Secretary for Justice v. Tang Yuk Kwan and Another

HCMP2213 &2214/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NOS.2213 AND 2214 OF 2004

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BETWEEN

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(HEARD TOGETHER)

Before : Hon Pang J in Court

Date of Hearing : 1 December 2004

Date of Judgment : 17 December 2004

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J U D G M E N T

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1.This is an application by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap.221 (“CPO”) for a determination under section 67C(3) and (4) of the CPO.  The respondents, Tang Yuk Kwan and Lam King Wa, belong to a class of prisoners who were convicted of the offence of murder at the time when they were below the age of 18.  They were both convicted of one count of murder on 7 April 1992 before Keith J sitting with a jury.  On the same day, they were sentenced to be detained at Her Majesty’s Pleasure in accordance with the then section 70 of the CPO.

2.As both applications arose out of the same case, on 27 October 2004, I directed that both be heard together.

3.For reasons which I have stated in paragraphs 19 to 28 in HKSAR v. Lai Hung Wai, HCMP2208/2004, I took the view that prisoners belonging to this category should be given a fixed term sentence instead of passing a minimum term of imprisonment, pursuant to section 67C(3).

4.Further, I would repeat my reasons as stated in paragraphs 5 to 7 in HKSAR v. Yeung Mok Yeh and Kwan Wing Kei, HCMP2209/2004 and HCMP2211/2004.  I consider the appropriate sentence for both respondents to be one of a fixed term imprisonment.  Both respondents have given their consent through their counsel, Mr Donald, that the provisions of sub-section 4(a) and (b) are applicable to him.

Background

5.The respondents were jointly charged with one count of murder which took place in the evening of 16 May 1989.  The victim, a male surnamed Cheng who was in his 30s, was attacked by a group of some 10 persons armed with weapons and died from his wounds the following day.  Both respondents fled to Mainland China some two weeks after the incident and it was not until 11 December 1990 that they were taken into custody by the Chinese authorities and were repatriated from China and arrested by the Hong Kong police.

6.The respondents were also jointly charged with one count of Wounding with Intent, contrary to section 17 of the Offences Against the Person Ordinance, Cap.212, of which they were also convicted.  The sentences of the wounding count are not the subject matter of this application.

7.The background of this case is clearly stated in Keith J’s report to the Governor dated 8 April 1992 :

“… The deceased and the Defendants all lived in the Yick Yuen Temporary Housing Area, Tuen Mun, and had known one another for some years.

The Crown’s case was that on 10^th May 1989 the deceased assaulted the Second Defendant [Tang Yuk Kwan] by punching him on the nose, in an argument over a pager which the deceased had lent to the First Defendant [Lam King Wa].  Although the argument between the deceased and the Second Defendant appeared to have been patched up, one or other or both of the Defendants reported what had happened to their associates.

At about 11:30 pm on 16^th May 1989, about 5-6 men attacked the deceased with knives and baseball bats while he was playing cards outside a restaurant in Yick Yuen Tsuen.  The assailants were accompanied by a number of other men, including the First Defendant who was seen holding a knife, and the Second Defendant who was seen holding something which resembled a baseball bat.  The deceased died in the early hours of the following morning from ‘multiple cut wounds’.

The Crown did not allege that either of the Defendants physically took part in the attack on the deceased, or that the assailants intended to kill the deceased.  The Crown’s case was that the argument in the previous week was the motive for the attack, that the assailants were associates of the Defendants, and that the Defendants had helped the assailants to find the deceased.  The Defendants admitted that they were present at the scene of the attack, but claimed that they were innocent bystanders who had no idea what was going to happen.  They denied that they had any weapons themselves.

By their verdicts, the jury found that the Defendants had gone along with a plan to attack the deceased, and had helped in some way to put that plan into effect, at the very least believing that there was a real possibility that the deceased would suffer really serious injury.

The Defendants were also convicted by the jury of wounding LI Yam-loi on 16^th May 1989.  He had been playing cards with the deceased, and was chopped twice with a knife.  The Crown did not suggest that either of the Defendants actually chopped LI Yam-loi.  By their verdict, the jury found that the Defendants had gone along with a plan to use violence, if necessary, on anyone who stood in the way of the attack on the deceased, and had helped in some way to put that plan into effect.  In sentencing them each to 18 months’ imprisonment for that wounding, I told the Defendants that I took account of what I believed to be the reality of the case — namely, that when the assault on the Second Defendant by the deceased was reported to the Defendants’ associates, it was their associates who decided that the deceased should be taught a lesson, and that to a modest extent the matter was out of the Defendants’ hands.

In view of the age of the Defendants at the time of the murder, I directed that the finding of the jury that they were guilty of murder be recorded, and I ordered that each of the Defendants be detained in the custody of the Commissioner of Correctional Services until Her Majesty’s pleasure be known.”

8.The respondents’ appeal against their conviction was dismissed by the Court of Appeal on 5 March 1993.  In the judgment of the court, Macdougall JA summarised the case in detail :

“The applicants were tried before Keith J and a jury on an indictment containing two counts, the first being one of murder of Cheng Kwong-wing and the second, one of unlawful wounding Lee Yam-loi with intent to do him grievous bodily harm.  They were found guilty of murder.  However, they were found not guilty of wounding with intent but guilty of the lesser offence of unlawful wounding.  Since both were below the age of 18 years at the time of the commission of these offence they were both ordered to be detained while Her Majesty’s pleasure be known.  For the offence of unlawful wounding they were each sentenced to 18 months’ imprisonment. …

The salient features of the evidence for the prosecution were that, on 10 May 1989, the deceased and the 2^nd applicant [Tang Yuk Kwan] had an argument over a pager which the deceased had lent to the 1^st applicant [Lam King Wa].  The two men then had a fight.  This was undisputed.  Almost a week later, on 16 May, the deceased was one of a group of four men playing cards on the porch of the Yip Shing Restaurant in the Yick Yuen Temporary Housing Area in Tuen Mun.  Watching the game were two other men.  Suddenly a large group of men, some of whom were armed with knives and others with baseball bats and billiard cues, arrived.  One of the new arrivals banged a baseball bat on the table at which the card players were seated and shouted words to the effect that it was none of their business and ordered them to squat down.  Five or six of the new arrivals then violently attacked the deceased, leaving him unconscious on the ground.  Two of the card players, namely Lee Yam-loi, the victim named in the second count, and one Chan Mo-cheung, identified the applicants as being among the group of attackers.

Mr. Lee said that as he left the porch to telephone for help he saw five or six of the attackers running away, and that the last two of them, the applicants, then turned around.  The 1^st applicant, whom he had known since about 1983 was holding a knife similar to a beef knife, and the 2^nd applicant was holding something like a softball bat.  The 1^st applicant ordered Mr. Lee not to do anything rash.  Both applicants then turned and ran towards Castle Peak Road.

Chan Mo-cheung testified that he saw the applicants, whom he had known for two to three years, among the large group of men who had rushed into the porch and that he noticed that they wore fierce expressions on their faces.  Although he did not see either applicant holding anything, he did see five or six men attack the deceased with knives.  Mr. Lee also testified that during the course of the attack he attempted to stand up but, as he did so, was struck on the head and back from behind with a knife.  He was unaware of the fact that he had sustained injuries until after the attackers had run away.

The 1^st applicant declined to give evidence.  The 2^nd applicant testified that on the evening of the incident he and the 1^st applicant went to a cinema after which they took a taxi back to the Yick Yuen Housing Area.  On alighting from the taxi, the 2^nd applicant saw a man whom he did not know call the 1^st applicant to join him.  After a short while the 1^st applicant returned and told the 2^nd applicant that they were going to Yick Yuen village to see whether a person named Sze Mo was playing cards there.  With that, both applicants, unaccompanied by the other man, walked to the Yip Shing restaurant.  As they reached the restaurant, they saw a group of people armed with poles rush into the porch.  One of the group struck Mr. Lee on the head.  Almost immediately after this another group of people rushed in.  Someone then shouted, ‘Run away’.  On seeing the 1^st applicant running towards Castle Peak Road, the 2^nd applicant followed suit.  At Castle Peak Road, he and the 1^st applicant boarded a car in which there were two other men.  All four then drove off to Mongkok.

There was other evidence that immediately after the attack some of the attackers were seen running up to two vehicles, a van and private car, which were stationary in the Castle Peak Road.

The 2^nd applicant further testified that he and the 1^st applicant did not return to their own homes but spent the night at the home of one of the other men who left with them in the car.  Later, at the suggestion of a friend of the 1^st applicant, both applicants went to China to engage in the smuggling of commodities into and out of China.

Shortly after mid 1990 the applicants were arrested in China and were repatriated to Hong Kong on 11 December 1990 where they were taken into custody at the Lowu bridge.  According to the 2^nd applicant, he did not become aware of the deceased’s death until then.

Both applicants made cautioned statements to the police.  The 1^st applicant stated that Sze Mo had told him and the 2^nd applicant to meet him at the Yick Yuen village entrance.  Although the 1^st applicant did not know why Sze Mo had given them this instruction, he and the 2^nd applicant waited for almost a half an hour for him to arrive.  Then, instead of Sze Mo, a group of other men appeared.  The 1^st applicant thought that they had come to beat up the deceased because of the incident that had occurred during the previous week when the deceased had assaulted the 2^nd applicant during the course of the argument over the pager.

On seeing that the group were armed with sticks, the 1^st applicant likewise armed himself.  It was not until the group had found the deceased playing cards at the restaurant that the 1^st applicant noticed that the other members of the group were also armed with knives.  He took no part in the attack on the deceased but merely stood outside the restaurant and watched.  When the attack had concluded he left the scene in a vehicle with the group of attackers.  Both he and the 2^nd applicant hid in Mongkok for fear that the deceased’s friends would exact revenge on them.  They then learned from a newspaper report that the deceased had died in the attack.  Being frightened, they accepted a friend’s offer to assist them to escape to China.

In a later cautioned statement to the police the 1^st applicant admitted that on the night of the fatal attack he knew that they were going to beat up the deceased because one of the members of the group had told him and the 2^nd applicant this when they arrived at the village.  He also admitted that he and the 2^nd applicant had taken the lead in seeking out the deceased.  He said, however, that he had armed himself with a stick merely to defend himself in the event that the deceased’s friends attacked his group.

In his cautioned statement to the police the 2^nd applicant said that when he and the 1^st applicant arrived at Yick Yuen village on the night of the attack they saw a group of about 12 people, 3 or 4 of whom were armed with knives and the others with poles.  On inquiring from one of them, a man whom he said was named Ah Wa, what they were doing, the 2^nd applicant was told that they had come to chop the deceased in order to vent the anger felt by both applicants.  He was also asked where the deceased could be found.  When he replied that he did not know, he and the 1^st applicant were told to join the group and look for the deceased.  After searching for about 15 minutes they discovered him at the restaurant playing cards with several other people.  The entire group then advanced to where the deceased was sitting.  Two of the group chopped him with knives while another hit him with a pole.  Mr. Lee then attempted to escape, whereupon one of the group chopped him on the back.  The card players were told that those who were not concerned were to squat down.  Two or three of the attacking group then chopped the deceased several times.  On being given the order to leave, the entire group of attackers left together.  When they reached the entrance to the village the applicants were told to board a vehicle.  The 2^nd applicant and other members of the group then departed in a goods van while the 1^st applicant was driven off in a private car.  On arrival at Mongkok the group dispersed.  In late May of that year the applicants spent $3,000 each to hire a boat in Lau Fau Shan and sneaked into China.”

9.This was a brutal attack by the two respondents who were among an armed group of some 10 people with triad background.  At the trial before the jury the references to triad involvement in the cautioned statements were edited and was therefore not before the jury but the information was before the trial judge.  The assailants were armed with knives, baseball bats and billiard cues and the deceased died of multiple chop wounds.

10.This was a planned triad revenge attack.  A van and a private car had been arranged in the vicinity as get-away vehicles.  Mr Donald described the incident as “a silly argument over a pager”.  This is not a contention which I can agree.

11.At the trial, the respondent Lam King Wa elected not to give evidence.

Tang Yuk Kwan

12.Tang Yuk Kwan elected to testify.  The gist of his testimony was that he was present at the attack of the deceased, however, he did not take part in the attack.  He was overcome by the events and when the group fled from the scene he simply followed suit.  His defence can be summarised as one of lack of intention to kill nor to cause grievous bodily harm.

13.Tang was born on 10 August 1972 and was therefore 16 years and 10 months old at the time of the offence.  Since the date of his repatriation from China on 11 December 1990, he has been in detention ever since.  He has been detained for 14 years.

Clinical Psychologist’s Report

14.According to the clinical psychologist’s report dated 22 November 2004, Tang came from China when he was 15 years of age.  While at school he has shown potentials in extra curricula activities.  His parents were both working to maintain the family and therefore the respondent suffered from the lack of parental control in his adolescence.  He started associating himself with triad elements in his neighbourhood and became a triad member.  By the time he was in Form 2, he decided to quit school and began working on various odd jobs to support himself.  His first transgression of the law came in 1986 when he was convicted of the offence of theft for which he was put on probation.  In the following year, he committed the offence of handling stolen goods and he was sentenced to the Detention Centre.  His continued involvement with triad elements led him to commit the present offence of murder.  During the first year of his incarceration in 1991, he was recorded to have breached prison regulations on three occasions.  Since then, he was recorded to be in full compliance with the prison rules and there was no subsequent disciplinary actions recorded against him.

15.Towards the end of the report, the psychologist observed :

“… The present evaluation suggested that Tang is cognitively and behaviourally competent.  No mental disorder or intellectual disability is noted in him.  Undoubtedly, Tang has been in preparation to lead a productive life outside prison.  Together with the support from his family, his chances of succeeding are present.  However, there seems to be some unresolved psychological issues which can be damaging to his rehabilitative procedures.  Although the assessment finding revealed that his probability in violating a violent crime is low, his risk of general recidivism remains as an important point deserving same [sic] supervisory attention.  In summary, there is no evidence reflecting that Tang is a violent threat to society.  His motivation for positive changes is observed.”

The general tenor of the report appears to be encouraging.

Correctional Services Report

16.According to the latest Correctional Services Report dated 23 March 2004, the respondent’s overall performance was given an “A” rating.  He was observed to have displayed sense of remorse for his past misdeeds and had gained insight into his weaknesses.  He had made obvious efforts towards his rehabilitation and this is evidenced by his active pursuit in educational programmes.  Over the past decade, the respondent passed the London Chamber of Commerce and Industry Examination in Bookkeeping and obtained an outstanding result in the Pitman Examination in English.  Since 1998 he was enrolled in the Asia International Open University (Macau) and in August of this year he had completed the degree programme and was awarded the Degree of Bachelor in Business Administration.

17.On the spiritual side the respondent had turned to Buddhism.  This is evidenced by the Certificates of Merit he obtained in 1996 and 1997 for his good results in examinations held by the Fat Kwong Shan Monastery in the subject of World Buddhism.

Psychiatric Report

18.In the psychiatric report prepared by Dr C.H. Yuen, dated 18 November 2004, the doctor observed in paragraph 9 :

“TANG does not have anti-social personality.  He seems to have matured a lot after imprisonment and is actively making himself better.  Good family support is another good prognostic factor.  The risk of re-offending should be low.”

Social Welfare Report

19.From what is disclosed in the Social Welfare Report prepared in April 2004, the respondent receives regular visits from his mother and younger sister.  Apart from the visits, the respondent is in regular correspondence with his family members.  Family support, therefore, does not appear to be a problem.

Lam King Wa

20.The respondent Lam King Wa was born on 15 February 1973.  At the time of the offence, he was 16 years and 3 months of age.  He has been in detention since 11 December 1990.  

21.Lam came to Hong Kong at the age of 10 to join his parents.  His performance at school was poor.  During his leisure hours, he would hang around with the neighbourhood boys and it did not take much longer for him to start associating with the street gangs.  Prior to the offence of murder, Lam had committed the offence of burglary in 1987 for which he was sentenced to be detained in the Detention Centre.

Correctional Services Report

22.According to the Correctional Services Report dated 23 March 2004, Lam was observed to have some difficulties in adjusting himself to the prison environment at the early stage.  In 1991 he transgressed prison regulations on three occasions.  Subsequent to that, he managed to stay away from trouble throughout his term of detention.  He was given an overall performance grading of “A”.

23.Lam quitted school when he was in Form 1 and since his incarceration, he had actively participated in various educational programmes.  He passed examinations in English language, Mathematics and Accounting held by the London Chamber of Commerce and Industry with satisfactory results.  In 1999, he enrolled in the Asia International Open University (Macau) in the faculty of Social Science.  In February 2004, he was awarded the Degree of Bachelor of Social Science.

24.Apart from his academic pursuit the respondent had participated actively in voluntary work.  Over the years he had lent his support to the Volunteer Action Centre, International Volunteer Day and he was awarded the Gold Award by the Yuen Long Fight Crime Committee.  He also participated in events organised by the Hong Kong Christian Council.  It is also noted that each year he donates one month of his salary to a school project in the Mainland.

Clinical Psychologist’s Report

25.According to the clinical psychologist’s report, the respondent had gained insight into the offence.  He is remorseful over what he did and in May 2004, he published a public apology in a local newspaper expressing his regret and remorse to the victim’s relatives.  The clinical psychologist, however, has some reservation on the respondent’s ability to handle emotional problems.  He concluded his report by saying :

“… However, the present assessment also reflected that LAM, through [sic] appears confident, has certain vulnerability which may affect his perceived successful road of rehabilitation.  Being a rigid, uncompromising individual, his of fear [sic] failures can serve as a barrier which may damper his adjustment outside prison.  As he may frantically avoid making mistakes, any error in judgment is likely to have damaging effect to his self-image and confidence.  Overreacting and emotional explosion can be his response which, in turn, may influence him to behave irrationally.

Nonetheless, the overall speculation [sic] on LAM indicated his chances of resorting to violence to resolve his problem is unlikely.  With the assistance through psychological services, his progress is optimistic.”

This is a cautious comment.

Psychiatric Report

26.The clinical psychologist’s caution is reflected in the report by Dr S.H. Lui, the visiting psychiatrist from Siu Lam Psychiatric Centre.  In his report dated 16 November 2004, Dr Lui observed in paragraph 4 :

“… He appears to be an intelligent person and I am not sure I can understand him very well.  He is still young and more years of observation, whether in or out of custody, is recommended.”

27.I do not think the caution expressed by Dr Lui and the clinical psychologist is a major cause of concern at this stage as the respondent will still have a number of years to serve before he is released.  His progress will be closely monitored.

Social Welfare Report

28.Based on the Social Welfare Report dated 23 April 2004, the respondent’s family members have paid frequent and regular visits to him over the years.  His parents have separated in 1998.  It appears that they are supportive of the respondent.

The appropriate sentence

29.I shall now turn to the issue of determining the appropriate sentences for the respondents.  This is a case involving a triad revenge attack on a victim who was overwhelmed by the sheer number of attackers.  The attack involved a fairly sophisticated degree of planning, co-ordination and execution.  This was evidenced by the attackers being driven away by get-away cars deployed in the vicinity of the attack.  The respondents then hid themselves in the Mongkok area and some two weeks after the incident, they managed to escape to Mainland China on a fishing vessel departing from the Lau Fau Shan area.

30.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 old 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.

32.In light of the cases referred to above, I take the view that in cases involving triad gang attack resulting in conviction for the offence of murder, the convicted person should face a fixed prison term of around 30 years.  This is of course subject to appropriate upward adjustment should aggravating factors exist.  Mitigating circumstances would justify a downward adjustment.  For the present case, I assess the appropriate sentence is one of 30 years’ imprisonment.

33.Both respondents have made commendable efforts to rehabilitate themselves while in prison and have shown genuine remorse.  For each respondent’s overall performance while in prison, I am prepared to give a discount of three years from the 30-year term.

34.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 respondents on the murder count by Keith J on 7 April 1992 be quashed.  The sentence for each respondent is substituted by a sentence of 27 years’ imprisonment.

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

Mr Donald Richard David, instructed by Messrs S.H. Chan & Co., assigned by DLA, for the Respondents in both cases