HKSAR v. Nawaz Ahsan

CACC 121/2018

[2019] HKCA 459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 121 OF 2018

(ON APPEAL FROM HCCC NO 191/2017)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.The applicant was indicted jointly with two other defendants, Arbaz Muhammad (“D2”) and NAWAZ Mohsin (“D3”), for the offence of murder, contrary to common law and punishable under section 2 of the Offences against the Persons Ordinance, Cap 212.

2.On 12 April 2018, the applicant and D2 pleaded not guilty to the murder charge but guilty to the alternative count of manslaughter before Deputy High Court Judge Stuart-Moore (“the judge”). Their pleas being accepted by the prosecution, they were duly convicted. On 16 April 2018, D3 also pleaded guilty to the alternative count of manslaughter and upon his plea being accepted by the prosecution, he was also duly convicted.

3.On 17 April 2018, the applicant was sentenced to 10 years’ imprisonment, whilst D2 and D3 were sentenced to 5 years’ and 7 years’ imprisonment respectively.

4.On 27 April 2018, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against his sentence.

5.At the hearing of the application we refused it and dismissed the applicant’s appeal. We said we would hand down our reasons for doing so at a later date. These are our reasons.

The joint Summary of Facts for the applicant and D2

6.The applicant and D2 admitted a joint Summary of Facts for the purpose of their sentencing. D3 admitted a separate Summary of Facts that drew largely upon the joint Summary of Facts of the applicant and D2 but which contained certain facts peculiar to him.  

7.The joint Summary of Facts revealed that the deceased, Mr Au Chi Shing, was 62 years of age and was employed as a security guard at a construction site in Kiu Wong Street, Tin Shui Wai. He was described as “a quiet person who maintained a regular life style.”[1]

8.The applicant and D3 are twin brothers and they lived together at the same address. Their elder brother, Khan Asaf NAWAZ (“Khan”) had worked as a security guard at the same site as the deceased and would take over from him at the change of shift.

9.The deceased had complained against Khan for being late to take over the shift and, as a consequence, Khan was transferred to another site on 26 January 2016. Subsequently, Khan made a request to return to the Kiu Wong Street site but this request was refused. When Khan’s supervisor suggested Khan be posted to a site in Fanling, Khan rejected the offer and resigned.

10.On 9 February 2016, the applicant, D2 and another person arrived together at Hang Mei Tsuen LRT station at 6:36 pm. This was in the vicinity of the Kiu Wong Street construction site.

11.On 13 February 2016, the applicant, D3 and another person arrived at Hang Mei Tsuen LRT station again at around 6:55 pm, which would have been about the time the deceased was on his way home from work.

12.On 14 February 2016, the applicant, D2 and D3 and another person arrived together at Hang Mei Tsuen LRT station at about 6:20 pm, with the intention of beating the deceased in order to teach him a lesson.

13.At around 6:40 pm on 14 February 2016, the deceased left the construction site, in order to meet up with his ex-wife. When he was walking along a dark pavement between Kiu Fat Street and Kiu Wong Street, about 70 metres from his workplace, sometime between 6:41 pm and 6:48 pm, the applicant, D2, D3 and another person attacked him.

14.D2 and the person who was with him did not participate physically in the attack but stood aside and used the applicant’s mobile telephone to make a video recording of the attack. During the attack the deceased was pushed to the ground and whilst on the ground was kicked and stamped on by the applicantwho also stamped on the deceased’s head using his right foot. On the video recording it is possible to hear the deceased screaming whilst being attacked. The video recording is not sufficiently clear to enable identification of persons taking part in the attack but kicking and stamping actions by one person can be made out.[2]

15.About 7:40 pm, a passer-by, Mr Lam (“PW4”), spotted the deceased lying motionless on the pavement without breathing and without any sign of a pulse. He called 999 for an ambulance.

16.At about 7:49 pm, the ambulance arrived. A preliminary examination of the deceased at the scene revealed him to be curled up on the ground without any response and with abrasions and bloodstains on his forehead. There were no signs of breathing or of a pulse.

17.The deceased was then taken to hospital where, after unsuccessful attempts at resuscitation, he was certified dead at 8:29 pm.

18.When the police attended the scene where the deceased had been attacked they found bloodstains on the pavement, on a low wall and on a newspaper.

19.According to the autopsy report, the cause of death was multiple blunt injuries consistent with an assault. The pathologist found:

(i)  bleeding in the abdominal cavity and lacerations of the liver and right kidney. The laceration of the liver was such as to cause a subscapular haematoma which had burst and which was the likely cause of the blood in the abdominal cavity. The damage to the kidney was less severe in comparison;

(ii)  multiple fractures of the rib cage caused by blunt impact trauma when the deceased would have still been alive and which could have impaired his respiratory movement and further contributed to his death.

20.A hexagonal shaped inter-dermal bruise was found on the deceased’s face which, according to the pathologist, would have been caused by localised blunt trauma by an object which had grooves on its surface.

21.The pathologist was shown the video recording that had been retrieved from the applicant’s mobile telephone and, after viewing it, he expressed the opinion that the multiple fractures of the ribs and the lacerations to the liver and kidney could have been caused by the kicking and stamping with feet that could be seen in the video recording.

22.On 22 February 2016, the applicant was arrested. Under caution, the applicant only said “I understand”. When the applicant was further interviewed under caution at the police station, he remained silent.

23.When persons who are remanded in custody receive visitors their conversations are recorded and they are alerted to this fact by signs that are conspicuously displayed. Whilst remanded in custody, the applicant told a visitor that they had not intended to kill the deceased and that they had just kicked and punched him. The applicant also referred to the making of the video recording.

24.An examination of the applicant’s shoes found bloodstains of the deceased on the right side of the shoe of one of the shoes and on the heel. Furthermore, the hexagonal shaped bruise on the deceased’s face was found to match the pattern design and size of the sole of the applicant’s shoe.

25.Of the role of the applicant in the attack on the deceased, the joint Summary of Facts state:

“53. The prosecution’s case in short is the attack on Au was premeditated – it was the result of a common purpose or joint enterprise to beat Au to teach him a lesson. The beating of Au caused his death. The beating was an unlawful and dangerous act.

54. D1 was directly involved in the beating in that he was one of the persons who inflicted the blows and kicks which lead to the death of Au. Whilst their intention was not to kill Au but to beat him one or more of the blows or kicks inflicted was too severe and caused the death of Au.”

26.In an interview with the police, D2 said he and another person, not D3, watched the deceased being beaten and it was he, D2, who had made a video recording of it on the applicant’s mobile telephone. He said the role that he, and the person who was with him, played was to act as lookouts. Of the role of D2 in the attack on the deceased, the joint Summary of Facts state:

“55. D2 had gone along as part of the joint enterprise. He agreed to keep an eye open, raise an alert if anyone came and to make the video. By his action he offered support and remained at the scene until the beating had concluded.”

The mitigation

27.The applicant’s counsel, the late Mr Kevin Egan, informed the judge that the applicant was 26 years old at the time of sentence. He is a Hong Kong permanent resident and single, and was employed as a construction worker prior to his arrest.

28.During his mitigation, Mr Egan drew the judge’s attention to a witness statement in the committal bundle by a person who had walked past the deceased and had observed him to be kneeling on both knees. Because of this posture this person had mistaken the deceased for a beggar. Drawing on these facts, Mr Egan submitted that the amount of force applied to the deceased during the attack was not such as to render him totally senseless, albeit they caused him mortal injuries from which he later succumbed.

29.Mr Egan also said that the applicant maintained, contrary to D2’s claim, that, though he gave his mobile telephone to D2, he had never asked him to record the attack as a joke.

30.In respect of the appropriate sentence, Mr Egan submitted that as far as the offence of manslaughter is concerned, the sentence depends upon the factual circumstances of each case. He referred to the judgment of the Court of Appeal in HKSAR v Kong Yiu Kam & Anor[3],in supportof a submission that if a sentence of 9 years’ imprisonment was appropriate in that case then the applicant should receive a sentence less than this.

31.Mr Egan submitted this was simply a case where the deceased’s death flowed from an assault that went badly wrong and so it was not necessary to impose a deterrent sentence and that the rehabilitation of the applicant was of paramount importance in the assessment of an appropriate sentence.  

32.Mr Egan agreed with the judge’s comment that the applicant was in the worst position of all the defendants.

The Reasons for Sentence

33.The judge commenced his Reasons for Sentence by noting that the deceased was 62 years old, 155 centimetres in height and weighed only 47 kg. The applicant and D3, on the other hand, were twin brothers, only 25 years old at the time of the attack, and in good health. They launched their attack upon the deceased under cover of darkness. The judge described their attack as “brutal and very cowardly indeed.”[4] 

34.The judge said the deceased was killed “by a combination of kicks, fists and ultimately stamping.”[5] Recognising that the applicant did not have the intention to kill or even to cause the deceased grievous bodily harm, the judge noted that:

“It seems that it was the frailty of their victim and the manner of the attack which combined to bring about his death.”[6]

35.The judge said that a serious feature behind the offence was that the attack had been very carefully planned, being preceded by a reconnaissance mission a few days before and on the day before. The defendants knew exactly what the deceased looked like and that he would be no match for their strength.

36.The location of the attack was a path between two roads and was a very quiet location. Furthermore, it happened during Chinese New Year when fewer people than normal would be expected to be in the vicinity.

37.The judge said he had seen the video recording and the very fact that it was taken was “an illustration of how utterly callous this attack was.”[7] After viewing the recording the judge said:

“… it is perfectly plain that this was a merciless attack on a helpless elderly man who was simply walking home after a 12-hour shift at work.”[8]

38.The judge had regard to the motivation of the applicant and D3 in attacking the deceased, namely, the conduct of the deceased in complaining against their elder brother which had led to the elder brother resigning from his employment. The judge concluded that with that being the motivation behind the attack on the deceased, the offence could properly be described as a revenge attack.

39.With regard to the autopsy report, the judge noted that the fractures of the ribs to the back of both sides, left and right, were caused by blunt impact trauma whilst the deceased was still alive. Internal bleeding had led to the abdominal cavity containing about a litre of blood. He quoted the pathologist’s opinion that the laceration to the liver “would have required a large amount of force” and the laceration to the kidney “would have required moderate force”.[9]

40.In respect of D2, the judge noted that he showed remorse in the detailed confession that he made to the police. However, in respect of the applicant and D3, it was plain from the remand centre recordings of their conversations with their visitors that they “show very little remorse for what they had done.”[10] The judge said they only felt sorry for themselves, that they had been caught.

41.Nevertheless, the judge accepted that none of the assailants expected the deceased would die and the serious harm that was caused the deceased was never intended. The judge found that what D2 envisaged would happen was that the applicant and D3 would just slap and punch the deceased.  But more than punching and slapping took place. In the remand centre conversations with visitors, the applicant admitted assaulting the deceased but denied any intention to kill him. However, in one conversation the applicantadmitted kicking the deceased when, in order to minimise what he had done, he asserted that he only hit the deceased two or three times and did not kick him more than three times.    

42.In these circumstances, the judge found that the attack went well beyond merely slapping and punching and that the applicanthad escalated it to stamping and kicking.

43.Although D2 was acting as a lookout, which normally called for the same sentence as the main perpetrator, the judge considered his mitigation stood him in good stead and justified a distinction being drawn between him and the applicant and D3. The judge said he was in a different category from them and sentenced him to 5 years’ imprisonment.

44.In respect of D3, the judge noted though there was no evidence he actually kicked the deceased or stamped on him and in a remand centre conversation with a visitor he had made “it plain that they had only gone for ‘slapping and punching’”.[11] The judge considered there was some distinction between the applicant and D3 because of the aggravated role played by the applicant. But, he was participating in the attack and when the applicant took it to a new level, D3 did nothing to stop him or to leave the scene. In the view of the judge, D3’s participation warranted a sentence of 7 years’ imprisonment.

45.As far as the applicant was concerned, the judge considered his case of manslaughter came close to the line of murder. In noting that the only worthwhile mitigation for the applicant, whom the judge characterised as “the main perpetrator”, was his plea of guilty, the judge went on to describe his conduct as follow:

“… the main perpetrator, the 1^st defendant, who had, in such a cowardly fashion, carried out this premeditated attack and on such a weak and elderly person because it wasn’t just by punching and hitting, it was the kicking and stamping which makes his position much worse.”[12]

46.Taking into account the applicant’s guilty plea and the circumstances disclosed during his counsel’s mitigation, the judge imposed a sentence of 10 years’ imprisonment on the applicant.

The ground of appeal against sentence

47.The only ground of appeal against sentence being pursued is a complaint of disparity of sentence, based on an assertion that the judge “attached improper weight to the varying roles of the first and second defendants, thereby finding that their roles in the attack were more different than they were on the facts, both defendants physically participated in the attack to a large degree.” It became apparent from the written submissions of the applicant’s counsel, Mr Thomas Martin, that the thrust of the complaint was in respect of the distinction drawn by the judge between the applicant and D3 rather than D2.   

48.Mr Martin relied on the following passage from the Court of Appeal’s judgment in R v So Hung Lee & Anor as a statement of the relevant legal principle:

“The first is where there is a disparity between sentences passed on the same occasion by the same judge. In this case the sentence should be varied by this court if, but only if, it can be shown that the judge has not properly apportioned the blame between the accused. If the sentence was otherwise appropriate and the judge was under no misapprehension of the roles of the various accused, then the sentence should stand.”[13]

49.Mr Martin, submitted that as the case against the applicant was one of joint enterprise there should not have been a big disparity in sentence between the three defendants.

50.It was Mr Martin’s submission that the judge had erred in his apportionment of blame between the three defendants and that this error resulted in a disparity of sentence between the applicant and D3. One of the factors that contributed to this error was that there was a lack of evidence as to D3’s exact involvement. The Summary of Facts did not say in what way or manner D3 actually participated in the attack. All that was known was that they planned the attack and that D3 physically participated in it. But, if the offence was a pre-meditated revenge attack in which all three men participated as a joint enterprise, with death being an unintended consequence, then it followed that their level of mens rea was the same.

51.Mr Martin accepted that the applicant was more involved than D3 and that the judge was entitled to draw some distinction between the applicant and D3 but not to the extent that he did. Mr Martin submitted that the judge erred when he found the applicant had taken the attack to a new level, and that the applicant’s position was “so much worse”.

52.Mr Martin submitted:

“… What is clear is that:

i) Both men planned the attack.

ii) Both men physically took part in the attack.

iii) There was evidence that the Appellant kicked the victim in the head, but that this did not cause death.

iv) Death was caused by a combination of blows to the victim’s body.

v) The Appellant admitted that he kicked the victim in the body and that this led to death.”[14]

53.On these facts, he argued, a sentence of imprisonment for the applicant that is three years longer than that imposed on D3 was not justified. The three years extra for the applicant was more than just “some distinction” as described by the judge. It was a substantial distinction.

54.Mr Martin submitted that even though there was no tariff in manslaughter cases, the sentence should, nevertheless, be broadly consistent with other manslaughter cases. He prayed in aid the comment of Cons VP in R v Ko Kam Hung:

“… there must be some internal consistency of sentence, so that those who are guilty of manslaughter in broadly comparable circumstances receive broadly comparable sentences… .” [15]

55.Mr Martin argued that a sentence of 10 years for this type of manslaughter case was excessive and that the appropriate sentence is one of 8 years’ imprisonment.

The respondent’s submission

56.Mr Ned Lai, with Mr Simon Kwong, for the respondent, submitted that the facts justified the judge’s finding that the applicantplayed an “aggravated role” and had taken the attack to a new level. Consequently, the applicant could properly receive a more severe sentence than D2 and D3. 

57.Mr Lai referred to a number of cases which, he submitted, illustrated the application of legal principle when sentencing for a joint enterprise manslaughter case.  He also relied on HKSAR v Luo Fu Di[16]for the proposition that an attack against a vulnerable victim, such as a frail or elderly victim, was an aggravating factor.

58.Mr Lai submitted that it was necessary that the sentence should mark public disquiet at an unlawful killing of this kind. He referred to the following circumstances which he said entitled the judge to find that a sentence of 10 years’ imprisonment imposed on the applicant, was a just sentence:

(i)  the deceased was frail and elderly;

(ii)  the joint enterprise was a carefully planned revenge attack at a secluded location;

(iii)  the attack was motivated by a trivial grudge;

(iv)  the attack was carried out in a brutal and cowardly manner;

(v)  the attack was filmed; and

(vi)  there was little genuine remorse being shown.

Discussion

59.Only two issues arise for our consideration in this appeal. The first is whether a sentence of 10 years’ imprisonment is appropriate for the applicant for this crime. The second is whether the distinction that the judge drew between the applicant and D3 in apportioning blame for the death can be justified on the materials before him.

60.Identifying an appropriate sentence for the offence of manslaughter is a notoriously difficult sentencing task for a judicial officer. The sentencer must have a thorough appreciation of the gravity of the offence and this will require having regard to the motivation behind the crime, the planning that went into it, the circumstances of its commission and the relative position of the victim to his assailants.

61.Here, the inequality between the assailants and their victim was stark. The assailants were two healthy 25 years old men and the victim was a frail, elderly 62 years old man. The applicant must have known that he was dealing with “a soft target” whom he and his brother, D3, could easily overpower. With the further advantage of surprise in a well chosen, dimly lit and deserted location, the contest was always going to be entirely one-sided. All the denunciatory epithets employed by the judge, such as callous, cowardly and brutal, were entirely justified. That the victim of an attack is frail and elderly and unable to defend himself is undoubtedly an aggravating factor which raises the gravity of the offence to a significantly higher level.

62.Another factor relevant to the gravity of the offence is the planning that went into it. There were a number of reconnaissance missions and the location of the attack was carefully chosen. The motivation of the attack of cold-hearted, calculating revenge explains why so much effort was put into planning it.

63.The fact that the applicant had the attack video-recorded on his mobile telephone, as a showpiece of the brutal force of the attack and the wails of pain of the deceased, reveals the degree of callousness and cold-heartedness on the part of the applicant. Indeed, the making of the video recording of the attack strongly suggests a sadistic pleasure would later be derived by the applicant from being able to view and show to others what he had done.     

64.This type of attack cannot be compared to triad gang beatings that tend only to involve young people. The only thing they have in common is that frequently, in the heat of the attack, one of the assailants gets carried away and does something to the victim which causes his death and which may not have been anticipated by the other assailants.

65.The judge characterised the applicant’s role in this attack as close to murder. Standing back, and having regard to all of the circumstances, we are of the view that he was right to do so. Once the applicant had the deceased at his mercy on the ground, defenceless and completely vulnerable, he then embarked on a kicking and stamping of his body. It is difficult to believe that he had not, at that time, formed the intention to cause the deceased grievous bodily harm. The applicant should count himself very fortunate indeed that his plea to manslaughter was accepted by the prosecution.

66.An offence of this gravity must contain elements of general deterrence, personal deterrence, denunciation and retribution. Accommodating all these elements will inevitably require, and rightly so, that the sentence be a severe one. The rehabilitation needs of the applicant are, in the context of such a serious crime, of very low importance. Indeed, the circumstances of the offence suggest very strongly that this applicant is quite ready to resort to violence and may even take pleasure from inflicting pain on others. We are in no doubt that the sentence must include an element of personal deterrence.

67.In sentencing the applicant the judge said to him:

“…the least sentence that I can impose on you is one of 10 years’ imprisonment.”[17]

We agree entirely.

68.We turn now to the main thrust of the applicant’s ground of appeal and that is that the judge erred in his apportionment of blame as between the applicant and D3. Mr Martin accepted that some distinction can be drawn between the applicant and D3, but not as great a distinction as that drawn by the judge. He said we simply do not know what D3 did in the course of the attack. To some extent that is correct. His participation may have involved pushing, shoving, slapping and punching, but what he actually did, we simply do not know. But, more importantly, we do know what he did not do. He did not kick or stamp on the deceased.

69.This knowledge of what he did not do flows from the separate Summary of Facts that was used for the purpose of sentencing D3. This document did not contain any admission by D3 of having kicked or stamped on the deceased and is a key contextual element to understanding how the judge was able to make the distinction between the two brothers that he did. The judge could not sentence D3 on any basis other than that he had participated in the attack but had not participated in the kicking and stamping.

70.Common to all three assailants was that they attacked the deceased as part of a joint enterprise in which it was the common intention to cause harm to the deceased by slapping and punching.

71.Notwithstanding that this was the common intention, we know that in the course of carrying out the joint enterprise the deceased was kicked and stamped on. As a matter of simple logic, if kicking and stamping was not part of the common intention of the joint enterprise then the person committing these acts was involving himself in assaults not contemplated by the others. Indeed, if kicking and stamping had been part of the common intention of the joint enterprise then we doubt that a plea to manslaughter would have been accepted.

72.Also, as a matter of simple logic, if only two people were involved in the assault and the video recording did not suggest that more than one person was kicking and stamping and only the applicant admitted to kicking and stamping then the only person doing the kicking and stamping must have been the applicant.

73.The kick to the face is a mere distraction in terms of the cause of death. Its relevance is that it evidences two things. The first is that it was the applicant who was doing the kicking as it was his shoe imprint that was left on the deceased’s face. The second matter is that it evidences a desire and an intent to do greater harm than would be caused by punching and slapping. Kicking someone in the head is a very high risk action with a much greater potential for causing serious harm.

74.But, what the pathologist found from his autopsy is that the deceased had multiple rib fractures and these would only have been caused by the application of a large amount of force. Likewise in respect of the laceration to the liver, which the pathologist described as extensive. Because the liver is protected by the rib cage a large amount of force would have had to have been applied to cause so extensive a laceration. The less severe laceration to the kidney would have required a moderate force as the kidney is protected by both the rib cage and back muscles.

75.The pathologist viewed the video recording and it was an admitted fact that it showed stamping on the deceased’s body. In respect of this stamping, the pathologist expressed the opinion:

“The multiple fractures of the ribs and the lacerations to the liver and kidney could have been the result of the stamping with feet as shown in the video.”[18]

76.Thus, from the joint Summary of Facts admitted by the applicant, it inevitably follows, in our view:

1)  the applicant departed from the common intention of the joint enterprise by kicking and stamping on the deceased;

2)  the applicant alone committed these acts;

3)  kicking and stamping are much more serious forms of assault; and

4)  the kicking and stamping were, in all likelihood, the cause of the multiple injuries that caused the death of the deceased.

77.That being so, the judge’s description of the kicking and stamping as being an elevation or escalation of the level of the assault was entirely justified by the joint Summary of Facts. There is nothing inaccurate or unwarranted in what the judge said in his apportionment of blame as between the three defendants.

78.The final question is whether the distinction between the applicant and D3 justifies the difference of three years in the length of their sentences of imprisonment. In our view, it does. We say that because, as we have demonstrated above, the only reasonable inference to be drawn from the joint Summary of Facts is that it was the applicant’s actions of kicking and stamping the deceased that caused his severe and fatal injuries. It is much less likely that had the assault been confined to punching and slapping that the deceased would have suffered the serious multiple injuries of the kind found by the pathologist and which caused his death.

79.For these reasons we found no merit in the applicant’s ground of appeal.   

Disposition

80.For these reasons we refused the application for leave to appeal against sentence and dismissed the applicant’s appeal.

Mr Ned Lai SADPP and Mr Simon Kwong SPP of the Department of Justice, for the respondent

Mr Thomas Martin, instructed by Chaudhry Solicitors, for the applicant