A HCCC 4/2019 A
[2019] HKCFI 2839
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 4 OF 2019
C C
-----------------
D D
HKSAR
E v E
Leung Ho-man
F F
------------------
G G
Before: Hon Campbell-Moffat J
Date: 22 October 2019 at 10.07 am
H Present: Mr Richard Donald and Ms Tina Mok, on fiat, for HKSAR H
Mr David Boyton, instructed by Au Yeung, Cheng, Ho &
I
Tin, assigned by DLA, for the accused I
Offence: Murder (謀殺)
J --------------------------------- J
Transcript of the Audio Recording
of the Sentence in the above Case
K K
---------------------------------
L COURT: Mr Leung, you came before this court for trial on one L
count of murder in that it was alleged by the prosecution
that you took part in a joint enterprise which resulted in
M the death of Nguyen Van-tuan. It was never suggested at any M
stage that you dealt the fatal blows which caused his death.
The person responsible for his death has not yet been
N N
apprehended.
O On 18 October 2019, you pleaded guilty to the manslaughter O
of Nguyen Van-tuan, arising out of an attack which took
place in the early hours of the morning of 1 October 2017.
P He died on 10 October 2017, as a result of the injuries he P
received during a fight between two groups of men in which
you were involved. I have no evidence about the reason for
Q Q
the fight but Mr Boyton has disclosed the criminal records
of those forming part of the victim’s group of friends, who
R would have been witnesses for the prosecution, which show R
that some of them had significant criminal records for drug
offences and for offences of violence.
S S
At the time of the fight, you were in the APlus bar in Mong
T
Kok. Almost all of the evidence of your participation in T
the events of that night comes from your admissions for the
purposes of the Summary of Facts for plea. At times, those
U admissions contradict the evidence within the prosecution’s U
CRT35/22.10.2019/SN 1 HCCC 4/2019(1)/Sentence
V V
A papers but, to your credit, they implicate you in these A
events in a manner that the prosecution could not have
proved to the requisite standard. To the extent that you
B have been prepared to do so in order to enter your plea, it B
indicates the degree of the remorse you have for the events
of that evening.
C C
Those admissions form the basis of the facts for the purpose
D of sentencing you today. They do not bind the prosecution D
as to any future proceedings in respect of others also
culpable of the death of the victim, but they do bind you.
E E
This is a very serious incident with a truly tragic outcome.
The victim, Nguyen Van-tuan, was only 31 years of age and
F F
had his whole life in front of him. No matter what ill
feeling there was between him and you and your friends, he
G did not deserve to die. G
The evidence appears to suggest that the bar in question had
H about 50 people in it between 4.50 and 8.00 am on the H
morning of 1 October 2017. Many of them had been drinking
I
since the night before. I do not know whether you had been I
drinking but I do note that both you and your father had
mentioned that you are not somebody who does go out
J drinking. There is no evidence within the prosecution J
papers about your state or any indication that you were part
of the various groups of people celebrating birthdays,
K although again I note that you have now said that you were K
out celebrating a birthday with a friend but I haven’t been
L told why this incident occurred. L
At some point, part of the fight moved to the middle of the
M set of chairs adjacent to the dance floor. Someone, M
referred to in the papers as Ah Shuen, was fighting with the
deceased. Ah Shuen jumped on top of the small coffee type
N table and he used a Johnny Walker whisky bottle to strike N
the deceased over the head. That blow caused a small cut to
O the deceased’s nose but it clearly made a significant impact O
upon his skull even though there was no other wound. That
caused the deceased to fall on top of the table as a result
P of the blow, so it must have been a very forceful blow. At P
that stage Ah Shuen took another bottle and struck him once
more over the head which caused him to fall off the table
Q Q
and onto the floor. You have indicated to the court where
he fell and the prosecution, for the purposes of sentence
R today, accept what you say about that, although I note that R
the papers suggest that he may have been positioned
otherwise.
S S
It is at this point when he is on the floor that Ah Shuen
shouted “Hit him to death” and you say that you joined in
T T
kicking and stamping on the deceased with three others but
you do not accept that you kicked or stamped on his head.
U U
CRT35/22.10.2019/SN 2 HCCC 4/2019(1)/Sentence
V V
A That beating went on for approximately 30 seconds after A
which, all of you fled the scene.
B Mr Leung, by reason of your plea, you accept that you were B
part of the earlier fight on the dance floor and that there
was some connection between yourself and Ah Shuen and the
C C
others in that respect. You accept that you were present at
what I have called the “bottling” and, having observed it,
D you heard his shout to “Hit him to death” and you joined in D
further on the attack on the deceased. You accepted that
this was a continuous course of events in which you
E voluntarily participated. E
At that point in time you would not have known the effect of
F F
the two blows to the deceased’s head but you would have
realized that this was a sustained attack with a weapon,
G especially as both bottles broke on impact. They were G
forceful blows which left the deceased stupefied and at some
point acting as if he was having a seizure, but you joined
H in and kicked him nevertheless. Your actions at that time H
are indicative of your intent throughout, which was to cause
I
physical harm to the opposition (whoever they were). Being I
part of the earlier fight would have left you in no doubt as
to the intentions of your compatriots and your own earlier,
J and later, actions showed that you were fully engaged in J
what they were doing. As a result, you too must bear the
consequences of their actions even though you did not
K personally deal the fatal blows. K
L You were just 19 years of age at the time of this offending L
and of good character. You come, I can see, from a loving
and supportive home and you had employment before you were
M arrested. But you, unlike the victim, still have a life in M
front of you.
N The range of sentencing in manslaughter is very wide indeed. N
There are no guidelines. Each case must turn on its own
O facts. I have been provided with a number of authorities O
which suggest a range of sentences in circumstances similar
to these of between 5 and 9 years’ imprisonment as a
P starting point after trial. Some of those authorities are P
now quite old and none of them stand on all fours with the
situation at hand. The facts of this case exacerbate the
Q Q
exercise further as this is a matter of joint enterprise.
In such circumstances, you fall to be sentenced for the acts
R of your co-adventurers and whilst there is some authority R
which suggests that the Court may distinguish between the
roles played by those who join in a joint enterprise, the
S court must be careful not to undermine the principle of law S
which makes co-adventurers liable for the acts of others
with whom they have willingly engaged for a criminal
T T
enterprise.
U U
CRT35/22.10.2019/SN 3 HCCC 4/2019(1)/Sentence
V V
A Although you are part of the fight from the beginning, you A
did not join in the attack upon the deceased until after the
fatal blows were struck. There was only minimal injury to
B the deceased other than the damage inflicted upon his brain B
from the blows by the bottles. He had just a very few small
contusions and subcutaneous bruises which were not
C C
consistent with any assault by kicking and stamping from
five men over 30 seconds. The physical evidence indicates
D you personally caused little if no harm to the deceased. D
There is no evidence, as Mr Boyton suggested, that this
E attack was premeditated nor were any weapons used by you but E
you did witness the murderer use a weapon twice at which
point you followed his instructions and assaulted the
F F
deceased in order to “Hit him to death”. You are
responsible in law for the actions of those with whom you
G are in concert and the consequences of which you foresaw, G
even though your personal actions may be very limited. Your
eagerness to enter a plea and to offer admissions
H unsupported by any prosecution evidence implies that you are H
now saying you were fully involved in this assault and
I
accept that the part you played was in furtherance of an I
intention by others to murder or to do serious bodily harm
to the deceased. For your participation in this tragic
J event, a starting point after trial of 7½ years is J
appropriate.
K Your offer of a plea at an early stage was refused. Even K
so, it was made clear by counsel to the court that such plea
L would be available should the prosecution change their mind, L
which they eventually did. In so doing, you were required
to inculpate yourself and you did so. I consider that you
M should receive a full one-third discount for your sentence M
for those reasons. The one-third discount already takes
account of good character, relative youth and the effect of
N incarceration upon you. But we must never forget the effect N
of the loss of a son, or brother or friend to so many
O others. You, Mr Leung, will return to your very loving O
family one day but he will not.
P You will go to prison for 5 years. P
Q Q
R R
S S
T T
U U
CRT35/22.10.2019/SN 4 HCCC 4/2019(1)/Sentence
V V
A HCCC 4/2019 A
[2019] HKCFI 2839
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 4 OF 2019
C C
-----------------
D D
HKSAR
E v E
Leung Ho-man
F F
------------------
G G
Before: Hon Campbell-Moffat J
Date: 22 October 2019 at 10.07 am
H Present: Mr Richard Donald and Ms Tina Mok, on fiat, for HKSAR H
Mr David Boyton, instructed by Au Yeung, Cheng, Ho &
I
Tin, assigned by DLA, for the accused I
Offence: Murder (謀殺)
J --------------------------------- J
Transcript of the Audio Recording
of the Sentence in the above Case
K K
---------------------------------
L COURT: Mr Leung, you came before this court for trial on one L
count of murder in that it was alleged by the prosecution
that you took part in a joint enterprise which resulted in
M the death of Nguyen Van-tuan. It was never suggested at any M
stage that you dealt the fatal blows which caused his death.
The person responsible for his death has not yet been
N N
apprehended.
O On 18 October 2019, you pleaded guilty to the manslaughter O
of Nguyen Van-tuan, arising out of an attack which took
place in the early hours of the morning of 1 October 2017.
P He died on 10 October 2017, as a result of the injuries he P
received during a fight between two groups of men in which
you were involved. I have no evidence about the reason for
Q Q
the fight but Mr Boyton has disclosed the criminal records
of those forming part of the victim’s group of friends, who
R would have been witnesses for the prosecution, which show R
that some of them had significant criminal records for drug
offences and for offences of violence.
S S
At the time of the fight, you were in the APlus bar in Mong
T
Kok. Almost all of the evidence of your participation in T
the events of that night comes from your admissions for the
purposes of the Summary of Facts for plea. At times, those
U admissions contradict the evidence within the prosecution’s U
CRT35/22.10.2019/SN 1 HCCC 4/2019(1)/Sentence
V V
A papers but, to your credit, they implicate you in these A
events in a manner that the prosecution could not have
proved to the requisite standard. To the extent that you
B have been prepared to do so in order to enter your plea, it B
indicates the degree of the remorse you have for the events
of that evening.
C C
Those admissions form the basis of the facts for the purpose
D of sentencing you today. They do not bind the prosecution D
as to any future proceedings in respect of others also
culpable of the death of the victim, but they do bind you.
E E
This is a very serious incident with a truly tragic outcome.
The victim, Nguyen Van-tuan, was only 31 years of age and
F F
had his whole life in front of him. No matter what ill
feeling there was between him and you and your friends, he
G did not deserve to die. G
The evidence appears to suggest that the bar in question had
H about 50 people in it between 4.50 and 8.00 am on the H
morning of 1 October 2017. Many of them had been drinking
I
since the night before. I do not know whether you had been I
drinking but I do note that both you and your father had
mentioned that you are not somebody who does go out
J drinking. There is no evidence within the prosecution J
papers about your state or any indication that you were part
of the various groups of people celebrating birthdays,
K although again I note that you have now said that you were K
out celebrating a birthday with a friend but I haven’t been
L told why this incident occurred. L
At some point, part of the fight moved to the middle of the
M set of chairs adjacent to the dance floor. Someone, M
referred to in the papers as Ah Shuen, was fighting with the
deceased. Ah Shuen jumped on top of the small coffee type
N table and he used a Johnny Walker whisky bottle to strike N
the deceased over the head. That blow caused a small cut to
O the deceased’s nose but it clearly made a significant impact O
upon his skull even though there was no other wound. That
caused the deceased to fall on top of the table as a result
P of the blow, so it must have been a very forceful blow. At P
that stage Ah Shuen took another bottle and struck him once
more over the head which caused him to fall off the table
Q Q
and onto the floor. You have indicated to the court where
he fell and the prosecution, for the purposes of sentence
R today, accept what you say about that, although I note that R
the papers suggest that he may have been positioned
otherwise.
S S
It is at this point when he is on the floor that Ah Shuen
shouted “Hit him to death” and you say that you joined in
T T
kicking and stamping on the deceased with three others but
you do not accept that you kicked or stamped on his head.
U U
CRT35/22.10.2019/SN 2 HCCC 4/2019(1)/Sentence
V V
A That beating went on for approximately 30 seconds after A
which, all of you fled the scene.
B Mr Leung, by reason of your plea, you accept that you were B
part of the earlier fight on the dance floor and that there
was some connection between yourself and Ah Shuen and the
C C
others in that respect. You accept that you were present at
what I have called the “bottling” and, having observed it,
D you heard his shout to “Hit him to death” and you joined in D
further on the attack on the deceased. You accepted that
this was a continuous course of events in which you
E voluntarily participated. E
At that point in time you would not have known the effect of
F F
the two blows to the deceased’s head but you would have
realized that this was a sustained attack with a weapon,
G especially as both bottles broke on impact. They were G
forceful blows which left the deceased stupefied and at some
point acting as if he was having a seizure, but you joined
H in and kicked him nevertheless. Your actions at that time H
are indicative of your intent throughout, which was to cause
I
physical harm to the opposition (whoever they were). Being I
part of the earlier fight would have left you in no doubt as
to the intentions of your compatriots and your own earlier,
J and later, actions showed that you were fully engaged in J
what they were doing. As a result, you too must bear the
consequences of their actions even though you did not
K personally deal the fatal blows. K
L You were just 19 years of age at the time of this offending L
and of good character. You come, I can see, from a loving
and supportive home and you had employment before you were
M arrested. But you, unlike the victim, still have a life in M
front of you.
N The range of sentencing in manslaughter is very wide indeed. N
There are no guidelines. Each case must turn on its own
O facts. I have been provided with a number of authorities O
which suggest a range of sentences in circumstances similar
to these of between 5 and 9 years’ imprisonment as a
P starting point after trial. Some of those authorities are P
now quite old and none of them stand on all fours with the
situation at hand. The facts of this case exacerbate the
Q Q
exercise further as this is a matter of joint enterprise.
In such circumstances, you fall to be sentenced for the acts
R of your co-adventurers and whilst there is some authority R
which suggests that the Court may distinguish between the
roles played by those who join in a joint enterprise, the
S court must be careful not to undermine the principle of law S
which makes co-adventurers liable for the acts of others
with whom they have willingly engaged for a criminal
T T
enterprise.
U U
CRT35/22.10.2019/SN 3 HCCC 4/2019(1)/Sentence
V V
A Although you are part of the fight from the beginning, you A
did not join in the attack upon the deceased until after the
fatal blows were struck. There was only minimal injury to
B the deceased other than the damage inflicted upon his brain B
from the blows by the bottles. He had just a very few small
contusions and subcutaneous bruises which were not
C C
consistent with any assault by kicking and stamping from
five men over 30 seconds. The physical evidence indicates
D you personally caused little if no harm to the deceased. D
There is no evidence, as Mr Boyton suggested, that this
E attack was premeditated nor were any weapons used by you but E
you did witness the murderer use a weapon twice at which
point you followed his instructions and assaulted the
F F
deceased in order to “Hit him to death”. You are
responsible in law for the actions of those with whom you
G are in concert and the consequences of which you foresaw, G
even though your personal actions may be very limited. Your
eagerness to enter a plea and to offer admissions
H unsupported by any prosecution evidence implies that you are H
now saying you were fully involved in this assault and
I
accept that the part you played was in furtherance of an I
intention by others to murder or to do serious bodily harm
to the deceased. For your participation in this tragic
J event, a starting point after trial of 7½ years is J
appropriate.
K Your offer of a plea at an early stage was refused. Even K
so, it was made clear by counsel to the court that such plea
L would be available should the prosecution change their mind, L
which they eventually did. In so doing, you were required
to inculpate yourself and you did so. I consider that you
M should receive a full one-third discount for your sentence M
for those reasons. The one-third discount already takes
account of good character, relative youth and the effect of
N incarceration upon you. But we must never forget the effect N
of the loss of a son, or brother or friend to so many
O others. You, Mr Leung, will return to your very loving O
family one day but he will not.
P You will go to prison for 5 years. P
Q Q
R R
S S
T T
U U
CRT35/22.10.2019/SN 4 HCCC 4/2019(1)/Sentence
V V