Lai Sai v. The Queen
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CACC000195/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION Criminal Appeal NO. 195 OF 1968 -----------------
Coram: Hogan, C.J. & Rigby, S.P.J. Date of Judgment: 10 June 1968 ----------------- JUDGMENT ----------------- 1. This case has caused us considerable difficulty, primarily due to the somewhat inadequate and unsatisfactory presentation of the facts following upon a plea of guilty. The appellant was originally charged with murder; he pleaded guilty to a lesser charge of manslaughter and that plea was accepted both by the Crown and by the trial judge. He was sentenced to five years' imprisonment. He now applies for leave to appeal against that sentence. 2. At the original hearing of this appeal Mr. Suffiad, counsel for the appellant, sought to enter into a somewhat lengthy and involved story the gist of which was that the appellant had not originally really wished to plead guilty to the charge of manslaughter but was led to do so by his legal advisers in the belief that he would receive a lesser sentence. It would be improper for this Court to listen to an argument of this nature. It is by no means an uncommon practice, hallowed by the long usage of time both in England and in this Colony, for an accused person to agree to plead guilty to a lesser charge and for the prosecution to accept such a plea. The considerations which give rise to, and justify, such a practice are numerous; on the one hand, in so far as the prosecution is concerned, they include a possible difficulty or lacuna in the evidence required from the prosecution for establishing some necessary fact, or necessary ingredient, in the more serious charge; on the other hand, in so far as the defence is concerned, it includes the risk - and very often, a substantial risk - of being convicted upon the more serious charge if a plea of guilty to the lesser charge is not offered and accepted. The decision as to whether or not to offer a plea of guilty to a lesser charge is a matter in which the appellant's legal advisers, presumably fully cognizant with the facts of the case and with the law applicable to those facts, may offer advice to their client. If they do so and if, upon their advice, the accused person, fully cognizant of the facts of his own case, of the nature of his own defence, and of the consequences inevitably following upon the acceptance of that advice, chooses to accept it, it would not only be quite wrong but almost catastrophic if the contention was later to be permitted to be put before the Court that the appellant had never in fact intended to plead guilty to the charge upon which he stood convicted. 3. We turn now to the facts of this case as put before the Court following upon the appellant's plea of guilty to manslaughter and the acceptance of that plea. The appellant is a farmer 54 years of age, living in the New Territories. He has never been in trouble and appears to have been a popular and well respected inhabitant of the village in which he was living. Unfortunately, he had been on bad terms for some months past with the deceased, a woman some 24 years of age, who was his next door neighbour. According to the statement of the facts made by Crown Counsel in the court below, the trouble appears to have been primarily due to the deceased's three year old son and her dog. The incident which gave rise to the charge of manslaughter occurred on the 19th of December. During the early part of that afternoon the appellant and the deceased were heard to be quarrelling over the fact that the deceased's son had scribbled on the door of the appellant's hut. Later that afternoon they were again heard quarrelling and a neighbour heard the deceased call out in a challenging manner "Come on, see who dies first" and then heard her call out two or three times "Save life". The witness went to the scene and there saw the deceased lying on the ground with a chopper lying by her body. The chopper was later identified to be the property of the deceased. The witness also saw the appellant standing near the entrance of his own hut and there were some red marks on his face. The woman was found to be dead, the cause of death being a single stab wound which had penetrated her right lung and her heart. 4. The appellant, when charged, admitted that he had fought with the deceased but denied that he had stabbed her. He alleged that she had in fact tried to attack him with a knife and a chopper and on being unsuccessful had then stabbed herself with the knife. He admitted that he then took the knife and placed it in the kitchen of his own hut where it was later found by the police. It was beyond doubt that the stab wound causing death had been inflicted with that knife. At the time of his arrest there were also scratch marks found on both cheeks of the appellant. 5. For this Court the difficulty in the case is primarily due to the appellant's own cautioned statement, outlined by Crown Counsel to the trial judge, in the course of which, in describing the circumstances of the fight, the appellant had stated that it was the woman who had first tried to attack him with a knife and a chopper and then, on being unsuccessful, stabbed herself with the knife. Of course, that statement on the face of it, if true, would have provided a complete defence to the charge of murder and manslaughter. Crown Counsel has stated, and in our view rightly, that it is implicit from the plea of guilty to the charge of manslaughter that the appellant has retracted the allegation contained in the statement that it was the woman who stabbed herself. The difficulty then arises as to how much of the rest of that statement ought to be accepted, particularly that part which alleges that it was the woman herself who first started this quarrel by trying to attack the appellant with a knife and a chopper. There is nothing upon the record of the case as presented to the trial judge to indicate whether or not the prosecution accepted the appellant's contention that it was the woman who had started this quarrel in the manner just stated. Mr. Duckett, in this Court, has said that, bearing in mind that the plea of guilty to manslaughter was accepted, the Crown not being in a position to rebut by any independent evidence, whether direct or circumstantial, the appellant's contention that it was the woman who first attacked him with a knife and a chopper, the statement of the appellant ought to be accepted in his favour. 6. Mr. Duckett, who did not appear in the court below, submitted that on such facts as were available, including the statement of the appellant, the basis on which the court should proceed was that the woman had started the quarrel by attacking the appellant with a knife and a chopper, and that in resisting that attack and inflicting upon her a fatal wound, he had used more force than was legally justifiable and was consequently guilty of manslaughter. In our view, that is an eminently fair, and a perfectly proper, view for the prosecution to take even though it may be straining the fact in favour of the appellant. The question then arises: what, upon that accepted view of the facts, is the proper sentence in this case? 7. It would seem to this court that from the facts put before the trial judge, the manner in which the case was presented to him and the sentences be imposed, the learned judge must have given consideration to the provocation caused by this quarrelsome neighbour and her son and has accepted that it was the woman who herself initially provoked and caused this quarrel. Upon that view of the facts a sentence of five years imprisonment would appear to us to have been a perfectly proper sentence. But we doubt if the learned judge has viewed the facts of this case in the manner now suggested by the prosecution, namely, that it was not only the woman who started this quarrel but that she started it by assaulting or trying to assault, the appellant with a chopper and a knife and that the unlawful act of killing was due to his use of excessive force in defending himself. If that be the true version of the facts, and it is so conceded to be by the prosecution, in our view the sentence of five years imprisonment was excessive. In those circumstances we think that a proper sentence would be three years. The appeal is therefore allowed to the extent that the sentence of five years imprisonment will be reduced to three years The sentence will run as from the date of conviction to wit, the 1st of April, 1968. 8. This case has come before us in a manner and circumstances that are unsatisfactory and make it difficult to ensure that justice is done. 9. The accused was charged with murder in the court below, which saw fit to accept a plea of guilty to manslaughter and, at the same time, to accept from the Crown a statement of the circumstances of the case which, on the face of it, is difficult to reconcile with that plea. 10. If, on a plea of manslaughter, a court is to come to a proper conclusion as to sentence, it would appear highly desirable, if not indeed essential, that there should be a clear statement of the facts upon which the court is being asked to act and a clear indication as to the extent to which these facts are agreed by both the prosecution and the defence. Merely to state that the defence is putting forward, as in this case, a statement of facts which would show that the accused was guilty of no offence at all and was not responsible for the killing of the deceased, and to leave the court to make what it can of the conflict between that statement and the accused's plea of guilty to manslaughter, is highly unsatisfactory and must create not only for the court below but also for the Court of Appeal an enigmatic and unsatisfatory basis on which to assess a sentence. 10 JUN 1968
Representation: A.H. Suffiad (M.K. Lam & Co.) assigned for Appellant. Duckett, C.C. for Crown/Respondent. (Judgment delivered) |