R. v. FONG TAT MING

IN THE COURT OF APPEAL

1996, No. 686
(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 applicant, Fong Tat-ming, pleaded guilty to manslaughter before Stuart Moore J and was convicted upon his plea. On 25th November 1996, he was sentenced to 7 years imprisonment. He now seeks leave to appeal against sentence.

2. The facts can be taken from the statements of agreed facts. On 12th December 1995, about 8 pm Chu Tsz-wing, the victim, was working as a hawker at a stall in Man Ming Lane, Yaumatei when he was suddenly attacked. There were no known witnesses to the attack.

3. Two policemen, who were on patrol about 150 yards away, saw three youths running away from the scene of the attack. They hailed them but the youths failed to stop. They gave chase and eventually stopped the applicant about 300 yards further on. When asked why he was running, the applicant replied "Some people fought earlier on. As I was scared, I ran away. The other two persons are the assailants who have fled. I even saw that they threw away a metal pipe onto the road under construction over there". The applicant was arrested and the scene was searched then and later for weapons. None was found as the construction site had many miscellaneous items.

4. Later at Yaumatei Police Station after being cautioned the applicant wrote out a statement saying:

"In fact, I did not have a part in hitting the old man. Chan Lok-wai, and Wong Kam-ting told me to go to give a helping hand. Only the two of them took part and I did not take part in hitting the old man. I just looked on the side.

At some time past 5 o'clock today, two persons invited me to go out, Chan Lok-wai and Wong Kam-ting. They said somebody gave them money asking him to hit a person. And so they, at a McDonald Restaurant in Mongkok, told me to give a helpful hand to hit a person. I would be given approximately $500 afterwards".

The hawker, the victim, was taken to hospital. He was found to have the following injuries:

(a) 3" long chop wound on the top of his head,

(b) 4" long, again chop wound to the back of the left top of his head,

(c) 1" long chop wound to the lower left back of the head, and

(d) two fractures of the skull. A brain scan showed bleeding and a blood clot inside the skull.

He was urgently operated on but died of a heart attack on 1st January 1996. An autopsy was carried out and showed his brain had been injured. The cause of death was a blood clot. The deceased was 53 years old and had been a drug addict. He was not in good health at the time of the attack.

5. The applicant was charged with murder. He pleaded not guilty. A voir dire was held. When the judge ruled that the statements were admissible, the applicant agreed to plead guilty to a charge of manslaughter which he did. This was well into the trial, in fact, a few days into the trial. The applicant's counsel then made a plea of mitigation. Stuart Moore J adjourned the case for two weeks to obtain a background report. This was secured from the probation Officer. It is not an unfavourable report. It shows that the applicant's father deserted the family and left his mother had to look after the family. The applicant left school early. He was too young to work. Later he got a job. His work record was not unsatisfactory but he began to associate with dubious peers. This appears to have led him to this offence when the two others sought his assistance to attack the victim.

6. In sentencing him, the judge took into account all the points made by his counsel. He said this:

"I bear in mind all that has very ably been said on your behalf ... in particular that you pleaded guilty, that you were 16 at the time of the offence, ..."

I pause here to say that was not unfavourable to the applicant who in fact was 16 years and 8 months at the time of the offence. Reverting to what the judge said, he continued:

"you had a good work record and you have no previous convictions. I also bear in mind the two very similar cases to your own where the Court of Appeal was dealing with gang attacks. For these kinds of cases a starting point of 12 years' imprisonment has been approved.

In Criminal Appeal 553 of 1995 there was a triad background. You have never revealed the motive behind this attack and so they remain unknown to this day. In Criminal Appeal 14 of 1992 the case concerned a 19 year old who was unarmed, like you were unarmed - unlike you who were armed. That 19 year old was with a group of people who carried water pipes and poles. He was entirely cooperative and remorseful and pleaded guilty. His sentence was reduced from 12 years to 8 years and was upheld in the Court of Appeal.

Your plea of guilty was very late, but I shall nevertheless regard you as deserving substantial discount, even though we had a trial concerning admissibility. For a planned gang attack as serious as this was undoubtedly, a starting point of 12 years imprisonment is entirely appropriate. In view of your plea of guilty and your age at the time, the sentence will be one of seven years' imprisonment."

7. Mr John Mullick, who appears for the applicant before us but did not appear below, makes the following points in his submission. He first of all points out that there is no evidence on record that the applicant was armed. This, of course, refers to what the judge said in his reasons for sentence that the applicant was unarmed and then that he was armed. Mr Mullick points out that this may well be the judge harking back to what the applicant had said in his statement, which was apparently that he picked up a plank of wood from the building site and apparently had it at the time of attack. But, Mr Mullick says, the applicant never in fact admitted that. It appears that his counsel disputed that fact and also referred to him being unarmed on two occasions in his submissions. He submits, therefore, that the judge erred in fact in assuming that the applicant was armed. We have considered that submission. Even if the judge erred in that respect, it seems to us that this would not mean that the sentence was manifestly excessive or so far out of the usual range of sentences as to warrant our intervention. We will return to an aspect of this matter.

8. The next point, Mr Mullick presses is that the judge appears to have taken 12 years as his starting point, upon the basis that it was so adopted by the Court of Appeal in R v Cheung Chi-man, CrApp 14 of 1992, unreported. He submits that in fact this was not so.

9. It is right, in fact, that there is no guideline or tariff laid down by the Court of Appeal and that this was not done in Cheung Chi-man. But at the end of the day, what happened in Cheung Chi-man was that the Court of Appeal upheld the sentence of 8 years and that was a case in which the appellant there had pleaded guilty. If one interpolates a discount of the usual one-third, then one would arrive at a starting point of 12 years. However that may be, no guidelines or tariffs having been prescribed or laid down by the Court of Appeal, we do not feel able to accept the view that 12 years was a material departure from any tariff, guideline or acceptable range of sentence. We accordingly do not think intervention is called for on this ground.

10. Mr Mullick has also stressed the age of the applicant and indeed, he is very young. He does not come within what this Court has held to comprise extreme youth. However that may be, he is entitled to some consideration on account of his youth, but, as will be apparent from the reasons of the judge which we quoted, the judge took that into account. Bearing in mind that his plea came late, the judge must have given him a discount for that of less than a third and taken account of this feature to arrive at the one-third he allowed.

11. At the end of the day, Mr Mullick conceded frankly that he was asking this Court to intervene on the basis that the sentence is manifestly excessive.

12. Speaking for myself, it may well be that I would not have used such a high starting point. Nonetheless, it is a sentence that is within the wide range of accepted sentences for manslaughter. It is not wrong in principle, and we do not feel able to say that it is manifestly excessive. The applicant knew he was being asked to go and attack someone. He must have seen the weapons although we have no evidence when they were picked up. And he was prepared to accept payment for the attack. Having regard to all the circumstances, we do not think we would be entitled to intervene; there was no error of principle nor was the sentence manifestly excessive. We refuse leave to appeal.