HKSAR v. Au Yeung Chun Yee and Another

HCCC 397/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 397 OF 2013

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: In this case both defendants, originally the 1st and 5th defendants on the indictment, pleaded guilty to manslaughter prior to the commencement of the trial proper.

They had offered to plead guilty to that offence at their arraignment on 7 October this year, but that offer was not accepted by the prosecution at that time.

Subsequently, prior to the empanelment of the jury, those pleas were accepted by the prosecution and both defendants were convicted of manslaughter and acquitted of murder.

The basis of the acceptance of their pleas was that it was acknowledged that they may have lacked the intent to kill or do really serious injury to the deceased, but that they intended or foresaw considerable injury being done to him.

The facts of the prosecution case are clear from my summing‑up. In my view, the prosecution case was wholly accepted by the jury. Both defendants were heavily involved in the events leading up to the death of the victim. That is clear from the facts which they agreed at the time of their pleas of guilty. Given those facts an immediate custodial sentence is unavoidable for each defendant.

Their offences, though amounting to manslaughter rather than murder, are at the higher end of the hugely variable manslaughter range of sentences.

Au Yeung Chun-yee, the 1st defendant, as she originally was, who was aged 15 years 10 months at the time of the offence, was responsible for the instigation of the attacks upon the victim. It was her anger at being called promiscuous by him behind her back which led her to seek revenge. She, through a friend, obtained the services of the eventual 2nd defendant, Lai, who was aged 28 years at the time of the offence to beat up the victim. He in turn recruited the 3rd defendant at trial, Mui, who was aged 33 years to assist in the planned attack on the victim.

Au Yeung assisted in luring the victim to the site of the planned attack. She and a friend of hers, Shek, the 1st defendant at trial, telephoned the victim on a number of occasions to get him to come to a pier under a footbridge at Wan Poon Path in Tseung Kwan O in the early hours of 8 August 2012.

On the basis that they were going to drink, chat and play cards there, the victim arrived at the scene. Very shortly after, he was violently assaulted by Lai and Mui, and less violently so by Shek. He collapsed, was revived by beer being poured on him, assaulted again and as dawn broke was walked 1.4 kilometres down the cycle track Wan Poon Path to bushes at the seawall near Lohas Park where the final very violent assault upon him took place and he, when unconscious or nearly so, was thrown in to the sea. He almost certainly drowned shortly thereafter.

Au Yeung had, I accept, attempted to mitigate for the victim before he was marched off to what amounts to the scene of his execution at Lohas Park, though she went with Lai to a women’s toilet nearby the scene of the victims final beating and disposal into the sea to check whether there was anyone there who might witness the final attack upon the victim.

The evidence accepted by the jury in those circumstances comes close to establishing the offence of murder, given that she had heard Mui suggesting that the victim be thrown into the sea before he was taken on the long walk down the cycle way and pedestrian pavement to the bushes at Lohas Park.

Nevertheless, Au Yeung was 15 years and 10 months old at this time, and while vengeful, was plainly a person not with an adult’s understanding of the full potential consequences of her actions. I take her youth into account also in accepting she may have foreseen something marginally less than really serious bodily harm being done to the victim at the conclusion of his walk towards Lohas Park.

The two main perpetrators of the killing of the victim, based on the jury’s unanimous verdicts were, in my view, the 2nd defendant and 3rd defendant whose ages place themselves in a position of dominance over these two teenagers, and that Au Yeung’s continued cooperation with particularly the 2nd defendant can be explained on that basis.

Nevertheless, I am satisfied that Au Yeung’s actions warrant a starting point of sentence of 14 years’ imprisonment.

In mitigation, Mr Fenton points out that at the time of organising the beating of the victim, the defendant was acting in the belief that that was as far as things would go, and I accept that matters did spiral out of control and went out of her hands, to a large extent, by the decision of the other defendants, particularly the 3rd defendant at trial, to proceed further and to kill the victim.

The primary mitigation available to Au Yeung is that she offered a plea of guilty to manslaughter at an early stage, gave evidence for the prosecution and that evidence was clearly accepted by the jury.

The evidence she gave against her co-accused was substantial and material. I have no doubt it made a significant contribution to the jury being provided with a complete and true picture of the facts of the case.

The result of the contribution to the prosecution case, in my view, is that given the backgrounds of the other defendants and their characters as revealed on the trial papers I have seen and in the evidence which I have heard, she may require protective custody for a considerable period, and will therefore experience more onerous conditions than otherwise in prison.

Mr Fenton has suggested that the assistance of Au Yeung and the surrounding circumstances requires a discount of 50 per cent in her sentence. I agree. Her evidence I am satisfied was of considerable assistance to the prosecution, though not of vital significance. I do not give her any further discount for her youth. That, in the circumstances of this case, has already been given into account by me in arriving at the starting point of sentence.

Accordingly, allowing her the 50 per cent discount for her cooperation and its known and potential consequences, her sentence is reduced to one of 7 years’ imprisonment.

Yung Kwun-kit, the original 5th defendant in this case, had a greater involvement in the actual killing of the victim than did Au Yeung. He was also one year older, being 16 years and 11 months at the time of the offence. Although he came into the picture much later than Au Yeung, and I accept may well have gone to the scene of the original attack on the victim without appreciating it was intended by the other defendants to subject the victim to that original savage beating at the pier, and though I accept that he did not participate in those assaults, he nevertheless when ordered to do so accompanied the 3rd defendant, the 1st defendant and the victim to the bushes at Lohas Park.

By doing so he made it less likely the already beaten victim would be able to escape, and when later he entered the bushes at Lohas Park with the others to apparently lend them support he made no doubt the victim’s appreciation of his own situation appear even more hopeless.

The role of Yung was ordered by the 3rd defendant to be that of lookout. Yung pretended to do so but did not. He was also told to look for a rock and string. He pretended to do so but did not. I accept he was a reluctant participant.

Nevertheless, he was aware at that time that a statement of intent had been made by the 3rd defendant that the victim be killed.

The Summary of Facts, which was agreed by him at the time of his plea accepted that he foresaw only that the intended assault would result in less than really serious bodily harm, and I accept that that must be the factual basis of his sentencing.

It is obvious that Yung’s role in the final minutes of the victim’s life came perilously close to establishing the offence of murder, more so than did the role of Au Yeung.

I do not criticise the decision of the prosecution to accept pleas to the offence of manslaughter from Yung and Au Yeung. Indeed, in the overall circumstances of the case the decision to do so was justifiable, particularly bearing in mind the disparity on ages between Au Yeung and Yung, and the 2nd defendant and 3rd defendant.

I have no doubt that lengthy and very serious consideration was undertaken before those pleas were accepted. The present statutory requirement that a mandatory penalty be imposed in respect of murder cases can be obstructive in practice. That is illustrated by the circumstances of the present cases of Au Yeung and Yung.

But whatever the position may be in that regard, I proceed to sentence Yung on the basis of the Summary of Facts which he has agreed.

In my view, his role, as they say, was even more serious than that of Au Yeung. He accompanied the victim on the long walk to the site where he was killed, but I accept for the purposes of sentence on the basis of the Admitted Facts that his participation effectively ceased once matters went beyond that which he expected to be only the infliction of injury to a lesser degree and, in my view, it must have been a marginally lesser degree than that required for the formation of a murderous intent. Nevertheless, his role in the death of the victim warrants a starting point of sentence of 18 years’ imprisonment.

The assistance he provided to the prosecution was significant. His evidence, in my view, likely resulted in the conviction of Mui who, on the evidence, was the person whose idea it was to kill the victim and who played the prime role in that killing.

Yung, however, was not a supergrass. In my view his contribution for the conviction of the defendants fell short of that category. I again take into account the difficulties he will experience in prison and the risks involved in his giving evidence in this trial, and propose to discount his sentence also by 50 per cent. That results in a final sentence of 9 years’ imprisonment.