Secretary for Justice v. Vu Thanh Binh

HCMP2219/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2219 OF 2004

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BETWEEN

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Before : Hon Pang J in Court

Date of Hearing : 20 December 2004

Date of Judgment : 19 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.  The respondent, Vu Thanh Binh, belongs to a class of prisoners who were convicted of the offence of murder at the time when they were below the age of 18.

Background

2.On 7 July 1994, the respondent and his co-accused, both Vietnamese Nationals, were convicted of the murder of a fellow countryman before Stuart-Moore J (as he then was) sitting with a jury.  Pursuant to the then section 2 of the Offences Against the Person Ordinance, the respondent was sentenced to life imprisonment.  The respondent was born on 19 February 1973 and was 17 years of age at the time when the offence was committed.

3.The offence occurred in the afternoon of 25 May 1990 in a transit camp for boat people in Kai Tak.  Three days before the incident, the deceased had won some $20,000 in gambling.  According to an eyewitness who gave evidence as a prosecution witness, at about 5 o’clock early that evening, he heard sounds of commotion.  He went to see what was happening and saw the respondent’s co-accused holding a gun at the deceased’s temple with one hand and a knife at the neck of the deceased with the other hand.  The respondent was also seen pointing a knife at the deceased and demanding money from him.  He then saw the respondent plunging the knife into the deceased’s chest.  According to the Forensic Pathologist, the cause of death was a 5.6 cm long stab wound to the chest with injuries to the heart.  The stab wound went through the heart and penetrated into the lung and the total length of the track was about 21 cm.

4.It was 13 months later, on 8 June 1991, when the respondent was arrested by the police.  In an identification parade conducted some five days later, the respondent was positively identified by the prosecution witness who had witnessed the attack.

5.At the trial, the respondent elected not to give evidence.  Through his counsel, it was suggested to the prosecution witness that his testimony in court about witnessing the respondent attacking the deceased was total fabrication.  The suggestion was denied by the prosecution witness.  The jury returned a verdict of guilty on the murder charge.  On 12 October 1995, the respondent’s appeal against his conviction was dismissed by the Court of Appeal.

6.The respondent has been in custody since June 1991 although his conviction and sentence run from 7 July 1994.  He has been in custody for over 13 years at the time of this hearing.

7.The respondent has given his consent through his counsel, Mr Coghlan, should the court considers appropriate to quash the original sentence and substitute it by a fixed prison term.

8.This case has its roots in a gambling dispute.  Some three days before the attack, the respondent was seen gambling with the deceased together with a number of others and the deceased had apparently won some $20,000.  Shortly before the attack, the prosecution witness saw the respondent together with his co-accused threatening the deceased with a gun and knives.  The knife the respondent was holding was described as a Rambo type knife with a black blade which was about 18 inches in length.  Apparently the deceased was fatally wounded in the manner which was described earlier.  Having attacked the deceased, the respondent and his co­-accused then went up to the prosecution witness and threatened him.  The witness was stabbed in the face before he managed to escape.  There is little room for doubt that the respondent had intended to kill the deceased.

9.The respondent and his co-accused managed to stay away from the authorities for over one year before they were eventually arrested by the police.  At the trial the respondent accused the prosecution witness of fabricating the account against him.  It cannot be said that the respondent was in any way remorseful at the time of his trial.

10.Under section 67C(5)(a), a 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 mattered very little.  However, in the present exercise in determining the appropriate fixed term sentence, the judge undertaking the exercise must be allowed to look at the circumstances of the case and other factors which are relevant in assisting the sentencer to come up with the appropriate sentence.

11.The respondent was born in Vietnam and came to Hong Kong illegally in 1988 with his elder sibling.  On arrival in Hong Kong, they were admitted to the Kai Tak Refugee Camp.  Since then, he took up various odd jobs as kitchen worker and delivery worker.  The respondent had two previous convictions prior to the present offence.  In October 1989, he was sentenced to six months’ imprisonment for attempted theft.  In July 1991, he was sentenced to two months’ imprisonment for possession of offensive weapon.

Correctional Services Report

12.Since his remand in April 1994, he has breached prison regulations on nine occasions.  The last recorded incident was in June 2001 when he was engaged in a fist-fight with a fellow inmate.

13.In the Correctional Services Report dated 16 June 2003, the reporting officer observed that from the latter part of 1999, the respondent started to behave and adopted a submissive attitude towards the prison staff.  The respondent was then assigned to work in the envelope workshop when he was detained in Stanley.  Since 1999, he was transferred to the Siu Lam Psychiatric Centre and had since been working in the garment workshop.  His work performance was considered satisfactory.  The reporting officer also commented that the respondent was immature and weak in interpersonal skills at first.  However, in recent years, his institutional behaviour showed progress but there is yet room for improvement.  His overall institutional behaviour was regarded as good and overall performance grading was rated “A”.

14.Towards the end of 1999, the respondent provided information to the authorities the nature of which was described as “when considered in conjunction with information obtained from other source, was found to be useful and accurate”.  This was done at the risk of his own safety and he had since been transferred, for security reasons and for his protection, to the Siu Lam Psychiatric Centre.  The respondent was described as very cooperative and have expressed remorse for his past misdeeds. 

15.I note from the reports that the respondent had not participated in any rehabilitative programmes offered in the Siu Lam Psychiatric Centre.  Prior to 1999 however, he had sat for the Pitman Examination and obtained passes in English and Mathematics.  He had also attended Buddhist gatherings regularly and had since been converted to Buddhism.

Psychological Report

16.According to the psychological report prepared by Ms Candy Hui, Clinical Psychologist, the respondent was observed to have developed some insight into his offending behaviours.  He also expressed his remorse over the incident and displays a sincere attitude for positive change.  The result of assessment conducted by the Clinical Psychologist revealed that no major psychopathology was indicated.  The tendency for violent recidivism was also not suggested in the results.  As to the overall risk assessment, the result suggested that the respondent was at moderate risk for violent recidivism.  He was also described to have realistic future plans in case he is released.  The Clinical Psychologist concluded by observing the respondent’s prognosis was considered to be optimistic.  Substantial risk predicted for violent recidivism was not detected in his current psychological profile.

Psychiatric Report

17.The respondent was interviewed by Dr C.H. Yuen, Visiting Consultant Psychiatrist of the Siu Lam Psychiatric Centre.  From the respondent’s account to Dr Yuen, he seemed to have attempted to rationalise his activities on the day of the incident :

“Vu’s account to me was like this: Co-defendant Pham was his elder-sister’s boy-friend.  Pham told him on the day of the offence that the victim had cheated him in gambling a day earlier and he wanted to revenge by robbing the money back.  Pham wanted him to help him.  He was angry when he heard that Pham was being cheated and so agreed to help Pham, almost without second thought.  Pham then gave him a knife and also showed him a gun.  They went to look for the victim.  When they found the victim, Pham held a gun at the victim’s head while he (Vu) placed his knife across the victim’s throat.  There were a lot of people getting around; some belonged to the victims’ group and they moved towards them.  There were some pushing back and forth.  He was scared and in order to hold the people back he stabbed the victim once.  A massive quantity or (sic) blood ejected out from the wound as a result and that made him even more frightened.  At that juncture, there was a man running towards them.  That man seemed to be co-defendant Pham’s foe as well for he heard Pham saying to him (Vu) to knock that man down as well.  He tried to stop that man with his knife and in so doing his knife hit that man’s face.  He and Pham then fled.  They were arrested about a year later.”

18.Insofar as the above account was an apparent attempt to rationalise his criminal activities on the day of the incident, it cannot be said, from my point of view, that it supports the contention that the respondent was completely remorseful.

The appropriate sentence

19.In HKSAR v. Vo Van Hung, CACC417/1994 (unreported), the applicant Vo was convicted of murder and was sentenced to life imprisonment.  The applicant was under the age of 18 at the time of the offence.  Vo stabbed and killed the deceased with a knife.  The jury found the necessary mental element to be present and returned a verdict of guilty to a charge of murder.  Vo’s case is a one against one situation which did not involve threatening and overpowering a deceased as in the present case.  The Court of Appeal substituted a 29-year imprisonment for the life term.

20.The circumstances of the present case are more serious.  The respondent, together with his co-accused, armed themselves with a gun and they each had a knife with him.  They located the deceased and threatened him by pointing a gun and a knife at the deceased.  The deceased was asked to return the money for which he was accused to have won previously by cheating in gambling.  It was a vicious attack by the respondent with the obvious intention to kill the deceased.  They then threatened the bystander who later became a prosecution witness and assaulted him with a knife in the hope to silence him.  I assess the appropriate prison sentence to be one of a 30-year prison term.

21.As mentioned earlier, the respondent had given useful information to the authorities which led to the possible detection of a serious criminal offence and by so doing, the respondent had put his own safety into jeopardy.  For his assistance rendered, I am prepared to give a discount of two years from the original term.  His performance while in detention over the years can hardly be described as impressive.  He had not participated in any volunteer work or in any social awareness programmes.  Since 1999, he had not taken up any rehabilitative courses offered by the Correctional Services Department.  Further, I am not fully convinced that the remorse he has indicated is entirely genuine.  The overall circumstances is that apart from the two-year-discount for his assistance rendered to the authorities, there are no other factors which, in my view, would warrant a further discount.

Conclusion

22.For the reasons which 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 by Stuart-Moore J (as he then was) on 7 July 1994 be quashed and I would substitute the sentence by a sentence of imprisonment of 28 years.

Mr Vincent Wong, GC of DPP, for HKSAR