CHAN CHONG HEI v. R.

IN THE COURT OF APPEAL

1994, NO. 101
(Criminal)

HEADNOTE

The applicant was convicted after trial of manslaughter on an indictment containing one count of murder. There was evidence that the deceased started the fight and the applicant was provoked. The deceased had some 90 injuries all over his body. The cause of death was fracturing of the skull and brain injuries.

The killing was carried out in brutal circumstances. A sentence of 7 years' imprisonment was neither wrong in principle nor manifestly excessive.

IN THE COURT OF APPEAL

1994, NO. 101
(Criminal)

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J U D G M E N T

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Wong J. (giving the judgment of the Court):

1. The applicant was indicted and tried before Bewley J. and a jury on an indictment containing one count of murder. He pleaded not guilty and was convicted of manslaughter after trial and sentenced to 7 years' imprisonment. Before us, he seeks leave to appeal against that sentence on the ground that it is manifestly excessive.

2. The applicant and the deceased, Yu Po-ka, were co-tenants living with their families on the 4th floor of No. 44 Hing Man Street, Shaukiwan. There had been bad feelings between the two men. The incident arose out of the use of an old washing machine which had been abandoned and the applicant had had it repaired. He objected to the deceased using it without paying.

3. At 9 o'clock in the evening of 13th February last year when the deceased returned home from work, the applicant accused him of using the washing machine without paying for it. An argument ensued. The deceased went on to challenge the applicant to a fight and hit the applicant with fists. When the applicant's daughter appeared, the deceased also hit her and grabbed hold of her by the collar of her shirt. The applicant came to the aid of his daughter. When he picked up a chair to hit the deceased, the deceased released the daughter and the applicant dropped the chair. At that stage, the daughter picked up an iron pipe for the purposes of defending herself but she dropped it to the ground when the deceased hit her on the arm. The daughter managed to escape to summon help. It was then, according to the applicant, that the deceased picked up the iron pipe from the floor and, although the applicant attempted to ward off the blow, the deceased succeeded in hitting the applicant's leg. There was medical evidence that the applicant had sustained a fracture to his hand which could have been caused when he warded off the blow. The iron pipe dropped to the floor and the applicant picked it up. He ran towards the kitchen, intending to leave the flat by the back door, but he tripped over a bucket of water outside the toilet and almost fell. He tried to regain his balance but while he was doing so, the deceased came up and punched him on the head. The deceased was ferocious, so the applicant hit him back with the iron pipe. The situation was chaotic and confused. The applicant did not know how many times he hit the deceased. He said: "I do (sic) not want to hit him but he was assaulting me and I was forced to hit him back. I did not know at what stage I hit his head."

4. When the daughter later returned, she saw the deceased lying on the floor in a pool of blood. He was taken to Queen Mary Hospital where he was found to have multiple fractures of the skull and extensive lacerations and bruises over his body. Altogether there were some 90 injuries. The cause of death was fracturing of the skull and brain injuries. There was also evidence that the applicant had suffered some injuries consistent with him having been attacked.

5. The jury rejected the applicant's defence of self-defence but found him guilty of the lesser offence of manslaughter on the basis that it was reasonably possible that he had been provoked by the deceased.

6. The judge in sentencing the applicant took a starting point of 9 years and reduced the sentence to 7 years' imprisonment on account of mitigating factors.

7. Mr. Lim, who appears for the applicant, cited a number of English decisions. Without going into their individual merits, suffice it to say that they are of no assistance to us. The circumstances in Hong Kong are quite different. There is a useful passage in the judgment of this Court delivered by Silke V.P. in Lo King-sun, CA No. 660 of 1993. After having referred to a passage of the judgment of Watkins LJ in the case of Philips, the Vice President said at p. 5:

"That may well be the sentencing norm in United Kingdom. In my judgment such norms are seldom, if ever, are applicable to Hong Kong. Our circumstances and conditions are very dissimilar to those pertaining in England."

8. The killing was carried out in brutal circumstances as the judge observed. This was not a matter to be taken lightly. In all the circumstances of the case, we are satisfied that a sentence of 7 years' imprisonment is neither wrong in principle nor manifestly excessive. The application is refused.