HKSAR v. Mok Yu Wing

CACC 269/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 269 OF 2008

(ON APPEAL FROM HCCC NO. 8 OF 2008)

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

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

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

Before : Hon Ma CJHC, Beeson and Wright JJ in Court

Date of Hearing :   26 February 2010

Date of Judgment  :   26 February 2010

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

J U D G M E N T

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

Hon Ma CJHC (giving the judgment of the Court) :

1.The 2nd Applicant applies for a Certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 that the judgment given by this Court on 5 November 2009 (the Reasons were handed down on 27 November 2009) involves a point of law of great and general importance.  The question posed is “The extent to which, if any, the common law principle of ‘Stare Decisis’ has any application within the criminal jurisdiction of the Court of Appeal.”  The 2nd Applicant had been convicted of manslaughter on 8 August 2008; his application for leave to appeal to this Court on both conviction and sentence was dismissed on 5 November 2009.  The present application relates only to sentence.

2.It is argued by Mr Andrews that this Court failed to apply the principles contained in the decisions of the Court of Appeal in The Attorney General v Tam Ka Lok & Others, unreported, CAAR 4/1990，7 June 1990 and The Queen v Ko Kam Hung [1991] 2 HKLR 433.

3.Insofar as those cases involved statements of sentencing principle, they are as follows : -

(1)The court should be consistent in sentencing for manslaughter in that those in “broadly comparable circumstances” ought to be given broadly the same sentence.

(2)Where a number of people participate in a gang attack, armed or not, then an appropriate base (or starting point) for sentencing for manslaughter would be 8 years.  However, as in Ko Kam Hung (and in the present case), the sentencing court can take into account the actual role and participation of the accused in arriving at the appropriate sentence.

4.It was suggested that another principle from Tam Ka Lok was that, beyond the ringleader of a gang or the person or persons who actually struck the fatal blow, all other participants, regardless of what they actually did, must be regarded as having the same degree of participation for the purpose of sentencing for manslaughter.  The passage in Tam Ka Lok is at page 6 : -

“ We accept Mr Cross’s criticisms.  All the defendants pleaded guilty to participating in a joint enterprise, embracing other armed young men, to attack and inflict physical harm on the two victims which resulted in the death of one and injury to the other.  There is, we think, some scope for discrimination between the culpability of these persons, but it is very limited as all the sentences must reflect the same basic criminality.  Thus we accept that an identified ‘ring leader’ or the striker of potentially fatal blows, such as D3, may properly receive a stiffer sentence.  But between the others who have armed themselves and joined in the attack, we can see very little scope for discrimination.  They could not all chase the same man and some may fail to catch either.  That is chance.  If death results, their true criminality is manslaughter.  They should be sentenced for that, not for some lesser part or for such activities as they may later admit.”

In our view, a proper reading of the case does not support the submission made by counsel.  The main point is as stated above relating to consistency of sentencing : see paragraph 3(1) above.  The Court of Appeal in that case did not intend to go further than that.  In an earlier passage in Tam Ka Lok, Hon Hunter JA said at page 5 : -

“….. We accept both the gravity of this offence of manslaughter, and the width of the range of permissible sentences.  We decline to suggest any starting scale or to consider more than the facts of this case.”

5.There is no question of this Court having failed to apply the principles just set out or in any way applying contrary principles.

6.There was, in addition, a submission made to the effect that, factually, the 2nd Applicant’s role was no different to two other members of the gang who had been sentenced in an earlier trial (Tsoi and Chan).  It is clear from our judgment that the roles were quite different.  The 2nd Applicant’s role was much more active and, unlike the other two, he actually used a weapon to attack the deceased.  At best, in any event, this amounted to a submission that the principles were wrongly applied : by itself, therefore, insufficient to raise any question of great or general importance.

7.The question for which the application is made for a Certificate simply does not arise.  The Motion is accordingly dismissed.

Mr David Leung of the Department of Justice for the Respondent

Mr Robert Andrews, instructed by Messrs S Y Chu & Co for the 2nd Applicant