R. v. CHOI KA LUN

IN THE COURT OF APPEAL

1995, No. 290
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. This is a very sad case. The applicant seeks leave to appeal against the sentence of nine years' imprisonment imposed upon him for manslaughter.

2. The facts are comparatively simple. On 19 July 1994 he surrendered himself to the police. He told them that earlier that day he had killed his girlfriend in a fight. The police attended at the flat they had lived in together and found Ms Hung's body. There were a number of knife wounds on the body.

3. According to the applicant's statement to the police there had been a dispute between himself and his girlfriend and she had threatened him with a knife. A struggle had ensued and he had stabbed her. It is notable that there were according to the post mortem report five stab wounds on Ms Hung's body.

4. The applicant was charged with murder. However the prosecution was prepared to accept a plea of manslaughter on the basis of the applicant's diminished responsibility.

5. There were psychiatric reports. It must be said that this was a marginal case of diminished responsibility. Dr Chung expressed the view that the applicant was suffering from a mild depressive state which meant that he had "poor impulsive control".

6. Dr Paul Tam was of the opinion that "his conduct was impaired by an abnormality of mind". This abnormality was not defined although the doctor did consider that the impairment was such as to bring him within the scope of the defence of diminished responsibility.

7. The applicant who was 17 at the time of the offence had a normal background. He had kept out of trouble.

8. It is however necessary to bear in mind that the deceased was stabbed five times and that the measure of violence used was totally disproportionate to the circumstances.

9. We accept that the sentence imposed was at the higher range of sentences for such a case.

10. Mr Kerr submitted that 10 years was too high a starting point particularly having regard to the absence of premeditation.

11. This however has to be considered in conjunction with the diminished responsibility. In the present case the degree of diminished responsibility was not great. He was only suffering from a mild depressive state.

12. Mr Kerr also placed reliance upon the provocation referred to. This was hardly convincing. It certainly did not justify the multiple stab wounds which were inflicted.

13. We consider that 10 years was the correct starting point. However, having regard to all the circumstances of the case and particularly the applicant's youth, his immediate surrender to the police and admission of responsibility and to his deep remorse we are satisfied that the trial judge should have given a greater discount to him. We allow the application and treating it as the appeal we substitute a sentence of seven years' imprisonment.