R. v. TANG WAI KEUNG and Another

IN THE COURT OF APPEAL

1996 No.735
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. There were originally three accused. The applicants were D1 and D3 and I shall refer to them as such in this judgment.

2. The three defendants faced one charge of murder. D1 faced an alternative count of assault occasioning actual bodily harm. Before Leong J. all three pleaded not guilty to murder. D1 pleaded guilty to the assault occasioning actual bodily harm count and D2 and D3 pleaded guilty to manslaughter.

3. The admitted facts were:

"Shortly after midnight on 12^th February 1996 the deceased Lam Kwok-cheong together with his friend Ng Ting-kwong and girl friend So Suet-ngor left the Circle K Convenience Store at Fung Tak Estate shopping arcade. When they got outside Ng Ting-kwong noticed that the 1^st defendant, who was there with the 3^rd defendant, and also Ngai Shing-bun and a young woman by the name of Chau Kwai-lin, was staring at him.

Ng Ting-kwong pointed his finger at the 1^st defendant and asked him 'What are you fucking staring at' and the defendant replied, 'I should ask you the same thing' or words to that effect. The 1^st defendant and Ng then commenced to quarrel and the deceased Lam Kwok-cheong joined in. At some stage, the 1^st defendant said that he was 'Lo Sun' and tried to leave but his way was blocked by Ng and the deceased who indicated that this was 'a market'.

The 3^rd defendant, Wong Chi-yin then told them that the 1^st defendant had been drinking, in an apparent effort to diffuse the situation but he was told to get 'fucking lost'. The 3^rd defendant then told the 1^st defendant he was taking Chau Kwai-lin upstairs and left with her. The argument continued. Ng and the deceased starting bumping their chests against the 1st defendant. The 1^st defendant indicated that he was willing to fight and took off his coat and hat. Ng Ting-kwong indicated that he was prepared to fight.

In the meantime the deceased went into the convenience store and picked up an umbrella but then subsequently put it down again. He then asked So Suet-ngor to hold his belongings as he prepared to fight, and So Suet-ngor then went up to the podium.

In the meantime, the 3^rd defendant had gone with Chau Kwai-lin to the 2^nd defendant's flat and asked him to come down to help the 1^st defendant. According to the 3^rd defendant the second defendant, at this time, handed the 3^rd defendant a small knife but he, the 3^rd defendant, gave it back to him.

Then the 3^rd defendant returned with the 2^nd defendant, who is a brother of the 1^st defendant to where the fight was taking place. The 2^nd defendant was carrying a glass bottle and was armed with 2 knives which he had put in the pockets of his jacket. The 3^rd defendant was carrying a wooden rod or pole, which he picked up when he got down-stairs.

The fight at this stage was still taking place in an area immediately outside the convenience store. At this time the deceased and Ng Ting-kwong were fighting with the 1^st defendant with fists and Ngai Shing-bun was standing to the side. None of them were armed.

When the 2^nd and 3^rd defendants arrived, the 3^rd defendant broke the wooden rod or pole against a wall. They saw that the 1^st defendant was lying on the ground. Ng Ting-kwong shouted to the deceased to run quickly and they both ran. They 3^rd defendant then chased after them, followed by the 2^nd defendant. The 1^st defendant subsequently picked himself up and went after them.

Ngai Shing-bun, who had been witnessing the whole event, also went after them to see what was happening and saw the deceased Lam Kwok-cheong lying on the roadway, with the three defendants surrounding him. Ng Ting-kwong was a short distance away.

Ngai saw the 3^rd defendant press against the head of the deceased and strike his head with the broken wooden rod. He saw the 2^nd defendant stab the body of the deceased two or three times with a knife. He saw the 1^st defendant stand behind the deceased and kick his back. The 1^st and 3^rd defendants then stood up, ran up to Ng Ting-kwong and the 3^rd defendant hit him, injuring his head.

At this point in time Wong Chi-pan a friend of Ng Ting-kwong, who had just arrived at the scene, grabbed the 1^st and 3^rd defendants, but the 3^rd defendant managed to get loose, and left hurriedly with Ngai Shing-bun. Wong Chi-pan managed to apprehend the 2^nd defendant who dropped his knife in the flower-bed near the entrance to the shopping arcade.

The deceased, who had been lying on the ground, unconscious and bleeding, was taken to hospital by Ng Ting-kwong and So Suit-ngor.

The police arrived shortly thereafter and arrested the 1^st and 2^nd defendants.

The 3^rd defendant was arrested by the police later the same day, at his home.

The deceased was admitted to United Christian Hospital, but was pronounced dead at 1.15 am.

An autopsy revealed that the cause of death was stab wounds to the heart and left lung.

All three defendants were subsequently questioned by the police. During the course of the questioning all admitted being involved in the fight. The 2^nd defendant admitted that he had struck the deceased with the glass bottle and stabbed him several times with the knife. He claimed that he had no intention to kill the deceased. That he was angry at the time as the deceased had assaulted his brother, the 1^st defendant and he had acted on impulse."

(Emphasis supplied.)

4. The trial judge when sentencing D1 said:

"I accept that the fight between the deceased and the 1^st defendant involved only the use of fists and no weapon was used; and that when the deceased was attacked by the 2^nd and 3^rd defendant by the use of the weapons, namely the knife and the wooden pole, the 1st defendant was not part of that attack using weapons.

Nevertheless that attack with fists and kicking part of that involving releasing the 1^st defendant from the grip of the deceased constituted the offence of Assault occasioning actual bodily harm.

So I also accept that when the incident first arose, the 1^st defendant tried to avoid the incident. However, he did not stop there. He indicated he was willing to fight the 1^st -- fight the deceased. So he took off his coat and hat and he even told the friend to hold the clothing for him whilst he went down to the podium to fight the deceased. So he was not doing his best to stay away from trouble as has been put on the 1^st defendant's behalf, when he knew he was under a suspended sentence." (Emphasis supplied.)

5. As can be seen from the underlined passages the judge's observation "so he took off his coat and hat and he even told the friend to hold the clothing for him whilst he went down to the podium to fight the deceased" was not in accord with the Admitted Facts. What was admitted was "the first defendant indicated that he was willing to fight and took off his coat and hat. Ng Ting-kwong indicated that he was prepared to fight".

6. It seems that the judge confused this admission with the later one which involved the deceased where it was said that:

"He then asked So Suet Ngor to hold his belongings as he prepared to fight, and So Suet Ngor then went up to the podium."

This mistake has given rise to one of the grounds of appeal. We think it proper to say at the outset that we do not consider it to have been one of any real consequence. The important thing was that D1 was admitting his willingness to fight and that he had taken off his coat and hat preparatory to so doing. The trial judge went on to say:

"In the probation officer's report, it states that the 1^st defendant has a series of previous convictions. I think the 1^st defendant has been given on a number of occasions opportunity to reform himself. He was first put on probation; when that did not take effect, sent to a detention centre; when that did not take effect, he was sent to prison. It would appear that rehabilitative and punitive means have not taken effect on him.

There were some overtone of triad -- some triad overtone in this case, he called himself 'Lo Sun' at the initial stage. So all in all the 1^st defendant was not doing his best trying to avoid this incident. And there is no reason for me not to activate the suspended sentence.

However, the sentence on the 1^st defendant must commensurate with the part he took in this incident and also the nature of the offence against him, as well as taking into consideration his indication of his remorse through his letter to me, and to the probation officer and his plea of guilty to this offence."

7. In mitigation it was submitted to the judge that:

"In fact, what the 1st defendant would like to say about this is that he did go up to where the man was on the ground and the other two were standing there, that at that point the man on the ground caught hold of his legs and part of what was seen as kicking was, in fact, the 1st defendant trying to free himself from the grasp of the man on the ground."

8. The trial judge imposed a sentence of two years' imprisonment and activated a suspended sentence of nine months.

9. When dealing with D3, the judge said:

"As far as the 3^rd defendant is concerned, although it's accepted you did not use the knife, that you used a wooden pole which you hit the deceased on the head, and the wooden pole could be lethal in such an attack. And you participated in the attack which resulted in the deceased's death. I accept that you are the youngest in the group and you are only 21, but in such a case, as the Court of Appeal has indicated that youth does not carry very much weight unless it is extreme youth, but 21 years old is not considered to be extreme youth.

The first thing which is in favour of you is that you have a clear record and the probation officer's report is much more favourable than the probation report of the other two. And the probation officer's reports that you are a person of even temper and you -- it would not appear that you are a person of violence.

Nevertheless, you have contributed to the death of the deceased and one must, as far as the court is concerned - and the court does not look upon the death of a person killed in an offence lightly.

I have also read the two letters which you and the 2^nd defendant has written in Chinese and handed up to me and English translations have been read out in court which I will take into consideration."

10. Mr. Poll argued four grounds. The first ground which was the principal ground of the appeal, alleges that the judge incorrectly assessed the seriousness of the offence and in consequence passed a manifestly excessive sentence. We shall return to deal later with this ground.

11. In the second ground, it was urged that the judge misunderstood the sequence of events and had, because of this, regarded the actions of D1 in a much more serious light than he should have. We have already referred to this matter when reviewing the facts. It is true that a mistake was made by the trial judge but it was not in our view one of any real consequence.

12. In the third ground it is urged that the trial judge failed to give sufficient credit to the fact that the incident was initiated by the deceased and his friends, that D1 had tried to withdraw and was prevented from doing so, that D1 was knocked to the ground and provoked, that D1 endured ten months of stress while facing a murder charge and that he had shown real remorse. We shall return to consider these matters after dealing with the first ground.

13. In Ground 4 it is suggested that the judge wrongly exercised his discretion when he activated the suspended sentence. Nothing has been urged which gives any weight to this submission. The nine months' suspended sentence was imposed on 20^th October 1995 in relation to a theft offence. Nothing has been put before us which would suggest that the judge was in any way wrong in deciding to activate that sentence.

14. We return now to ground 1. Each step of Mr. Poll's argument as it unfolded has to be carefully set out. He starts by pointing out that the applicant pleaded guilty to a charge of assault occasioning actual bodily harm and must be dealt with upon the basis of that charge. He submits, correctly, that he cannot be dealt with upon any basis that involves him in a joint enterprise resulting in death. We pause here to say that, upon one reading of the Admitted Facts, he appears to have been making such an admission. We refer to the following passage:

"Ngai saw the 3^rd defendant press against the head of the deceased and strike his head with the broken wooden rod. He saw the 2^nd defendant stab the body of the deceased two or three times with a knife. He saw the 1^st defendant stand behind the deceased and kick his back. The 1^st and 3^rd defendants then stood up, ran up to Ng Ting-kwong and the 3^rd defendant hit him, injuring his head.

At this point in time Wong Chi-pan a friend of Ng Ting-kwong, who had just arrived at the scene, grabbed the 1^st and 3^rd defendants, but the 3^rd defendant managed to get loose, and left hurriedly with Ngai Shing-bun."

(Emphasis supplied.)

15. Mr. Poll goes on to submit that given his plea such an admission cannot be taken to have been an admission of participation in the joint enterprise which resulted in death. Mr. Cross for the Secretary for Justice concedes that this must be so. The difficulty has arisen because all three defendants were asked to admit to the same set of facts which, on one view of them, placed all three in a joint enterprise which resulted in death. Mr. Poll goes on, and Mr. Cross does not demur, that D1 must be taken as admitting no more than an assault occasioning actual bodily harm and must be dealt with upon the basis that at some stage during an attack by others he, without joining in that attack, came up and kicked the deceased.

16. While it seems that this must be so it leaves a gap in the factual basis relied upon to establish the offence as there was no admission of, or, it seems, was there to have been any evidence of, any actual bodily harm caused by kick. Mr. Poll submits that we must proceed upon the basis of the admission involved in the plea that some such harm did occur. While we may be required so to proceed, it is most undesirable that a sentencing court be forced into adopting such an approach.

17. The difficulty which has arisen would never have occurred had separate facts been prepared, as they should have been, in relation to D1.

18. How did the judge deal with this matter? He said:

"I accept that the fight between the deceased and the 1^st defendant involved only the use of fists and no weapon was used; and that when the deceased was attacked by the 2^nd and 3^rd defendant by the use of the weapons, namely the knife and the wooden pole, the 1^st defendant was not part of that attack using weapons.

Nevertheless that attack with fists and kicking part of that involving releasing the 1^st defendant from the grip of the deceased constituted the offence of Assault occasioning actual bodily harm."

19. It seems to us that the judge, rightly, proceeded upon the basis that D1 independently of what was being done by the other two defendants attacked the deceased "with fists and kicking" causing him unspecified injury. While this attack clearly occurred at the time when the fatal attack was being perpetrated by the other two defendants the criminality of D1 cannot be put higher than the delivery of a kick causing unspecified harm amounting to actual bodily inujury. Mr. Poll finally argues that this criminality does not warrant a sentence of imprisonment for two years. We agree. We are satisfied bearing in mind the matters argued in Ground 3 that the proper sentence would be one of nine months. As we have already indicated the suspended sentence of nine months was properly made consecutive to the sentence on the assault.

20. D1's application for leave to appeal against sentence is allowed. The hearing of the application is treated as the hearing of the appeal and the sentence on the assault occasioning actual bodily harm is varied to one of 9 months.

21. Mr. Poll argues as regards D3 that the judge failed to give weight to the fact that the incident was provoked by the deceased and his friends, that D3 had initially tried to act as a peace-maker, that the primary intention of D3 had been to get help to rescue his friend and that he had "specifically eschewed the use of a knife in the rescue and had no reason to anticipate that such a weapon would be used by the 2^nd appellant". D3 must be sentenced upon the basis of the admitted facts and the matters placed before the judge in mitigation. The facts admitted:

"In the meantime, the 3^rd defendant had gone with Chau Kwai-lin to the 2^nd defendant's flat and asked him to come down to help the 1^st defendant. According to the 3^rd defendant the second defendant, at this time, handed the 3^rd defendant a small knife but he gave it back to him.

Then the 3^rd defendant returned with the 2^nd defendant, who is a brother of the 1^st defendant to where the fight was taking place. The 2^nd defendant was carrying a glass bottle and was armed with 2 knives which he had put in the pockets of his jacket. The 3^rd defendant was carrying a wooden rod or pole, which he picked up when he got down-stairs."

22. Counsel when mitigating said:

"At the time of the fight in the roadway, whilst he appreciated that the 2^nd defendant did carry a knife, he at no stage contemplated that the 2^nd defendant would possibly use that knife in the manner that he did, namely to cause death or serious bodily harm."

23. In his written mitigation which was read by his counsel below he said:

"I did not intend to kill anybody. I only wanted to teach them a lesson as by their provocation (sic)."

24. We have no doubt that the judge had these matters in mind when sentencing and are satisfied that there is no warrant for suggesting that he failed to give proper consideration to them. It is further urged that the judge failed to take into account that D3 was a younger man with a clean record, that he had no history of violence, that he had a relatively good probation report that he had pleaded guilty and had shown real remorse. Again we find no warrant for the suggestion that the judge was unmindful of these matters. The fact of the matter is that D3 participated in a violent attack which resulted in death. The trial judge was right to observe "the court does not look upon the death of a person killed in an offence lightly". We see no proper ground for interfering in the sentence of six years that was imposed. The application is dismissed.