R. v. Cheung Siu Fai

CACC000379/1992

IN THE COURT OF APPEAL

1992, No. 379
(Criminal)

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Coram: Hon. Yang, C.J., Silke, V-P, & Mortimer J. in Court

Date of hearing: 31 March 1993

Date of judgment: 31 March 1993

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J U D G M E N T

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Mortimer J.

1. The applicant CHEUNG Siu-fai was charged with murder. He pleaded guilty to manslaughter after the trial for murder had reached a very late stage. It was after he had given evidence but before submissions of Counsel. On 3rd September 1992, Mr. Justice Gall sentenced him to 8 years' imprisonment.

2. He now seeks leave to appeal against sentence on the grounds that, in all the circumstances and particularly having regard to his plea of guilty, the sentence was too severe. The offence was the killing of a child of 4 years by giving him methadone suspended in orange juice in consequence of which the child became dizzy the same evening and died during the night.

3. The background of the matter is that both parents of the child and the applicant were drug addicts. The applicant had known the family of the child for some time before the offence. There was a dispute about the facts at the trial, but the learned judge in sentencing the applicant, found that the statement which he had made to the police was the truth. In that statement, having said that he had taken the child - whom he knew - to the Methadone Clinic, he said: "I got a cup of methadone from the Methadone Room but I did not take it at once", and then "I gave the cup of methadone to POON Lok-man to drink. At the time, I just intended to 'ching ku' POON Lok-man, so as to frighten POON Lok-man's father". He gave as the reason that the father owed him a thousand odd dollars. He also said: "I didn't expect that POON Lok-man was caused to death".

4. The learned judge also took into account evidence the applicant had given at the trial, and the history of a relationship between the applicant and the child in which there were some some allegations of ill-treatment. But in the main the sentence was concerned with the particular facts of this offence. The learned judge said in sentencing:

"In the scheme of things, this type of manslaughter is among the more serious. It was not in the heat of the moment and provoked by a fight. It was not the closing of your eyes to circumstances where someone might be placed in danger. It was not recklessness. It was a calculated act against a young child to gain something for yourself. In all the circumstances in giving you the greatest deduction for that mitigation to which you are entitled, are sentenced to you 8 years' imprisonment."

5. The seriousness of cases of manslaughter varies considerably, and on the finding of the judge, this certainly was of the more serious type. The learned judge did not say in the course of sentencing what was his starting figure. It clearly must have been of the order of 9 or 10 years. Having regard to the facts and the lateness of the plea of guilty, this is a starting figure with which this court would agree.

6. In the circumstances, the sentence passed of 8 years was neither manifestly excessive nor wrong in principle. It took into account all the matters which the learned judge ought to have taken into account. It was amply justified in the circumstances. This application for leave is dismissed.

Representation:

Mr. CHEUNG Siu-fai, Applicant in person.

Mr. A.A. Bruce for Crown/Respondent.