CHAN WING v. R.

IN THE COURT OF APPEAL

1993, No. 447
(Criminal)

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J U D G M E N T

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Penlington J.A. (giving the judgment of the court):

1. This is an application for leave to appeal against a sentence of eight years imprisonment for the offence of manslaughter on the basis of diminished responsibility passed by Mr. Justice Leong on the 11th August 1993.

2. The facts of the matter, which was a particularly tragic incident, were relatively simple. The applicant was employed in a meat stall in Reclamation Street. A Mr. Lee Siu Ping, who was the victim, worked in another nearby stall. At 1 p.m. on the 4th December 1990, Mr. Lee was minding his own business when the applicant, who had been drinking heavily, suddenly came up behind him and struck him with a meat chopper. The attack was entirely un-provocated. Mr. Lee was then pursued by the applicant who again chopped him. The applicant then went back to his shop, obtained $1,000 from his employer and fled to China where he remained until he decided to return to Hong Kong in September 1992 when he was arrested. Mr. Lee was taken to hospital but died a short time later as a result of massive bleeding.

3. The facts were not in dispute but obviously there was doubt as to whether a verdict of manslaughter on the basis of diminished responsibility was available to the applicant because drunkenness in itself is not a defence to murder. However, psychiatric reports were obtained and on the basis on those the plea was accepted by the Crown. Mr. Barry Sceats, who did not appear below, and appears here for the applicant on the instructions of the Director of Legal Aid, has clearly put a considerable amount of effort into this matter. He has provided us with psychiatric reports of three other cases which have been dealt with in the courts of Hong Kong. In one case in particular, Tse Yeung, High Court Case No.10 of 1992, the facts were similar. There Mr. Justice Bewley imposed a sentence of five years imprisonment. The only major difference was that there had been some degree of premeditation, which is not present here. We have also been referred toNorman [1981] Crim. App. Rep.(S) 377 where the court said that in cases of diminished responsibility the top of the scale was seven years. However, Mr. Sceats acknowledges that to establish any sort of tariff is very difficult because the circumstances vary so greatly in each case.

4. An up-to-date psychiatric report on the applicant was prepared and was before the judge. This was from Dr. Chung See Yuen who said that he adhered to his previous report which had been prepared in January 1993 and he was guarded, as were the other psychiatrists, as to the likelihood of the applicant being a menace to society, which clearly and very properly was in the forefront of the judge's mind, if the applicant was released after a relatively short period of imprisonment. It seemed to be the unanimous view of all the psychiatrists, especially Dr. Chung, that there was no point in the applicant going into a psychiatric institution, but there had to be some way whereby he was kept away from alcohol. Over a long period of time he had been consuming very large quantities of Chinese wine each day.

5. Mr. Saw, who appears for the Crown, points to the fact that the reports indicate that the applicant has no particular desire to give up alcohol and that in Tse Yeung Bewley J took a starting point of eight years which he reduced to five because of the personal factors there.

6. These are difficult decisions but there is no doubt that the judge quite rightly considered the most important consideration was to protect the public. We are satisfied that on the basis of the psychiatric reports there has to be a substantial period of detention before the applicant could be released back into society where he could possibly be a danger. While eight years was a severe sentence, under the circumstances in this case we do not consider that it was excessive so as to require our interference. The application is therefore refused.