R. v. WONG WING YAU

IN THE COURT OF APPEAL

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J U D G M E N T

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Litton, J.A.:

1. This is the judgment of the court on an application for leave to appeal against sentence.

Background

2. On 8 June 1992 the applicant went before Duffy J. on two counts, one of murder and the other of assault occasioning actual bodily harm. Two separate victims were involved. The applicant pleaded guilty to the assault count and not guilty to the charge of murder but, on the first day of trial and with considerable reluctance, the judge accepted his plea of guilty to manslaughter. On the manslaughter count he was sentenced to 8 years' imprisonment, and on the assault count to one year; the terms to run concurrently. His application for leave to appeal is confined to the sentence of 8 years' imprisonment on the charge of manslaughter.

3. The crime occurred in June 1989. The applicant was, at that time, 17 years of age. He went into hiding and remained at large for nearly 2 years and was eventually picked up by the police on a routine stop and search exercise.

Indictment

                 The indictment reads:

First Count

STATEMENT OF OFFENCE

Murder, contrary to Common Law.

PARTICULARS OF OFFENCE

WONG Wing-yau, on the 3rd day of June, 1989 at the Kwai Chung Estate, Tai Wor Hau Road, Kwai Chung, New Territories, Hong Kong, together with KAN Wah-cheung, KO Kam-hung, CHEUNG Hok-shing and others, murdered CHEUNG Wai-keung.

Second Count

STATEMENT OF OFFENCE

Assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap. 212.

PARTICULARS OF OFFENCE

WONG Wing-yau, on the 3rd day of June, 1989 at the Kwai Chung Estate, Tai Wor Hau Road, Kwai Chung, New Territories, Hong Kong, together with KAN Wah-cheung, KO Kam-hung, CHEUNG Hok-shing and others, assaulted MO Chi-fai, thereby occasioning actual bodily harm to him.

The Summary of Facts

4. The summary of facts presented by the prosecutor, and accepted by the applicant as the basis for Duffy J's exercise of judgment on sentence, reads:

"     At about 12.45 a.m. on the 3rd June 1989, in the Kwai Chung Estate, Kwai Chung, a group of 6 persons, including the defendant, were involved in the killing of Chinese male CHEUNG Wai-keung and the assault, occasioning actual bodily harm, on another Chinese male, MO Chi-fai.

    The attack on the deceased and the injured male followed shortly after an exchange of verbal abuse between members of the defendants group who had been in a 3rd floor flat, and the deceased and his friends who were on the ground outside the same apartment building.

    The attack was witnessed by a number of persons. The defendant, WONG Wing-yau, was subsequently identified as one of the assailants involved in the attack on the deceased and the injured male.

    The attack occurred outside the Post Office of Block 28, Kwai Chung Estate, Tai Wor Hau Road, Kwai Chung, New Territories. The deceased and his friends, including the injured male, were playing with remote control cars in front of Block 28, late in the evening of the 2nd June 1989. Shortly after midnight on the 3rd June 1989, two beer bottles, apparently thrown from above, smashed on the ground near where the deceased and his friends were playing. The smashing of the bottles was followed by threats from the occupants of Room 303, Block 28.

    This action lead to an exchange of words between the deceased and the group of youths in Room 303. As a result 6 youths from room 303 rushed downstairs and commenced to attack the deceased and the injured male. The deceased and the injured male were both punched and kicked by the defendant, as well as others from his group. At one stage a refuse container lid was placed over the head of the deceased and several members of the attacking group then jumped on the lid. The injured male was punched and kicked and a beer bottle was thrown at him.

    The attack was reported to the police who attended promptly, the two victims were taken to hospital, the deceased was pronounced dead at 2.30 a.m. on the 3rd June 1989.

    An autopsy was carried out on the deceased on the 5 June 1989, the cause of death was given as:-laceration of hila of lungs which was the result of anterior posterior compression of the chest or blow to the chest with a .substantial amount of force.

     Multiple bruises and abrasions were found on the head, face and neck of the deceased, as well as multiple abrasion on his chest arms and legs, he also suffered three fractured ribs. The injured male suffered bruising on his forehead, a swollen face and a 1 cm laceration on his ear.

    The defendant was not located and interviewed until March 1991. Under caution the defendant admitted being part of the attacking group and to assaulting both the deceased and the injured male.

    The defendant is the fourth offender to be arrested for the incident."

The co-accused

5. As regards the co-accused, named in the indictment, the position is as follows:

(i)    KAN Wah-cheung : He came before Bewley, J. in February 1990 and     pleaded guilty to manslaughter on the first count and was sentenced to 4 years' imprisonment. He appealed against this sentence and the matter went before the Court of Appeal presided over by Silke, V.-P. A report of this case can be found in [1991)1 HKLR 595. When the application for leave to appeal against sentence first came on in August 1990, there was a dispute as to one of the collateral facts : namely, whether or not KAN Wah-cheung had himself stomped upon the dust bin lid which had been placed over the head and body of the deceased. The matter was remitted back to Bewley J. to see if that factual dispute could be resolved. The Crown was, by that time, unable to call the witness who claimed to have seen the incident. No further evidence being' adduced before Bewley J., he ruled that such action on the part of the applicant had not been proved. The Court of Appeal, at the resumed hearing of Kan's application, accepted that substantial mitigation existed and, proceeding upon the basis that Kan was not one of those who had stomped up on the dust bin lid, reduced the term of imprisonment from 4 to 3 years.

(ii)    KO Kam-hung : His case came before Barnes J. in August 1990. He pleaded not guilty to murder but his plea to manslaughter was accepted by the prosecution and by the judge. Barnes J. imposed a sentence of 8 years' imprisonment for the manslaughter. Apart from the facts common to all the accused, the judge in imposing the sentence of 8 years took this into account : Ko was seen to punch and kick the victim, to roll him against some railings and then, while the victim was on the ground, placed a dust bin lid over his head and together with others jumped up and down thereon. The dust bin lid was large and extended down to the victim's chest. Undoubtedly, it was this action which caused the staving in of his chest, killing him. Ko appealed against Barnes J's sentence of 8 years and his application came before this court, presided over by Sir Derek Cons V.P., in June 1991. A report of the case can be found in [1991]2 HKLR 433. By that time, the case of KAN Wah-cheung had already been dealt with and the discrepancy in the sentences of Kan and Ko, arising from the same incident, was apparent to the court. The court approached the case in this way

The Proper Approach

   Clearly, as Sir Derek Cons, V.-P. remarked in KO Kam-hung at 436A-B:

".....there must be some internal consistency of sentence, so that those who are guilty of manslaughter in broadly comparable circumstances receive broadly comparable sentences; and there must be some external consistency so that, for example, there is no glaring disparity with those guilty of other offences, such as robbery, which also necessarily involve violence."

The Judge's Approach

6. In approaching his task in this case, Duffy J. said this:

"You have pleaded to manslaughter. You are an extremely fortunate young man that I was not involved in this case when pleas were first taken. I 'would certainly not have allowed the Crown to accept pleas to manslaughter. I only accept them now because I am told that two of your co-accused have been dealt with in that way."

7. In relation to his Reasons for Sentence, there are two passages which trouble us.

8. Firstly, where the judge said : "By your plea of guilty you accept responsibility for the actions of all your co-accused in this affair. There was, in my view, no reason in law, or in logic, to distinguish between you at all." Plainly, if this were a case where the evidence pointed to a preconceived plan, of the kind referred in Attorney General v. TAM Ka-lok & Others, Application for Review No. 4 of 1990, (7 June 1990, unreported) where the attackers armed themselves with a variety of weapons and set out to launch an attack on the victims, it would be right to say that each member of the gang must "accept responsibility" for the actions of all the co-accused. An extreme example of this type of case is R. v. Brett (Court of Appeal Cr. Div.) No. 5289/V2/73, 28 July 1975 (unreported), cited in Attorney General v. Sin Wai-lun [1988)1 HKLR 580 at 582, where the robbery was organised "with almost military precision on a most elaborate scale. A large number of vehicles, not far short of a dozen, obtained in one form or another, were used and were abandoned when they were no longer required. Each of those involved, not all of whom have yet been brought to justice, had their appointed part in this plan". It is easy to see why, in this situation, the court said that "no distinction" was to be drawn between the different degrees of participation in the joint enterprise. Here, what happened was a more or less spontaneous eruption of violence. The assailants did not go to the scene armed. The use of the large dust bin lid, placing it over the victim's head and chest, was the spontaneous act of KO Ram-hung. The court in the case of Kan Wah-cheung clearly did not consider that to be part of the joint enterprise. The summary of facts, which was the basis upon which the applicant was to be sentenced, put responsibility on the applicant for having "punched and kicked" the victim but, as regards the dust bin lid, this is all it said:

"At one stage a refuse container lid was placed over the head of the deceased and several members of the attacking group then jumped on the lid."

By taking part in the punching and kicking, the applicant cannot be assumed to have agreed to the use of .the dust bin lid which eventually resulted in the death of the victim.

9. Secondly the passage which troubles us is where the judge said:

"You, I am told, in any event attempted, at least, to jump on the lid when it was on the body of the deceased but unfortunately the lid slipped off before you could do so."

10. This seems to have been derived from the deposition of one of the female witnesses who, because of the guilty plea, was not called as a witness before the judge. As regards this witness, there was a discussion between the prosecutor and the judge earlier on when the question whether the judge should accept the manslaughter plea was being considered. The prosecutor told the judge that the witness had been convicted of attempting to pervert the course of justice in relation to the same case and said, in effect, that he could not rely upon the evidence of this witness.

11. The only factual basis upon which the judge could have properly proceeded in considering sentence was the summary of facts which the applicant had accepted. The applicant was never asked to agree the further facts as set out in the deposition of the alleged eye-witness, whose credibility was, in any case, doubtful. The Judge should not have placed any reliance upon it.

Conclusion

12. In the light of the two errors of the judge, as summarised above, and of further considerations to be mentioned, we are of a view that the sentence of 8 years' imprisonment was excessive.

13. In exercising our judgment as to the proper sentence, we bear in mind what was said by the court in Kan Wah Cheung at 597-H:

"It may well be that the time has come when disputes which degenerate into fights, with or without the protagonists being armed, and in a public place - or more seriously in the close confines of a housing estate - from which a death results, should attract, upon conviction for manslaughter, a sentence of at least 5 years' imprisonment after trial. Such sentence could be increased depending upon the degree of violence, the nature of the weapons used, the deliberate nature of the attack and the number of the attackers. Any person who attaches himself to such an attack, whether or not he himself inflicts blows, must consider himself at risk of a sentence of that quantum."

14. We bear in mind the fact that at the time of the crime, the applicant was 17 years of age. He did_. not own up to the crime and went into hiding for nearly 2 years and, but for the vigilance of the police, might never have been apprehended. The fact that he admitted participation in the crime when caught counts for very little in mitigation. However, he did plead guilty and the plea was accepted. This must count in his favour.

15. Having regard to all the circumstances of this case, we allow the application, treat the hearing as that of the appeal, which we allow, set aside the sentence of 8 years and substitute a sentence of four years nine months.