COURT: This defendant was charged originally with one count of murder and a second charge of acting as a member of a triad society. Initially, he pleaded not guilty to both charges but, on 10 January 2013, he offered a plea to acting as a member of a triad society and, subsequently, after a voir dire, he offered a plea to manslaughter in respect of the 1st charge. That was accepted by the prosecution after compliance with the Victims’ Charter.
The defendant, who was aged 17 at the time of the killing, was a follower of ‘Chau Tsz’, a member of a faction of the Sun Yee On Triad Society. A dispute arose between that faction and another faction of the same triad. In this particular incident, the defendant was called on by his triad Big Brother to take part in “blowing the whistle”.
On 5 December 2011, the defendant met a group of people, including his Big Brother, at Tsing Chuen Wai and was told to board a vehicle. He saw persons board the vehicle, holding knives which they placed on the floor. He himself had no weapon and was told just to follow the group. Five vehicles travelled to Tseng Tau Tsuen but when they arrived, no members of the rival faction were present.
The defendant’s group alighted from the vehicle, some with knives and some holding sticks. They then re-boarded the vehicle and left the area, returning later in response to a telephone call. They arrived at about 1 am at Tseng Tau Tsuen and found a large number of people from the rival faction waiting for them.
The rival group attacked the vehicle in which the defendant was travelling. The vehicle hit a barrier and also a parked vehicle. The occupants of the defendant’s vehicle alighted. The defendant saw ‘Chau Tsz’ hit an unknown male and saw four men who had been in the car with them taking knives and saw them hitting the person with the weapons that they held.
The defendant thought of going forward to help but members of the rival faction arrived unexpectedly and the defendant fled after injuring himself on broken glass when he left the vehicle. The car in which he had been travelling was abandoned at the scene.
A number of residents saw various aspects of these events but were not able to identify any person thereafter.
The defendant said he was not told the purpose of going from Tsing Chuen Wai to Tseng Tau Tsuen and had no knowledge of what the group planned to do, other than that a person nicknamed ‘Tai Kau’, of the defendant’s faction, wanted to take revenge for an attack by members of the rival faction, which had taken place at a bar two or three days before.
The deceased, Kwok Hin-ching, who was apparently with the rival faction, suffered multiple blunt force injuries and cut wounds in the attack and the cause of death was given by the forensic pathologist as “multiple injuries”. After receiving multiple wounds, the deceased was also struck by and run over by a motor vehicle which left the scene at speed. The deceased was left lying in the roadway until the police and ambulance arrived shortly thereafter.
The defendant admitted that he was in a joint enterprise with triad members of his faction with full knowledge that the others carried weapons, knives and poles, and foresaw that at least some harm might be caused to others if those knives and poles were used.
The defendant was aged 17 years at the time of this offence. He is now 19 years old. His date of birth was 14 January 1994. I am advised by counsel that his parents were divorced when the defendant was 5 years old and the defendant has not seen his mother since. At the time of his arrest, the defendant was living with his father.
The defendant was educated in Hong Kong up to form 5 level, although he skipped form 4. I am advised that he completed form 5. The defendant was employed after leaving school in building platforms for exhibitions and earning $500 a day. In the evening, he was completing a course for bar-tending.
The defendant has a criminal record. The only relevant conviction is one for a section 19 wounding, although it appears to be a minor case as the defendant was given a conditional discharge for 12 months on 15 December 2010. The present offences fell within the period of 12 months by about 10 days but I do not propose to deal further with that conviction and I do not propose to activate the suspended sentence.
While in prison, awaiting trial, the defendant displayed some psychiatric disturbances, as a result of which, he was sent to Siu Lam Psychiatric Centre in January, July and May of 2012. He was diagnosed with adjustment disorder, with dissocial personality disorder with a history of polysubstance misuse. He received follow-up treatment at Tuen Mun Mental Health Centre and medication was prescribed.
On 26 September 2012, he was transferred to Siu Lam Psychiatric Centre and medication of the type prescribed at the Tuen Mun Mental Health Centre was resumed. At the date of sentencing, the defendant had returned to Pik Uk Correctional Institution.
Given the defendant’s age at the time of these offences and in view of his psychiatric problems, I sought a background report and a psychologist’s report before sentencing.
The background report confirms that the defendant was brought up by his father from the age of 4 when his parents separated and also, in his early life, he was looked after by his paternal grandparents. He had some problems in keeping up with the school curriculum at about Primary 3 level and exhibited poor conduct and worsening academic performance from about Form 1. However, eventually, he completed school at Form 5 level and also attended some vocational training courses after leaving school. Prior to his arrest, he had had only a couple of months of employment experience.
He began to mix with unsuitable companions with triad backgrounds after leaving school, but he said that although asked to take part in “whistle blowing” activity at an earlier stage, he had refused to do so. His father was busy with work and there was inadequate supervision of the defendant.
The defendant’s father believes now that his own relationship with his son has improved and he reported that after residential training at the Christian Zheng Sheng College, imposed as part of a probation order for a juvenile offence, the defendant was more motivated to study. His father considered that the defendant was immature and susceptible to peer influence.
That appears to be borne out by the psychologist’s report. The psychologist, Mr S W Hung, a clinical psychologist attached to Correctional Services Department, gave a report which confirmed the existence of emotional damage caused to the defendant by his parents’ divorce, in particular, his resentment at his perceived neglect by his father which led to chronic father/child conflicts and fights, and his dislike of his mother because she had abandoned him and who, thereafter, broke all her promises to see him.
After the defendant left school, his father tried consciously to avoid conflict with the defendant, mainly by letting him do as he pleased. The father/son relationship improved for a time, probably because the father backed away from intervening with the defendant’s social life, despite misgivings about the defendant’s companions. The defendant had maintained a year of a satisfactory lifestyle before he confided in his father about the incident in which he had been involved. The father sought the help of a friend through whom the matter was reported to the police.
The defendant had never been diagnosed with mental illnesses prior to his arrest. During this remand period, pre-sentence, the defendant had reported psychological disturbances including auditory hallucination and suicidal ideation. However, the defendant told the psychologist that he had only pretended to be ill so that he could be sent to a psychiatric centre to await his sentence.
The defendant was assessed as being of normal intelligence with no major cognitive deficits nor any major psychopathology. His chronic feelings of emptiness and loneliness predispose him to engage in problem behaviour to seek attention and to ventilate his negative emotions.
He was described as being under-nurtured and under-socialised and highly susceptible to peer group influence, the members of that group being very important in his life and are, in fact, his surrogate family. However, despite this, the psychologist thought it unlikely that the defendant would benefit at this stage from psychological intervention.
I was satisfied, after reading the report, that the defendant is not precluded from serving a term of imprisonment because of any psychological or psychiatric problems.
Manslaughter sentences vary widely and range from non-custodial sentences of various types to life imprisonment. Previous sentencing cases are useful only as background history and for statement of principles. Although it is customary to eschew a starting point for manslaughter, there is no prohibition against stating one.
The scale of the revenge attack which was the purpose of the joint enterprise, the number of participants involved in “blowing the whistle” and the organisation of men, transport and materials mark this as a very serious offence. Clearly, the defendant knew there were weapons in the vehicle, although I accept that he himself was not armed.
Tragically, the victim, a member of, or at any rate with, the opposing faction was on the street close to the site where the armed occupants left their vehicle after their car was besieged and there was no stopping ‘Chau Tsz’ and the three to four other men. To date, no other person has been charged in respect of this incident, although I am advised by counsel for the prosecution that the investigation is ongoing.
There are three major mitigating features in this case. The first is the defendant’s plea of guilty to Charge 2 and, at the conclusion of the voir dire, the plea to manslaughter on Charge 1. I am of the view that despite the late plea, the defendant is entitled to the full one-third discount. I note that the defendant offered a plea to manslaughter at committal although it was not accepted at that time.
Secondly, the defendant is entitled to a greater discount than usual because of his surrender to police on 5 December 2011. He told his father he was in trouble because of his presence at the scene and his father contacted a friend of his whom he knew to have a friend who was a police officer. That officer was not one of the investigators. The father eventually told the police officer of his son’s need for advice as to what he should do.
Later, the defendant telephoned the officer, outlined what had happened and explained the nature of his involvement. The defendant was advised to tell his story to the investigating team and was asked by the officer to return to his home. The defendant did so the same day and waited with his father at his home until the police came.
He was arrested and cautioned and subsequently gave video interviews under caution and carried out a reconstruction.
The third thing to note in respect of mitigation is that without the defendant’s account of what happened, there would not have been any possibility of laying charges as, otherwise, there was no evidence against him.
It is clear that this is a very serious charge; it is manslaughter at the higher end of the range. There can be no justification for the violent death of a young man who was killed in consequence of a factional fight initiated to satisfy the vanity and the stupidity of a man or men seeking revenge for loss of face. Such vanity attacks are all too common in Hong Kong and those who arrange them and encourage other, often younger, men into taking part deserve condign punishment.
I do accept that this defendant, although foolishly obeying his Big Brother, was not an organiser and was unarmed. He also had sufficient conscience to effectively surrender himself to the police.
In this case, I take a starting point of 12 years for the manslaughter charge and giving the full discount for plea, that sentence is reduced to 8 years. I deduct a further 2 years for the assistance given by the defendant and sentence him to 6 years’ imprisonment on the amended Charge 1.
On Charge 2, I take a starting point of 9 months and giving the full discount for plea, sentence the defendant to 6 months’ imprisonment.
Taking totality into account, I order that the 6 months be served concurrently with the sentence on Charge 1, making a total of 6 years’ imprisonment.