CRIMINAL CASE NO. 225 OF 2009
COURT: You have both pleaded guilty to manslaughter.
You were both part of a group of nine young men who set upon the deceased at McDonald’s in Tin Shui Wai in a short, but very violent, attack.
The incident was captured on CCTV cameras. For 35 seconds, your victim was put to the ground and kicked and beaten to death with weapons that then and there came to hand. There had been an incident of minor violence the night before involving a member of your group and a group that included the deceased.
I will accept that the extent of the violence that was used in this attack had not been planned, and I do not forget that no weapons were carried to the attack. It was, however, a cowardly attack, with an apparently trivial motivation. It was others, and not you, who used a metal rod, bakery trays and a heavy umbrella stand in the attack.
There was only one fatal blow, and it was struck either with the metal rod or the umbrella stand. This is not a case where an accumulation of injuries resulted in death.
The two of you admit kicking the deceased. Your involvements are to be seen on the CCTV tape. The acceptance of your pleas of manslaughter acknowledge that you had neither an intention to cause grievous bodily harm, nor an awareness at the time you participated in the attack that others may have been attacking with such an intent. Put another way, the scope of the joint enterprise to which you tacitly signed up did not extend to intentionally causing really serious bodily harm.
Nonetheless, the violence in your enterprise was intentional, and it was substantial, and a fit young man, the father of a young child, was left to die as a result of the attack that did take place.
The seriousness of an unprovoked attack by nine onto one, resulting in death, cannot be overemphasised. Such conduct must attract a lengthy period of imprisonment, notwithstanding your limited involvement and your age.
You, Cheung Kwok-ho, were only 15 at the time, albeit nearly 16. You, Mr Bo, were 18. You, D1, were the first to plead guilty, and you gave evidence in the trial of the 2nd defendant, who was convicted of murder. I judge that essentially you gave truthful evidence, and I shall give you credit for it, along with the credit you got for pleading guilty.
It is also the case that the CCTV tape showed you pulling an attacker away as you left. You said in evidence that you did so as you wished him to discontinue. In the circumstances, I am minded to accept that assertion. Those matters - your youth, the help, and that conduct at the end - explain why your sentence will be less than that of your co‑accused.
In your case, Bo Ka-shing, your involvement on the CCTV tape can be seen to be less than the others: there was a brief involvement when you were kicking. It is not a matter of dispute that as you left, you turned back and made a hostile gesture down towards the deceased on the ground. I mention that not to indicate the infliction of any blow then that actually landed, but as an indication of your attitude to what you had witnessed there as you left.
On the other hand, I will give you real credit for the fact that you surrendered yourself to the police. You could have stayed, like the others, out of the jurisdiction of these courts, and hidden away and not faced your responsibility, and of course I remember and will give you credit for the fact that you pleaded guilty, and I have no reason to now think that the remorse you express in your letter is not genuine, because you now realise, especially when you can see it played back to you, what wicked conduct took place that night in the McDonald’s.
In dealing with sentencing for manslaughter, we do not take starting points and make specific calculations as we do in respect of other crime, but you have heard the discussion between Bench and Bar, and you know that after trial and without the mitigation that the two of you have – had you been convicted of manslaughter by a jury - you would have faced a sentence in the region of 8 or 9 years.
For you, Cheung Kwok-ho, therefore, bearing in mind the matters of mitigation to which I have already referred, I shall sentence you to a term of imprisonment of 4 years.
In your case, Bo Ka-shing, I shall sentence you to a term of imprisonment of 5½ years.