IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A.
Date of Hearing: 6 March 1998
Date of Judgment: 6 March 1998
J U D G M E N T
Power, V.-P. (giving the judgment of the Court):
1. On 15th August 1994, the applicant was convicted of murder which was committed on 6th January 1994 and sentenced to imprisonmentfor life.
2. The Offences Against the Person Ordinance s.2 was amended on 30th June 1997 to provide that if it appeared to the court that an offender who was liable to a life sentence wasunder 18 at the time of the offence, the court had a discretion to impose a determinate sentence.
3. Although the age of this applicant was not positively established, it seems clear that he was under the age of 18 at the time ofthe offence. This court has held in R. v. Lam Ka-yiu that pursuant to Article 12 of the Bill of Rights Ordinance, the amended section has retrospective effect. We are now asked to assessand impose a determinate sentence.
4. The applicant had his appeal against conviction dismissed on 14th June 1995. He, at that time, also sought leave to appeal againstsentence but, the sentence being a mandatory one, the Court of Appeal held that the application for leave to appeal was incompetent.
5. The facts are set out in the judgment of the Court of Appeal as follows:
6. The jury clearly rejected the applicant’s version of events. It was the evidence of the prosecution witnesses that the applicanthad deliberately armed himself with a knife, had then challenged the deceased and had, immediately thereafter, the deceased havingrisen to his feet, plunged the knife into the chest of the deceased. We have no doubt that the jury accepted that evidence whichestablished that the killing thrust was a calculated one. What was the appropriate sentence in such circumstances? We are satisfiedthat, given the applicant’s age, it would be appropriate to impose a determinate sentence. We have taken into account all that hasbeen urged today by Mr. Poll and particularly the youth of the applicant and the unfortunate circumstances in which he found himselfhaving been detained for a very long period in the refugee camp. We bear in mind also, however, that the applicant deliberately armedhimself, created the confrontation and then, without more, fatally stabbed the deceased.
7. We are satisfied that, in all of the circumstances, the appropriate sentence is one of 29 years. The life sentence is quashed andit is replaced by one of that term.
Mr. A.A. Bruce, S.C., S.A.D.P.P. & Mr. Narash Daryanani, S.G.C. (D.P.P.) for the Respondent.
Mr. Michael Poll assigned by D.L.A. for the Applicant.