R v Quoc Bieu Luu
[2003] VSC 429
•7 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1471 of 2002
| THE QUEEN |
| V |
| QUOC BIEU LUU, FONG CHAU, PHILLIP SUNG AND ALAN KIM |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 11-15, 18-20, 22 August 2003 | |
DATE OF SENTENCE: | 7 November 2003 | |
CASE MAY BE CITED AS: | R v Quoc Bieu Luu & Others | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 429 | |
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Criminal law – Sentence – Murder – Intent to cause really serious injury – Principal accused pleads not guilty – Co-accused plead guilty to intentionally cause injury – Lower end of sentencing range for murder – Custodial sentence not warranted for co-accused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | W Morgan Payler Q.C. with Mr. D. Brown | Solicitor for Public Prosecutions |
| For the Accused Quoc Bieu Luu | Mr. J. Saunders | Valos Black & Associates |
| For the Accused Fong Chau | Mr. S. Langslow | Leanne Warren & Associates |
| For the Accused Phillip Sung | Mr S. Russell | Balmer & Associates |
| For the Accused Alan Kim | Mr D. Hallowes | Robert Stary & Associates |
HIS HONOUR:
On 12 August 2001 Duc Lam, a young Vietnamese migrant of ethnic Chinese background was stabbed four times in Little Bourke Street near a social club frequented by Asian migrants, particularly those of Duc Lam’s background. The stabbing occurred very shortly after midnight following which Duc Lam was taken to the Royal Melbourne Hospital where he died a short time later.
You, Quoc Bieu Luu, were convicted on 20 August last of the murder of Duc Lam. You, Fong Chau, Phillip Sung and Alan Kim have each pleaded guilty before Luu’s trial to one count of intentionally causing injury to Duc Lam by assaulting him at about or shortly prior to the time he was stabbed by Quoc Bieu Luu. The case against each of you was that you were not involved in Duc Lam’s murder but that you assaulted him shortly before the murder occurred. The Crown could not establish any murderous intent on your part either individually or in concert with Quoc Bieu Luu. In particular, it could not be established that any of you knew, or even suspected, that Quoc Bieu Luu was armed with a knife at the time you and he carried out the assaults to which I have referred. Having regard to all the circumstances it is highly likely that your intention was to assault Duc Lam but not to kill him or inflict really serious injury upon him. It is important that I make this clear at the outset of the sentencing process so that the entirely different sentences I am going to impose will be able to be understood.
All of you went to the Shanghai Club on the night in question as part of a group which was organised by one Kenny Hyunh. Kenny Hyunh is you, Fong Chau’s, brother. You, Alan Kim and Phillip Sung were friends or acquaintances of Kenny Hyunh.
Some of the group went to the Shanghai Club after having had dinner at the Shark Finn Inn, further east in Little Bourke Street, although you, Quoc Bieu Luu arrived at the Shanghai Club separately, not having been to the Shark Fin Inn.
The background to the violence which subsequently erupted and resulted in Duc Lam’s death, so far as this Court could ascertain it, lay in a long standing feud or dispute between Duc Lam and some of his friends on the one hand and you Fong Chau, and perhaps Quoc Bieu Luu, and some of your friends (some of whom were not present when the events with which this Court is presently concerned occurred) on the other. The origins of this feud were never ascertained. It matters little. The law does not condone revenge. It exists to ensure that grievance, no matter how deeply felt or how subjectively justified is not acted upon with violence.
On the night of 11 August the deceased Duc Lam was working in his family’s restaurant. He had made a tentative arrangement to meet a friend, Vinh Luong after he finished work. When he finished work he phoned Vinh Luong who was, at the time, at the Shanghai Club. Vinh Luong who had seen you, Fong Chau at the Shanghai Club earlier and was aware of past hostilities between you and Duc Lam, told Duc Lam that he shouldn’t come to the club. Unfortunately Duc Lam did not heed that advice and went to the club with another friend.
Upon Duc Lam’s arrival at the club, which was probably very shortly after midnight, he went upstairs to the Karaoke bar on the first floor. All of you, and others in your group, were seated at a table which was close to the upstairs entrance to the Karaoke bar. Duc Lam and his friend walked past you towards the other end of the room and then turned and walked back. As he was walking back towards the entrance he was struck with a bottle by you Quoc Bieu Luu. This assault was followed by a brief struggle. Duc Lam fled down the stairs. He was pursued immediately by you Quoc Bieu Luu and a group of males, which group of males included you, Fong Chau, Phillip Sung and Alan Kim.
At the bottom of the stairs the deceased, Duc Lam, tripped and fell and the group in pursuit caught up with him. One witness described a number of males, up to perhaps seven, kicking and punching Duc Lam who was then on the ground. It is probable that it was at this time that you, Quoc Bieu Luu, inflicted all or at least some of the stab wounds upon the deceased which were to prove fatal whilst the rest of you, and probably others, contented yourselves with inflicting such injury as you could upon the hapless Duc Lam using your feet and fists.
Despite the probability of his having been already fatally stabbed and the certainty of his having been vigorously assaulted, Duc Lam was able to regain his feet and ran in an easterly direction up Little Bourke Street towards Russell Street. Again the pursuing horde caught up with him and kicked and punched him again. You, Quoc Bieu Luu, denied that you participated in this part of the attack although whether you did or not is of little consequence. It was the actions which you had already performed which resulted in Duc Lam’s death and in respect of which you have been convicted of his murder.
Eventually, a bystander, who saw the second attack called out such that you all stopped attacking the deceased and returned towards the Shanghai Club.
Shortly afterwards the deceased was seen by a friend to be bleeding profusely. He was taken by that friend immediately to the Royal Melbourne Hospital but died a few hours after his arrival.
Subsequent examination of the deceased showed that apart from the four stab wounds to which I have referred he also suffered bruises and abrasions to his head, hands, elbow and legs. He had a large bruise on the side of his head. It is these injuries which, by your pleas of guilty to intentionally causing injury, you Fong Chau, Phillip Sung and Alan Kim have admitted inflicting upon the deceased although other evidence would seem to implicate you Quoc Bieu Luu with striking the deceased on the head with a bottle whilst you were both in the Karaoke Bar.
The following day, you, Quoc Bieu Luu and Fong Chau fled to Sydney by car but were arrested there a few days later in the course of attempting to board a Cathay Pacific flight to Hong Kong.
Upon being interviewed by the police you Quoc Bieu Luu admitted that you stabbed the deceased “about three times” in the stomach. You said that you did this with a knife which was on a key ring which you found lying on a step in the Shanghai Club as you came down the stairs. You told the police that you picked the knife up and used it to stab the deceased. You conducted your defence upon your trial on the basis that although you admitted stabbing the deceased you had no intention either of killing him or inflicting really serious injury upon him. You were prepared, at all stages, to plead guilty to manslaughter of the deceased upon the basis of an unlawful and dangerous act, namely assault with a knife. However, the jury rejected your defence and were satisfied to the requisite standard either that you intended to kill Duc Lam or, at least, intended to inflict really serious injury upon him.
Having heard the evidence on your trial and, in particular, having heard you give evidence of your intention at the time you stabbed the deceased and the surrounding circumstances I am satisfied that you did not intend to kill Duc Lam at the time you stabbed him but rather that you intended to inflict really serious injury upon him. Whilst such a finding does not, of course, change the nature of the crime of which you have been convicted; namely the murder of Duc Lam, it is significant when determining an appropriate sentence. Even if one were to discount your story as to the fortuitous finding of the knife as being highly improbable, it is not inappropriate that you be sentenced on the basis that your intent in this case did not involve premeditation but rather a spur of the moment decision to seriously injure the deceased in the course of a long running feud which existed either between you personally or between groups of people with which each of you was connected. Further, although you did not plead guilty to the crime of which you were convicted at all times you were apparently prepared to plead guilty to manslaughter and I am prepared to accept that by that plea and your attitude generally you have demonstrated significant remorse in respect of the death of Duc Lam. You now wish it had never occurred.
A number of victim impact statements have been filed by relatives of Duc Lam, including his parents and his siblings. They attest to a loss by them that is irremediable; of a family striving to make a stable life in a new country rent asunder by an horrific crime. The importance of these statements in the sentencing process lies not in the pleas they contain that this Court impose heavy sentences upon you all, in which respect they are inappropriate and inadmissible, but rather in the ventilation of what the loss of a life in felonious circumstances really means to those most affected. In this respect they are eloquent.
I turn then to consider such of the personal circumstances of each of you as are relevant to the sentencing process.
Quoc Bieu Luu
In your case Quoc Bieu Luu I have taken the details of your history from a psychological evaluation report provided by Dr Simon Kennedy, a clinical psychologist, dated 11 February 2003 in respect of which the Crown has taken no issue.
You were born on 8 August 1968 in Cholon, a town near Saigon in Vietnam. You were one of eight children of your parents who were ethnic Chinese. You attended a government school and left when you were about 12 years of age having completed only grade 2. You apparently repeated several years at the school and told Dr Kennedy that you “couldn’t get it into (your) head”.
You reported to Dr Kennedy that you had no particular problems in your family and that you were close to your parents as a child. You were apparently also close to your brothers and sisters and there were no problems within the family of alcohol or drug abuse. The only disruption appears to have stemmed from your older brother's lack of employment which caused some argument between your parents. Your family was poor and everyday existence was, it would seem, a struggle.
Your family members sponsored each other to come to Australia. You came when you were 22; a move which you found extremely difficult. You had difficulty learning English and had no readily marketable employment skills. In Vietnam you had sold second hand items by the roadside and had acquired no work skills of any significance.
You told Dr Kennedy that you had not suffered from any physical or sexual abuse or any significant accidents or head injuries either here or in Vietnam. However it seems that you have always regarded yourself as “slow” and told Dr Kennedy that you found it difficult to understand things that most other people are able to comprehend.
Your family is and was unremarkable having regard to your migrant background although one of your sisters has had a chronic psychiatric condition for some time.
A psychological evaluation by Dr Kennedy placed your intellectual functioning at a rank of three per cent which indicates that 97 per cent of the population has an equal or higher intellectual functioning score than you do. Dr Kennedy found that you had profound cognitive deficits which clearly affect your ability to read social situations and cause you to be socially naive, gullible and easily influenced by others. You have an extremely poor verbal comprehension even when information is presented in your native language, which is Cantonese. Dr Kennedy considered that you had a limited ability to foresee the consequences of your actions, that you had poor social skills and quite low self-esteem. I regard Dr Kennedy's assessment as of considerable significance in the sentencing process.
Your counsel, in submissions on your behalf, informed the Court of various aspects of your work history since you arrived in Australia. This material was not contested by the Crown and accordingly I am prepared to accept it as factually accurate.
Upon your arrival in Australia you got a job in a Vietnamese grocery store working part-time until, in about 1994, you were employed as a kitchen hand in a Chinese take-away at the Altona Gate shopping complex. You stayed there for four or five years learning how to become a cook and doing things around the kitchen. Similar jobs followed until eventually you obtained a job in a Chinese take-away in Melton where you were employed as the second cook. You had been there about four years at the time of your arrest. You worked six days a week and there is no reason to believe that you performed your tasks in other than a satisfactory manner.
At the time of your arrest you lived in Sunshine and, to some extent, supported your mother and your sister to whom I have referred.
It would seem that in the period immediately prior to the death of Duc Lam you had been friendly with Fong Chau, your co-accused and that you were aware of some ongoing animosity between him and various of his friends and the deceased Duc Lam and some of his friends. The basis of this ongoing animosity is no where made clear. In October 2000 it led to an altercation in which you were involved in another Bar in Chinatown; an altercation in which you received an injury to an eye and required treatment at the Royal Melbourne Hospital.
So far as your part in the event which lead to Duc Lam’s death is concerned your counsel submitted that you were subjected to an element of provocation. He said that Vinh Luong had warned Duc Lam not to come to the Shanghai Club that night because Fong Chau was there. Your counsel submitted that his ignoring of this warning and his subsequent appearance at the Shanghai Club constituted some form of provocative behaviour towards you.
Whilst the facts as stated by your counsel may well be true I find it difficult to see how any such behaviour could mitigate the seriousness of the actions which you engaged in. Even if you did not have an intention to kill Duc Lam at the time you stabbed him it is clear that you had an intention to inflict really serious injury upon him even if, as you maintain, you only picked the knife up from the stairway, fortuitously, a few seconds before you used it.
Your counsel also mentioned, in the course of his plea, that alcohol may have played some part in the whole event. Doubtless it did but, again, the lowering of one’s inhibitions by the consumption of alcohol does not constitute a mitigating factor in relation to the imposition of an otherwise just sentence.
In the course of your interview by the police and, throughout your trial, you maintained that someone else had also inflicted a stab wound on the deceased. Whether this is so or not it avails you nothing by way of mitigation having regard to the jury's verdict.
In fixing an appropriate sentence in your case I am required to take account of the matters set out in s 5(1) of the Sentencing Act 1991.
You must be punished for the crime which you have committed. You and others must be deterred from committing offences of this nature. The community cannot tolerate wanton acts of violence such as that which you committed in this case. As far as general deterrence is concerned, your counsel urged me to take into account your somewhat diminished intellectual capacity as rendering you an inappropriate vehicle for the deterrence of others. Whilst I am not satisfied that you fall into that group of offenders in respect of whom the law considers the issue of general deterrence to be inappropriate there is room in your case for some sensible moderation of your sentence to take account of the matter to which I have referred. I have moderated your sentence accordingly.
Your counsel tendered a number of Kangan Batman TAFE reports attesting to your having undertaken various courses whilst on remand. Without wanting to give such materials undue weight their existence attests, at least, to the possibility of your ultimate rehabilitation. Taking into account those matters and your previous good work history it is unlikely that you will offend again and likely that you will achieve some appropriate rehabilitation over the long period that you are going to spend in gaol. For the same reason the protection of the community is not as significant a factor in the sentencing process in your case as it might be in many others.
Finally I consider that your difficulties with language, your diminished intellectual capacity and your lack of work experience at other than the lowest level justifies the imposition, in your case, of a longer period of parole than would normally be applicable in a case of murder. Thus, you will be eligible to serve the last part of your sentence within the community under appropriate supervision.
Fong Chau
You, Fong Chau, were born on 18 June 1974 so that you are now 29 years of age. You too are ethnic Chinese having been born in Saigon of parents who were from China. Your counsel has outlined your background to me and as the Crown has not contested his assertions of fact I am prepared to act on them.
You speak Cantonese, some Vietnamese and some English. You are one of eight children. Three of your sisters are in Australia and one is in the United States. One of your brothers, Kenny Hyunh, lives in Melbourne. Your other brothers are still in Saigon.
You commenced school when you were 10 in Saigon and went to about year 4 of secondary school. You then went to a Chinese school and eventually left and got a job working as an electrical mechanic.
You came to Australia when you were about 17, in September 1992, sponsored by your sister. You attended a language school for three terms and then went to St Albans High School for about two years. Not surprisingly you found school difficult and eventually left to work in a butcher shop in Collingwood. Now you are the Manager of a butcher shop in Box Hill, the proprietor of which has written a glowing reference which I have read. You work 11 hour days and have the ambition of owning your own shop. It would be unfortunate indeed if the propensity for violence which you exhibited on the night of this attack on Duc Lam led to your being frustrated in this ambition.
So far as your part in this assault is concerned it would seem that the Crown accepts that you did not know that Quoc Bieu Luu was armed or that he used or intended to use a knife. The Crown accepts that your assault on Duc Lam consisted of punching, thumping and kicking and resulted in bruising and abrasions although which particular injuries were inflicted by you it is, of course, impossible now to determine. It is important that I emphasise that the sentence to be imposed upon you will be imposed on the basis that you were in no way concerned in the death of Duc Lam and that your actions on that night amounted to no more than those that I have described. Your animosity towards Duc Lam apparently arises out of the same long running feud I have already described. Its origins are obscure even if its earlier manifestations resulted in violence. In your case your counsel has asserted that you were the subject of some violence meted out by associates of Duc Lam a year or so before the events of 12 August 2001.
The only other matter relevant to the actual commission of the offence to which you have pleaded guilty was your counsel’s statement that your instructions were that at the time it occurred you were drunk. Whether you were or not, in the circumstances of this case intoxication is not a mitigating factor. Indeed it may aggravate the seriousness of the offence for which you are about to be sentenced.
You have two relevant prior convictions, one for indecent assault which, as your counsel puts it, arose out of some “fooling around and wrestling” with a Cambodian girl whilst you were working in a supermarket in Springvale. You were dealt with at the Dandenong Magistrates' Court on 7 December 2000 when you were fined $500 without a conviction being recorded. Your counsel was unable to enlighten the Court further as to the circumstances of this offence and the Crown put no submissions as to this offence or its circumstances.
In March 2001 you were engaged in an altercation with another driver in the course of which you damaged his car by striking it with a steering lock. Again these assertions by your counsel were not contested by the Crown and I have no other evidence in respect of them.
Your counsel has submitted that the appropriate ends of sentencing can be met in your case without the need for a sentence which involved immediate incarceration. I accept this submission although, in doing so, I do not wish to down play the seriousness of the assault in which you engaged on an apparently unarmed man who was fleeing from that assault and those of others at the time. It is necessary to denounce this form of wanton street violence effectively and to take account of your age and background to impose a sentence of imprisonment. However I am satisfied that it is desirable, in the circumstances of this case, that that sentence of imprisonment be wholly suspended. Further, your prior offences, each of which was for a crime of violence, make it appropriate that a conviction be recorded in your case. In this respect you can be appropriately distinguished from Phillip Sung and Alan Kim.
Phillip Sung
Phillip Sung, you are 22 years of age. You are of ethnic Chinese background having been born in Hong Kong although you came to Australia when you were three. Not only are you much younger than your co-offenders but your background is also considerably different.
You were educated to VCE level and undertook tertiary studies in business and marketing when you finished school in 1999. You did not complete that course but have worked at various jobs since, including night shift work at KFC Fast Foods and selling mobile phones. Your counsel said that your wish is to enrol in a TAFE course next year to finish the business course which you commenced. He says that you have put your life on hold waiting for this matter to be resolved.
A number of written character references have been tendered on your behalf without objection from the Crown and I take into account the matters contained in them. They describe a person of gentle disposition who acted somewhat out of character in assaulting Duc Lam on 12 August 2001. You were apparently always a moderate drinker and have drunk even less since the commission of this offence. Your counsel also says that you have not associated with your co-offenders at any time since the commission of this offence in August 2001.
You have no prior convictions although your counsel disclosed what might have been a minor infraction in relation to the use of public transport which is of no relevance in the present circumstances.
Like your co-offenders, Fong Chau and Alan Kim, you were unaware that Quoc Bieu Luu had a knife at the time he attacked Duc Lam or that he had an intention to inflict really serious injury upon him. In your record of interview you told the police that you were not really certain who you actually hit but whoever it was you hit him two or three times. You made this admission in a non-responsive answer to a police question which suggested that you delivered only one punch and one kick. The extent of the injury you inflicted on Duc Lam is, of course, unknown. As far as can be ascertained it may have consisted of a bruise, abrasion or perhaps both.
After the assault upon Duc Lam you went home oblivious to the fact that he had been mortally wounded and gave yourself up to police only after you saw his death reported on television. Indeed even when you attempted to do this it required some persistence on your part to find the relevant investigating officers to enable the interview in which you provided the only evidence the Crown had against you, to occur.
In sentencing you I am required to take into account the matters to which I have already referred in respect of your co-offenders and, in particular in your case, I am required to take into account your relative youth and the overriding consideration that it is in the public interest that you be given the greatest possible opportunity for rehabilitation.
My overall impression of you is that you will not offend again and that this incident was completely out of character. Accordingly, I do not consider that in your case a gaol sentence is warranted. The purposes of sentencing can be adequately met by a non-custodial disposition. Further, your lack of prior convictions leads me to extend the mercy of the Court so that a conviction will not be recorded against you in this case. You will appreciate that by taking such a course I have expressed confidence in your ability to put this event behind you and ensure that you do not have contact with the law again.
Alan Kim
You were at the Shanghai Club as a friend of Kenny Hyunh, Fong Chau's brother. Your counsel has told the Court that you knew Fong Chau but would not describe yourself as a friend or an associate of his, that you had never met Duc Lam and had had no involvement in any previous animosity which involved him and any of your co-offenders. Your counsel says that you had met Quoc Bieu Luu on only a couple of occasions and then only through Kenny Hyunh. None of these assertions is contested by the Crown.
In your record of interview you said that you had had a fair bit to drink on this night and your described yourself as being "a bit tipsy". Your counsel says that you were not a person who was a regular consumer of alcohol so that what you had drunk may have had a greater effect on you than it would have had on others. However, as I have said in the case of Fong Chau, your ingestion of alcohol is not a mitigating factor. Indeed it may well be an aggravating factor in an offence of this nature.
Your counsel put to the Court that your involvement in the actual assault on Duc Lam occurred largely because other people were already pursuing him. This seems unlikely but in any event, like Fong Chau and Phillip Sung there is no suggestion by the Crown that you were in any way involved in the murderous assault which led to Duc Lam's death. As far as the evidence is concerned, your involvement is limited to the throwing of a couple of punches – actions which you certainly should not have performed but which probably inflicted very little by way of injury upon the victim.
You are 25 years of age. You were born in Vietnam of Chinese parents who migrated to Australia in 1987 sponsored by your uncle. You, like Phillip Sung, completed your VCE with a TER such as you were able to undertake business/marketing studies at Monash University, Caulfield campus. It also appears that whilst you were at school you were a person who participated in school activities even to the extent of being a member of the school's Student Executive Council. You also attended Chinese ethnic school for a period on Saturdays to ensure that your Chinese cultural background was not lost. You did very well in these studies and, your counsel says, you are fluent in both Mandarin and Cantonese.
After you commenced at Monash University you worked, during holidays, as a storeman and salesman at a Retravision store in Springvale where you met Kenny Hyunh.
Some financial difficulties together with health problems which beset your parents caused you to drop out of your business course although up to the time you did so you had satisfactory marks. Eventually you began operating businesses yourself in the telecommunications area. Although the first couple of these businesses which you commenced did not succeed, when they collapsed they did so with no outstanding creditors.
On the night of this offence you were given a lift home shortly after it by some friends. You did not know of Duc Lam's death for a number of days until you saw a report of it in a newspaper. Upon seeing that report you presented yourself at the Springvale Police Station and eventually told the police of your involvement as your counsel outlined it to the Court. It seems clear that you would not have been apprehended had you not gone to the police of your own accord.
At the time you pleaded guilty to this offence you were employed as what is described as a business development manager by a company called Simcity. Your counsel tendered, without objection from the Crown, a written reference from Mr Aron Duong, a director of that company which speaks in glowing terms of your work activities and the contribution you make to the business. Other character references tendered were similarly expressed.
You have no prior convictions.
In the circumstances, like Phillip Sung, the ends of sentencing can be appropriately effected in your case by a non-custodial disposition. Again, having regard to your age, the evidence which I have considered of your general good character and your prospects it is appropriate that no conviction be recorded in your case.
Sentences
Quoc Bieu Luu, the sentence of the Court is that you be imprisoned for 16 years. It is further ordered that you serve a minimum of 12 years before being eligible for parole. There will be a declaration that a period of 814 days be reckoned as the period already served under the sentence just imposed and it is directed that the fact that that declaration was made and its details be noted in the records of the Court.
Fong Chau, it is the sentence of the Court that you be imprisoned for a period of one year such period of imprisonment to be suspended for two years. Before making such an order for suspension I must explain to you the purpose and the effect of a suspended sentence and the consequences that may follow if you commit, whether in or outside Victoria, another offence punishable by imprisonment during those two years.
The purpose of suspending this sentence is to enable you to effect a total rehabilitation and reintegration into the community following the offence which you have committed. If you commit another offence punishable by imprisonment over the next two years whether in Victoria or anywhere else, you will be brought before a court and, unless there have been exceptional circumstances which have arisen since the order suspending the sentence was made, you will be required to serve that sentence.
Phillip Sung and Alan Kim, you will each be released without conviction and this sentencing proceeding will be adjourned for a period of two years upon your giving an undertaking that you will appear before this Court if called upon to do so at any time during those two years and that you be of good behaviour during those two years. Upon your agreeing to give such an undertaking you will be immediately released.
[Undertakings were given in writing by Phillip Sung and Alan Kim]
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