HKSAR v. Chan Po Keung

CACC 26/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 26 OF 2005

(ON APPEAL FROM HCMP NO. 2217 OF 2004)

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BETWEEN

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and

CACC 27/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 27 OF 2005

(ON APPEAL FROM HCMP NO. 2216 OF 2004)

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BETWEEN

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Before: Hon Ma CJHC, Woo VP and Stock JA in Court

Date of Hearing: 7 March 2006

Date of Handing down Judgment: 6 April 2006

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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 another in the limited series of cases in which persons were aged under 18 years at the date of their conviction for the offence of murder and were, before legislative amendments in 1993, ordered to be detained ‘until Her Majesty’s Pleasure be known’ but in respect of whom section 67C of the Criminal Procedure Ordinance, Cap 221 now requires a judicial determination either of the minimum term the prisoner must serve or of a fixed term of imprisonment: see, for the history of the legislation and for the principles to be applied, HKSAR v Yeung Mok-yeh CACC 483 of 2004, Kwan Wing-kei CACC 57 of 2005, 18 July 2005, unreported; and Kwan Wing-kei v HKSAR FAMC No. 91 of 2005, 2 March 2006, unreported.  Such a determination has been made in respect of each of the applicants in this case by Pang J, on 11 January 2005, when he substituted sentences of 29 years’ imprisonment.  The applicants now seek leave to appeal against those determinations. 

The facts

2.The applicant Wong was D2 and the applicant Chan was D6 in an indictment against nine defendants that asserted that on 5 November 1990 in Sheung Shui Street, Kowloon, they murdered Shek Ching-ming.  Four of the nine defendants were convicted, the rest acquitted.  The other two defendants were Chai Chung-lam and Lee King-lun who at trial were D1 and D7 respectively.  At the date of the offence, Wong was aged 17 years and 7 months; and Chan was two weeks short of 18 years.  Both Chai and Lee were aged over 18 years, though each was still a teenager.  Chai and Lee were sentenced to death, sentences that were later commuted to life imprisonment.  There was an appeal against conviction but on the 22 July 1993, that appeal was dismissed (CACC No. 92 of 1992).

3.The facts were summarised by the Court of Appeal:

“It was the Crown evidence that all four defendants were members of a triad group which on the night in question used knives to attack another group… one of whom was so badly injured that he succumbed almost immediately to his wounds.

From the evidence overall, it was clear that there had been an initial confrontation between the members of the armed group and the members of the victim’s group … on the ground floor of Block 1 of Homantin Estate which appears to have been used as a meeting place by members of the victim’s group.  Words were exchanged and there was some evidence that one of the members of the armed group was kicked and fell.  In the event, the victim’s group turned and fled out of the passageway and, eventually, into Sheung Shing Road where the fatal attack took place. 

The principal evidence came from two police officers who happened to be on duty near the scene of the attack, and from members of the victim’s group.  …

After hearing evidence in voir dire proceedings, the judge admitted statements that were made by D6 and D7. In [the statement of D6 (Chan) he] said that at about 1 a.m. on November 1990 he went out with Ah Lung for a stroll and that they came across Lo Shu and about 10 others in the vicinity of Block 1; that Lo Shu was a member of the Luen Ying She Triad Society and that he told him that his group had been beaten by a group from the Sun Yee On Triad Society; that he told Lo Shu that the group from Sun Yee On in Block 6 had alleged that he, D6, had beaten their brothers; that he knew that Lo Shu “came up to locate the group of Lo Sun Chais to air the grievance for me”; that Lo Shu’s group, having sighted a group of Lo Sun Chais, took out knives and rushed towards them; that he followed, and that when they reached Sheung Shing Street, Lo Shu’s group chopped one of the others with knives. …

The group of Lo Sun Chais alleged me of beaten their brothers and (they) looked for me around (with an intent) to beat me.  Therefore, in the afternoon yesterday, I went to Jordan Road to find Lo Shu to give me a hand.  I saw Lo Shu in Jordan Road where (I) told him that the group of Lo Sun Chais were ‘kwat kan’ me and (I) asked him to give me a hand.  He promised (me that he would) bring me up to Homantin Estate at about one o'clock at night and be the group of Lo Shun Chais for me.”

The Court of Appeal added that:

“This statement, which was taken in the presence of the applicant's mother, was on its face a clear admission that he had instigated and orchestrated the attack which led to the death.” 

4.The evidence was that Chan and Wong were two of three men (D1 was the other) in the lead of a group of eight to 10 men who ran down the victim and stabbed him with knives.  In his summing-up, the trial judge referred to the fact that the victim “was brutally chopped to death”.  The forensic evidence was that the cause of death was bleeding due to multiple chopped wounds.  There were some 30 odd wounds and the pathologist said that considerable force would have been required to cause such injuries.  There was a wound on the front of the right upper thigh which was a large transverse gaping wound 28 cm long, dividing the right femoral artery completely and opening the right femoral vein.

5.In his report to the Governor in respect of the two applicants before us, dated 25 February 1992, Bewley J commented as follows:

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

….

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 were no mitigating factors.

Both defendants lived with their families in Homantin Estate.  Wong Tat-yan was employed by an air-conditioning subcontractor.  Chan Po -keung was unemployed.”

6.In his judgment of 11 January 2005, Pang J said that the victim of the attack was so badly injured that he died at the scene of that attack.  He noted as well that “this was a vicious premeditated gang attack” and that the applicants were amongst the leaders of the attacking gang and that they continued chopping the deceased even after he had fallen onto the ground.  He concluded that: “The manner of the attack leaves no doubt that the respondents intended to kill the deceased.”

Wong (D2)

7.In relation to Wong, the judge said that the conduct of his defence revealed no remorse of the time of trial.  Wong has four previous convictions including one of inducing another to become a member of a triad society, assault occasioning actual bodily harm and an offence of robbery in 1988 for which he was sentenced to be detained in a detention centre.

8.There are a number of reports prepared for the purpose of the sentencing exercise before Pang J.  We have read them.  They show an early involvement by this applicant in triad activities, and a period in a detention centre as a result of a conviction for robbery.  That sentence had little or no effect on his attitude.  After his incarceration for the present offences, his behaviour at first was not entirely satisfactory but subsequently improved.  He has become a member of a musical band and enrolled in several educational courses, doing particularly well with computers.  He is said to have become more mature and unlikely to resort in the future to aggressive behaviour.  He is said to be very remorseful for his offence and to have acknowledged his guilt.  He has the support of his family. 

Chan (D6)

9.Chan had three previous convictions, all in 1989 for theft, and for assault occasioning actual bodily harm.  The reports about him say that there is no evidence of any psychiatric problem and that he is not someone who now represents a threat to the community, though the comment is made in a report by the psychologist that “his personality weaknesses can serve as a vulnerable area allowing him to be misguided”.  Since 1998 he started to attend to his own education in prison and has performed voluntary work for the needy, including the donation of part of his income from prison work to poor students in rural China.  He too is said to have expressed genuine remorse for his offence.

The judge’s assessment and conclusion

10.In so far as the judge stated in his judgment in relation to both these applicants, that he took the view that all prisoners belonging to this category should be given a fixed term sentence instead of passing a minimum term of imprisonment, we have in earlier judgments indicated that in this approach he has erred; for there may be cases in which an indeterminate term is appropriate with specification of a minimum term to be served.  Nonetheless, given the assessment in relation to each of these applicants that neither poses a long-term risk to the community, we agree that these particular cases lend themselves to fixed term sentences.

11.The sentencing judge commented that:

“46.     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 minimise 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.

….

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 premeditated 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 respond positively to the programs 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.”

Accordingly, the judge imposed in the case of each of these applicants a fixed term of 29 years’ imprisonment.

The grounds of appeal

12.Mr Haynes appears upon these applications for both applicants. We commend his conscientious, committed and sensitive approach.  The grounds of the appeal are that the starting point of 32 years imprisonment was too high for those who, at the time of the offences, were but juvenile offenders, with the “characteristics and backgrounds of these applicants”; and that the sentencing judge failed to assess the relative responsibility of the other two co-defendants, resulting therefore in a disparity of sentence; and failed, further, to recognise the fact that the years already served by these applicants were years in which they did not know when they might be expected to be released, thereby adding stress that ought to have been taken into account; and, further, that the discount for rehabilitation failed adequately to recognise their remorse and their exceptional degree, it is said, of rehabilitation.

13.Furthermore, Mr Haynes has placed before us a document which we are told was placed before Pang J but upon which he has not commented.  It is a letter dated 21 February 1992 from the trial judge, Bewley J, to the Governor in relation to the other two defendants namely, D1 and D7.  Those two defendants were sentenced to death and in that letter the judge, having described the circumstances of the offences said that there was no doubt that D1 was one of the leaders of the attacking group, ‘an imposing figure of a man, being about 6 feet tall and robustly built’, but that D7’s role was a lesser one since he did not take part in the assault.  Then the judge said this:

“I can see no mitigating circumstances.  Should however, Your Excellency decide to exercise your prerogative of mercy, sentences of 15 years’ and 10 years’ imprisonment respectively would, in my opinion, be desirable in commutation.”

14.Mr Haynes argues that if sentences of that length were appropriate for those two defendants, each of whom was older than either applicant, the fixed terms imposed in this case must be regarded as manifestly excessive.  He makes the point that proper regard should be had to that assessment of Bewley J, since he was the trial judge, somewhat better placed than subsequent courts for assessments of that kind.  More particularly, he prays in aid article 12 of the Hong Kong Bill of Rights Ordinance (and, he would no doubt add, the corresponding article of the International Covenant on Civil and Political Rights, to which constitutional effect is given by article 39 of the Basic Law) which provides that a heavier penalty shall not be imposed for an offence than the penalty that was applicable at the time the offence was committed.  The point he makes is this: that had Bewley J at the date of sentence been governed by the statutory provisions which have now come into play to protect the position of those aged under 18 years, the sentences that he would have imposed upon these applicants are reflected in that letter, and that these applicants should be in no worse a position simply by accidents of legislative history.  Again in connection with the principles articulated by article 12, he suggests that sentences for like offences have undergone a sea-change since 1997 by which they have become heavier, and that it is wrong in principle, therefore, to look to cases in and since 1997 for broad guidance as to the appropriate fixed terms for cases of this kind.

15.He adopts and repeats submissions made to this court by leading counsel for the applicants in HKSAR v Yeung Mok-yeh and Kwan Wing-kei, to which we have earlier referred and to the principles espoused by the courts in the United Kingdom to which we also referred (see para. 28 of that judgment).  He asserts, in addition, that given the significant strides made by these applicants whilst in prison, their remorse, their attempts at rehabilitation, the three-year discount accorded by the sentencing judge for those factors was manifestly inadequate.

16.Mr Haynes then urges upon this court that the stress factors at play upon these applicants have been peculiar to those within their category; and that no credit or discount has been given to recognise those factors.  The stress factors to which he points are these:

(1) that after 1992, when they were sentenced, they had hanging over their heads a term of incarceration with no indication of when, if ever, they might expect to be freed; and

(2) that between 1993 and 1997, these applicants, like others within their special category, were at a disadvantage when compared to those sentenced as young offenders in and after 1993, since with the enactment of section 2 of the Offences against the Person Ordinance and section 67B of the Criminal Procedure Ordinance, those sentenced under those enactments were entitled either to a fixed term or, in the case of a discretionary life sentence, to specification of a minimum term.  Given that these applicants were sentenced before those statutory provisions came into effect, they enjoyed no such certainty.

17.He had argued, in relation to added stress, that in August 1998 the Chief Executive, pursuant to new legislation then in force, specified a minimum term that each of these applicants should serve and that that term was, in each case, one of 30 years’ imprisonment; an equivalent, it was said, of a fixed term sentence of 45 years, assuming the normal percentage accorded to good behaviour.  The argument was that this was, on any view, a swingeing term, demonstrated by the sentence imposed by Pang J to have been manifestly excessive; a term that must have exhausted these applicants of any hope for the future.  The suggestion of the 30-year minimum stipulation transpired, however, to be an error.  In fact the minimum term imposed by the Chief Executive was 20 years and when the error came to Mr Haynes’ attention overnight, he very properly drew it to the Court’s attention and the point based on the original figure is therefore not pursued.

18.These particular arguments as to the stress occasioned by uncertainty have not, so far as we recall, thus far been taken in relation to applicants within this category and that is a fact that indicates, by way of example, why it was unsatisfactory for these cases to come before Pang J one at a time and with different counsel.  Mr Haynes informs us that he had advised some time ago that all these applicants should be represented at first instance by the same team but that that advice was not adopted.  It is advice that strikes us as eminently sensible and it is unfortunate that it was not followed.  Had it been, the commonality of issues to be argued in these cases might then have been appreciated and this court would no doubt then have been urged to hear these appeals as a group.  As it is, that idea has come late, for which reason we have heard only the last four as a group. 

19.Finally, Mr Haynes contends that in utilising the 30-year term imposed in Lee Kar-yeung CACC 315 of 1998, as a yardstick for the appropriate range of sentence for offences of this kind, Pang J erred, for the applicant in that case was subsequently retried and upon retrial received a sentence, not of 30 years’ imprisonment, but of 24 years’ imprisonment; a fact not taken into account by the sentencing judge in this case, perhaps because it was a fact not drawn to his attention.

Assessment

20.We have compared the sentences imposed in this case with several others, to which we shall shortly refer.  There are a number of features of this particular case which must be borne in mind when comparing them with those cases.  First, the applicants in this particular case were each aged 17 years, not far short of their 18^th birthday.  That contrasts with some of the other cases where applicants were somewhat younger.  Second, in this case, as opposed to some of the others, there was no recognition by the applicants of any complicity in the attack that resulted in death; in some of the other cases, as we shall see, applicants had offered to plead guilty to manslaughter.  Third, neither of these applicants had a clear record.  Fourth, there was clearly in this case a significant element of premeditation and, fifth, each of the applicants went armed with a knife.  The attack was vicious and sustained.

21.Yeung Mok-yeh and Kwan Wing-kei, to which we have referred, was similar to this case in the sense that that was a triad attack, although the victim was not himself a triad member but an innocent passer-by mistaken for one.  The fixed terms there imposed, also by Pang J, were 27 years in the case of each applicant.  Those applicants were aged 16 years and eight months; had clear records; and had offered to plead guilty to manslaughter.  It is relevant to note that the decision of the Court of Appeal in that case, as to sentence, has been the subject of consideration by the Court of Final Appeal.  The applicable notice of motion sought leave to appeal on a suggested point of law of great and general importance as to the function of the sentencing judge under section 67C of the Criminal Procedure Ordinance; but, in the alternative, on the suggested basis that the applicant had suffered grave and substantial injustice in that neither the Court of Fist Instance nor this Court had taken into account and given to him proper credit for mitigating circumstances relating to the commission of the offence and for his “complete rehabilitation since incarceration”; it being suggested that the sentencing court should have ordered his immediate release.  It was contended that the sentence imposed was manifestly excessive in the light of the correct sentencing principles to be applied in such cases.  In a Determination dated 2 March 2006, leave was refused: see Kwan Wing-kei v HKSAR FAMC No. 91 of 2005.   

22.In Cheng Yat-ming No. 2 [1997] 3 HKC 360, the applicant was aged 17 years.  That was a case in which he and another had gone to a flat to ask the victim to repay money allegedly owed and when the victim denied that he owed the money, and struck the applicant, the applicant lost self-control and strangled the victim with a belt round his neck.  The flat was then ransacked in order to make the events seem to be the result of a robbery.  The Court of Appeal commented that there was not in that case a large measure of premeditation and that the applicant had not brought with him a weapon of any kind.  Furthermore, the applicant had a clear record.  The court substituted the life sentence with a sentence of 28 years’ imprisonment.  That was a determination made on 25 July 1997.  The offence had been committed in 1995.  Compared with that case, it is difficult to see how it can be said that the fixed terms imposed in the present case are manifestly excessive.

23.Hui Chi-wai [2003] 2 HKC 582, was an unusual case because of the cruelty and torture inflicted upon a youth aged 16 years.  In that case minimum terms of 22 years’ imprisonment were imposed on the defendants close to the age of these applicants.

24.Lau Kin-hang CACC 357 of 1997, 8 April 1998, unreported, concerned a 16-year-old defendant who killed his girlfriend in June 1996 by inflicting heavy blows to her chest.  That was not a premeditated killing and there appears to have been a degree of provocation, albeit not sufficient to warrant a verdict of manslaughter.  No weapon was taken to the scene of the offence.  The Court of Appeal said that the defendant had a very immature personality.  Even so, they concluded that the appropriate sentence for what they referred to as a brutal and senseless killing was one of 29 years’ imprisonment.

25.Lee Kar-yeung CACC 315 of 1998, 15 October 1999, unreported, was a case of a premeditated attack upon someone who was a money lender.  The report provided to us does not state the date of the offence.  A money lender was lured to a flat and murdered in brutal circumstances said by the Court of Appeal to have been “compounded by the clumsy methods used by the accused persons.”  Despite the youth of the defendant, aged 15 years and 10 months at the date of the offence, the Court of Appeal dismissed an application in respect of the sentence of 30 years imprisonment.  The point made by Mr Haynes in relation to this case is that, in so far as the judge relied upon it as some guide, he erred in doing so because there was a retrial, and upon conviction that defendant was sentenced to 24 years’ imprisonment; and that there was then a third trial at which he pleaded guilty and his sentence was reduced to one of 16 years’ imprisonment.  We have not been presented with the sentencing remarks of the First Instance judge who imposed the 24-year term, so that we can but speculate as to the reasons for the difference between that term and the one approved by the Court of Appeal.  It is likely that the judge took into account that there had, prior to the second trial, been prolonged court proceedings and that it was a second trial.  But the fact remains that had the Court of Appeal considered that the 30-year sentence originally imposed was manifestly excessive, it would have said so, whereas it found in terms that it was not objectionable either in principle or as to its length.  In coming to this conclusion, that Court was specifically addressing the contention advanced on behalf of that applicant that sentences of between 20 and 22 years were envisaged for persons who had been aged under 18 years at the time of their offences; and in reviewing the cases cited to it, the court noted that “a significant feature that emerges from them is that the determinate sentences imposed were of the order of 28 or 29 years.”  It is noticeable that the three cases they cited all concerned pre-1997 offences and that the sentences were all imposed prior to July 1997, which Mr Haynes suggested, or seemed to suggest, formed some dividing line in the weight of sentences imposed for such cases.  We notice as well that one of the judges who there considered the 30-year term not to be manifestly excessive was the same judge who, at First Instance, subsequently imposed a term of 24 years’ imprisonment.  In these circumstances, we are satisfied that Pang J did not err in looking to the Court of Appeal decision in Lee Kar-yeung for some guidance, and it is further evident that Mr Haynes’ submission that the sentences imposed by Pang J in this case and others within its category were out of kilter with the range for offences committed pre-1997 or for sentences imposed pre-1997 is not supported.

26.Vo Van-hung CACC 417 of 1994, 6 March 1998, unreported, was a case of someone assumed to be under the age of 18 years who attacked another inmate with an implement in a detention centre.  The testimony of the prosecution witnesses was that the applicant had “deliberately armed himself with the knife, and then challenged the deceased and had, immediately thereafter, the deceased having risen to his feet, plunged the knife into the chest of the deceased.”  The court took into account the youth of the applicant and “the unfortunate circumstances in which he found himself having been detained for a very long period in the refugee camp” the appropriate sentence, substituted for that of life imprisonment, was determined to be 29 years’ imprisonment.

27.Chan Wing-yin CACC 570 of 1995, 16 June 1998, unreported, was a case of a planned robbery, the victim being an elderly lady who, it was thought, was alone in her home.  When her grandson returned home whilst the robbery was in progress, and attempted to intervene, he was attacked and stabbed 47 times.  The applicant was only aged 15 years at the time of the offence and said that he was under the influence of a disinhibiting drug.  The Court of Appeal refused to interfere with a sentence of life imprisonment.

28.We do not find possible in the circumstances to say that this judge erred in the fixed terms that he imposed, let alone that those terms are, in either case, manifestly excessive.

29.Whilst this point is not taken on behalf of these applicants, we disagree with the judge when he refers to “their subsequent conduct of the trial” as being one of the aggravating factors present in the case.  We do not know quite what he meant by this, but if it was a suggestion that the plea of not guilty and the failure to acknowledge their part in the attack was an aggravating factor, that goes against established principle.  We do not, in the event, take the view that that should affect the result.

30.In so far as Mr Haynes relies upon the suggestion by the trial judge that in the event that the Governor were not to commute the sentence, sentences of 15 and 10 years’ imprisonment for the other defendants were appropriate, and that it is incumbent upon us, and was incumbent upon Pang J, to honour that recommendation, we have to say that that it is a recommendation that, with respect, we find most puzzling.  The recommendation assumes that there will be a commutation: that must be so, for the sentences were death sentences and it was well known that as a matter of course death sentences at that time were commuted to sentences of life imprisonment.  It was open to a judge in making his report to the Governor to intimate the minimum term that should be served.  But if that were to be done, the wording would have to be precise.  That was not the course adopted by Bewley J, because what he said was that ‘sentences of 15 years and 10 years’ imprisonment respectively would, in my opinion be desirable in commutation’ (Emphasis added).  It will be noted also that he commenced his paragraph with the words: ‘I can see no mitigating circumstances’; and indeed there was none.  That being so, it is quite impossible to accept that the judge could have meant what is suggested by the words themselves.  Such sentences would be completely out of line with the range of fixed terms appropriate for a premeditated triad killing of this kind.  If, on the other hand, as Mr Haynes contends, the judge was suggesting that 15 years and 10 years be minimum terms, that he says, translates into fixed terms of 24 years’ and 15 years’ imprisonment respectively.  That does not follow.  Recommendations for minimum terms are just that, and permit the authorities to detain a prisoner beyond those minimum points.  It will be seen at once, by reference to the sentences in other cases to which we have referred, how completely out of line such fixed terms would be for a premeditated triad killing.  In any event, such a recommendation, namely, that of a 15-year minimum term for a leader of triad gang aged over 18 years in a premeditated attack in respect of which no mitigating circumstances exist, may itself be said to be substantially low.  We are satisfied in the circumstances that Pang J was not bound by the terms of Bewley J’s letter although it would, we respectfully suggest, have been better had he expressly addressed the point. 

31.The argument as to stress as a mitigating factor – that is to say, stress occasioned to the prisoner who does not know from the outset what is to be his term of incarceration – has an attraction which we have concluded to be superficial rather than real.  The offence of murder is so serious that the legislature has determined that in the case of adults, the sentence should be indeterminate.  This is a feature of incarceration for all those who at the date of the offence of murder were aged 18 years or over.  There is an inbuilt uncertainty as to whether there will be any release and, if so, when that release might come.  That is part of the penalty for this, the most serious of offences.  It is a sentence ‘… conveying emphatic denunciation of what continues to be regarded in our society as the most serious of crimes.’: see Lau Cheong and Another v HKSAR [2002] 2 HKLRD 612, 646.  At the time when these applicants committed this particular murder, the sentence for that offence for young offenders also involved an indeterminate sentence.  That was the burden that had to be carried by those who committed such offences; and it was known then to be the burden for such a crime.  But there was then a distinction drawn for those aged under 18 years, a distinction of which all young offenders convicted in this category must have been aware, namely that a sentence of detention during Her Majesty’s Pleasure carried with it the likelihood of release in due course and at a date sooner than that of the adult contemporary convicted of the same offence.  That was the recognition, the benefit, given by the legislature to the fact of age, and whilst uncertainty there must certainly have been, there was also an encouragement to strive for a release date that was not restricted by any date set by the court.  Under the regime now in force it is open to a court to set a minimum term.  If such a term is set, there is still no certainty as to the date of release and hope of release earlier than the date thus dictated is absent.  In the case of a fixed term, there is certainty, it is true, but no hope of earlier release, though we acknowledge that certainty must be preferable to uncertainty.  Looking at these factors in the round, we do not think that the argument warrants a reduction in the term that is otherwise appropriate.

32.Finally, we turn to the argument that the sentencing judge did not accord sufficient weight to the rehabilitation of these applicants.  It is said that the three-year discount for their efforts is insufficient.  In this case, as in the others within this category of prisoner that we have most recently heard, there is, so it seems to us, a continuing failure to recognise the distinction between the function of the sentencing judge in this exercise, on the one hand, and on the other the function entrusted to the Long-Term Prison Sentences Review Board.  In HKSAR v Yeung Mok-yeh and HKSAR v Kwan Wing-kei, above, we said at paras. 24 and 25:

“24. …  The function of the court in sentencing is to sentence for the offence, having regard to the character of the crime and to individual circumstances.  The circumstances in which a sentencing court will be faced with somebody who is in a position to pray in aid prison circumstances, whether they be the manner in which present conditions bear against him or whether, on the other hand, how well he has done in prison, will be rare.  This is just as well for once a court engages in such exercises, it inevitably becomes enmeshed in matters increasingly removed from those which reveal the appropriate sentence for the offence, and in matters which are more appropriately the province of others, especially those who are best placed to compare the progress of one prisoner against others and with the benefit of an in-depth knowledge of the prison regime and with aspects of post-release prospects for rehabilitation. …  What we have in effect been invited by counsel to do in this case – and it follows that this is what it is suggested the judge below should have done – is to substitute ourselves for the Long-Term Prison Sentences Review Board … . That is not, in our judgment, the judge's function even in the peculiar circumstances for which section 67C is intended.

25. We have little doubt but that the unusual statutory provision which is subsection (5) of section 67C [‘In making a determination under this section… the judge may take into account any material submitted by the Secretary for Justice or the prescribed prisoner that is, in his opinion, relevant to the determination’] is primarily directed at enabling the court to determine whether or not an indeterminate sentence is appropriate, for which purpose a judge will necessarily require reports that disclose the progress of the prisoners and sentence and the prognosis for his future development.  Yet we cannot say, given the manner in which the section is drawn, that that was the sole purpose for which such reports are intended to be used by the judge.  Had that been the intention, the subsection would have made that clear.  Furthermore, since in the normal course of the sentencing process a judge is required to make some assessment as to remorse and genuinely praiseworthy conduct between offence and sentence, it would not be right to exclude such considerations in the peculiar situation for which section 67C was enacted.”

33.The more cases within this category of prisoners at which we look, the more it becomes evident how inappropriate it is for the courts to engage themselves with questions touching upon or moving towards desirable date for release.  Many of the reports show significant progress in prison by those who were young offenders at the date of the commission of the offence and who have been incarcerated for substantial periods of time.  The nature of the courses undertaken vary widely and, in any event, failure by a particular prisoner to excel at a particular course may not fairly reflect upon remorse or upon the energy expended by him in trying to better himself, for the failure may merely be reflective of a lack of particular aptitude rather than a lack of effort.  These must be matters for those who can compare one prisoner with another, for those who are in constant supervision of the prisoners.  It is not a matter for the courts.  In this conclusion, we are fortified by the remarks of the Court of Final Appeal in their Determination in Kwan Wing-kei to which we have earlier referred.  We decline to say that these deductions were inadequate.

Conclusion

34.We grant the applicants leave to appeal against sentence and treat the hearing of the application as the appeal but, for the reasons we have given, the appeal of each appellant is dismissed.

Mr John Haynes instructed by M/S Reimer & Partners, assigned by DLA for Applicant /CHAN Po-keung (CACC 26/2005)

Mr John Haynes instructed M/S Reimer & Partners, assigned by DLA for Applicant /WONG Tat-yan (CACC 27/2005)

Mr D G Saw SC DDPP and Mr Vincent Wong SGC of the Department of Justice, for Respondent