Secretary for Justice v. Wong Tat Yan and Another

HCMP2216 & 2217/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NOS.2216 & 2217 OF 2004

BETWEEN

Before : Hon Pang J in Court

Date of Hearing : 13 December 2004

Date of Judgment : 11 January 2005

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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.

Background

2.The respondents Wong Tat Yan and Chan Po Keung 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.  Together with two adult co-defendants they were tried and convicted of one count of murder before Bewley J sitting with a jury.  The adult co-defendants were sentenced to death.  Their sentences were commuted to life imprisonment on 28 and 30 April 1993 respectively.  They remain so sentenced.  The respondents, by reason of their age, were sentenced to be detained at Her Majesty’s pleasure in accordance with the then section 70 of the CPO.  

3.As both applications arose out of the same case, on 24 September 2004 I directed that they be heard together.

4.For reasons which I have stated in paragraphs 19 to 28 in HKSAR v. Lai Hung Wai, HCMP2208/2004 and paragraphs 5 to 7 in HKSAR v. Yeung Mok Yeh and Kwan Wing Kei, HCMP2209/2004 and HCMP2211/2004, I am of 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).  Both respondents have given their consent through their counsel, Mr Haynes, that the provisions of sub-section (4)(a) and (b) are applicable to them.

5.In his report to the Governor of Hong Kong dated 25 February 1992, Bewley J observed :

“The case involved an attack with knives to one group of youths upon another in Homantin on 5^th November 1990.  The victim was chopped to death by several attackers, including these two defendants, who played leading roles in the attack.  Nine persons were charged with murder and four were convicted.

The defence of both defendants was that, although they witnessed the incident, having become swept up in the hue and cry, they were not members of the attacking group and had no criminal intentions.

Both defendants were picked out at subsequent identification parades by members of the other group.  Wong Tat-yan’s clothing bore bloodstains which were admitted to be attributable to the deceased.  Chan Po-keung made a cautioned statement on his arrest in which he confessed to playing a part in the attack.  I had no doubt as to the correctness of the jury’s verdicts.

The deceased and the defendants were members of rival Triad Societies.  The reason for the attack was otherwise unclear, but it was a carefully planned ambush in the early hours of the morning.  There are no mitigating factors.”

6.It was clear from the evidence at the trial that the respondents and their co-accuseds were members of a triad gang which, in the early morning of 5 November 1990, attacked a rival gang with knives.  The deceased, a youth surnamed Shek, was so badly injured that he died at the scene of the attack.  The respondents’ appeals against their convictions were dismissed by the Court of Appeal on 22 July 1993.

7.In the summing up to the jury the trial judge made the following observation regarding the victim’s cause of death :

“      Now evidence as to the cause of death was given by Dr SHEN, and he said that he carried out autopsy on the deceased on the morning of 6^th November.  The cause of death was bleeding due to multiple chop wounds.  There were some 30 odd wounds.  He said that considerable force would have been required to cause such injuries using the knives exhibited.  For example, the wound on the front of the right upper thigh in photograph 10, which is a large transverse gaping wound 28 centimetres long, it divided the right femoral artery completely and opened up the right femoral vein and ended by causing a superficial chop mark on the underlying fibre.”

8.This was a vicious premeditated gang attack directed at a rival triad gang.  The evidence at the trial clearly shows that the respondents were among the leaders of the attacking gang.  Together with a number of others, the respondents continued chopping the deceased even after he had fallen onto the ground.  The manner of the attack leaves no doubt that the respondents intended to kill the deceased.

Wong Tat Yan

9.The respondent in HCMP2216/2004, Wong Tat Yan, was born on 13 April 1973 and was therefore 17 years and 7 months of age at the time of the offence.  He was arrested on the day of the offence and has been in detention since.  Wong was the 2^nd defendant at the trial and he elected to testify.  There was undisputed evidence that the deceased’s blood was found on the right sleeve and the back of Wong’s jacket, on his left shoe and on the both legs of the jeans that he was wearing at the time.

10.Wong’s account to the jury was that he lived in the vicinity of the attack.  On the morning in question he was about to return to his home to fetch some money.  As he was walking pass the scene of the attack he saw a number of people including the 6^th and 7^th defendants (the 6^th defendant is Chan Po Keung, the respondent in HCMP2217/2004).  He noticed two gangs of people and they started to have a fight among them.  In the confusion someone was injured and had fallen onto the ground.  As he was trying to run away he heard someone shouting “police”.  In his haste, he slipped and fell over.  This was the reason he advanced to account for the bloodstains found on his shoe and clothing. 

11.The trial judge quoted the respondent to have said :

“That night I did not hold a knife or other weapon.  I did not take part in chopping the deceased or other person.  There was blood on my left hand and abrasion on my hand.  It was bleeding because I had fallen.  I put up my hand in front of me and it was abraded.”

The respondent’s account was in clear contradiction to the evidence given by a police officer who told the court that he had identified this respondent as one of the group who had been attacking the victim with knives.  In returning a verdict of guilty, the jury must have rejected the respondent’s account.  From the general tenor of the respondent’s evidence, he was clearly trying to dissociate himself completely from the attack.  I cannot say that the way he conducted his defence reveals any degree of remorse at the time of his trial.

12.The respondent had four previous convictions including inducing another to become a member of the triad society and assault occasioning actual bodily harm.  He also committed robbery in 1988 for which he was sentenced to be detained in a detention centre.  The background of the respondent reveals that this is an all-too-common example of how an adolescent had dropped out of school and began associating with undesirable elements.  His gradual degeneration had ended him in participating in the triad gang attack which resulted in the murder charge.

Correctional Services Report

13.Wong is presently detained in the Shek Pik Prison.  While in remand before being sentenced on 19 February 1992, he had incurred two disciplinary reports and was warned on four occasions for misbehaviour.  Since his sentence, he had been warned for misbehaviour on four occasions with the last one in May 1999.  Thereafter, it was reported that he was able to behave himself and has since maintained a clear disciplinary record.

14.The respondent has actively participated in rehabilitation programmes conducted by the Correctional Services Department.  He is presently a member of the Prisoners’ Music Band and performs regularly.  He is also a volunteer in the “Personal Encounter with Prisoners’ Scheme” which is targeted at teenage students for crime prevention.  In 2003, he was given a merit award in the “Creative Drawing Competition for Persons under CSD Custody 2003”.  He was reported to have gained insights into his past misdeeds and put in efforts to reform himself.  His overall institutional performance was described as “Very Good” and his overall work performance was also described likewise.  The overall performance grading for the respondent is “A+”.

Clinical Psychologist Report

15.In the Clinical Psychologist Report dated 22 November 2004 prepared by Mr Francis Butt, he is observed to be a more mature, conforming and dependable person.  Assessment results reveal that he is unlikely to resort to aggressive behaviour to attempt to solve his personal conflicts.  He seems to have the ability to handle problems with reasonableness and maturity.  The respondent is assessed to be very remorseful over his offence.

16.In 2000, he wrote to the Long Term Prison Sentence Review Board expressing his guilt and sorrow for killing the victim.  This can be considered as a significant milestone in that it is the first documented record of the respondent admitting to killing the deceased.  Comparing to the account he had given to the jury at his trial, he appears to have gained insight into his offence.

17.On the tests performed on risk assessment, the results suggested the possibility that he would commit another violent crime in the future is low.  The psychologist noted that there is an absence of significant psychopathic features and his present character seems to indicate that he is not a threat to the community.

18.The Clinical Psychologist concluded by observing :

“      WONG Tat-yan is presently assessed to be an individual who is passive and conforming in the attempt to seek approval or acceptance.  As a follower, he is likely to put forth a people-pleasing attitude so that he will not be denied.  This finding suggested that his lack of self-confidence can be his personal weakness which may be critical to his adjustment outside the prison walls.  Nonetheless, to his credits, gradual improvement has been observed in him during his incarceration period.  This included his strive for educational advancement, participation in constructive activities and satisfactory performance in prison.  Various psychological measurements further indicated that he has strong understanding with regard to his sense of responsibility.  Rather than being impulsive as he used to be, he now seems to the more willing to think through his problems instead of behaving aggressively when feeling dissatisfied.  Perhaps because of this form of cognitive maturity, the result from the assessment reflected that his risk of violent recidivism rate is low.  His chances of violating violent crimes are minimal.  One risk factor which deserves some attention appears to be his general recidivism.  As a passive person who has been imprisoned for over thirteen years, it is speculated that WONG may have some difficulties to lead an independent, self disciplined lifestyle …. ”

19.In a separate report prepared by Dr Anita Leung, Clinical Psychologist, dated 1 December 2004, results of the test performed on the respondent indicate that the respondent’s cognitive structure was comprehensive and organized.  No dilemma was evidenced.  His father had become a person with whom the respondent felt most comfortable.  He had developed a strong identity through identification with respectable people from whom he was able to learn to be kind and accepting and to help and to give without expecting anything in return.  Other tests indicate the respondent has great sense of self-efficacy and personal action control.  He is also observed to stand a high chance of persisting his positive life goals even in times of stress.

20.Dr Leung concluded by stating :

“At the time of assessment, after 13 years of imprisonment and rehabilitation, Mr. Wong impresses to have evolved into a person of integrity and insight.  He is no longer the inferior, sulking, underachieving, vain, materialistic, short-sighted, indulgent and impulsive young man.  He has developed intellectually, spiritually, intrapsychically and interpersonally.  He has become achieving, creative and confident; open, expressive and empathic; a loving and respectable family member; a constructive and responsible resource in the community committed to enhancing the well being of himself as well as others.  He is assessed to be well above average in his global functioning.  He is believed to be resilient enough to cope with any difficulties and stress lying ahead.”

Psychiatric Report

21.In the Psychiatric Report prepared by Dr S.H. Lui, Visiting Psychiatrist from the Siu Lam Psychiatric Centre, the respondent is found to be at peace and articulate.  His mood is stable and there is no suggestion of mental symptom or cognitive deficits.  Dr Lui is of the opinion that the respondent is not suffering from mental illness.  He may have matured to a large extent, from his earlier developmental and personality problems.  In the event of his release, he should be given practical help to enable a smooth reintegration into the community.

Social Welfare Report

22.In the Social Welfare Report attached to the Correctional Services Report, the reporting officer Ms Lee is of the view that the root of the respondent’s behavioural problems lies in the fact that there was inadequate parental supervision.  The respondent’s parents separated in 1989 and he quitted school when he was in Form 2.  Since then, he started associating with undesirable peers and subsequently became involved in illegal activities.  The respondent impressed the reporting officer to be quite peaceful and positive towards his imprisonment.

Education Performance

23.While in prison, the respondent had sat and passed examinations held by the London Chamber of Commerce and Industry and also by the Pitman Institute.  From 1995 to 1999, he sat the Hong Kong Certificate of Education Examination and obtained passes in five subjects.  Since 1998, he was enrolled in the courses of business subjects offered by the Open University of Hong Kong with satisfactory results.  In 2002, he was awarded a distinction in the Pitman examination in the subject of Practical Word Processing.

24.He is presently assigned to work in the printing department.  Over the years, he has been involved in designing various posters, bookmarks and cards on various themes, including Fight Crime, Anti-Smoking, Anti-Drug, Clean Hong Kong and various other social awareness programmes.

25.Since 1996, he was assigned to the prison’s “Model Party”.  In April 1996, the respondent had chosen to be converted to Buddhism.  Between 1999 and 2002, he received a number of commendations and awards from the Correctional Services Department in his efforts in promoting rehabilitation. 

26.It appears from the available information as contained in the various reports that the respondent had taken a positive approach towards his rehabilitation and his efforts were rewarded by the encouraging results he obtained in the various open examinations he sat and the commendations he received for his participation in various social awareness programmes or campaign.

Chan Po Keung

27.Chan Po Keung was born on 21 November 1972.  At the date of the offence he was three weeks short of his 18^th birthday.  He was arrested on the day following the attack and he has been in custody since. 

28.The records indicate that he had three previous convictions which took place in 1989 before he committed the present offence.  Those offences included theft from vehicles, tempering with a motor vehicle and assault occasioning actual bodily harm.  He was put on probation for two years.

29.Chan (the 6^th defendant at the trial) elected to give evidence at his trial.  His account of the incident was that on the night in question he was returning to his home by taxi.  After he alighted from the vehicle near his block he met a group of four to five youths who were his friends.  He was asked by members in that group to locate the rival gang and he went along with them.  When they reached the spot where the attack took place, he saw someone in his group drew a knife and began attacking the rival gang.  He stressed that he did not carry any weapon with him. 

30.This respondent was interviewed by the police after his arrest and gave a statement under caution.  In the statement he admitted to holding a knife during the attack.  His testimony at court was that he was induced by the police officer interviewing him to admit that he was holding a knife at the time.  He was told by the officer that if he admitted to this he would be given a less heavy sentence.  He also accused the interviewing officer to have invented some of the answers in his statement under caution and he signed on it because at the time he was confused, tired and frightened.

31.At the trial, all the civilian witnesses giving evidence identified the respondent as one of the leaders with a knife.  In returning a verdict of guilty, the jury clearly rejected the respondent’s version of the incident and accepted the prosecution evidence.

Correctional Services Report

32.According to the Correctional Services Report dated 23 March 2004, the respondent encountered no major adjustment problems at the initial stage of imprisonment.  He had on one occasion breached the prison regulations during his remand period in 1991.  Since his conviction in 1992, he was able to maintain a clear disciplinary record.  He has been able to sustain a progressive performance and is also observed to be cooperative towards the management and has shown due respect towards prison staff.  His relation with other prisoners are said to be harmonious.  His overall institutional performance was graded as “Good” and he is given an “A” in overall performance grading.

Psychological Report

33.In the report prepared by Mr Francis Butt dated 29 November 2004, he stated that the respondent had adjusted well during his incarceration period and lately, he has demonstrated commendable effort in showing concern for himself as well as the others.  It is also observed by Mr Butt that in the respondent’s communications with the Long Term Prison Sentence Board in 2002, he had expressed genuine remorse over the activities which led to his prosecution for murder.  He admitted that he was responsible for killing the victim even though his original intention was only to severely injure him.  This is a significant change from the stance he had adopted at his trial which was one of denial.

34.The result of the assessments performed on the respondent indicated that it would be unlikely for him to react to problems aggressively or violently.  Over the years, he had learnt to function rationally and obediently. 

35.Mr Butt concluded by observing :

“The collective assessment result reflected that CHAN is not someone who represents a violent threat to the community.  His gradual progress is observed as his effort in working on improving his self understanding and motivation for change.  On the surface, CHAN appears to be confident, righteous and virtuous.  Underneath, though, he is assessed to be moderately indecisive and passive.  Although the present evaluation suggested that his risk of violent recidivism is low, his personality weaknesses can serve as a vulnerable area allowing him to be misguided.  Unless with proper supervision indicated in the finding from the Level of services Inventory Revised – Screening Version (LSI : R – SV), his chances of general recidivism may remain as an aggravating factor disrupting his rehabilitative process.  Nonetheless, prognosis for CHAN is optimistic.  With the support from his family, his risk of re-offending is said to be minimal.”

36.The optimism of Mr Butt is also shared by Dr Anita Leung, a Clinical Psychologist who prepared a report dated 29 November 2004.  The test performed by Dr Leung on the respondent indicated that he possesses a broad and stable sense of personal competence to deal efficiently with a variety of stressful situations.

37.These are the concluding remarks of Dr Leung :

“At the time of assessment, 13 years after Mr. Chan committed the indexed offence, he is assessed to have developed in the positive direction.  He has found meaning and direction in life by showing care and support to the needy.  He has learnt to protect himself by staying away from troubles.  He has learnt to think from more perspectives, and be mindful of behavioural consequences.  He has developed good work habit and work efficiency.  He has identified his interest and potential strength in drawing and design.  He has developed a sense of competence and personal control in problem solving and coping with difficulties and stress.”

It appears from the report that the risk of the respondent re-offending is minimal. 

Psychiatric Report

38.According to the Psychiatric Report prepared by Dr S.H. Lui, Visiting Psychiatrist from the Siu Lam Psychiatric Centre, dated 9 December 2004, the doctor finds the respondent cooperative and of stable mood.  There is no suggestion of mental symptoms or cognitive deficits.  The respondent is diagnosed to be not suffering from any mental illness.  The doctor further indicates that the respondent has come a long way since he was sentenced in 1992. 

Social Welfare Report

39.In the Social Welfare Report attached to the Correction Services Report, Miss Chan, the reporting officer noted that the respondent’s family members were very supportive.  Despite the respondent’s mother having died of cancer in 1996, his family members continue to pay regular visits to the respondent.

40.The respondent quitted school when he was in Form 3.  He then took up various odd jobs and, as in the case of Wong Tat Yan, he experienced gradual degeneration by mixing with undesirable elements and eventually ended up being charged with the offence of murder.

Education Performance

41.While in prison the respondent had actively participated in educational programmes.  He had passed examinations held by the Pitman Institute and the London Chamber of Commerce and Industry.  Since 1994, he had enrolled in the Caritas Correspondence Course of English Language.  His educational performance is regarded as “Good”.  He is presently enrolled in courses offered by the Open University of Hong Kong.

42.Since 1994, he was assigned to the “Model Party” of the Correctional Services Department.  He is presently assigned to the workshop for sign-making and he is reported to be attentive and able to meet the work requirements effectively.

43.Since June 2001, the respondent had actively participated in designing posters, bookmarks and cards for a number of volunteer social awareness and community programmes.  For his efforts, he received a number of commendations and awards from the various agencies and also from Mrs Betty Tung and the Director of Social Welfare.

44.From 2001, the respondent used part of his earnings to sponsor two children in remote areas of China so that they can obtain basic education.

45.It appears from the available information as contained in the various reports that this respondent had made determined efforts to rehabilitate himself.

THE APPROPRIATE SENTENCE

46.Turning now to the issue of the appropriate sentences for the respondents.  This is a case involving a premeditated triad gang attack on a young man belonging to a rival gang.  The victim was brutally attacked by the respondents’ gang armed with knives.  It was obvious that the intention of the attackers was to kill the deceased who died of multiple chop wounds.  Despite the respondents’ testimony in court that they did not participate in attacking the victim in any way, there was clear evidence from the prosecution witnesses that the respondents were among the leaders of the attacking gang.  In the hope to escape legal liability, both respondents had chosen to put forward a version tending to minimize their involvement in the incident.  I note from the case papers that there is no formal offer to plea to manslaughter by either of them.

47.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 in that case 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.

48.In cases involving triad gang attack resulting a conviction for the offence of murder like the present case, I take the view that the convicted person should face a fixed prison term of around 30 years.  This term is subject to appropriate upward adjustment should aggravating factors exist.  The presence of mitigating circumstances would justify a downward adjustment.  The aggravating factors present in this case include the fact that this was a pre-mediated attack, the respondents were leading the attack and their subsequent conduct at the trial.  For the present case, I assess the appropriate sentence is one of 32 years’ imprisonment.  

49.Both respondents had made determined and commendable efforts to rehabilitate themselves while in prison.  Both have shown genuine remorse and responded positively to the programmes offered by the Correctional Services Department.  For each respondent’s overall performance while in prison, I am prepared to give a discount of three years from the 32-year term.  

50.For the reasons I have stated, I would exercise the powers vested in me pursuant to section 67C(4)(b) of the CPO and order that the sentence passed on the respondents by Bewley J on 19 February 1992 be quashed.  The sentence for each respondent is substituted by a sentence of 29 years’ imprisonment.  

Mr John Charles Haynes , instructed by Messrs Reimer & Partners, assigned by Director of Legal Aid, for the Respondents in both cases