Case Detail

CACC000085A/1990

Headnote: Plea of guilty: admission of facts: mitigation departing from admission.

IN THE COURT OF APPEAL	1990, No. 85
	(Criminal)

BETWEEN

THE QUEEN

AND

KAN WAH CHEUNG

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Coram: Silke, V.-P., Power & Penlington, JJ.A.

Date of Hearing: 9 August 1990

Date of Judgment: 9 August 1990

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. On 13th February 1990 the applicant, Kan Wah Cheung, appeared for trial before Bewley, J. on an indictment containing two counts, one of murder and the second a substituted count of assault occasioning actual bodily harm. To the murder count he pleaded not guilty, to the second count he pleaded guilty. The first count of murder was put again and the accused entered a plea of guilty to manslaughter, a plea accepted by the Crown and eventually by the Court.

2. Counsel then representing the Crown told the trial judge that the material facts were those as set out in the record at pages 2 to 4. Included in those facts was. the following paragraph:

" The accused together with 4 others was seen by LEE Mei-sheung to attack the deceased with small tree branches, punches and kicks. She saw him stomp on the refuse container lid after it was placed over the head of the deceased by another of the group."

3. When the counsel had read out those facts Mr. King, who appeared for the applicant both here and below, is recorded as saying: "My Lord, those facts are admitted." Mitigation then followed, and we shall refer back to a portion of that in a moment, and sentence was imposed, that on the first count being four years and on the second count one year, the sentences to run concurrently giving a totality of four years.

4. The applicant now seeks leave to appeal against that totality on the basis that the sentence of four years for manslaughter was manifestly excessive in all the circumstances. Particulars given of the single ground are that, first, the trial judge failed to impose a sentence which accurately reflected the culpability of the applicant and, second, that the trial judge placed insufficient weight on the mitigating factors present in the case. It is the first particular which causes us concern.

5. Despite the passage to which we have referred in the Statement of facts, in the course of the mitigation Mr. King had this to say:

" My Lord, there are some particularly disturbing features about the nature of the attack, and the matter mentioned by my learned friend concerning the dustbin lid,which is mentioned in paragraph twenty-one of the brief statement of facts, that this accused was seen by a female witness, LEE Mei-sheung, to stomp on the refuse container lid after it was placed on the head of the deceased, my Lord, that is something that the defendant has always denied. And it is perhaps interesting that another witness - P.W.5, CHOW Chau-fong, who was what may be termed as an independent witness - she was the lady who was in room 503 of the Estate and watched from the balcony the whole incident unfold, saw one assailant throw a dustbin lid onto the head of the deceased as he was lying there. And she said in her evidence - page 95 of the.. depositions - that she had a good impression of the one who threw the rubbish bin lid: he was wearing a red-coloured T-shirt. And it was her evidence that that was the only person who was involved with the rubbish bin lid.
The defendant is not in any way seeking to resile from his involvement in the offence, but your Lordship is entitled to take into account all the evidence in determining the extent of his culpability in this particular "matter." (Emphasis supplied)

6. The emphasised portions were in direct conflict with two of the matters in the "admitted" facts - the first being that to which we have already referred and the second the passage which indicated that more than one person had jumped upon the dustbin lid at the time it was placed over the unfortunate deceased.

7. It was not suggested by anyone, and the trial judge did not take it upon himself to consider, whether there was an issue to be tried.

8. The question of what should occur when there is a dispute as to fact was considered by the English Court of Appeal in Robert John Newton [1982] Vol.4 Criminal Appeal Reports (sentencing) 388 in which the decision of the Court was delivered by Lord Lane, L.C.J. Without going into the situation in Newton which was different from that here it is of assistance in considering the course to be taken. Either hear evidence or listen to submissions. If the latter then the position is as Judge Argyle said in the course of his ruling on submissions made to him at the trial, and this quoted with approval by the Court of Appeal at page 391 of the reports,:

" ... I propose to proceed to sentence Newton on the count of buggery and on the well known basis that the Crown is entitled to put its case forward on the evidence disclosed in the depositions, the defence is entitled to put forward its mitigation provided it is not clearly at issue with the facts. I must then pass sentence. Where I find there is substantial conflict between the two versions, then it is incumbent upon me, as one would expect in this country, to take the more lenient view, to accept the accused's version so far as possible and to pass sentence accordingly."

9. Unfortunately Judge Argyle did not take this line and the matter was resolved in another manner.

10. Where there is substantial dispute on fact, as there how appears to be here, then it is a matter for the sentencing judge to resolve it either by hearing submissions from counsel or by hearing evidence on the issue itself.

11. We are not surprised, in the light of the admission made by Mr. King on behalf of the applicant that the prosecution facts were accepted, that the judge did not take this course here. Mr. King now says that that admission was not an admission made as to the truth of the facts themselves by merely an admission that these were the facts upon which the prosecution sought to rely. With the greatest respect Mr. King's view is misconceived and wrong. Once facts are admitted then the trial judge is perfectly entitled to proceed on the basis that those are the facts of the case and that those are the facts which form the basis of the sentencing exercise in which he is involved. For it to be otherwise would cause untold confusion where sentence fell to be imposed after a guilty plea. If a fact set out by the Crown is not accepted then the judge should be immediately told and the Court should be given the opportunity of turning its mind to any necessary resolution of the dispute. We have in mind a dispute as to a substantial issue of fact and not a mere forensic gloss placed on the facts by counsel. The judge here was never given that opportunity and we cannot resolve the issue. In the light of that, and with the agreement of both Mr. King and Mr. Schapel, who appears for the Crown in this Court, we intend to adjourn this application and remit the matter back to the trial judge for him to consider what was the factual basis for the sentence he imposed in the light of the dispute as to a substantial fact - which is of course the degree of participation by the applicant and which has a bearing on his culpability in the commission of the offence to which he pleaded guilty.

12. We are not suggesting that there can be any alteration in the actual sentence passed. It will be a matter for the trial judge to take whatever course he thinks fit in resolving this unfortunate matter which, had he been properly advised, would never have arisen.

13. We will therefore adjourn this appeal to a date to be fixed and remit the matter back to the trial judge for his consideration.

Representation:

Alexander King. Esq. (D.L.A.) for Applicant

A.E. Schapel, Esq. for Crown/Respondent

CACC000085/1990

Sentence:

Manslaughter: death as the result of fight where more than one attacker: public place: suggested level of sentence: A.G. v. Chuk Chi Hoi [1988] 1 HKLR 341 considered.

IN THE COURT OF APPEAL

1990, No. 85
(Criminal)

BETWEEN

THE QUEEN

AND

KAN WAH CHEUNG

----------

Coram: Silke, V.-P., Power & Penlington, JJ.A.

Date of Hearing: 4 December 1990

Date of Judgment: 4 January 1990

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the Court.

2. This is the resumption of an application for leave to appeal against sentence which was adjourned on 9th August 1990 for reasons set out in the judgment of the Court delivered on that day.

3. Briefly: it was necessary because of a dispute as to one of the collateral facts - whether or not the applicant himself stomped upon a dust bin lid which had been placed over the head of the deceased - to have the matter sent back to Bewley, J., the trial judge, to see if that factual dispute could be resolved.

4. When the matter came up again before the judge on 8th November 1990 Mr. Schapel for the Crown was unable to call the witness who had stated herself to have seen that action. No further evidence was adduced and the judge ruled that, as it was not admitted, it had not been proved.

5. He had passed his original sentence of 4 years for manslaughter, with 1 year concurrent for an assault occasioning bodily harm, on the basis of what, on the face of them, were the admitted facts. Those admitted facts were, in mitigation, resiled from, as to the stomping incident, by Mr. King who appeared for the applicant throughout. The sentence imposed took into consideration the admitted facts including that incident.

6. A great deal of the argument at this hearing centered round the issue of the burden of proof and upon whom did the onus lie to call evidence when there is a dispute of this nature. We are not prepared, without hearing full argument, to come to any decided opinion. It may be that if it is an essential ingredient of the Crown's case then the onus lies upon the Crown on the normal criminal burden to prove that fact. Contrary, if it is a mere collateral fact, then it may be for the person disputing it to adduce evidence in respect of it.

7. It was accepted at trial that the applicant and others had beaten the deceased with light tree branches, had kicked him and had punched him. As a result of this beating, leaving aside any dust bin lid, the deceased had suffered laceration of the lungs, multiple bruises and abrasions on his chest, arms and legs together with three fractured ribs. It was the injuries to the chest which caused his death. It was a serious assault.

8. The attack on the deceased had occurred because his group, who were on the road outside Block 28 of Kwai Chung Estate, were making an amount of noise. A little after midnight two beer bottles were thrown at them and people shouted threats from Room 303 in that block. There was an exchange of words and then the people from Room 303 came down to the road and attacked the deceased and his group.

9. We have been referred to Attorney General v. Chuk Chi Hoi [1988] 1 HKLR 341 in which, on an Application for Review, the Court of Appeal considered that a sentence of 3 years was appropriate in a matter where the trial judge had imposed concurrent sentences of 6 months for manslaughter and l month for common assault.

10. The sentence of 3 years may have reflected the fact that even that was a very substantial increase on the sentence passed by the trial judge.

11. There had been a fight following a verbal altercation. Two men broke free of the fight and fled. There was then a succession of fights until reinforcements joined the respondent. The two fleeing men were attacked, subdued and the respondent and his group continued to kick and punch the deceased: in particular they stamped upon his head. He died from a double fracture of the skull.

12. The respondent, who was aged 20 with previous convictions including one for wounding, at trial had attempted to plead guilty to manslaughter but, on this plea being unacceptable to the Crown, was tried for murder but convicted by the jury of manslaughter.

13. The Court there was, as are we, aware of the dictum in The Queen v. Leung Hang Sang and another, Criminal Appeal No. 176 of 1986 (unreported) which indicated that:

"Some sentences passed by Hong Kong Courts of (sic) manslaughter even where no weapon has been used, have been lenient in the extreme."

14. We note that the applicant here pleaded guilty to manslaughter, which plea was accepted, had a clear record, was aged 21 and had made a full confession immediately upon arrest.

15. The circumstances of the crime of manslaughter vary from being close to murder down to a form of common assault. The sentences imposed vary with. those circumstances.

16. It may well be that the time has come when disputes which degenerate into fights, with or without the protagonists being armed, and in a public place - or more seriously in the close confines of a housing estate - from which a death results, should attract, upon conviction for manslaughter, a sentence of at least 5 years' imprisonment after trial. Such sentence could be increased depending upon the degree of violence, the nature of the weapons used, the deliberate nature of the attack and the number of the attackers. Any person who attaches himself to such an attack, whether or not he himself inflicts blows, must consider himself at risk of a sentence of that quantum. It is a lamentable fact that a great many of these street fights concern youths or young persons. While section 109A of the Criminal Procedure Ordinance should be fully borne in mind by sentencing judges nevertheless youth, unless it be extreme youth, of itself may not be a strong mitigating factor.

17. We accept that substantial mitigation existed here. It may be that the trial judge, having in mind the lid stomping incident, did not give that mitigation its full effect in the sentencing process. Further we think it would be wrong to visit this particular applicant with the suggested level of sentences indicated in this judgment, which offences of this nature should attract in the future.

18. In these circumstances, and with some reluctance, we will give leave, treat the hearing of the application as the hearing of the appeal and allow the appeal to the extent that the sentence of 4 years' imprisonment for manslaughter is reduced to one of 3 years.

(William Silke)
Vice President

(N.P. Power)
Justice of Appeal

(R.G. Penlington)
Justice of Appeal

Representation:

Alexander King, Esq. (D.L.A.) for Applicant

A. E. Schapel, Esq. for Crown/Respondent

THE QUEEN v. KAN WAH CHEUNG

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