HKSAR v. MOK YU CHUEN AND ANOTHER

CACC 269/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 269 OF 2008

(ON APPEAL FROM HCCC NO. 8 OF 2008)

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REASONS FOR JUDGMENT

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Hon Wright J, giving the judgment of the Court:

1.  On 8 August 2008, before McMahon J, the first applicant was convicted by a jury of a single count of murder. The second applicant was acquitted of the same charge but convicted of manslaughter. The second applicant was sentenced to undergo imprisonment for a period of 10 years. The first applicant sought leave to appeal conviction: the second applicant sought leave to appeal conviction and sentence. On 5 November 2009 we dismissed each application. We indicated that we would provide our reasons: these are they.

Background

2.  In the early hours of the morning of 4 June 2006 a teenager, PUN Fuk-kwan, who was a member of a group referred to at trial as “the KFC group” was assaulted by members of another group referred to as “the Cheung Wah group”, being bludgeoned with waterpipes.  Members of the Cheung Wah group, but specifically the two applicants as well as two other identified youths, TSOI Ho-ming and CHAN Ka-wing, earlier had travelled by taxi to the vicinity of Fanling Station, where the assault occurred. That incident was itself precipitated by an earlier confrontation between a member of each group, that confrontation being as a result of an allegation that one had stared at the other. The deceased sustained, amongst other injuries, multiple fractures of the left side of the skull together with fractures behind the ear and to the left eye socket; severe traumatic brain injury; and an injury to the left knee. As a consequence of the injuries he died on 9 June.

3.  TSOI and CHAN were arrested later on 4 June and, after PUN’s death, were charged with his murder. They were tried by a jury before McMahon J in May 2007.  Each was acquitted of the count of murder but convicted of manslaughter. TSOI was sentenced to undergo imprisonment for 7 years and CHAN, who was but 14 at the time of the offence, for 6 years.

4.  The prosecution relied on the fact of the two applicants ‘flight’ in support of its case: it would be more accurate to describe them as having gone into hiding in Hong Kong on the day of the incident.  The police searched for them unsuccessfully. They were only located, on board a sampan in Tolo Harbour, some 15 months later. They were then charged.

5.  The primary witness at trial, without whose testimony being accepted by the jury it was plain that the prosecution could not succeed, was TSOI. He had displayed, from the time of his arrest, great enthusiasm for being a witness rather than an accused. After his arrest he participated in three interviews with the police, two of them lengthy: in none had he mentioned the involvement of either of the applicants in the fatal assault.  On 10 June 2006 he was interviewed at length, during which he described the participation of the applicants.  At trial he ascribed this change to the fact that PUN had died the preceding day and he felt he had “no alternative” but to relate the applicants’ involvement.

The grounds of appeal

6.  The grounds of appeal for each applicant related mainly towards the way the judge directed, or failed to direct, the jury on various matters but particularly as to how the testimony of TSOI should be approached. The grounds and written submissions were frequently couched in florid and gratuitous terms, extending in the case of the second applicant, to the express assertion that there “can be no doubt” that the “court was biased” – a submission which was hastily withdrawn by Mr Andrews in his oral submissions. It was unfounded: it should not have been made.

7.  The first applicant’s Perfected Grounds of Appeal were six in number and may be summarised thus: first, the judge erred in rejecting a submission that there was no prima facie case for the first applicant to answer on the count of murder; second, the judge erred in directing the jury that there was independent evidence capable of supporting TSOI’s testimony; third, the judge failed to properly direct the jury as to the “level of caution” with which they should approach TSOI’s testimony; fourth, the summing up was unbalanced, being favourable to the prosecution; fifth, the judge dealt improperly with the ‘character’ of both the first applicant and TSOI; sixth, the judge improperly directed the jury as to the use of the applicant’s ‘flight’. In essence, Grounds 1, 2, 3 and 5 all related to the adequacy of TSOI's testimony.

8.  The second applicant’s Perfected Grounds of Appeal in regard to conviction contained argument which, in summary, may be categorized as asserting: first, that the conviction was unsafe and/or unsatisfactory, praying in aid Grounds 2 to 6 inclusive of the first applicant, although, before us, that prayer was extended to include Ground 1 (§5); secondly, that the judge had made improper comment resulting in an unbalanced summing up (§5.1); thirdly, unfairness in four different respects in regard to a question of identification (§§5.2, 5.3, 5.6 and 5.8); fourthly, that the judge had ‘entered the arena’ (§5.4); fifthly, that the judge invited the jury to speculate (§5.5); sixthly, a material misdirection in regard to evidence “corroborative” (sic) of the testimony of TSOI (§5.7).

9.  Insofar as sentence was concerned, the second applicant’s Perfected Grounds of Appeal submitted that the sentence imposed was “excessive, disproportionate and/or disparate” essentially complaining that he had been sentenced to a longer period of imprisonment than had TSOI and CHAN despite what were submitted to be similar roles played in the fatal assault.

First applicant’s application

10.  Ground 1: a submission was made at the close of the prosecution case that there was no prima facie case for the first applicant to answer on the charge of murder and that only manslaughter should be left to the jury. The judge rejected the submission, rightly so in our judgment. The submission was based on the second limb of the test enunciated in Galbraith (1981) 73 Cr App R 124.  The submission ignored, as is frequently the case, the paragraph following that in which the familiar test is set out at p. 127 of the report, which reads:

"There will of course, as always in this branch of law, be borderline cases. They can safely be left to the discretion of judge.”

11.  It was submitted to us that certain facets of the prosecution evidence themselves undermined TSOI’s testimony. Particular reference was made to the fact that the pathologist had found a single linear laceration of the scalp: that was correct, but ignored the evidence that multiple fractures of the skull also were found. A second discrete complaint related to how it could have come about, in the light of TSOI’s evidence, that blood from the victim was found on his clothing whilst a third concerned evidence regarding which of the various gang members had been carrying a weapon when they boarded the taxi: these were each matters which were thoroughly ventilated during the course of the trial; during counsel’s closing submissions; of which the jury was abundantly aware from the evidence; and which the judge properly illuminated for the jury's consideration.

12.  We were presented with a list of 14 particularised "defects" in respect of TSOI which we were told “may not be comprehensive”. It was submitted, emotively, that the list showed "... perjury, inconsistency, contradiction, prevarication, exaggeration, lies, malicious lies, inherent improbability, possible drunkenness/dizziness, conflict with other evidence and a clear motive (other than truth) affecting the accuracy and veracity of [TSOI].". We see nothing to be gained by repeating the details of the "defects": these are matters which simply went to TSOI’s credibility but which, in the view of the judge, and in our view, did not justify withdrawing the charge of murder from the jury.

13.  Whilst there certainly were valid criticisms which could be made of TSOI’s testimony, which were made by the judge when appropriate, it could not be said sensibly that his testimony was incapable of belief. The issue was one of credibility, quintessentially a matter for the jury. As was made abundantly clear by counsel during closing speeches and frequently by the judge in his summing up, the primary issue which the jury had to consider was whether TSOI was a reliable and honest witness on the material aspects of his testimony: if not, the prosecution failed; if so, then the jury would have to continue to consider all the other aspects of the case.

14.  Neither the evidence as a whole nor TSOI’s evidence alone was inherently weak or vague nor was it tenuous. There inevitably were inconsistencies in the evidence given the circumstances in which the offence occurred: Galbraith was never intended to be read as meaning that the simply because there inconsistencies exist in the evidence the judge should stop a trial.  The jury was carefully and fully directed as to how they should approach inconsistencies. The 14 "defects" were all matters on which the jury was directed.

15.  Ground 2: the judge identified to the jury a number of areas of the evidence which they might have regarded as being supportive of TSOI’s evidence. It is correct that there was no evidence supporting TSOI as to the precise conduct of the applicants at the moment the fatal blow was or blows were struck. The jury had heard the evidence and, of course, would have been fully aware of that fact. The complaint appears to be that the judge erred in not emphasising this to the jury particularly in the context of the judge having raised with counsel and left to the jury the issue of culpability on the part of the first applicant on the basis of "individualised" murder rather than as joint venture, that being the basis upon which the prosecution's case had been opened.

16.  The lack of evidence supportive of TSOI'S evidence as to the conduct of the applicants at the time of the actual assault would have been reinforced to the jury by, first, the fact that the judge had reminded them of support to be found in other areas thereby illustrating the lack of support in respect of this area and, second, the considerable emphasis that the judge placed throughout the summing up on the fact that the prosecution case depended solely upon the reliability and credibility of TSOI.

17.  Ground 3: the first applicant acknowledges that the judge did warn the jury of the need to approach the TSOI’s evidence with “caution”. The complaint appears to be that he did not emphasise this aspect sufficiently by adjectival qualification or, as appeared to emerge in submission before us, did not repeat the word “caution” sufficiently to counsel’s liking. It would have been abundantly clear, in our opinion, to the jury - not only from the summing up but also from the closing speeches of counsel - that the central issue insofar as they were concerned was TSOI’s reliability and credibility. The judge clearly drew to the attention of the jury that TSOI had his own interests to serve, no matter how he may have equivocated in his acknowledgement of that fact during his testimony, and also that the other prosecution witnesses who testified as to events on that night were testifying under immunities and, again, may be thought to have had vested interests which may have influenced the way they testified.

18.  Mr. Haynes accepted that, since the abolition of the rule requiring corroboration of the testimony of an accomplice, whether and to what extent a judge sounds a cautionary note to a jury is a matter for the exercise of the judge’s discretion. Notwithstanding this, it was his submission that the extent of the judge's warning concerning the dangers of relying on the unsupported evidence of TSOI was inadequate. He urged that this was a matter where, what he described as, the “old-fashioned approach” should have been applied.

19.  This was precisely the approach roundly rejected by the Court of Appeal in England in R v Makanjola andR v Easton  [1995] 2 Cr App R 469 which the Court of Final Appeal in HKSAR v Leung Chi Keung[2005] 1 HKLRD 434 adopted and indicated, at §25, that it would be "contrary to the policy and purpose of the legislation invariably to give the same warning as before."

20.  The judge reminded the jury on numerous occasions throughout the summing up, from very shortly after he commenced until almost the very end, of the fundamental importance of TSOI’s testimony as well as its shortcomings. He dealt at some length with counsel’s speeches, emphasising the negative aspects contended for on behalf of the applicants.

21.  The jury would not have been assisted by any qualification of the caution that had been explained to them they need exercise in regard to TSOI’s evidence, nor by the repetition of a particular word. The summing up, when read as a whole as it need be, left no room for misunderstanding that the jury need be circumspect in considering TSOI'S testimony.

22.  Ground 4: it was submitted that "a full reading of the summing up does not give an adequate reflection of the defence case." We disagree. To the contrary, we feel bound to say that the summing up, when read with a neutral eye, was entirely even-handed, fair and balanced.

23.  At the commencement of his summing up the judge gave a concise summary of the prosecution case which he followed immediately with a concise summary of the applicants’ cases. He later dealt in detail with the evidence of the prosecution witnesses contrasting it, where necessary, with the applicants’ contentions. He traversed the evidence of the first applicant, the second applicant having elected not to testify, with overall the same attention to detail that he had considered necessary when dealing with TSOI’s evidence. To the advantage of the applicants, he reminded the jury that the persons involved in the events of that night were young people who might not behave in a manner or may not testify in a fashion one would expect of a more mature person and suggested the jury might wish to take that fact into account when assessing their behaviour and testimony.

24.  The repetition, in support of this Ground, of criticisms of TSOI’s evidence which, in reality, went to the issue of his reliability and credibility was unhelpful.

25.  Ground 5: it was submitted that by using the phraseology he did when describing the character of TSOI the judge failed to give the jury a meaningful or proper direction which resulted in a material irregularity. The words about which counsel complains were that the judge referred to TSOI as "not a person of marvellous character". This phrase was unjustifiably characterised as containing "a hint of sarcasm". Those words need to be viewed not in the isolation accorded them in counsel’s skeleton argument but in the context in which they were used by the judge. The passage as a whole read:

"Mr. Donald [for the second applicant at trial] cross-examined the witness TSOI and pointed out that he had two prior convictions. In 2004 for robbery, for which he received a superintendent’s warning because he was only 16 years old at that time, and in 2006 - the same year as this alleged offence or the offence that TSOI has been sentenced for - there was another separate offence of assault, in respect of which he received probation. So Mr. TSOI is not a person of marvellous character, you might think, and you can take that into account in assessing his credibility so far as his evidence before you is concerned." [Emphasis supplied]

26.  Whilst we accept that it is unlikely that the impugned phrase will find its way into a standard direction on character, following immediately upon having spelt out clearly TSOI’s criminal record and preceding immediately the injunction that the jury was entitled to take that additional fact into account when assessing his credibility as it did, it succinctly communicated to the jury that which would have been conveyed by a "bad character" direction phrased in more usual terms.

27.  Ground 6: it was contended on behalf of the first applicant that one of the reasons advanced by him for going into hiding with the second applicant was a fear of retribution, that this explanation was "logically a real possibility". That, of course, was not the only reason he advanced: he testified that another reason was the fact that he had previous criminal convictions and thought that the police may reject his denial of being involved in the offence as a result: we see no reason why that, too, should not be characterized as “logically a real possibility”. The judge traversed in detail the approach which the jury should take to the applicants having hidden, spelling out the explanations offered by the first applicant and pointing out to the jury, to his advantage, that the previous criminal convictions related to "minor offences".

28.  It was a matter for the jury whether they accepted both, either or neither of the explanations. The fact that retribution may have been "logically a real possibility" did not mean, of necessity, that the jury had to accept the first applicant's evidence that that was why he, or they, had hidden. The judge made it clear that if they accepted either or both of the explanations then there would be no support for the prosecution case: conversely, if they rejected both of these explanations then their hiding "can be regarded... as evidence which supports the prosecution's case.". The direction given to the jury was appropriate for the facts of this case which cannot be said, realistically, to have required the judge to direct the jury to ignore the evidence.

29.  The judge had told the jury, when dealing with the issue of ‘flight’ that the offences of which the first applicant had previously been convicted were minor: at the conclusion of his summary of the defence cases he went on to tell the jury that those convictions had been removed by operation of the Rehabilitation of Offenders Ordinance and that the jury was "... not to assume in any way that the first defendant is guilty of the offences this trial is concerned with or did not tell the truth in his evidence simply because he has these convictions". The submission that the judge should have gone further in dealing with the question of the first applicant's character was unrealistic.

30.  We were consequently satisfied that none of the grounds of appeal had merit and dismissed the first applicant’s application.

Second applicant's application in respect of conviction

31.  What we have already said in regard to first applicant's application disposes of the first ground of appeal of second applicant and applies equally to the further submissions made on behalf of the first applicant which were adopted by second applicant.

32.  The second applicant contended that what he called "observations and opinions" expressed by the judge amounted to improper conduct which resulted in the summing up being unfair and unbalanced and not even handed. No reference is provided in the Perfected Grounds of Appeal to where the offending passage appears in the appeal bundle but is simply identified as being to the judge’s reference to "the evidence of LIU Yu Hang”, he being a member of the KFC group. Our attention was not invited to any specific passage during submissions.

33.  It may be that the passage to which objection is taken is the following:

"It has been suggested that there were two people with pink upper garments involved in all this during the course of the night and I think the other person with the pink garment was Ah Shing, the one who had been involved in the original argument. Ask yourself this, is it possible that the person in the pink garment might have been Ah Shing? Why would he chase Wei Wei if they are members of the same group? How could that be possible? It is a matter of you to decide but take that into account as a first step, in any event."

If so, it is unexceptionable and it was singularly appropriate for the judge to put it before the jury in those terms. We see nothing in the judge's summary of the evidence of that witness which realistically is open to criticism. The submission that by suggesting what the second applicant describes as "a rhetorical question" for the jury to consider - “Why would he chase Wei Wei if they are members of the same group? How could that be possible?” - the judge thereby entered into the arena is, simply, baseless.

34.  In our endeavour to categorise the second applicant’s grounds of appeal we indicated that four of the paragraphs appeared to relate to the issue of identification. That is in addition to the previous ground with which we have dealt which tangentially also related to identification of the second applicant as the pursuer of ‘Wei Wei’. In reality those paragraphs all related to the manner in which the judge approached the evidence of identification, alleging that the summing up was unfair because he had not told the jury that “an opinion was being expressed"; and unbalanced because he "repeatedly reminded" the jury that it was the second applicant in a pink shirt chasing Wei Wei without, at the same time, repeating the second applicant's case, albeit the second applicant had elected not to testify or call any witnesses; he had invited the jury to draw an inference against the second applicant that because he had been correctly identified as wearing a pink shirt elsewhere, it followed that the person in the pink shirt pursuing Wei Wei was the second applicant; and he had failed to direct the jury that even if they found that it was the second applicant who pursued Wei Wei it did not follow that the jury could draw an inference that it was the second applicant who had participated in the attack on the deceased.

35.  The judge told the jury in terms that the identification of the second applicant as the pursuer of Wei Wei was in issue and was a matter for them to decide. He reminded the jury of evidence which related to that issue.

36.  When initially dealing with the question of identification the judge said:

"I will come back to the identification evidence in due course and I will bring you back to this particular part of the identification evidence concerning Liu Yu Hang because he identified the second defendant as the person chasing Wei Wei. He also identified the second defendant, and this is not in issue, as the person going into that restaurant and he described the second defendant as a person wearing a pink T-shirt. He has also identified the second defendant from videotapes. You will remember that one of them, I think 7-11 one, was in colour and you can see a pink T-shirt being worn there by that person, and it was not an issue, by the person who was the second defendant. So it seems, members of the jury, that Liu Yu Hang correctly identified the second defendant. That may be a matter that you can take into account in assessing the reliability of his identification of the second defendant as the person chasing Wei Wei.”

37.  That was not only a fair and accurate synopsis of the evidence but it also explained that the two earlier correct identifications of the second applicant when wearing a pink T-shirt was a factor which the jury was entitled to take into account in assessing whether LIU’s identification of the second applicant as Wei Wei's pursuer was also correct.

38.  Later, the judge returned to the evidence of LIU saying:

“In regard to the evidence of PW3, Liu, he was a member of the KFC group and picked out the second defendant at an identification parade as being the person he saw in a pink shirt going into the... restaurant and later chasing Wei Wei through the maxi-cab area at Fanling station holding a rod-like object. You will have to consider the reliability of his evidence in that regard also. It is not in issue that the second defendant did go into the... restaurant and called out Ah Chuen, so the real issue with Mr. Liu’s evidence of identification is whether he saw the second defendant chasing Wei Wei with that rod in his hand."

39.  It is inappropriate to describe the way the judge dealt with this issue in the course of the summing up as him having "repeatedly reminded" the jury of it. The judge alluded to this aspect of the evidence only to the extent that it was necessary for him to do so. That identification was a real issue: it was obviously an important matter for the jury to consider.

40.  Moreover, it is inaccurate to suggest, as did Mr. Andrews, that the effect of the judge having reminded the jury of the evidence concerning the pursuit of Wei Wei constituted an invitation to the jury to draw an inference. The positive evidence of LIU was that he had identified the second applicant as the pursuer at the identification parade which he had subsequently attended. The issue before the jury was whether that positive identification was correct, not whether the jury was entitled to draw an inference to that effect.

41.  We accept that the judge did not refer to the second applicant's defence on every occasion when he dealt with the issue of identification of the second applicant. It was unnecessary for him to do so. He placed the second applicant's defence four square before the jury when dealing with the defence case: as the second applicant elected not to give evidence but relied on the evidence of the first applicant the judge was obviously limited in the amount he was able to say.

42.  LIU’s identification of the second applicant did not extend to any encounter between the second applicant and PUN: LIU testified that he had not seen PUN after they had parted at the podium once the second accused had called out Ah Chuen and the KFC group had fled. However, if LIU were correct in his identification of the second applicant as pursuing Wei Wei, that was a relevant fact for the jury to consider given TSOI'S subsequent direct evidence of the second applicant's involvement in the bludgeoning of PUN; it was particularly relevant to the evidence of the first applicant to the effect that neither of the applicants had been in possession of a weapon; and it was material to the second applicant's defence that he had not participated in any assault but merely had been a bystander.

43.  There was not at any stage any suggestion that this identification evidence could be put to other uses, particularly that it could be used by the jury to draw an inference that the second applicant had participated in the assault on the deceased. It was consequently unnecessary for the judge to direct the jury on purely hypothetical matters which had not been placed before it.

44.  The penultimate Perfected Ground of Appeal was that the judge had invited the jury "... to speculate for no other reason than to agree with a conclusion already reached by the court.". It is suggested that this occurred because when the judge instructed the jury not to speculate as to why certain people had not been called as witnesses two persons, named as Ah Bea and Wah Chai, were mention but no mention was made of Wai Wai’s name. This submission is entirely untenable. It typifies a practice which is of growing concern to this court, of counsel misrepresenting what a judge has said in the course of the summing up, by extracting words or phrases out of their context.

45.  What the judge said, in fact, was:

"... do not speculate about why some persons you have heard were involved in the events of 4 June were not called as witnesses in this case. There are many reasons why a person may not be called as a witness and it would not help you to speculate, or to wonder why, for example, Ah Bea or Wah Chai were not witnesses." [Emphasis supplied]

Given that the judge simply used the names of two persons as examples so as to illustrate the point that he was making renders the submission, that he was at fault in not mentioning another person or persons, as without foundation.

46.  Finally in regard to the Perfected Grounds of Appeal, was the assertion that the judge materially misdirected the jury as to the evidence that was capable of supporting TSOI’s evidence. The direction was correct.

47.  The written submissions lodged on behalf of the second applicant in regard to the appeal against conviction were difficult to relate to individual grounds of appeal. It is appropriate, as a courtesy to counsel, to deal briefly with those which we have not traversed already.

48.  The first is the suggestion that by directing the jury that before they were able to convict of any offence they "... must accept that TSOI in the important parts of his evidence, is a truthful witness" the judge was in effect telling the jury that they were permitted to convict the second applicant "... so long as they were satisfied that Tsoi, if a liar, was only telling lies about unimportant parts of his evidence.". With respect, that simply is not what the judge said. He expressed himself in the simplest of terms which left no room for misunderstanding or unintentional misconstruction.

49.  Flowing from that submission was a criticism that the judge had not identified what were the "important parts" of  TSOI's evidence. In our judgment that is precisely what the judge did - and on more than one occasion.

50.  The submission then morphed into a claim that the judge had delivered “an underlying message" to the jury that if TSOI were believable “as to any part of his testimony, without regard to its importance" then they would be entitled to believe the allegation of assault against the applicants. We have a fundamental difficulty with this submission given the express terms of the direction given by the judge the relevant extract of which is set out in §48 above.

51.  There followed a submission that there was no evidence that any particular person had been singled out to be assaulted at the time when the group entered a taxi to travel to the scene. That is correct, but is irrelevant.

52.  Leaving aside the abandoned allegation of bias, that left a complaint that the summing up had been "unfair, unbalanced and misleading... quite unfair..." with an example being offered by way of illustration. We have already indicated that, in our view, there is no substance in any suggestion that the summing up was either unfair or unbalanced.

53.  We were satisfied that each of the arguments advanced on behalf of the second applicant was devoid of merit and consequently dismissed the application.

Second applicant's application in respect of sentence

54.  In the earlier trial against TSOI and CHAN arising out of the same incident each was acquitted of murder but convicted of manslaughter. TSOI, 18 at the time of the offence, was sentenced to undergo imprisonment for 7 years and CHAN, who was but 14 then, for 6 years.

55.  In sentencing CHAN McMahon J took into account that there was no direct evidence of the exact role of each in the assault; it was "entirely possible" that those two accused as well as the present two applicants had become involved in the attack at different times; there was no reliable evidence that either of those two accused had carried or used a water pipe in the attack; neither of those two accused had "attempted to restrain [the applicants] from attacking the deceased who they both blamed for the extreme violence eventually used in the attack.".

56.  The judge recognised that “this was a particularly bad case of its type" indicating that he bore in mind what had been said in R v KO Kam-hung [1991] 2 HKLR 433. He declined to nominate a starting point of sentence.

57.  When the judge came to sentence the second applicant the evidence which had been placed before him during the course of the trial painted a very different picture of his role and level of involvement. He noted that weapons had been brought from a flat where they were kept and delivered to the waiting group which included the second applicant; the second applicant had arranged, or at least participated in the arrangement of, that delivery; the second applicant's role overall was only secondary to that of the first applicant; the second applicant "had used a water pipe and although he did not attack the head of the deceased... he joined in the attack... at the time [the first applicant] was attacking him".

58.  We make this comparison because the basis of the application for leave to appeal sentence is that there was disparity between the sentence imposed on TSOI and CHAN and that on second applicant. We accept that the sentence was different and greater. In our view that was an entirely correct approach for the judge to adopt based upon his finding that the second applicant had played a more significant and important role in the attack than had either TSOI or CHAN, including indisputably using a weapon. We are also satisfied that with the benefit of having presided over both trials and having heard all the evidence, the judge was justified in so categorising the second applicant's culpability.

59.  It has been submitted that the judge was wrong in differentiating between the conduct of the second applicant and that of TSOI and CHAN in the light of the observations of this court in Attorney General v TAM Ka Lok and Others CAAR4/1990 where, in considering sentences passed on a number of different accused who had been convicted of manslaughter, once again on their own pleas of guilty, arising from a gang attack on two individuals one of whom subsequently died, the court said:

"There is, we think, some scope for discrimination between the culpability of these persons, but it is very limited as all the sentences must reflect the same basic criminality. Thus we accept that an identified "ringleader" or the striker of potentially fatal blows, such as D3, may properly receive a stiffer sentence. But between the others who have armed themselves and joined in the attack, we can see very little scope for discrimination."

60.  It is submitted, effectively, that because it cannot be said that the second applicant was the ringleader in the instant case, the judge was precluded from sentencing in the manner he did. In our view, that is too restrictive an interpretation. The court expressly recognised that different levels of participation may occur in a joint-venture: it identified, for the purposes of that judgment, a “ringleader”, a “striker of potentially fatal blows” and “others who have armed themselves and joined in the attack". We do not accept that the categories referred to were intended to be exhaustive.

61.  The judge found, correctly, that the second applicant played a greater role than would have confined him to the level of simply being one who had armed himself and joined in the attack but that he was not the ringleader. The sentences imposed, in our view, do reflect the same basic criminality but equally, and properly, reflect the additional contribution to that criminality afforded by the second applicant.

62.  The judge in sentencing TSOI and CHAN referred to the decision of this Court in KO Kam-hung (supra). Mr. Andrews has invited our attention to the parallels which he suggests are to be drawn from the facts of the two cases and relies upon it as authority for the appropriate level of sentence in this matter and for the proposition that internal consistency in sentencing is desirable. The latter we do not doubt.

63.  As to the level of sentence, the first significant difference, to which no reference was made before us, was the fact the sentence imposed in KO Kam-hung followed upon a plea of guilty accepted by the prosecution: the sentence imposed on the second applicant was after trial. The second was that that accused had surrendered himself to the police, not hidden from them for 15 months - which surrender might be thought an indicator of remorse. There were also striking factual differences.

64.  The court in KO Kam-hung recognised that a guideline tariff cannot be created with regard to manslaughter and that sentence could range, depending on the facts of the case, from a probation order to 10 years imprisonment but went on to say at 436A:

"Nevertheless there must be some internal consistency of sentence, so that those who are guilty of manslaughter in broadly comparable circumstances received broadly comparable sentences; and there must be some external consistency so that, for example, there is no glaring disparity with those guilty of other offences, such as robbery, which also necessarily involve violence."

65.  Even so, the court indicated that “Making due allowance for a plea of guilty and the voluntary surrender to the police, the sentence of eight years was by no means inappropriate." thus indicating that a more substantial sentence would have been appropriate after trial. Our view, in any event, is that the circumstances of the present case are more serious and deserving of a greater sentence than was considered in KO Kam-hung.

66.  We note, too, that in TAM Ka Lok and Others the court indicated that the judge’s starting point of six years imprisonment was "on the low side, but... not manifestly inadequate" but "within the acceptable range".

67.  The sentence was appropriate on the facts of this case, for the conduct of the second applicant. We consequently dismissed the application.