R. v. Lam Ki Yuen

CACC000691/1996

IN THE COURT OF APPEAL

1996, No. 691

(Criminal)

_______________

_______________

Coram: Hon Power Ag. C.J., Mortimer and Mayo, JJ.A. in Court

Date of hearing: 19 March 1997

Date of judgment: 19 March 1997

_______________

J U D G M E N T

_______________

Mayo JA giving the judgment of the Court:

1. The applicant seeks leave to appeal against the sentence of 8 years' imprisonment imposed upon him when he pleaded guilty to manslaughter before Stuart-Moore J.

2. He had originally been charged with murder. However at the commencement of the trial after hearing submissions from counsel the judge agreed to accept the plea to manslaughter.

3. The victim and one of his friends Leung Wai-lun, were involved in a very trivial incident when words were exchanged between the applicant's 13 year old sister and Leung.

4. This was reported back to the applicant. He then together with two of his friends sought out Leung and the victim.

5. They found them late at night at the Lam Tin Estate where they lived. After a brief exchange a violent altercation ensued.

6. It divided itself up into two separate fights. One involving Leung and the other involving the victim.

7. It is accepted as part of the agreed facts that the applicant picked up a heavy wooden bar from the ground and struck the victim on the head. He immediately fell to the ground unconscious. It was not realised how badly he had been injured and thinking that he was feigning death or serious injury the young men continued to kick him.

8. After they left Mr Leung took the victim to a hospital. He died two days later as a result of his injuries.

9. The applicant surrendered himself to the police some two months later.

10. At the time of the offence the applicant was aged 17. He had not previously been convicted of any crime involving violence.

11. Mr Sceats who represents him put forward four grounds of appeal against the sentence imposed.

12. The first is that the judge did not state his starting point and appeared to have sentenced the applicant on the basis of the injury sustained by the victim rather than the nature of the applicant's actions.

13. When the sentence was imposed the judge did not state that he would grant the applicant the usual discount given for a guilty plea.

14. Mr Sceats is probably correct in stating that the judge had regard to the consequences of the action. Manslaughter is a much more serious offence than common assault. This observation also covers the issue raised in ground 3 which contends that the judge did not seem to appreciate that by acceptance of the plea to manslaughter he accepted an absence of intent to kill or cause grievous bodily harm.

15. The other grounds suggest that the judge appeared not to take cognisance of the absence of convictions for violence on the part of the applicant or the fact that everything which had happened over a very short passage of time.

16. There is nothing in the record to suggest that the judge was not fully mindful of all of the relevant circumstances of the case.

17. The sentence was neither manifestly excessive nor wrong in principle and the application is dismissed.

Representation:

Mr I.C. McWalters, SACP for Crown Prosecutor

Mr Barry Sceats (DLA) for Applicant