ATTORNEY GENERAL v. TAM KA LOK AND OTHERS

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J U D G M E N T

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Hunter, JA :

1. By this application, the Attorney General, with the leave of the Chief Justice, seeks review of the sentences passed by Barnes J on 8th March upon five defendants. The defendants were jointly charged : -

(1)    with murder in that on 23rd May 1989 in Kam Tin, New Territories, Hong Kong, together with other persons unknown, they murdered Lee Sum-ming.

(2)    Assault occasioning actual bodily harm punishable under section 39 of the Offences Against the Person Ordinance, Cap 212 in that at the same time and place together with other persons unknown, they assaulted Chan Chi-sun thereby occasioning him actual bodily harm.

The defendants all pleaded not guilty to murder but guilty to manslaughter, and guilty to the second charge. These pleas were accepted.

2. The facts were that shortly after midnight on 23rd May the victims, the deceased Lee and Chan, met in Kam Tin one Kwan Ka-po. Some "horse-play" resulted, in the course of which Chan struck Kwan. But for gang affiliations the matter might have ended there. Both victims were members of a particular branch of a triad group. The above incident was watched by members of a rival faction or group. Subsequent events all suggest a typical triad style revenge. First, the victims were followed on a bicycle by D4, Wu Wai-kwong, until he was seen off. Then they learned that a group was anxious to talk to them. Finally they were invited to "settlement talks" on a nearby school playground.

3. They went. There was an issue as to whether they were armed. Chan and another potential prosecution witness said "no". The defendants asserted the contrary. Somewhat surprisingly this significant issue was not investigated in evidence because the Crown conceded that the judge had to sentence upon the factual basis alleged by the defendants.

4. At the playground the victims were met by a group of 10-12 young men including the defendants. Apologies were demanded and refused: insults uttered. The group, having thereupon armed themselves with a variety of weapons such as wooden poles or clubs, and at least one knife and one water pipe launched a concerted attack upon the victims. They split up and fled. Chan escaped with his life, but was assaulted and suffered abrasions, bruising and scratch wounds. Lee was less fortunate. He was at one time seen being chased by seven or eight men. When next found he was dead. The cause of death was "a fractured skull with intercranial haemorrhage and injury to the brain".

5. The defendants all accepted as correct this paragraph in the Statement of Facts: -

"21. As regards the part played by each accused, generally, all accused formed part of a group comprising 10-12 young men with the common intention of unlawfully assaulting both Chan and the deceased Lee. It was at all times a joint enterprise directed against both victims jointly with no particular roles assigned to any particular member of the attacking party."

6. All the defendants pleaded guilty at the earliest opportunity. They all admitted arming themselves with wooden clubs or poles and in one case, D3, with a water pipe. None had any record for a crime involving violence. One, D5, had no record. The others had, but not for offences significant in the present context. Particulars of the personal circumstances of each defendant and of the concurrent sentences imposed are set out in the following table, where for convenience we have retained the numbering in the court below.

The judge directed himself in this way : -

(1)    "In this case, I think that the appropriate sentence for anyone present and attacking the deceased with a weapon during the attack which led to his death must receive a sentence of imprisonment for six years if found guilty by a jury. I therefore take that sentence as my starting point when considering the appropriate individual sentence."

(2)    "In arriving at that sentence, I have taken account of the fact that the victims were members of a gang renowned for their criminality and their viciousness and of the fact that they had weapons themselves and of the fact that the attack was not a deliberately planned attack."

7. The judge clearly applied this starting point when sentencing D3 and D4. In sentencing D3, the judge said that he gave him credit for his plea, his youth and record, but imposed the sentence of five years by reason of his admission that he had struck the deceased three or four times with a water pipe and had been present when the deceased had received in all some ten to twenty blows.

8. In sentencing D4, the judge gave him credit for the same factors, pointed out that he had admitted being present when the deceased fell and was struck, but he said that he did not strike himself. He thus discounted his sentence to one of four years.

9. In relation to the remaining defendants the judge adjusted his starting point by reference to the particular participation admitted by each in his cautioned statement. In sentencing D1 and D6 to 18 months for manslaughter, he noted that although they were both armed and part of the gang, they did not admit striking anybody or being present at the attack on the deceased. In sentencing D5 to 18 months for assault, the judge noted his admission to having been directly implicated in the assault on Chan but not on that on the deceased.

10. Mr Cross, QC for the Attorney General submits that these sentences are manifestly inadequate or wrong in principle. He founded principally upon two submissions, namely : -

(1)    that the judge's starting point was too low;

(2)    that the discrepancy between the sentences on D3 and D4 on the one hand and D1, D5 and D6 on the other was far too great.

11. In support of his first submission Mr Cross urged us to accept, as we readily do, a dictum of Cumming-Bruce LJ in Stuart v Williams (1979) 1 Cr App R(S) 228, 230 : -

"Causing the death of a man (is) an offence of great gravity, although the circumstances in which death is caused are manifestly relevant to assessing the degree of criminal responsibility and wickedness."

The weapons, the numbers, the chase, and the battering to death, revealed, Mr Cross suggested, the gravest circumstances. Where death in not dissimilar circumstances has resulted without the use of weapons, he suggested that the cases of AG v Chuk Chi-choi [1988] 1 HKLR 341 and R v Leung Hung-sang and another (1986) Cr App 176 point to a starting scale ranging between three and six years. Where weapons were used he suggested that the starting point had to be higher than six years and closer, he suggested, to ten years citing in support Thomas Principles of Sentencing, 2nd Edition, p 85.

12. Both D3 and D4 had failed to apply for legal aid and so were not formally represented before us. But at very short notice Mr Percy, who was instructed only on behalf of the other defendants, offered assistance, and at the invitation of court made submissions on this point. We are, and D3 and D4 should be, most grateful. Mr Percy submitted that the range of criminality in manslaughter inevitably meant that there was a wider than usual range of permissible starting points. This was particularly true in the case of young men who are likely to be more impetuous, irresponsible, and susceptible to gang pressure and inducement than the more mature, as well as being more affected by the incarceration of imprisonment.

13. The judge's starting point was on the low side, but was not in our view so low as to be manifestly inadequate. We accept both the gravity of this offence of manslaughter, and the width of the range of permissible sentences. We decline to suggest any starting scale or to consider more than the facts of this case. When that is done and weight is given to the ages of these young men and to the effect of the necessary imprisonment upon them, we regard the judge's starting point as within the acceptable range. Given the comparatively modest discount allowed, it produced a sentence on D3 and a sentence on D4 neither of which in our view can seriously be criticised.

14. We find Mr Cross' argument in support of his second contention more formidable. He submitted that the discrepancies between the major sentences on D3 and D4, and the minor sentences on D1, D5 and D6 are such that the latter were not sentenced for the admitted manslaughter at all. This, he submits, is startlingly revealed by the special sentence of 18 months imposed upon D5 for the second charge leaving meaningless a concurrent manslaughter sentence. He reminded us of a dictum of Roskill LJ in the unreported decision in Brett, 1975, cited with approval in AG v Sin Wai-lun [1988] 1 HKLR 580, 582, that "no distinction" was to be drawn between different degrees of participation in a joint enterprise.

15. In answer, Mr Percy submitted, that Roskill LJ had put the matter too high or that his observations should be confined to armed robbery. There was, he submitted, scope for some differentiation between the criminality of individual roles within a joint enterprise, and he invited us to conclude that the judge's sentences fell within this permissible range.

16. We accept Mr Cross's criticisms. All the defendants pleaded guilty to participating in a joint enterprise, embracing other armed young men, to attack and inflict physical harm on the two victims which resulted in the death of one and injury to the other. There is, we think, some scope for discrimination between the culpability of these persons, but it is very limited as all the sentences must reflect the same basic criminality. Thus we accept that an identified "ring leader" or the striker of potentially fatal blows, such as D3, may properly receive a stiffer sentence. But between the others who have armed themselves and joined in the attack, we can see very little scope for discrimination. They could not all chase the same man and some may fail to catch either. That is chance. If death results, their true criminality is manslaughter. They should be sentenced for that, not for some lesser part or for such activities as they may later admit.

17. D1, D5 and D6 were in our judgment not sentenced for manslaughter. We can see no real distinguishing features between their participation and that of D4, so that in our judgment all should have received the same sentence. But they now receive the benefit of this court's practice upon review. We therefore set aside their sentences of 18 months imprisonment, and substitute sentences of three years imprisonment in each case.