HKSAR v. KAN MAN WAI

CACC 145/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 145 OF 2008

(ON APPEAL FROM HCCC NO. 272 OF 2007)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. In April 2008, the applicant was arraigned upon an indictment charging, first, that on 10 November 2006 he unlawfully and maliciously wounded Lo Po Yan; and, secondly, that on 22 June 2007 he murdered Koon La-kok.

2. On 9 April 2008, he pleaded guilty before McMahon J. to the first count of wounding and in relation to the second count, that charging murder, the prosecution accepted his plea of guilty to manslaughter.

3. In respect of the first count of wounding, he was sentenced to 12 months’ imprisonment.  In respect of the manslaughter offence, he was sentenced to 12 years’ imprisonment.  The two sentences were ordered to run concurrently.

4. The applicant now seeks leave to appeal against sentence.  No complaint is maintained against the sentence of 12 months’ imprisonment.  It is contended however that the sentence for the manslaughter offence was manifestly excessive.

5. The essential facts of the case were helpfully recounted by the judge when delivering his sentencing remarks and we adopt them:

“The facts of the case were that the two victims of the offences, Lo Po-yan in respect of the 1^st count and Koon Ka-lok (the deceased) in respect of the 2^nd count, were packing workers at the Hong Kong International Airport.  Their working shift finished at about 3.30 am on 10 November 2006, and they then went to Yaumatei where drank beer until 7.30.

On their way home, as they crossed Parkes Street in Yaumatei a motor vehicle drove close by them.  The deceased and Lo swore at the occupants of the car and may have scratched it.  The car stopped and the defendant, who had been a passenger in it, alighted.  The female driver, the only other occupant of the car, remained in it.  The defendant approached the deceased and Lo and there was a further exchange of foul language.

The defendant then struck blows to the deceased’s head with his fists and the deceased fell to the ground.  Lo tried to intervene but the defendant knocked him to the ground also.  The defendant then began to kick the prone deceased in the head.  Lo again tried to intervene but the defendant kicked him in the head and Lo lost consciousness.  The defendant then kicked both the deceased and Lo whilst they were on the ground. 

The woman driver of the car told the defendant to stop beating the deceased and Lo, but the defendant told her to drive off and she did.  The defendant then continued to kick the deceased and, to a lesser extent, Lo in the head and to stamp on them for a few more minutes before himself leaving.  Subsequently, persons who had witnessed the assault contacted the police and ambulance and the deceased and Lo were taken to Queen Elizabeth Hospital.

The deceased was unconscious when placed on the ambulance and upon arrival at he hospital was found to be in a coma.  He never regained consciousness and died some months later on 22 June 2007.  His death was as a result of complications caused by his head injuries.  His injuries, in brief, consisted of multiple skull fractures and a broken jaw.  He sustained significant injury to his brain, resulting in eventual extensive necrosis to the cerebral cortex and to the sub-cortical white matter and the mid-brain.  The lower lobes of his lungs had also collapsed.

Lo was examined when he was admitted to hospital and was found to have sustained a broken nose and lacerations to both his nose and face.”

6. The summary of facts, which were admitted, go into considerable detail about the injuries sustained by the deceased.  An emergency operation was performed upon Mr Koon after admission and he was then treated extensively in the intensive care unit.  He suffered persistent high swinging fever and remained on tubes for life support.  He was bedbound and totally dependent and suffered multiple pressure sores as well as vomiting.

7. At the date of these offences, the applicant was aged 25 years.  He was not a person of previous good character.  There were convictions in the year 2000 for driving offences including one of reckless driving for which he was placed on probation for 18 months.  In 2003, he was fined for fighting in a public place; and in 2004 and 2005 he was fined for attempted theft and for possession of dangerous drugs, respectively.

8. In his sentencing remarks, the judge described the incident as “an inexcusable attack upon two at least partially drunken men,” and added that the attack had continued well after the deceased and Lo had been rendered unconscious and defenceless.  He noted the fact that no weapon had been used but that, nonetheless, the attack was particularly savage and unremitting and that the major part of the attack was concentrated on the heads of both men whilst they were prone.  He took the view that this was an attack that “approached the borderline between manslaughter and murder and was wholly disproportionate in its violence and persistence to any provocation the defendant may have suffered from the deceased and Lo.”  It was, he added, an attack of extreme violence persisted in “quite brazenly, in a public street and which continued even when the deceased in particular was well beyond defending himself.”

9. Mr Cahill, for the applicant, argues that the judge failed to give sufficient weight to a number of mitigating circumstances, including, it is said, that this was not a gang-related attack; that there was no evidence of premeditation; that no weapons were used; that there was a degree of provocation; that the attack arose from a sudden loss of temper and that the assault by the applicant was out of character.  He prays in aid also a number of other cases of manslaughter which, he suggests, show that the sentence was manifestly excessive.

10. The factors put forward are not, in truth, mitigating factors.  They do no more than point to the absence of features which might make up the characteristics of another type of attack altogether.  The sentencing judge’s description of this attack was entirely accurate.  It was particularly vicious and sustained and was continued upon the victims even after they were rendered unconscious.  The attack persisted even after the driver of the vehicle in which the applicant had been passenger had begged him to stop and was directed to the heads of the victims.  Given the applicant’s record, which includes an offence of fighting in a public place, it is not accurate to say that this offence was out of character.  There is, further, little assistance derived from the other cases.  In few categories of offence is sentencing so much an art and a question of the correct ‘feel’ than in manslaughter cases.  This was indeed a borderline murder/manslaughter case and, taking into account the plea of guilty, the sentence was entirely appropriate.

11. The judge expressed the view that such violence as was offered by the applicant was wholly disproportionate to any provocation that may have been offered and Mr Cahill contends that the judge gave insufficient weight to the fact that the plea was tendered and accepted on the basis that the attack constituted an unlawful and dangerous attack and that sentencing therefore must proceed on the assumption that there was no intent to cause grievous bodily harm.  Whilst sentencing had to proceed on that premise, that does not derogate from the vicious and persistent nature of the attack, the intent behind which must in the circumstances be treated as falling barely short of that required in a case of murder.  We agree with the judge’s assessment that the response was grossly disproportionate to any provocation offered.

12. In these circumstances, the application for leave to appeal against sentence is dismissed.