HKSAR v. LAM TING KAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 326
(Criminal)

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J U D G M E N T

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

1. The appellant, Lam Ting-kan, was charged and tried before Stuart Moore J (as he then was) sitting with a jury in the High Court in April and May 1997. The offence charged was the murder of one Wong Chi-fung on or about 13 June 1996 at Flat C, 5th Floor, King's Building in Yuen Long. Following an unanimous verdict of not guilty of murder but guilty of manslaughter on 13 May 1997, the applicant was sentenced to 12 years imprisonment on 27 May 1997. He now appeals against that sentence.

2. The facts can be stated quite shortly. The appellant appears to have got into a fight with the deceased which, he says, was started by the deceased. He says that at some stage the deceased got hold of a paper cutter and in self defence he went and found another. When he was attacked by the deceased, he struck at him with the cutter and thereby slit the deceased's throat, severing the windpipe. The wound did not cause instant death although it was fatal in the end.

3. The appellant says that at one point he fell and when he came to, the victim had a hammer with which he attempted to strike the appellant who was able to get hold of it. But he then proceeded to use it to hit the deceased many times, causing eight fractures to his face and head in some places shattering the skull into many small fragments. In addition, his hands, arms and body were covered in wounds. Indeed, the post-mortem photographs revealed such a dreadful picture of violence that the all female jury were not shown them.

4. Mr Robert Buchanan, who also appeared for the appellant at his trial, relies on a number of grounds of appeal. The first two relate to the following passage in what the judge said when he was sentencing the appellant:

"If you had pleaded guilty to manslaughter, that would have been a factor that I could have taken into account. The fact that you did not do so, does not add to your sentence, it merely means that I cannot reduce your sentence to take account of genuine remorse."

In fact, before the judge sentenced the appellant on 13 May 1997, the day the verdict was returned, Mr Buchanan informed the judge that prior to the commencement of the trial, the applicant through his legal representative had asked whether a plea of manslaughter would be acceptable but the prosecution declined it. In the circumstances Mr Buchanan submits the fact that the appellant did not plead guilty to manslaughter is not relevant and ought not to have been a factor used by the judge to deny the applicant a reduction of sentence to take account of the appellant's genuine remorse. We will return to that first point in a moment, but to begin with we proceed to the matter of whether there was evidence of genuine remorse.

5. Mr Buchanan has drawn our attention to two statements in which the appellant very early and very clearly expressed remorse. For the respondent, Mr D.G. Saw SC has pointed out that the appellant himself challenged the authenticity of those statements as having been beaten out of him. They were nevertheless admitted. However that may be, those statements are some evidence of remorse. There is perhaps also some other evidence of remorse in another statement of the appellant at a later stage that ever since he had killed the deceased, he could not sleep for a single night. Every night, he says, he saw the deceased come back to look for him, and in a statement to the police, he mentioned that even the previous night he had seen the deceased himself. There was, therefore, some evidence of remorse. The judge does not appear to have rejected it; he felt that in the absence of a plea of guilty, he could not rely upon it to reduce the sentence.

6. Returning then to the matter of what the judge said, notwithstanding that the appellant's legal advisers did enquire from the prosecution whether they were prepared to accept a plea to manslaughter, the fact remains that there was in fact no plea of guilty to manslaughter. It is that which is the clear basis upon which a discount is usually given.

7. As to the matter of remorse, it forms but one element of the considerations that go to allowing the substantial discount of a third that the courts usually do upon a plea of guilty before trial. In the circumstances here, even if it were accepted there was significant remorse, we do not think that it could count for very much. We are in any event not disposed to making a minor adjustment to the sentence which would amount to merely tinkering with it.

8. It remains, therefore, to address the other minor points which Mr Buchanan has touched upon and which are contained in his written submissions. He relies upon the case of AG v. Wong Yim-ping and another, Application for Review No. 7 of 1994, a case that was referred to as the chloroform killers' case. It is helpful to see what the judge said in that regard:

"The jury's verdict of guilty to manslaughter is a remarkably merciful one. It is one to which I must remain faithful. Having said that, this was a most grave and horrific case of its kind. The facts were very close to the line which divides manslaughter from murder. Everything you did afterwards was designed to avoid responsibility for what you had done. In another extreme case of manslaughter, which came to be known as a 'chloroform killers' case', Application for Review No. 7 of 1994, at least an ambulance was called on the defendants' instructions when it was known that they had gone too far."

Mr Buchanan makes two points. In that case, there was undoubtedly a premeditated course of criminal conduct in that the victim there was chloroformed twice to subdue her to the point where sexual perversions could be carried out on her, in the course of which she died. The premeditated action on the part of the two defendants there appears to be absent here.

9. Mr Buchanan also seeks to differentiate that case upon the defensive stance, he says, was adopted by the appellant. That also would appear to be right if one accepts the appellant's version of the matter, which the jury may well have done. But those two factors, it seems to us, are not the real assistance that that case provides. What it does do is to reinforce the view of the courts that it is very difficult indeed to set tariffs and guidelines in manslaughter cases. They range so widely in their individual circumstances that guidelines are not appropriate. If one approaches the matter in that way, this was clearly a very serious case as the judge said. The facts, as he said, were very close to the line which divides manslaughter from murder. It clearly warranted a severe sentence.

10. We proceed to another point made by Mr Buchanan in reliance uponHKSAR v. Ho Shing-kwong, Criminal Appeal No. 180 of 1997. The applicant pleaded guilty to manslaughter and was sentenced to imprisonment for 6 years. He had killed his wife and became panic stricken and attempted to hide her body. Mr Buchanan relies upon the following observations made by Power V-P at pp 3 and 4 of the judgment of the Court of Appeal.:

"In our view what occurred was a wickedly callous offence. The reaction of the applicant was not to call for help for his injured wife but to get rid of what he believed to be the lifeless body. There was no attempt to give dignity to her demise. She was left like a half naked mannequin, indeed that was what neighbours thought she was, on the first floor staircase. A moment's human consideration would almost certainly have avoided her death. The judge rightly regarded this as a serious case of manslaughter. The sentence was severe but it is not one with which we could properly interfere."

Mr Buchanan submits that that was a severe case and yet the sentence was only of 6 years. We do not find ourselves assisted with comparison of that case and this; the circumstances are very different and it is principles and not comparisons of facts that assist.

At the end of the day, we have what was clearly a severe case. In Wong Yim-ping's case, the chloroform killers' case, the starting point taken by this Court was 20 years. The judge here imposed a sentence of 12 years, without taking a starting point. But immediately before doing so, he referred to the following passage in R. v. Lee Sau-Ping, Criminal Appeal No. 189 of 1995:

"[Manslaughter] is a class of offence where a judge may well not be able conscientiously to fix a starting point."

He added "All that can be done is to decide the appropriate sentence based upon the particular circumstances of each case." Plainly the judge must have given due consideration to all relevant matters in that way. We cannot say that the sentence albeit severe was manifestly excessive; nor are we able to find any error of principle or misdirection of fact or law. In those circumstances we do not think that the sentence can be faulted and we dismiss the appeal.