The Queen v. Tsoi Wah Chai and Others

CACC000502/1989

BETWEEN

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Coram: Hon. Sir Derek Cons, Acting C.J., Clough, J.A. & Kaplan, J.

Date of hearing: 1 August 1990

Date of delivery of judgment: 1 August 1990

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JUDGMENT

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Sir Derek Cons, Acting C.J., delivered the judgment of the Court:

1. These are applications for leave to appeal against sentences of ten years imposed by Duffy, J., by three out of four defendants convicted of manslaughter. We are concerned only with those who were the 2nd; 3rd and 4th defendants at the trial and will continue to refer to them as such.

2. The killing on which the convictions were based occurred in the course of a robbery upon a goldsmith shop in Lyndhurst Terrace. All four of the defendants were originally charged with two counts, i.e. of murder and robbery. At the outset the 3rd and 4th defendants offered pleas to manslaughter which were accepted by the Crown and the judge, and the robbery charges were ordered to remain on the file. It is now conceded that the 2nd defendant at the same time also offered to plead guilty to manslaughter but the Crown was not willing to accept his offer.

3. The trial proceeded with regard to the 1st and 2nd defendants. Both were found guilty of manslaughter, and the 2nd defendant of robbery. The 1st defendant had pleaded guilty to that charge. The Crown used the 3rd and 4th defendants as witnesses, although the judge later expressed his view that they had been "less than frank" in giving their evidence on a crucial aspect of the case.

4. In passing sentence for the manslaughter the judge made no distinction between any of the defendants, while the seven years passed upon the 2nd defendant for robbery was made concurrent.

5. The victim of the killing was the night watchman of the goldsmith shop, a man of 77 years of age who had difficulty in getting around. He was normally very cautious about security of the premises when they were under his control. However, the 1st defendant had previously worked in the shop and on that evening somehow managed to persuade the old man to let him in. He subsequently let the other three into the premises. By that time the victim was already unconscious and injured to some extent. Later on, when he recovered consciousness, he was again attacked. Further and serious injuries were inflicted from which he died. It cannot now be said who actually inflicted those later injuries and the jury must have been satisfied that whoever did so did not intend to cause death or grievous bodily harm.

6. The injuries were quite horrific. Even so they did not deter the four defendants from continuing with their planned object to rob the premises which they concluded with the old man lying on the floor before them.

7. Counsel for the 2nd Defendant has based his application for leave to appeal against sentence upon the youth of his client and his effective plea of guilty. Counsel for the 3rd and 4th defendants also rely upon the pleas of guilty and suggest in addition that the two played lesser roles in the affair as a whole.

8. It is well accepted that, except in the case of extreme youth, youth in itself is a matter of little mitigation in crimes of this nature. Furthermore, having regard to the overall circumstances of the case, in which we include not just the very beginning, or what might be called the planning stage, but the circumstances to the very end and final conclusion of the robbery, we find no significant difference between the roles that any of the four played.

9. With regard to the pleas of guilty the learned judge said this:

"I have concluded that the circumstances of the death of this watchman heavily outweigh any mitigating factors, including pleas of guilty, which I have also taken into account."

With respect to him, we do not agree that the pleas of guilty can ever be so outweighed. One of the elements which induce courts to grant a discount for a plea of guilty - and it is an important element - is the pragmatic result that such pleas save the time of a court hearing, save expenses which would otherwise be involved and very often the feelings of witnesses who thus do not have to give their evidence in public. That element remains whatever the nature or circumstances of the crime.

10. For that reason we propose to grant these applications, treat the hearing as the hearing of` the appeal, allow the appeal and reduce the sentence on each applicant to one of eight years.

Representation:

G.A. Mackay and Lambert Lee (M/s. So & Co.) for 02.

Robert Forrest (D.L.A.) for D3.

Edward Laskey (D.L.A.) for D4.

I.G. Cross, Q.C., and Patrick Cheung, Crown Prosecutor for Respondent.