The Queen v. Chan Man-tung

Case No.

Court

Date—

Judge—

Case Document

100%Judiciary

CACC000553A/1995

IN THE COURT OF APPEAL

	1995, No.553
	(Criminal)

BETWEEN
	THE QUEEN
	and
	CHAN MAN-TUNG

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Coram: Hon. Power, V.-P., Bokhary & Mayo, JJ.A.

Date of Hearing: 2nd July 1996

Date of Judgment: 2nd July 1996

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JUDGMENT

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter originally faced one count of murder. It was particularized that he and others on 21st August 1994 at Kowloon in Hong Kong murdered Lui Wai-keung. He pleaded guilty to manslaughter and was in consequence sentenced to imprisonment for eight years. He now seeks leave to appeal against that sentence.

2. It was the Crown case that he and three others waited for the victim to come into view and that, when he did so, the group chased him, all being armed with knives. Eventually the victim was caught and savagely wounded. The wounds were fatal.

3. The counsel for the applicant, Mr. Stirling, said when advancing matters in mitigation that:

	" the basis of the plea was that evidence, which showed that this defendant was taking part in an unlawful and dangerous act, namely an assault by chasing and brandishing a beef knife outside the Energy Plaza. That unlawful and dangerous act continued on sort of round the corner when Mr. Yim lost sight of the three or four (and I think we know that it was four persons) and when he got round the corner his view was obstructed by the red car (and in those circumstances he again said he thought there were three or four persons chopping). That was in relation to Mr. Yim - I'm sorry - in response to Mr. Young's cross-examination, but he couldn't say who.
	So, on the admissible evidence, I would submit that the Crown can prove unlawful and dangerous act which clearly in the joint enterprise resulted in this death."
	The judge when sentencing said:
	"Although the attach was at 4 o'clock in the morning, there were a great many people around and about. This was a cowardly attack that took the form of an ambush on a young man who was unarmed. The motive arises from a desire by a friend of yours to gain revenge which in turn seems to arise from some trivial dispute which had been going on for months. You were one of the four youths who were carrying knives. Having seen the knives, they can only be described as murderous. Seventeen very serious cut wounds were inflicted on that young victim's body.
	I have considered similar cases to this case. In the case of Ko Kam-hung which is unreported (No.587 of 1990), an attack took place in which no conventional weapons were used. This appears, unlike the case I have referred to, to have been a planned ambush, but the similarity is that you and the appellant in the other case both pleaded guilty. A second case in which a very strong court in the Court of Appeal pronounced judgment is Cheung Chi-man. And in the course of the judgments I have referred to, I have also been able to see that Tam Ka-lok is a case of some similarity too this.
	I have no doubt that the plea was offered by you and accepted by the prosecution for perfectly good reasons. I'm prepared to give you full credit for the plea of guilty which I shall regard as having been from the outset of the trial.
	In my judgment, the correct starting point for this crime of manslaughter is one of twelve years' imprisonment. In giving you full credit as I have said for your plea and ignoring your previous convictions, the sentence is one of eight years."

4. The basis upon which the applicant was sentenced was that there had been an ambush by four persons armed with knives, and that all chased the victim but that there was no evidence that the applicant was involved in the final fatal attack.

5. Mr. Haynes, who appears for the applicant today, submits that the sentence was manifestly excessive. He contends that the sentencing guidelines for an offence of this king were set out in The Attorney General v. Tam Ka-lok others which was Application for Review No.4 of 1990. In that application a starting point of six years was indicated as being proper in circumstances of a triad revenge attack. The facts of that case must, however, be examined before it can be used as a guideline in relation to other cases in which circumstances which might be very different. In that case the facts were as follows: At a playground the victims were met by a group of 10 to 12 young men including the defendants. Apologies were demanded and refused: Insults uttered. The group, having thereupon armed themselves with a variety of weapons such as poles, clubs and at least one knife and one water pipe launched a concerted attack upon the victims. The victims split up and fled. This was, as Mr. Haynes urges, a typical triad encounter. He submits that it sets the guideline starting point of six years for future sentences involving triad attacks in which there is a plea to manslaughter. He concedes that to the later case of The Queen v. Cheung Chi-man No. 14 of 1992 also involved a triad encounter and that, after a plea to manslaughter, a sentence of eight years was imposed which was upheld by the Court of Appeal. Mr. Haynes submits, however, that the sentencing judge and the Court of Appeal took a wrong turn in failing to apply the guideline enunciated in Tam's case.

6. We refer, however, to the words of Sir Derek Cons in the case of Ko Kam-hung (1991) 2 HKLR p.433 :

"With regard to some offences, as for example the possession of dangerous drugs for the purpose of unlawful trafficking, where there is often little to choose between the circumstances in which actual offences are committed, this court has been able to suggest guideline tariffs, in that instance related to the amount of drug involved. This obviously cannot be done with regard to manslaughter, by reason of the infinite variety of the ways in which it may be committed, making it proper perhaps to pass in some circumstances merely a probation order and yet in others, up to ten years' imprisonment."

That observation is pertinent to the decision of the court in Cheung Chi-man's case. A sentencing court must look to the facts of each particular case. A sentencing judge must, of course, bear in mind the desirability of maintaining internal consistency but bearing that need in mind that he has, at the end of the day, to assess sentence in accordance with the particular facts of the case before him. The facts of the present case reveal sinister elements of particular aggravation. It was an ambush. It was planned. The deceased was alone. There were four persons involved. They were armed. They carried what the judge described. as "murderous weapons". In consequence of the ambush a death resulted. We are by no means persuaded that the starting point of 12 years was too high. The discount of 4 years for plea was proper.

7. The application is refused.

(N.P. Power)	(K. Bokhary)	(Simon Mayo)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr. Veltro S.C.C. (Crown Prosecutor) for the Respondent

Mr. John Haynes instructed by Messrs. Stephen Lo & P. Y. Tse for the Applicant.