Siu Ho Sang v. The Queen

CACC000374/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 374 OF 1968

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Coram: Hogan C.J. and Mills-Owens J.

Date of Judgment: 13 September 1968

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JUDGMENT

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1. This is an appeal against the sentence of five years' imprisonment imposed on the appellant for the offence of manslaughter to which he pleaded guilty, as a lesser offence on an information for murder, in the court below. From the statement of facts given to the court below by counsel for the prosecution - a statement which was accepted by counsel for the defence as being correct - it appears that the appellant had been employed by the deceased in the running of a gambling stall. The duties of the appellant were stated to be "to supervise and do odd jobs at the stall". Early in the morning of the 21st of April there was a dispute at the stall; the deceased, having alleged that two of the customers had cheated, struck one of them - CHAN Fat - and the appellant intervened trying to break up the fight. He was hit by the deceased and apparently knocked to the ground. Shortly after that CHAN Fat left and came back with a couple of friends; a further argument occurred but this did not result in a fight. The appellant also left whilst the deceased closed the stall for the evening, went home, had a wash and came back to settle accounts for the day's operation. This was about 10 minutes to 3 in the morning; the earlier incident in the course of which the appellant was struck by the deceased was stated to have taken place between 1 and 2 a.m. Whilst the deceased with another partner and three other men were inside the premises working out the takings, they heard the sound of approaching feet. The deceased, together with his partner, went out to have a look and they saw a group of about 8 to 10 men running towards the stall. According to counsel "the men were after the deceased". The others inside apparently got out as quickly as they could and left the deceased alone. The appellant and some others amongst the attacking group entered the stall. A fight ensued, during the course of which the deceased was "knifed with a triangular file many times", and, as a result of these blows which apparently were delivered to the stomach, he died shortly afterwards. Crown counsel concluded his summary of the facts by saying that the Crown was not really in a position to say whether the appellant "took part in the actual knifing of the man or intended to kill him, and just what occurred inside, since there was no witness apart from the accused, is not plain", but went on to say that the Crown was prepared to accept a plea of guilty to manslaughter. Crown counsel's statement contained no additional facts of assistance to the court in determining the extent of the appellant's participation in the events leading up to the death of the deceased, but the judge saw fit to accept a plea of guilty to manslaughter and when sentencing the appellant, said:-

"I think that you took an active part in this killing of the man who was at the time your employer, and I sentence you to 5 years' imprisonment.".

2. Counsel had also brought to the attention of the judge an alleged previous record of the accused including a conviction for assault with intent to rob in 1963, but when this particular charge was put to the appellant by the judge the appellant did not clearly admit it. No steps were taken to prove it. The judge made no reference to the appellant's record when imposing sentence, but it is not clear whether he did or did not take account of this alleged record which has provided a further point of difficulty in dealing with the appeal.

3. Our main difficulty arises, and not for the first time, from lack of a clear indication as to the basis on which the plea of manslaughter was accepted and the sentence was assessed.

4. It is plainly unsatisfactory that counsel should state a series of facts consistent with murder and on which the Crown has sought and obtained a committal for murder and then simply to say that a plea of manslaughter is being accepted without giving any indication of the facts or factors which bring the crime previously treated as murder into the category of manslaughter. Apart from other objections, sentences in such circumstances must tend to become unduly arbitrary.

5. On the face of it, the killing in this case, having regard to the nature and number of blows, would appear to have been murder, and if, as the judge said, the appellant took an active part in the killing, he would appear to have been guilty of murder. If, as in circumstances such as those explored in the Hong Kong cases of R. v. Yu Sum Kwa⁽¹⁾ and R. v. Chan Hon⁽²⁾ and the English case of R. v. Anderson; R. v. Morris⁽³⁾, he had not taken part in the killing he would have been entitled to an acquittal but the record does little to disclose what facts or factors put his offence between these two extremes.

6. Mr. Shears for the appellant contends that in the absence of any clear indication the plea must be construed as accepting the bare minimum of culpability consistent with counsel's statement of the facts and the plea of manslaughter. But how is this bare minimum to be established? Was the plea accepted because there was thought to be an element of provocation or was it accepted and the sentence imposed on the basis that the appellant whilst participating in an intention to assault the deceased, did not participate in an intention to kill him or to cause him grievous bodily harm? Logically there would appear to be some difficulty in deducing a comparatively limited intention, of a degree consistent with manslaughter, from the facts detailed by the Crown, which show a persistent and determined attack on the deceased with a dangerous weapon. A man who stabs another several times in the stomach with a penetrating instrument, such as a triangular file, could hardly be said not to have had an intention to inflict at least grievous bodily harm; and, in the absence of some clear indication to the contrary, it would seem to be difficult to separate those who supported him by their original entry and continued presence during this persistent assault from a share in that intention. Nevertheless, in the somewhat hazy form in which the matter has been left, we must, we think, take it that the judge accepted either that the appellant did not share in that intention or that he had been so provoked by the earlier attack that for him the enterprise amounted to no more than manslaughter.

7. If it was provocation that 1ed the judge to accept the plea of guilty to manslaughter, we would have thought that would, under the circumstances of this case, have attracted a heavier penalty, and although the case of R. v. Nuttall⁽⁴⁾ indicates that limits should be set to speculation at least in cases where a jury's verdict may have been reached by more than one road, we think that in the present case we should approach the matter on the assumption that it was the absence of an intent to kill or to cause grievous bodily harm that 1ed to the acceptance of the plea.

8. But even on this basis, we do not think we would be justified in interfering with the sentence imposed in the present case. The attack on the deceased was vicious, perpetrated by a number of men on a single individual and pressed home with determination and venom. The suggestion that the deceased, since he was running a gambling stall was not himself a model of propriety could do little to detract from the seriousness of the offence. Having given to this matter the best consideration we could and weighed carefully the arguments addressed to us by counsel on behalf of the appellant, we think that the share in the death of the deceased which, by his plea, was acknowledged by the accused, did not receive undue punishment when the trial judge inflicted a sentence of 5 years' imprisonment. Consequently, we see no reason to interfere with the sentence and the application for leave is dismissed.

9. We would, however, draw attention to what was said by the Full Court in its judgment in Criminal Appeal No. 195 of 1968, Lai Sai v. The Queen: when a plea of manslaughter is offered and accepted, "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". Some features of the unsatisfactory manner in which the case was presented to the court on that occasion have been repeated, although in somewhat different form, in this instance. The comments in 1968 Criminal Law Review at p.397 on the case of R. v. Jama⁽⁵⁾ indicate that such features may, on occasions, be unavoidable when a jury's verdict is in question but they should be more readily eliminated when an agreed plea is being accepted and we hope they will be less apparent in future.

Representation:

Ehlais (Ruas & Co.) assigned for appt.

Pulington see for respt.

(1) (1956) H.K.L.R. 353.

(2) (1957) H.K.L.R. 241.

(3) (1966) 2 Q.B. 110.

(4) (1968) C.L.R. 173.

(5) (1968) C.L.R. 397.