LO BING SUN v. R.

IN THE COURT OF APPEAL

1993, No.660
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. Lo Bing Sun, the applicant, appeared for trial before Saied J. and a jury on a single count of manslaughter. The particulars were that he, on 11th July 1992, unlawfully killed Lai Shu Kwong. After a trial, which centered upon the issue of causation, the applicant was found guilty and sentenced to a period of 3 years' imprisonment. He now seeks leave to appeal against that sentence.

2. The applicant and the deceased were known to each other. At about 3:00 a.m. on 11th July, the deceased was seen walking to-and-fro in the region of Lugard Road with either one or two dogs. He also was drinking beer. The applicant was seen in the vicinity. The applicant was seen to ask the deceased to go over for a talk. They had a conversation. A little later, an eye-witness heard a bang and saw the deceased fall down, he had been standing up and he fell backward, his head coming into contact with the ground. That there had been a verbal row between them and the applicant had struck the deceased a single blow on the mouth. The deceased was bleeding from the corner of his mouth and was assisted to get up and to sit on a wooden chair which was placed against a nearby pillar. The applicant helped in moving the deceased to the chair. The deceased appeared dizzy and a witness who had come to his aid said that she could feel with her hand "a swelling on his head", the size of which she described as that of a "barbecued pork bun", about 2 1/2 inches in diameter. After the bleeding was stopped, the deceased was left, sitting in the chair and one of the eye-witnesses went to eat congee, another went home to sleep. The applicant left the scene.

3. Sometime between 5:00 and 6:00 a.m., two of the witnesses woke up and saw the deceased lying on the ground with his face facing slightly towards Lugard Road. He was bleeding from the mouth. The matter was reported to the police. The deceased was taken to Tang Shiu Kin Hospital.

4. One of the eye-witnesses said in cross-examination that those who came to the assistance of the deceased had shaken him several times but he did not respond. He thought him to be unconscious when he was placed on the chair.

5. At the time when the deceased was seen on the ground about 6:00 a.m., his condition was much worse than it had been after his initial fall.

6. At the hospital, on the initial medical examination, the doctor found:

(1) 2cm laceration over the right temporal region of the head;

(2) 2cm laceration over his left face; and

(3) 3cm laceration over upper oral mucosa.

There was a small amount of old blood in both nostrils and an X-ray of the skull showed a fracture of the occipital and left temporal bones. From Tang Shiu Kin Hospital, the patient was transferred to Queen Mary Hospital where again he was treated, an emergency operation was performed to decrease the intracranial pressure. The deceased died at 11:40 p.m. on 11th July.

7. On post-mortem examination there was found a 10cm linear fracture from the right occipital bone across the midline and forwards along the left occipital bone. There was a second linear fracture 6cm long over the left top of the parietal bone entirely on the left side. The surgical wound was replaced but the bone flap of the skull, which had been cut away in the course of the operation was not replaced.

8. The fact that the bone flap of the skull was not replaced left the pathologist unable to answer a question by the court as to the whether the fracture of the occipital and left temporal bone was one continuing fracture. These bones are adjacent to each other in the skull so that, if there is a concussion, injury or blood trauma in that region, it is conceivable - and I quote from the summing up -

"that one or more of those bones would be fractured either continuously or contiguously."

9. This left open the possibility of separate fractures. Looking at the pattern of the fractures, it was the pathologist's view that it was an impact at the back of the head which resulted in the pattern. If the 10cm fracture and the other fracture were connected, then one impact could have caused them both but, if the two fractures were not connected, a second impact must have occurred over the left side of the head. The 10cm fracture of itself was sufficient to cause death.

10. The jury had before them a statement under caution made by the applicant, admitted without challenge, after his arrest on 1st August. In that he said that there was a background of a debt of $30 which the applicant owed to the deceased. On "10th July", as he put it, at 3:00 a.m., he saw the deceased at the junction of Lugard and Lockhart Roads. The deceased was holding a bottle of wine and had dogs with him. He asked the deceased to come over to him and enquired whether another party had returned the $30 debt to him - the deceased. The deceased said no. The deceased on being challenged denied using abusive language about the applicant. On hearing this, the applicant punched the deceased once on his right mouth corner. The deceased then fell down. This statement was not supported in evidence by the applicant. The laceration over the lip and on the inside of the mouth supports the one blow story given by the applicant.

11. To state the obvious, it was clear that the applicant never intended to cause the death of the deceased. This was a case of a "one unfortunate blow" which had very terrible consequences. It must remain forever unclear as to whether two fractures or only one was caused when the deceased fell and struck the back of his head resulting from the blow to the face.

12. Mr. Macrae, who appeared for the applicant in this court, has referred us to a number of English authorities - as indeed was the trial judge. In particular, he draws our attention to Stuart (1979) 1 Crim. App. Rep. (S) at page 229 and Coleman (1992) 95 Crim. App. Rep. 159. These together with Phillips (1985) 7 Crim. App. Rep. (S) 235 tends to suggest that for the pub row where blows are struck and death results, something in the region of 1 year to 2 years' imprisonment is a normal sentence in England. In Phillips Watkins LJ said at page 237:

"The offence of manslaughter is, unhappily, one which is committed quite frequently in a huge variety of circumstances. The court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about. In the experience of this Court in cases of manslaughter where the cause of death has been a punch which has felled the victim so that he has struck his head upon a pavement and cracked his skull, a sentence in the region of 12 months' imprisonment, and sometimes no imprisonment at all, is usually considered to be a proper sentence."

13. 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. These courts do not see the "pub row" type of offence for that is not prevalent in Hong Kong. But this city is a very crowded and tense environment and the unlawful and dangerous act constituted by a blow such as the one here must be deterred. The huge variety of circumstances in which the offence of manslaughter is committed leaves sentencing very much at large. We must be conscious of the fact that a human being has lost his life. It needs to be emphasised that the landing of the comparatively mild blow on the face of the deceased, of itself, did not cause injury of any consequence.

14. However, the applicant had a history of violence. His criminal record starts in 1970. In each of the years 1971 and 1980 he was convicted of robbery; in 1986 of assaulting a police officer in the execution of his duty; in 1987 of obstructing a member of the Customs and Excise in the exercise of his duty; and in 1992 he received a 3 months suspended sentence for assault occasioning actual bodily harm. His propensity to violence is therefore evident. He was also a drug addict. Both are factors a sentencing judge is entitled to take into consideration.

15. It does not appear to have been drawn to the attention of the trial judge, but, on the face of the criminal record the 3 months' imprisonment suspended for 12 months imposed on 14th April 1992 would appear to have been in force at the time that the instant offence was committed. That suspended sentence was not activated.

16. We have given anxious consideration to all the circumstances of this case and we are very conscious of the views of my Lord Penlington JA whose judgment we have had the opportunity of reading in draft but, giving them the respect they fully deserve, we are not satisfied that the imposition of a sentence of 3 years' imprisonment in this case was either manifestly excessive or wrong in principle. We would dismiss the application.

Penlington J.A. :

17. The facts of this matter have been fully set out in the judgment of the learned Vice-President.

18. There can be no doubt that sentences for manslaughter vary greatly from actions which are very close to murder to a negligent act of omission, such as a railway employee failing to put up a signal thereby causing a train collision. It seems to me however that in cases of an assault without a weapon which causes the victim to fall and sustain a fatal injury the normal sentence, in the absence of other aggravating factors, is one to two years imprisonment.

19. In Stuart the deceased was struck by two men who knocked him down some concrete stairs and left him to die. The sentence was reduced from four to two years. In Phillips 1985, 7, Crim. App. Rep. (S) 235 the facts were not dissimilar to those here. there was a fight outside a public house and the appellant punched the deceased several times. He fell, fractured his skull and died. The appellant had a bad record of violence but pleaded guilty to the offence. A sentence of seven years was reduced to two.

20. The dicta of Watkins L.J. at 237 have been set out in the judgment of Silke, V.P. and I will not repeat them but they seem to me very apposite here.

21. Edwards 1990 - 91, 12, Crim. App. was also a case of a fist blow causing a fall and a fatal skull fracture. It followed the familiar pattern in the United Kingdom of a fight outside a public-house. Following Phillips a sentence of four years was reduced to two. In Coleman a sentence of two years was reduced to one. Lord Lane C.J., at p.164, said that for offence of this sort- a punch causing a fatal fall - "the starting point for this type of an offence, strictly confined as we have here endeavoured to confine it, is one of 12 months imprisonment on a plea of guilty". Finally in Hughs, 1988, 10 Crim App. Rep. 169 again a sentence of three years was reduced to two for the same sort of offence - a single punch causing the deceased to fall and hit his head on the ground. There were other circumstances present there which made it a more serious offence.

22. It seems clear that, on the English authorities, the usual sentence for this sort of offence is one of one to two years imprisonment. The actus is a fist blow which itself would only support a charge of assault. There is no doubt that the consequence of the blow, even if not foreseen or desired, must be considered and there was here, as in the other cases referred to, a loss of life. However, it seems to me that a sentence so well out of line with English levels is only justified if the offence is more prevalent here or is regarded by this society as more serious - as is the case with sexual offences. I do not think that is so. This type of offence occurs often following heaving drinking and a fight - a frequent occurrence in England but not in Hong Kong. That view seems to find support from the lack of previous decisions in Hong Kong on the proper level of sentence for this type of offence.

23. The applicant did not plead guilty to the offence but clearly there was a question of causation which could only be decided after the medical evidence was heard and tested in court. No counsel could have advised the applicant to plead guilty before trial.

24. I would allow the application and, in the light of the facts here and the applicants record, reduce the sentence to one of eighteen months imprisonment.