Case Detail

CACC000220A/1993

IN THE COURT OF APPEAL

1993, No. 220
(Criminal)

___________

BETWEEN
	THE QUEEN	Respondent

	AND

	SO TAI KI	Applicant

___________

Coram: Hon. Macdougall, V-P, Penlington and Nazareth, JJ.A.

Date of hearing: 2 September 1994

Date of judgment: 2 September 1994

Date of handing down reasons: 16 September 1994

_____________

R E A S O N S

_____________

Nazareth, J.A.:

1. In our judgment given on 1st March 1994, for the reasons we gave, we refused the applicant's application for leave to appeal against conviction. On that occasion he appeared in person.

2. On 2nd September 1994 we heard his application for leave to appeal against sentence. He was on this latter occasion represented by Mr Alexander King. Having heard counsel, we also refused his application for leave to appeal against sentence, stating that we would give our reasons later. This we now do.

3. Returning to the facts, on this occasion with specific reference to the sentence of 8 years for manslaughter, we repeat that two groups of people were involved in the attack in which the deceased was fatally injured. Some weeks prior to it remarks about a facial disfigurement of the applicant who was with his group in a restaurant were made by members of the deceased's group. On the night of the attack both groups were in the karaoke lounge. There is no suggestion that they went there for a fight, but there was an incident and some exchanges. When the deceased's group was leaving the karaoke lounge, one of their cars was attacked by the deceased's group with poles, rods or billiard cues. Two members of the deceased's group were wounded, but all appeared to have retreated from the car park. The deceased then returned to the car park armed with a steering lock. He was disarmed and attacked, primarily by two persons of whom one was the applicant.

4. In sentencing the applicant the judge said this:

"You have been found guilty of manslaughter and of two charges of wounding with intent to do grievous bodily harm. The jury have told me that the basis upon which they returned a verdict of manslaughter was that you were provoked by the attack upon you by the deceased and, of course, that occurred, according to the evidence, after the assaults of the deceased's friends IP Sau-ki and LEE Fook-nin. The jury have, very properly in my view, determined that initially, at least, you and your group were the aggressors.
This sort of group thuggery, this predisposition to violence and heedless disregard for the well being and very lives of your victims is sadly not unknown in Hong Kong and, where it is found, must meet severe punishment. Deaths so often result from this sort of violence, tragic, unnecessary deaths of young men in their prime. Senseless and pointless violence is a threat to the maintenance of law and order. Thugs who go looking for trouble in semi-organised groups, who chase each other round our streets carrying weapons and engaging in open warfare are a threat to the community's well being.

I take into account all that has been said on your behalf. I cannot give you credit for a clear record, although I note you have no previous convictions for violent offences. I note what has been said in relation to looking at this matter as a plea of guilty.
You had already created the situation in the car park which prevailed before the deceased attacked you. The deceased's attack upon you would have been after he had seen his two friends bleeding from the head and being chased from the car park. The finding of provocation, in the circumstances, was a generous one; but that is the basis on which I must sentence you.

For the offence of manslaughter, you will go to prison for eight years."

The applicant's grounds of appeal are that:

"The sentence of 8 years imprisonment ... was manifestly excessive ... in particular the Learned Trial Judge:

(a) adopted too high a starting point in relation to the said sentence.
(b) failed to impose a sentence which accurately reflected, the culpability of the Applicant.
(c) placed insufficient weight upon the mitigating factors present in the case."

5. In pursuing the first two grounds Mr King relied primarily upon three appeals which arose out of the same incident in which a large dustbin lid was placed over the head and chest of the victim, and then jumped upon causing death when his chest was stove in. The main offender, Ko Kam-hung [1991]2 HKLR 433 deliberately and single-mindedly picked up a large dustbin lid, placed it over the victim's head and chest and, having encouraged others to do the same. jumped up and down on it. He was sentenced to 8 years. At p.436G Sir Derek Cons V-P, delivering the judgment of the court on 10th July 1991, expressed the view that eight years "would be an appropriate base for considering the case of anyone, whether himself armed or not, who takes part in a gang attack with others, some or all of whom carry weapons such as wooden poles or water pipes, and from which death ensues."

6. Months earlier, on 4th January 1991, a different division of the Court allowed the appeal of another of the assailants in the incident, Kan Wah-cheung [1991]1 HKLR 595. and reduced his sentence of 4 years imprisonment for manslaughter to one of 3 years. Mr King pointed to the following passage in the judgment of the court given by Silke V-P at p.597H:

"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."

7. We pause to observe that there was substantial mitigation in Kan Wah- cheung'scase; moreover the Court thought it wrong to visit him with the suggested level of sentence which they indicated such offences should attract in the future.

8. On 3rd December 1992 yet another division of this Court allowed the appeal of a third assailant, Wong Wing-yau, Crim.App.No.245 of 1992, unreported, setting aside the sentence of 8 years imposed upon him and substituting a sentence of 4 years and 9 months. However, it is apparent that there the sentence was based upon responsibility for the action of the co-accused which the trial judge stated Wong Wing-yau accepted. In the absence of evidence of a preconceived plan and its view that what happened was more or less a spontaneous eruption of violence, the Court considered that Wong Wing-yau could not be held responsible for anything more than some punching and kicking, and not the injuries caused by jumping upon the dustbin lid. It was because of those errors of the judge, and also powerful mitigating circumstances including Wong's age of 17 years and his plea of guilty, that the Court made its substantial reduction of the sentence.

9. In Ko Kam-hung at p.4351 Sir Derek Cons V-P pointed out that guideline tariffs obviously cannot be suggested with regard to manslaughter "by reason of the infinite variety of the ways in which it may be committed, making it proper perhaps to pass in some circumstances merely a probation order and yet in others, up to ten years' imprisonment". Likewise, Silke V-P in Kan Wah-cheung commented at p.597G that "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." We would entirely agree with those comments.

10. In the particular circumstances before us, the applicant himself took a leading role in attacking the deceased, being one of the two who did so. He must be regarded as fortunate in being convicted only of manslaughter.

11. When the judge inquired of the foreman of the jury upon what basis the verdict of manslaughter was reached he received this reply:

"My Lord, the bases are as follows. Based on the evidence given in court, we believe that the defendant did involve in the fighting happened in the car park. And secondly, based on the evidence given in court, we believe that quarrels did happen inside the karaoke and the car park, and which resulted in fighting which happened in the car park. And the fighting, we believe that the defendant did take part in it. And also the fighting resulted in causing serious bodily harm to the deceased which resulted in the death. However, we also believe that the deceased did come back to the car park holding something in his hand, which we believe is the steering-wheel, which led to our belief that the killing is caused by provocation"

What that provocation was clearly concerned the judge, and was plainly of a nebulous nature.

12. In the circumstances here, patently different from those in the dustbin lid appeals, we do not find the sentences in those appeals and the associated observations viewed in isolation, necessarily apposite in the present appeal. The judge clearly gave careful consideration to the matter. We agree with his observations and comments. While the sentence imposed is undoubtedly severe, the case is a serious one and we do not think the sentence was manifestly excessive nor was it suggested that there was any error of principle. We find no merit in the grounds of appeal. For those reasons the application for leave to appeal against sentence was refused.

(Neil Macdougall)	(R.G. Penlington)	(G.P. Nazareth)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Mr D.G. Saw (Crown Prosecutor) for Respondent

Mr Alexander S. King (M/s C.K. Tse & Co) for Applicant

CACC000220/1993

IN THE COURT OF APPEAL

1993, No 220
(Criminal)

___________

BETWEEN
	THE QUEEN	Respondent

	AND

	SO TAI KI	Applicant

___________

Coram: Hon. Macdougall, V-P, Penlington and Nazareth, JJ.A.

Date of hearing: 1 March 1994

Date of judgment: 1 March 1994

_______________

J U D G M E N T

_______________

Nazareth, J.A.:

1. On 21st April 1993 the applicant, So Tai-ki, was convicted by Duffy J. sitting with a jury of three offences: the first of manslaughter where the charge was of murdering one Li Wang-yuen, and the second and the third of wounding two other persons with intent. He was sentenced to imprisonment for concurrent terms of 8 years, 4 years and 4 years respectively in respect of those offences. He now seeks leave to appeal against conviction.

2. The charges arose out of a violent incident on 5th March 1992, sometime after 3 a.m. in the morning in a car park adjoining the Gerlin Karaoke Lounge in Tai Po in the New Territories. The deceased Li Wang-yuen received serious injuries from which he died and two members of his group also received injuries which were the subject of the second and third charges.

3. The incident was preceded by a sort of exchange in the karaoke lounge between the deceased and the applicants. When the deceased and his party left and were leaving the car park they were attacked by a large group of men armed with what appeared to be rods, poles or billiard cues. There was evidence from the members of the deceased's group that the applicant was one of two men who attacked the deceased. The applicant in his written notice of application for leave, which was prepared by himself personally, listed three grounds of appeal. He has before us this morning added others. His first written ground of appeal was this:

"(1) During the trial, the prosecution abruptly called an additional witness without informing the defence in advance. They simply ignored the defence counsel's need of time to study the information about that additional witness. Thus, the defendant had been treated unfairly."

4. There is nothing before us showing that defence counsel was denied time to deal with any evidence of this sort, or more to the point, that the defence was prejudiced or indeed that counsel for the applicant complained.

5. His second written ground is that:

"(2) As regards the course of events of this case, there were a lot of doubts in the evidence of the prosecution witnesses, which were self-contradictory and different from the statements they gave at the police station earlier. In delivering judgment, the trial judge did not justly bring up this point. When he gave directions to the jury, he did not tell them that in criminal proceedings, the benefit of doubts went to the defendant. Thus, the defendants had been convicted unfairly."

6. It is not entirely clear what doubts or self-contradictions the applicant has in mind other than those to which I shall come to and to which he specifically refers.

7. As to the contradictions or differences between the prosecution witnesses' statements at the police station and the evidence they gave at the trial, the judge dealt with those matters at pp.46-50 of the transcript. He referred to them individually, recalling that counsel for the applicant raised them and having identified them he drew the attention of the jury to the necessity of exercising care. We are satisfied therefore there is nothing in this specific complaint of the applicant.

8. As to the complaint that the trial judge did not tell the jury that they ought to give the benefit of doubt to the applicant, the judge specifically directed the jury on this matter in the manner recorded at p.3 of the transcript. Having pointed out that it was for the prosecution to establish guilt beyond reasonable doubt, he went on to say that:

"If, having considered all of the evidence, you are left with a reasonable doubt about the defendant's guilt of the charges, or one or two of them, then you must give him the benefit of the doubt and acquit him."

We therefore find no substance in his second written ground.

9. The applicant's third written ground of appeal is that:

"(3) Throughout the trial, the prosecution solely relied on the evidence of the witnesses, most of whom being hostile witnesses. However, the judge did not bring up and explain this point to the jury. Convicting me in such circumstances was really unfair to me."

10. It is necessary, first of all, to point out that not all the witnesses were hostile or who could be said in a sense to belong to the deceased's group. There was an independent witness, a woman who viewed the incident from one of the upper floors of an adjoining building, and whose evidence tended to support that of the other prosecution witnesses who did belong to the deceased's group. That said, it is none the less quite plain from the summing-up that the judge did not fail to bring up and explain the point to the jury. On the contrary he specifically warned them of the dangers attached to such evidence. He pointed out at pp.44 and 45 that these were the deceased's friends and the jury had to be careful about their account of the events in the car park. He also went on to specifically point out:

"... that only the deceased's friends have said that the defendant was one of two men who attacked the deceased. You will probably think it necessary to be careful before accepting their evidence on that matter."

11. No more needs be said about that third written ground. There is plainly no substance in it.

12. We turn then to the additional grounds which the applicant raised before us this morning by means of a document written in English. He refers first of all to certain aspects of he prosecution evidence which might have tended to weaken it: That he had his back to one of the prosecution witnesses who gave evidence, that the colour of his jacket might have been different, that the lights were dim, that the incident occurred at very late hours of the night and that there had been an incident much earlier which might have prompted the prosecution witnesses to take revenge upon him.

13. We are satisfied that in his summing-up the judge drew attention to dangers of this sort in accepting the prosecution witnesses' evidence. For instance, as recorded at p.38 of the transcript, he referred to the events happening at bewildering speed, thus enabling each witness to catch only a part of the action. He asked the jury to keep in mind that sort of matter when assessing the reliability and credibility of the witnesses.

14. Next, this morning the applicant raised aspects and implications of forensic evidence as to the absence on his clothing of blood stains or fibres that had come from the deceased. We are satisfied, looking at the summing-up as a whole, that the jury could not have been unaware of these matters. Furthermore, the absence of such blood stains and fibres on the applicant's clothing, and likewise the presence of such blood stains and fibres on the second defendant's clothing, do not preclude the guilt of the applicant being established by the other evidence.

15. Finally, the applicant complains of the fact that the jury in the initial stages, at any rate, found it difficult to come to a verdict on the charge of murder, and were divided by a proportion of 4:3. It is quite true that was the initial position and that the judge, as he was entitled to do, required the jury to give further consideration to the matter. This the jury did and they came to the unanimous verdict of guilty of manslaughter. That they were entitled to do. We find nothing wrong in that which would invalidate the verdict.

16. For the reasons we have endeavoured to give we find no merit in the applicant's grounds, nor any other reason to interfere with the convictions. The application for leave is refused.

(Neil Macdougall)	(R.G. Penlington)	(G.P. Nazareth)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Applicant in person

Mr D.G. Saw for the Crown

SO TAI-KI v. R.

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