Braemar Hill killer who feared for his life deserves lenient term, court told

PUBLISHED : Thursday, 09 March, 2006, 12:00am
UPDATED : Thursday, 09 March, 2006, 12:00am

A man who was jailed for 35 years for his involvement in the brutal Braemar Hill murders 21 years ago deserved a more lenient sentence because he was forced to take part on pain of death, the Court of Appeal heard yesterday.

Cheung Yau-hang, who was 16 at the time of the 1985 murders, was handed a 35-year fixed sentence last April by Mr Justice Pang Kin-kee in the Court of First Instance.

The murders of Nicola Myers, 18, and Kenneth McBride, 17, shocked Hong Kong to the core. Myers had at least 500 cuts to her body, while McBride had 100 cuts and had been strangled.

Cheung, who is now 36 had pleaded not guilty, and Won Sam-lung who was also 16 at the time, were sentenced in 1987 to be detained at Her Majesty's Pleasure, an indefinite sentence known post-handover as at the Chief Executive's Discretion.

Subsequent changes to the law required that the two be handed fixed-term sentences.

Won, who had pleaded guilty and been a prosecution witness, received a sentence of 28 years and three months in August 2004. He was released a month later after having served two-thirds of the term. Three other men - ringleader Pang Shun-yee, 24, Tam Sze-foon, 20, and Chiu Wai-man, 25 - were convicted of murder in January 1987 and sentenced to death. Their sentences were commuted to life imprisonment in 1989.

John Haynes, counsel for Cheung, argued before Mr Justice Frank Stock, Mr Justice Woo Kwok-hing and High Court Chief Judge Mr Justice Geoffrey Ma Tao-li that the sentence imposed on his client was too severe given the boy's belief that Pang would kill him if he refused to help out with the murder.

'While duress is not a defence, it is, and can be in the form of coercion, enormous mitigation ... particularly if it is combined with immaturity in the face of a mature, fearsome leader,' Mr Haynes said.

'Even crimes which [are] devoid of any element of human decency are susceptible to a degree of analysis as to what level of responsibility and liability each participant has.'

He suggested that although duress was not allowed as a defence at the original trial, no one had challenged the assertions of either Won or Cheung that they took part in the murders only because the ringleader had threatened to kill them if they did not do so.

The two minors had been 'under the thumb of Pang and had been assaulted by him in the past ... and on top of that they had just seen him beat into a bloody pulp and rape a girl.

'The fact remains there is no evidence to contradict ... that they were in fear of their lives,' Mr Haynes said.

The court reserved its decision until a later date.