THE QUEEN v. KAN WAH CHEUNG

Headnote: Plea of guilty: admission of facts: mitigation departing from admission.

----------------------------------------

JUDGMENT OF THE COURT

----------------------------------------

Silke, V.-P.:

1. On 13th February 1990 the applicant, Kan Wah Cheung, appeared for trial before Bewley, J. on an indictment containing two counts, one of murder and the second a substituted count of assault occasioning actual bodily harm. To the murder count he pleaded not guilty, to the second count he pleaded guilty. The first count of murder was put again and the accused entered a plea of guilty to manslaughter, a plea accepted by the Crown and eventually by the Court.

2. Counsel then representing the Crown told the trial judge that the material facts were those as set out in the record at pages 2 to 4. Included in those facts was. the following paragraph:

"          The accused together with 4 others was seen by LEE Mei-sheung to attack the deceased with small tree branches, punches and kicks. She saw him stomp on the refuse container lid after it was placed over the head of the deceased by another of the group."

3. When the counsel had read out those facts Mr. King, who appeared for the applicant both here and below, is recorded as saying: "My Lord, those facts are admitted." Mitigation then followed, and we shall refer back to a portion of that in a moment, and sentence was imposed, that on the first count being four years and on the second count one year, the sentences to run concurrently giving a totality of four years.

4. The applicant now seeks leave to appeal against that totality on the basis that the sentence of four years for manslaughter was manifestly excessive in all the circumstances. Particulars given of the single ground are that, first, the trial judge failed to impose a sentence which accurately reflected the culpability of the applicant and, second, that the trial judge placed insufficient weight on the mitigating factors present in the case.   It is the first particular which causes us concern.

5. Despite the passage to which we have referred in the Statement of facts, in the course of the mitigation Mr. King had this to say:

"         My Lord, there are some particularly disturbing features about the nature of the attack, and the matter mentioned by my learned friend concerning the dustbin lid,which is mentioned in paragraph twenty-one of the brief statement of facts, that this accused was seen by a female witness, LEE Mei-sheung, to stomp on the refuse container lid after it was placed on the head of the deceased, my Lord, that is something that the defendant has always denied. And it is perhaps interesting that another witness - P.W.5, CHOW Chau-fong, who was what may be termed as an independent witness - she was the lady who was in room 503 of the Estate and watched from the balcony the whole incident unfold, saw one assailant throw a dustbin lid onto the head of the deceased as he was lying there. And she said in her evidence - page 95 of the.. depositions - that she had a good impression of the one who threw the rubbish bin lid: he was wearing a red-coloured T-shirt. And it was her evidence that that was the only person who was involved with the rubbish bin lid.

        The defendant is not in any way seeking to resile from his involvement in the offence, but your Lordship is entitled to take into account all the evidence in determining the extent of his culpability in this particular "matter." (Emphasis supplied)

6. The emphasised portions were in direct conflict with two of the matters in the "admitted" facts - the first being that to which we have already referred and the second the passage which indicated that more than one person had jumped upon the dustbin lid at the time it was placed over the unfortunate deceased.

7. It was not suggested by anyone, and the trial judge did not take it upon himself to consider, whether there was an issue to be tried.

8. The question of what should occur when there is a dispute as to fact was considered by the English Court of Appeal in Robert John Newton [1982] Vol.4 Criminal Appeal Reports (sentencing) 388 in which the decision of the Court was delivered by Lord Lane, L.C.J. Without going into the situation in Newton which was different from that here it is of assistance in considering the course to be taken. Either hear evidence or listen to submissions. If the latter then the position is as Judge Argyle said in  the course of his ruling on submissions made to him at the trial, and this quoted with approval by the Court of Appeal at page 391 of the reports,:

" ... I propose to proceed to sentence Newton on the count of buggery and on the well known basis that the Crown is entitled to put its case forward on the evidence disclosed in the depositions, the defence is entitled to put forward its mitigation provided it is not clearly at issue with the facts. I must then pass sentence. Where I find there is substantial conflict between the two versions, then it is incumbent upon me, as one would expect in this country, to take the more lenient view, to accept the accused's version so far as possible and to pass sentence accordingly."

9. Unfortunately Judge Argyle did not take this line and the matter was resolved in another manner.

10. Where there is substantial dispute on fact, as there how appears to be here, then it is a matter for the sentencing judge to resolve it either by hearing submissions from counsel or by hearing evidence on the issue itself.

11. We are not surprised, in the light of the admission made by Mr. King on behalf of the applicant that the prosecution facts were accepted, that the judge did not take this course here. Mr. King now says that that admission was not an admission made as to the truth of the facts themselves by merely an admission that these were the facts upon which the prosecution sought to rely. With the greatest respect Mr. King's view is misconceived and wrong. Once facts are admitted then the trial judge is perfectly entitled to proceed on the basis that those are the facts of the case and that those are the facts which form the basis of the sentencing exercise in which he is involved. For it to be otherwise would cause untold confusion where sentence fell to be imposed after a guilty plea. If a fact set out by the Crown is not accepted then the judge should be immediately told and the Court should be given the opportunity of turning its mind to any necessary resolution of the dispute. We have in mind a dispute as to a substantial issue of fact and not a mere forensic gloss placed on the facts by counsel. The judge here was never given that opportunity and we cannot resolve the issue. In the light of that, and with the agreement of both Mr. King and Mr. Schapel, who appears for the Crown in this Court, we intend to adjourn this application and remit the matter back to the trial judge for him to consider what was the factual basis for the sentence he imposed in the light of the dispute as to a substantial fact - which is of course the degree of participation by the applicant and which has a bearing on his culpability in the commission of the offence to which he pleaded guilty.

12. We are not suggesting that there can be any alteration in the actual sentence passed. It will be a matter for the trial judge to take whatever course he thinks fit in resolving this unfortunate matter which, had he been properly advised, would never have arisen.

13. We will therefore adjourn this appeal to a date to be fixed and remit the matter back to the trial judge for his consideration.