SO TAI-KI v. R.

IN THE COURT OF APPEAL

1993, No. 220
(Criminal)

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R E A S O N S

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Nazareth, J.A.:

1. In our judgment given on 1st March 1994, for the reasons we gave, we refused the applicant's application for leave to appeal against conviction. On that occasion he appeared in person.

2. On 2nd September 1994 we heard his application for leave to appeal against sentence. He was on this latter occasion represented by Mr Alexander King. Having heard counsel, we also refused his application for leave to appeal against sentence, stating that we would give our reasons later. This we now do.

3. Returning to the facts, on this occasion with specific reference to the sentence of 8 years for manslaughter, we repeat that two groups of people were involved in the attack in which the deceased was fatally injured. Some weeks prior to it remarks about a facial disfigurement of the applicant who was with his group in a restaurant were made by members of the deceased's group. On the night of the attack both groups were in the karaoke lounge. There is no suggestion that they went there for a fight, but there was an incident and some exchanges. When the deceased's group was leaving the karaoke lounge, one of their cars was attacked by the deceased's group with poles, rods or billiard cues. Two members of the deceased's group were wounded, but all appeared to have retreated from the car park. The deceased then returned to the car park armed with a steering lock. He was disarmed and attacked, primarily by two persons of whom one was the applicant.

4. In sentencing the applicant the judge said this:

"You have been found guilty of manslaughter and of two charges of wounding with intent to do grievous bodily harm. The jury have told me that the basis upon which they returned a verdict of manslaughter was that you were provoked by the attack upon you by the deceased and, of course, that occurred, according to the evidence, after the assaults of the deceased's friends IP Sau-ki and LEE Fook-nin. The jury have, very properly in my view, determined that initially, at least, you and your group were the aggressors.

This sort of group thuggery, this predisposition to violence and heedless disregard for the well being and very lives of your victims is sadly not unknown in Hong Kong and, where it is found, must meet severe punishment. Deaths so often result from this sort of violence, tragic, unnecessary deaths of young men in their prime. Senseless and pointless violence is a threat to the maintenance of law and order. Thugs who go looking for trouble in semi-organised groups, who chase each other round our streets carrying weapons and engaging in open warfare are a threat to the community's well being.

I take into account all that has been said on your behalf. I cannot give you credit for a clear record, although I note you have no previous convictions for violent offences. I note what has been said in relation to looking at this matter as a plea of guilty.

You had already created the situation in the car park which prevailed before the deceased attacked you. The deceased's attack upon you would have been after he had seen his two friends bleeding from the head and being chased from the car park. The finding of provocation, in the circumstances, was a generous one; but that is the basis on which I must sentence you.

For the offence of manslaughter, you will go to prison for eight years."

The applicant's grounds of appeal are that:

"The sentence of 8 years imprisonment ... was manifestly excessive ... in particular the Learned Trial Judge:

(a) adopted too high a starting point in relation to the said sentence.

(b) failed to impose a sentence which accurately reflected, the culpability of the Applicant.

(c) placed insufficient weight upon the mitigating factors present in the case."

5. In pursuing the first two grounds Mr King relied primarily upon three appeals which arose out of the same incident in which a large dustbin lid was placed over the head and chest of the victim, and then jumped upon causing death when his chest was stove in. The main offender, Ko Kam-hung [1991]2 HKLR 433 deliberately and single-mindedly picked up a large dustbin lid, placed it over the victim's head and chest and, having encouraged others to do the same. jumped up and down on it. He was sentenced to 8 years. At p.436G Sir Derek Cons V-P, delivering the judgment of the court on 10th July 1991, expressed the view that eight years "would be an appropriate base for considering the case of anyone, whether himself armed or not, who takes part in a gang attack with others, some or all of whom carry weapons such as wooden poles or water pipes, and from which death ensues."

6. Months earlier, on 4th January 1991, a different division of the Court allowed the appeal of another of the assailants in the incident, Kan Wah-cheung [1991]1 HKLR 595. and reduced his sentence of 4 years imprisonment for manslaughter to one of 3 years. Mr King pointed to the following passage in the judgment of the court given by Silke V-P at p.597H:

"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."

7. We pause to observe that there was substantial mitigation in Kan Wah- cheung'scase; moreover the Court thought it wrong to visit him with the suggested level of sentence which they indicated such offences should attract in the future.

8. On 3rd December 1992 yet another division of this Court allowed the appeal of a third assailant, Wong Wing-yau, Crim.App.No.245 of 1992, unreported, setting aside the sentence of 8 years imposed upon him and substituting a sentence of 4 years and 9 months. However, it is apparent that there the sentence was based upon responsibility for the action of the co-accused which the trial judge stated Wong Wing-yau accepted. In the absence of evidence of a preconceived plan and its view that what happened was more or less a spontaneous eruption of violence, the Court considered that Wong Wing-yau could not be held responsible for anything more than some punching and kicking, and not the injuries caused by jumping upon the dustbin lid. It was because of those errors of the judge, and also powerful mitigating circumstances including Wong's age of 17 years and his plea of guilty, that the Court made its substantial reduction of the sentence.

9. In Ko Kam-hung at p.4351 Sir Derek Cons V-P pointed out that guideline tariffs obviously cannot be suggested with regard to manslaughter "by reason of the infinite variety of the ways in which it may be committed, making it proper perhaps to pass in some circumstances merely a probation order and yet in others, up to ten years' imprisonment". Likewise, Silke V-P in Kan Wah-cheung commented at p.597G that "the circumstances of the crime of manslaughter vary from being close to murder down to a form of common assault. The sentences imposed vary with those circumstances." We would entirely agree with those comments.

10. In the particular circumstances before us, the applicant himself took a leading role in attacking the deceased, being one of the two who did so. He must be regarded as fortunate in being convicted only of manslaughter.

11. When the judge inquired of the foreman of the jury upon what basis the verdict of manslaughter was reached he received this reply:

"My Lord, the bases are as follows. Based on the evidence given in court, we believe that the defendant did involve in the fighting happened in the car park. And secondly, based on the evidence given in court, we believe that quarrels did happen inside the karaoke and the car park, and which resulted in fighting which happened in the car park. And the fighting, we believe that the defendant did take part in it. And also the fighting resulted in causing serious bodily harm to the deceased which resulted in the death. However, we also believe that the deceased did come back to the car park holding something in his hand, which we believe is the steering-wheel, which led to our belief that the killing is caused by provocation"

What that provocation was clearly concerned the judge, and was plainly of a nebulous nature.

12. In the circumstances here, patently different from those in the dustbin lid appeals, we do not find the sentences in those appeals and the associated observations viewed in isolation, necessarily apposite in the present appeal. The judge clearly gave careful consideration to the matter. We agree with his observations and comments. While the sentence imposed is undoubtedly severe, the case is a serious one and we do not think the sentence was manifestly excessive nor was it suggested that there was any error of principle. We find no merit in the grounds of appeal. For those reasons the application for leave to appeal against sentence was refused.