HKSAR v. CHENG YAT MING

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JUDGMENT

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Mayo JA giving the judgment of the Court:

1. The applicant was sentenced to life imprisonment after his conviction for murder.

2. Since the date of his sentence the legislature enacted Ordinance 86/97 which passed amendments to the Offences against the Person Ordinance Cap 212 and the Criminal Procedure Ordinance Cap 221 the effect of which is to provide that where a person under the age of 18 is convicted of murder it is open to the court to sentence him or her to a determinate sentence.

3. The applicant seeks leave to appeal out of time to take advantage of this amendment. By his application he seeks to obtain a determinate sentence.

4. It is accepted by Mr Cross SC for the prosecution that on the authority of R v. Lam Ka Yiu May 1997 HK Law Reports and Digest we are able to give the applicant in this case the benefit of this amendment should we see fit to do so. This view of the matter is also supported by Article 12 of the Bill of Rights and we are satisfied that it is correct.

5. We have canvassed the facts of this case in some detail in the reasons we gave for dismissing the applicant's application for leave to appeal against his conviction and accordingly it is not necessary for us to condescend to particulars here.

6. Suffice it to say that there was not a large measure of premeditation. The applicant did not bring with him a weapon of any kind to serve his purposes. It would also appear that the incident took place over a short passage of time.

7. So far as the applicant himself is concerned he was aged 17 at the time of the offence. He had a clear record.

8. Mr Lunn SC on his behalf has submitted that there is nothing to indicate that the applicant is suffering from any psychiatric disorder. Consequently there is no reason to believe that he will constitute a danger to members of the public after he is released from detention.

9. At the commencement of his trial he indicated a desire to plead guilty to manslaughter. His request to this end understandably was not accepted by the prosecution.

10. After giving all aspects of this case our anxious consideration we have come to the conclusion that it is appropriate for us to pass a determinate sentence of imprisonment. We consider that a proper sentence which sufficiently reflects the seriousness of this offence is 28 years' imprisonment.

11. We grant leave to hear this application out of time. Treating the application itself as the substantive appeal we quash the life sentence imposed upon the applicant and substitute a sentence of 28 years' imprisonment. To this extent this appeal is allowed.