HKSAR v. TSUI KAM WA DANNY AND ANOTHER

CACC 514/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 514 OF 2001

(ON APPEAL FROM HCCC 54 & 244 OF 2001 (CONSOLIDATED))

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicants were, after a trial in the High Court before Beeson J, convicted of manslaughter and sentenced to eight years' imprisonment. They now seek leave to appeal against their sentences.

2. Originally they were together with D3 and D4 charged with murder. It is evident that there was some provocation and it is for this reason that they were convicted of manslaughter rather than murder. It is of some significance to add that D3 and D4 were found guilty of the further alternative count of assault occasioning actual bodily harm contrary to section 39 of the Offences against the Person Ordinance Cap. 212.

3. This being the case it is apparent from the jury's verdict that they were satisfied that both these applicants had had the intention of either killing the victim or at least causing him very serious injury. This is undoubtedly an important factor to bear in mind in determining what was an appropriate sentence.

4. When passing sentence the Judge summarised the evidence which was before the jury in this way:

"The brief facts as they appear from the evidence show that a group of people were socialising at a karaoke bar. The 1st accused, who claimed to the police and was later referred to by others as being badly affected by alcohol, threw a dice cup at a girl with whom he was playing, or with whom he was about to play, a dice game. There appears to have been no reason for this action except for his possible annoyance that she was not familiar with his game of choice.

The girl did not retaliate and told her boyfriend, Mr Hui, the deceased, who was elsewhere in the room and had not seen the incident, that she wanted to leave. She told him about the incident but Mr Hui did not react or remonstrate with the 1st accused and treated the matter as a minor one and rather reluctantly he followed his girlfriend downstairs intending to leave.

Whilst downstairs he intercepted a telephone call to his girlfriend from another girl who was still at the karaoke bar. He saw his girlfriend was crying and, apparently angered by what was said, or by his girlfriend's tears, returned upstairs. He went up immediately to the 1st accused and asked him if he wanted to cause trouble. He threw some object at the 1st accused, this hit the 1st accused on the top of the head, causing bleeding.

Immediately the 1st accused jumped onto a table and punched Mr Hui. In this attack he was joined a very short while later by the 2nd, 3rd and 4th accused, all of whom attacked Mr Hui using fists and feet. The struggling group moved to the door. By the time Mr Hui reached the door he was beginning to collapse; he slid to the floor appearing, in the words of eye witnesses, to be 'strengthless'. As he lay face upwards and motionless in the corridor, the group continued to attack him.

Someone mentioned making a report to the police. At that juncture these accused left the premises in the company of the 3rd accused, followed, a few paces behind, by the 4th accused.

Police intercepted the first three accused as they came down the escalator. Their attention was drawn to the wound on the 1st accused's head and other injuries noticeable on the 2nd and 3rd accused. Mr Hui was taken to hospital but did not regain consciousness and died two days later. The post-mortem showed that the cause of death was of a 3 millimetre tear in the left vertebral artery. Although the deceased had a number of other injuries, none was major or life threatening.

The Forensic Pathologist considered that either a kick or a punch could have caused the twisting or rotating movement or a combination of the two movements which caused the rupture. He considers that such an injury resulted was, in his experience, uncommon."

5. In addition to this it is pertinent to observe that the Judge appears to have accepted that the attack upon the victim was of relatively short duration lasting anything from half a minute to 1 1/2 minutes. It will however be borne in mind that four men set upon one man and that they continued the attack notwithstanding the fact that the victim remained motionless on the ground.

6. Neither applicant gave evidence at their trial. They did however both give exculpatory statements in which they denied ever having assaulted the victim.

7. Both applicants in their perfected grounds of appeal complain that the starting point of twelve years' imprisonment adopted by the Judge was manifestly excessive. Reference was made to the spontaneous nature of the attack and the fact that no weapons were used by the applicants. In addition to this the duration of the attack was short and that it had been extremely unfortunate that the victim had sustained a fatal injury in the circumstances.

8. The 2nd applicant made a further complaint that the Judge had been in error in only giving him a similar discount of one-third for his guilty plea to that given to the 1st applicant when it had been the case that he had offered to plead guilty at an earlier stage. We do not consider that there is any merit in this complaint. The 2nd applicant received a full one-third discount for his plea and was not entitled to anything over and above this.

9. There was, as we have said on many occasions before, no requirement in a case of manslaughter for the judge to have taken any starting point. The Judge was entitled, in view of the infinite circumstances which are found in cases of this kind, to have arrived at a proper sentence by just taking into account all the relevant factors which had been canvassed before her. The rationale for this was explained at p. 5 of R v Lee Sau-ping CACC 189/1995 (unreported).

10. This being said, the fact remains the Judge did take a starting point from which she deducted one third to reflect the pleas of guilty to manslaughter which were entered (although not accepted) in front of the jury at the close of the case for the prosecution.

11. We have come to the conclusion that in all of the circumstances of this case the starting point of twelve years' imprisonment was manifestly excessive.

12. Although it was a very serious offence it did not merit a sentence of this length. We have come to the conclusion that a sentence of six years eight months' imprisonment, which takes into account the one-third discount, would have been sufficient. We accordingly allow the application and treating it as the appeal order that sentences of six years and eight months' imprisonment be substituted for the original terms imposed. To this extent the appeal is successful.