THE QUUEN v. CHUI SAP YEE AND ANOTHER

IN THE COURT OF APPEAL

1987, No.69

(Criminal)

BETWEEN

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J U D G M E N T

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Power, J.A.:

1.    The applicant, who was the third defendant at trial, having pleaded guilty to manslaughter and having pleaded guilty t manslaughter and having been sentenced to imprisonment for five years now appeals against that sentence.

2.    The circumstances in which the offence was committed were that a girl LO Kwai-ying, having been chided by her brother and one Ha Kwok Hung because of her association with CHUI Sap-yee the 1st defendant, telephoned the 1st defendant and told him what they had said to her. In consequence of that a group of young men, which included the applicant and the first defendant went to a bus-stop and, having interrogated a number of intending passengers in an endeavour to identify Ha Kwok Hung, eventually attacked a young man, who was not Ha, who succumbed to the injuries received. It is, indeed, tragic that this man was an entirely innocent outsider unconnected with any of the preceding events.

3.    The 3rd accused made a statement in which he said:

"At that time Ah Po took and picked up an iron water-pipe rushed forward and hit him on the head. On seeing that we went up and surrounded him. None of us hit the deceased at the time. We all stood there. Everyone of us then went forward and surrounded him and hit him several times with fist. I also rushed forward with a view to hitting him but there was not enough room because they had all surrounded him. I raised my foot and aimed at his thigh. I did not know if I managed to hit him or not. It was in a big confusion at that time."

He was 16 years and 9 months of age at the time of the offence. He now urges a number of grounds of appeal. The first matter with which we deal is an apparent disparity between his sentence and that of the 2nd defendant at the trial. The 2nd defendant was 18 years and 2 months of age at the time of the offence and was dealt with by de Basto, J. separately from the other defendants who were dealt with by Hooper, J. He after pleading guilty was sentenced to 3 years imprisonment. We do not need to dwell alone upon this apparent disparity because it is clear, I when the record is examined, that the basis upon which the learned trial judge sentenced him was that he had struck a brow without knowing that any weapon had been used. This clearly placed the facts which related to him in a different category to those which related to the other offenders. The learned trial judge was, in the circumstances, justified in remarking when sentencing the 2^nd defendant that he did so upon the basis that he had played a relatively minor role. Such was not the case as regards the applicant who admitted that he had seen the deceased being struck with an iron water-pipe and that he then joined in the attack.

4.    Mr. Dinan who appears for him has referred us to authorities which he suggests indicate that the sentence, given the applicant's youth and the circumstance of the offence, was excessive. He refers firstly to the case of R. v. YEUNG Siu-kwok(1) in which another division of this court reduced sentences for manslaughter following a gang attack from 8 years to 5 years after trial. We do not find any real assistance from this case other than the indication that 5 to 6 years is an appropriate sentence when the court is dealing with a gang attack. He also draws our attention to R. v. LEUNG Hang-sang(2) where sentences of 8 years and 6 months for manslaughter after trial were reduced to 6 years. It is significant to note that the facts in that case disclose that although it was triad and drug related, which were serious factors, no weapons were used. Again we do not, given that no weapons were used, obtain much guidance from this except that it also indicates that an appropriate sentence for manslaughter after a gang attack is 5 to 6 years.

5.    Mr. Dinan points to the fact that the applicant pleaded guilty at the first pre-trial conference. This weighs heavily in his favour. We are asked to note also that he was aged only 16 years and 9 months at the time of the offence. His age is, however, in our view, not a compelling factor in his favour given the seriousness of the offence and the fact that offenders in this type of offence are very commonly in the age group from 16 to 21.

6.    We take into account, as did, we are satisfied, the trial judge, his maturity, his background, the degree of his involvement in the attack, the fact that he cooperated with the police, that he has a clear record and that he is remorseful. We also are asked to give weight to the fact that this was not a triad related incident. We do not consider that the last matter can be accorded any real weight given that this was a gang attack in which a group of young men, one of whom was armed, set about and killed the unarmed victim.

7.    The matter that principally concerns us is whether sufficient weight was given by the trial judge to the marked difference as regards culpability between the 1st defendant and the applicant. The 1st defendant was the instigator of the attack and he played a major part therein. In fact it might be said that he played the major part as he carried the weapon and wielded it and it was to this blow that the deceased succumbed. Further the 1st defendant pleaded not guilty and was only convicted and sentenced to imprisonment for 6 years after trial. It may be that the 1st defendant was fortunate not to have received a more severe sentence than he did. We consider, however, that we must proceed upon the basis that the trial judge, who had the feel of the matter, imposed an appropriate sentence.

8.    There are significant distinctions between the 1st defendant and the applicant.

9.    The applicant pleaded guilty. He has, we are told, shown real remorse. He clearly played a very much lessor role in the attack than the 1st accused. We must, given that we accept 6 years as the proper sentence to be imposed upon the 1st defendant, be satisfied that when sentencing the applicant the trial judge accorded due weight to the manifest distinctions that exist between him and the applicant.

10.    We are satisfied that he did not and that if due weight is given weight to those distinctions the sentence of 5 years is excessive. We allow the application, treat it as the hearing of the appeal, and vary the sentence of 5 years to one of 4 years      When so doing we make it plain that we would have been slow to interfere with the sentence of 5 years had we not considered that we should accept that 6 years was the proper sentence to impose on the 1st defendant.

Mr. D. Fitzpatrick (Crown Prosecutor) for the Respondent Mr. Edward Laskey (D.L.A.) for D1 (on sentence).

Mr. Paul Dinan (D.L.A.) for D3 (on sentence).

1st Applicant in person (on conviction).

(1) (1987) Cr. App.No.5

(2) (1986) Cr. App. No.176