HKSAR v. Tsang Siu Ching

CACC000349/2000

CACC 349/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 349 OF 2000

(ON APPEAL FROM HCCC 403 OF 1999)

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Coram: Hon Stuart-Moore, V-P and Yeung, J.

Date of Hearing: 28 February 2001

Date of Judgment: 28 February 2001

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J U D G M E N T

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Stuart-Moore V-P (giving the judgment of the Court):

1. On 3 August 2000, the Applicant pleaded guilty in the Court of First Instance before Nguyen J to manslaughter (count 1) and preventing the lawful burial of a corpse (count 2). On count 1 the Applicant was sentenced to three and a half years' imprisonment and on the second count (which a co-defendant (D1) also faced) he received a consecutive sentence of 12 months' imprisonment. D1, having spent almost 12 months in custody prior to her plea of guilty was given a sentence which enabled her immediate release. The Applicant now seeks leave to appeal against his overall sentence of four and a half years' imprisonment.

2. The summary of facts sets out the general picture revealed by the investigation into these offences which were committed on 18 September 1996. The killing occurred at a flat in Reclamation Street which was occupied by a female named Tse Kwai-han (D1). She had formed a relationship with the deceased at a time when she was also on friendly terms with the Applicant. The relationship between D1 and the deceased was not always a happy one and from time to time there were arguments between them. It appears that amongst other things the deceased was not happy about D1's relationship with the Applicant.

3. During the evening of 18 September 1996, the deceased was at D1's home. An argument developed between the deceased and D1. D1 struck the deceased who then struck back. In fact, the Applicant, who had previously been in another room, came in and saw this argument going on in the room where D1 and the deceased were fighting. He then noticed that D1 was bleeding. He went to break up the fight. The Applicant grabbed the deceased tightly around the neck with his right arm and threw him backwards towards a cabinet. There was further fighting between the two men during which the deceased was bumped against the wall and started to bleed. The Applicant let go of the deceased and it was then that the deceased fell to the floor and lay there motionless. The Applicant observed that the deceased was bleeding and he carried him to a bed in the expectation that the deceased would regain consciousness.

4. The Applicant and D1 then left the flat and went out for a meal. They returned at about 9 pm and discovered that the deceased had died. Initially, they decided to report the matter to the police but then changed their minds.

5. The Applicant went out and found in the street an empty drum which he took back to D1's flat. It was then that the Applicant and D1 wrapped the deceased's body in a quilt and some bedsheets and tied it up with cable wires. The Applicant then hired a van by telephone. This duly arrived at about 10:30 pm and the Applicant and D1 moved the deceased's body, which was now inside the drum, down to the street where the van was parked. They told the driver that they were shifting rubbish.

6. The van delivered them to an unnamed road close to Anderson Road. The driver of the van at that stage was told that he could go away. The Applicant and D1 then removed the drum containing the deceased's body from the van. As they rolled the drum away from where the van had been parked the body fell out. They then pushed the drum down the hillside and the Applicant dragged the deceased's body into some bushes where both he and D1 covered the body with grass. They then left the scene.

7. About seven weeks later, on 9 November 1996, the deceased's badly decomposed body was discovered on the roadside of an unnamed road leading from Po Lam Road near the junction with Anderson Road in Sau Mau Ping. The skeleton was by this stage incomplete. As a result of the condition of the body, the forensic pathologist was unable to determine the cause of death.

8. Almost three years after the killing, and acting on information, the police arrested the Applicant and D1 on 12 August 1999 at their new home in Ngau Tau Kok Lower Estate. Three weeks before this event on 24 July 1999, the Applicant had married D1. In his interview with the police, the Applicant fully admitted his role in the offences. Furthermore, he returned to the scene with the police in order to reconstruct what he had done.

9. Mr McNamara has advanced two grounds of appeal on the Applicant's behalf. He submitted firstly that the sentence on count 1 was manifestly excessive bearing in mind that this was a case of involuntary manslaughter to which the Applicant had pleaded guilty. He contended that a sentence of about 12 months would have been appropriate taking into account the lack of premeditation, the Applicant's good character, his obvious remorse and the fact that there were no aggravating factors to be considered such as would have been the case if a weapon had been used. He suggested that if death had not resulted this was the kind of case that might not even have been prosecuted as assault but would have rather been dealt with by a bind over.

10. Leading on from these general features of the case, in his second ground, Mr McNamara rather gently suggested that the sentence for the prevention of a lawful burial alleged in count 2 should have been made to run concurrently with the sentence on count 1 if there was any danger that the sentence on count 1 had effectively taken into account this unattractive feature of the case.

11. We are left in no doubt that the judge when passing sentence was right to have concluded that the Applicant was genuinely remorseful by the time that he was found out and that he had cooperated with the police in making a full confession to what he had done. However, unintentional though this killing had been, more than one blow, as Ms Mary Sin for the Respondent pointed out, had been involved. The Applicant, aged 33, had grabbed the deceased, who was 14 years his senior, tightly around his neck before he threw the deceased backwards towards a cabinet. The deceased was then "bumped" against the wall by the Applicant, after which the deceased lay motionless on the floor. There was no attempt by the Applicant to call for medical assistance. This, in our view, was most certainly an aggravating factor.

12. Although the judge gave credit to the Applicant for his actions in placing the deceased on the bed in the hope or expectation that he might recover there, we take the view that the situation cried out for medical assistance to be called. If this been done, for all that anybody knows, the deceased may have lived. Instead, the Applicant callously went out for a meal with D1. Mr McNamara took issue with the word "callous" which Ms Sin had used during her submissions. It was, however, entirely appropriate.

13. When the Applicant returned to find that death had resulted from his actions, or at least so he believed, the Applicant then sought to cover up what he had done by disposing of the body at a remote location.

14. In all these circumstances, we do not consider that the sentence on count 1 of three and a half years' imprisonment or the consecutive sentence of one year for the second count was manifestly excessive. Indeed, it could be argued that the sentences for both offences could have been slightly higher, but the overall effect of the sentences imposed is not one which we feel can be criticised.

15. Accordingly, the application is dismissed.

Representation:

Ms Mary Sin, SADPP and Ms Ada CHAN, GC for DPP/Respondent

Mr John McNamara, instructed by DLA, for the Applicant