The Queen v. Ko Kam Hung

CACC000587/1990

HEADNOTE

Sentence of eight years upheld on plea to manslaughter.

Comments on sentence for armed gang attack resulting in death.

BETWEEN

------------

Coram: Sir Derek Cons, V.P., Clough & Macdougall, JJ.A.

Date of hearing: 28 June 1991

Date of delivery of judgment: 10 July 1991

-----------------

JUDGMENT

-----------------

Sir Derek Cons, V.P. delivered the judgment of the court:

1. The indictment laid against Ko Kam Hung ("the defendant") alleged by Count 1 that on 3rd June 1989 he, together with Kan Wah Cheung and other persons unknown, murdered Cheung Wai Keung; and by Count 2 that on the same day and in like fashion he assaulted Mo Chi Fai thereby occasioning him actual bodily harm.

2. Arraigned before Barnes, J. on 6th August 1990 the defendant pleaded not guilty to murder but offered a plea to manslaughter, which was accepted by the Crown and by the judge. A plea of guilty was entered to the second count. Two weeks later Barnes, J. imposed sentences of eight years' imprisonment for the manslaughter and one year for the assault occasioning actual bodily harm, both to run concurrently. The defendant now applies, through his counsel, Mr. Macrae, for leave to appeal against sentence. At the commencement of the hearing we gave leave to do so out of time. The application has been confined to the sentence for manslaughter.

3. The facts outlined to the judge below, and admitted on behalf of the defendant, show that the offence was committed not long after midnight in the Kwai Chung Estate. A group of persons, including Cheung Wai Keung and Mo Chi Fai, were playing with remotely controlled model cars. This appeared to irritate persons in the nearby block 28 and some beer bottles were thrown down near to those playing below - it is not clear by whom - followed by threats from the occupants of room 303, amongst whom was the defendant. After an exchange of words between those on the ground and those above a group of men, including the defendant, rushed down from above and attacked those below. The defendant was seen to punch and kick Cheung Wai Keung, roll him against some railings and then, while the latter was on the ground, place a dust bin lid over his head and together with others jump up and down thereon. It was a large dust bin lid, extending down to Cheung's chest.

4. A lady present at the scene, one Lee Mei Sheng, bravely but unsuccessfully tried to stop the attack. The police were called and arrived promptly, but Cheung died in hospital at half past two that morning. That is not surprising. Apart from bruises and lacerations everywhere, his chest had been stove in.

5. The judge was told that the defendant had been born in Hong Kong, was aged 20 and single, living with his family, and recently employed as a casual construction worker. The Judge also had the benefit of a report from a probation officer. It was pressed on him by counsel then appearing for the defendant that the defendant was only 19, had surrendered himself to the police - (when it was known they were looking for him), -was not alone in causing the injuries, and that the incident was out of character, the defendant generally being of good temperament and a regular contributor to the family income.

6. By his perfected grounds of appeal counsel suggests that the sentence of eight years was manifestly excessive and/or wrong in principle because the defendant:

(d)is carefully worded, for subsequent to the present offence the defendant was convicted of a common assault that he had committed two years earlier, an indication perhaps that his conduct was not quite so out of character as earlier counsel had suggested.

7. To these five reasons Mr. Macrae added three more in the course of his submission:

8. 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: see Thomas, Principles of Sentencing, 2nd Ed., pp. 74 - 85.

9. Nevertheless there must be some internal consistency of sentence, so that those who are guilty of manslaughter in broadly comparable circumstances receive broadly comparable sentences; and there must be some external consistency so that, for example, there is no glaring disparity with those guilty of other offences, such as robbery, which also necessarily involve violence.

10. As to internal consistency our attention has been drawn to R. v. Kan Wah Cheung Crim App. 85 of 1990, 4th January 1991, unreported, the appeal of the man named in the two counts against the defendant who had been dealt with in February last year by a different judge. Having been completely exonerated of any connection with the dust bin lid his sentence was reduced to three years by another division of this court, for reasons which are more attributable to the particular nature of the sentencing process than to the offence itself. However, in the course of its judgment the court observed:

"It may well be that the time has come when disputes which degenerate into fights, with or without the protagonists being armed, and in a public place - or more seriously in the close confines of a housing estate - from which a death results, should attract, upon conviction for manslaughter, a sentence of at least 5 years' imprisonment after trial. Such sentence could be increased depending upon the degree of violence, the nature of the weapons used, the deliberate nature of the attack and the number of the attackers. Any person who attaches himself to such an attack, whether or not he himself inflicts blows, must consider himself at risk of a sentence of that quantum."

11. The attention of a court was apparently not drawn to AG v. Tam Ka Lok and others, Application for Review NO. 4 of 1990, 7th June 1990, unreported, which involved what was said to be a "typical triad style revenge" attack, in which the attackers were armed with a variety of weapons such as wooden poles or clubs, at least one knife and one water pipe. Yet another division of this court held that the starting point of six years taken by the judge at first instance "was on the low side, but was not in (their) view so low as to be manifestly inadequate". We take from that remark that the court had in mind about eight years, with which we would respectfully agree. In our view that would be an appropriate base for considering the case of anyone, whether himself armed or not, who takes part in a gang attack with others, some or all of whom carry weapons such as wooden poles or water pipes, and from which death ensues. It is well established that in such circumstance youth, unless extreme, family situation or clear records count for little by way of mitigation. Triad overtones as such are irrelevant, except perhaps to indicate that the attack was premeditated. On the other hand a plea of guilty, and in some instances voluntary surrender to the authorities, will naturally be accorded due weight.

12. However in the present instance we are not concerned with a situation of that nature. Cheung wai Keung was not killed by just the gang attack. He did not die from injuries inflicted, as the court was told in R. v. Kan Wah Cheung, by a number of men who had "beaten him with light tree branches, kicked him and punched him". He died because the defendant deliberately and single-mindedly picked up a large dust bin lid, placed it over Cheung's head and chest and, encouraging the others to do the same, jumped up and down on it. Even at the age of 19 he cannot nave been unaware of what that was likely to do. Barnes, J. termed it "an attack on the borderline of murderous intent". A fitting description. Making due allowance for the plea of guilty and the voluntary surrender to the police, the sentence of eight years was by no means inappropriate. The application for leave to appeal against it is dismissed.

Representation:

A.E. Schapeal, Crown Prosecutor for the respondent

Andrew Macrae (M/s. Ip & Willis) for the applicant