HKSAR v. Au Yeung Kin Kwok

CACC000461/1999

CACC 461/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 461 OF 1999

(ON APPEAL FROM HCCC 70 OF 1999)

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Coram: Hon. Stuart-Moore, V.-P., Leong & Wong, JJ.A.

Date of Hearing: 3 December 1999

Date of Judgment: 3 December 1999

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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 17 August 1999, the Applicant pleaded not guilty to murder but guilty to manslaughter in the Court of First Instance before Stock J. His plea was accepted and the Applicant was sentenced to seven years and nine months' imprisonment, against which he now seeks leave to appeal.

2. The facts themselves were reasonably straightforward. At 10.08 p.m. on 26 September 1998, the Applicant dialled 999 and reported that someone had collapsed in his apartment which was located in Wang Kwong House, Ngau Tau Kok Road.

3. At about 10.13 p.m., police officers arrived at the apartment. The Applicant opened the door and told police that his friend had lost consciousness and was lying on the floor. The Applicant then went with one of the officers to the bedroom inside the apartment where the deceased was lying unconscious on the floor. On examination, injury marks were found on the deceased's body.

4. The Applicant said that around 7.30 p.m. on that day, he had picked up the deceased in his car and had driven him to his (the Applicant's) flat. Some time between 8.00 and 9.00 p.m., there had been a quarrel and the Applicant had beaten the deceased. The quarrel developed because the deceased owed the Applicant a lot of money but had refused to repay it. The Applicant said he just lost control and beat him. The Applicant then explained that after the deceased had become unconscious, he had carried him to the bedroom and tried repeatedly to wake him. After about an hour, by which time the deceased had still not responded, the Applicant became very frightened and called the police.

5. Having given this account, the Applicant was arrested and, in response, he said: "Sir, I only hit him because I really could not stand it, please rescue him quick."

6. The deceased was certified to be dead on arrival at hospital.

7. Later, at some time after midnight on 27 September 1998, at Ngau Tau Kok Police Station, the Applicant was again cautioned and he replied that he understood and went on to say that the deceased had conspired with another person to cheat him out of $300,000. The Applicant added: "I only want to punish him but I did not expect to beat him to death."

8. The Applicant was interviewed in the early hours of that morning. During the course of the interview, he indicated that the deceased had conspired with another person to persuade him to join a gambling scam that could be run to cheat people out of money. The Applicant then contributed $300,000 in order to join the scam himself.

9. In a further interview later in the day, the Applicant indicated that the fraud against him had been in May 1998, but it had taken until 24 September 1998 to locate the deceased. On 26 September, he lured the deceased to go with him on the pretence of a decoration job. He said that the assault had lasted 20-25 minutes, and that he had hit the deceased with fists, elbows, knees and feet. The Applicant explained that his nickname was "King of the strong forearms", and he had been given that name because he had practised kung-fu since childhood, and his forearms were so hard that he would not feel pain even if he vigorously hit a lamp-post.

10. During the course of the day, the Applicant made a video reconstruction of the events. On the following day, a further interview took place in which the Applicant admitted that, on and off, the assault lasted about 45 minutes, that he had hit the deceased 20 or 30 times and that some blows had been with a metallic mop handle. The Applicant said that he had turned up the sound of the video player in his flat to drown out any noise of the assault, and that the assault eventually came to an end when the deceased said that he would locate the co-conspirator whom the Applicant believed actually had the money that had been obtained. The Applicant then noticed that he had hit the deceased very badly and offered him something to drink and had then led him to a sofa to sit down. He noticed that the deceased "dozed off". The Applicant went on to say that, realising he had hit the deceased so badly and, prior to calling the police, he discarded his shoes and the mop handle on the staircase.

11. On 28 September 1998 when the Applicant was charged with murder, he replied, "I do not admit murdering Lee Kwok-leung. I mistakenly knocked him down in a moment of rage. I later called 999 and subsequently an ambulance arrived to convey him to the hospital. I learned of his death afterwards."

12. The pathologist, Dr. Lai Sai-chak, found that the deceased had sustained numerous injuries, consisting mainly of abrasions and bruises, all over the body and in particular on the buttocks and lower limbs. Only a few marks were present on the chest or abdomen. However, an area of patchy abrasions to the left lower chest was associated with four underlying rib fractures and a ruptured spleen. The skull and the rest of the skeleton were not fractured. The pathologist found that the ruptured spleen was the cause of death. This, he said, could have been ruptured by a blow or blows to the left lower chest area or by one of the fractured ribs and would have been inflicted by a hard object such as a fist or more probably a kick from a person wearing shoes. The force required to produce the fractures and the rupture of the spleen would be comparable to that delivered by a single karate kick by a fit adult male.

13. The agreed facts went on to state:

"In a letter to prosecuting counsel dated 6.7.99, and supplementary to his autopsy report, Dr. Lai was of the view that the injuries found on the deceased showed that the assailant 'could have intended to beat him up so as to produce soft tissue (skin and muscle) trauma. The pattern of injuries does not necessarily indicate an intention to kill or (to) produce serious injuries to internal organs.'

Police enquiries into this killing have revealed the following facts which could be viewed as discrepancies in the defendant's account as to how and/or where the beating took place.

(i) The neighbours of the defendant did not notice any untoward noise at the time the assault would have taken place.

(ii) At the scene, inside the apartment, whilst it was very untidy no signs of a struggle were noticed.

(iii) Neither the discarded leather shoes nor the metal mop handle were found by the police on the staircase.

(iv) The security guards at the defendant's apartment block logged the defendant's car FU 9531 as leaving at 6.27 p.m. and returning at 10.00 p.m. There are no intervening entries for this vehicle.

(v) The record of phone calls received on or made from the mobile phone found in the possession of the defendant at the time of his arrest indicates that several calls were received or made between 7.00 p.m. and 10.00 p.m. outside the Ngau Tau Kok area."

14. In his grounds of appeal, the Applicant complained, amongst other things, that the judge was too severe in the sentence that he passed. It was his belief that the length of the sentence was because the judge had taken the view that this was a premeditated assault on the victim. The Applicant maintained that the assault was only brought about when the victim refused to admit that he had cheated the Applicant. The Applicant also took issue with the judge in his refusal to accept that this was a momentary loss of control. He emphasised also how remorseful he had been, as illustrated by his calling the emergency services on the 999 system, and by confessing his guilt straightaway. In order to assess these points, it is necessary to look at what the judge said in the course of sentencing:

"The background to this case is infused with shabby business and shady characters. The facts emerge almost exclusively from your own lengthy interviews with the police, and it is on their basis that one is bound to proceed.

It appears from those statements that the deceased was known to you and had introduced you to a man called Pong, and that the three of you had agreed to engage upon a fraud upon others with whom you were to gamble. For this purpose, you had apparently parted with $300,000 and the unsuspecting customers were supposedly awaited in a flat which you had hired. On the pretext of going to find the customers who had lost their way, Pong left and never returned, leaving you alone in the flat, divested of your money and of the chance to win it back by cheating others. The cheater had himself been cheated. This had all happened in May 1998.

Thereafter, you set about trying to find Pong as well as the deceased, but without success, until you traced him on 25 September 1998. The deceased expressed surprise that you had so readily parted with your money, that you suspected all along that he was in on the deception which had been practised upon you. Nonetheless, he said he would try to find Pong, and obviously believing that pressure was warranted, you lured the deceased to your flat the following day on the pretence of having a decorating job for him to do.

There you asked him Pong's location and accused him of having been party to the deception on you, but this he denied and said he did not know where Pong was. You then set about him, and over a long period - and that it was a long period is evident from your own admissions and from the extent of the injuries...... You punched him and you kicked him and you apparently also used a metal mop handle to hit him.....

On your own account, the incident lasted about 45 minutes and you were beating him for about 20 to 25 minutes. He was no match for you at all as you well knew before you took him to the flat. He was older than you, and looking at the photographs one can see that he was of frail build. Indeed, you said to the police that you were afraid that you would really hurt him because he was very thin and just like a drug addict.

You told him that you have a nickname which recognises your skill in martial arts, and that you have particularly strong arms. It is obvious also that you had planned the beating, so this was no sudden loss of self-control. You even say that you had switched on the video to inhibit neighbours from hearing what was going to happen in the flat. There was no question of any attack by the deceased upon you, or indeed, any resistance by him at all. This was an entirely one-sided affair.

The injuries you caused were very extensive. There were multiple bruises over his body, his head, his face and jaws, his chest, his back, buttocks, his right arm and his legs, and there were fractured ribs, and his spleen was ruptured, and that rupture was the injury which caused death.

I recognise that this was not a gang attack, but as against that it was not a spontaneous attack either. It was planned, and the fact that it involved an attack by one person rather than by several men is counterbalanced somewhat by the fact that as you well knew in advance and at the time there was between your respective strengths an obvious and gross disparity. He was, by comparison with you, a weak man, and indeed, as you told the police, you are known amongst your friends as a man of brute strength.

In further aggravation is the fact that you used a weapon of sorts, namely a metal handle of a mop. Furthermore, this was not a short flurry of blows but it was a prolonged attack upon a man who evidently did nothing to attack back. He was completely at your mercy, and for something like three-quarters of an hour you showed him none. In other words, this was not an attack in the throes of a brief and sudden loss of temper. It was a cruel attack which, because of its extended length and because of the disparities in strength, was in effect a torture session."

15. The judge then went on to set out the basis on which the plea had been accepted which was, of course, on the footing of the pathologist's opinion expressed in the agreed facts which I have already read.

16. The judge then went on to adopt a starting point of thirteen years' imprisonment. The Applicant had previous convictions for assault and conspiracy to defraud so that he could not be given any additional credit for good character, and the judge then concluded by saying:

"It is said on your behalf today that you were incensed, and understandably so, at the deceased's deception of you and his refusal to acknowledge his part in the theft of your money and his refusal to reveal the whereabouts of the man Pong. That may be, but again, one is bound to say in response that you planned this event, you had this man effectively captive in your flat and you had no intention of letting him go until you had beaten from him what it is you wanted to know. This was no sudden loss of temper.

It is also said that you evidenced remorse, as is demonstrated by the fact that you dialled to the emergency services and by your trembling demeanour when the police arrived. There must be something in that contention of remorse, although on the other hand, once the beating had stopped you must have realised that the deceased was in a bad way, yet for about an hour, on your account, you took no steps to summon assistance. It is obvious also that you took the time to discard the shoes with which you had no doubt kicked him, as well as the mop handle, and so these factors diminish a little the picture of a man who immediately recognises what damage he has inflicted and calls for assistance.

There remains the suggestion hinted at by the summary of facts that this attack may have taken place other than at your flat and that you moved this man back to your flat. Given the fact that you called the police and told them that the beating took place in your flat as soon as you were interviewed, I do not think that an inquiry into this aspect is warranted in this case and I shall sentence you on the assumption that the beating took place in your flat.

It remains the fact, however, that you yourself alerted the police to the crime which you had committed. Those who in effect give themselves up before the crime is discovered and where it is not obviously apparent that their culpability is bound to be discovered in any event will generally merit a discount in addition to that warranted by the plea of guilty. So I shall, in the event, give you an additional discount for that feature.

In the circumstances, the term of imprisonment which I impose in respect of this offence of manslaughter committed by you is one of seven years and nine months' imprisonment."

17. The discount which the judge gave represented slightly over 40%. It is apparent from all that the judge said when passing sentence that he had taken into account all aspects of the case for and against the Applicant. We are satisfied that the views expressed by the judge were properly arrived at, and were in accordance with the information placed before him in the court below. In particular, this was not a case of mistakenly knocking down a victim in a moment of rage as the Applicant has continued to maintain from the moment he was charged with murder. The starting point taken by the judge was entirely appropriate.

18. This was a classic example of an offender taking the law into his own hands and going too far, with tragic results. The Applicant knows better than most that, if the victim was guilty of fraud, he should have been turned over to the proper authorities for investigation instead of being mercilessly and deliberately beaten over a long period of time. The Applicant knows what he should have done because he has himself served two years' imprisonment for conspiracy to defraud.

19. The application is dismissed.

Representation:

Mr. I.C. McWalters, S.A.D.P.P. of the Department of Justice for the Respondent.

Applicant in person.