Hui Wing v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 53 OF 1973

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Coram : Huggins, McMullin & Li, JJ.

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JUDGMENT

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Huggins, J.:

1.  The Appellant was one of two men indicted for murder. They pleaded Not Guilty to murder but Guilty to manslaughter and those pleas were accepted. The Appellant was sentenced to four years and three months’ imprisonment and his Co-accused to four years and six months’ imprisonment.

2.  The death of the Deceased arose as a result of triad activities. The Deceased was a triad member himself - with a very bad record including convictions for manslaughter, robbery and dangerous drug offences. He had apparently turned his activities in another direction and had started trying to force money out of people by representing that he was a member of a trial society to which he did not in fact belong. The members of that society took objection and they warned him off. He, unfortunately, did not heed that warning and consequently plans were made to teach him a lesson and it was decided to give him a beating.

3.  The Appellant learned of this plan and warned the Deceased what was in the air. However, the attack did take place. The other Accused was present at the time the attack started: this Appellant was not. The other Accused and his colleagues punched and kicked the Deceased very severely, fracturing several ribs and sternum and causing many bruises and abrasions. The Deceased was lying on the ground when the other Accused left the scene. He then met the present Appellant and persuaded him to go to the scene where the Appellant, as he said under compulsion, punched the deceased. After that he realised that the Deceased had been very seriously injured and he went and telephoned for the police.

4.  Counsel submits that the sentence imposed upon the Appellant was unduly severe in all those circumstances. Since he has, in the course of his argument, urged that there was a manifestly inadequate distinction made between the two Accused we think it right to say that we think the other Accused was probably very lucky that he received a sentence of only four years and six months. However, the matters which have been urged on the ground of disparity also, of themselves, are mitigating circumstances in relation to this man alone: he warned the Deceased of the pending attack, he took part in the attack only under some compulsion, he punched the Deceased and did not kick him and he called the police afterwards.

5.  We are not unmindful of the pressures which people are subjected to in the environment in which this Appellant moved but, as counsel rightly conceded, these are pressures which cannot amount to any excuse. They are mitigating factors, although, even there, undue weight cannot be given to them in the interests of law and order. Nevertheless, looking at all the circumstances of this case we have come to the conclusion that this young man was a somewhat reluctant participant and that his calling the police did indicate a measure of remorse, and we think that justice will be done if we allow this appeal and substitute sentence of 2½ years’ imprisonment. There will be an order to that effect.

13th April 1973.