R. v. CHEUNG CHI-MAN

IN THE COURT OF APPEAL

1992 No. 14
(Criminal)

HEADNOTE

Defendant pleaded guilty to manslaughter. Death occurred in course of gang-attack. Defendant was 19 at the time of the offence and although part of the group was not armed and was not the leader of the group. Defendant expressed remorse. Held: 8 years was a sentence within proper range.

IN THE COURT OF APPEAL

1992 No. 14
(Criminal)

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J U D G M E N T

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Power, V.-P.:

1. This is the judgment of the Court.

2. The applicant originally faced one count of murder. It was charged that on 8th August 1991 outside Block 8, Lei Muk Shue Estate, Tsuen Wan, he, together with other persons unknown, murdered Lee Kwok-on. He pleaded guilty to manslaughter before Deputy Judge Leong and was sentenced to imprisonment for eight years. It is against that sentence that he now seeks leave to appeal.

3. The admitted facts were that at about 9 p.m. on 7th August 1991, the deceased was seated with friends outside Block 8, Lei Muk Shue Estate. A group of about ten persons including the applicant approached the deceased and demanded to know whether he belonged to a triad society. Members of the group were armed with poles, steel pipes and wooden folding chairs. Before the deceased was able to give any answer to the question, a person known as Wah Chai, who appeared to be leader of the group, gave the command to beat him. The deceased's friends escaped but the deceased was beaten into unconsciousness. He was later taken by ambulance to Princess Margaret Hospital. He underwent surgery for a fractured skull but succumbed to his injuries at 7.15 p.m. on 8th August. The cause of death was intracranial haemorrhages caused by a fractured skull.

4. The applicant was arrested some three weeks later. When taken to Tsuen Wan Police Station, he admitted being a member of the group that had beaten the deceased. He has at all times denied having taken part in the actual beating. He indicated to the police that the incident arose because some weeks earlier his brother had been threatened by some men and had asked Wah Chai to mediate for him. He said that Wah Chai assembled a group and they proceeded to the place where the deceased was sitting on that night arming themselves on the way; that Wah Chai was the one who gave the command to start beating. He admitted that he had anticipated that the deceased would be put in fear of his life and assaulted but said he did not contemplate the beating would go so far or that the deceased would be injured in a really serious way.

5. When sentencing the trial judge observed that although no knife had been used, the attack was a vicious one which resulted in death. He went on to say:

"In the circumstances of such a case, the authorities on sentencing in manslaughter show that a starting point of six years' imprisonment was considered to be on the low side. A more recent authority, the case of R. v. KO Kam-hung [1991] 2 Hong Kong Law Reports, 433, the Court of Appeal was of the opinion that a sentence of eight years' imprisonment is an appropriate sentence.

For a case of this nature, for someone, whether by himself armed or not, who takes part in a gang attack with others, some of them carry weapons such as wooden poles or water pipes, and from which death ensues, and the fact that the attacker or the defendant is a young man, unless he is extremely young, his family background, his clear record carries little weight in mitigation. Any person who attaches himself to such an attack, whether or not he himself inflicts the blows, must consider himself at risk of a sentence of that quantum."

The judge stated that he took into account that the applicant was not armed and the enterprise was led by the person known as Wah Chai. He took into account that the applicant was only 19 at the time of the offence and had expressed remorse and had pleaded guilty. He also bore in mind the background of the applicant but was satisfied that he was required to impose a sentence of eight years.

6. The applicant before us today submits that that sentence was too severe urging us to give weight to the fact that he didn't participate in the actual beating, that it was not his idea and that he has been cooperative since his arrest. He submits that his fault lay in the fact that he did not dissociate himself from the attackers and asks to be released early in order to lighten the financial burden upon his family. We have no doubt that these were all matters within the matrix of fact which was considered by the trial judge when sentencing.

7. We can do no better than echo the words which he used when sentencing which were entirely appropriate and which followed the indications given by this court as to the proper sentence in cases of this nature. The sentence was within the proper range and nothing has been urged before us today which calls for our interference.

8. The application for leave to appeal against that sentence must, therefore, be refused.