HKSAR v. Leung Sau Kuen

CACC 54/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 54 OF 2003

(ON APPEAL FROM HCCC NO. 70 OF 2003)

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BETWEEN

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Before : Hon Stuart-Moore Ag. CJHC, Stock JA and Cheung JA in Court

Date of Hearing : 3 August 2005

Date of Judgment : 3 August 2005

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1.This is an application for leave to appeal against conviction and sentence.  On 17 January 2003 the applicant was convicted of the offence of manslaughter after trial before Pang J and a jury.  The indictment charged him with the murder on 12 May 1993 of Hon Lan-fong.  To that indictment he pleaded not guilty.  He pleaded guilty, however, to the second count of the indictment which alleged that on 12 May 1993 he prevented the lawful burial of the body of Madam Hon.

The evidence

2.In May 1993, the applicant worked as a shop assistant at a store in Tai Mo Road where he enjoyed free accommodation in a cockloft.  From time to time, the deceased played mahjong at the store as did the applicant; and it is apparent from testimony that emerged at trial that she and the applicant engaged in a sexual relationship.  She played mahjong there on the evening of 9 May 1993 until the small hours of 10 May.  On the night of 12 May, so the evidence established, the applicant purchased petrol in Castle Peak Road, and at about the same time of the month an acquaintance of the applicant took the applicant to several locations, with the applicant carrying a number of bags on each occasion.  On the night of 12 May 1993, flames and smoke were seen to rise from a hillside near a hut where the applicant lived, and on 13 May the remains of the deceased were found at the site of that fire.  The deceased had been dismembered and there was found a severed head, the torso, a limb, and bone fragments.  The expert evidence was to the effect that the corpse had been dismembered by a serrated edge-cutting device and had been burned.  No drugs or poison were found in the body, and the time of the death was assessed to be three or four days before 13 May.

3.Thereafter, the applicant left for the Mainland.  He was detained there and in September 2001 sent across the border to Hong Kong at the request of the local authorities and was arrested.  He was interviewed and admitted that he had killed the deceased, saying however that he did so by mistake but offering scant reason for the killing, though suggesting that he might have been drunk and saying, generally, that he could not remember how he came to kill her.  He denied that there had been between them an affair; indeed, he suggested that he and she seldom saw each other or talked.  However, he admitted that he had set fire to the corpse and had dismembered it with a beef knife after her death.

4.At trial, the applicant gave evidence, and the account he gave was significantly different from that offered to the investigating police.  He said that he and the deceased had had a sexual relationship and frequently played mahjong at the store; and that the deceased had come to the store on the night of 11 May 1993 and questioned him about a suspicion she nurtured in relation to him allegedly seeing a young lady.  The telephone rang, and the deceased rushed over to pick up the receiver, but the applicant reached the receiver first, pushing the deceased to one side.  Whilst he was speaking on the telephone, she moved away and he let her pass, but he then heard something falling down the stairs from the cockloft and the deceased crying out.  He then discovered that she had died from the fall and in panic he left the store.  He did not report the matter to the police, he said, since he thought that if others knew that someone had died at the premises, they would not come there to play mahjong again and he would lose his job.  He admitted the dismemberment and burning of the body.

Conviction

5.For the purpose of the application for leave to appeal against conviction, the applicant is unrepresented.  In the grounds which he has drawn, he raises several points.  He says that the admissions attributed to him by the police were not made voluntarily.  These are matters that were fully canvassed and properly dealt with by the judge in his summing-up; and there is nothing in this ground.  Then he complains that in the summing-up the judge said: “When you have decided what evidence you are sure is correct, it is for you to decide what conclusions you are sure you should draw from it.  In approaching a task, you must now allow yourselves to be influenced against the defendant by any feelings arising out of the nature of the offence which you now face.” (Emphasis added).  The applicant asserts that this is an evident misdirection and an encouragement to the jury to be prejudiced against him.  This is obviously a mis-transcription of what the judge said, as evidenced by the fact that no correction was suggested by counsel, and by the common sense of the matter.  But in any event the slip – if indeed there was a slip at all, which we doubt – must in any event have been perfectly obvious to the jury.  Then there is a complaint that the judge failed to mention the testimony of a Ms Fan, the daughter of the deceased, who had said that her mother was given to feeling dizzy whenever she was upset; this being relevant, it is suggested, to the circumstances in which the deceased fell.  It is true that this evidence was not mentioned by the judge, but the judge had made it perfectly clear that he did not intend to cover each item of evidence; and the omission was not thought by experienced counsel to warrant a reminder to the judge.

6.Then there is a complaint that a witness was permitted to refresh his memory from a statement.  We have no reason to believe that the rules which in certain circumstances permit such an exercise were breached.  Further, there are a number of assertions that counsel acting on behalf of the applicant failed to defend him to the best of counsel’s ability.  We have studied these complaints, and judge them to be unmeritorious.  We have heard the applicant today who has advanced some further matters but none of them is of merit.

7.The application for leave to appeal against conviction is dismissed.

Sentence

8.For the purpose of the application for leave to appeal against sentence, the applicant is represented by Mr Kelly.  In relation to the conviction for manslaughter, the judge sentenced the applicant to a term of seven years’ imprisonment.  In relation to the offence of preventing the lawful burial of the deceased the judge imposed a sentence of two and a half years’ imprisonment ordering it to run wholly consecutively to the term of seven years imposed for the offence of manslaughter.

9.The only complaint advanced in relation to the seven-year sentence for manslaughter is that the judge failed to take into account the fact asserted by the applicant that he was detained between January 2001 and September 2001 in the Mainland pursuant to a request to that effect from the authorities in Hong Kong so that he might be transferred to Hong Kong and charged here with the offence of murder.

10.This issue was canvassed in the course of mitigation before the sentencing judge but the prosecution was not then in a position to accept (or deny) the facts put forward by the applicant, wherefore the judge simply noted the assertion and did not make any deduction for the period in custody.  It is denied by the respondent that the applicant was in custody for the period he suggested on the Mainland, and there is produced by Mainland authorities evidence to the effect that the applicant was released in January 2001 in respect of another matter for which he was serving a sentence there; released some time before the date originally planned, and was apprehended in September 2001, a few days before his rendition to Hong Kong, and only a few days after the authorities here had requested he be handed over. 

11.In an affirmation the applicant asserts this to be untrue.  The burden is upon the applicant to establish the facts which he asserts, and having studied the evidence we find that he has failed to discharge that burden and, accordingly, this limb of the application does not succeed.  Even if this were not so, this is not a case in which we would give credit for the time spent in custody.  The approach in such cases is well established.  In R v Law Yui-wo (1994) 2 HKCLR 204 the court commented that spending time in custody abroad pending extradition proceedings is not generally a matter taken into account although it could be taken into account if the interest of the justice so required.  In HKSAR v Lee Kwan-yee and another [2004] 1 HKC 462 that same approach was followed.  Further, in HKSAR v Lam Pak-lok [1997] 3 HKC 650 the comment was made, at page 653:

“Nor do we think that the judge erred in failing to take account of the potentiality for remission under the Prison Rules had the time spent in custody in China been spent in Hong Kong.  The fact of the matter is that having fled from Hong Kong, the Applicant should not be entitled to such benefits as he could have got if he had served his sentence in Hong Kong.”

12.In this case the applicant had killed a person, taken the steps to obliterate traces of her and fled the jurisdiction, and there is no suggestion by him that upon apprehension he volunteered himself for transfer to this jurisdiction.  No criticism could in such circumstances be made for the failure to give the credit which is now sought.

13.The second ground of appeal in relation to sentence relates to the offence to which he pleaded guilty, namely, the prevention of the lawful burial of the deceased, and the question has been raised whether the term of two and a half years’ imprisonment was imposed as a starting point after trial, for the judge said: “I assess the appropriate sentence for this charge to be one of 2½ years’ imprisonment.”  It seems clear enough to us that the judge intended that to be the sentence after plea, he having shortly before expressly reminded himself that to the second count the applicant had pleaded guilty.  We can safely assume, and we do, that he intended to give credit for the plea of guilty to the extent of the normal one-third deduction that is accorded.  That would mean a starting point of three years and nine months’ imprisonment.  The question is whether that in itself is manifestly excessive and, in any event, whether the totality is too great.  As the judge commented in his sentencing remarks, the circumstances of this particular offence involved a considerable degree of planning.  The applicant engaged in a highly distasteful exercise doing whatever he could to ensure that such investigation as might take place into the death of Madam Hon would be foiled.  We do not think the starting point was manifestly excessive, nor the resulting totality manifestly excessive; and accordingly the application for leave to appeal against sentence is dismissed.

Mr Shaun Kelly instructed by Messrs Alvin Cheng & Rosaline Choy for Applicant (Re: Sentence)

The Applicant, Leung Sau Kuen, in person (Re: Conviction)

Mr David Leung, SGC of the Department of Justice for Respondent