HKSAR v. Leung Yuk Ping

CACC 182/2018

[2019] HKCA 77

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 182 OF 2018

(ON APPEAL FROM HCCC NO 297 OF 2017)

________________________

________________________

Before: Hon Macrae VP in Court

Date of Hearing: 15 January 2019

Date of Judgment: 15 January 2019

________________________

J U D G M E N T

________________________

1.The applicant faced an indictment before D’Almada Remedios J (“the judge”) and a jury, alleging that on 8 October 2016, at premises in Wai Yan Street, Tai Po, New Territories, he murdered So Chun Ho (“the deceased”).

2.The applicant pleaded not guilty to the indictment, although it is accepted that he had offered to plead guilty to manslaughter by reason of provocation prior to the trial, which offer was not accepted by the prosecution. However, no formal plea of guilty to manslaughter was entered at the commencement of the trial.

3.Following a trial, the applicant was acquitted of murder but convicted of manslaughter by reason of provocation.  The judge passed a sentence of 6 years and 9 months’ imprisonment.  He now seeks leave to appeal against his sentence.

Facts

4.The evidence of what happened between the applicant and the deceased on the day of the incident came essentially from the applicant’s record of interview and his evidence.  There were no witnesses to the killing.

5.It was the applicant’s case that the two men had met each other about a month before the incident.  Since then, the deceased would sometimes go to the applicant’s home when he had nothing in particular to do.  On 8 October 2016, the applicant went to bed at about 7 or 8 am.  Shortly afterwards, the deceased came to the applicant’s premises and asked if the applicant had any money.  Although the applicant said he did not, the deceased remained in the premises for some time, while the applicant went back to sleep.  The deceased then left the premises.

6.The deceased returned to the applicant’s premises again later in the morning, asking the applicant to take him somewhere to borrow some money.  The applicant then claimed that he noticed that $300 was missing from the place where he kept it in his room and a quarrel ensued, during which the applicant picked up a fruit knife to threaten the deceased. During the quarrel and subsequent commotion, the deceased suffered a stab wound to the heart about 6 centimetres in depth.

7.At about 11:36 am on the same day, the deceased took a taxi by himself to hospital.  He was certified dead by a doctor at 12:34 pm on the same day.  The cause of death was massive blood loss caused by a stab wound to the deceased’s heart.

8.During the trial, the applicant’s offer of a plea to manslaughter having been rejected, the defence put forward before the jury was that the stabbing was accidental and unintentional; alternatively, that the applicant was guilty of manslaughter only by reason of provocation.

9.The jury acquitted the applicant of murder but convicted him of manslaughter by reason of provocation.  In so doing, they must have accepted that he intended to at least cause grievous bodily harm to the deceased, albeit under provocation, and rejected the defence of accident.

Mitigation

10.The applicant was 42 years of age at the time of the incident, while the deceased was 22.  He had 17 previous convictions, which included numerous offences of possession of dangerous drugs going back to 1993, two offences of claiming and being a member of a triad society respectively, three offences of criminal intimidation, two offences of blackmail and one offence of possession of an offensive weapon.  He had also previously been sentenced to 12 years’ imprisonment for trafficking in dangerous drugs and had other convictions for offences of dishonesty.

11.Two psychiatric reports were called for by the judge. According to both reports, the applicant was not suffering from any mental problem, although it was recommended that he should continue visiting an outpatient clinic.

Reasons for sentence

12.The judge was of the view that the degree of provocation found by the jury was “on a very small scale” and of very short duration, for which the applicant’s response was disproportionate.  Judging from the applicant’s criminal record, he had a tendency to resort to aggressive behaviour and knives when agitated or annoyed.  She considered him to be a danger to the public.

13.The judge adopted a starting point of 8 years’ imprisonment and, given that he had put forward a defence that he was not guilty of any form of homicide by advancing the defence of accident, she gave him a discount of 1 year and 3 months’ imprisonment only.  The resulting sentence was 6 years and 9 months’ imprisonment.

Grounds of appeal against sentence

14.In the Grounds of Appeal attached to his Form XI filed on 3 July 2018, the applicant complains that since he had indicated his willingness to plead guilty to a manslaughter charge at an early stage and was remorseful, the judge should have given him a full one‑third discount from the proposed starting point.  The applicant has reiterated this matter this morning, further requesting that Legal Aid be granted to him.

Consideration

15.I do not propose to go into a lengthy discussion of the approach to sentencing in manslaughter cases, which offences have long been acknowledged do not easily lend themselves to guidelines or comparisons with other cases.

16.The only real issues in this appeal are, firstly, the starting point, about which the applicant makes no complaint but which Mr Lui, on behalf of the respondent, submits is lenient, given the minimal provocation concerned and the applicant’s appalling criminal record and propensity for violence or aggression; and, secondly, the discount of effectively 15.6%, which the applicant says is inadequate given his early indication of a plea to manslaughter which had been rejected by the prosecution, but which discount Mr Lui says is appropriate.

17.On the issue of starting point, I can see no reasonably arguable ground of appeal that a starting point of 8 years’ imprisonment is manifestly excessive.  Indeed, I agree with Mr Lui that the sentence for manslaughter in circumstances of minimal provocation, in which a young life is needlessly lost at the hands of someone who evidently resorts too easily to threats and aggressive behaviour cannot be said to be too long.  It would seem to me that the applicant could not have complained if the starting point had been in the region of 9 or 10 years’ imprisonment: see R v Yu Wing Sze[1]; HKSAR v Lim Khi Chong[2].

18.In respect of the appropriate discount, Mr Lui refers to the definitive statement of principle explained by the Appeal Committee of the Court of Final Appeal in Sze Kwan Lung & Ors v HKSAR[3], per Bokary PJ, at paragraph 1:

“Sometimes a defendant who faces a murder charge offers to plead guilty to manslaughter. If his offer is rejected by the prosecution, he has a choice. He can fight the case on the basis that he is not guilty of murder but guilty of manslaughter. Or he can fight the case on the basis that he is not guilty of any homicide. There is a considerable difference between these two courses. If the defendant is convicted of manslaughter after pursuing the first course, the full one‑third discount of sentence for a guilty plea is normally given. But if he is convicted of manslaughter after pursuing the second course, something less than a one‑third discount is normal.”

19.This statement of principle, which resonates with the present case, has subsequently been applied by the Court of Appeal in HKSAR v Francisco Reynaldo[4], HKSAR v Yau Kit Keung[5] and HKSAR v Wong Kam Shing, Jackie[6].  In Yau Kit Keung, the Court reiterated, at paragraph 37, that:

“…if (a defendant) is convicted of manslaughter having pleaded not guilty to any form of homicide then, depending on the circumstances, it is open to the judge to determine whether any form of discount is warranted.” (Emphasis supplied)

20.I can see no reasonably arguable grounds of appeal that the discount adopted by the judge fell outside the range properly open to her in the circumstances of this case; particularly where the initial starting point could well have been higher.

21.The application for leave is accordingly refused.  The applicant is duly advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

Mr Ira Lui ADPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person