HKSAR v. CHAN YIK YIP

CACC 503/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 503 OF 1998

(ON APPEAL FROM HCCC 129/1998)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant was charged with the murder of Wang Hang Chi ("the deceased"). After a trial before Stock, J and a jury he was convicted of manslaughter. It was apparent from the verdict of that five jurors found him guilty of manslaughter and two not guilty. Of the five who found him guilty three did so on the basis of provocation and the remaining two because of a lack of the necessary intent. Stock, J. sentenced the applicant to 5 years imprisonment and it is against this sentence that the applicant seeks leave to appeal.

2. At about 11:50 p.m. in the evening of 28th December 1997 a party of police officers patrolling at Tai Ho Road, Tsuen Wan saw two men fighting. The officers pulled the two men apart. The applicant was one of the men and the deceased was the other. It was evident that both of the men had sustained injuries. The applicant had a cut wound on his right hand and the deceased was bleeding profusely from wounds sustained to his head and neck. At the time of the incident the applicant stated that he had been attacked by the deceased who had produced a knife like object. The applicant pointed out the object to the police which was on the ground nearby. It was a nail clipper with a small blade attached to it.

3. The officers summoned assistance and both men were taken to hospital for treatment. The applicant's injuries were not serious and he was subsequently discharged. He did however make a fairly lengthy statement to the police.

4. The injuries to the deceased were much more serious. An operation was performed on him but notwithstanding this he died on 31st December 1997.

5. In the statement the applicant made to the police he, in effect, claimed to have been acting in self defence. He said that there had been a long standing ill feeling between himself and the deceased. He admitted that he had been addicted to dangerous drugs for some time. He said that the deceased had cheated him in respect of a dangerous drugs transaction and that he had refused to pay him moneys owed. On the evening in question he had had a chance encounter with the deceased and had asked him for repayment. After he declined to pay the moneys and attempted to leave the applicant tried to detain him and a struggle ensued.

6. All of this evidence was before the jury together with the relevant forensic evidence.

7. There are two grounds of appeal.

"1. The jury found the Defendant guilty of manslaughter by 5 - 2.

- 3 jurors on the basis of provocation;

- 2 jurors by reason of lack of intent to cause grievous bodily harm;

- 2 jurors desired to acquit him of all offences.

Therefore by a majority of 4 - 3 the jury were not satisfied that the Defendant (Appellant) had intended to cause grievous bodily harm.

2. In sentencing the Defendant (Appellant), the Learned Judge has to accept an interpretation of the facts favourable to the Defendant. Therefore in accessing the culpability of the Defendant the Learned Judge has to consider: -

a. Not only was there provocation but also a lack of intent to cause grievous bodily harm.

b. It was the deceased that took out the knife (which ultimately caused his death).

c. The remorsefulness of the Defendant."

8. Both of these grounds can conveniently be considered together.

9. The Judge was mindful of these issues. In passing sentence he had this to say:

"In determining the approach to the facts, which I should adopt for the purpose of sentence, I have given careful thought to the grounds upon which the manslaughter verdict was based. The jury found you guilty of manslaughter by a majority of five to two. Three jurors on the basis of provocation and two by reason of lack of intent. For the purpose of my analysis, I consider it appropriate to recognise also that there were two jurors who desired to acquit you.

I do not take that into account as some sort of mitigating factor, but I refer to it because it follows that the majority of the jury were not satisfied that you intended to cause grievous bodily harm. I do not think it is safe to proceed on the basis that you had the knife first and then attacked the deceased with it; for on that basis a conviction for murder would have been the more logical verdict. On the other hand it is not feasible to assume in your favour that all you were doing was seeking to wrench the knife from the deceased, and that he was wounded during the course of a struggle by you to that end. For I made it clear to the jury, on more than one occasion, that if that were the truth of the matter or if that might be the truth of the matter, you should be acquitted all together.

Looking at those facts which fit the jury's conclusions and the grounds which they had each provided and which also fit the injuries sustained, I think it appropriate to proceed on the following factual basis. You were then both drug addicts and it appears that you and the deceased had a long running dispute. I'm prepared to accept that he had not paid you money he owed and had on more than one occasion tricked you. The amounts he owed were very little but to someone in your lifestyle, of greater consequence than to ordinary people.

Whether you specifically went looking for him that night I cannot say, but when you found him he was not going to pay you. He wanted to get away from you and you would not let him go. That is an aggravating feature. Whilst there is some ground for thinking that you may well have had the knife in the first place, it is not a fact about which I can be sure. I will assume that when you did not let him go he took out this nail clipper which had the knife - the small knife attached. As is intimated by one of your statements to the police you then snatched it from him and there was then a struggle for it.

In the heat of a fight which followed and the temper which you had by then developed, you went beyond such defence as was necessary to answer his conduct. Now, you struck him on quite a number of occasions about his head with this knife; some deliberately others perhaps not. The provocation which you were offered was on those facts - his failure yet again to give you money and the taking out of the knife. The injuries were not as severe as they appear on the photographs and as I say, the fatal injury was caused at a very sensitive spot. You were largely to blame for what happened in that if, as I assume in your favour, he took out the knife it was because you would not let him go. That you would not let him depart the scene is evident from your own statement to the police."

10. It is apparent from this passage that the Judge gave the applicant the benefit of any doubts which existed and proceeded upon the most favourable basis he could when passing sentence.

11. The Judge adopted a starting point of 6 years imprisonment and reduced this to 5 years. This appears to have been largely on the basis of the applicant's remorse.

12. The Judge had the benefit of extensive background reports on the applicant which gave details of his psychiatric condition. He was unable to treat him as a person of good character on account of his previous criminal record.

13. While the sentence of 5 years was a relatively heavy one it cannot be said that it was wrong in principle or manifestly excessive. This being so we must dismiss the application.