R. v. Yu Wing Sze

CACC000372/1995

IN THE COURT OF APPEAL

1995, No. 372

(Criminal)

___________

___________

Coram: Hon Power, V-P, Litton, V-P and Keith J in court

Date of hearing: 15 November 1995

Date of judgment: 15 November 1995

________________

J U D G M E N T

________________

Litton, V-P giving the judgment of the Court:

1. This is an application for leave to appeal against sentence. The applicant aged 35 was convicted after trial before Duffy J and a jury in the High Court on 24 May 1995 of manslaughter. He had been acquitted of murder but convicted of manslaughter. He was sentenced to 10 years' imprisonment.

2. The crime occurred shortly before 12.15pm on 22 April 1994 at Flat 6E, Block 24, City One, Shatin.

3. The victim was a woman called Chan Pui-fong who cohabited with a man called Leung. According to the applicant, Leung owed him money and the deceased woman was Leung's guarantor. This was in fact denied by Leung.

4. What is beyond dispute is that on 21 April 1994 the applicant arrived in Hong Kong from China, phoned the deceased who asked him to go to her flat the next day to collect the money. The applicant arrived at the flat at about 11.30am and was let into the flat by a maid who then left to collect the deceased's daughter from school. This left the deceased woman alone in the flat with the applicant.

5. According to the applicant, who was of course the only witness to the crime, there was an altercation and he got angry and slapped the deceased. She allegedly responded by shouting for help and yelling "Robbery". He found a bottle of brandy and hit her hard over the head. He claimed that she continued to shout the words "rape, indecent assault, robbery" and he claimed he used a second bottle to silence her. Later, the police found evidence of one broken bottle and when the applicant was leaving the flat the maid who was returning to the flat found him holding a bottle in his hand. There is no doubt that the victim was killed by a heavy blow to her head.

6. This was on any view a brutal crime. The judge said in sentencing the applicant to 10 years' imprisonment the following:

" This is a bad case and any provocation can only have been minimal. Your loss of self-control found by the jury as a result of that provocation is difficult to excuse.

In my view a proper starting point for your sentence is one of 12 years, and I reduce that to 10 years for your plea."

7. The reference to the plea was a reference to the offer made by the applicant at the outset to plead guilty to manslaughter, a plea which was not accepted by the prosecution.

8. We have heard helpful submissions from Mr Stirling on behalf of the applicant. Rightly, counsel has drawn our attention to authorities to the effect that manslaughter by its very nature is committed in such a variety of circumstances as to make it difficult for the court to lay down guidelines.

9. This case may be said to verge on the severe side of sentence. On the other hand the facts disclosed a brutal crime. The victim was unlawfully killed in her own home. Although the 10 years sentence may be said to be on the high side it is not so high as to justify this court to interfere. The application for leave to appeal against sentence is therefore dismissed.

Representation:

Mr I.C. McWalters (Crown Prosecutor) for Crown/Respondent

Mr W.N.C. Stirling (DLA) for Defendant/Applicant