PAK KA-LUN v. THE QUEEN

CACC001202/1977

 

IN THE COURT OF APPEAL
	1977 No. 1202
	(Criminal)

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

 

BETWEEN
	PAK Ka-lun	Appellant
	and
	THE QUEEN	Respondent

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

Coram: Huggins and Pickering, JJ.A. and McMullin, J.

Date of Judgment: 10th January 1978.

 

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

JUDGMENT

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

 

Huggins, J.A.:

1. The Appellant was charged with murder and pleaded guilty to manslaughter. He was sentenced by the learned judge to six years' imprisonment. The circumstances were that the Appellant went with two other triad members, who killed the victim. The Appellant was not arrested for three years after the crime. One of the two other men was convicted. He was convicted of murder, but his conviction was appealed to the Full Court and a verdict of Not guilty of murder but guilty of manslaughter was substituted. He was then sentenced to ten years' imprisonment.

2. A number of points is taken by Mr. Niamatullah on behalf of this Appellant. It is submitted that the judge failed to give sufficient weight to the Appellant's plea of Guilty and also that insufficient weight to the different parts played by the other men and by this Appellant. As to the plea it is said that a conviction was not inevitable, Because the Appellant was not identified at the scene of the crime and that, in any event, he has avoided the expense of a trial by jury. The judge expressly said that he attached "little or no weight" to the plea. We think that was ungenerous and that the Appellant was entitled to some credit for his plea. It was conceded by the Crown at the trial that the Appellant went to the scene not knowing that there was going to be an attack, believing that there was going to be a confrontation and being prepared to take part in violence if violence did take place. It may well be that that concession went further than was necessary or was in fact correct, because it is possible that a jury would have said, as was said in Reg. v Smith 1953 1 W.L.R. 1200, that anybody knowing that others go armed with knives must expect that they will use them: the fact that he himself carried only a piece of iron pipe would have been of little consequence. However, this concession was made in the statement of agreed facts and we thus have the position that, although the Appellant expected to play a minor role, was at all times intended to play a minor role and did in fact play a minor role, he received 60 per cent of the sentence imposed on one of the main offenders.

3. It is then argued that the judge ought to have obtained from the Probation Officer a social welfare report. The learned judge did not think that that was necessary and we are certainly not prepared to say that it was necessary. Indeed, counsel himself said it was "more desirable" that the judge should have a report. It is true that a Probation Officer can often give valuable assistance, but we would not lay it down that such a report must always be obtained, and in serious cases of this kind, having regard to the weight which he could properly attach to the personal circumstances of the offender, the judge may well not be persuaded that a full social welfare report is necessary. It is open to an accused, through his counsel, to advance such mitigating circumstances as would be contained in a report. However, another contention on behalf of the Appellant was that in the event the judge did not take sufficient account of one particular mitigating circumstance, namely the fact that at the date of the offence the Appellant was aged only nineteen years and twenty-seven days.

4. We have come to the conclusion that the sentence was excessive and a term of four years' imprisonment would be more appropriate. The appeal is allowed and a sentence of four years' imprisonment substituted.

  

10th January 1978.

 

Representation: