Tam Wing-ching and Others v. The Queen

CACC000116/1978

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

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

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 14th April, 1978.

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

JUDGMENT

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

Pickering, J.A.:

1. The three appellants were charged with murder but found guilty of manslaughter and were each sentenced to ten years' imprisonment. They appeal against their sentences.

2. The first appellant was employed in a bakery where a man called WONG Kin-wah was either his employer or alternatively in a position of authority over him; a dispute arose as to working hours in the course of which, according to the first appellant, WONG Kin-wah struck him whereupon the appellant absented himself from his work and was not seen at the bakery again until the date of the killing some ten days later when he was seen by employees of the bakery close to their premises.

3. On the evidence, the first appellant collected a group of some fourteen youths who proceeded to the bakery in a public light bus; having arrived there some four to six of the group entered the bakery and attacked WONG Kin-wah who sustained multiple stab wounds one of which was fatal. The second and third appellants were amongst the group who entered the bakery but there is evidence that neither of them struck the fatal blow. During the attack the first appellant remained outside the premises. The first and third appellants have clear records whereas the second appellant had two previous convictions of a minor nature incurred when he was fifteen years old.

4. The learned judge rightly described this killing as a vicious attack by a gang of thugs and thereafter sentenced each appellant to ten years' imprisonment. We observe however that the second appellant is only eighteen years old and the third nineteen years old. Whilst the offence was amongst the gravest it does not appear that the learned judge attached any weight to the youth of these two appellants who were each sentenced to a term of imprisonment representing more than fifty per cent of the time they have thus far lived. Having regard to that factor and to the clear record of the third appellant and the virtually clear record of the second appellant we consider that justice will best be served if we set aside the sentences of ten years' imprisonment upon these two and substitute for them sentences of seven years' imprisonment.

5. The first appellant was twenty-one years old and was the instigator of the attack and we do not consider that the same consideration applies to him. There is however a different but important consideration which appears to have been overlooked by the learned judge and that is that this appellant wished to plead guilty to manslaughter but was met with a refusal by the Crown to entertain such a plea. Had he been permitted to plead guilty to manslaughter there can be no doubt that in assessing sentence the learned judge would have given credit for the plea of guilty and we do not think it just that he should be deprived of that credit purely because he was not allowed to plead guilty. In those circumstances we set aside the sentence of ten years' imprisonment imposed upon the first appellant and substitute for that sentence a sentence of eight years' imprisonment.

Representation:

Kelvin Shuen (Director of Legal Aid) for appellants.

Miss Harriss for Crown/ respondent.