HKSAR v. Leung Ho Man

HCCC 4/2019

[2019] HKCFI 2839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 4 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Mr Leung, you came before this court for trial on one count of murder in that it was alleged by the prosecution that you took part in a joint enterprise which resulted in the death of Nguyen Van-tuan. It was never suggested at any stage that you dealt the fatal blows which caused his death. The person responsible for his death has not yet been apprehended.

On 18 October 2019, you pleaded guilty to the manslaughter of Nguyen Van-tuan, arising out of an attack which took place in the early hours of the morning of 1 October 2017. He died on 10 October 2017, as a result of the injuries he received during a fight between two groups of men in which you were involved. I have no evidence about the reason for the fight but Mr Boyton has disclosed the criminal records of those forming part of the victim’s group of friends, who would have been witnesses for the prosecution, which show that some of them had significant criminal records for drug offences and for offences of violence.

At the time of the fight, you were in the APlus bar in Mong Kok. Almost all of the evidence of your participation in the events of that night comes from your admissions for the purposes of the Summary of Facts for plea. At times, those admissions contradict the evidence within the prosecution’s papers but, to your credit, they implicate you in these events in a manner that the prosecution could not have proved to the requisite standard. To the extent that you have been prepared to do so in order to enter your plea, it indicates the degree of the remorse you have for the events of that evening.

Those admissions form the basis of the facts for the purpose of sentencing you today. They do not bind the prosecution as to any future proceedings in respect of others also culpable of the death of the victim, but they do bind you.

This is a very serious incident with a truly tragic outcome. The victim, Nguyen Van-tuan, was only 31 years of age and had his whole life in front of him. No matter what ill feeling there was between him and you and your friends, he did not deserve to die.

The evidence appears to suggest that the bar in question had about 50 people in it between 4.50 and 8.00 am on the morning of 1 October 2017. Many of them had been drinking since the night before. I do not know whether you had been drinking but I do note that both you and your father had mentioned that you are not somebody who does go out drinking. There is no evidence within the prosecution papers about your state or any indication that you were part of the various groups of people celebrating birthdays, although again I note that you have now said that you were out celebrating a birthday with a friend but I haven’t been told why this incident occurred.

At some point, part of the fight moved to the middle of the set of chairs adjacent to the dance floor. Someone, referred to in the papers as Ah Shuen, was fighting with the deceased. Ah Shuen jumped on top of the small coffee type table and he used a Johnny Walker whisky bottle to strike the deceased over the head. That blow caused a small cut to the deceased’s nose but it clearly made a significant impact upon his skull even though there was no other wound. That caused the deceased to fall on top of the table as a result of the blow, so it must have been a very forceful blow. At that stage Ah Shuen took another bottle and struck him once more over the head which caused him to fall off the table and onto the floor. You have indicated to the court where he fell and the prosecution, for the purposes of sentence today, accept what you say about that, although I note that the papers suggest that he may have been positioned otherwise.

It is at this point when he is on the floor that Ah Shuen shouted “Hit him to death” and you say that you joined in kicking and stamping on the deceased with three others but you do not accept that you kicked or stamped on his head. That beating went on for approximately 30 seconds after which, all of you fled the scene.

Mr Leung, by reason of your plea, you accept that you were part of the earlier fight on the dance floor and that there was some connection between yourself and Ah Shuen and the others in that respect. You accept that you were present at what I have called the “bottling” and, having observed it, you heard his shout to “Hit him to death” and you joined in further on the attack on the deceased. You accepted that this was a continuous course of events in which you voluntarily participated.

At that point in time you would not have known the effect of the two blows to the deceased’s head but you would have realized that this was a sustained attack with a weapon, especially as both bottles broke on impact. They were forceful blows which left the deceased stupefied and at some point acting as if he was having a seizure, but you joined in and kicked him nevertheless. Your actions at that time are indicative of your intent throughout, which was to cause physical harm to the opposition (whoever they were). Being part of the earlier fight would have left you in no doubt as to the intentions of your compatriots and your own earlier, and later, actions showed that you were fully engaged in what they were doing. As a result, you too must bear the consequences of their actions even though you did not personally deal the fatal blows.

You were just 19 years of age at the time of this offending and of good character. You come, I can see, from a loving and supportive home and you had employment before you were arrested. But you, unlike the victim, still have a life in front of you.

The range of sentencing in manslaughter is very wide indeed. There are no guidelines. Each case must turn on its own facts. I have been provided with a number of authorities which suggest a range of sentences in circumstances similar to these of between 5 and 9 years’ imprisonment as a starting point after trial. Some of those authorities are now quite old and none of them stand on all fours with the situation at hand. The facts of this case exacerbate the exercise further as this is a matter of joint enterprise. In such circumstances, you fall to be sentenced for the acts of your co-adventurers and whilst there is some authority which suggests that the Court may distinguish between the roles played by those who join in a joint enterprise, the court must be careful not to undermine the principle of law which makes co-adventurers liable for the acts of others with whom they have willingly engaged for a criminal enterprise.

Although you are part of the fight from the beginning, you did not join in the attack upon the deceased until after the fatal blows were struck. There was only minimal injury to the deceased other than the damage inflicted upon his brain from the blows by the bottles. He had just a very few small contusions and subcutaneous bruises which were not consistent with any assault by kicking and stamping from five men over 30 seconds. The physical evidence indicates you personally caused little if no harm to the deceased.

There is no evidence, as Mr Boyton suggested, that this attack was premeditated nor were any weapons used by you but you did witness the murderer use a weapon twice at which point you followed his instructions and assaulted the deceased in order to “Hit him to death”. You are responsible in law for the actions of those with whom you are in concert and the consequences of which you foresaw, even though your personal actions may be very limited. Your eagerness to enter a plea and to offer admissions unsupported by any prosecution evidence implies that you are now saying you were fully involved in this assault and accept that the part you played was in furtherance of an intention by others to murder or to do serious bodily harm to the deceased. For your participation in this tragic event, a starting point after trial of 7½ years is appropriate.

Your offer of a plea at an early stage was refused. Even so, it was made clear by counsel to the court that such plea would be available should the prosecution change their mind, which they eventually did. In so doing, you were required to inculpate yourself and you did so. I consider that you should receive a full one-third discount for your sentence for those reasons. The one-third discount already takes account of good character, relative youth and the effect of incarceration upon you. But we must never forget the effect of the loss of a son, or brother or friend to so many others. You, Mr Leung, will return to your very loving family one day but he will not.

You will go to prison for 5 years.