THE QUEEN v. KAN WAH CHEUNG

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the Court.

2. This is the resumption of an application for leave to appeal against sentence which was adjourned on 9th August 1990 for reasons set out in the judgment of the Court delivered on that day.

3. Briefly: it was necessary because of a dispute as to one of the collateral facts - whether or not the applicant himself stomped upon a dust bin lid which had been placed over the head of the deceased - to have the matter sent back to Bewley, J., the trial judge, to see if that factual dispute could be resolved.

4. When the matter came up again before the judge on 8th November 1990 Mr. Schapel for the Crown was unable to call the witness who had stated herself to have seen that action. No further evidence was adduced and the judge ruled that, as it was not admitted, it had not been proved.

5. He had passed his original sentence of 4 years for manslaughter, with 1 year concurrent for an assault occasioning bodily harm, on the basis of what, on the face of them, were the admitted facts. Those admitted facts were, in mitigation, resiled from, as to the stomping incident, by Mr. King who appeared for the applicant throughout. The sentence imposed took into consideration the admitted facts including that incident.

6. A great deal of the argument at this hearing centered round the issue of the burden of proof and upon whom did the onus lie to call evidence when there is a dispute of this nature. We are not prepared, without hearing full argument, to come to any decided opinion. It may be that if it is an essential ingredient of the Crown's case then the onus lies upon the Crown on the normal criminal burden to prove that fact. Contrary, if it is a mere collateral fact, then it may be for the person disputing it to adduce evidence in respect of it.

7. It was accepted at trial that the applicant and others had beaten the deceased with light tree branches, had kicked him and had punched him. As a result of this beating, leaving aside any dust bin lid, the deceased had suffered laceration of the lungs, multiple bruises and abrasions on his chest, arms and legs together with three fractured ribs. It was the injuries to the chest which caused his death. It was a serious assault.

8. The attack on the deceased had occurred because his group, who were on the road outside Block 28 of Kwai Chung Estate, were making an amount of noise. A little after midnight two beer bottles were thrown at them and people shouted threats from Room 303 in that block. There was an exchange of words and then the people from Room 303 came down to the road and attacked the deceased and his group.

9. We have been referred to Attorney General v. Chuk Chi Hoi [1988] 1 HKLR 341 in which, on an Application for Review, the Court of Appeal considered that a sentence of 3 years was appropriate in a matter where the trial judge had imposed concurrent sentences of 6 months for manslaughter and l month for common assault.

10. The sentence of 3 years may have reflected the fact that even that was a very substantial increase on the sentence passed by the trial judge.

11. There had been a fight following a verbal altercation. Two men broke free of the fight and fled. There was then a succession of fights until reinforcements joined the respondent. The two fleeing men were attacked, subdued and the respondent and his group continued to kick and punch the deceased: in particular they stamped upon his head. He died from a double fracture of the skull.

12. The respondent, who was aged 20 with previous convictions including one for wounding, at trial had attempted to plead guilty to manslaughter but, on this plea being unacceptable to the Crown, was tried for murder but convicted by the jury of manslaughter.

13. The Court there was, as are we, aware of the dictum in The Queen v. Leung Hang Sang and another, Criminal Appeal No. 176 of 1986 (unreported) which indicated that:

"Some sentences passed by Hong Kong Courts of (sic) manslaughter even where no weapon has been used, have been lenient in the extreme."

14. We note that the applicant here pleaded guilty to manslaughter, which plea was accepted, had a clear record, was aged 21 and had made a full confession immediately upon arrest.

15. 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.

16. 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. It is a lamentable fact that a great many of these street fights concern youths or young persons. While section 109A of the Criminal Procedure Ordinance should be fully borne in mind by sentencing judges nevertheless youth, unless it be extreme youth, of itself may not be a strong mitigating factor.

17. We accept that substantial mitigation existed here. It may be that the trial judge, having in mind the lid stomping incident, did not give that mitigation its full effect in the sentencing process. Further we think it would be wrong to visit this particular applicant with the suggested level of sentences indicated in this judgment, which offences of this nature should attract in the future.

18. In these circumstances, and with some reluctance, we will give leave, treat the hearing of the application as the hearing of the appeal and allow the appeal to the extent that the sentence of 4 years' imprisonment for manslaughter is reduced to one of 3 years.