TANG WAI-KEUNG v. R.

1993, No.256
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Bewley, J.:

1. This is the judgment of the court.

2. The applicant was charged with the murder of one Ip Wai-lin at the Sun Wai Light Rail Transit Station on the 20th March 1992. He was acquitted of murder but convicted of manslaughter. On the 30th April 1993, after trial by Stock J. and a jury, he was sentenced to three years' imprisonment.

3. This is a tragic case. A trivial incident sparked a fight between these two men resulting in the death of IP. The applicant was arrested at the scene and he said, "Ah Sir, it was he who bumped into me when alighting (from the LRT) at San Wai Court Rail Transit station, giving rise to the dispute. Then he swore at me and punched my eye. So I fought back. During the struggle his head bumped into a lamp-post. He fell down onto the ground."

4. The incident was witnessed by a number of onlookers who testified that the applicant pushed the deceased, who punched the applicant in the eye causing it to bleed. A struggle and exchange of blows followed. The applicant pressed the deceased against a lamp-post and knocked his head against it. The deceased then fell to the ground. From this point on there was a conflict of evidence. Three witnesses said they saw the applicant hold the deceased by the hair or by the shoulders and twice bumped the deceased's head against the ground. Another witness said that the deceased became "soft", as she put it, after his head struck the lamp-post and had no strength left, the applicant pushed the deceased onto the ground and the noise of his head hitting the ground was very loud.

5. There was one witness, a police constable, who gave a different account. He saw the exchange of blows and the bumping of the deceased's head against the lamp-post. He said that the deceased then appeared to be dizzy and fell like a drunken man. The applicant was stunned. He went up to the deceased and shook him by the shoulders as if to wake him up, not using much force. But during the shaking the deceased's head hit the ground two or three times.

6. This witness made a statement the same day, in which he said that he shouted at them while they were fighting. They stopped and the deceased then fell knocking his head on the ground. In evidence the officer said this is what happened, but he confirmed that the deceased's head hit the ground during the shaking.

7. The deceased had a small abrasion at the back of his head. There were two abrasions to his forehead and under these injuries there were two areas of deep bruising. The cause of death was injury to the brain. The pathologist said that more than one blow was likely to have caused it and that substantial force would have been applied.

8. The issue was complicated by the finding in the deceased's body of the drug Phenytoin, which is used to treat epilepsy but has other uses. There was no evidence that the deceased suffered from epilepsy. This is the applicant's main ground of appeal. The pathologist said there was nothing to suggest a major seizure. He said a minor attack would cause a brief lack of consciousness but the patient would go limp and sink down. This would not cause severe injury. Nor did he think that a simple fall from a standing position would cause these injuries. The judge left this matter to the jury. By their verdict the jury found that the applicant was responsible for the deceased's death. There was ample evidence to justify this conclusion.

9. In his grounds of appeal the applicant also complains about the contradictory evidence given by the prosecution witnesses. The judge dealt with this at length and it was a matter for the jury what they made of it.

10. The applicant submits that the judge misdirected the jury on the question of self-defence by failing to point out that the fatal incident was part and parcel of the fight. But he concedes that his argument is not a strong one in view of the fact that he did not give evidence. The judge dealt with self-defence and provocation with great care and at length. His directions cannot be criticised. The jury must have been well aware of the issues and the choices before them. Their verdict of manslaughter was based on a lack of intent to kill or to cause grievous bodily harm. The application for leave to appeal against conviction is refused.

11. As to sentence, the applicant tells us that it was the deceased who started the fight and struck him in the eye which affected his sight. He points out that no weapon was used and that it was an accident for which he now feels the greatest remorse and which will affect him for the rest of his life. These are matters which the judge took into account.

12. The applicant has a clear record, he is married with a family and is a government servant who has lost his job and his pension. On the other hand the incident was aggravated by the fact that he continued to hit the deceased's head on the ground after he was partially incapacitated when his head struck against the lamp-post.

13. We feel that, although the sentence is on the high side, it is not so severe that we should interfere. The application for leave to appeal against sentence is refused.