THE QUEEN v. LEE YUK WAH AND ANOTHER

HEADNOTE

The 1st applicant pleaded guilty to burglary and the 2nd applicant pleaded not guilty for the same offence. Both after trial on the murder charge were found guilty of manslaughter. The manslaughter occurred during robbery of a T.V. games centre. The applicants were each sentenced to two years' imprisonment for burglary and ten years' imprisonment for manslaughter and the sentences were ordered to be served concurrently. Court was satisfied that the overall sentence was a proper one but that the 1st applicant should have received a lesser sentence than the 2nd applicant because of his preparedness to plead guilty to manslaughter from the outset and his clear record. His sentence is varied from one of ten years to nine years.

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REASONS FOR JUDGMENT

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Power, J.A. (giving the Reasons of the Court):

1. In this matter we allowed the application of the 1st applicant, treated the hearing of the application as the hearing of the appeal, allowed the appeal and reduced the sentence of 10 years to one of 9 years. We refused the application of the 2nd applicant. We stated that we would hand down our reasons later which we now do.

2. The applicants faced charges of burglary and murder. The 1st applicant, to whom we shall refer as D2, pleaded guilty to the burglary count and not guilty to the murder count. He was, after trial before Duffy, J. and a jury, found guilty on the lesser count of manslaughter. The 2nd applicant, to whom we shall refer to as D3, pleaded not guilty to both counts and was after trial found guilty both of burglary and manslaughter. Each defendant was sentenced to two years' imprisonment for burglary and ten years' imprisonment for manslaughter. The sentences were ordered to be served concurrently. Each now appeals against those sentences.

3. It was the Crown case that the two applicants and a third person, D1 at trial, broke into the "88 T.V. Games Centre" and, while in the act of stealing from the premises, were surprised by a Mr. HO King-wah, the deceased, who was the manager of the centre. Mg. Ho was attacked with a crowbar and a screwdriver, and sustained 68 external injuries from which he died. In his statement, D3 told the police that when the deceased discovered them, his two accomplices started to hit him, and that he D3, rushed forward to render them assistance and struck the deceased several blows with the crowbar which he had brought to the scene. D2 in his statement said that he knew that the crowbar had been taken to the scene and that, when they were disturbed by Mr. Ho, he threw pepper at him. He said that in the course of the attack he had called out "Don't cause the death of anyone." That he had used such words was confirmed by the evidence of a witness who heard the disturbance. D2 went on in his statement to admit that he remained at the scene and continued with the burglary.

4. When sentencing the applicants the trial judge said:

        "So far as I am concerned, though the jury by their verdict have decided that neither of you had the intention to kill or cause grievous bodily harm, the infliction of these awful injuries the deceased sustained at your hands now relegated to the level of mere unlawful and dangerous acts, must place your offence high up on the list of seriousness of offences of manslaughter.

 

        You have compounded an outrageous disregard for the property of others by adopting a totally needless attitude for the life of the property owner who caught you in the act. Not only did you inflict over 68 injuries upon him, and crack his skull, and strangle him when he interrupted you, but leaving him to die in a pool of his own blood, you then, according to the evidence, returned to the task of stealing his property.

 

        I must in my sentence reflect society's horror at that type of callousness and remorselessness. Burglars and robbers who kill often say that they did not intend to kill anybody but all too often after episodes of burglary and robbery there is the death of some innocent intruder and usually because robbers and burglars react violently against the threat of exposure by these unfortunate victims.

 

        You, 2nd accused, have no criminal record while you, 3rd accused, are recorded as having gone on these burglary expeditions before. I take into account all that has been urged on both of your behalves. However, as the jury have, by their verdict, refused to do, I, in my sentence, also will decline to draw any distinction between you."

5. Mr. Ismail who appeared for the 2nd accused urged that the sentence was unduly severe on the ground that the trial judge had failed to give proper weight to:

6. D2 admitted that he had thrown pepper at the deceased but Mr. Ismail submitted, as the trial judge had directed the jury, that there was no evidence to indicate that he had used a weapon in the attack.

7. We are satisfied that D2's age was a matter to which the trial judge was right, in the circumstances, to give no real weight. Further, in offences of violence such as this, a clear record is, as this court has made plain in the past, a matter to which only minimal weight can be given.

8. Mr. Ismail referred us to TAM Wing-ching and Others v. The Queen Cr.App. No.116 of 1978, in which Pickering J.A. stated:

 

"There is however a different but important consideration which appears to have been overlooked by the trial judge and that is that this appellant wished to plead guilty to manslaughter but was met with a refusal by the Crown to entertain such a plea. Had he been permitted to plead guilty to manslaughter there can be no doubt that in assessing sentence the learned judge would have given credit for the plea of guilty and we do not think it just that he should be deprived of that credit purely because he was not allowed to plead guilty."

The Court set aside the sentence of ten years' imprisonment and substituted one of eight years. We are satisfied, following this decision, that the attempted plea of guilty was a factor to which some weight should have been given.

9. We come finally to the submission of Mr. Ismail that no weight was given to the fact that the applicant was "less culpable" upon the evidence than was D3. He relied in this regard upon a statement in Attorney General v.TAM Ka-lok & others, Application for Review No.4 of 1990. In that case, Hunter J.A., delivering the judgment of the Court, said:

 

"All the defendants pleaded guilty to participating in a joint enterprise, embracing other armed young men, to attack and inflict physical harm on the two victims which resulted in the death of one and injury to the other. There is, we think, some scope for discrimination between the culpability of these persons, but it is very limited as all the sentences must reflect the same basic criminality. Thus we accept that an identified 'ring leader' or the striker of potentially fatal blows, such as D3, may properly receive a stiffer sentence. But between the others who have armed themselves and joined in the attack, we can see very little scope for discrimination."

Mr. Ismail submitted that D2 was not shown to have been the striker of the "potentially fatal blows" and that it was wrong that he should receive the same sentence as that imposed upon D3. In Tam Ka-lok's case Mr. Cross, who appeared for the Crown, had, as Hunter J.A. acknowledged, "reminded us of a dictum of Roskill LJ in the unreported decision in Brett, 1975, cited with approval in AG v. Sin Wai-lun [1988] 1 HKLR 580, that 'no distinction' was to be drawn between different degrees of participation in a joint enterprise." Bewley J. delivering the judgment of the Court in AG v. Sin Wai-lun said at p.582:

 

"Counsel for the Attorney General submits that the sentence was wrong in principle and manifestly inadequate. He relies on the unreported case of R. v. Brett, 28th July 1975, in which Roskill, L.J. said:

 

        'In our view there is no distinction in a crime of this kind to be drawn between those who actually use the violence and those who stand outside and though not using violence are ready to drive away, to kidnap, or perform whatever other task may be appropriate.

 

        If this Court or a trial judge is dealing with a case of armed robbery of a bank at gunpoint or with iron bars, or of a security van carrying large quantities of notes to a branch of a bank, it does not normally stop to consider whether a particular prisoner actually held up the cashier or held up the guard, had a gun or had an iron bar or was the driver standing outside ready to drive away. All are equally guilty because without each playing his full part the crime could not be perpetrated.'

 

That was, of course, a case of armed robbery, but we are satisfied that the principle is the same."

We, too, are satisfied that the principle is the same when violence is used in the commission of a burglary and that AG v. Sin Wai-lun correctly states that the sentencing judge when considering culpability in such cases cannot properly draw any distinction between the culpability of the person who strikes the blows and that of the others whom the jury was satisfied were otherwise involved in the attack. The jury has, by its verdict, made it plain that the evidence established that each participant harboured the same basic criminality and that each was equally culpable. There is, we are satisfied, no ground for distinguishing between them by reference to the part they played.

10. We are satisfied that some weight should have been given to D2's preparedness from the outset to plead guilty to manslaughter and that it would also have been proper to have put in the balance the fact of his clear record. Because of these two factors, the trial judge should have distinguished between D2 and D3. We were satisfied, therefore, that it was appropriate to order that D2's sentence be varied from one of ten years to one of nine years.

11. D3 appeared in person urging that his sentence of ten years had caused hardship to his family and saying that he was now remorseful and would turn over a new leaf. Nothing he said occasioned us any doubt as to the propriety of the sentence imposed.