Case Document

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CACC000069/1992

IN THE COURT OF APPEAL	1992 No. 69
	(Criminal)

Headnote

Sentence for manslaughter. A manslaughter which has come about because the Applicant has deliberately taken a knife to the scene, albeit for the purpose of defending himself should the deceased decided to attack him was rightly regarded by the trial judge as falling within the more serious class of manslaughter offences and the sentence of nine years' imprisonment was justified.

IN THE COURT OF APPEAL	1992 No. 69
	(Criminal)

THE QUEEN

AND

NG HUNG- SHEUNG

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Coram: Hon. Power J.A., Mayo & Bokhary, JJ.

Date of Hearing: 1 October 1992

Date of Judgment: 1 October 1992

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced a count of murder which was particularized as follows: that he on 23rd December 1990 at Block 10, Chai Wan Estate, Chai Wan Road, Hong Kong, did murder YAN Shu-pui.

3. The evidence, which was not in any material way contested, was that he had stabbed the deceased to death by inflicting multiple wounds upon him with a knife which he had purchased shortly before the incident. Yan was, so the applicant believed, his former wife's lover. The applicant both in his statement and in his evidence said that the deceased had abused him, had taunted him, had, on earlier occasions, assaulted him, and had, on other occasions, sent persons to beat him up. He said that on the day in question after he arrived at the scene, with no intention of assaulting the deceased, the deceased had abused him and insulted him and that he then lost control and that the attack with the knife followed this loss of control. His evidence raised the possibility that he had acted under provocation and the jury's verdict clearly indicates that they considered that the Crown had not negatived that possibility.

4. The trial judge quite properly took the view that the applicant had to be sentenced upon the basis that his actions had occurred as a result of provocation. When sentencing he said:

"You have been found guilty by the jury of the lesser charge of manslaughter and by their verdict the jury must have accepted that you were or might have been acting under provocation when you stabbed the deceased.

They must have also accepted that you had, over the previous three or four years, been subjected to pressure from the deceased and there could be no doubt that there was a bad relationship between the deceased and your former wife on the one side and you on the other.

In reaching sentence, I have had regard to this and to the fact hat until today you have had a clear record. What I also have to take into account, however, is that the incidents leading up to the death of the deceased were promulgated (the word that appears in the record is 'promulgated' but this is probably corrupt and the word most likely should be 'precipitated') by you and that the death of the deceased is a direct result of you purchasing a knife on that day, a knife of very dangerous proportions and by you taking that knife to the deceased's shop premises when you say you went to have a discussion with him. So as I say, it was by your actions that the unfortunate events which led to Yan's death were precipitated.

So while you were or might have been provoked, your actions in bringing about the incidents put this into the more serious class of manslaughter offences. You are sentenced to nine years' imprisonment."

5. Mr. Finny Chan, who appears today for the applicant, has raised several grounds of appeal. In the first he argues that the learned judge failed to give due weight to the jury's necessary acceptance of the applicant's evidence which led to the verdict of manslaughter and, in particular, criticizes the way in which the judge described the situation that existed between the applicant and the deceased and his wife. The judge, in the passage set out above, said that the applicant had for three or four years been subjected to pressure from the deceased and that there could be no doubt that there was a bad relationship between the deceased and the former wife on the one side and the applicant on the other. Mr. Chan submits that the facts revealed more than mere pressure and more than just a bad relationship.

6. This is a matter of words. The judge, it is true, might have used more positive terms to describe the situation between the parties. However, it seems to usclear that he was acting upon the basis that the jury accepted that the relationship was as the applicant described it in his evidence. We find nothing in the suggestion that the terms he used to describe it somehow indicate that he failed to apprehend and give weight to relationship as it was so described.

7. The second ground is that the learned judge failed to consider that the applicant brought along a knife for self-defence and was provoked by the deceased into stabbing and killing. him: We can find nothing to support this contention. The trial judge clearly sentenced upon the basis that the applicant was or might have been provoked but he, in our view very properly, bore in mind that by purchasing and carrying the knife to the scene the applicant had created a situation in which, if matters got out of hand, there was a manifest possibility of serious injury occurring to someone. The applicant was clearly not entitled to be dealt with as if he had gone to the scene unarmed and had, after being provoked, spontaneously seized a knife which happened to be lying to hand. The judge in our view rightly took the view that this was in the more serious class of manslaughter offences. This view was based upon the fact that the deceased had deliberately purchased and brought the knife to the scene. The judge cannot, we are satisfied, be said to have overlooked in any way the jury's verdict which rested upon the possibility that there had been provocation. We are satisfied that the trial judge was right to regard the actions of the applicant as he did and that the sentence of nine years was justified.

8. The application for leave to appeal against sentence must therefore be ismissed.