HKSAR v. Liu Qingyong

CACC000302/2002

CACC 302/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 302 OF 2002

(ON APPEAL FROM HCCC 221 OF 2001)

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Coram: Hon Stuart-Moore VP and Burrell J

Date of Hearing: 16 January 2003

Date of Judgment: 16 January 2003

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1.On 10 June 2002, the Applicant's plea of guilty to manslaughter before Beeson J was accepted by both the prosecution and the judge on the basis that this was an unlawful killing which lacked the necessary intent for murder. On the same day, the Applicant was sentenced to fifteen years' imprisonment against which he now seeks leave to appeal.

Prosecution's case

2.The case against the Applicant was, so far as it concerned how the deceased came to be killed, to a large extent based upon the Applicant's admissions to the police. The Applicant and Lin Huian (Lin), who is still at large, both came from the Mainland to Hong Kong on 10 January 2001. They rented a room at a guesthouse in Jordan Road, Kowloon. During that evening, the Applicant and Lin went to Mongkok looking for a particular homosexual with whom they could "play" and from whom they planned to ask for about HK$300-$500. They eventually met the deceased at a public toilet which is used as a meeting place by homosexuals.

3.In the early hours of 11 January 2001, the three men went back to the guesthouse where the Applicant and Lin had earlier rented a room. Sexual activity took place between the three of them. The Applicant offered to massage the deceased and sat on the deceased's back with his hands on his shoulders. Lin sat on the deceased's legs and then Lin threw to the Applicant a towel which had been cut into two pieces.

4.It was at this point, according to the Applicant, that he realised it was intended to tie up and rob the deceased. Lin tied the deceased's legs and the Applicant bound the deceased's hands behind his back. When the deceased began to shout, the Applicant took a pillow and covered the deceased's face with it, but he continued to struggle. Lin told the Applicant to seize the deceased's neck "to stop him making any noise". The Applicant did this and then, "being afraid that he would kill the deceased", released his grip and gagged the deceased with one of the pieces of towel. The Applicant demonstrated in one of his interviews how he had intermittently taken hold of the deceased's neck.

5.Again based on the Applicant's confession, it appears that he and Lin then got dressed and Lin rifled through the deceased's belongings. The Applicant noticed a little movement from the deceased, and being afraid that the deceased might die, he took the piece of towel out of his mouth. He noted at this point that the deceased was still breathing and had a heartbeat. The Applicant and Lin discussed what to do next and while doing so, the deceased's breathing appeared to get "less". The Applicant then loosened the bonds restraining the deceased and placed the deceased's body flat so that he could breathe more easily. The Applicant attempted to resuscitate the deceased for a considerable period without success.

6.The Applicant and Lin then discussed whether to call the police or to get a doctor but decided not to do so as they were "afraid they might not get (back) across the border".

7.The Applicant and Lin then tidied the room and cleared away everything they had used to tie up and gag the deceased. They then left.

8.Lin was recorded on the tape taken from the guesthouse CCTV as having departed at 6.26 a.m. on 11 January 2001 whereas the Applicant was captured two minutes earlier on the CCTV in the MTR at Jordan station. The Applicant returned to the Mainland that night. When he returned to Hong Kong on 27 March 2001, he was arrested.

Pathologist's opinions

9.The body of the deceased was discovered during the afternoon on 11 January 2001. In due course, the police and a Government pathologist, Dr Poon Wai-ming, attended the scene.

10.Dr Poon conducted a post mortem later on, and after the Applicant had confessed what he had done, Dr Poon was also shown the video-tapes recording the Applicant's account. Dr Poon's comments were set out in the Summary of Facts as follows:

"(a) Tying up of limbs with towels may not result in well-defined ligature marks as when a tougher ligature (e.g. a nylon rope) is used. This may, however, cause the presence of pallor, redness, formation of small abrasions or intradermal bruises on the skin pressed by the towels. The presence of purplish punctate intradermal bruises on outer front of right wrist could have been the result of tying up the deceased's wrist with a towel. Presence of external and deep bruises at the right forearm of the deceased is consistent with the deceased being tightly gripped at his right forearm before, during or after he was tied up. The presence of a bruise on inner aspect of 2nd knuckle of left hand, however, is consistent with the deceased forcefully moving his closed left fist and hit onto a hard object/surface. The presence of bruises on inner surface of his left ear and the underlying left mastoid process is consistent with the deceased moving his head violently and hit the left side of his head onto a hard object/surface. Taken together, the injuries detailed above are consistent with the deceased moving his head and upper limbs violently while he was being restrained (by tying up with a towel, by gripping of his limbs by the assailants, as well as by the assailants sitting on his back); and

(b) The presence of multiple external and deep bruises on the neck, together with fractures of the thyroid cartilage and the hyoid bone indicate that considerable pressure had been applied to the neck by gripping with hand/s. The existence of marked congestion and presence of abundant pin-point bleedings spots on the head and neck indicate that the pressure on the neck had been applied for a considerable period of time. The multiplicity of bruises on the neck also suggests that there had been shifting and reapplication of grips on the deceased's neck, and is consistent with the arrested person's description of intermittent loosening and tightening of grips on the deceased's neck. (The) autopsy findings are indicative of death caused by manual strangulation. It is also possible, however, that manual strangulation caused unconsciousness with impaired breathing and circulation but not immediate death, with death finally effected by other intervening mechanism/s. In this case, the intervening mechanism could have been gagging by towel (as described by the arrested person in the video-interview) or inhalation of stomach contents (stomach contents were found in the airways of the deceased)." (Appeal bundle pp. 7-8)

Sentencing

11.The judge, in passing sentence, said:

"It appears that (the defendant) and his friend either are in or on the fringes of the homosexual community..... the defendant and his friend went out to a park, apparently to find a homosexual with whom they could have sexual activity and later, either steal money from, or extort money from .... The defendant and the defendant's friend then launched an attack on the deceased, apparently with a view to take money or property from him.

This was a very severe and sustained attack on the deceased .... this defendant took a major part, and .... he was the person effecting the manual strangulation that eventually resulted. It may well have been the case that he had no original intention of killing this deceased, but it is quite clear that during the course of the incident, the attack became consistent and prolonged, and restraints were used and a gag was used. It was almost inevitable that the (deceased) would die, either from vagal inhibition, or from the manual strangulation, or from effects resulting from the gagging and the binding.

I do not regard this as an offence that is at the lower end of the scale of manslaughter by an unlawful act. This was a planned incident by two men who came from China to Hong Kong with a view to obtaining money or property from homosexuals. The assignation was made; they had already booked a hotel for the assignation. The sustained attack was launched very quickly. The deceased's attempts at resistance were met by the two men with a very brutal, restricting attack. When they realised that the deceased was near death, there was no attempt to obtain assistance from either the personnel at the guesthouse or by calling the police or the ambulance. Whatever account this defendant now gives of the resuscitation was obviously far too little, too late. And in his statement, the defendant says that he did not really know what he was doing in terms of the resuscitation, in any event." (Appeal bundle pp. 12-13)

The application

12.Mr McNamara, on the Applicant's behalf, submitted that the sentence was manifestly excessive having regard to the plea which had been entered and the basis on which it had been accepted. He contended that the Applicant's own version had been largely ignored in the sentencing process and that there was no justification for the judge sentencing "on the basis that although (the Applicant) had no original intention of killing the deceased, that intention somehow changed during the proceedings". Mr McNamara's understanding as to this was derived from the judge's words, which were included in the passage cited earlier, to this effect:

"It may well have been the case that he had no original intention of killing this deceased, but it is quite clear that during the course of the incident, the attack became consistent and prolonged, and restraints were used and a gag was used. It was almost inevitable the (deceased) would die........." (Appeal bundle p. 12)

13.This passage does not, of course, say that the Applicant's intention changed to one where he meant to kill or to cause grievous bodily harm. The description merely echoed the evidence and plainly the judge had reached the conclusion that this was a case which fell close to the borderline between murder and manslaughter. For this reason, justifiably in our view, the judge formed the opinion that this was a singularly bad case of manslaughter which merited, even on a plea of guilty, a severe sentence.

14.As we have indicated, we have concluded that the judge was right to have passed a sentence which identified this offence as one which deserved a lengthy sentence. However, bearing in mind all the circumstances and particularly the fact that when the Applicant eventually decided to make a full confession to his role, without which the whole truth of what happened might never have been known, we consider that this application, alleging that the sentence was manifestly excessive, is properly made out.

Conclusion

15.Accordingly, we shall give leave to appeal. Treating the hearing as the appeal, we shall reduce the sentence by three years from fifteen to twelve years' imprisonment.

Representation:

Ms Lynda M.A. Shine, SGC, of the Department of Justice, for the Respondent.

Mr John McNamara, instructed by Director of Legal Aid, for the Applicant.