HKSAR v. Wong King Wai

CACC 364/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 364 OF 2006

(ON APPEAL FROM HCCC NOS. 108 and 194 of 2005)

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BETWEEN

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Before: Hon Stuart-Moore Ag CJHC and McMahon J

Date of Hearing: 6 March 2008

Date of Judgment: 20 March 2008

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J U D G M E N T

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

Introduction

1.On 3 August 2006, the appellant (D2 at trial) was convicted on 3 counts following a trial before V Bokhary J and a jury.  He was sentenced to a total of 9 years’ imprisonment on 25 August 2006 against which he sought leave to appeal on the ground of the disparity between his sentence and the much lower sentence imposed on a co-defendant, Ng Ngo-hin (D7), whose role had been similar.  An important principle is involved in our decision and, accordingly, leave to appeal is granted.

2.The appellant was one of nine defendants (D1 and D3 - D9) at trial who, with the exception of D9, were variously convicted on the indictment.

3.The appellant was charged (with D1, D3 to D5 and D8) in the 1^st count with inflicting grievous bodily harm on Lau Mei-ying (the deceased) on or about 11 July 2004, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.  He and his co-defendants were convicted, by way of alternative, of assault occasioning actual bodily harm.

4.In the 2^nd count, the appellant was charged with the murder of the deceased, on or about 15 July 2004, with D1, D3, D5 to D7 and D9 but he was convicted, again in the alternative, together with his co-defendants (except D9) of manslaughter.

5.The 3^rd count which the appellant faced was a charge of preventing the lawful burial of the deceased’s corpse on or about 16 July 2004.  The appellant and all his co-defendants (D1, D3 to D5 and D7) on this charge pleaded guilty although it was not until after the prosecution had closed its case that the appellant did so.

The facts

6.Taking the facts as shortly as we can, the assaults on 11 July 2004 covered by the 1^st count had left the deceased with bruises to her eye, her arms and legs and with a nosebleed.  Seemingly, this occurred because the appellant, amongst others, took a dislike to her personality and behaviour.

7.On 14 July 2004, the assaults on the deceased, which carried on past midnight into 15 July 2004, continued but with greater intensity.  This time she was punched and kicked on her head, stomach and arms.  In addition, she was struck with a rod and a dough roller.  The deceased was left with more bruises and her face was swollen.

8.After midnight, D1 emerged from a bedroom and slapped the deceased and asked the others present, including the appellant, to lift up the deceased.  When they had done so, the deceased was struck with a dumb-bell five to seven times.  After this, she was punched, scratched and stripped naked.  She was then held down by the appellant and others while D1 and D6 stepped onto the deceased’s stomach about ten times and D1 struck her about five times with his elbow on the same part of her body making her cry out with pain.  Her face was then slapped and she was beaten up for about one or two minutes.  After this, D1 told the others present to beat up the deceased again.  The beating took another five or ten minutes by which time she was covered in bruises and scratches.

9.After D1 had delivered a final slap to the deceased and banged her head against a glass pane, some of the defendants went off to have breakfast. When they returned, they could get no response from the deceased.  By the time the deceased’s body was discovered on 22 July 2004, it was too late for the pathologist to determine a cause of death because of its advanced state of decomposition.

10.The appellant had been involved also in the disposal of the body (count 3) which it seems was taken in a carton on a trolley and dumped in a ditch after several bottles of corrosive liquid had been poured onto the body to speed up the process of decomposition.

Sentencing

11.The judge, in sentencing, noted that the assaults on the deceased, the subject of counts 1 and 2, were in neither case carried out with intent to cause really serious injury.  She continued by saying:

“But I cannot ignore the fact that each assault was carried out over a considerable period, that each involved a number of persons assaulting one person, that each was plainly cruel and that the second [assault] resulted in the death of a human being.  As a result of the conduct under count 3, the body of this human being was dumped on a hillside to decompose.”

12.Amongst the matters which the judge said she had in mind as being relevant to sentence were the following:

“5.     I bear in mind the age of each of you at the time of these offences.  For those of you who have no previous conviction, I bear that in mind.  I have considered, in respect of each of you, the report or reports on you which I have received.

……

7.       I bear in mind, in respect of each of you, everything urged in mitigation on your behalf by your counsel.

8.       I will accord a one-third discount for the pleas of guilty tendered by the 3^rd accused and 5^th accused to AOABH [assault occasioning actual bodily harm] under Count 1.  I will accord a one-third discount for the guilty pleas entered by the 1^st, 2^nd, 3^rd, 5^th and 7^th accused on Count 3.

9.       Before the trial commenced, the 1^st, 3^rd, 5^th, 6^th and 7^th accused, who have each been convicted of manslaughter by the jury, had each offered to plead guilty to manslaughter on Count 2.  Their offers were rejected by the prosecution.  At the trial they each asked for an outright acquittal on this count.

10.     The 1^st, 3^rd and 5^th accused also offered to plead guilty to AOABH on Count 1. These offers too were rejected by the prosecution.  At the trial, the 1^st accused asked the jury for an outright acquittal on Count 1.  The 3^rd and 5^th accused each asked the jury to convict them of AOABH on this count.

……

I will give the 3^rd and 5^th accused a one-third discount for AOABH.  All things considered, I will give the 1^st accused a discount in the order of 15% for AOABH and give a similar discount to the 1^st, 3^rd, 5^th, 6^th and 7^th accused for manslaughter.

11.     There will of course be a one-third discount on Count 3 of preventing lawful burial for each accused who pleaded guilty to that offence, namely the 1^st, 2^nd, 3^rd, 5^th and 7^th accused.  I will ignore any lateness in any of the pleas on Count 3.”

13.A little later, having adopted a starting point of 9 years’ imprisonment for the manslaughter offence in count 2, the judge sentenced D1 to 9 years’ imprisonment.  Then, with regard to the remaining defendants, including the appellant, she said:

“17.   As for all the other accused, the principal mitigation available includes the pleas and offers to plead which I have already adverted to and the following. For all of you, there is your relative youth, and the influence exercised over you. For the 4^th, 6^th, 7^th and 8^th accused, there are also your clear records. For the 3^rd and 6^th accused, there are also your offers to give evidence for the prosecution.”

14.When sentencing the appellant, the judge said:

“18.   Second accused, you were 18 years and one month at the time. Despite the Pre-sentence Assessment Officer’s opinion that you are suitable for detention in a Training Centre, I regard imprisonment as the appropriate course in all the circumstances. You did not offer to plead to AOABH or manslaughter but you did plead guilty to preventing lawful burial. The sentences passed on you are 16 months on Count 1; 8 years on Count 2; and 2 years and 3 months on Count 3. I apply the totality principle. If your sentences were all consecutive, your total would be 11 years and 7 months. As a further act of mercy to you, I will avoid sentencing you more severely than the 1^st accused. I order as follows. The Count 1 sentence will be concurrent with the Count 2 sentence. The Count 3 sentence will be consecutive to the Count 2 sentence to the extent of 1 year. The result is 9 years. I sentence you to imprisonment for 9 years.”

Discussion

15.Not surprisingly, Mr Mackay on the appellant’s behalf made no criticism of the 9-year starting point the judge had adopted for manslaughter or the 4-year starting point for the offence in the 3^rd count.  The deceased had suffered a cruel death.  She had been a defenceless and innocent victim of mindless violence at the hands of a cowardly gang of at least eight youths.

16.Mr Mackay’s main complaint initially lay with what he submitted was the disparity in the appellant’s sentence when compared to the sentences imposed on all his co-defendants with the exception of D1 who had orchestrated the gang’s activities.  This contention had sensibly, by the time of the hearing on 6 March 2008, been abandoned in favour of a disparity argument simply with regard to the sentence of D7 who was the same age as the appellant but whose sentence totalled 5½ years’ imprisonment as opposed to 9 years in the case of the appellant.

17.Clearly, from the judge’s sentencing remarks, the appellant’s mitigation differed materially from D7’s in certain respects but in order to ascertain whether the appellant could properly be said to hold a genuine grievance on the ground of the disparity between D7’s sentence and his own, we have thought it necessary to look in depth at the sentencing of other co-defendants as well. In doing so, we have been assured by Mr Robert S K Lee who was not one of the trial counsel and by his learned junior, Ms Kathie Cheung who was junior counsel at trial, that we have been given the full picture of what occurred in the court below and that nothing relevant to the mitigation of any of the defendants has been omitted.  We emphasise this as it was immediately apparent, as Mr Lee accepted, that a serious error had occurred in the sentencing of D7, which has understandably been seized upon by the appellant in these proceedings, but it is only right that this should be seen in its full context.

18.We have also taken the precaution of listening to the audio tape of the mitigation in D7’s case to ensure that there were no special circumstances to be taken into account beyond those about which we have been told.  There were none.

19.For present purposes, we can leave aside the 13-year old, D9, who was acquitted altogether and D8 who was charged only in the 1^st count and convicted of assault occasioning actual bodily harm for which he was ordered to undergo a period of training in a Training Centre.

20.The picture which emerged was that D1, who was 21 years of age when he committed these offences, was the oldest of the group.  As we have set out already, the judge found him to have exercised influence over all the others.  D1 had offered to plead guilty to assault occasioning actual bodily harm (count 1) and manslaughter (count 2).  His sentences on these counts were ordered to run concurrently but his 7½-year sentence on count 2 reflected a 1½-year discount for the plea he had offered.  With a sentence of 2 years and 8 months on count 3 of which 18 months was ordered to run consecutively, D1’s overall sentence became 9 years’ imprisonment.

21.The appellant’s sentence was the same as D1’s in its totality but as the judge had correctly pointed out, whereas D1 had offered to plead guilty to the alternative offences of which he was ultimately convicted in counts 1 and 2, the appellant had maintained pleas of not guilty to counts 1 and 2 throughout and he had pleaded guilty at a very late stage to count 3.  He was 18 years and 1 month old at the time of the offences.  The judge imposed sentences of 16 months and 8 years’ imprisonment on counts 1 and 2, respectively, which she ordered to run concurrently.  On the 3^rd count, the appellant received a sentence of 2 years and 3 months of which 1 year was made consecutive.

22.All of the remaining defendants who were ultimately found guilty of manslaughter had, as the judge recognised, offered to plead guilty to manslaughter but their offers had been rejected.  As they had gone on to fight the case on the basis that they were not guilty, the judge quite properly said that she would give each of them a discount of only “15%” although this appears to have been rounded up to a discount of 18 months if D1’s sentencing is a true example of the judge’s thinking.

23.The judge did not, unfortunately, specify to what extent, if any, she had given credit for various other aspects of the mitigation advanced on behalf of D3 to D8 (inclusive) although we consider it can be safely assumed that the ages of the younger members of the group were important.

24.Significantly, also, the judge had referred to D3 and D6 as having offered to give evidence for the prosecution.  In addition, the judge referred to the clear records of D4 and D6 to D8.  However, again, she gave no indication of the individual discounts accorded to them in the sentencing process which has meant that we have been left to guess at how the other sentences were calculated.

25.D3 was 15 years and 1 month old at the time of these offences.  His sentences were 7 months (on count 1) and 5 years’ imprisonment (on count 2) to run concurrently.  A sentence of 20 months, with 9 months to run consecutively, was imposed on count 3, making 5 years and 9 months in total.

26.It seems to us, doing the best we can from the material before us, that the discounts the judge must have given D3 for the pleas of guilty he offered on counts 1 and 2, the plea of guilty to count 3 and D3’s offer to give evidence for the prosecution, will have added significantly to the reduction of his sentence well below the level of the starting points taken on those counts.  When his age is also considered in the light of D1’s “influence” over all the others in the group, a sentence of 5 years and 9 months’ imprisonment for D3 appears to be appropriate.

27.D4 was aged 15 years and 11 months when these offences were committed.  The total sentence of 3 years’ imprisonment which he received on counts 1 and 3 is not to be compared with the appellant’s sentence as D4 was not involved in the manslaughter offence.

28.D5 was 14 years and 10 months old when the offences took place and his age was plainly a factor in his sentence for manslaughter being 5 years and 6 months.  The sentence on count 1 of 8 months was ordered to run concurrently with the sentence on count 2 and the sentence of 1 year and 10 months on count 3 was ordered to run consecutively to the extent of 10 months, making an overall term of 6 years and 4 months.  Again, the sentence was appropriate having regard to the combination of factors in his case.

29.D6 was 15 years old and 11 months when she committed the offence in count 2.  She was not concerned in the other offences.  Bearing in mind that she had offered to give evidence for the prosecution, it is not surprising to find that her sentence was set at 4½ years’ imprisonment, slightly below the level of D3’s sentence who was in more or less in the same position as D6 save that D3 had to be sentenced on the two additional counts.

30.We now come to the sentence imposed on D7.  He was 18 years and 1 month old at the time of the offences in counts 2 and 3.  He was not concerned on the 1^st count offence.  D7 received sentences of 5 years and 2 years’ imprisonment on counts 2 and 3, respectively, with 6 months of the sentence on count 3 being ordered to run consecutively.

31.It is immediately apparent that D7 escaped extremely lightly in view of his age.  We bear in mind, D7’s offer to plead guilty to count 2 and his timely guilty plea to count 3.  We add to these factors the reduction of a year from the 9-year starting point on count 2, adopted by the judge in the appellant’s case, to reflect D1’s “influence” over the others.  We are left to assume, therefore, that the judge gave the other defendants a similar discount, although this was not stated, particularly in D7’s case as he was exactly the same age as the appellant.  D7’s sentence on count 2 would have been reduced to 8 years’ imprisonment on this account and, assuming he was given an 18-month reduction for his offer to plead guilty to manslaughter, this would have further reduced his sentence to 6½ years.  No reason was given for the imposition of 5 years’ imprisonment beyond the words used in sentencing D7 which were as follows:

“23.   Seventh accused, you were aged 18 years and one month at the time.  Despite the Pre-sentence Assessment Officer’s opinion that you are suitable for detention in a Training Centre, I regard imprisonment as the appropriate course in all the circumstances.  The sentences passed on you are 5 years on Count 2 and 2 years on Count 3.  I apply the totality principle.  If your sentences were consecutive, your total would be 7 years.  I order as follows. The Count 3 sentence will be consecutive to the Count 2 sentence to the extent of 6 months.  The result is 5 years and 6 moths.  I sentence you to imprisonment for 5 years and 6 months.” (Appeal bundle p. 138)

32.Mr Lee floated the possibility that the judge may have arrived at 5 years’ imprisonment for manslaughter in D7’s case by allowing 1½ years by way of an additional discount for his previous good character, a more encouraging probation officer’s background report than in the appellant’s case, an effort to perform cardiac massage on the deceased when she was discovered in a lifeless state and the fact that D7 only faced sentence on two out of the three counts.  If so, however, this was never spelt out and a discount on any of these grounds would, in any event, have been somewhat artificial.

33.Taking D7’s good character first of all and comparing his position with the appellant’s, the difference lay in a single conviction on 12 May 2003 when the appellant received an 18-month probation order at Kowloon City Magistrates’ Court for an offence of handling stolen goods. In no circumstances could such a conviction have caused any distinction being made between the sentences imposed on D7 and the appellant for manslaughter.

34.We make a general observation about the respondent’s approach to ‘good character’ or ‘clear record’ as a mitigating factor which, to an extent, it appears may have played some part in the judge’s sentencing exercise.  Mr Lee had suggested, both in his written and oral argument, that credit should be given for the absence of previous convictions.  He drew support for that contention from the 20-year-old decision in R v Chan Ka-choi [1988] 1 HKLR 530 at 534 which he had found still being cited by the learned authors in Sentencing in Hong Kong [5^th edition] at page 79 albeit this old authority is qualified by references to later cases which set out modern sentencing practice.  We regret that such a citation, which plainly misled Mr Lee, remains in the current edition when the approach to a clear record has long since changed.

35.Personal circumstances including a clear record may, of course, have a bearing on mitigation for offences which are comparatively minor in nature.  However, for serious offences we have indicated time and again that, with the introduction of the ‘one-third rule’ which in usual circumstances provides a discount of a third of the prison sentence that would normally have been imposed after trial following timely pleas of guilty, there should be no further discount for a clear record unless evidence of positive good character is forthcoming (see: HKSAR v Yan Wai-ming CACC 417/2002; HKSAR v Leung Shuk-man [2002] 3 HKC 424 at 427-428; Secretary for Justice v Tso Tsz-kin [2004] 2 HKC 139 at 144).

36.For the avoidance of doubt, we should add that any impression which may have been created in HKSAR v Xu Xia-li and Anor [2004] 4 HKC 16 at 27, that the absence of a previous criminal record may, in itself, still be a ground for reducing a sentence of imprisonment, has been corrected by this court in HKSAR v Chen Zhen-chu CACC 433/2006 where Yeung JA, giving judgment said (at paragraph 39):

“39.   In Xu Xia Li (supra), the defendants conspired with others to launder $11 million and $3 million respectively.  A starting point of three years’ imprisonment was considered proper although the Court of Appeal somehow decided, against the weight of authority, to reduce their sentences by three months on account of the defendants’ clear records. As to this last aspect, we emphasise that the decision in Xu Xia Li must be treated as a wholly individual decision, which should not be regarded as having any general application.”

37.Taking the other factors raised by Mr Lee as possibly having made an impression on the judge such as to cause her to reduce D7’s sentence to the level at which it stands, these were in our opinion all matters of a trivial nature in the context of a case of this importance. Whilst it may be said that D7’s probation report was slightly better than the appellant’s, the distinction is a fine one.  The reference in the case papers to D7 having performed cardiac massage was also something of a red herring.  This was supposedly done on D1’s instructions after D1 had woken up D7.  In any event, according to the version given by D7 which appears in his probation report, the deceased had passed away before he could perform first aid on her.  The last matter raised in this context was that D7 was not involved in the comparatively minor assaults in count 1.  Bearing in mind that the judge had imposed concurrent sentences on all of those involved in both counts 1 and 2, we doubt that this factor was one which had any significance.

38.Mr Lee suggested that while none of these features of the evidence could in isolation have affected D7’s sentence, they might have done so when taken in combination.  We disagree.  In our opinion, these factors, when taken together, could not have made the huge difference between D7’s sentence and the sentence imposed on the appellant.

39.It has, as we have said, been accepted that a serious error occurred in the sentencing of D7.  Perhaps the best illustration of this is that although D7 was three years older than D3 and was someone who, unlike D3, had not offered to give evidence for the prosecution, he has ended up with a sentence of precisely the same length as D3 for manslaughter.  A further example to illustrate the mistake made in D7’s sentence is that his sentence was 6 months less than for D5, the 14-year old.

40.As we have effectively stated earlier, D7’s sentence ought to have been lower than the appellant’s by at least 18 months to reflect the major difference between them, namely, the offer to plead guilty to manslaughter at the outset of the trial.  A further difference which could possibly justify a distinction in sentence was that D7 faced only counts 2 and 3 whereas the appellant was involved in the earlier assaults covered by count 1 as well.

41.The question for us is how, at this stage, the mistake in D7’s case can be resolved in a manner which will remove a sense of grievance on the part of the appellant.  Such disparity as appears to exist is plainly, with respect, the result of a fundamental sentencing mistake as, when all the other sentences aside from D7’s are examined, they sit fairly and sensibly in comparison with each other and also with the appellant’s sentence.  An appreciation of this goes some of the way towards reducing a sense of grievance as it is not so much that the appellant has been treated unequally and unfairly compared to the others but rather that D7 has benefited from an error for which there is no obvious explanation at all.

42.Mr Lee, while accepting such an error had been made, was unable to explain why no review of sentence for D7 was ever applied for when this would have settled the problem without difficulty.  As it is, Mr Mackay has been left asking this court to reduce the appellant’s sentence so that it is in line with D7’s which is effectively another way of asserting, in the words of the well-known phrase, that ‘two wrongs make a right’.  Plainly, the answer is not as simple as that.

43.The circumstances in which disparity as a ground of appeal will either succeed or fail vary infinitely and these are succinctly set out in Sentencing in Hong Kong [5^th edition], Chapter 18 (at page 195) and in Archbold Hong Kong [2007] paragraphs 5-83 to 5-89.  Obviously, the principal aim of the sentencer, where more than a single offender has engaged upon the same crime, is to arrive at a sentence which, if not exactly the same for both, fairly takes into account any relevant and significant difference in the degree of their criminality and/or their personal circumstances.  The well-known test to be applied, as expressed by Lawton LJ’s in R v Fawcett [1983] 5 Cr App R(S) 158 at 161 was:

“… would right-thinking members of the public, with full knowledge of the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice?”

This test, when applied in the present case, must be answered in the affirmative. 

44.We are satisfied that the appellant can justifiably be said to feel a sense of grievance at what has occurred.  We are also satisfied that just as the sentence the appellant received was one which he richly deserved, D7’s sentence was, having regard to his circumstances, wholly inappropriate for an offence of this gravity.  Putting these two factors into the balance, whilst the realisation that D7’s sentence was passed in error may go some of the way towards alleviating the appellant’s sense of grievance in the sense that he might equally find himself entertaining feelings of envy that he was not himself the beneficiary of the same mistake, we do not consider that this alone could do justice to the situation which has arisen in this case.  We consider, therefore, that some reduction to the appellant’s manslaughter sentence is called for to enable him to put aside any lingering sense of grievance despite the fact that any downward adjustment of his sentence will mean that he will to some degree be benefiting from the mistake made in the sentencing of D7.

45.Briefly, we need also to consider the appellant’s sentence on the 3^rd count which was made consecutive to count 2 to the extent of 12 months.  The judge said, without giving a reason, that she would not take into account the lateness of the appellant’s guilty plea on this count.  However, all the other defendants convicted of manslaughter (aside from D1 who was in a higher bracket of criminality) received a shorter consecutive element in their sentences on count 3 although, for reasons which again are not apparent, the consecutive element in their sentences varied between 9 months in D3’s case, 10 months in D5’s case and only 6 months in D7’s case.  Plainly, the sentence on count 3 in D7’s case was in error and again we have been unable to establish any rational basis for it.  The consecutive element of 12 months in the appellant’s sentence on count 3, while remarkably merciful, was, as it turns out, properly made longer than in D3 and D5’s cases.  The judge had, contrary to sentencing practice, failed to recognise that a late guilty plea to this count should not have attracted a full one-third discount.

46.Accordingly, for the reasons we have given, we shall allow the appeal to the extent that the appellant’s sentence on count 2 is reduced to 7 years’ imprisonment.  In all other respects, the sentences will remain unaltered.  This will leave the appellant with a total sentence of 8 years’ imprisonment to serve.

Mr Robert S K Lee, SADPP and Ms Kathie Cheung, SGC, of the Department of Justice, for the Respondent.

Mr Graeme Mackay, instructed by Messrs Louis K.Y. Pau & Co., assigned by Director of Legal Aid, for the Appellant.