is not excessive, recognizes that the starting point of 14 years may appear to be on the high side.  In the course of her written submission the respondent refers to a number of cases of manslaughter involving attacks by young persons and in none of them has a sentence of 14 years being imposed.  

31.But this is not the usual youth gang attack where the ages of all those involved is within a narrow range.  Here the applicant is a very young girl in the company of violent adult men twice her age.  By the time that these men had decided to murder the deceased she was, arguably, trapped in their company and unable to do anything further to save the deceased.  If this can fairly be said to be her situation then arguably that has not been adequately reflected in the starting point the judge adopted for sentence.  These are matters that can only be properly determined through full appellate scrutiny.

Conclusion

32.I am satisfied that both grounds of appeal are reasonably arguable and I grant leave to the applicant to appeal her sentence on those grounds.

Written submission by Ms Anna YK Lai SADPP, of the Department of Justice, for the respondent

Written submissions by Ms Charlotte Draycott SC, instructed by Pauline Wong & Co, assigned by DLA, for the applicant