CRIMINAL CASE NO. 429 OF 2010
COURT: Sometime around 4 am on 18 August 2010, in Kimberley Road, in Tsim Sha Tsui, two young men were stabbed, one fatally and the other suffered life-threatening injuries.
Cheung Kin-lung, who was aged 24 at the time, died later that morning at the Queen Elizabeth Hospital. Wong Wing‑yiu, who was aged 28, was also admitted to the Queen Elizabeth Hospital with stab wounds to the back and buttocks. His condition was critical. He required emergency surgery and was subsequently admitted to the intensive care unit. He was eventually released on 25 August of that year.
The defendant was charged with the murder of Cheung Kin‑lung, who I will refer to hereafter as “the deceased” and wounding with intent to cause grievous bodily harm in respect of the injuries sustained by Wong Wing-yiu.
Prior to the stabbings, all of the persons I have referred to were at the So So Club. On 17 August, which is the first day of this trial, the defendant pleaded not guilty to murder but guilty to manslaughter in respect of that charge and that plea was tendered on the basis that it was manslaughter by an unlawful and dangerous act. He also pleaded guilty to the section 17 wounding charge.
The prosecution was prepared to accept these pleas in satisfaction of the indictment; that was, in all of the circumstances, I am satisfied, a proper course for them to adopt. Whereas there was evidence that the person who stabbed Wong Wing-yiu did so deliberately, a witness saw a person stab him and there was evidence that the defendant was armed with a knife at that time. There was no direct evidence to establish that the defendant had deliberately stabbed the deceased intending to cause him grievous bodily harm. There was, however, evidence from which a jury, properly directed, could infer that the defendant had caused the death of the deceased while brandishing a knife in the course of a confrontation with other persons.
The Summary of Facts admitted by the defendant is detailed and highlights, in part, some of the inconsistencies in the accounts given by the various witnesses to the events at the So So Club and later in Kimberley Road.
Turning to those facts, the So So Club is located on the 10th Floor of No. 1 Knutsford Terrace, in Tsim Sha Tsui. It is, as one would appreciate from its name, a nightclub. On 18 August 2010, the defendant, together with a group of his friends, went to that nightclub arriving just after midnight. Amongst that group was Wong Wing-yiu, who is referred to throughout the statements as Jeffrey Wong. Another friend was named Jerry Lee, who was PW1 on the original indictment.
This group, together with others, remained until closing time just before 4 am, during which they engaged in the usual round of drinks, dice games and the like. The defendant had not previously met Jeffrey Wong, but it appears on that night they were chatting amiably. Jerry Lee described how towards the end of the evening the defendant produced from his pocket a folding knife which he showed to him. Jerry Lee, quite naturally, became very upset by this, swore at the defendant and told him to put the knife away.
In one of the three statements made by Lee, he told the police that the defendant had told him he had the knife for protection. In another statement he made no reference to this. The defendant, through his counsel, has said that this was not his reason for possessing the knife in the nightclub that night.
Mr Delaney told me that the defendant’s instructions were that the knife was an all‑purpose folding knife, which he regularly used in his home for cutting fruit, vegetables, opening bottles and the like. On this night, he had inadvertently taken it with him and had in fact taken it from his pocket for no other purpose but to show it to Jerry Lee. Whilst I may have some reservations about that account, the fact remains that he was in possession of a sharp knife on that night in a nightclub. This much is evidenced by the fact that when he was told to put it away by Jerry Lee, he accidentally cut Jerry Lee’s finger.
The evidence, taken as it is from the Admitted Facts, shows that that evening there were at the So So Club two expatriate males, one of whom was identified by the name of James Scarlett. That evidence suggests that towards the end of the evening Scarlett and the other male were, in all probability, affected by alcohol. In the case of Scarlett, there is evidence that he had behaved aggressively to others not in the defendant’s group prior to closing time.
As the patrons left the nightclub shortly before 4 am using the lift to the ground floor, the defendant and some of his group found themselves in the lift with Scarlett and the other expatriate male. There was a verbal confrontation. After each group alighted from the lift at the ground floor. However, Scarlett and his group left first. The defendant, no doubt himself emboldened by the consumption of alcohol, swore at Scarlett as they left to walk down the slope of Knutsford Terrace. Consequentially, Scarlett ran back up to the defendant and both began pushing one another. They were sensibly pulled apart by members of their respective groups and once more appeared to be going their respective ways.
By this time, both groups were in the vicinity of Kimberley Road; one heading toward Nathan Road, that is the defendant’s group, one heading towards Observatory Road, that is Scarlett’s group. For reasons which are not apparent, the defendant then brought out and showed to Jeffrey Wong the knife he had shown Jerry Lee in the nightclub earlier than evening.
In the Admitted Facts it is said that the defendant told Jeffrey Wong, I quote, “I will stab at him if he keeps on quarrelling”, presumably a reference to Scarlett. The defendant does not recall using these words but accepts that he had then indicated that the knife could be a factor in any further confrontations, either to scare or intimidate. He was not clear about this. Nothing turns on this because, as will be seen shortly, after this, Scarlett and his group again confronted the defendant and his group.
The knife was used by the defendant in this confrontation to devastating effect. This is what is said in paragraph 35 of the Admitted Facts, and I quote:
“The defendant, in the chaotic situation and faced again with the approaching group, produced his knife and unfolded the blade. The defendant, with his knife in his hand, waved it wildly in the direction of the approaching Scarlett and his group. Again, there was some pushing and shoving and arm-throwing between the parties. The defendant brandished his knife in close proximity to the people who had rapidly approached in the ensuing melee. The defendant stabbed the deceased in the stomach area and to his left hand. The pathologist considers that wound to be a defensive injury incurred whilst attempting to ward off the knife.”
It is upon this basis that the defendant offered to plead guilty to manslaughter by reason of an unlawful and dangerous act; namely, the brandishing of the knife at the approaching group. Integral to this is the proposition advanced on the defendant’s behalf and accepted by the prosecution that there was insufficient evidence to establish that he had intentionally plunged the knife into the deceased’s stomach, but that he did stab him.
No such considerations apply to the section 17 wounding charge. The latter part of paragraph 35 of the Admitted Facts reads, and I quote:
“Shortly after stabbing the deceased, the defendant, with the intent alleged in the 1st count, used his knife to stab in front of him the nearby Jeffrey Wong.”
That intent, for the avoidance of doubt, was to do grievous bodily harm to Jeffrey Wong, one of those with whom he had earlier been socialising. Again, I will return to this matter later.
After the deceased and Jeffrey Wong had received their respective stab wounds, the two groups again parted. The defendant and Jerry Lee helped Jeffrey Wong into a taxi, initially intending to go to Mongkok. But upon realising that Jeffrey Wong was bleeding heavily, the driver was instructed to go to the Queen Elizabeth Hospital quickly. In the meantime, an ambulance had been called to attend to the deceased. He was also conveyed to the Queen Elizabeth Hospital. Both Jeffrey Wong and the deceased underwent emergency surgery. Jeffrey Wong survived and the deceased did not.
Both the deceased and Jeffrey Wong sustained very serious injuries. In the case of the deceased, apart from the deep cut wound to his hand, he had one stab wound to the stomach. That wound was 6 centimetres in length and penetrated to a depth of 12 centimetres. This caused massive bleeding as it cut into his liver, pancreas and severed three major blood vessels. Despite the emergency surgery, he died at about 11 am that day.
In the case of Jeffrey Wong, he, like the deceased, was admitted to Queen Elizabeth Hospital in a critical condition. He had stab wounds to his back and buttocks. Two of the stab wounds to his back had lacerated his liver. He was, however, eventually discharged on 25 August 2010.
I am today advised by reference to a witness statement prepared this afternoon that his present condition is such that whilst he has not made a complete recovery from the injuries he sustained, he has returned to his work as a hairstylist. He has ongoing difficulties being unable to run or carry heavy objects. He will have a further follow-up examination at the end of this month. He indicates that apart from the above and an issue with respect to having to urinate more frequently, he has no major sufferings as a consequence of his injuries, albeit that his capacity for employment has, in the time elapsed, been reduced.
Returning to the situation of the deceased, a post-mortem examination determined that he had died from profuse bleeding. A toxicology analysis revealed in the presence of his blood a drug named as nimetazepam. That is a drug which is not uncommonly abused by young persons as a recreational drug.
On 18 August this year, Mr Delaney, on behalf of the defendant, has addressed me at some length and I add, entirely properly, as to a number of matters not only surrounding the events leading up to the stabbings, but also the personal circumstances of the defendant. I have been provided with a folder of documents which contains testaments to the character of the defendant and the esteem in which he is held by his professional colleagues and others.
It is with no disrespect to the authors of these documents and Mr Delaney that I do not intend to traverse much of this material, for in truth, it can properly be summarised as follows: the defendant was and is a dedicated capable educator, a primary school teacher by occupation who is admired and respected by his colleagues, his superiors and his friends. Many of those who wrote on his behalf specifically refer to the fact that the offences committed by him are, in their opinion, entirely out of character and many confirm the deep remorse he expresses through his counsel in court.
Apart from these testimonials as to the defendant’s positive good character, Mr Delaney, on his behalf, emphasises the following matters in mitigation, amongst other things:
(1) His plea of guilty, which was offered some time ago and in the knowledge that the prosecution’s case was entirely circumstantial insofar as the murder charge was concerned. Mr Delaney says that this is a clear indication of genuine remorse, an observation with which I agree;
(2) Mr Delaney emphasises that the offences were not premeditated and they were out of character. Again, I agree, but I add the caveat, it must be said that irrespective of why it was that he had the knife with him that evening, it was his conscious decision to take it out and use it as he did.
Mr Delaney emphasised that shortly prior to these stabbings, the defendant was subjected to an unprovoked verbal and physical assault by Scarlett and that, at the time of the stabbings, this was about to be revisited. Scarlett’s behaviour, as described by the witnesses, was undoubtedly aggressive and antisocial. However, on his own admission, the defendant was not without fault. He directed provocative abuse towards Scarlett prior to the first encounter.
As to the fact that the victim had consumed nimetazepam prior to his being stabbed, Mr Delaney invites me to conclude by this and by reference to a document tendered in mitigation headed, “Expert report on nimetazepam,” that possibly the deceased had himself been behaving aggressively and antisocially towards the defendant. I am not prepared to adopt such a course. Scarlett was undoubtedly behaving in such a way, but there is simply no evidence to support any suggestion that the deceased was behaving in like manner. Jerry Lee has described those in Scarlett’s group as, on both occasions, trying to pull him away, but he did say that that group was finally rushing towards them.
There has been no description given of the behaviour of the deceased or, indeed, how it was or where he was in relation to Scarlett or the defendant other than in that chaotic second encounter he was stabbed. None of the witnesses have suggested that any person in either group was armed with a weapon other than the defendant.
Mr Delaney invites me to consider that possibly the defendant apprehended an attack with a bottle because some three years previously he had been the victim of such an attack when visiting Thailand and that, on this occasion, he had resorted to the use of the knife in anticipation of such an attack to defend himself. I have to say that there is simply no evidence upon which such an assumption could be properly made by me on his behalf.
The defendant was arrested some 36 hours after the events. He had been alerted to the fact that the police wished to speak to him. Upon his arrest he denied killing anyone but otherwise made no statement. In the interim between his departure from the Queen Elizabeth Hospital where he had travelled with the injured Jeffrey Wong, he had disposed of the knife and had washed his clothing.
As I have indicated earlier, all of the information provided to me for the purposes of sentencing consistently emphasises that the defendant’s conduct on this night was entirely out of character. Up to that point in time, he was a dedicated responsible professional, respected and admired by his peers and pupils alike. He was a tertiary educated young man with a predictably successful future, all of which he now accepts he has, by his conduct, destroyed or indeed, at the very least, seriously jeopardised.
One cannot say with any confidence why he took the knife out that night and used it as he did. One can, however, see starkly the consequences. Leaving aside his own circumstances, the life of one young man has prematurely ended, the life of another taken to the point where there was at that point in time a very real risk that he would also die.
Today, I have before me a letter written by a Miss Celia Cheung, who is the sister of the deceased. It suffices to say that she, on behalf of that family, informs the court of the tragic consequences to the family of the loss of their son and brother. It has apparently, and quite understandably, had a very significant impact upon them.
It is now incumbent upon me to sentence the defendant for the offences to which he has pleaded guilty. Again, in the course of his admirable mitigation on behalf of the defendant, Mr Delaney has provided to me a bundle of authorities. They deal, in part, with the approach taken in other courts to sentencing for the manslaughter charge and likewise for the section 17 wounding charge.
It must be said at the outset, that unlike other defences which reduce murder to manslaughter, unlawful and dangerous as manslaughter is, a defence which acknowledges that the actions of an accused which directly result in the death of another are absent any intent to cause that death or to commit grievous bodily harm. It is upon this basis that I will approach the sentencing for manslaughter in this case.
It has long been accepted in Hong Kong and in other jurisdictions that the degree of culpability of an accused convicted of the manslaughter of another may vary markedly from one case to another. It may vary by reason of the facts or, indeed, the basis upon which a partial defence is engaged. It may occur when all of the elements of the offence of murder are established or even admitted, for example in the case of provocation.
At one end of the scale there are those cases which have been variously described as the one punch death type of case, where an apparently minor assault results in the unintended death of a victim, which brings me to consider where, in the scale of criminality, does this defendant’s offence fall. I am satisfied that it is not at the lower end of the scale. The defendant was armed that night with a lethal weapon. Whether he took it with him to protect himself or had it inadvertently matters not, because it was his choice whether he took it out to use it. Prior to the second incident with Scarlett, he took the knife from his pocket, opened it and made it ready to use, which he did as I have earlier indicated, with devastating effect. This was not an accidental death, nor was it a case of self-defence.
Dealing with the approach to the section 17 wounding charge, as I have previously stated, the admission made by the defendant that he intended to stab Jeffrey Wong that night, qualified only to this extent in mitigation that he mistook Jeffrey Wong for one of Scarlett’s group, taken together with all of the aggravating factors, namely, the conscious decision to take out the knife and use it, the fact that he stabbed not once but three times with devastating consequences for Jeffrey Wong which resulted in him being admitted to hospital in a critical condition, to my mind, places this offence at the more serious level for offences of its type.
Some of the authorities to which I am referred by Mr Delaney deal with what I have earlier described as the single punch type of manslaughter and, in England in particular, there are two cases of R v Andrew Alexander Roberts [2006] 1 Cr.App.R 183 and R v Andrew Furby [2006] 2 Cr.App.R 65. These, by reason of their facts, are not proper comparables with the instant case. Here the defendant chose to arm himself with a knife. However, in Furby there are observations which are, in my opinion, pertinent to the circumstances before me today. The Lord Chief Justice in Furby observed:
“The judge was right to say that such cases as this present a difficult sentencing exercise.”
That is an observation with which I agree. He went on further to say this:
“A sentence must reflect the seriousness of the offence. The seriousness depends on the culpability of the offending conduct and on the harm that has resulted from it.”
Shortly after, in the same passage, he said this:
“It is right, however, that the length of the sentence must reflect the culpability of the offender. This can vary widely in the case of manslaughter, from violent or reckless behaviour that foreseeably carries the risk of causing death, to a case where death results for an unlawful act as a consequence of a fortuity which the offender could not reasonably have foreseen. Death resulting from a single punch usually falls into this category.”
I observe in respect of that passage that the defendant’s conduct in the instant case falls into the former category and not the latter. I have also been referred to a number of decisions of the Court of Appeal in Hong Kong, none of which is directly comparable with the facts of this case. What I am able to discern from all of the authorities to which I have been referred is the fact that a knife is used by a defendant is a significant aggravating factor, irrespective of the charge and the end result.
It is incumbent upon a sentencing judge to balance the aggravating and mitigating factors in order to assess the criminality. There are in the case of this defendant in his favour a number of mitigating factors. I will not address each and every one and apportion weight to them; but suffice to say that the fact that the defendant was not the initial aggressor as events unfolded that evening is one such mitigating factor. His previous positive good character is another, as is the fact that his conduct appears to have been out of character. His plea of guilty is, however, the most significant mitigating factor of all.
On the other hand, his willingness to take out and use the knife as he did is, as previously stated, a serious aggravating factor.
I consider that, in addition to the above matters, any sentence passed must reflect the fact that whilst the defendant accepts that he caused the death of the victim by inflicting this one devastating wound, he did not at that time intend to cause him grievous bodily harm.
Insofar as the section 17 wounding charge is concerned, whilst the mitigating and aggravating factors previously indicated equally apply, there is the added aggravation that the defendant accepts that he deliberately plunged the knife into Jeffrey Wong three times in the belief that it was one of Scarlett’s group. He did so intending to cause grievous bodily harm, which he did. It is, indeed, fortunate that Jeffrey Wong survived because had he not, a conviction for murder would have been the probable outcome.
As to my approach for sentencing, I will say at the outset that I intend to adopt a starting point for each of the counts. It would seem to me to be artificial to do otherwise in the circumstances of this case. In the case of the manslaughter, taking all the mitigating and aggravating factors into account, I believe that a starting point for sentence after trial of 10 years’ imprisonment is appropriate. This should be discounted to 6 years and 8 months’ imprisonment to reflect the pleas of guilty and his genuine remorse.
For the section 17 wounding charge, a starting point for sentence after trial of 7 years is appropriate and, likewise, is discounted to 4 years and 8 months’ imprisonment to reflect his pleas of guilty and genuine remorse.
Dealing now with the question of totality, Mr Delaney has submitted that this is the type of case where the sentence for each offence could properly be wholly or mainly concurrent. I do not agree. Whilst each offence was committed within a matter of seconds of the other, there are two victims. The injuries sustained by Jeffrey Wong were very serious. The intent of the defendant in respect of each offence is different. Even allowing for the chaotic situation at that time the defendant had the opportunity, albeit fleetingly, to go no further after the first stabbing.
I do not, however, consider that these sentences should be wholly consecutive. Given the principles of totality, I consider that a sentence of 10 years’ imprisonment is called for in respect of both offences. This will be achieved by ordering that 3 years and 4 months of the sentence on the section 17 wounding charge be served consecutively to the sentence for the manslaughter charge, for the avoidance of doubt making a total sentence of 10 years’ imprisonment.
Please refer to CACC352/2011 for the relevant appeal(s) to the Court of Appeal.