HKSAR v. LIMBU MACHINDRA

HCCC 167/2019

[2020] HKCFI 2795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 167 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: By a majority, the defendant has been found guilty of the murder of Limbu Prem Raj, his father, on 8 April 2018.

(Discussion re interpretation)

The defendant’s trial commenced on 15 September 2020 whereupon he entered a plea of not guilty to murder but guilty to unlawful and dangerous act manslaughter. The prosecution did not accept that guilty plea and the trial proceeded against the defendant for the offence of murder.

Facts of the Case

It was not in dispute that on 8 April 2018, the defendant killed his father by hitting him at least three times with a chopper, causing severe blood loss and eventually cardiac arrest. He was taken to hospital and resuscitated several times over the next five or six hours but the damage to his brain from lack of oxygen was irreparable and his heart finally failed him in the early hours of 9 April 2018.

The defendant, small of stature and slight of build, was 32 years old and divorced at the time of the offence but with a 12-year-old daughter in Nepal. He had gone to his father’s flat that day in order to have lunch with his uncle and aunt who had recently arrived in Hong Kong from Nepal. He had been drinking beer the previous evening with friends, and it was suggested that he had had no sleep that night. He told the police that he had arrived at the flat at approximately 11.30 am that day and had started to drink with his father whom he said was already slightly drunk.

It would appear that during the next three hours, they drank parts of both a bottle of whisky and one of brandy. Neither bottle had been full at the time he arrived but they were both empty when recovered by the police.

His friend, Limbu Jabar Bahadur, had joined them for a short time and had noticed that both men smelt of alcohol and he thought that they were both drunk but as he himself did not drink, he was not in a position to accurately assess the level of drunkenness of the defendant and his father. Indeed, the same can be said for all of the lay witnesses who ventured an opinion on the level of inebriation of the defendant and Limbu Prem Raj. None of them were in the habit of drinking and their comments were of little assistance, save to support the fact that the two men seemed to have been drinking at the relevant time.

Whilst his friend sat and chatted to his father and himself, the defendant cooked the meal they were to have. He used the chopper to do so which would become the weapon used to end the life of his father just three hours later. It was Exhibit P22 and can be seen at photograph P11/46. It was a large and heavy chopper. Sufficiently sharp to cut meat and vegetables and, as we know, sufficiently sharp to cause a cut to not only the scalp of the deceased but also to his skull and underlying brain.

The degree of force required to cause the wounds which resulted should have been within the muscular memory of the defendant at that time as he had so recently been using it. The other wound on the deceased’s head is less deep and no doubt caused with less force, but the wound to the thigh of the deceased was deep and long, indicative perhaps of just how sharp the chopper actually was. Again, something the defendant must have known, having used it to cut both meat and vegetables. Those three wounds were the source of a significant amount of blood loss over the next two hours between about 3 and 5 o’clock.

Earlier that day, at about 12.56, the defendant had gone out to pick up his aunt and uncle as this was their first visit to the flat. They overlapped with Limbu Jabar Bahadur only briefly as he left soon afterwards. They too noticed the defendant and his father had been drinking but did not have anything to drink themselves save for a very small amount of wine which the aunt drank.

The luncheon did not go very well. Father and son squabbled over whether the father would lend his son money and it erupted into a small tussle over a gold necklace. By this stage, the uncle was embarrassed by his family and ill at ease because this was the first occasion that his wife had met them. He told the two of them that they should be ashamed of themselves behaving in such a way, and they broke off their argument as a result, and the necklace was tossed to one side.

However, matters did not improve. They were the worse for drink and their table manners were a further cause of concern for the uncle. This was perhaps the last straw for the uncle as he decided to make an exit before matters got any worse.

They left at about 14.25p.m. but were sufficiently concerned matters might escalate, that they made enquiries of a shopkeeper as to the address of the property and how they could contact the police. Whilst doing so, the defendant was seen to run out of the building. It had been just a matter of a couple of minutes since they had left but in this time, serious harm had already been inflicted upon the father by the son.

According to the defendant, he had wanted to leave soon after his aunt and uncle. He felt that matters would escalate especially as his father was very drunk. He had, at some point, tried to water down his father’s drinks but had been castigated for it and he alleged that his father had hit him. As this had not been witnessed by the aunt and uncle, I presume that if it did in fact occur, it occurred after they left.

As best as I can ascertain, it was because of this escalation of behaviour that he had left the flat so soon after his aunt and uncle. But he had left so quickly that he had forgotten his jacket with his ID card and his own flat keys and therefore he had to return to retrieve it. When he did, he said his father met him at the door with the chopper in his hand. There was a tussle, there was some pulling and some pushing by both of them, and the father fell down, dropping the chopper in the process. It was retrieved by the defendant before his father could reclaim it, but the defendant says his right arm had been grasped by his father and his father would not let him go. As a result, he hit out at his father with the chopper in order to obtain his release and also in an attempt to scare him. He said he hit him twice lightly. That cannot be right.

The forensic evidence does not suggest that the injury to the deceased’s brain was a result of a light blow, nor was the injury to his thigh. The photographs of the scene, the autopsy report and the evidence from the blood spatter expert all suggest there was quite a struggle between these two men in which there must have been at least three blows at a time when they were moving around the kitchen area of the flat and during which time blood was flowing freely, causing stains on the floor and on the walls. The deceased’s blood was spread in a swathe across the left shoulder of the defendant’s T-shirt.

The defendant maintained that he did not know he had done this. He did not know that he too was covered in his father’s blood. He maintained that he had drunk so much that he could not remember the details of the assault, although he was not so drunk that he could not remember the lunch, his friend and then his aunt and uncle being present and the fact that he had left the flat in order to avoid further conflict and then seeking to return to retrieve his jacket and identity card.

The Character and Behaviour of the Defendant

The defendant was a man of good character. Although he was not employed at the time of the incident, he had been fully employed in the construction industry prior to an industrial accident which caused him to stop working. All of the lay witnesses, both prosecution and defence, said he was a good man, as was his father, albeit that his father was known to pick a fight if he had had a bit too much to drink but he was not a violent man.

The actions of the defendant were certainly out of character and no doubt caused by drink. He entered his plea of guilty to manslaughter on that basis but that basis had to be that he was so drunk that he did not form any intent either to kill or to cause serious bodily harm to his father, only sufficient intent to hit out with the chopper.

The jury, by its verdict, has rejected his reliance on the amount he had to drink and the effect it had upon him. They clearly found he had sufficient sobriety to form the intent to at least cause his father really serious bodily harm when he hit out at him with the chopper that day.

Sentencing the Defendant

This is a tragedy in more ways than one. There was never any suggestion that there was any continuing animus between these men. They apparently loved one another. This was not, as Mr Hemmings suggested, premeditated. This was done in drink. But he was not so drunk he did not know what he was doing. He deprived himself of his father that day, but he also deprived his brothers of their father and he deprived a man of the remainder of his life.

For someone to attack a man he loved when drunk does not bode well for men whom he dislikes when he is in the same condition, and I am of the view that he poses a very real danger to the public when he has been drinking.

The sentence for murder is fixed by law and is one of life imprisonment. That is the sentence which I pass upon the defendant for the charge of the murder of Limbu Prem Raj.