THE QUEEN v. CHAN MAN-TUNG

IN THE COURT OF APPEAL

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JUDGMENT

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter originally faced one count of murder. It was particularized that he and others on 21st August 1994 at Kowloon in Hong Kong murdered Lui Wai-keung. He pleaded guilty to manslaughter and was in consequence sentenced to imprisonment for eight years. He now seeks leave to appeal against that sentence.

2. It was the Crown case that he and three others waited for the victim to come into view and that, when he did so, the group chased him, all being armed with knives. Eventually the victim was caught and savagely wounded. The wounds were fatal.

3. The counsel for the applicant, Mr. Stirling, said when advancing matters in mitigation that:

4. The basis upon which the applicant was sentenced was that there had been an ambush by four persons armed with knives, and that all chased the victim but that there was no evidence that the applicant was involved in the final fatal attack.

5. Mr. Haynes, who appears for the applicant today, submits that the sentence was manifestly excessive. He contends that the sentencing guidelines for an offence of this king were set out in The Attorney General v. Tam Ka-lok others which was Application for Review No.4 of 1990. In that application a starting point of six years was indicated as being proper in circumstances of a triad revenge attack. The facts of that case must, however, be examined before it can be used as a guideline in relation to other cases in which circumstances which might be very different. In that case the facts were as follows: At a playground the victims were met by a group of 10 to 12 young men including the defendants. Apologies were demanded and refused: Insults uttered. The group, having thereupon armed themselves with a variety of weapons such as poles, clubs and at least one knife and one water pipe launched a concerted attack upon the victims. The victims split up and fled. This was, as Mr. Haynes urges, a typical triad encounter. He submits that it sets the guideline starting point of six years for future sentences involving triad attacks in which there is a plea to manslaughter. He concedes that to the later case of The Queen v. Cheung Chi-man No. 14 of 1992 also involved a triad encounter and that, after a plea to manslaughter, a sentence of eight years was imposed which was upheld by the Court of Appeal. Mr. Haynes submits, however, that the sentencing judge and the Court of Appeal took a wrong turn in failing to apply the guideline enunciated in Tam's case.

6. We refer, however, to the words of Sir Derek Cons in the case of Ko Kam-hung (1991) 2 HKLR p.433 :

          "With regard to some offences, as for example the possession of dangerous drugs for the purpose of unlawful trafficking, where there is often little to choose between the circumstances in which actual offences are committed, this court has been able to suggest guideline tariffs, in that instance related to the amount of drug involved. This obviously cannot be done with regard to manslaughter, by reason of the infinite variety of the ways in which it may be committed, making it proper perhaps to pass in some circumstances merely a probation order and yet in others, up to ten years' imprisonment."

That observation is pertinent to the decision of the court in Cheung Chi-man's case. A sentencing court must look to the facts of each particular case. A sentencing judge must, of course, bear in mind the desirability of maintaining internal consistency but bearing that need in mind that he has, at the end of the day, to assess sentence in accordance with the particular facts of the case before him. The facts of the present case reveal sinister elements of particular aggravation. It was an ambush. It was planned. The deceased was alone. There were four persons involved. They were armed. They carried what the judge described. as "murderous weapons". In consequence of the ambush a death resulted. We are by no means persuaded that the starting point of 12 years was too high. The discount of 4 years for plea was proper.

7. The application is refused.