HKSAR v. VO VAN HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1994, No.417
(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. On 15th August 1994, the applicant was convicted of murder which was committed on 6th January 1994 and sentenced to imprisonment for life.

2. The Offences Against the Person Ordinance s.2 was amended on 30th June 1997 to provide that if it appeared to the court that an offender who was liable to a life sentence was under 18 at the time of the offence, the court had a discretion to impose a determinate sentence.

3. Although the age of this applicant was not positively established, it seems clear that he was under the age of 18 at the time of the offence. This court has held in R. v. Lam Ka-yiu that pursuant to Article 12 of the Bill of Rights Ordinance, the amended section has retrospective effect. We are now asked to assess and impose a determinate sentence.

4. The applicant had his appeal against conviction dismissed on 14th June 1995. He, at that time, also sought leave to appeal against sentence but, the sentence being a mandatory one, the Court of Appeal held that the application for leave to appeal was incompetent.

5. The facts are set out in the judgment of the Court of Appeal as follows:

"It is clear from the summing-up that there was ample evidence to support a conviction for murder. The most telling evidence came from the first prosecution witness who was another inmate of the detention centre. He said that he saw the defendant hurriedly go into hut 1, search under the bed, fetch something and tuck it inside his body. He said that he thereafter watched the defendant and saw him go out of hut 1, approach the deceased and tap him on his shoulder. He said that he heard him say, "Hey, you told me to have a fight this afternoon one and one." He said the deceased turned his body half-way, the defendant then stepped back and then dashed forward and gave one blow to the deceased's stomach. He said that the deceased then walked away holding his stomach and approached him and said, "Cannot make it any more. He had the knife.".

Evidence as to the incident came also from the second prosecution witness, who said that he saw the deceased and the applicant in close proximity and that he thought from what he saw that the applicant was about to strike a blow, and from the eighth prosecution witness said that he was unable to see who it was but he saw the movement of the person who struck the blow who was standing and with one hand was thrusting towards the deceased. He said that he saw that person stretch his arm forward to strike. It was the defence as indicated by the judge in his summing-up that the deceased had threatened to beat the applicant and the applicant had by chance a knife in his pocket at that time, that he then produced a knife, holding it in his hand, stretched out his arm pointing and thrusting the knife at the deceased to warn him not to come near. The applicant said both in his statement and in his evidence that the deceased pounced and leaned forward and he was then stabbed. He indicated that he was not aware of the stabbing until he saw there was blood on the knife.

The trial judge carefully directed as to self defence and as to the alternative verdict, if no intent to cause death or grievous bodily harm was established, of manslaughter. The jury can have been left in no doubt as to the way in which they should approach the evidence. There is, we are satisfied, nothing which would allow this court to interfere in the jury's verdict and the application for leave to appeal against conviction must therefore be refused."

6. The jury clearly rejected the applicant's version of events. It was the evidence of the prosecution witnesses that the applicant had deliberately armed himself with a knife, had then challenged the deceased and had, immediately thereafter, the deceased having risen to his feet, plunged the knife into the chest of the deceased. We have no doubt that the jury accepted that evidence which established that the killing thrust was a calculated one. What was the appropriate sentence in such circumstances? We are satisfied that, given the applicant's age, it would be appropriate to impose a determinate sentence. We have taken into account all that has been urged today by Mr. Poll and particularly the youth of the applicant and the unfortunate circumstances in which he found himself having been detained for a very long period in the refugee camp. We bear in mind also, however, that the applicant deliberately armed himself, created the confrontation and then, without more, fatally stabbed the deceased.

7. We are satisfied that, in all of the circumstances, the appropriate sentence is one of 29 years. The life sentence is quashed and it is replaced by one of that term.