Heung Wai Kuen v. The Queen

CACC000277/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 277 OF 1973

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Coram: Full Court (Pickering & Cons JJ.)

Date of Judgment: 8th August, 1973.

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JUDGMENT

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Pickering J.:

1. The appellant was originally charged with murder and with three counts of wounding with intent contrary to Section 17 of the Offences Against the Person Ordinance, Cap. 212. In the event, he pleaded not guilty to murder but guilty to manslaughter and, on his pleading not guilty to each of the three charges of wounding with intent, the Crown offered no evidence on those charges.

2. The manslaughter occurred on the 27th October 1972 at about 8.25 p.m. when a fight started between two rival groups of young men in the vicinity of the premises No. 268, Yu Chau Street in Shamshuipo. The fighting resulted in the death of one young man, LI Chee-shing who was about 18 years of age, and three other young men, friends of the deceased, were wounded. The opposing parties were members of two different triad societies. The fight was in the nature of running fight and the appellant, who was in possession of one weapon, a triangular file, did not deny that he inflicted at least one wound upon the deceased; upon the medical evidence, that wound itself was sufficient to lead to the death of the deceased. It is true to say, however, that the post-mortem report established quite a number of injuries, some not inflicted with a triangular file, upon the body of the deceased.

3. At the time of the offence the appellant was a little more than 16 ½ years old and he was 17 at the time of his trial. The learned judge sentenced him to 8 years' imprisonment. The judge, took into account the youth of the appellant, the fact that according to his Probation Report Society had not provided him with a fair chance in life, the fact that he was not the leader of his particular group and also the appellant's co-operation with the police as well as a degree of provocation in that the appellant was struck with a piece of rattan before he inflicted the fatal blows. The learned judge considered that the protection of the public could not be achieved without the imposition of a substantial custodial sentence.

4. We entirely agree; but, in our view, the learned judge failed to take sufficiently into account the extreme youth of the appellant at the date of this offence. The sentence of 8 years' imprisonment imposed upon a youth who was but 16 at the time of the offence and is only 17 now, cannot but have a traumatic effect upon him and, having regard to his age, we are of the view that sentence of 8 years' imprisonment was excessive. We are far from condoning triad fights but, apart from the important consideration which we have mentioned, there was some merit in Mr. Hu's contention that a sentence of that order upon a youth of that age may well deter other youths from offering co-operation with the police.

5. The application for leave to appeal against sentence is allowed and the sentence reduced to one of 5 years' imprisonment.

Representation:

Henry Hu, counsel assigned for appellant.

Niamatullah, C.C. for respondent.