Fok Pui Sang v. The Queen

CACC000041/1976

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 41 of 1976

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Coram: Huggins, McMullin & Pickering, JJ.

Date of Judgment: 17th February 1976.

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JUDGMENT

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Huggins, J.:

1. The Appellant was indicted for murder. He pleaded Guilty to manslaughter and was sentenced to ten years' imprisonment. He appeals against that sentence.

2. The difficulty which we have experienced in deciding this case arises from the absence of clear information as to what happened. Some of the facts could never have been established but there were matters upon which further information might have been obtained. In particular, it was never definitely established how the fight between the Appellant and the Deceased began.

3. There was a long history of bad blood between these two men. They were sleeping in the same room, the one in the top bunk and the other in the bottom bunk. At 5 o'clock on the morning in question the Appellant got up. He apparently disturbed the Deceased. It is alleged by the Appellant - and we think that for the purposes of this appeal we must accept - that the Deceased struck him on the shoulder and that that was the start of the fight. The Appellant had in his bed a knife, a knife which he says he had obtained for self-defence. It would seem that the Deceased had at some stage acquired a screw-driver. For what purpose he acquired that we do not know, but the Appellant did say to the police that he believed that during the fight the Deceased was going to use a screw-driver to hit him. At any rate the Appellant seized the knife which he had in his bed and it was with that knife that he killed the Deceased. Surprising as it may seem the fight between these two men went on for something just under an hour. There were other persons in the flat but none of them saw fit to try to stop the fight. In the course of the fight the knife changed hands, but, having lost possession once, the Appellant regained it and he caused at least eight serious injuries to the Deceased. He himself received cuts on his hands, obviously obtained during the struggle, but in spite of the fact that the Deceased was the larger man the Appellant had no other wounds on him. As I say, it is very difficult to know just what happened. The fact that there were eight serious wounds and a number of less serious injuries on the Deceased shows that the Appellant was persistent in his attack, but there are enough doubtful elements in this case to make us think that a sentence of ten years was more than justice required.

4. Not without some hesitation we have decided that this appeal should be allowed and that a sentence of seven years' imprisonment should be substituted.

17th February 1976.

Representation: