HKSAR v. Au Yeung Chun-yee

CACC 438/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 2014

(ON APPEAL FROM HCCC NO. 397 OF 2013)

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BETWEEN

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.With the leave of McWalters JA, granted on 3 February 2016, the appellant appeals against the sentence of 7 years’ imprisonment imposed on her by Deputy-Judge McMahon on 12 December 2014, following her conviction on her plea of guilty to the manslaughter of Tsang Ming Sze on or about 8 August 2012, contrary to Common Law.

2.The appellant, who was 15 years and 10 months old at the date of the killing, had been indicted jointly with four other co-defendants with the murder of Tsang Ming Sze.  The appellant and her co-defendant Yung Kwun Kit pleaded guilty to the manslaughter of Tsang Ming Sze.  Then, the appellant and Yung Kwun Kit gave evidence in the trial of the three remaining co-defendants, all of whom were found guilty by the jury of the murder of Tsang Ming Sze.

The facts

3.The appellant accepted the Summary of Facts as the factual basis of the judge accepting her plea of guilty to the manslaughter of Tsang Ming Sze. On 7 August 2012, in Tseung Kwan O the appellant complained to Lai Chun Man[1] (“Lai”), in the presence of ‘Shing Shing’, that Tsang Ming Sze had gossiped about her, alleging that she was promiscuous, and she wanted him to be taught a lesson.  The appellant and Lai went elsewhere, where they discussed the matter and Lai agreed to help.  Then, after they had rejoined ‘Shing Shing’ and Shek Ka Kwan [2] (“Shek”), Lai said in their presence and that of the appellant that he would teach Tsang Ming Sze a lesson.  Later that day, the appellant again met with Lai and Shek, and they agreed to lure Tsang Ming Sze to meet them for a drink, whereupon he would be given a lesson.

4.In the early hours of the morning of 8 August 2012, having met up elsewhere, the appellant went to the South-East pier under a bridge crossing the North head of Junk Bay, Tseung Kwan O with Shek, Lai, Mui Chun Yu [3] (“Mui”), Yung Kwun Kit [4] and Ms Lau Yuen Yan [5].  They had brought beer, cigarettes and playing cards.  The appellant and Shek telephoned Tsang Ming Sze several times.  The appellant asked him to join them, which he did at 2:30 a.m. Lai told Tsang Ming Sze that he had offended his girlfriend, the appellant.  Although the appellant was not Lai’s girlfriend, it was agreed that Tsang Ming Sze would be told that was the case.  Having been told to do so, the appellant and Ms Lau Yuen Yan moved some distance away, although they were still able to see the remaining group.  On their return, Lai began assaulting Tsang Ming Sze on the pretext of a “pretend fight”, in which Mui and Shek joined.  For his part, Tsang Ming Sze did not fight back, albeit that he tried to fend off the blows.  The assaults on Tsang Ming Sze “were serious and prolonged” [6]: he was kicked and punched.  As a result, he slumped to the ground bleeding and semi-conscious.  Beer was poured over him to revive him and he was forced to drink beer.

5.At one point, Mui produced an 8 inch long bicycle spanner, with which he made to hit Tsang Ming Sze.  However, he was stopped by others.  Tsang Ming Sze had severe swelling to his right cheek and a swollen face, but appeared to be conscious.  Then, Mui told the group loudly, “Do you all want to die together?  Or should Tsang Ming Sze die?”  He added that Tsang Ming Sze would go to the police, if he was allowed to go.  He suggested, “Throw him into the sea!  Tie a string to his legs and throw him into the sea!”

6.The appellant was ‘dumbfounded’.  She told Lai that was going too far.  However, he ignored her.  At Mui’s direction the area was cleaned up, so as to remove fingerprints and other evidence of their presence.  Beer cans and cigarette butts were thrown into the sea.  Tsang Ming Sze’s wallet, keys and mobile telephone were removed from him.  Then, Tsang Ming Sze was escorted by Shek, Mui and Yung Kwun Kit on foot towards Lohas Park.  The appellant was taken there as a pillion passenger on Lai’s bicycle, overtaking Tsang Ming Sze on the way as the latter walked slowly in that direction.

7.At Lai’s direction, the appellant went into a female public toilet to check whether or not anyone was present.  Although she did so, she made no report to Lai on her return. Tsang Ming Sze, Shek, Mui and Yung Kwun Kit went into an area of ‘Bush’ next to the sea about 60 metres away. 　Whilst there, Tsang Ming Sze was further assaulted and thrown into the sea. 　Those events were out of the sight of the appellant. 　For her part, the appellant was taken as a pillion passenger on Lai’s bicycle back to the South-East pier.　 Later, they were joined there by Shek, Mui and Yung Kwun Kit. 　Then, they went for breakfast at McDonald’s where they discussed what happened.

8.The corpse of Tsang Ming Sze was found floating face down in the sea some 200 metres off Lohas Park, Tseung Kwan O at about 5 p.m. on 11 August 2012.

9.Finally, the appellant acknowledged that her plea of guilty to the manslaughter of Tsang Ming Sze was accepted on the basis that, whilst she intended or foresaw that Tsang Ming Sze would be assaulted at the area of ‘Bush’ next to the sea, she did not intend or foresee an assault that would result in really serious bodily harm to him or his death.

Reasons for Sentence

10.Of the role of the appellant in the killing of Tsang Ming Sze, the judge said:

“ she… was responsible for the instigation of the attacks upon the victim. It was her anger at being called promiscuous by him behind her back which led her to seek revenge. She, through a friend, obtained the services of the eventual 2^nd defendant, Lai, who was aged 28 years at the time of the offence to beat up the victim. He in turn recruited the 3rd defendant at trial, Mui, who was aged 33 years to assist in the planned attack on the victim.

Au Yeung assisted in luring the victim to the site of the planned attack. She and a friend of hers, Shek, the 1^st defendant at trial, telephoned the victim on a number of occasions to get him to come to a pier under a footbridge at Wan Poon Path in Tseung Kwan O in the early hours of 8 August 2012.

On the basis that they were going to drink, chat and play cards there, the victim arrived at the scene. Very shortly after, he was violently assaulted by Lai and Mui, and less violently so by Shek. He collapsed, was revived by beer being poured on him, assaulted again and as dawn broke was walked 1.4 kilometres down the cycle track Wan Poon Path to bushes at the seawall near Lohas Park where the final very violent assault upon him took place and he, when unconscious or nearly so, was thrown in to the sea. He almost certainly drowned shortly thereafter.

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.”

11.Of the appellant’s culpability in those circumstances, the judge said: 

“ 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.”

12.Nevertheless, the judge went on to have regard to her culpability in light of her relative youth:

“ Nevertheless, Au Yeung was 15 years and 10 months old at this time, and while vengeful, was plainly a person not with an adult’s understanding of the full potential consequences of her actions. I take 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.”

13.Having noted that the “two main perpetrators” of the killing of Tsang Ming Sze were Lai and Mui, the judge found:

“ (their) ages place themselves in a position of dominance over these two teenagers, and that Au Yeung’s continued cooperation with particularly the 2nd defendant can be explained on that basis.”

Starting point of sentence

14.In the result, the judge stipulated a starting point for sentence for the appellant of 14 years’ imprisonment. 

Discount

15.Of the mitigation advanced on behalf of the appellant, the judge said:

“ Mr Fenton points out that at the time of organising the beating of the victim, the defendant was acting in the belief that that was as far as things would go, and I accept that matters did spiral out of control and went out of her hands, to a large extent, by the decision of the other defendants, particularly the 3rd defendant at trial, to proceed further and to kill the victim.”

16.Having noted that the “primary mitigation” available to the appellant was that she had pleaded guilty at an early stage and had given evidence for the prosecution, which evidence was accepted by the jury, the judge said:

“ The evidence she gave against her co-accused was substantial and material. I have no doubt it made a significant contribution to the jury being provided with a complete and true picture of the facts of the case.

The result of the contribution to the prosecution case, in my view, is that given the backgrounds of the other defendants and their characters as revealed on the trial papers I have seen and in the evidence which I have heard, she may require protective custody for a considerable period, and will therefore experience more onerous conditions than otherwise in prison.”

17.In affording the appellant a discount of 50% from that taken for the starting point of sentence, the judge said:

“ Her evidence I am satisfied was of considerable assistance to the prosecution, though not of vital significance. I do not give her any further discount for her youth. That, in the circumstances of this case, has already been given into account by me in arriving at the starting point of sentence.

Accordingly, allowing her the 50 per cent discount for her cooperation and its known and potential consequences, her sentence is reduced to one of 7 years’ imprisonment.”

Grounds of appeal against sentence

18.In the grounds of appeal against sentence, Ms Draycott, SC submitted that:

(1)  the judge’s failure to have sufficient regard to all the available factors of mitigation led to his error in stipulating a starting point for sentence of 14 years’ imprisonment, which was too long; and

(2)  the judge was wrong to characterise the appellant’s part in the offence as close to the dividing line between manslaughter and murder.

19.By Ground 1, it was submitted that the judge failed to take into account sufficiently:

·  the appellant’s young age at the time of the commission of the offence, namely 15 years and 10 months;

·  the comparatively older ages of the other defendants, namely 20 (Shek), 27 (Lai) and 33 years (Mui), together with the fact that they had previous criminal convictions, which gave rise to a situation which the appellant was unable to control;

·  that she was sentenced 28 months after the date of the commission of the offence, at which date she was 18 years of age, and had spent 23 months in custody;

·  that the appellant was of good character with a good background and had enjoyed a successful career at school until the breakup of her family life; and

·  then, with support from her family, the appellant wished to build a constructive life upon her release from prison.

20.In her written submissions, Ms Draycott submitted that, contrary to the judge’s determination, the appellant’s culpability was less than cases which could properly be characterised as “close to the dividing line between manslaughter and murder”.  Youth was a factor which may have reduced the appellant’s foresight of the consequences of her actions.  No weapons had been used in the commission of the offence.

21.Ms Draycott drew the Court’s attention to a number of its earlier judgments, which she said were relevant to a consideration of the appropriate sentence to be imposed on the appellant and supported her contention that the judge had erred.[7]

22.In particular, Ms Draycott relied on the judgment of this court in HKSAR v. Law Chung Hin.[8]　There, the main perpetrator was sentenced to 8 years’ imprisonment on a plea of guilty.[9] 　It was to be inferred, although it was not stated, that the starting point taken for sentence was 12 years’ imprisonment.  In those circumstances, it was submitted that the maximum appropriate starting point to be taken for sentence for the appellant was 10 years’ imprisonment.

The respondent’s submissions

23.Ms Anna Lai SC, on behalf of the respondent, opposed the appeal against sentence.　In her written submissions, she reminded the court that there is no tariff for the offence of manslaughter given that the factual circumstances of the commission of the offence vary greatly. 　She submitted that sentences of more than 10 years’ imprisonment were appropriate in serious cases.[10] In her oral submissions, Ms Lai acknowledged that in none of the cases to which she referred had this Court approved of a starting point for sentence of 14 years’ imprisonment for a young defendant of the appellant’s age for the offence of manslaughter.

24.Ms Lai submitted that the judge had taken into account fully the background matters the appellant has raised, including her young age, as a result of which she was dominated by the others. It was submitted that youth was not a significant mitigating factor in an offence of manslaughter, and it was to be noted that the appellant was nearly 16 years old when she committed the offence.  The appellant had been able to recruit Lai to help her, and planned with others to lure Tsang Ming Sze to meet them.  Ms Lai submitted that the appellant’s role had also been properly considered by the judge.  The judge said that the others were the main perpetrators of the killing.

25.As to the issue of delay in sentencing, Ms Lai invited the court to note that the issue had not been canvassed with the judge in mitigation, but that nevertheless there had been no unreasonable delay in the police investigation.  Also, it was inevitable that the appellant’s sentencing would occur after the conclusion of the trial of the other accused. Finally, Ms Lai submitted that the appellant’s plea of guilty was not as timely as it could have been, given that the appellant maintained her plea of not guilty until at least the second pre-trial review and first offered to plead guilty to manslaughter on arraignment.

Ground 2

26.Of the judge’s characterisation of the offence committed by the appellant, namely that it lay on the borderline between murder and manslaughter, Ms Lai submitted that the judge’s approach in sentencing was consistent with the facts admitted by the appellant. 

27.Ms Lai submitted that the ultimate question for the Court was whether or not the sentence of 7 years’ imprisonment was manifestly excessive, not whether or not that was true of the starting point taken for sentence of 14 years’ imprisonment.  There was no requirement for the judge to stipulate a starting point for the offence of manslaughter.  In stipulating a starting point for sentence, the judge had done so in order to reflect the discount afforded to the appellant for a plea of guilty and her assistance to the authorities.  Ms Lai submitted that, having regard to the instrumental role played by the appellant in recruiting her accomplices, luring Tsang Ming Sze to the South-East pier and then checking the female toilets at the second venue to ensure that there were no potential witnesses, the judge was correct to determine that the offence committed by the appellant lay “at the higher end of the hugely variable manslaughter range of sentences”.[11] 

28.It was submitted that the ultimate sentence of 7 years’ imprisonment was entirely appropriate.  Ms Lai submitted that, although the starting point for sentence of 14 years’ imprisonment might appear to be on the high side, it was within the permissible range for a serious offence of manslaughter and the sentence of 7 years’ imprisonment imposed on the appellant was entirely appropriate. 

A consideration of the submissions 

29.Although an autopsy was performed on the body ofTsang Ming Sze, the decomposition of the body was such that the opinions expressed by Dr Lui were limited.  In his summing up in the trial of the co-defendants of the appellant, the judge said of that evidence:

“ The state of decomposition was such that the subsequent autopsy was not able to determine the complete nature of his injuries when he died, nor the actual cause of death. But it was able to be determined that the state of his body was consistent with drowning and that he had suffered no broken bones whatsoever, and nor was there any pathology found which would suggest he had died from some physical assault or trauma.”

The nature of the attack on Tsang Ming Sze

30.The appellant’s testimony, in the trial of her co-defendants, as to the attack on Tsang Ming Sze gives substance to her acceptance in the Summary of Facts that it was “serious and prolonged”, that he was “kicked and punched” and that it rendered him “bleeding and slumped to the ground semi-conscious.”

31.In her evidence, the appellant described the sequence in which Lai, Mui and Shek attacked Tsang Ming Sze.  First, Lai attacked him with his hands and legs striking blows to Tsang Ming Sze’s head, chest and abdomen.  The attack lasted about 15 minutes, after which Lai desisted.  He was sweating and panting.  Then, Mui struck Tsang Ming Sze blows with his fists, knees and feet striking Tsang Ming Sze’s head, abdomen and private parts.  That attack lasted about five minutes.  Finally, Shek slapped Tsang Ming Sze and used his knees to strike his abdomen.  As a result, Tsang Ming Sze sat on the ground leaning against a lamp post with his eyes closed.  After an interval of about 15 minutes Lai and Mui resumed their attack on Tsang Ming Sze, kicking him in his abdomen and private parts as he lay on the ground.  Of the effect on Tsang Ming Sze, the appellant said:[12]

“ Tsang Ming-sze then started to get cramp. His whole body was shaking. The right side of his head hit the ground three times.”

Not surprisingly, the judge described Tsang Ming Sze as having had convulsions.[13]

32.The appellant went on to say of Tsang Ming Sze:[14]

“ I noticed that his eyes were open but it seemed to be kind of dull.”

33.The appellant testified that there came a time when Lai armed himself with a spanner, which he took from his bicycle, which he raised as if to hit Tsang Ming Sze, but that he was disarmed by Mui and Shek.  She testified that she and Mui had shouted out to Lai to desist.[15]

34.Of the statement by Mui that Tsang Ming Sze should be thrown into the sea, the appellant said that she had spoken to Lai and told him, “…not to go so far and not to throw him into the sea.” [16] However, he had ignored her.  In cross-examination, in explaining why she had not spoken to Mui directly, the appellant said that she was “terrified” of him.[17]  She had met him for the first time in the early hours of the morning of 8 August 2012 when Lai introduced her to him.[18]

Lohas Park

35.There is no dispute that the appellant was not present at nor witness to any further assault that was visited on Tsang Ming Sze after he had been escorted a distance of about 1.4 km to the area described as the Bush beyond which was a wall abutting the sea.  For her part, the appellant said that she was taken on Lai’s bicycle from the pier to the public toilets, 60 metres away from the area of Bush along the seaside to which Tsang Ming Sze was taken subsequently.  On the way, they overtook Tsang Ming Sze who was walking “very slowly”, but unsupported.  Together with him were Mui, Shek and Yung Kwan Kit.  Having entered the female toilet, at Lai’s request, to check whether anyone else was present, she remained outside the toilets in that vicinity.

36.After they had been there for a “few minutes”, at Lai’s direction, she mounted his bicycle and he took her to a place near to the pier.  He said “Wait for Ah Nam and the others to come back.”  Eventually, Mui, Shek and Yung Kwan Kit joined them coming from the direction of Lohas Park.  Lai did not reply to her enquiry as to the whereabouts of Tsang Ming Sze and, specifically, if he had been thrown into the sea.  Nevertheless, she accepted his invitation and joined them for breakfast at McDonald’s in Hang Hau.  There, Lai and Mui enjoined her to tell the police, if asked, that she knew nothing about the events of that day and to tell no one else.  One of the two of them produced Tsang Ming Sze’s wallet and the other his mobile telephone.  She examined them, observing that the screen of the mobile telephone contained a photograph of his girlfriend, whereas the wallet contained his identity card and his child Octopus card.

37.In cross-examination, the appellant said that she had not intervened to stop the assault on Tsang Ming Sze “because I felt the situation was not that serious.”  She added, “I started to think that it was serious after they had taken him away.”  She said that she was frightened, not only for Tsang Ming Sze but also “for her own well-being.”[19]

38.In HKSAR v Law Chung Hin[20], this Court quashed sentences of 8 years’ and 7 years and 3 months’ imprisonment imposed on the respective applicants following their pleas of guilty to the manslaughter of a 15-year-old boy and substituted sentences of 5 years’ and 6 years’ imprisonment respectively.

39.The applicants had been arraigned on an indictment alleging the murder of the boy.  The applicants, who were the 2ndand 3rddefendants at trial, together with the 1st defendant, were members of the Wo Shing Wo Triad Society.  They were part of a group of 15 to 20 young men who carried out a revenge attack precipitated by the complaint to the 3rd defendant of another member of the Triad Society of an assault on him by a group of young men, of whom the deceased was one person.  The 1st defendant led the assault on the deceased, kicking and punching him and using his knees to assault him.  The 2ndand 3rddefendants also delivered blows to the deceased.  Other attackers used beer bottles.  Finally, the 1st defendant stamped on the deceased, who died of a ruptured liver.  The pathologist said that injury was caused by blunt force trauma.

40.The 1st, 2ndand 3rddefendants were aged 19, 14 and 16 years, respectively, at the time of the commission of the offence.  In sentencing the three defendants, the judge said “I consider a sentence of eight years’ imprisonment appropriate in such circumstances for each of the three defendants.”

41.In the judgment of this Court, Stock VP reviewed a number of judgments of this Court in which the sentences imposed for manslaughter were addressed.  He said:[21]

“ The courts have shied (away) in cases of manslaughter from providing guidelines because the facts underlying convictions for such offences vary enormously and appropriate sentences can range from probation to substantial terms of imprisonment. Nonetheless, this particular category of conduct , namely, gang fights or gang revenge attacks resulting in obviously foreseeable harm but non-intentional death, is, regrettably, an all too frequent subject of consideration by the courts of this jurisdiction; not least as a feature of the scourge of triad membership and triad violence, luring youth into its wholly negative antisocial net.

It is in this type of context that the courts have said that there must be some internal consistency of sentence so that those guilty of manslaughter in broadly comparable circumstances receive broadly comparable sentences:R v KoKam-hung [1991] 2 HKLR 433.”

42.Having noted that the “rigid approach” appropriate to sentencing in drug trafficking cases was inappropriate for the offence of manslaughter, Stock VP said:[22]

“ …manslaughter cases tend to be at the other end of the spectrum, lending themselves necessarily to acute sensitivity to the facts of each case and the circumstances of each offender.”

43.In allowing the applications and quashing the sentences, Stock VP said that the judge had erred in not distinguishing between the culpability of the 1st defendant and that of the two applicants.  He said that the 1st defendant was “clearly the ringleader”.  He went on to say:[23]

“ It was D1 who led the individual assault on Ng by dragging him out of the arbor and it was he who deliberately struck the fatal blow, which was a particularly vicious blow. He was as well the person who, albeit at D3’s request, assembled the assailant group in the first place; he was also several years older than the other two defendants and was the dominant personality in the group.”

44.As Stock VP noted, there was no application before the court from the 1st defendant in respect of his sentence of 8 years’ imprisonment.  Nevertheless, he went on to say:[24]

“ 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 to, and deliberately jumps upon, the stomach of a youth lying on his back.”

45.Of the sentence of 8 years’ imprisonment imposed on the 1st defendant, Stock VP said:[25]

“ Given the facts of this case which we have highlighted it cannot justifiably be contended that the sentence imposed on D1 was in the least excessive.”

46.No doubt, the cautious language used in describing the sentence of imprisonment imposed on the 1st defendant was a reflection of the fact that there was no application for leave to appeal against sentence from the 1st defendant and the court had not received the benefit of submissions that would otherwise have been advanced in support of and against such an application. In those circumstances, we are satisfied that the sentence of 8 years’ imprisonment imposed after a plea of guilty for manslaughter in the circumstances of this case is not to be taken as establishing the upper limit of sentence for manslaughter in a pre-meditated, revenge attack in which some weapons were used by a Triad-related group outnumbering the victim(s) in circumstances which border on the offence of murder.

47.It is clear that in determining the appropriate sentence of imprisonment to be imposed on the two applicants the court had regard to their relative culpability in relation to that of the 1st defendant and the sentence of 8 years’ imprisonment imposed on him.  Of the factors of aggravation in the commission of the offence, Stock VP said:[26]

“ …this was a planned attack, not a dispute which degenerated into violence; and that there were in the group to which the applicants belong a large number of assailants, much larger than the small group upon whom the attack was launched. The case is also to be viewed in light of the fact that it was steeped in triad overtones. The attack upon the deceased was prolonged and vicious”

48.Of the relevance of the age of the two applicants, namely 14 and 16 years, respectively, Stock VP said:[27]

“ Those who join in triad related attacks, let alone attacks that result in someone’s death, must not be allowed to hope for lenience at the hands of a court on account of age; for it behoves the courts to send to the youth of this jurisdiction a strong deterrent message. Extreme youth will sometimes warrant sentencing recognition…”

49.In respect of the 2nd defendant, Stock VP went on to say:[28]

“ but we note he has a previous conviction for violence for an offence committed shortly before the present offence, and that he was on police bail at the time of the present offence, an aggravating factor, and that he admitted to using a bottle on one of the assaulted group…. unlike D1 and D3, he was not a party to gathering or in causing to be gathered a group for the attack.”

50.In concluding that the culpability of the 3rd defendant lay between that of the 1st and 2nd defendants, Stock VP said:[29]

“ D3 was one of those who took part in the kicking and punching of Ng. He it was who asked D1, at the request of another, to arrange the revenge attack, and the admitted facts tell us that he with D1 assembled the group to carry out that attack. He is older than D2 by a couple of years but young, nevertheless and several years younger than D1. That said, this offence was committed whilst he was on bail for another offence of violence, clearly an aggravating factor.”

51.In The Queen v Ko Kam Hung[30] this court refused an application for leave to appeal against his sentence of 8 years’ imprisonment imposed on the applicant after his plea of guilty to an offence of manslaughter on an indictment which averred the murder of the deceased.  In addition, the applicant had been sentenced to 1 year’s imprisonment for an offence of assault occasioning actual bodily harm arising from the same incident, which sentence was ordered to be served concurrently.

52.The killing occurred after midnight in an estate in Kwai Chung and arose from a dispute in respect of the fact that the deceased was playing with remotely controlled mobile cars.  Having punched and kicked the deceased, and while he was on the ground, the applicant placed a dustbin lid over his head and chest and jumped up and down on the lid crushing the deceased’s chest.  The applicant was 19 years of age, of good character and the recipient of a favourable probation report.

53.In the judgment of the court, Sir Derek Cons VP observed that because of the “infinite variety of the ways” in which the offence of manslaughter could be committed the courts have been unable to suggest guidelines tariffs, as it had done in respect of unlawful trafficking in dangerous drugs.  Nevertheless, he went on to say:[31]

“ Nevertheless there must be some internal consistency of sentence, so that those who are guilty of manslaughter in broadly comparable circumstances receive broadly comparable sentences; and there must be some external consistency so that, for example, there is no glaring disparity with those guilty of other offences, such as robbery, which also necessarily involve violence.”

54.Having adverted to the judgment of this court in the Attorney General v Tam Ka Lok,[32] in which this court said of the starting point taken for sentence by the judge of 6 years’ imprisonment, in respect of the applicants who had pleaded guilty to an offence of manslaughter, in which a group of 10 to 12 young men had attacked another group with wooden poles, pipes and at least one knife as a result of which the deceased was fractured and his brain injured so that he died, Sir Derek noted that this Court has said that whilst 6 years’ imprisonment was on the low side it was not manifestly inadequate.  He went on to say:[33]

“ We take from that remark that the court had in mind about eight years, with which we would respectfully agree. In our view that would be an appropriate base for considering the case of anyone, whether himself armed or not, who takes part in a gang attack with others, some or all of whom carry weapons such as wooden poles or water pipes, and from which death ensues. It is well established that in such circumstance youth, unless extreme, family situation or clear records count for little by way of mitigation. Triad overtones as such are irrelevant, except perhaps to indicate that the attack was premeditated. On the other hand a plea of guilty, and in some instances voluntary surrender to the authorities, will naturally be accorded due weight.”

55.In her oral submissions, in response to an enquiry from the Court, Ms Draycott submitted that the appellant fell to be considered as someone of ‘extreme youth’.  We have no hesitation in rejecting that submission.  At the time of the commission of the offence, the appellant was 15 years and 10 months old.  In addition, regard is to be had to the maturity that she evidenced in her conduct.  Having determined to teach Tsang Ming Sze a lesson for disseminating scurrilous comments about her and having been referred to Lai by her friend and his girlfriend, the appellant was an active party to the arrangements made to lure him into a trap.  She played her part in persuading him on the telephone to come to the pier.

56.On the other hand, as the judge determined her youth, albeit not ‘extreme youth’, was relevant to a consideration of sentence.  Of that factor, the judge said:[34]

“ Nevertheless, Au Yeung was 15 years and 10 months old at the time and while vengeful, was plainly a person not with an adult’s understanding of the full potential consequences of her actions. I take 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.”

57.Clearly, the judge was correct to have regard to the fact of her youth in that way.　 In particular, it was relevant to a consideration of the culpability in her continued participation in the enterprise. 　No doubt, it was for that reason that the judge said:[35]

“ I accept that matters did spiral out of control and went out of her hands, to a large extent, by the decision of the other defendants, particularly the 3^rd defendant at trial, to proceed further and kill the victim.”

58.Similarly, he determined that, having regard to the respective ages of Lai and Mui (27 and 33 years), they were “in a position of dominance” over the appellant and Yung Kwun Kit.  In that regard, he said of the appellant that her:

“ …continued cooperation with particularly the 2^nd defendant (Lai) can be explained on that basis.”

59.It is to be remembered that it was the appellant’s evidence that it was Lai who told Shek to telephone Tsang Ming Sze to arrange for him to meet them in the early hours of 8 August 2012.  It was Lai who confronted Tsang Ming Sze with their pre-arranged charadethat the appellant was Lai’s girlfriend and that Tsang Ming Sze had offended her.  Lai initiated the attacks on Tsang Ming Sze and eventually invited Mui to do likewise.  On Lai’s instructions, the appellant waited at the pier after Tsang Ming Sze was escorted away towards Lohas Park. On Lai’s return, and on his instructions, she mounted his bicycle and they rode past Tsang Ming Sze and those escorting him and went to the public toilets.  It was on Lai’s instructions that she went into the female toilets to see if anyone was present.  Then, on Lai’s instructions she remounted his bicycle and was taken by him back to the area around the pier where, again on his instructions, she waited for Mui and the others to join them.  When she indicated that she wished to leave, it was at Lai’s request that she stayed, having been told that he wished to talk to her later.  Finally, it was at Lai’s invitation that she was carried on his bicycle to the McDonald’s restaurant to have breakfast.  There, she took Tsang Ming Sze’s wallet and mobile telephone from Lai and examined them.

60.In our judgment, having regard to the factors of mitigation that the judge correctly identified, in particular the dominance over the appellant of Lai that explained her continued participation in the enterprise, with respect to the judge the starting point for sentence of 14 years’ imprisonment he stipulated was, with respect to the judge, manifestly excessive.  In our view, the appropriate starting point for sentence is 12 years’ imprisonment.  There is no dispute that the appellant was entitled to a 50% discount from that starting point for the reasons articulated by the judge.

Conclusion

61.In the result, we allow the appeal against sentence, quash the sentence of 7 years’ imprisonment and in its place substitute a sentence of 6 years’ imprisonment.

Ms Anna YK Lai, SC, DDPP (Ag.) and Mr Ivan Cheung, PP, of the Department of Justice, for the respondent

Ms Charlotte Draycott, SC, instructed by Pauline Wong & Co., assigned by Director of Legal Aid, for the appellant

[1] The 3rd defendant on the original indictment.

[2] The 2nd defendant on the original indictment.

[3] The 4th defendant on the original indictment.

[4] The 5th defendant on the original indictment. 

[5] PW23.

[6] Appeal Bundle; page 38, Summary of Facts, paragraph 21.

[7] Secretary for Justice v. Wong Yin Tak & Ors [2000] 3 HKC 482: armed attack resulting in fatal stabbing (starting point of 6 years’ imprisonment);　The Queen v. Chan Man Tung (CACC 553A/1995; unreported, 2nd July 1996): an attack with knives (starting point of 12 years’ imprisonment); Attorney General v. Li Ying Kuen & Anor [1995] 3 HKC 539: 16 and 17 year old boys killed a 13 year old boy - sentence of 5 years’ imprisonment; The Queen v. Cheung Chi Man (CACC 14/1992; unreported, 5 May 1993): 8 years’ imprisonment after plea; HKSAR v. Wong King Wai [2008] 2 HKC 614 (starting point of 9 years’ imprisonment); R v. Ko Kam Hung [1991] 2 HKLR 433: ‘attack on the borderline of murderous intent’ (starting point of 12 years’ imprisonment).

[8] HKSAR v. Law Chung Hin [2012] 1 HKLRD 450.

[9] The case involved a gang fight carrying out a revenge attack using bottles as weapons.  The defendants all had previous convictions and were members of a triad society.  They were variously sentenced to 5, 6 and 8 years’ imprisonment on pleas of guilty.

[10] HKSAR v. Cheung Kwok Kay (CACC 377/2000; unreported, 4 April 2001): an attack on unarmed victims by about 20 participants armed with beef knives/wooden poles; acting as lookout -　starting point of 12 years’ imprisonment; HKSAR v. Sze Kwan Lung & ors (CACC 92/2002; unreported, 11 December 2003): arson in Immigration Tower - sentences of 12 to 14 years’ imprisonment; HKSAR v. Li Cheng Hong & ors (CAC 202/2008; unreported, 30 April 2009): armed robbery resulting in death - starting points of 15 and 18 years’ imprisonment; HKSAR v. Lin Siu Lun [2009] 6 HKC 308: manslaughter of mildly mentally retarded person - sentence of 12 years’ imprisonment;

[11] Appeal Bundle, page 1845 A-B.

[12] Appeal Bundle, page 2240 T-U.

[13] Appeal Bundle, page 150 L.

[14] Appeal Bundle, page 2241 S.

[15] Appeal Bundle, page 2236.

[16] Appeal Bundle, page 2250 F.

[17] Appeal Bundle, page 2282 P-Q.

[18] Appeal Bundle, page 2228 G-H.

[19] Appeal Bundle, page 2272 O-R.

[20] HKSAR v Law Chung Hin [2012] 1 HKLRD 450.

[21] HKSAR v Law Chung Hin, paragraphs 28-9.

[22] HKSAR v Law Chung Hin, paragraph 39.

[23] HKSAR v Law Chung Hin,paragraph 41.

[24] HKSAR v Law Chung Hin,paragraph 9.

[25] HKSAR v Law Chung Hin,paragraph 39.

[26] HKSAR v Law Chung Hin,paragraph 9.

[27] HKSAR v Law Chung Hin, paragraph 42.

[28] HKSAR v Law Chung Hin, paragraph 42.

[29] HKSAR v Law Chung Hin, paragraph 44.

[30] The Queen v Ko Kam Hung [1991] 2 HKLR 433.

[31] The Queen v Ko Kam Hung, page 436 A-B.

[32] Attorney General v Tam Ka Lok (CAAR 4/ 1990; unreported, 7 June 1990).

[33] The Queen v Ko Kam Hung, page 436 G-I.

[34] Appeal Bundle, pages 1845 T - 1846 B.

[35] Appeal Bundle, page 1846 G-H.