1994, No.417



Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 6 March 1998

Date of Judgment: 6 March 1998




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:

“It is clear from the summing-up that there was ample evidence to support a conviction for murder. The most telling evidence camefrom the first prosecution witness who was another inmate of the detention centre. He said that he saw the defendant hurriedly gointo hut 1, search under the bed, fetch something and tuck it inside his body. He said that he thereafter watched the defendant andsaw him go out of hut 1, approach the deceased and tap him on his shoulder. He said that he heard him say, “Hey, you told me to havea fight this afternoon one and one.” He said the deceased turned his body half-way, the defendant then stepped back and then dashedforward and gave one blow to the deceased’s stomach. He said that the deceased then walked away holding his stomach and approachedhim and said, “Cannot make it any more. He had the knife.”.

Evidence as to the incident came also from the second prosecution witness, who said that he saw the deceased and the applicant inclose proximity and that he thought from what he saw that the applicant was about to strike a blow, and from the eighth prosecutionwitness said that he was unable to see who it was but he saw the movement of the person who struck the blow who was standing andwith one hand was thrusting towards the deceased. He said that he saw that person stretch his arm forward to strike. It was the defenceas indicated by the judge in his summing-up that the deceased had threatened to beat the applicant and the applicant had by chancea knife in his pocket at that time, that he then produced a knife, holding it in his hand, stretched out his arm pointing and thrustingthe knife at the deceased to warn him not to come near. The applicant said both in his statement and in his evidence that the deceasedpounced and leaned forward and he was then stabbed. He indicated that he was not aware of the stabbing until he saw there was bloodon the knife.

The trial judge carefully directed as to self defence and as to the alternative verdict, if no intent to cause death or grievous bodilyharm was established, of manslaughter. The jury can have been left in no doubt as to the way in which they should approach the evidence.There is, we are satisfied, nothing which would allow this court to interfere in the jury’s verdict and the application for leaveto appeal against conviction must therefore be refused.”

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.

(N.P. Power) (Simon Mayo) (M. Stuart-Moore)
Vice-President Justice of Appeal Justice of Appeal


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.