HKSAR v. Au Kam Ming and Others

CACC000531/1997

CACC 531/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 531
(Criminal)

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Coram: Hon Power V-P, Mortimer V-P and Liu JA in Court

Dates of Hearing: 6 and 7 August 1998

Date of Judgment: 7 August 1998

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J U D G M E N T

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Mortimer V-P (giving the judgment of the Court) :

1. The three applicants pleaded guilty to an offence of conspiracy to cause grievous bodily harm with intent to LEUNG Pui-hong, the victim, contrary of a clause to s. 17 of the Offences against the Person Ordinance, Cap. 212. They pleaded guilty before Saied J. In consequence of the conspiracy the victim was killed. The judge sentenced the 1st applicant, AU Kam-ming, and the 2nd applicant, KEUNG Wan-ping, to 10 years imprisonment each and the 3rd applicant, LEUNG Kang-yau, to 8 years imprisonment. They each apply for leave to appeal against those sentences.

The facts

2. The 2nd applicant was described as the 1st applicant's girlfriend. The 2nd applicant's partner in an electrical company was a man called Tsang and he in turn was in partnership with the 1st applicant in another electrical company. The 3rd applicant is a friend of the 2nd applicant and at the time owed her $70,000.

3. The victim was a businessman who was running a company in the same building as the 1st applicant. The 1st applicant and his partner and the victim were in partnership in a business in Dongguan. At one time the 1st applicant's family and the victim's family were close friends and they intended to emigrate to Canada together.

4. In 1992, the 1st applicant, the victim and others invested in a real estate project in Dongguan, but the next year a dispute arose between them. Attempts were made to settle the dispute during 1995 without success. The dispute escalated and there were acrimonious arguments between them.

5. The 1st applicant believed that he had been ill-treated by the victim. In consequence in about January 1996, he spoke to his girlfriend, the 2nd applicant and it was suggested between them that the victim should be taught a lesson. The 2nd applicant said that she knew someone who could arrange it. The 1st applicant asked her to find someone who would beat up the victim and cause him some serious injuries.

6. In May 1996, the 2nd applicant arranged to meet the 3rd applicant who owed her money. For the remission of the debt, he agreed to find someone to deal with the victim for $100,000. The 2nd applicant reported this matter to the 1st applicant and his partner. They agreed the price and provided a photograph of the victim who was unknown to the 2nd applicant. In consequence, the 2nd applicant returned to the 3rd applicant and told him that all was agreed. He asked for another $5,000 travelling expenses and so the 2nd applicant provided that in cash. On 22nd and 27th May, she reported back to the 1st applicant and asked for repayment of the $5,000 which was effected by means of a company's cheque.

The 2nd applicant told the 3rd applicant of the victim's habit of taking tea in a particular restaurant, just after 1:00 p.m. each afternoon. Late in May, she went with the 3rd applicant to the restaurant to identify the victim from the photograph. After that, the 3rd applicant took a man called WONG Chi-ming - the person who had agreed to carry out the attack - to identify the victim to him.

Before the attack had taken place, the 1st applicant changed his mind. He told the 2nd applicant not to 'fix' the victim. He did not wish to proceed with the plan. The 2nd applicant therefore contacted WONG Chi-ming to pass on that information, but WONG Chi-ming said he and his colleagues had to carry out the attack because they needed the money. It seems that neither the 1st applicant nor the 2nd applicant did anything further after that to prevent the attack from taking place.

7. On about 12th July 1996, the victim was captured, taken to a hill in the New Territories, beaten and put to death. WONG Chi-ming reported to the 2nd applicant that the victim had been dealt with and the 2nd applicant informed the 1st applicant.

Later the same day, however, WONG Chi-ming asked to meet the 2nd applicant and when they met, he told her that the victim had been killed because:

(1) he had put up resistance; and

(2) he had seen the faces of the attackers.

8. At the same meeting she was given the victim's identity card and there was the demand made for the $100,000 by the next Monday, but that sum was never paid.

9. After the applicants were arrested, they each admitted their part in this matter to the police and the victim's body was recovered from a place near Fanling on 19th July 1996.

Sentences below

10. The judge adopting counsel's submission, summarised the case, so far as the first two applicants were concerned in these words:

"What has happened here is that a group of basically good upstanding people, in a moment of bad judgment caused by anger, have stupidly taken the law into their own hands, although never intending the awful consequences that resulted."

11. In sentencing, the judge started by considering the maximum sentence for s. 17 offences. That is of course life imprisonment. He took into account rightly that the conspiracies must at least have contemplated the actual consequence as a possible outcome. The agreement was that the victim was to be beaten up to the extent that his injuries were serious. In those circumstances, he took 20 years as his starting point and then considered the mitigations.

The 1st applicant

It was advanced on the part of the 1st applicant that the offence was not entirely unprovoked, but the judge rejected that. Secondly, that this applicant had changed his mind. That was accepted by the prosecution and the judge gave it some weight. He then took into account, this applicant's personal circumstances and his good character. He was 53 years of age, a decent hardworking man before this offence, who had built up a successful business. His family had emigrated to Canada and had to come back because of the his arrest. That interrupted the child's education and had a serious affect upon his wife's health. The judge gave greatest weight to the plea of guilt at the earliest opportunity.

The 2nd applicant

12. So far as the 2nd applicant was concerned, she was 47 years of age, also a hardworking successful business woman of good character. A responsible daughter to her mother in Shanghai. A responsible mother to her 13-year-old son who now has to live in a welfare home. She had a long-standing relationship with the 1st applicant but never sought to break up his family and made every attempt to preserve his marriage. She had been accepted for migration to Canada to obtain wider opportunities for her son. These had now gone. Again she pleaded guilty at the earliest opportunity.

The 1st and 2nd applicants

13. The judge accepted the relationship but was unable to accept counsel's submission that they should not be held a responsible or should not be punished for the consequences of what they had done.

14. In the result the judge reduced the sentence from the starting point of 20 years to 10 years in respect of the first two applicants.

The 3rd applicant

So far as the 3rd applicant was concerned, he was not a man with a previously clear record, although the offences he had committed were some time ago. The judge considered a matter normally not made public, but it was mentioned below and so is now public. He had agreed to give evidence for the prosecution and had given a witness's statement. The potential risk to himself was taken into account and the judge accepted that but for the pleas of guilty, he would have fulfilled his promise. He took this into account as well as his plea of guilt. The judge thought it right to pass a sentence of eight years having reduced it from the starting point of 20 years.

The approach of the court

15. The primary focus of this Court in an appeal against sentence is upon the sentence actually imposed. If the sentence is within the correct range of sentences properly passed for that type of offence by the judge, so that it is neither wrong in principle nor manifestly excessive, this Court will not interfere.

16. Of course the judge's starting point and his reasons will always he examined with care, but even if the court does not agree with either the starting point or the reasons, the sentences will not be interfered with, if otherwise it is an appropriate sentence. Our main focus therefore is upon the sentences of 10 years for the first two applicants and 8 years for the 3rd applicant.

The applications

17. In submitting that these sentences are manifestly too high, counsel's main point is that the starting point of 20 years was itself manifestly excessive.

18. There can be no guidelines for s.17 offences of causing grievous bodily harm with intent nor for closely associated offences, such as conspiracy to inflict grievous bodily harm or counselling and procuring such an offence. The reason is obvious. The facts are so infinitely variable that the sentence is one for the judge to assess in all the circumstances. Previous cases with different facts in different circumstances are therefore of limited value. They remain examples of sentences passed by different courts in different circumstances, only representing the body of judicial opinion which establishes approximate tariffs.

19. We mention three cases of those which should be cited to us. The first is R v. NG Wah-kan, Criminal Appeal No 475 of 1987 (unreported). That was a s.17 case where two men were stabbed at the instigation of the accused. 12 years on each count concurrent was imposed after trial. Those sentences were upheld by this Court and were described as 'at the top of the bracket for this type of an offence involving serious violence'.

20. Secondly R. v. WONG On-lin [1995] HKCLR 225, also a s. 17 case in which the accused threw sulphuric acid over his wife's face. This Court said for that offence 15 years was an appropriate starting point. The sentence imposed and upheld by this Court after trial was 13 years.

21. Finally, R. v. WONG Kwai-fun [1993] 2 HKCLR 171, much relied upon by counsel for the first two applicants and adopted by counsel for the 3rd applicant. That was a case in which the accused counselled and procured a s. 17 offence by arranging for others to attack the brother of a man who owed him money with an iron bar. The request was 'to give him a good beating' and it was said that 'it doesn't matter whether hands and legs are broken'. In that case the victim died. The accused had a long and bad record. He fought the case dishonestly, with false documents and he suborned others to commit perjury. The sentence passed was 7 years for that offence, but it was a sentence passed with sentences for other offences, not only committed at the same time.

There was a consecutive sentence of 5 years for another offence and those sentences totalling 12 years were to be served consecutively with sentences that the accused was already serving. At least one of those was 4 years. The most important element in sentencing in that case was the question of totality. So far as the isolated sentence of 7 years is concerned, we think it very important that this sentence should not be regarded as an appropriate sentence for such an offence in isolation. As submitted by Mr. Bruce, for the prosecution, it was a sentence decided in the context of the other sentences he faced.

Conclusion

Turning to the present case. In taking 20 years as a starting point - that is the sentence that the judge would have imposed after trial - the judge was clearly in error. It was too high even for this bad case. In saying that we are not suggesting that there may not be other cases that do merit a 20-year starting point, but taking all the circumstances of this case into account, we consider that a starting point in the region of 14 years was appropriate.

22. So far as the first two applicants concerned, the offence could be properly categorized as an extremely wicked offence committed by two previously, honest, hardworking citizens.

23. The judge gave weight - as we must - to their good character, their previous records and the devastating effect which this has on their families. He gave some weight to the change of mind of the 1st applicant, but that must be limited as nothing was done to stop the offence after the change of mind.

24. It is said with some force that the 1st applicant had some reason for committing the offence and this was described as 'provocation'. What possible justification could there be for the applicants taking the law into their own hands and paying for a business colleague who was thought to have ill-treated them to be punished by the infliction of serious injury? There never can be such justification. Note what was said in Belinda Ruth Smith v. Bryant and Others (1989) 11 CAR (Sentencing) 49.

25. Inevitably in this type of case the sentence must have a deterrent element. The main mitigation must remain that each of the applicants had admitted their part in the offence and pleaded guilty at the first opportunity and therefore are entitled to the full one-third reduction.

26. So far as the first two applicants are concerned, we consider the judge did pass a sentence which was manifestly excessive, consequent upon him adopting too high starting point. Taking 14 years as a proper starting point and reducing that sentence for the plea and the other mitigating factors which we have mentioned, we think the proper sentence for each is one of 8 years imprisonment.

27. The 3rd applicant's case, it is somewhat different. The proper starting point in his case was also of course 14 years. He was entitled to his full reduction for an early plea, but also he offered to give evidence for the prosecution and it was accepted by the judge that he would have done if required - with all the risks to himself and the benefit to the public that entails. Taking all those matters into account in his case, the proper sentence is one of 7 years imprisonment.

In each case, therefore, we allow the applications. We treat the hearing as the hearing of the appeals. The 1st and 2nd applicants will have their sentences reduced from 10 years to 8 years. The 3rd applicant will have his sentence reduced from 8 years to 7 years. The appeals are allowed to that extent.

Representation:

Mr Clive Grossman SC & Mr Alan So (M/S Chong, Leung & Co.) for the 1st Applicant

Mr Clive Grossman SC & Mr R.J.J. Pierce (M/S Chong, Leung & Co.) for the 2nd Applicant

Mr W.N.C. Stirling assigned by DLA for the 3rd Applicant

Mr A.A. Bruce SC & Mr Daryanani (DPP) for the Respondent