Heng Po Wah v. The Queen

CACC000542/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 542 OF 1971

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Coram: Huggins, Leonard & Li, JJ.

Date of Judgment: 19th January, 1972.

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JUDGMENT

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Huggins, J.:

1. The Appellant was indicted for murder. The jury returned a verdict of Not guilty of murder but Guilty of manslaughter and upon that verdict the learned Commissioner passed a sentence of six years' imprisonment. Against that sentence the Appellant appeals.

2. The events in the course of which the Deceased was killed took place in a power station belonging to the China Light & Powers Co. Ltd. The Appellant and the Deceased were both technicians in the power station. The only other person who was present at the time was a Mr. Kok, who was a labourer. The Deceased and the Appellant had been on good terms previously. Indeed, the Appellant had been in the practice of doing favours to the Deceased: the Deceased was apparently keen on attending races and when this did not fit in with the shifts which he was working he asked the Appellant to change shifts with him.

3. On the night in question the Deceased was on duty with Mr. Kok. The Appellant had been on holiday for a day and he came back at about 5 o'clock in the morning to the power station, where he was in the habit of sleeping. It is accepted that he had had too much to drink. He was supposed to go on duty later that day, but he thought that he was not fit to go on duty and he asked the Deceased to change shifts with him. The Deceased refused. This clearly upset the Appellant, who thought that the Deceased might have returned the favours which had been done to him in the past.

4. As I understand the resition, the Appellant then went to the changing room and changed his shirt. He later came back to the switch room where the Deceased was on duty and it was in that room that the Deceased was killed. After the events which took place there was found on the desk in the switch room a shirt belonging to the Appellant, inside which was the sheath of a knife. This was a matter of considerable evidence before the jury, for the suggestion for the Crown was that the presence of the knife inside the shirt indicated that it had been put there by the Appellant. On his return the Appellant became involved in a quarrel with the Deceased. Mr. Kok did not see what happened because he was round the corner but he heard the noise of a drawer being opened and shut and, no doubt, the Defence sought to suggest that this was the result of the Deceased's having opened the drawer to take out a knife. Then Mr. Kok heard the Deceased call out and when he looked he saw him running away with the Accused following him. The switch room is a very long room and at the far end of this room the Accused caught and stabbed the Deceased several times.

5. The defence was that the Deceased had first attacked the Appellant. I think the substance of the defence was not so much self-defence, although this was left to the jury, as that the Appellant had acted under provocation. There were two fatal wounds inflicted on the Deceased, one in the front and one in the back, and there were five other wounds in the back. There was a trail of drops of blood in the switch room, between the desk and the place where the body of the Deceased was found. After the attack Mr. Kok heard the Accused say something to the effect that he "did not intend to do this" but that the Deceased "had made him do it".

6. As it seems to us, there were two possible reasons why the jury returned the verdict that they did. The first is that they thought the Deceased was so much under the influence of drink that he was incapable of forming the intent to kill or to do grievous bodily harm. The learned Commissioner did not indicate his view on the matter, but we think that the more likely reason was that they were not satisfied that the Crown had negatived the possibility of provocation.

7. Be that as it may, counsel for the Appellant has felt it impossible to submit that this sentence was manifestly excessive but he suggests that nevertheless there were circumstances which would justify our interfering and imposing a lighter sentence. He emphasises the previous good character of the Appellant, a man who had served with the Armed Forces of the Crown and who, partly as a result of his postings, had led a somewhat unsettled life. He emphasised the fact that the Appellant had been under the influence of drink and that he was probably provoked.

8. We have listened carefully to everything that has been said, but we are unable to say that a sentence of six years' imprisonment for this offence was in any way unreasonable or should be interfered with.

9. The application is dismissed.

19th January, 1972.

Representation:

Mr. Goodbody for Appellant.

Mr. Carolan for Respondent.