HKSAR v. WONG KOON MING

HCCC 52/2024

[2026] HKCFI 1335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 52 OF 2024

______________

______________

_________________________________

REASONS FOR SENTENCE

_________________________________

1.  The defendant was acquitted of murder and convicted of the lesser offence of manslaughter by the jury after trial, for which he is now being sentenced.

FACTS

2.  The defendant and the deceased, Mr. Lo, were acquaintances who had known each other for a few months before the fatal fight that took place between the two of them on 29^th October 2022.

3.  According to evidence, the defendant had procured a bicycle at his own expense and had offered it to the deceased at a price of $800.  The bicycle was handed over to the deceased around 12^th October for his use pending payment.  

4.  The defendant was told by the deceased a few days later that the bicycle had been stolen when parked outside a wet market.  The defendant regarded that as the fault of the deceased and continued to sought payment of the $800.

5.  From the morning of 18^th October onwards, the defendant had sent a number of WhatsApp messages to the deceased to seek payment, providing different methods of payment including a QR code for direct bank transfer, which was sent on the night of 20^th October.

6.  Mr. Lo did not reply to any of the messages, and he blocked the defendant on WhatsApp at 12:30am on 21^st October, just 17 seconds after the defendant’s last message urging him to provide a time of payment, or at least to give the defendant a phone call.

7.  7 days later on 28^th October, the defendant went up to where the deceased was living (Room 106 of Yan Ying House) to see if he could get hold of the deceased.  No one answered the door when he went up the first time at around 6:17pm.  He stayed outside the door for about 15 minutes and listened for sound from within the unit.  He went back down to the lift lobby at around 6:32pm, stepped out of the building and saw that the lights in Room 106 were on. He went back up to Room 106 at 7:08pm.

8.  The defendant knocked on the door again and still no one answered.  He saw the bicycle that he had lent to the deceased about 1 to 2 weeks ago standing outside the door.  The defendant decided to take it back.  He was seen in the CCTV footages leaving the building at 7:30pm with the bicycle.

9.  Since the defendant did not get the $800, he decided to go back to Room 106 the following day, 29^th October.  He arrived at the lift lobby of Yan Ying House at 4:28pm, and left from the emergency exit of the building at 4:42pm.

10.  In the 14 minutes that he was in the building, the defendant said he knocked and banged on the wooden door and metal grille and made some noise by shaking the grille.  

11.  As a result, Mr. Lo did open the door a little bit, whereupon the defendant immediately forced it open and got inside.  The defendant asked for the $800 but the deceased said he did not have any money and could not pay.  The defendant said Mr. Lo became very angry and started pushing him out of the door. The defendant did push back until he saw Mr. Lo trying to grab something to hit him with, then he immediately turned around and left the room.  The deceased did not give chase nor tried to attack the defendant, who went downstairs and left the building at 4:42pm.

12.  The defendant went back into the building at 4:53pm, because he still wanted to get his $800 back.  CCTV footages show the defendant drinking from a bottle of soft drink in his left hand while carrying a wooden pole that was tucked into his right elbow when he entered the building this time.  The defendant said that since the deceased tried to grab something to hit him, he wanted to bring something along for self-preservation (自保).

13.  Before the defendant went to Room 106, he said he tested the wooden pole for strength while in the staircase.  The pole broke in half and so the defendant just discarded the pieces.  While walking towards Room 106, he saw that both the wooden door and the metal grille were opened.  He decided to go straight in and sat down in a chair.  The defendant was not armed with anything at this point.  He demanded the $800 from the deceased and said that he would not leave until a mutual friend of theirs, ‘On Gor’, had arrived.  

14.  The deceased told the defendant to ‘go, go, go!’ and pushed him out.  The defendant pushed back, but eventually left the room.  He was in the room for no more than 2 minutes, and was seen leaving the building at around 5:05pm.  

15.  While outside the building, the defendant called the mutual friend and asked when he would be arriving but was not given a definite time.  

16.  The defendant then went to see if there was anything to use for self-defence, and found a black metal pipe on the ground opposite the refuse collection point of the building.  

17.  The defendant went back up to Room 106 alone, entering the building lobby at 5:20pm, bringing the pipe with him.

18.  When the defendant got to the first floor, he saw the deceased had come out of Room 106 and was walking towards him.  They began to quarrel and scolded each other. There was no physical contact between them during this altercation.  

19.  While they were quarrelling, the deceased walked around the defendant and pressed for the lift and went inside the lift after it had arrived.  

20.  CCTV video footages show the deceased standing in the lift while the defendant stood outside, using his hands or feet to stop the lift door from closing from time to time.  They were in this position for roughly 3 minutes, during which time the defendant had once reached in to quickly but seemingly lightly tap on the right side of the head of the deceased; snatched a pack of cigarettes that the deceased was holding; put one foot into the lift while brandishing the black metal pipe that he was holding in his hand; pushed a large green rubbish bin into the lift, and then kicked it further in with force.  

21.  The defendant did eventually allow the lift door to close.  The deceased arrived at the lift lobby and rolled the bin out with him.  He left the bin there and was seen leaving from the side exit of the building at 5:28pm.  

22.  Meanwhile, the defendant walked down the stairs from the first floor and out of the building at around 5:29pm.  According to his evidence, the defendant walked across the road to a shopping mall nearby and bought a soft drink.  While he was drinking it outside the mall, he heard someone scolding him from behind.  He turned around and saw that it was the deceased, who was holding up a pipe in his hand.  

23.  The defendant scolded him back and started walking towards the deceased while holding the black metal pipe.  

24.  According to the video footage from a car that was parked next to where they were, the deceased walked pass the camera of the car while the defendant followed.  When the defendant got to the edge of the screen, he was seen raising his left leg as if kicking someone.  

25.  It is the defendant’s evidence that the deceased had stopped walking and turned around as if waiting for the defendant to catch up, and when the defendant did catch up to him, the deceased hit towards him and so he immediately hit back.  

26.  There is a period of 23 seconds where neither the defendant nor the deceased were captured on any video footages.  The defendant gave evidence that, during this 23 seconds, the deceased had hit him on his left shoulder, and the rod that the deceased was using had broken into two within the first and second hit, and so Mr. Lo was fighting with both the broken halves.

27.  There was then a point when he and the deceased each held on to one of each other’s pipe and was engaged in a ‘tug-of-war’.  They ended up snatching the other’s weapon.  That was why, later on in the video, the defendant was seen using a silver metal rod instead of the black metal rod that he was holding at first, while the deceased was holding one silver and one black rod in his hands.  The silver one was half of the deceased’s own rod, while the black one was the defendant’s.

28.  In a period of about 6 seconds of the fight that was captured on video, the defendant is seen to have swung his pipe towards the head of the deceased, while the deceased had also swung the pipe in his left hand towards the defendant.

29.  In the last blow at 5:28:48pm, it would appear that it landed on the left side of the deceased’s head, whereupon the deceased very quickly fell backwards, hitting the back of his head on the tarmac and stopped moving.  

30.  Seeing that, the defendant immediately stopped hitting and threw the pipe he was using away as if out of anguish while giving out a loud cry.  He bent down to move the deceased up slightly to retrieve the black pipe that was his and which the deceased had taken over, and then left the scene.

31.  Passersby called the police and the deceased was taken to hospital.  He did not have any vital signs at the time of arrival at the hospital and was put on a ventilation machine.  Mr. Lo was certified as brain dead 2 days later, at 4:21pm on 31^st October 2022.  

32.  By their verdict, the jury had found that what the defendant said about not having the intention to kill or cause grievous bodily harm to Mr. Lo was true, or at least maybe true.

PREVIOUS CONVICTIONS

33.  The defendant has a total of 14 convictions, with most being for possession of dangerous drugs, and all being relatively minor.  Save for one conviction for ‘resisting arrest and drunk and disorderly’, for which he was sentenced to 3 years’ probation in 2007, the defendant has no violence related convictions.  His last conviction was in July 2020 when he was fined $2,000 for possession of dangerous drugs.  

BACKGROUND AND MITIGATION

34.  The defendant was born in Hong Kong and is 50 years old.  He was educated up to Form 4 level.  He got married in 2001 and divorced in 2015.  His two daughters from that marriage are now 27 and 22.

35.  The elder daughter suffers from a rare brain disease and requires regular medical consultation.  The defendant’s mother, Ms. Leung, suffers from depressive symptoms and cognitive impairment, also requiring regular medical attention.  The defendant had been looking after them prior to his present remand, especially his daughter who would have sudden seizures.  

36.  Although the defendant had completed a plumbing course at the Vocational Training Centre, he only held odd jobs like lorry attendant or loading goods into containers.  He was a recipient of CSSA at the time of his arrest because he could not work and take care of his elder daughter at the same time, but he was given permission by the Social Welfare Department to take up casual construction site work.

37.  The defendant wrote to express his regret for causing the death of Mr. Lo, vows never to use violence and to always abide by the law.  He seeks leniency so that he may continue to look after his ailing mother and daughter as soon as possible.

38.  The defendant’s elder daughter tells the court how, despite her birth mother wanting to sign her off for adoption, it was the defendant and her grandmother who resisted and insisted to keep her that she would be able to be with a family of her own now.  Ever since she was diagnosed at age 5 with her brain disease, they have always been by her side looking after her.  She wishes for a lenient sentence for her beloved father.  

39.  The defendant’s mother also wrote in a brief note telling the court how her son has always been kind and loving towards her and urges leniency on his behalf.  

SENTENCING CONSIDERATIONS

40.  The maximum sentence on conviction upon indictment for manslaughter is that of life imprisonment.  

41.  There are no sentencing guidelines laid down by the Court of Appeal, given the vast scale of circumstances in manslaughter cases.  Sentences had ranged from probation in some cases of diminished responsibility manslaughter, to life imprisonment for where death was caused in the course of a robbery, or where the accused remains a potential long-term threat to the community[1].

42.  In the case of Kan Wah Cheung[2] relied on by Mr. Khosa, the Appellant was acquitted of murder but found guilty of manslaughter, which he had previously offered to plead guilty to but was not accepted.

43.  There the deceased was attacked because his group was making an amount of noise on the road outside a public housing estate.  Some people from one of the units of the estate threw two beer bottles at the group and shouted threats.  There followed an exchange of words and those from the room came down to the road and attacked the deceased and his group.  

44.  It was accepted at trial that the Appellant and others had beaten the deceased with light tree branches, kicked and punched him.  As a result of the serious assault, the deceased suffered laceration of the lungs, multiple bruises and abrasions on his chest, arms and legs, together with three fractured ribs.  The injuries to the chest caused his death.

45.  In response to the dictum in R v Leung Hang-sang and another, Criminal Appeal No.176 of 1986 which indicated that, “Some sentences passed by Hong Kong Courts of (sic) manslaughter even where no weapons has been used, have been lenient in the extreme.”, the Court remarked 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.

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…”

46.  The Court found that substantial mitigation existed in that case and the appeal was allowed to the extent that the sentence of 4 years’ imprisonment for manslaughter was reduced to one of 3 years.  

47.  In the present case, the video footages show that during the altercation between the defendant and the deceased while the latter was inside the lift, the defendant had not attacked the deceased, neither with the black metal pipe that he was holding, nor with his bare hands.  He merely scolded the deceased.  

48.  They show it was the defendant who had decided to allow the lift door to close and the deceased to depart.  There was a time gap of about 51 seconds between their leaving the building.  The defendant was moving at a normal pace when he left, not chasing after the deceased.

49.  The version of fact that the defendant had put forward was that he had gone to get a drink, and it was the deceased who approached him from behind and scolded him again, which would eventually lead to them fighting each other.

50.  The video footage does support the defendant’s evidence that the deceased had stopped walking away from the defendant and turned around to attack him, where we can see the defendant raising his foot towards the direction of where the deceased would have been, just before the missing 23 seconds of footage.  

51.  Both the defendant and the deceased were responsible for the fight.  Both held pipes. Both appeared to have been wildly and instinctively trying to hit the other.  It so happened, unfortunately, that the defendant was the stronger person and at least one of his strikes landed on the head of the deceased, leading to his death.  

52.  Given the circumstances of the fight, I find that a proper starting point after trial should be 5 years’ imprisonment.

53.  Taking into consideration that the defendant had indicated his willingness to plead guilty to the lesser offence of manslaughter, and at the same time his being a persistent offender, albeit of offences of a different and relatively minor nature, I find that a proper sentence is 4 years’ imprisonment.  Taking a step back, I find this sentence fair, just and balanced.  

54.  The defendant is sentenced to 4 years’ imprisonment.