HKSAR v. Lam Ka Fai and Another

HCCC 200/2019

[2020] HKCFI 531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 200 OF 2019

-----------------

---------------------------------

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

---------------------------------

COURT: I do not propose to keep you in suspense. You, Lam Ka‑fai, are going to prison for 5½ years, and you, Tse Wai-lun, are going to prison for 5 years.

After I have left court, your lawyers will explain to you when you are likely to be released, bearing in mind the time you spent in custody on remand since your arrest and the rules governing remission of sentence. I shall be a little while explaining how I arrived at those sentences, and you may be seated for the time being.

You have both pleaded guilty to the manslaughter of Poon Ka-yan. The attack on him by the two of you and seven of your friends was a brutal one but it was senseless as well because it was so unnecessary. His misfortune was that simply one of his friends, Siu-keung, had continued to be in touch with his former girlfriend who was then going out with one of your friends, Ng Pak-lun, and Siu-keung had not shown you and your friends the respect which you thought you deserved when you all confronted each other one evening on the Tin Shui Estate.

You, Tse Wai-lun, were not there at the time but it was decided at least by Ng Pak-lun and one of your other friends, Lam Siu-fung, that Siu-keung had been cheeky and needed to be taught a lesson.

Later that night, Lam Siu-fung took a phone call. It looked as if someone, it may have been Ng Pak-lun, was telling him where one of Siu-keung’s friends was.

Lam Siu-fung told those of you who were drinking at a bar in Yuen Long, and that now included you, Tse Wai-lun, to come with him and there were seven of you by then. You went to a nearby village where you collected Ng Pak-lun and another of your friends. The Summary of Facts which you both agreed says that there was talk there about a revenge on Siu-keung and his friends. That contradicts your evidence in the recent trial of Chung Chun-fung and Wong Chun-man that you had no idea what was going to happen. In the event, the nine of you headed for the restaurant on the Tin Shui Estate where the friend of Siu-keung was supposed to be. That turned out to be Poon Ka-yan.

I bear in mind that none of you armed yourselves with weapons, but once Poon Ka-yan was found, some of your friends grabbed whatever objects they could in the restaurant to use on him, and all nine of you then proceeded to beat him up. I also bear in mind that neither of you used any objects as weapons on him.

In the recent trial of Chung Chun-fung and Wong Chun-man, you both gave evidence about the part each of you played in the attack. You, Lam Ka-fai, told the jury that you kicked Poon Ka-yan twice in the body while he was on the ground. You, Tse Wai-lun, told the jury that you punched him twice in the arm and kicked him once in the abdomen while he was on the ground. That is also what the Summary of Facts says. And having watched the CCTV footage of the attack a number of times, I have not discerned anything to contradict that. So that is the basis on which I am proposing to sentence here.

The autopsy on Poon Ka-yan’s body revealed that the injury from which he died was almost certainly caused when he was hit by Lam Siu-fung with a rubbish compressor rod, or when he was hit by Ng Pak-lun with an umbrella stand, or when he was hit by Wong Chun-man who had picked up the umbrella stand after it had been discarded by Ng Pak-lun. But what is important for present purposes is that neither of you struck the fatal blow. That meant that your pleas of guilty to manslaughter must have been tendered on the basis that you were parties to a joint enterprise of some kind. But a joint enterprise to do what? The prosecution say that there was a plan to attack whichever friend of Siu-keung was in the restaurant at the time and that when you were all on your way to the Tin Shui Estate, all nine of you were aware of that plan and intended to join in.

An alternative possibility was considered by the jury in the recent trial of Chung Chun-fung and Wong Chun-man, and that was that this all arose much more spontaneously. Having heard where one of Siu-keung’s friends was, it was at the instigation of Lam Siu-fung and Ng Pak-lun that the nine of you sought Poon Ka-yan out. Along with at least two of the others, that is Bo Ka-shing and Cheung Kwok-ho, the two of you on this scenario went along with the others without knowing what was going to happen. But since you were all friends and at least some of you, including you Lam Ka-fai, were members of the same triad society, there was an understanding between you all that if any of you wanted someone beaten up, you would all join in.

I acknowledge that this is a possible scenario but I do not accept it. It ignores the fact that the CCTV footage shows all nine of you immediately rushing over to Poon Ka‑yan and attacking him the moment you got into the restaurant. Despite your evidence that you had no idea what was going to happen, I am sure that you did. You may well not have known the identity of the man who was to be attacked but you knew that someone was going to be attacked and you went along with that. In any event, that is in line with the Summary of Facts which refer to taking revenge on Siu-keung and his friends.

Having said that, by their acceptance of your pleas of not guilty to murder which was the charge you both originally faced, the prosecution must be taken to have accepted that neither of you intended that Poon Ka-yan should suffer really serious injury and that neither of you were aware, whether before the attack or during it, that there was a real risk that any of the others intended to cause him really serious injury. The very experienced judge who had to sentence Bo Ka-shing and Cheung Kwok-ho for the manslaughter of Poon Ka-yan took a term of between 8 and 9 years’ imprisonment as his starting point.

Manslaughter is one of those rare offences where judges are not required to state their starting point, though I take as my starting point a term at the upper end of his range in view of my conclusion this was not as spontaneous an outbreak of violence as you claim you thought it was and to reflect that this was an attack by nine men on a single defenceless man which resulted in his death.

I bear in mind that your counsel informed the magistracy well before you were committed to the High Court for sentence that you would be pleading guilty to manslaughter and that you subsequently did so at the appropriate time. That entitles you both to a one-third reduction in your sentence. But your previous and subsequent convictions, Lam Ka-fai, and your membership of an organized crime group, although not aggravating what you did, means that you have forfeited any real chance of leniency. You, Tse Wai-lun, had only one minor previous conviction and no known triad affiliations, and that is an important difference between you and Lam Ka-fai which I have reflected in the sentence I am passing on you.

I see that you have both taken steps to provide yourselves with a qualification to enable you to find employment when you are released from prison. I have also read the moving letters addressed to me by the two of you, your parents, your girlfriends and, in your case, Lam Ka-fai, your brother and sister. I am not in a position to judge whether the two of you are truly remorseful for what you did. Your pleas of guilty could simply be a recognition on your part that you would be convicted of manslaughter at the very least. But I do take into account in favour of both of you that not only did you assist the authorities by naming for the police the people who can be seen on the images taken from the CCTV footage but you also testified at the recent trial of Chung Chun-fung and Wong Chun-man. That is why I have further reduced the sentences I would otherwise have passed.

Finally, I note that you, Lam Ka-fai, told the police that there came a time in the course of the incident when you told the others to stop as you were concerned that something really serious might happen to Poon Ka-yan. You, Tse Wai‑lun, claim to have done the same thing. But there is nothing which tells me that your claims might be true, and even if they were and they show a very belated measure of concern on your part for Poon Ka-yan, the whole incident happened so quickly that it was far too late for anything you may have said to affect what was happening.

Would you both stand up, please? All of that explains how I have arrived at a sentence of 5½ years’ imprisonment for you, Lam Ka-fai, and a sentence of 5 years’ imprisonment for you, Tse Wai-lun. Please sit down.