ATTORNEY GENERAL v. CHUK CHI HOI

IN THE COURT OF APPFAL

1987, No. 13
Application for Review

Headnote

Attorney-General’s application for review – sentence – manslaughter – joint intention to assault deceased – sentence “must have inbuilt a measure of deterrence”.

IN THE COURT OF APPEAL

1987, No. 13
Application for Review

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JUDGMENT

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Yang, V.-P.:

1. The learned Chief Justice having refused the Attorney General's application for leave to apply to the Court of Appeal for review of sentences under Section 81A of the Criminal Procedure Ordinance, the Attorney general now applies under Section 83Y(3) of the same Ordinance for his application to be determined by the Court of Appeal.

2. The respondent Chuk Chi-hoi originally faced two counts, one of murder and the other of wounding with intent to do grievous bodily harm, before Barnes, J. and a jury. At the outset of the trial he had offered to plead guilty to manslaughter on the first count, and guilty to assault occasioning actual bodily harm on the second count. On the Crown's refusal to accept those alternative pleas to lesser offences the trial proceeded. At the end of the trial, the judge withdrew from the jury the charge of wounding with intent and left the jury with the alternative offences of assault occasioning actual bodily harm and common assault. After deliberating for some seven hours the jury unanimously found the respondent not guilty of murder but guilty of manslaughter. They also unanimously found the respondent not guilty of wounding with intent but guilty of common assault.

3. Briefly stated, the facts are as follows. At about 5.30 a.m. on the 12th October 1986 one Li Shek and the deceased Lau Kwok-wing were walking along Nanking Street in Kowloon. They passed by the respondent who was then in the middle of the road. The respondent then caught up with Li and Lau made certain allegations which resulted in a fight. The respondent fell to the ground during the fight and there was a struggle between him and Li. Then Li broke free and ran with Lau towards Nathan Road. Then followed a series of fights interrupted with escapes until the three men reached Nathan Hotel. when the respondent was joined by his three friends. The respondent's friends attacked Li and Lau who continued to flee. Eventually these two were beaten into submission by the side of a pillar outside the Astor Theatre in Nathan Road. As Li and Law were lying prone, the respondent's friends continued with their attack by kicking and punching them, with at least of the three friends stamping on Lau's head. During this final stage of the attack, the respondent kicked at Li's body, but there was no evidence that he actually assaulted Lau. Lau later died from his head injuries. An autopsy revealed that he had sustained two fractures of his skull causing brain injuries which brought about his death.

4. It is not disputed that the jury's verdict of manslaughter was based on the judge's direction that if the respondent was a party to an agreement between him and his friends that Lau was to be assaulted, and Lau was assaulted in pursuance of the agreement and died, the respondent was on the facts of the case guilty of manslaughter. It would in the circumstances be a joint attack on Lau in that by his assault on Li against whom Lau was reclining he was not only intentionally encouraging the assault on Lau but was rendering active assistance in the assault.

5. In passing sentence, the judge noted that the respondent was only 20 years of age at the time of the incident. He also noted his previous convictions: wounding in 1982; criminal intimidation and assault also in 1982; wounding with intent in 1984; burglary also in 1984, and being a member of a triad society again in 1984. In passing the sentence of six months' imprisonment on manslaughter, and the sentence of one month's imprisonment on common assault, the two sentences to run concurrently, the judge has this to say -

“The verdict of guilty of' common assault on the second count clearly indicates that the jury were of the view that you caused no actual physical injury to anyone. Their verdict on the first count can only be consistent with their forming a view that you took no part in the actual physical assault on the deceased, and from the questions which the jury asked yesterday it seems to me that they found you guilty on the basis that you were a party to an assault which, ended up in the tragic death of the deceased, a consequence which you did not intend and did not foresee, and they have found you guilty on the basis that you were a party to an arrangement to engage in a fight with these two men. It seems to me, therefore, that the view that I should take of your conduct is that you have committed in effect a very very serious offence equivalent to a serious offence of fighting in a public place, and I have to treat that seriously because of what happened to Mr. Lau, and therefore I am of the view that I must impose prison sentences.”

6. Six points were relied on by Mr. Duckett for the Attorney General in support of his argument that the sentence of six months’ imprisonment for the offence of manslaughter is wrong in principle and manifestly inadequate. Firstly, the respondent was one of a party to an assault on two victims who made every effort to escape. Secondly, at the final stage of the attack, both Li and Lau were defenceless and lying prone on the ground. Thirdly, there was no issue of self-defence. Fourthly, the respondent shared a common intent to assault the two victims. Fifthly the respondent in the course of the attack outside the Astor Theatre twice kicked one of the victims. Sixthly, one of the victims died.

7. For the respondent Mr. Ramanathan drew our attention to the fact that the respondent had been discharged from prison some six and a half months ago and had settled down in a good employment as a kitchen supervisor In a restaurant at Shatin earning $4,000 per month.

8. A number of authorities were cited for our consideration. In R. v. Silver and Gosling (1982) 4 Cr. App. Reps. (Sentencing), Watkins L.J., in dealing with a case involving a fight following a new year party at a night club which resulted in the death of a youth, had this to say (at p.50) -

“Nowadays, at football grounds, in clubs, in pubs and on the street, no sooner do young men start to fight and one of them goes to the floor, than one or more of the others put in the boot. When that happens and the offenders are apprehended it is incumbent upon courts to inflict serious punishment to mark the seriousness of such conduct. Any sentence passed must have inbuilt a measure of deterrence."

9. And here in Hong Kong Kempster J.A. in The Queen v. Leung and Wong (1986) No. 176 (criminal) (unreported) noted that "some sentence passed by Hong Kong Courts of manslaughter, even when no weapon has been used, have been lenient in the extreme".

10. In our judgement the sentence for the manslaughter is manifestly inadequate. We are of the view that a sentence of three years' imprisonment would have been appropriate in all the circumstances of the case. This being an application for a review, we would make the usual discount and substitute a sentence of two years' imprisonment for the sentence of six months.

11. The application is granted. Upon review, the responde1"lt is sentenced to two years' imprisonment.