HKSAR v. LAM CHUN FAI

                             CACC 486/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 486 OF 2005

(ON APPEAL FROM HCCC NO. 37 OF 2005)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. This is an application for leave to appeal against a sentence of nine years’ imprisonment imposed on 11 November 2005 by Beeson J in respect of the applicant’s conviction after trial of the offence of manslaughter.

2. The indictment charged murder, for the allegation was that on 11 September 2004 the applicant murdered Choi Ma-lai.  The applicant offered to plead guilty to manslaughter but that was an offer that was rejected by the prosecution.  Whenthe matter proceeded to trial, the applicant was acquitted of the offence of murder but convicted of manslaughter.

The evidence

3. At the date of the killing, the applicant lived with Madam Choi in a flat in Cheung On Estate, Tsing Yi, with their two children, a boy aged six years and a girl aged five.  The applicant was then aged 36 years, a person with no previous convictions, and was employed as a driver by an engineering company.  He had met Madam Choi in 1996 when she worked in a nightclub and soon started to live with her at her place in Tuen Mun.  In 1998, they married, and at some stage moved to the premises in Tsing Yi; but the marital relationship was unsuccessful.  In due course, namely, in 2004, they divorced, yet they continued to live in the same premises.  It was said that the divorce was an arrangement whereby the wife could claim Comprehensive Social Security Assistance.  It would seem that despite this ulterior motive, Madam Choi viewed the divorce as real in fact as well as in law, for she led her own life, although it is difficult from the evidence before us to be certain of how of the applicant viewed matters.  It seems clear enough, however, that for some time prior to the night of the killing, Madam Choi engaged upon an intimate relationship with a much younger man referred to in the papers as Ah Ming.  The applicant was aware of the relationship although it is clear that he was much irked by it.  

4. As is so frequently the position in cases of this kind, by reason of the fact that one of the two parties involved in the altercation leading to death has not testified, it is difficult to glean with any degree of precision the circumstances in which the fatal attack took place.  It would seem that the applicant and Madam Choi had been out together that evening but that Madam Choi indicated that she would be staying out and the applicant returned home.  He later telephoned her asking her to return to the flat saying that he was having some difficulty in managing one of the children.  She did so – according to the applicant’s stepdaughter who was with Madam Choi at the time, at about 11:45 p.m. – and after she had left for home, the boyfriend, Lai Yun-ming (“Ah Ming”) made a telephone call to Madam Choi who, by then, had reached home.  At home, a dispute arose between the applicant and Madam Choi; and she wanted to leave, but he stopped her from doing so.  The evidence of the six-year-old boy, given within 24 hours of his mother's death, and which evidence seems to have been treated as reliable, was that he was woken by an argument between his mother and father, that the applicant would not let Madam Choi leave the flat, that she sat down, whereupon he struck her and she tried to go out again and he bolted the door and she sat on the sofa and he pushed her, and the sofa fell over backwards and when she then fell to the floor he grabbed her by the neck, saying “I'll strangle you to death”, whereafter she became motionless and he called her to wake up.  He then carried her to a bed and telephoned his elder brother. 

5. The elder brother testified that he received the call at about 1 a.m., when the applicant told him that Madam Choi had fainted as a result of the applicant “clutching her”.  The brother suggested that the applicant report the matter to the police, but the applicant asked him to do so and the conversation ended.  The brother duly reported the matter.  As a result of this report an ambulance was sent to the premises and an ambulanceman arrived at 1:33 a.m., at the time that the applicant was taking the children from the flat, intending to secure them at the residence of their maternal grandmother.  The ambulanceman asked the applicant if a report had been made that a person had collapsed at that address, but the applicant denied it.  So the ambulanceman went downstairs to check the address and 10 minutes later was told to return immediately to the same address.  By the time he did so the police were there.  The deceased was found collapsed on a bunk, not breathing and with no pulse. Her neck was swollen, her face green and there was blood at the corner of her mouth.  She was evidently already dead.  It is common ground that after the telephone call by the applicant to his brother, he made no other calls, no calls to obtain medical assistance, nor did he himself attempt resuscitation.  This conduct on the applicant's part – most particularly his turning away of the ambulanceman – was a factor that the judge treated as an aggravating one for the purpose of sentence.  In addition, a number of telephone calls were made to the applicant’s residence at about this time – before, that is, the police arrived – one by the step-daughter and another by Ah Ming’s friend, but the applicant deflected those inquiries about Madam Choi’s whereabouts.

6. When the applicant was interviewed by the police shortly after 2 a.m. that morning, he said that there had been a dispute between Madam Choi and himself because she refused to give him custody of the children and that there was a quarrel and that she had become crazy and wanted to strike him and that he became very angry and grabbed her neck for quite a long time but that he did not know if she was dead.  Then he did not want his son or daughter to remain at home and intended to take them to their grandmother.  He was interviewed again later that day, at some considerable length.  The story he then gave was not quite the same, in that he said that when he took hold of her neck he didn't want to strangle her; he merely wanted to stop her making a noise, because the children were asleep.  In this interview, he returned to the theme of the argument, that of custody of the children and that in the course of the argument, because he wanted her to keep her voice down, he automatically grabbed her neck.  When he released his hands, her heart seemed still to be beating and he carried her to a bed and covered her with the quilt.  He thought she had possibly fainted, and she seemed still to be breathing.  He then made the call to his brother.  He thought that if his wife was dead, the children would find out and would be scared so he wanted to get them out.  He was asked by the police why it was that he did not request the ambulance officer, upon the first visit, to check Madam Choi's condition and he said that: “I merely wanted to carry the son and daughter to go over.  But I fear that if I tell that to them, those people from the ambulance would catch me.  But, well, my son and my daughter would know that I again quarrelled with mammy.  I was afraid that my daughter my son would know about the quarrel between me and her.  So I said that no one had called the police.”  In this interview, he also referred to Ah Ming, saying that shortly before the fatal argument the daughter had told him, in Madam Choi's presence, that Ah Ming had been to the house, again; a suggestion that Madam Choi’s lover had been to the family flat when the applicant had been out.

7. The evidence of the pathologist was relatively straightforward.  The injuries which he discerned were consistent with those caused by manual strangulation.  But there were few asphyxial signs, suggesting that a vigorous or long struggle was unlikely.  She probably died, he said, of pressure on the neck due to manual strangulation within a fairly short period of time.  There was a fracture of a thyroid cartilage indicating that considerable pressure had been placed on that area.  There was no alcohol in the body, the significance of which evidence was that in his testimony, the applicant suggested that Madam Choi had consumed some alcohol.

8. According to the applicant’s evidence-in-chief, the argument with Madam Choi had started when the daughter made the report about Ah Ming.  He repeated the suggestion of an argument as to custody but it is evident both from the judge's remarks in the course of her summing-up as well as in her sentencing comments that she very much doubted that this, rather than the grievance about Ah Ming, was the real cause of the dispute.  He said that whilst his wife was sitting on the sofa talking about the custody issue, there was a telephone call which he believed to be from Ah Ming.  He answered the call and abused the caller.  At this point, according to this account, Madam Choi became angry and an argument developed.  She admitted being involved with Ah Ming and said that he was “much better than me in all aspects and used foul language”. Then, according to this evidence, Madam Choi taunted him with having to go for public assistance and made a threat that Ah Ming would come to the flat with somebody and that he, the applicant, would be doomed.  He then described an incident whereby he used his left hand to cover Madam Choi's mouth and how the hand then moved to clutch the neck.  This, according to the summing-up, was a fresh version of how the neck came to be grabbed.  He went on to say that when his wife admitted the affair, he was very angry and when she said that Ah Ming was coming up to the flat with someone, he was very angry again and wished to stop his wife speaking.

9. Apart from the provocation arising on the evening itself, the applicant relied also upon suggested cumulative provocation.  He had once found his wife in bed with another man but after a separation the marital relationship resumed.  He then fell into grave financial difficulties because of debts incurred by the wife.  In July 2004 he saw Madam Choi sitting with Ah Ming very close together and there was a confrontation during which he slapped her.  On a subsequent occasion he was told by the children that during a trip to the Mainland which the wife took with them and Ah Ming, Madam Choi slept with Ah Ming.  He was very angry about that.  After they had returned from the Mainland there was an occasion when he discovered Ah Ming in his house drying his hair after a shower.  Then, according to the testimony, there was yet a further occasion during which Ah Ming had slapped his daughter and he in turn had assaulted Ah Ming.

The judge’s approach

10. Before sentencing, the judge called for a probation officer's report, a copy of which we have.  It is a detailed report and it paints a picture of a man out of his depth in the ill-advised relationship which he struck with Madam Choi, finding it difficult to come to terms with her relationship, of which he must have known for some time, with another man.  It paints a picture of a person who was hard-working, honest, and responsible towards his family albeit not very competent in parenting skills.

11. In her sentencing remarks, the judge carefully rehearsed the salient history, noting the incident with the ambulanceman and the fact that very strong pressure had been used on the neck.  “It appears,” she said “that the jury accepted the defendant’s claim that he was provoked by the behaviour of the deceased, by the events of that particular date and the cumulative events of the days before and that was the reason he launched the attack.”  She concluded – and we think quite rightly – that “although in evidence the defendant claimed he did not know whether or not the deceased was having an intimate relationship with the young man [until her revelation on the night in question] it is quite clear from what he said that he knew more than that.”  She took into account the fact that he had offered to plead guilty to manslaughter at an early stage and she clearly took into account the factors in his favour highlighted in the probation report.  All this she took into account, but she then said this:

“I note, however, that the defendant appears to have engineered this argument by telephoning his wife to return home and thereafter refusing to let her leave.  As I said, although he claims the argument was ostensibly about the custody of children, it appears that the argument was really about the young man who was accused of being the woman's lover.”

“This is a serious offence and sadly one that is all too common, where a marital dispute is dealt with by way of violence.  Whatever sympathy one has for the defendant and the children of the relationship, it is also important to note that the deceased died unnecessarily as a result of the defendant's action.  He compounded the offence by failing to seek medical help at a time when he was able to do so.  He also answered telephone calls in which he lied about whether deceased was after inquiries were made.”

“I take into account the Defendant’s clear record and I notice his remorse.  I accept that he wished to plea to manslaughter at an early stage.  I sentence him to 9 years imprisonment.”

The appeal

12. Mr Coghlan’s argument that the sentence imposed by the learned judge was manifestly excessive rests upon four strands.  The first is that the judge has over-emphasised the applicant's conduct in turning away the ambulanceman, for, he suggests, there seems to have been some assumption made by the judge that had that not occurred, Madam Choi might have been saved whereas in fact, he contends, the ambulance people attended to Madam Choi not long after and the suggestion of earlier resuscitation is unrealistic.  Secondly, he suggests that inadequate credit has been given to the applicant for his offer of a plea of guilty to manslaughter.  Thirdly, he says that the judge was incorrect in her assessment that the argument was engineered by the applicant.  Finally it is submitted by him that the sentence is out of line with the type of sentences revealed by the authorities for manslaughter in a domestic context.  To this end, he has drawn to our attention a significant number of cases although he recognises that manslaughter offences are peculiarly difficult to compare because their facts and intricacies vary so enormously.

Analysis

13. There is perhaps no instance more illustrative of the fact that sentencing is an art than in the category of manslaughter cases.  Any comparison with sentences passed in other cases within this category requires very careful study indeed of the factors at play in the cases used for comparison.  Furthermore, where a case has been contested, the sentencing judge will necessarily be in a much better position than an appellate tribunal to acquit the true fell of the case.  

14. The cases to which our attention has been drawn cover a wide range of circumstances.  So, for example, in Wong Kwai chuen, 1994 Crim App No 605, 24 May 1995, unreported, the applicant pleaded guilty to manslaughter on the grounds of provocation and in response to seeing the deceased beating his children he lost control and took a knife from the kitchen and in a frenzied attack stabbed her and she died.  He waited for the police to arrive.  But when we see that the Court of Appeal there substituted a sentence of four years’ imprisonment, on its face a low sentence for the taking of a life, it becomes instantly understandable when in the detail we see that the applicant was suffering from a stress disorder and had done so since his teens because of severe treatment that he had himself received as a child from his mother.  To see his own child suffer as a result of a beating struck at the core of a special vulnerability and this it was the made the case very unusual indeed.  Quite different, and warranting a significantly higher sentence was Szeto Ken Crim App No 87 of 1996, 6 June 1997, unreported, where a sentence of 10 years’ imprisonment was passed after a plea of guilty, for a killing in a domestic setting.  In that case there was very little immediate provocation.  The applicant had fled to the Philippines to avoid loan sharks leaving his wife behind.  She petitioned for divorce and he, believing that she was seen another man, returned and he traced her and found her in the company of the other man.  They had dinner together and he went to her flat where he begged her to have him back but she refused although she agreed that in exchange for leaving her alone he could spend one last night with her.  Sexual intercourse took place.  He asked if she was having an affair and a quarrel ensued in the course of which he stabbed his wife repeatedly and killed.  He then stabbed himself and dialled 999.  The Court of Appeal said that it was very difficult to see in that case what constituted the provocation.  The trial judge said that the deceased had done nothing deliberately to provoke the applicant whereas the applicant, on the other hand, had let her down time and again.

15. So, where stands this case?  One starts by noting that the judge sentenced on the footing that not only was the applicant provoked on the night in question but also by cumulative events preceding that night.  She seems to have accepted in his favour that he was taunted by her as to his failings and shortcomings as a husband.  Presumably, she accepted that he had been told that Ah Ming had visited the premises that day.  She noted his stable work record and his previous good character.  One notes as well that immediately after the attack he telephoned his brother and the authorities were called.  All of this would seem to make for a sentence significantly lower than that which she imposed.  That said, however, some of his evidence was obviously disingenuous and treated as such by the judge; in particular the suggestion by him that the strangulation was a by-product of trying to keep her quiet and placing his hand on her mouth.  The evidence showed quite clearly that he applied considerable force to the thyroid cartilage.  In so far as complaint is made by Mr Coghlan of the conclusion that the applicant seemed to engineer the argument, we think that there was some substance to what the judge said, in that it was a remark made not merely in the context of the fact that he called her back to the flat, but in the context of the fact that once the argument developed she wanted to leave but he deliberately prevented her from doing so by bolting the door.  It was not disputed that he did so, and it suggests that he was intent upon seeing the argument through.  This fact distinguishes this case from those in which an argument flares suddenly, and where were both parties are – or at least the victim of the fatal attack is – intent upon the argument.  In so far as it is said that too much emphasis has been placed upon his failure to seek medical help, the point, in our judgment, is not so much whether she could then have been saved but more a question of his attitude.  True it is that he had called his brother.  But he did not call the police himself nor did he seek assistance and it was his brother who suggested calling the police.  Quite what his motive was in turning away the ambulanceman it is not entirely possible to say, save that one notes his explanation that he feared that he would be caught.  His own statements to the police said that he did not know at the time the ambulanceman arrived whether or not his wife was dead.  In this regard we also note that telephone calls were made in which he lied about where the deceased was.  These are unattractive features of the applicant’s conduct and must take the sentence imposed above the range of many of the domestic manslaughter cases to which we have been referred. 

16. Cases of this kind are very difficult cases.  More often than not, the culpable party is a person entirely devoid of criminal background, and more often than not the circumstances in which the killings take place are complex and require an understanding of deeply personal emotional stresses that develop over time.  There is, on the one hand, an inevitable degree of sympathy for someone like this applicant who found himself out of depth in an irretrievable marital situation.  It is a sympathy which the experienced sentencing judge expressed in this case.  On the other hand, she was entirely correct to state that this type of domestic violence is all too common and to record the fact, of which it is perhaps with the passage of time in such cases too easy to allow to slip into the background, that a life has been taken and that children have been deprived of their mother.  Trite though the appellate test is, it bears recalling that we are enjoined to interfere with a sentence in such a case only where we conclude that the sentence imposed is manifestly excessive.  We are not prepared in this case to say so.  This judge had the benefit, as we have not, of acquiring in the course of the trial a true feel for the circumstances leading up to the attack and for the nature of the attack itself.  That is not to say that that advantage is of itself conclusive, for if it were there would never be a basis for a successful appeal after a contested trial.  But in a case of this kind, it is a fact to which weight must be given.  Whilst one has sympathy for the developing situation with which this applicant was faced, he had had some time to come to terms with his domestic circumstances, stressful though no doubt they were.  This was no sudden revelation of an extramarital relationship.  The argument was one which the deceased sought to avoid by trying to leave the premises; and the applicant deliberately ensured that she did not do so.  The attack upon her throat was direct and forceful.  Assistance, when it came, was turned away.  In the event, a woman has died and children have been deprived of their mother.  In our judgment, whilst there is room for saying that the sentence was on the high side of the scale, it was not manifestly excessive.  Although we grant leave to appeal and treat the hearing of the application as the appeal, the appeal is dismissed.