HKSAR v. Cheung Yau Hang

CACC 165/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 165 OF 2005

(ON APPEAL FROM HCMP NO. 2184 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: 8 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.Following his conviction for a double murder, this applicant was ordered by a High Court judge to be detained “until Her Majesty's Pleasure be known.”  Pursuant to the provisions of section 67C(1) of Criminal Procedure (Amendment) Ordinance 2004, the Secretary for Justice made an application for a judicial determination as to the term to be served.  The result of that referral was the judgment of Pang J in this case dated 15 April 2005 by which he imposed a fixed term of imprisonment of 35 years.  This is an application for leave to appeal against that determination. 

2.The applicant was charged upon an indictment containing two counts, each alleging murder.  He pleaded not guilty but was subsequently convicted by a jury on 30 January 1987, in respect of both counts, after a trial over which O’Connor J presided.  The offences took place on 20 April 1985 and the murders were of two teenagers, one a young lady aged 18 years and the other her male schoolfriend, aged 17 years.  They were both students at the same school and had gone to Quarry Bay Country Park, behind Braemar Hill Mansions, in order to study.

3.There were five defendants who were convicted of this murder, one of whom had pleaded guilty.  The leader of the gang was a man called Pang, aged 26 years at the date of sentence.  He was D1.  D2 was a man called Tam then aged 21.  This applicant was aged 18 years at the date of sentence, and 16 years and four months at the date of the murders.  He was D4.  Chiu was D5 and he was aged 25 years of the date of sentence.  A youth called Won was aged a few days short of 16 years at the date of the offence and he pleaded guilty in September 1986 and gave evidence for the prosecution at the trial of the others, who were convicted in January 1987.

The facts in outline

4.The essential facts have conveniently been set out in a report by the trial judge to the Governor dated 21 January 1987.  They are also referred to in the judgment of the Court of Appeal in this case dated 8 March 1988 when dealing with the appeal against conviction.  The circumstances of the murders were appalling.  One would wish to avoid any recounting of the details, were that possible and we shall strive not to recount them in full.  But regretfully it has proved necessary to make sufficient allusion to the facts to illustrate why a sentence of the type imposed, albeit on someone who was aged 16 years at the time of the offence, and under the influence and pressure of others is nonetheless understandable, and also to place in proper context the difficult countervailing factors urged upon us and that we are bound to address.

5.The murderers and their victims did not know each other.  The attack on the two youngsters was completely unprovoked.  It was a prolonged attack – it lasted some four hours – displaying awful cruelty, and a determination to kill.  Pang and his gang saw the two youngsters from afar.  At Pang’s suggestion, the group of attackers approached the teenagers in a pincers movement.  Pang armed himself with a pickaxe handle and he, Tam, Won and this applicant attacked the couple.  This applicant together with Won attacked the girl whilst the boy was being tied up.  An indecent assault took place upon the girl, in which this applicant took part, and she was subjected to violence, into the details of which we shall not enter.  It suffices to say for the purpose of this application that this applicant, at that stage, signalled to Chiu, the fifth defendant, to come over and join them, which he did.  The girl was savagely beaten; and subsequently raped by two of the attackers.  This applicant did not take part in the rape.  A decision was then taken by Pang that the teenagers would have to be killed otherwise they would identify the group.  He issued a threat spoken to Chiu, that he would kill anyone who did not take part.  In the course of the beatings that followed, this applicant took part and he, with others, stood on a handle or stick that had been placed against the young man's throat.  He joined also in beating the girl and similarly stood on a handle across her throat.  After the victims had died, the assailants took their school books and other belongings and threw them in a nearby stream and, as the judge commented: “Thereafter [the defendants] resumed their normal everyday life.”

6.Apart from referring to the particular part that this applicant had played, the judge said that this applicant had been “under the thumb of Pang, who is a big strong man….  [He] was in some fear of Pang, and on the occasion of the offences, he acted on the instructions of Pang.  Nevertheless he played an active and not altogether reluctant part in what occurred.  Apart from his age, and that he was to some extent under the influence of Pang, I can find no mitigating factor … in respect of [the applicant].”

The sentencing

7.The sentencing judge in this case, as in others in this statutory category, considered that he ought in all such cases to impose a fixed prison term as opposed to an indeterminate sentence with a stipulation for the minimum to be served.  That was, for reasons we have explained elsewhere, not a correct approach.  But a fixed prison term was, in the light of this applicant’s progress and the report in respect of him and the mitigation with which we shall later deal, not inappropriate in this applicant’s case.

8.The sentencing judge had the benefit of a significant number of reports in relation to this applicant, as well as correspondence from the applicant himself and from a variety of persons who knew him.  It is apparent that he suffered a disadvantageous childhood, including prolonged illness.  Under the regime that was instituted in 1997, the Chief Executive had, in 1998, substituted for the indeterminate term represented by the order of detention under Her Majesty's Pleasure, a minimum term of 30 years’ imprisonment.  Despite that order, the applicant has since committed himself to self-improvement as is evident from his enrolment in numerous language courses including a course which, it is expected, will lead to a degree from the Open University of Hong Kong.  His chances of re-offending are low.  In the light of these reports, the sentencing judge commented that: “ … [the applicant] appears to be a reformed person and had substantially rehabilitated himself over the years.  A fixed term sentence, in my view, is appropriate under the circumstances.”

9.At this stage, we interpose the fact that the defendant Won, who pleaded guilty and gave evidence for the prosecution at the trial of the other defendants, eventually drew a fixed term of 28 years and three months’ imprisonment.  This was the term recommended, we are informed, by the Long Term Prisoners Review Board.  Before Pang J, analogies were drawn between this applicant’s culpability and that of Won.  It was contended that the applicant, like Won, had offered to plead guilty and to give evidence for the prosecution at trial.  The Secretary for Justice applied for an adjournment so that the case files could be searched to see whether there was anything that supported that contention, but in the event no supporting documentation was found.  To this we shall shortly return.

10.The judge noted that at the trial, this applicant had challenged the admissibility of his cautioned statement, and had pleaded not guilty, and testified in his defence that he had been acting under duress, a defence that was not left by the trial judge for the jury's consideration, but that nonetheless formed the basis of the defence that the applicant had harboured no intention to kill.

11.Pang J said in his judgment that he had been invited to pass in respect of this applicant a sentence similar to that imposed upon Won.  He took the view that the circumstances of the two cases were entirely different.  He summarised this case as “… the worst possible case of murder”, and he assessed the appropriate sentence to be one of 37 years’ imprisonment but, giving credit “for the efforts of the respondent in improving himself, both in educational pursuit and his good performance during his detention,” he gave a discount of two years, and imposed a sentence of 35 years’ imprisonment.  We note in this regard that the judge has simply said that in place of the sentence imposed by O’Connor J there is “substituted a sentence of 35 years’ imprisonment ”  We presume – and this point was not taken before us – that the judge meant 35 years in respect of each count, to run concurrently.

Submissions on appeal

12.In his extensive and well prepared submissions, Mr Haynes makes a series of points which may be summarised as follows:

(1)   That insufficient weight has been accorded the fact that this applicant was at the date of the killings an immature youth.

(2)   That in suggesting, as did the trial judge in making his report to the Governor, that this applicant's part in the killings was “not altogether reluctant”, the judge erred in that it was accepted that he acted under pressure from Pang and that he rejected Pang's invitation to rape the girl.

(3)   That insufficient weight has been accorded the fact that this applicant was acknowledged by the trial judge as being under the thumb of Pang who was a strong man who had in the past beaten this applicant when displeased with him.

(4)   That insufficient weight has been accorded to the difference in this case between an intent to kill, which the verdict dictates was established, and a wish that that the victims be killed, a distinction drawn by the judge in his summing-up in order to reflect the element of duress.

(5)   That as to these last three mentioned factors, all falling under the umbrella of duress, the sentencing judge failed to accord proper weight to the threat to kill which had been issued by Pang; that is to say, his threat that if the others did not join him in the killing, they themselves would be killed.  True it is, Mr Haynes accepts, that that did not amount to a defence, but surely, he contends, it amounts to powerful mitigation; and there are indicia, he says, in the evidence, as to the absence of a wish on the part of this applicant that the victims be killed including, for example, expressions by Pang and Tam of dissatisfaction with the force used by this applicant and by Won upon the victims.

(6)   That the view of this applicant's trial counsel as to the feasibility of the defence of duress must have differed from that of counsel advising Won, and that “in the circumstances his pleas of guilty should not now tell heavily against speedy release”.

(7)   That the judge in sentencing has taken an unjustifiably adverse view of the fact that at his trial this applicant saw fit to challenge the admissibility of his cautioned statement.  The point that is suggested is that the account given by the applicant at his trial was a true account of what transpired and accords in its essential particulars with the account given by Won, so that the fact of the voir dire should not be taken as detracting from the willingness of this applicant at all times to tell the truth about his participation.  His willingness to do so was, moreover, it is said, evidenced by his admission, upon being charged and in correspondence to his father and stepmother, that he had taken part in the attack.

(8)   That in deciding upon the term appropriate for this applicant, a comparison with the term fixed by the Board for Won is not apt since the term of 28 years and 3 months was a pragmatic term, in the sense that it was a term alighted upon as one resulting in almost immediate release, rather than an assessment, let alone a judicial assessment – which it was not – of the appropriate sentence for the offence.

(9)   That insufficient regard has been accorded to the stress encompassed or created by the uncertainty of an indeterminate sentence, constituted by detention during Her Majesty's Pleasure, and by the further stress of the Chief Executive’s determination that he serve a minimum of 30 years’ imprisonment.

(10)  That in the course of the hearing before Pang J on 10 March 2005, the judge led counsel for this applicant to believe that a sentence of between 20 to 30 years would be imposed upon this applicant, wherefore counsel curtailed his submissions; but for which further submissions may have enured to the benefit of this applicant.  This is not a ground developed during argument, and is not one substantiated before us.

(11)  That no account has been taken of the fact that this applicant had wished to be a prosecution witness and had wished to plead guilty, in support of which proposition counsel now produces correspondence between counsel who then represented this applicant and the Attorney General’s Chambers, as it was then known.

(12)  That the fixed term of 35 years in this case discloses an unjustifiable disparity when compared with a sentence of 25 years imposed upon Lau Man Po by Pang J (HCMP 2212 of 2004), 18 March 2005, unreported).

(13)  That the two-year discount given by the sentencing judge was less than the three-year discount given in other cases where rehabilitation efforts were no more meritorious, and that there is no justification for the lesser discount.

(14)  That, in any event, the discount, given for this applicant’s efforts and significant rehabilitation, was manifestly inadequate.

The two terms: Won and this applicant

13.We address, first, the comparison between the fixed sentence imposed upon Won, on the one hand, and, on the other, that imposed on this applicant, and the suggestion that it is but a mere coincidence of the history of the case and of advice given to this applicant that he did not plead guilty and that Won did.  In this context, we have been shown a letter dated 27 September 1986 written by leading counsel for this applicant to a senior legal officer in the Attorney General’s Chambers, Mr Oderberg.  In that letter, he seeks clarification “as to what it is that you are proposing”, upon the basis of an understanding, it seems, by leading counsel that Mr Oderberg was suggesting that if the applicant were to plead guilty “he would be treated the same way as [Won] has been or is going to be treated”.  What leading counsel wanted to know was what “detention at Her Majesty’s Pleasure” meant in practical terms.  He concluded his letter by saying: “I should add finally that I have not yet seen my client at all, and no instructions have been taken from him by anyone as to his plea.”

14.Mr Oderberg replied that Won had approached the prosecution through his legal representatives, that “at no time did the Crown initiate, directly or indirectly, the course adopted by him” and that the only “arrangement” reached with him through his legal representatives was that if he, Won, did plead guilty then consideration would be given to using him as a prosecution witness at the trial.  The benefit to be gained by Won, he wrote, was simply that his plea of guilty might be viewed as evidence of remorse, and that fact as well as his co-operation with the prosecution were factors which may be viewed as reflecting favourably upon any petition for release which might be lodged with the Executive.  He concluded as follows:

“The question of how your client wishes to plead is a matter exclusively for the consideration of your client and his legal representatives.

Under no circumstances will the Crown hold out any ‘guarantees’ as to how your client will be dealt with in terms of time served should he be convicted on the indictment.”

15.There the matter rested and the fact is that no plea was offered by this applicant.  Not only that, he contested the voluntariness of his cautioned statements on a factual basis that, self-evidently, was not believed by the trial judge.  Similarly, his case was that he was at most guilty of manslaughter, a case that was rejected by the jury.  Indeed, no plea of guilty to manslaughter was tendered.  In so far as Mr Haynes contends that his client should not be penalised for taking that course, that is to say, for pleading not guilty, the short answer is that he has not been penalised for doing so.  It is simply that he has not been given the credit that he would have attracted had he pleaded guilty, nor the further credit that he would have attracted had he thereafter given evidence for the prosecution, or offered to do so.  We accept that there is little on the facts to distinguish between this applicant's conduct during the events which formed the subject of the indictment and that of Won, although we do note that this applicant was said to have hailed over one of the defendants to join in the first sexual assault upon the female victim.  The fact of the plea of guilty by Won and the fact of his giving evidence for the prosecution against defendants who pleaded not guilty constituted substantial mitigation, the more so, it might be said, when he was doing so against a man, Pang, under whose pressure he had laboured and whom he was said to fear.  Whether or not one views the term set by the Board as an assessment of the correct sentence, the resulting disparity is, in our judgment, warranted.  

16.In so far as it has been suggested in the course of oral argument that counsel for the defendants, Won and Cheung, merely took a different view as to the availability or strength of the defences in law, we cannot go along with that.  There is no evidence to support that contention.  It has even been suggested that the essence of the letter from leading counsel to Mr Oderberg and Mr Oderberg’s reply were not drawn by leading counsel to this applicant’s attention.  That is an assertion made by the applicant, but one that we find very difficult to accept.  The fact of the matter is that at no stage did this applicant offer to plead guilty or to give evidence for the prosecution.  He did not plead guilty and he did not give evidence for the prosecution, and there is no justification for treating him as if he did.  

This applicant’s culpability

17.There is a difficult tension provided by this case.  It is the tension between, on the one hand, the fact that this applicant is guilty of an horrendous murder, not merely of one, but of two, entirely innocent young people and, on the other, the fact that at the time of these murders this applicant was aged only 16 years and clearly under the influence of an older man who was a bully and of whom both this applicant and Won were in some fear.  A mature sentencing policy requires recognition that murder is the gravest offence in the criminal calendar and that, within that gravest category, this was a particularly bad case of its kind.  Whilst not premeditated in the sense that a gangland or contract killing is, neither was it a spur of the moment attack.  It was brutal, cruel and prolonged.  When one hears details of the substantial progress made by a prisoner in courses he has undertaken whilst incarcerated, and of the opportunities that lie ahead of him as a result, it is difficult, indeed inappropriate, to put to one side the fact that all opportunity, academic and otherwise, was denied the two youngsters who, at the prisoner's hands, were killed.  As against that, a sentencing policy is neither mature nor fair if it fails to recognise that the culpability of the young, acting under the influence of older persons, is less than that of adults; and that is so even where the offence committed is grave.  Therefore, whatever the gravity of the offence, there must be conducted a fair assessment of the respective culpabilities of the offenders and then an assessment of sentence in the light of individual responsibility, but in the context of the gravity of the criminal conduct in question.

18.Such an analysis requires us to address the suggestion that the trial judge's conclusion in his report to the Governor that this applicant “played an active and not altogether reluctant part in what occurred” was erroneous.  We do not accept that criticism.  The trial judge, a highly experienced judge in the realm of criminal litigation, had presided over this long trial and was in an excellent position to assess who had played what role and to what extent.  We have read the transcript of the testimony of Won as well as that of this applicant, and it is, as a result, obvious to us why it is that that was the trial judge’s conclusion.  We accept that Pang and Tam were older and were the moving forces behind what occurred, and that the others were in some fear of them and acted under their instructions.  Yet these events spanned some four hours, the applicant took part in serious violence upon both victims and in acts of indecent assault well before Pang’s threat upon which he heavily relies was issued, and the evidence demonstrates that there was ample opportunity for him and Won to leave the scene but that they did not do so; and the reason they gave in evidence for not doing so is, as we shall illustrate, noteworthy.

19.One is, as we have earlier intimated, reluctant to go into detail on the facts but such was the emphasis placed by counsel for the applicant on the pressure upon the applicant to commit these offences, implying that the applicant was without real choice in the matter, that the suggestion requires some contextual analysis.  The evidence revealed that before the threat was issued by Pang, this applicant assisted Pang and Tam in pinning down the boy, subdued him, searched him for money, and then went over to the girl whose upper body, according to Won, the applicant hit “with much force” (page 975); that he sat on the girl and used his hands to press hers whilst another was holding her neck; that he struck her; that he and the others observed further very serious assaults at a time when they might have walked away; that he took part in an indecent assault upon her, with no direction that he had to do so; and that it was he, the applicant, who called Chiu over to join the group, and that this call came some 20 to 25 minutes after the assaults had started, and before there was any threat.  Whilst Pang and another later engaged upon an assault on a different kind, the rest, including this applicant, sat a distance away, one or more of them smoking.  What transpired thereafter was a course of violence culminating in death, beginning before any threat was levelled by Pang at the other participants but after he had suggested that the two victims had to be killed.  When violence was inflicted, this applicant with others watched; and thereafter the acts of this applicant, albeit under directions, albeit under a threat, constituted direct and horrific participation.  There was evidence, it is true, that some of the violence he and Won inflicted was not sufficiently forceful for Pang’s taste; but his testimony that they were tapping only lightly was wholly unrealistic.  

20.Both he and Won were asked in the course of their oral testimony why it was that during their extended time on that hillside they did not run away.  This applicant was asked about that first in examination-in-chief, at p. 1720 :

“Q.  Why did you not run away at any stage?

A.    I couldn't run away.

Q.   Why not?

A.    First, it was dark.  I didn't know the way.  Secondly, I didn't know where I should go to.  If I returned home my family would not accept me.  If I returned home my stepmother would surely tell my father to drive me out.

….

Q.   So you say it was dark, you did not know your way, and you had nowhere to go to.

A.    Right.

Q.   What about the first or second accused?  Would they ever find if you run?

A.    Yes, I suppose so.”

It can hardly escape attention that the reason provided, certainly the prime reason, had nothing to do with fear of Pang or of Tam.

21.Not surprisingly, counsel for the prosecution returned to the theme in cross-examination.  He referred to several occasions when the applicant and Won were separated from Pang’s presence, including a time when Pang was assaulting the girl, and when Won and he were elsewhere smoking cigarettes; and to another time when the applicant, Won and Chiu were out of the sight of Tam and Pang:

“Q.  During the currency of all those times that I have put to you, there are four of them, why did you not take the opportunity to get yourself away from the source of the threat, that is to say, Pang Shun-yee?  Why didn't you flee the scene of these attacks?

A.    Because I didn't know the way.  It was dark.  And moreover I didn't know where I should go to.  If I returned home my family member would not accept me.” (See transcript p. 1756).

Counsel for this applicant suggested then that there was a third reason that the applicant had given, namely, that he would be attacked anyway.  It seems to us that on a fair reading of the way the evidence emerged, that that third reason was very much an afterthought on the part of this applicant in response to the way a question had been put to him by his counsel.  It is noteworthy in this regard that Won’s explanation of why he did not run away had, until cross-examination by counsel for this applicant, again, nothing to do with any fear of Pang.  He was asked, at pp. 1044 – 1045:

“Q.  Why didn't you run away?

A.    It was the first occasion I went to that hillside, I didn't know the way.

….

Q.   I know it's hypothetical, but see if you can try and answer this question for us.  If you had, in fact, got up and run away, what do you suppose would have happened as far as any of the rest were concerned, as far as the other three up there were concerned?

A.    It didn't cross my mind that I would run at that time.”

22.The suggestion by this applicant that his will was overborne, and that he did not intend to cause harm, is not supported by the evidence.  He said in his testimony (p. 1746) that it did not occur to him that if the two victims were left alive there was a chance that they could identify him.  That is an assertion that is difficult to believe.  He took part in the attacks on the boy and on the girl before any threat was made.  The assaults in which he took part were extremely serious and it must have occurred to him, as obviously it did to the others, that identification of these brutal attackers was an obvious risk.  Not only can no proper criticism be levelled at the judge’s assessment of this applicant’s part; it would be surprising had he reached any other conclusion.

Won’s affirmation

23.There is before us an affirmation dated 10 February 2006 made by Won.  He was discharged from prison on 20 September 2004.  In this affirmation, he explains how he and the applicant came to know each other and how they fell under the influence of the defendant Pang at an early age, and he speaks of the hot temper that Pang displayed culminating in physical abuse and of the difficulty encountered by both of them in withstanding his bullying.  In relation to the killing itself, he says that neither he nor the applicant had the guts to refuse Pang’s orders to participate in the beating, but that with great reluctance they applied only a little force intending to deceive Pang, without the slightest intention of hurting the victims.  In relation to his offer to be a prosecution witness, he says that when arrested the police indicated to him that the applicant had also volunteered to be a prosecution witness but that since he, Won, was the younger of the two, he was accorded priority.

24.We are not impressed by this affirmation.  The suggestion that they applied “only a little force… without the slightest intention of hurting the victims’’ is a suggestion that cannot be accepted.  It does not accord with what they did.  Won’s own evidence at trial was that when this applicant joined in the attack on the boy and the girl, he, the applicant, hit the girl with ‘much force’; and although Won said that later when they were setting about killing the couple, the force used by him and by the applicant was not sufficient for Pang’s liking, what in fact they were doing was standing on sticks placed across the throats of the victims, and thereafter Tam and Pang were standing on the stick using “great force” whilst this applicant and Won were holding the stick (see the transcript of evidence page 1007).  This suggestion by Won of “only a little force” is an echo of the thread of this applicant’s testimony that he struck blows on the boy's throat with a stick “very lightly” (see page 1710) and that when he was stamping on the boy's throat, he did not think that that would cause any injury (see page 1720).  Whilst it may well be that the force used was not as great as it might have been, the testimony by this applicant at trial in this regard and the affirmation of Won now, smack of significant exaggeration.  Furthermore, in this regard, our attention has been drawn to the way in which this case was left by the trial judge to the jury in his summing-up.  What he said was that in respect of each defendant on each charge, what the jury had to decide was whether it was proved beyond reasonable doubt that the defendant intended killing to take place, was party to an agreement to kill a teenager, and that if they were not sure of that as regards a particular defendant, they would acquit.  “The question is,” he said “whether they intended and agreed to the killing, whether they intended and assented to, whether a defendant intended and assented to the killing.  That is the question.  The question is not whether he wished the killing, or whether he would have preferred the killing not take place.  That is not the question.  The question is whether he intended it.”  He also left in the case of this applicant the alternative verdict of manslaughter, to be delivered if the jury was not sure that the applicant intended and agreed to the killing but was sure nonetheless that the blows he delivered contributed to death.  We have also read the testimony of Won at trial, his description of what each of the defendants did over the prolonged course of the attacks and the abuse, and we conclude that the affirmation of Won, whilst understandably referring to the pressure exerted by Pang, otherwise plays down his role and that of this applicant.

Stress

25.We turn next to the stress factor prayed in aid by counsel for the applicant.  It is a repetition of the point made in another case in this series, namely, Chan Po Keung and Wong Tat Yan CACC Nos 26 and 27 of 2005, to be handed down on the same day as this judgment.  There we say, at para. 31:

“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 these particular murders, 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.”

We recognise that this factor will vary from case to case and that in this particular case a minimum term was set by the Executive at 30 years which presented this applicant with a long-term indeed.  As against that, the weight to be given to the stress factor must always be viewed contextually, and in the context of the facts of this case it is not one that persuades us to the view that the sentence imposed was excessive.

Other factors

26.It is said that the two years credit given for this applicant’s progress whilst incarcerated, when compared with the three years given in other cases, constitutes a disparity that is not justified.  Sentencing is not a matter of mechanics, and the degree to which a sentencing court gives effect to post-offence conduct, in so far as such conduct is ever a factor at all, will vary and in the context of this case, for reasons we have already explained, it is understandable that progress made by this applicant might carry less weight than in other cases.

27.Attention has been invited in the written submissions, although not in the oral arguments, to the case of Lau Man Po.  The applicant in that case killed a lady aged 80 years after he had gained entry in order to steal valuables from the premises.  In the course of the burglary he stabbed and killed the deceased.  That stab pierced the cephalic vein but for which the injuries inflicted, inflicted it was agreed with little force, were unlikely to have caused the death.  A sentence of 25 years was imposed.  That case is a poor analogy for the applicant’s purpose.

28.We have looked as well at other cases in which fixed sentences have been imposed in respect of those who were formerly detained during Her Majesty's Pleasure.  Those cases are, in the main, reviewed in Chan Po Keung, above.  The sentence imposed in this case is higher than in those but for reasons which are obvious.  Quite apart from the unusual and prolonged cruelty visited upon the victims in this case, it is to be remembered that unlike any of those cases, there were in this instance not one but two murders committed by this applicant, as well as by the other defendants in the case.  That is a major aggravating fact.  The lives of two entirely innocent youngsters were deliberately taken, and the lives of two families were cruelly affected by these murders and by the inevitable contemplation of their manner.  It is against that fact that we are asked to recognise the youth of this applicant at the date of these killings and the influence of older persons upon him at the time.  We do recognise those factors and we say that but for them the sentence imposed upon this applicant, a sentence that envisages his release into the community at large in only a few years from now, would be viewed as inadequate.  We are not in the circumstances prepared to say that the sentence imposed by Pang J on this applicant was excessive, let alone manifestly so.

Conclusion

29.Accordingly, whilst this applicant is granted leave to appeal and whilst we treat the hearing of the application as the appeal, the appeal against sentence is dismissed.  For the avoidance of doubt, this appeal assumes a fixed term of 35 years’ imprisonment in relation to each count and since the judge has not expressly said so, we order those terms to run concurrently.

Mr John Haynes instructed by M/S Chan & Associates, assigned by DLA for Applicant

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