LAU PUK YU v. R.

IN THE COURT OF APPEAL

1993, No. 402
(Criminal)

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J U D G M E N T

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Kaplan J. giving the judgment of the court

1. On 23rd July 1993, the Applicant was convicted of the manslaughter of Madam Chu Lan Heung on 10th July 1992. He was sentenced by H.H. Deputy Judge Daniell to 7 years' imprisonment.

2. He had been tried on an indictment alleging that he had murdered Madam Chu, but the jury convicted him of manslaughter which the judge accepted was on the basis of provocation. We pause here to say that it is a pity that before the jury were sent out, the learned judge did not invite the jury to tell him when they returned with their verdict, if it was manslaughter, whether the verdict was based upon provocation, or the alternative ground that they were not satisfied that the Applicant had formed the necessary specific intent for murder. We think that it is better to do this before the jury retire so that they know they will be asked this question and can focus their minds on the answer to it. If the judge just springs the question upon them when they have returned with their verdict confusion will be the most likely result.

3. In the present case, defence counsel mitigated on the basis that the verdict must have been based upon provocation and the learned judge sentenced on that basis.

4. The Applicant himself had one minor previous conviction which was of no relevance at all. The judge sentenced on the basis of provocation, as I have said, and he concluded that 7 years was the most lenient sentence he could pass. The judge did not attempt to make any proper assessment of the degree of provocation when he came to sentence the Applicant although, as Mr. Cross has pointed out that, this was all dealt with in mitigation a few minutes before the judge came to sentence the Applicant. (See Donachie [1982] 4 Cr. App. R(s) 378)

5. We note that there was evidence before the jury from two medical experts that a bite which the deceased inflicted on the Applicant's abdomen and which was part of the provoation on which the Applicant relied, was made with some considerable force. As was said by the English Court of Appeal in Derek Tayler [1987] 9 Cr. App. R (S)

"Sentencing in these circumstances is an almost impossible task"

6. It is clear that Dr. Thomas in his book on the Principles of Sentencing indicates that there is a range for manslaughter cases on the grounds of provocation between 3 and 7 years, and this is to some extent supported by the case of Peddie [1990] 12 Cr. App. R (S) where it was held that "sentences for manslaughter by reason of provocation generally ranged from 3 to about 7 years' imprisonment. The sentences depended on the culpability of the Defendant in the particular case; much would depend on the nature of provocation offered by the victim."

7. However, it was made clear in Shaw [1984] 6 Cr. App. R(S) that 7 years should not in all cases be considered the maximum sentence the court should impose for killing which had been reduced to manslaughter on the ground of provocation. That case justified a sentence of 8 years because there were a number of aggravating factors. We also note that this court in R. v. Chow Wing-kin [1990] Cr. App. 248 was satisfied that 5 years was a proper sentence in circumstances where it appeared that some provocation had been offered by a wife to her husband.

8. In this particular case, we take into account that the provocation was physical, that there was evidence before the court of a very substantial bite to the Applicant's abdomen and there was also the physical attack, as it were, upon his private parts. The Applicant appeared in person before us and read to us a statement which impressed us as being one of genuine remorse. In all the circumstances of this case, we take the view that the sentence should not have come at the upper limit of the range which we indicated is roughly appropriate in this sort of case. We think that 7 years was in the circumstances too high. The judge did not really analyse the nature of the provocation when sentencing. We are satisfied that the proper sentence on the facts of this case is one of 5 years' imprisonment. In those circumstances, we give leave to appeal against sentence and we substitute for the sentence of 7 years one of 5 years' imprisonment.