HKSAR v. Chan Wing Yin

HCMP2220/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO.2220 OF 2004

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BETWEEN

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Before : HonPang J in Court

Date of Hearing : 22 November 2004

Date of Judgment : 2 December 2004

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J U D G M E N T

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Background

1.This is an application by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap.221 (“the CPO”), for a determination under section 67C(3) and (4) of the CPO of the sentence of the respondent imposed in HCCC74/1995. 

2.The respondent was born on 16 November 1979.  He was 15 years of age when he was jointly charged with an adult male for one count of murder and one count of attempted robbery which took place on 17 December 1994.  The adult co-defendant, aged 20, pleaded guilty to manslaughter on the murder charge and was sentenced to seven years’ imprisonment.  The respondent was tried before Leong J (as he then was) sitting with a jury and was found guilty by unanimous verdicts on both counts.  Pursuant to the then section 2 of the Offences Against the Person Ordinance (“the OAPO”), the respondent was sentenced to life imprisonment.  For the attempted murder charge, he was sentenced to a five-year term.  

3.According to the prosecution, the respondent together with the adult accomplice went to a village premises in Tin Shui Wai, Yuen Long, New Territories to rob an 81-year old lady.  They had with them knives, gloves and balaclavas.  The case was succinctly stated by the trial judge in his report to the Governor :

“The accused together with an accomplice armed themselves with knives and went to the premises at 14C, Sai Shan Tsuen, Tin Shui Wai, Yuen Long.  Once they were inside, one of them grabbed an 81 year old lady Choy Ngor and threatened her with their knives declaring a robbery.  The old lady’s grandson, the deceased Yung Fu Wing at that time came back to the premises and he went to the assistance of his grandmother.  In the course of this, the accused stabbed the deceased fatally wounded the deceased.  The accused and his accomplice then fled without taking any property away.

The accused’s defence is a complete denial, i.e. that he did not stab the deceased nor did he go there to rob.”

4.The respondent and the accomplice was arrested by the police and taken into custody on the same day of the robbery and the respondent has been detained ever since. 

5.At the trial the respondent’s testimony was that he had taken some 10 tablets of the drug “Little Cross” (Rohypnol) before he went to the premises.  He waited outside while the accomplice went into the premises.  Shortly afterwards he heard his name called and he went in.  He noticed the accomplice struggling with the deceased who had snatched the knife from the accomplice.  He went up to assist the accomplice but he was attacked by the deceased holding a knife.  In the ensuing struggle, the respondent sustained injury in his hand.  He told the jury that he did not stab the deceased nor was he involved in the attempted robbery.  The defence called a drug expert to give evidence on the general nature of the drug effect of consuming the quantity as suggested by the respondent.  Apart from the respondent’s testimony, there was no other evidence that the respondent had consumed any such drug as claimed on the day in question. 

6.The Government pathologist who gave evidence for the prosecution told the court that the deceased received 48 cut wounds and abrasions.  The pathologist noted two stab wounds which penetrated the deceased’s liver causing the deceased to bleed profusely.  The cause of death was shock and failure of other internal organs. 

7.The trial judge directed the jury on the law and the legal implications of self-induced intoxication and the jury returned a unanimous verdict of guilty on both counts on the indictment.

8.Towards the end of the report to the Governor, the judge observed :

“… This was a planned action and they contemplated the use of violence on those who resisted with intention to cause at least serious harm.  Force was used on the lady in the course of the robbery.  When the deceased by chance came back and went to her assistance, the accused savagely stabbed the deceased inflicting a multiple of injuries and finally fatally wounded the deceased.  The deceased died in his attempt to rescue and protect a very old lady.  Except that the accused was 15 years old at the time, there is no mitigating circumstances. …”

9.On 7 May 1996, the Court of Appeal dismissed the respondent’s appeal against his conviction.

10.In 1996, section 2 of the OAPO was further amended and section 67B of the CPO enacted.  The amendments to section 2 gave to a sentencer the discretion to impose on a person convicted of murder who was at the time of the commission of the offence under the age of 18 either a life term or a fixed term.

11.On 16 June 1998, the respondent applied to the Court of Appeal inviting the court to substitute the original sentence of life imprisonment by a fixed term sentence.  The court refused the application.  In dismissing the application, Power VP said :

“We have given careful consideration to this application.  It is for us to decide whether, in all of these circumstances, it would be appropriate to exercise our discretion.  We are satisfied that it would not.  We do not consider that this court should interfere in the sentence that was imposed for a grave offence according to law and the application is, therefore, dismissed.”

12.In August 1998, pursuant to section 67D of the CPO, the Chief Justice recommended to the Chief Executive a minimum prison term to be served by the respondent.  The Chief Executive, acting on the advice, fixed a minimum term of imprisonment for the respondent pursuant to section 67C of the CPO.

13.In Yau Kwong Man & Anor. v. Secretary for Security [2002] 3 HKC 457, Hartmann J held that the powers given to the Chief Executive pursuant to section 67C of the CPO were judicial powers and therefore inconsistent with Article 80 of the Basic Law.  The operative parts of that section were deemed to be invalid.  The result is that any such the minimum term determined by the Chief Executive were held to be unconstitutional and therefore void.

14.The legislators acted promptly to remedy the situation.  New legislation was in place by July 2004 whereby the prisoners who were affected by the decision in Yau’s case can be brought before a single judge of the Court of First Instance pursuant to section 67C(1) of the CPO.  The Court of First Instance is empowered (i) to fix minimum terms and (ii) in appropriate circumstances to impose fixed terms of imprisonment.  The respondent is serving a mandatory life sentence in respect of the conviction of murder committed when he was under the age of 18.  He comes within the ambit of the new legislation.

Minimum term or fixed term

15.The first issue to be decided, is of course, whether to pass a minimum prison term or to set aside the original life sentence and substitute it by a fixed prison term.  I have stated earlier in HKSAR v. Yeung Mok Yeh & Another, HCMP2209 and 2211/2004, that prisoners who were under 18 at the time of the offence and who were sentenced to be detained at Her Majesty’s pleasure and subsequently detained at Executive Discretion ought to be given a fixed term sentence.  A prisoner is entitled to know how much longer he is to be detained in prison and also a prisoner serving an indeterminate term are exposed to the undesirable effects of a prolonged state of uncertainty on the prisoners’ motivation. 

16.In cases where the respondent had displayed a genuine effort to rehabilitate himself and where he has shown remorse for what he did, a fixed term imprisonment would have the effect of a positive motivation for the respondent to better himself as the date of release approaches.  The court must also be satisfied that there is no indication that the prisoner may pose a threat to the public if released.

17.If on the other hand, the prisoner shows little or no motivation to rehabilitate himself or that his behaviour or attitude is indicative of the fact that he continues to pose a threat to the public if released, these would be highly relevant factors for the court to consider passing a minimum term.  I am of the view, based on the above considerations, and for the reasons stated below that a fixed prison term should be passed for this respondent for the reason stated below.

18.The respondent has been detained since 17 December 1994 and by December of this year he would have been in custody for 10 years.  Through his counsel Mr Oderberg, the respondent has given his consent should the court considers appropriate to quash the original sentence and substitute it by a fixed prison term.

19.In the trial judge’s report to the Governor which I have cited earlier he took the view that this was a planned action preying on the aged and helpless lady and that the respondent and his accomplice armed themselves with knives and contemplated the use of violence from the very outset.  The respondent did not hesitate to use violence on the deceased and the judge commented that the deceased was savagely stabbed.  This was supported by the findings of the pathologist in that he detected 48 wounds and abrasions on the deceased.  At the trial, the respondent denied participation in the robbery and that he had attacked the deceased in any way.  It cannot be said that the respondent was in any way remorseful over what he did at the time of his trial.

The respondent’s circumstances

20.Under section 67C(5)(a), the judge hearing the application is empowered to take into account any material submitted to him by the Secretary for Justice or the prescribed prisoner which is relevant to the determination.  When the only option opened to the sentencing judge was a life sentence, the existence of aggravating or mitigating factors matter very little.  However, in the present exercise in determining an appropriate fixed term sentence, the judge undertaking the present exercise must be allowed to look at the circumstances of the case and all the factors which are relevant in assisting the sentencer to come up with the appropriate sentence.  I note from the respondent’s criminal record that prior to his conviction of murder and attempted robbery, he had one previous conviction of robbery for which he was sentenced to the Training Centre in January 1995.  It must have been the case that he committed the robbery some time before he committed the murder.  

21.When interviewed by the psychiatrist Dr C.H. Yuen back in 1995, the respondent admitted to the psychiatrist that he was a drug abuser.  He told the psychiatrist he first took cannabis in the company of friends some four to five years ago before the interview and he later resorted to the use of tranquilizers.  This would have meant that he started to use drugs when he was as young as around the age of 10.  He also admitted to having taken some 10 tablets of the drug Rohypnol which was more commonly known as “Little Cross” on the day in question.  He claimed that he was under the influence of the drug on the day when he committed the offences.  This was, however, not supported by any independent medical evidence. 

22.The respondent left school after completing Form 3 and his academic performance was described as “poor”.  What then followed was an all too familiar pattern of gradual degeneration.  He started to mix with undesirable peers in his neighbourhood and became a drug abuser under their influence.  It was hardly surprising, as it turn out, that his peers had triad connections. 

Performance during detention

23.There is, before this court, a report by the Prison Superintendent of Shek Pik prepared in June 2003.  The report reveals that the respondent had certain adjustment problems when he was first incarcerated.  Over the years he had on four occasions breached prison regulations.  The last time was in June 2003 when he was found playing a game of chance with a set of home-made playing cards.  The reporting officer observes that the respondent had gradually taken a positive attitude in rehabilitating himself.  He managed to get along well with the prison officers and fellow prisoners.  Further observation however, is required to test his long-term determination in rehabilitating himself.  His overall institutional performance over the years is described as “above satisfactory” and was given a grading of ‘B+’.

24.His efforts in undertaking vocational training and academic pursuit is supported by the results he obtained in open examinations.  He scored satisfactory results in examinations held by the Pitman Institute and the London Chamber of Commerce and Industry.  In 2001, he came first in the open literary competition in Shek Pik Prison.  In the same year, he sat the Hong Kong Certificate of Education Examination and obtained passes in six subjects of which four were awarded credits.  For his efforts, he was awarded a scholarship of $400 by the Education Scholarships Fund Committee.  The respondent is presently enrolled in courses offered by the Hong Kong Open University.  Apart from his academic and vocational achievements, he has also learned to play the guitar and has a place in the institutional band.

25.On the spiritual side, the respondent has turned to the Christian religion in 1998.  Since then, he has participated regularly in religious services.  Letters from the Hong Kong Christian Kun Sun Association Limited suggest he had gained insight into his previous behaviour leading to his transgression of the law.  The respondent’s attitude towards life in general has underwent transformation and had shown steady improvement. 

The psychiatrist report

26.In order to assist this court in the present hearing, the Department of Justice had commissioned a psychiatrist report and a psychological report.  The contents of both reports are not in dispute.  In the psychiatrist report prepared by Dr C.H. Yuen, the same doctor who examined the respondent back in 1995, he made the following observations :

“He the (respondent) reported having changed a lot and matured a lot after incarceration.  He quoted the examples that he only cared about himself and could use violence easily in the past but now he has more long-term plan and is no more violent.  What he claimed seems to be true judging from his reasonably good intuitional performance and the absence of violence in prison.”

In the concluding paragraph, the doctor further observed :

“He seems to have matured and has gain insight after incarceration.  On the risk of further violence and recidivism after release, his cooperative attitude; lack of violence in prison and good learning attitude should be good prognostic features.  Apart from his age (24 is still quite young) I cannot think of other unfavourable prognostic factors.”

The psychologist report

27.In the psychological report prepared by Mr Francis Butt, the result of risk assessment tests performed on the respondent showed that the risk of violent recidivism is low.  Other tests performed on the respondent also support this finding and his need for intense supervision after release is minimal.  Mr Butt is of the opinion that the respondent appears to pose an insignificant threat to society and the respondent appears to be heading in an appropriate direction in his rehabilitative process.  

28.Family support appears not to be a problem as the respondent has been regularly visited by his family members during his incarceration. 

The appropriate sentence

29.I shall now turn to the issue of determining the appropriate sentence for the respondent.  I bear in mind that each case has its unique features and I find the following cases to be of assistance in assessing the appropriate sentence for the respondent. 

30.In HKSAR v. Cheng Yat Ming (No. 2) [1997] 3 HKC 365, the Court of Appeal imposed a determinate sentence of 28 years imprisonment for a person convicted of murder and sentenced to life imprisonment.  The facts are taken from HKSAR v. Cheng Yat Ming (No. 1) [1997] 3 HKC 360.  The Applicant was owed money by the deceased and went to his home to collect it.  The deceased argued with him and hit him with his fist.  The Applicant lost control and put a belt around the deceased’s neck and strangled him.  The Court of Appeal held that the incident did not involve a large measure of premeditation on the part of the Applicant and that the Applicant did not bring with him any weapons.  It was also accepted that the Applicant was not suffering from any psychiatric disorder, and that there was no reason to believe he would be a danger to the public if and when released from detention.

46. In HKSAR v. Lau Kin Hang Criminal Appeal No. 357 of 1997 (unreported), the Court of Appeal substituted a determinate sentence of 29 years for the sentence of life imprisonment imposed by the trial Judge.  The Applicant in that case was 16 years of age when he killed his former girlfriend.  The Applicant and the deceased had an argument over the break-up of their relationship.  The deceased was killed by heavy blows to her chest which tore her liver and damaged her pulmonary artery.  There was also evidence that she had been strangled with a coat hanger.  The Court of Appeal observed when quashing the sentence of life imprisonment and substituted a determinate sentence of 29 years imprisonment :

“From the evidence, it appears that the killing was in the heat of the applicant’s anger and there was little premeditation.  The applicant took no weapon to commit the offence.  Nevertheless, the killing was a brutal one.

The applicant is not suffering from any mental disability.  The medical experts at the trial told the jury that the applicant was a normal person psychiatrically or otherwise and he would pose no danger to the society if released to the community. …”

31.In HKSAR v. Lee Kar Yeung (D3), CACC315/1998 (unreported), the Court of Appeal declined to interfere with a sentence of 30 years’ imprisonment.  The Applicant was 15 years at the time of the offence.  The victim in that case was lured to a flat and murdered in brutal circumstances and the body of the deceased was never recovered.

Conclusion

32.In the light of the cases referred to above, I assess the appropriate sentence for the respondent is a prison term of 30 years.  The respondent has made commendable efforts to rehabilitate himself while in prison and he has shown genuine remorse.  For his overall performance while in prison during the past 10 years, I am prepared to give a discount of three years from the 30-year term.

33.For the reasons I have stated, I would exercise the powers vested in me pursuant to section 67C(4)(b) of the CPO and I order that the sentence passed on the respondent on the murder count by Leong J on 4 August 1995 be quashed.  The sentence is substituted by a sentence of 27 years’ imprisonment.

Mr D.G. Saw, SC, DDPP and Mr Vincent Wong, SGC of DPP, for HKSAR

Mr K. Oderberg, instructed by Messrs Ong Hean Cheng & Co., for the Respondent