THE QUEEN v. YEUNG SIU KWOK AND ANOTHER

IN THE COURT OF APPEAL

1987, No. 5
(Criminal)

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J U D G M E N T

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Power, J.A

1. The applicants, who were the 2nd and 3rd accused at the trial, and a third person, who was the 1st accused, faced a charge that on 9th May 1986 at Lek Yuen Estate, Shatin, New, Territories, Hong Kong, together with LAM Wai-Leung, YIP Chung-hung and other persons unknown, they murdered LAI Wai-kai. The 1st accused was acquitted and discharged. The applicants were each found not guilty of the charge of murder but found guilty of the charge of manslaughter. Each was sentenced to imprisonment for eight years and each now appeals on the ground that that sentence was too severe.

2. On the 7th Nay 1986 there was a fight, at about 10 0' clock in the evening, in the Salem Billiard Saloon in Fun City Building in Shatin in which the 1st and the 3rd accused, on their o\.,n admission, and, according to one witness, the 2nd accused, were attacked by another group of persons. After the attack the victims fled the scene. It was the Crown case that the 3 accused and others returned to Shatin on the following night and, having waited in ambush, attached the deceased, LAN Yu-man and CHOW Chi-keung on the 2nd floor of Wah Fung House, when they were returning from the Oriental Express Lounge to the Salem Billiard Saloon.

3. The case against the 2nd accused rested initially upon identification evidence from four witnesses. CHOW Chi-keung, one of the party attacked, said that he saw the 2nd accused among the group of attackers but that he did not see him holding a knife. LAM Yu-man, another one of those attacked, said that he saw the 2nd accused and that he was one of two men holding knives. Two other eye witnesses, a man called Yam and another called Yau, said t hat they saw the 2nd accused actually chopping the deceased.

4. The 2nd accused made two statements in which he said that he was at home at the time of the attack. However, in a third statement, which he said had been extracted from him by force but which was admitted by the trial judge, he made an admission that he had gone to the scene and had acted as a lookout.

5. He said in his statement that after Lam Wai-leung had asked him to go tot he scene, "I said 'I have never gone to Shat in before and I have never seen that group of persons, how can I go there to give a helping hand, do you mean to tell me to go there to be hit by others.' LAM Wai-leung said 'You go there to act as our lookout, you don't have to fight', I then said 'I will go there to act as your lookout only, I won't fight.' "  He went on to say that, at about 11.30 p.m. he saw a person named Yuet Nam Chai carrying a black bag on his back and asked him what it contained and Yuet said: "They are three knives. They are useful when the time comes."

6. Later in his statement he said that he saw Yuet Nam Chai and his friend holding knives and chasing to chop a youth and that, after the incident ended, he, not having taken any active part in it, went with the others by taxi to Ngau Tau Kok.

7. In his evidence at his trial he said that he had not been at either the Salem Billiard Saloon on the 7th or the scene of the attack on the 8th. We are satisfied, given the acquittal on the charge of murder, that the trial judge was required to approach sentence upon the basis that the jury acted upon the admissions made by this accused in his statement and not upon the evidence of the eye-witnesses. Indeed the trial judge gave the following direction to the jury:-

"The prosecution must prove beyond reasonable' doubt that the particular defendant contemplated that a knife would probably be used to inflict grievous bodily harm. It is what the particular defendant himself in fact contemplated that matters. You have to work out what you find was in his mind at the time and you decide that, members of the jury, by having regard to all the facts in the case, taking into account not only what you find in his statements or in his defence, but taking into account his age where you think that is appropriate. If there is a reasonable possibility that he didn't foresee the risk of grievous bodily harm to someone else by the use of the knives, then he will not be guilty of murder but guilty of manslaughter, just use your common sense, members of the jury."

The jury, no doubt bearing in mind this direction, came to the conclusion that the 2nd accused was guilty only of manslaughter.  It was, clearly, not proved to their satisfaction that he contemplated that knives would be used to inflict grievous bodily harm.

The trial judge called for reports. The probation report was not favourable to the accused but he was said to be suitable for a Training Centre and Mr. Plowman has asked this Court to consider varying the sentence to one of detention in a Training Centre. We are satisfied, however, that the trial judge was quite correct in imposing an immediate term of imprisonment, as the offence was far too grave to be dealt with by the making of a Training Centre Order.

When dealing with the seriousness of the offence the trial judge, very properly, in our view, said:

"Youths who embark on revengeful conduct of this kind should not be detained for a short term in a training centre in the event of them being caught.  If this were the case, others might join in chancing a life sentence against the glamour of showing off before their confederates. If only for their own good youngsters must be made to think twice before being persuaded to join armed gangs bent on taking revenge. The sooner they realise that the courts treat these reprisals as serious the better, even though they may not intend death or serious injury to another."

8. Had the trial judge been dealing with an adult, we would have seen no ground for interfering with the sentence imposed. However, in view of the youth of this offender, who was 17 at the time of the offence and of the general level of sentences imposed upon young persons for offences of this nature and in particular, giving due weight to what is implicit in the verdict of the jury, we are satisfied that the sentence was too severe. We allow the application and treat this hearing as the hearing of the appeal and order that the sentence of 8 years be varied to one of 5 years.

9. I turn now to the 3rd accused. This accused was identified by three persons as having been at the scene. Both Chow and lam, who were members of the party attacked, said that they saw him leaning against a balustrade. Yam, the eye-witness to whom I have already referred, said that he saw the 3rd accused actually chopping the deceased. The 3rd accused made a statement to the police in which he admitted that he participated in the chopping. However, when he came to give evidence, he said that, although he was present on the 7th, the evening when the attack took place upon the party in the billiard room, he put that incident behind him and had no desire to hit back at those who had participated therein. He said that he was persuaded to go to Fun City on the 8th by LAM Wai-leung, the one who had suffered most in the attack, who told him that they should go to hit them back. He said that he knew there was going to be a fight but that he was going only as a spectator for fun. He said he did not know that knives would be used. However, he admitted that, having got there, he chased a person but said that he did not see anyone using any knives at that time.

10. The jury clearly refused to act upon his statement to the police and upon the evidence of Yam. It seems clear that they gave a large measure of credence to his evidence denying the truth of the statement and to his denial that he participated in the attack. While they must have accepted that he was present as a member of the party, they were not satisfied beyond reasonable doubt that he had the intention to, do grievous bodily harm. They clearly took the view that he went to the scene, knowing that there would be a fight but was not aware of the possibility that knives would be used therein.

11. Bearing in mind the age of the 3rd accused, who was 15 at the time of the offence, the seriousness of the offence and the attitude of the Courts to such offences, and again, giving full weight to what was implicit in the verdict of the jury, we are satisfied that the sentence was too severe.

12. We allow the application, treat the hearing of the application as the hearing of the appeal and reduce the sentence of 8 years to one of five years.