THE QUEEN v. TANG BING LUN AND OTHERS

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JUDGMENT OF THECOURT

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Macdougall, J.A.:

1. The applicant, Leung Chi-wai, who is now aged 21 but who was 20 at the time of the commission of the offence, was tried jointly with two co-accused for murder before Barnett J. and a jury. Both co-accused were found guilty of murder but the applicant was convicted of manslaughter. He was sentenced to 7 years' imprisonment and it is against that sentence that he now seeks leave to appeal.

2. The evidence for the prosecution depended principally on the testimony of a witness, one TIN Wing-cheong, who told the court that he had seen the deceased at a roller-skating rink and, knowing that one Ah Chuen was looking for him, telephoned Ah Chuen and informed him of the deceased's whereabouts. Later a car driven by the applicant and with Ah Chuen and three other men on board arrived at a place near the entrance to the rink. There they parked and waited for the deceased to leave. When eventually the deceased left the rink, one of the men chopped him. The deceased ran off, pursued by the four men. However, they ran him down and chopped him about ten times as he laid on the ground. The applicant then drove the car up to where the deceased was lying and the four men threw their knives into the rear compartment. The applicant and Tin then drove off to Wahchai where, according to Tin, he placed the knives in a plastic bag and the applicant took them to a rear lane and disposed of them. The two of them then washed the car in order to remove drops of blood that had spattered on to it at the time that the applicant drove up next to the body and received the knives.

3. The applicant's two co-accused were two of the deceased's four attackers. Neither Ah Chuen nor the 4th man have been apprehended. In a cautioned statement which he made to the police, the applicant asserted that he had been asked by Ah Chuen to board a car with him and three other men. When the applicant asked whether they were going for a joy ride, he was told by Ah Chuen that they were going to have a fight. Having arrived at their destination, the applicant was told to wait in the car. The others alighted and shortly afterwards the applicant saw a fifth man speak to Ah Chuen. The fifth man, who was Tin, then came over to the car and spoke to the applicant. He told him that he had seen someone at the skating rink whom Ah Chuen had been searching for, and that he had passed this information to Ah Chuen who told him that he would come immediately and that Tin should wait and watch until he arrived. Ah Chuen then came over and instructed the applicant and Tin to wait in the car and that if there was any action they were to follow the others. He told him that when a certain person left the skating rink they would hit him.

4. After an hour's wait, the applicant saw Ah Chuen and the other three approach a man, draw knives from under their clothing and attack him. The man began to run away whereupon the applicant started the car and began following the chase. After the fleeing man had fallen down the applicant drew the car alongside him. Then Ah Chuen and the others placed their weapons on the rear seat, and Ah Chuen instructed the applicant to drive back to Causeway Bay.

5. Having parked the car in Lockhart Road, the applicant went to a restaurant where he received a telephone call from Ah Chuen in the course of which he told Ah Chuen that Tin had placed the weapons in a side lane. Ah Chuen then instructed him to fetch a bucket of water and wash the car.

6. It was on the basis of this evidence that the jury found the applicant guilty of manslaughter. Plainly they were not satisfied beyond reasonable doubt that the applicant had contemplated that serious bodily injury might be inflicted on the victim. They must have been sure, however, that he realised that it was likely that some lesser harm would be inflicted.

7. In sentencing the applicant to 7 years' imprisonment the judge took into account the fact that the applicant had a clear record and that he had indicated to a probation officer some regret for what had happened. However the judge expressed the view that young men must be deterred from embarking on expeditions that begin as discussions or fights but which frequently have tragic consequences. He took into account the fact that once the applicant had become aware of the true nature of the attack, he did nothing to disassociate himself from it, but instead drove the car to where the victim lay, thus enabling the attackers to deposit their weapons in the rear compartment from which he later disposed of them.

8. Mr. Mullick, who appeared for the applicant in this court but not in the court below, submits that the sentence was manifestly excessive or wrong in principle for the reasons that the applicant took no physical part in the attack; that throughout the incident and its aftermath, he acted in a subordinate capacity; that he did not know that the assailants were armed before they attacked the deceased; that he was unaware of their murderous intent; that he gave marginal assistance and that he had no previous criminal record.

9. Mr. Mullick also referred us to a number of cases in which widely varying sentences had been imposed for the offence of manslaughter. We do not find the citation of such cases to be of any assistance. This court has frequently said that the crime of manslaughter encompasses a very wide range of culpability and that each case must be considered in the light of its own individual facts. We think it is only right that sentences for offences of violence must have, in-built, a measure of deterrence. This was not an incident that arose spontaneously. In our view the judge properly took into consideration the fact that planned group attacks in which violence short of serious bodily injury is contemplated frequently have fatal consequences. Sentences in cases such as this should both contain a deterrent element and reflect the gravity of the fact that a death had been caused.

10. In our view the sentence is neither excessive nor wrong in principle. The application is therefore refused.