HKSAR v. CHEUK YIN CHEUNG

CACC 326/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 326 OF 1999

(ON APPEAL FROM HCCC 411 OF 1998)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. On 8th June 1999, the applicant pleaded guilty to two counts of manslaughter before Stock, J. in the Court of First Instance. He was sentenced to 10 years imprisonment concurrent on each count. He now applies for leave to appeal against sentence.

2. The facts as admitted by the applicant were these:

3. On 24th June 1993, the applicant planned with three other persons Ho Ka-fai, Ho Hon-Chuen and Liu King-wai who were the 1st, 2nd and 3rd defendants in a separate murder trial, to set fire to an old people's home. The 1st defendant was the mastermind and he purchased the paint thinner for the purpose. The applicant's role was to stand-by in a waiting taxi to help his confederates to escape after they set fire to the home. The home was on the 2nd floor of No. 108 Boundary Street, Kowloon. The four went to this address at about 4:35 p.m., on that day taking with them four bottles of paint thinner. There the applicant went to a nearby bus-stop, hailed a taxi and waited in the taxi, the 1st defendant kept a look out downstairs while the 2nd and 3rd defendants went up to the 2nd floor to the entrance of the home and hurled fire-bombs into its living room setting the home on fire. The three defendants then fled to the waiting taxi and the four of them together went to Shumshuipo where they changed taxi after which they went to Tsuen Wan. The applicant was paid $200 for his role and he went to Macau and remained there until 4th September 1998. At the time when the fire started, there were altogether nine people inside the premises and two of the old people died in the fire while others were injured.

4. The applicant who was arrested when he was intercepted by police in Wanchai. At an interview by the police he admitted participating in the arson at the home but said that he was only responsible for hailing a taxi and he never expected anything as serious as people being burned to death.

5. The 1st defendant was tried and convicted of murder and sentenced to life imprisonment. The 2nd and 3rd defendants were also charged with murder but they were convicted of manslaughter. They were then aged 19 and 17 and each was sentenced to 12 years imprisonment. This was reduced to 10 years on appeal. Their sentences are therefore the same as that imposed on the applicant.

6. The judge in his sentencing remarks said that from the facts admitted by the applicant, the applicant was a party to the agreed plan to set fire to the home. The judge also agreed with the trial judge of the two defendants that this was a dreadful case of manslaughter by reason of recklessness. He said that the applicant's position in the offences warranted no distinction from the sentences passed on the 2nd and 3rd defendants.

7. The first ground of appeal is that there are differences in both the personal circumstances and the responsibility of the applicant in the case as opposed to those of the 2nd and 3rd defendants and there should be a distinction between the sentences of those two defendants and that of the applicant.

8. The second ground is a general ground that in the circumstances the sentence was manifestly excessive.

9. Mr. McNamara for the applicant submits that are a number of differences but the real point is there has been a disparity in the sentences.

10. Firstly, it is submitted the applicant pleaded guilty at the outset of the trial while the two defendants only offered to plea to manslaughter after their unsuccessful challenge to the admissibility of their confessions. The applicant was therefore entitled to a lesser sentence. Failure to draw this distinction amounts to disparity.

11. In our view, although the applicant pleaded guilty at the commencement of the trial, this was five years after the offences were committed. He had fled to Macau and remained there until his arrest in September 1998. His return was not to give himself up. He had the advantage of seeing what happened to the 2nd and 3rd defendants at their trial before he decided on what plea to take. As regards the 2nd and 3rd defendants, their pleas to manslaughter came only after their unsuccessful challenge to the admissibility of their confession. Their pleas to manslaughter were not accepted by the prosecution. There was thus a difference in terms of the stage of the proceedings at which the applicant pleaded and the two defendants offered their pleas. However, the two defendants' further mitigating factor of co-operating with the police and assisting the police in identifying the applicant does in some way go to set off their relatively lateness in offering a plea.

12. We do not think that in these circumstances a valid distinction on sentence can be drawn between the sentences of the two defendants and the applicant's sentence solely on account of the different stages in which the pleas were made.

13. Secondly, it is submitted that the two defendants were sentenced on the basis that they knew there were people in the building because they were inside the building whereas the applicant who had not entered the building had no such knowledge and that he relied on the instructions of the 1st defendant that there was no one living on the premises. The applicant should have been sentenced on the basis that he thought that the fire-bombs were being thrown into vacant premises.

14. We do not think that the applicant thought that the building was vacant and setting fire to it was to scare people. The judge found the applicant was reckless as to whether there was any people on the premises which had been set on fire. He said in sentencing the applicant this:

"As for your knowledge about the occupancy of the premises your comment to the police was that, 'I did not know whether there were people up there', which, on its face, is not the same as believing that there were in fact none, though I also note from the agreed facts that you told the police that you never expected anything as serious as people being burnt to death."

15. Having regard to the premises being in a residential building with more than one floor and the time of the day when the offences occurred, the applicant ought to have known that there would be occupants on the premises and having regard to what he told the police, he could not have believed that the fire-bombs were being hurled into vacant premises.

16. The judge must be correct in not drawing a distinction between the sentences of the two defendants and the sentence of the applicant. There was no disparity in the sentences. The judge was justified in sentencing the applicant to the same sentence which had been imposed on the two defendants.

17. The application for leave to appeal against sentence must be dismissed.