The Queen v. Chan Chun Ming

CACC000455/1985

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 455 OF 1985

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BETWEEN

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Coram: Hon. Cons, V.P., Penlington, J. and Macdougall, J.

Date of hearing: 2nd April 1986

Date of delivery of judgment: 2nd April 1986

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JUDGMENT

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Penlington, J.:

1. This was an appeal against conviction and sentence for manslaughter. However today the appellant who is unrepresented seeks leave to abandon his appeal against conviction. We grant that leave and the appeal against conviction is dismissed. We might however say that we have been through the papers and are of the view that there is nothing whatever in the grounds of appeal against conviction. There was a prefectly proper direction to the jury and a prefectly proper verdict. There remains the appeal against the sentence of eight years imprisonment.

2. We need not go into the facts of the case in any great detail but briefly the police were summoned to a flat in Conduit Road and having broken in, they found the deceased who had received numerous stab wounds, one of which had cut the jugular vein. Although he was alive when the police arrived he was dead on arrival at hospital. The appellant was observed leaving from the rear of the flat and was eventually found in Robinson Road where he had fallen down. He had also received some relatively minor injuries to his hands. In his pockets two gold ornaments were found which belonged to the deceased.

3. The appellant was interviewed on several occasions by the police, one interview taking place in the ambulance while going to hospital. The appellant later gave evidence at the trial in which he said the statements which he made were not entirely correct but it may well be that the jury took the view that his first statement was correct in which he said that the deceased stabbed him with a knife, he warded it off and that there was a fight. He chased the deceased into the bathroom and there he stabbed him indiscriminately. That fitted with the known evidence. The appellant said that the deceased had borrowed a substantial sum of money from him and that he had failed to pay it back. The ornaments that were found on him had been given to him by the deceased as something towards repayment of the loan. However as the judge said, and we think quite rightly, there was by no means a clear picture of what in fact happened in the flat that night. There was certainly some evidence that the deceased had made homosexual advances towards the appellant. The jury at the end of the day found that the appellant had been provoked although in precisely what way is not by any means clear, but there was provocation and on that basis they convicted him of manslaughter and not of murder.

4. The personal background of the appellant is unusual and it is quite clear that he has worked extremely hard from very humble beginnings and has built up a successful small business. We are satisfied that this was a situation which is extremely unlikely to be ever repeated. The appellant was sentenced to eight years imprisonment which is a severe sentence for manslaughter, but it is an offence for which a very wide range of sentences may be passed depending on circumstances. Eight years however is near the top of the range of sentences normally imposed on manslaughter cases. Taking into account the facts of this particular case, the particularly unusual circumstances of this appellant's background and his clear record we feel the sentence of eight years was too severe. We grant leave to appeal against sentence, we treat this as the hearing of the appeal and the sentence will be reduced to one of five years imprisonment.

Representation:

Appellant CHAN Chun-ming in person.

P.J. Dykes, C.C. for Respondent.