HKSAR v. Tsang Cheung Yan and Others

HCCC 459/2016

[2020] HKCFI 162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 459 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

I have considered the mitigation by your counsel and also the background of this case and also your personal background. I now pass the following sentence.

For the charge of murder, you are now sentenced to life imprisonment. For the charge of prevention of lawful burial of a body, I take the starting point of 7 years’ imprisonment because this is a terrible case of prevention of burial and I think the maximum sentence is warranted. Since you had pleaded guilty earlier on at an early opportunity, I give you the full one-third discount. I now order that you be in prison for 4 years and 8 months’ imprisonment for this prevention of lawful burial of a body.

The two terms of sentence to run concurrently. I shall deliver a written reason for sentence in relation to you together with the other defendants on Monday. Right. You may sit down now.

(Proceedings after 4.12 pm not required)

Court adjourned - 4.14 pm

13 December 2019

16 December 2019

Court resumes - 10.10 am

2nd and 3rd accused present. Appearances as before (Mr Ng and Mr Oderberg absent).

(Proceedings before 12.05 pm not required)

COURT:

On 22 March 2018, all defendants pleaded guilty to one count of preventing the lawful burial of a body. On 13 December 2019, the jury unanimously convicted D1 of one count of murder. They unanimously convicted D2 and D3 of the alternative count of manslaughter.

The prosecution case is that Mr Cheung Man-li, the deceased, left home in the morning of 4 March 2016 and disappeared. Before leaving home, the deceased told his girlfriend, Ms Kwok, that he was to meet a friend, D1, at Tsuen Wan. D1 promised to give him a cheque of $5 million. Ms Kwok lost contact with the deceased in the next couple of days. Eventually, Ms Kwok managed to contact D1. D1 confirmed that he met the deceased around 4 or 5 March. On 8 March, D1 called Ms Kwok again. D1 told her not to report to the police.

In the evening on 29 March 2016, the police found a corpse embedded inside a cement block at Flat 9D, Dan 6, Fui Yiu Kok Street, Tsuen Wan. It was later confirmed that the corpse was the deceased. Pathologist, Dr Poon, performed autopsy on the corpse. Due to advanced decomposition, Dr Poon was not certain about the cause of death. He, however, estimated that the time of death was a few weeks prior to 29 March 2016. He proposed a combination of the following factors as the possible causes of death: the depressant effect of dichloromethane on the central nervous system; suffocation due to covering mouth and/or nose and putting pillow case and plastic bags on the head of the deceased; a cerebral blood clot found at the left cerebral hemisphere of the deceased; cut wounds at left lower chest and abdomen which ruptured the heart, the lung, the diaphragm and the liver.

Police investigation revealed that D1 was the tenant of the flat. D2 and D3 also lived there. Photographs captured from the CCTV of the lift at Dan 6 from 4 March to 10 March 2016 showed that the three defendants had brought wooden planks, bags of cement and sand to the flat. About 8 March, they also tried to push a cement block into the lift but unsuccessful as the lift was overloaded. This was an attempt to remove the cement block from the flat and dump it somewhere.

Immigration check revealed that the three defendants had left Hong Kong for Taiwan at about half past 10 pm on 10 March 2016. As a result of liaison between Hong Kong and Taiwan authorities, a team of police officers flew to Taiwan and accompanied the three defendants back to Hong Kong on 12 April 2016. Once arrived in Hong Kong, the officers arrested the three defendants at the airport.

In the trial, all defendants adopted cut-throat defences. D1 said that he injected alcohol into the deceased under duress by D2. It was D2 who straddled on the deceased and applied dichloromethane. There was no plan to kill or to rob the deceased. D2 said it was D3 who straddled on the deceased and applied dichloromethane. D2 was at the bottom of the deceased and could not do anything. There was no plan to kill or to rob the deceased. D3 said it was D2 who straddled on the deceased and applied dichloromethane. He just pulled the deceased away to stop a fight between D2 and the deceased. He was at the bottom of the deceased and could not move. There was no plan to kill or to rob the deceased.

In my view, the verdict demonstrated that the jury was satisfied that D1 was the mastermind and had intention to kill or to cause grievous bodily harm in a plan to knock the deceased out. D2 and D3 joined in to make the deceased unconscious but in the process caused the death of the deceased. Both of them did not have the intention to kill or to cause grievous bodily harm. This is obvious from the question posed by the jury when they asked whether an agreement or a common intention to knock the deceased out implied a joint enterprise. However, the verdict does not distinguish the respective roles of D2 and D3. It is therefore open to this court to decide where the truth lies.

Having considered the evidence, I accept the admission of D3 in his various video-recorded interviews. It was D3 who grabbed the deceased from behind to prevent the deceased from resisting before both of them fell on the mattress. I do not accept the version of D2. His description of how D3 loosened the grab, turned the deceased around and pushed the deceased towards him before both of them fell on the mattress is implausible.

For the purpose of sentencing, I find that it was D2 who straddled on the deceased and applied dichloromethane while D3 grabbed the deceased from behind, preventing the latter from resisting. I also accept that D3 performed cardiac-pulmonary resuscitation on the deceased before his death, albeit this salvage act was too late.

In sentencing, I have considered the authorities submitted by the prosecution, including AG v Wong Yim Ping & Anor [1995] 1 HKCLR 211, HKSAR v Chan Man Lok, CACC 522/2000, HKSAR v Hui Mak Kwan, CACC 2/2003 and SJ v Wan Hoi Ming [2017] 1 HKLRD 1205, also Sze Kwan Lung & Ors v HKSAR in FAMC 1 & 2/2004, also HKSAR v Wong Kam Shing [2010] 4 HKC 580, also HKSAR v Yau Kit Keung [2010] 6 HKC 473.

D1 is 30. He was born in Hong Kong. He has no criminal record. He received education up to Form 6. He had a diploma in valuation of jewellery. He was unemployed at the time of the offence. Counsel for D1, Mr Alex Ng, urged this court to pass a concurrent term for both counts. For the count of murder, I sentence D1 to life imprisonment.

For the count of preventing the lawful burial of a body, it was a horrible incident. Not only that the defendants buried the corpse in a cement block, they attempted to take the corpse out a few days later using jackhammer and various tools, causing comminuted fracture to the left arm of the corpse. It is unimaginable how the defendant could have done so. I take the maximum sentence of 7 years as the starting point. I give one-third discount for his plea. I sentence D1 to 4 years and 8 months’ imprisonment. It is meaningless to make any form of consecutive or concurrent order given the life imprisonment term of the murder count. I therefore order that this term be concurrent with the life sentence.

D2 is 24. He has a clear record. He studied up to Form 4. He was unemployed at the time of the offence. According to counsel for D2, Ms Lydia Lau, D2 had a harmonious family life and was determined to establish a career in dancing before this incident. He was a victim of D1’s manipulation. D2 wrote to this court, showing remorse. He was regretful for disappointing his parents.

D2’s parents pointed out in their letter to this court that they had not supervised D2 well as they were busy at work. There was insufficient interaction. However, D2 was a young man who would try hard to achieve his ambition. They plead for leniency. D2 has accepted Christianity in prison. Pastor Li of the Christian Living World Life Fellowship confirms that D2 is a kind person and has good relationship with other inmates. He demonstrates a positive attitude in his studies. Counsel for D2 urges this court to consider further reduction as D2 had offered pleading guilty to manslaughter before March 2018.

I take into consideration the following aggravating factors in relation to the count of manslaughter. First, dichloromethane was used to make the deceased unconscious. Second, it was premeditated. The deceased was lured to go to Dan 6 on the excuse that D1 might lend him money. D2 and D3 were aware of that. Third, violence was used, albeit not serious or prolonged.

The background of this case is troubling. D2 was foolish enough to team with D1 to borrow money, which was obviously dishonest. He believed that there was no need to repay the loan. He then moved to Dan 6 and submitted himself to the manipulation of D1 in return for free meals and free accommodation. He even left his family to stay with D1. He even flew to Singapore to join a dancing competition after the deceased was killed and returned to Dan 6 to continue with the burial of the corpse. The lifestyle in Dan 6 was decadent. How could young people like D2 adopt such an unscrupulous attitude?

Taking into consideration that D2 was the person who applied dichloromethane and other aggravating factors, I take 18 years as the starting point for the count of manslaughter. D2 defended his case as if he was not guilty of any homicide. I therefore only give him a discretionary discount of 3 years for his initial plea to manslaughter. I sentence D2 to 15 years’ imprisonment for the count of manslaughter. For the count of preventing lawful burial of a body, I take 7 years as the starting point. I give one‑third discount for his plea. I sentence D2 to 4 years and 8 months’ imprisonment. I order 2 years of this term to run consecutive to the sentence of the manslaughter count. D2 has to serve a total of 17 years’ imprisonment.

D3 is 27. He has a clear record. He had a Higher Diploma in Management and Psychology from HKU SPACE Community College. Before the offence, he was a station officer of the Mass Transit Railway. At one stage, he had thought about joining the police force.

Counsel for D3, Mr Steve Chui, pointed out that D3 was subjected to undue influence from D1 and D2. He was brainwashed and did not know what he was doing. This incident was out of character. D3 had tried to rescue the deceased. He had not benefited from the alleged robbery. D3 wrote to this court, showing remorse. He admitted that he was greedy and fun-seeking at that time. He had never thought of harming others. He regretted for ignoring the advice of his mother.

D3’s mother blamed herself for paying insufficient attention to D3’s thoughts. Both she and D3 have accepted Christianity. They long for a happy family reunion in future. Letters from colleagues of D3’s mother showed that D3 used to be an obedient and hard-working boy. Pastor Yuen of the Sun Oi Church confirmed that D3 is remorseful and pleads for leniency.

As explained above, I accept that D3 played a lesser role in this case. He only grabbed the deceased from behind and performed CPR on the deceased in a doomed attempt to revive the latter. However, the background of his joining Dan 6 was even more inexplicable. He abandoned his beloved mother. He gave up his stable job. It was allegedly for free meals, drinks, free accommodation, fun-seeking and quick money. He turned a blind eye to dishonest, criminal activities of D1. I have to ask: what has gone wrong? Our education, our core values or human nature?

I take into account the aggravating factors as applicable to D2. I take a starting point of 15 years’ imprisonment for the manslaughter count. I sentence him to 15 years’ imprisonment. For the count of preventing the lawful burial of a body, I adopt the same reasoning as in the case of D2. I sentence D3 to 4 years and 8 months’ imprisonment. I order 2 years of this term to run consecutive to the sentence of manslaughter count. D3 has to serve a total of 17 years’ imprisonment.