HKSAR v. Yiu Kam Tin

CACC 510/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 510 OF 2004

(ON APPEAL FROM HCCC NO. 48 of 2004)

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BETWEEN

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Before : Hon Stuart-Moore Ag. CJHC and Lugar-Mawson J

Date of Hearing : 1 June 2005

Date of Judgment : 1 June 2005

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J U D G M E N T

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Stuart-Moore, Ag. CJHC (giving the judgment of the Court):

1.On 19 November 2004, the applicant, aged 45, was acquitted of murder but convicted of manslaughter by reason of provocation following a trial before Beeson J and a jury.  He was sentenced on the same day to 12 years’ imprisonment against which he now seeks leave to appeal on a single ground alleging that the sentence was manifestly excessive.

2.The applicant had known the deceased, aged 64 at the time of his death, for a number of years.  He described their relationship as having been “very good” since October 1996.  They had both worked for the same company in the past, often having meals together.  They had also been complicit in receiving sexual services from female labourers and there came a stage when they were involved together in soccer betting and gambling on horses.  This venture ended in them losing $600,000 between them.  As the applicant was unable to pay his share of the loss, the deceased gave him a loan which he agreed to repay on monthly instalments which at first were at the rate of $10,000 but were later reduced to $7,000.

3.We are grateful to Ms Anthea Pang, who also prosecuted at trial, for her most helpful summary of the relevant features of the case which, to an extent, we can adopt. 

4.It seems, from the account given by the applicant, that a turning point in his relationship with the deceased came about in December 2002.  The applicant claimed that he had introduced a girl named “Ah Oi” to the deceased who had then obtained a loan from him and returned to the Mainland without repaying the loan.  The applicant said that between February and June 2003, the deceased mentioned the loan several times and he blamed the applicant for what had happened.  The applicant claimed that although they remained good friends they had argued on three occasions and, from January 2003, they stopped taking girls out together.

5.On 6 September 2003, the day before the killing, the applicant said that the deceased, who was the proprietor of a cleaning company, mentioned to him a grass-cutting expedition for the next day to which the applicant agreed.  For this purpose, the applicant said that he packed a chopper, a sickle and one set of clothing.  Why a chopper should have been needed for such an expedition is a little obscure, but in any event, it was the weapon ultimately used by the applicant to kill the deceased and, because the applicant hid it afterwards, it has never been seen again.

6.On 7 September 2003, according to the applicant, the deceased told the applicant that he had asked two Mainland girls to go to the hut at Po Lo Che where the grass-cutting was to take place.  The applicant said he was so happy when he heard this that, when he boarded the taxi, he hugged the deceased.  However, the applicant’s version at trial was that when they arrived at the hut, the deceased returned to the question of “Ah Oi” and accused the applicant of introducing her to him.  The applicant said he then used abusive language towards the deceased and said that the deceased responded: “If you don’t repay it, I’ll chop you to death”.  The deceased took the sickle and held it up whereupon the applicant picked up a wooden pole and hit the deceased’s head twice.  He noticed that this had caused bleeding.  What then happened, according to the applicant, was that he threatened to tell the deceased’s wife about the deceased’s “dirty things”.

7.After the applicant had got his rucksack, his clothing, his chopper and the pole, he left the hut unharmed.  Before long, he said that he noticed the deceased chasing after him, having a telephone in one hand and a sickle and a shirt in the other.  At this stage, the applicant was running with the deceased chasing after him.  The applicant said he was frightened and, because he fell twice, the deceased caught up.  He pointed the sickle at the applicant and said: “You can’t go away now.  You’ll die this time.  My son-in-law is now coming up.  I’ll get someone to chop your family and someone to rape your daughter.”  The applicant said he found these threats very repulsive and that he took the chopper from his rucksack, stood up and chopped the deceased.  He said he did not know how many times he did so but the deceased fell down bleeding.  He then apparently had the presence of mind to put the sickle and the chopper into his rucksack before he fled the scene.

8.The applicant hid for a number of hours.  During this time, he cut his wrist in what he described as an attempt to commit suicide.  This resulted in a 5 cms deep laceration.

9.At about 5:20 a.m. on 8 September 2003, the applicant surrendered to the police, admitting what he had done and requesting medical treatment.

10.Thereafter, the applicant attended a number of interviews with the police when he elected not to say a great deal.  In particular, when asked why he had killed the deceased he declined to give any explanation.  He did, however, say that he had had a dispute with the deceased.  During these interviews, the applicant never mentioned that he was provoked to kill.  On the contrary, he said that he had killed the deceased in self-defence.  At trial, self-defence and provocation were left to the jury. 

11.On any view, the attack on the deceased was an extremely violent one.  The deceased sustained 13 deep wounds to the head and 7 wounds, forming one gaping cut wound, to the neck which completely severed his left carotid artery.  By contrast, the applicant was unscathed except for the self-inflicted wound to his wrist which had cut the tendons but left the major veins and the artery unaffected.  As a result, there would have been little bleeding from the wound.

12.In her sentencing remarks, the judge took into account that the applicant had indicated that he would be willing to plead guilty to manslaughter.  As to this, there was no actual plea and no indication was given to the prosecution by Mr Joseph Tse, as he has very candidly accepted, on what basis it was suggested that the plea of guilty to manslaughter could be accepted.  There was in fact no basis on which the prosecution could accept such a plea as the applicant had not provided, until he testified at trial, any evidence of provocation.  The judge said:

“This was a very brutal killing of a much older man.  There was no attempt to assist thereafter.  I accept that you identified yourself to the police and indicated that you had killed Mr Chan, but I also note that that was almost going to be inevitable in view of the fact that you had effectively been identified [by] the [son]-in-law of Mr Chan.

… In my view, this was a case very close to murder and I consider that a sentence of 12 years is the appropriate sentence which I should pass.” (Appeal bundle p. 48)

13.Mr Tse, who also defended at trial, submitted that there was little dispute on the facts as to what had happened.  On the applicant’s version, the deceased had been the first to make threats and had picked up a weapon in a threatening gesture towards the applicant.  Even after the applicant had struck the deceased with a pole and walked away, the deceased came running after him still holding the sickle in his hand.  The applicant, again on the account given to the jury, spoke about how he had fallen twice, so that the deceased, despite his age, was able to catch up with him and issue further threats, this time to his personal safety and in relation to his family.  He lost control and, in a frenzy, chopped the deceased.

14.Mr Tse realistically faced up to the fact that comparison of sentences passed in manslaughter cases are seldom of any real assistance to this court as an assessment of the gravity of each offence must inevitably be decided on the particular facts of each individual case.  This is well illustrated in the present case where we were asked to look at the facts in HKSAR v Li So-man, CACC 609/1999 and HKSAR v Cheung Hoi-ying, CACC 314/2002 for possible assistance as to the factors which the sentencer should bear in mind in cases of this kind.  These cases were, as Mr Tse accepted, very different.  They each involved women.  In the first case, the appellant killed her husband and, in the second, the appellant killed her lover and in each case this followed what amounted to more than merely minimal provocation.  Importantly also, in both cases there was a psychiatric element which formed a part of the mitigation. 

15.In the present case, these features were not factors to be taken into account and we are left finding ourselves in agreement with the judge’s assessment of the gravity of this offence that this was “very close to murder”.

16.Accordingly, this application is dismissed.

Ms Anthea Pang, of the Department of Justice, for the Respondent.

Mr Joseph W Y Tse, instructed by Messrs Cheung, Chan & Chung, assigned by Director of Legal Aid, for the Applicant.