R. v. CHAN TIN HOK and Another

IN THE COURT OF APPEAL

1993, No. 70
(Criminal)

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J U D G M E N T

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Penlington J.A.:

1. These are applications for leave to appeal against sentences by Chan Tin Hok (D2) and Li Tak Fai (D3) who were respectively the second and third accused on an indictment which came before Mr. Justice Leong charging each of them with murder. They entered a plea of guilty to manslaughter which was accepted by the Crown. Each of them was then sentenced to six years' imprisonment as was the first accused one Wong Kwok Yan (D1).

2. The agreed facts were that D1 and D2 were indebted to Chan Kai Leung (the deceased) who was a loan shark and who had been pressing them for repayment of debts. Having recruited D3 to lend assistance purely for financial reward, the deceased was invited to D1's flat with the intention of assaulting and robbing him. This was done. The deceased was struck over the head with a chair leg and was then tied up. Eventually he died. The applicants and Wong Kwok Yan took $15,000 cash from him and some rings and a Dupont cigarette lighter. The deceased's body was then placed in a car and taken to an embankment near the housing estate where the assault had taken place and his body thrown down. The cash was equally divided.

3. When the deceased disappeared enquiries were made by his girl friend who knew that he was going to see D1 to collect a debt. D1 was interviewed on several occasions but denied any wrong-doing. He admitted that he had seen the deceased but said that he had simply repaid a debt of $15,000. However on the 31st of January 1992 D1 pawned the deceased's Dupont lighter. He was again interviewed and he then made a confession in which he implicated these two applicants. D2 was immediately arrested and took the police to the place where the body of the deceased was found in an advance state of decomposition. D3 was also arrested and admitted taking part in the crime and in pawning rings taken from the deceased.

4. In passing sentence the judge said that he considered each of the accused was equally to blame and made no distinction between them in passing the sentence.

5. Before us Mr. Kenneth Chan for D2 argued that D2 was not a main instigator of this crime and he had given assistance to the police immediately after his arrest which led to the discovery of the body of the deceased. It was also submitted that insufficient weight had been given to the fact that the deceased was a loan shark who had been engaging in lending money at very high interest rates. D2 was a young man and had pleaded guilty to the offence. He had a clear record.

6. D3 who was in person, simply said that he thought the sentence passed on him was excessive.

7. The judge did not state what he was taking as a starting point for sentence but it would seem that, given the usual discount for a plea of guilty and for lack of previous relevant convictions, he must have taken about eight years' imprisonment.

8. This was a premeditated assault on a defenceless man which resulted in his death. The accused then took whatever valuables he had on him. The cash was divided equally between them and the other items were eventually pawned. We do not consider the fact that the deceased was a loan shark was, in any way, a mitigating factor. We consider that the starting point for this crime should have been towards the upper range of sentences passed for manslaughter and that the starting point of eight years' imprisonment was, if anything, too low. We are also satisfied that the sentences of six years' imprisonment were entirely justified. Full discount has given for the applicant's age and clear record.

9. We also agree that no distinction should be made between any of the accused as to the role that they played in this crime.

10. The applications for leave to appeal against sentence are refused.