HKSAR v. LEE WAI MAN

CACC 54/2021

[2023] HKCA 370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 54 OF 2021

(ON APPEAL FROM HCCC NO 114 OF 2020)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  By a judgment handed down on 30 September 2022[1], we allowed the appellant’s appeal against conviction and, by exercising our powers under section 83A(2) of the Criminal Procedure Ordinance, Cap 221, substituted a verdict of manslaughter on the basis of diminished responsibility for that of murder. We then called for an updated psychiatric report on the appellant and adjourned the matter for submissions on sentence. On 3 March 2023, having obtained and read the report, and having heard arguments from both parties, we sentenced the appellant to a period of 12 years and 9 months’ imprisonment. These are the reasons for our sentence.

The background to the case

2.  This was an appeal from a retrial on an indictment for murder, which had been ordered by this Court, differently constituted, in June 2020[2]. A full recitation of the facts of the present case appears in our own judgment at the appeal against conviction in the second trial[3].

3.  It is sufficient for present purposes to note that the offence took place in the early hours of 9 December 2016 at an open area outside the shopping centre of Fu Heng Estate in Taipo, New Territories. Following a drunken quarrel and physical altercation between the appellant and the deceased, who were before that evening strangers to each other, the appellant stabbed the deceased in the abdomen with a knife resulting in the latter’s death. Under caution following his arrest, the appellant said he was drunk and did not remember what happened.

4.  The appellant’s plea to the lesser offence of manslaughter simpliciter was not accepted by the prosecution; accordingly, he was tried and convicted before Toh J (“the Judge”) and a jury for the original offence of murder.

5.  There was contrasting expert evidence at trial from both sides suggesting that the appellant suffered from substance induced psychotic disorder, severe alcohol use disorder and multiple stimulant use disorder. Both sets of experts were agreed, however, that the appellant suffered from alcohol dependency syndrome; in simple terms that he was a chronic alcoholic, which constituted an abnormality of mind. However, where they appeared to diverge was whether the symptoms of that abnormality were self-induced or self-inflicted.

6.  This Court held that the complete judicial direction, in accordance with the Specimen Directions in Jury Trials (Vol 2) at 106-7 and 106-8, had not been given by the Judge. This may have unfortunately led the jury to believe that if there was any suggestion of voluntary consumption on the part of the appellant that evening, which one of the prosecution experts, Dr Chan, had indeed initially suggested, the defence of diminished responsibility could not be made out. Accordingly, we held that there had been a misdirection and allowed the appeal, substituting a verdict of guilty of manslaughter on the basis of diminished responsibility.

The appellant’s background

7.  The appellant was born in 1968, and was a divorced man with a son by his ex-wife. Prior to the offence, he worked as a construction site worker. He had 15 criminal convictions involving 12 court appearances. Only two of those convictions might be said to be connected with violence: his first conviction in 1989 for fighting in a public place, when he was bound over to keep the peace for 12 months; and assaulting a police officer in 1996, for which he was fined $1,000. Many of the remaining offences were drug-related, the appellant having served a sentence of 6 years’ imprisonment for trafficking in dangerous drugs in the year 2000.

The latest psychiatric report

8.  An updated psychiatric report on the appellant dated 14 October 2022 was prepared by Dr Siu, who had been a prosecution expert witness at trial. The history of the appellant’s substance and alcohol abuse was set out in the report as follows[4]:

“LEE reported having polysubstance misuse with active use of heroin, amphetamine, cannabis and dormicum before the index offence. He also reported use of other substances including cocaine, ketamine, MDMA, valium, halcion, cough mixture quite a couple of years ago. He reported having started to use heroin since 1993-1994 under peer influence by smoking and then chasing the dragon and he used it 1-2 times per week and each time spent around HK$100 on it. He reported use of amphetamine since around 2005 and he used it 3-4 times per week and would spend around HK$100-200 each time on it. He reported cannabis use since 1980s and he used it several times per month. For the use of dormicum, he said to have used it since a few months before the index offence and he would consume 2-3 tablets each time.

He reported to have consumed alcohol since the age of 7-8 years under influence of his parents and he started to use alcohol daily since from 16-17 years old to 24-25 years old and he would drink up to 20 cans of beer or 3-4 bottles of red wine, or 2 bottles of brandy per day. He said that a few years before the index offence, he drank alcohol daily, up to 10 cans of beer plus whisky and Chinese wine at times. LEE had symptoms of alcohol dependence syndrome. He reported that he would drink alcohol the first thing after he woke up, and he had hand tremor and restlessness before he drank, and would have a relief of his hand tremor and restlessness after drinking. He had the sense of loss of control of the amount of alcohol he drank once he started drinking and he had primacy of drinking alcohol over other activities. He had decreased physical tolerance of alcohol in the recent years. He reported having history of being absent from work because of drinking. He also reported having history of head injury and blackouts after drinking alcohol.”

9.  Concerning the appellant’s psychiatric history, Dr Siu noted[5]:

“LEE had not been known to mental health service before the index offence. After the index offence, he was transferred to the SLPC for psychiatric assessments. He presented with unsatisfactory sleep and hearing non-existent voices around 2014-2015 and he at times saw images of animals/human head floating with secondary vague paranoia. He was opined to have alcohol dependence syndrome with history of polysubstance misuse and substance-induced psychosis. He had been prescribed psychiatric medications and arranged follow-ups at SLPC regularly.”

10.  According to Dr Siu, the appellant “had limited insight (in)to his alcohol use problems” and he was not confident that the appellant “would not re-instate into alcohol use in future”[6]. In Dr Siu’s opinion, the appellant still suffered from alcohol dependence syndrome, even though he was currently required to abstain from alcohol in a protected prison environment. While the appellant was assessed to be mentally stable and no psychiatric in-patient treatment was required, Dr Siu recommended that in due course he should attend a psychiatric outpatient clinic for management of his alcohol dependence syndrome; and that he might benefit from a detoxification programme and psychological treatment to enable him to cope with stress[7].

Decision

11.  There are two issues we need to address in sentencing the appellant: the first is the appropriate starting point for this offence; the second is the discount (if any) to be accorded the appellant for having offered an original plea of guilty to manslaughter, which, although being rejected by the prosecution, we have seen fit to substitute on the basis of diminished responsibility in place of his conviction for murder.

(i)  Starting point

12.  It was said by Bokhary JA (as Bokhary NPJ then was) in R v Szeto Ken[8] that:

“[M]ore than any other offence, the circumstances in which the offence of manslaughter can be committed are infinitely various. And that is so even within just one category of manslaughter…”

Although Mr Young has drawn our attention to various sentences in other cases of manslaughter by diminished responsibility, one must be cautious, as he also recognised, before drawing more than perhaps the more obvious comparisons. In particular, he drew our attention to the decisions of this Court in HKSAR v Chiu Wai Kan Vicken (No 2)[9] and HKSAR v Husnain Safdar[10] for the proposition that a sentence of 10 years’ imprisonment was appropriate where the two appellants in those cases had originally indicated their willingness to plead guilty to manslaughter and subsequently been found guilty of manslaughter by diminished responsibility on appeal; and for the proposition that the appellant was entitled to a full one-third discount for his earlier indication of a plea of guilty to manslaughter. In both cases, Mr Young argued that the facts were worse than the present case.

13.  Yet, there were significant differences between the facts of each case and the present case. Both Chiu Wai Kan Vicken (No 2) and Husnain Safdar concerned appellants who were addicted to hard drugs, where their responsibility for their respective killings was significantly diminished by a drug-induced psychosis: this appellant was a chronic alcoholic. The actions described in Chiu Wai Kan Vicken (No 2) and Husnain Safdar were certainly brutal and unprovoked in their psychotic states: the actions of this appellant were the result of the needless and mindless aggression of a drunk. We note that the Judge described the appellant’s conduct on the evening in question as follows:

“The slight confrontation you had with the deceased was minimal compared to what you then did to him. This matter could have been resolved by you just going to bed, going home, and going to bed. As it can be seen from the CCTV footage, you went in twice and out and changed your clothes twice.

Your reaction to the very slight, slight confrontation you had with the deceased was wholly out of proportion to what you did to him. As … can be seen by the evidence of the son, he was in fact very concerned for the safety of his father as you seemed to be fierce, your behaviour was fierce that evening.

Tragically, this son who was there has lost his father, seemingly before his wedding. He, as you have heard, deeply regrets, though it is not his fault, that he did not stay with his father until the end that evening. This was a tragic case of which the deceased died upon your revenge attack on him. You murdered, you killed the deceased only approximately some three hours after you met him.”

14.  Although it must be accepted that the Judge was sentencing in respect of the jury’s conviction for murder, which we have earlier set aside, many of her comments are apposite. It is clear that there was a considerable element of premeditation on the appellant’s part, all resulting from a very minor slight, which a normal, sober individual would have ignored or brushed aside. Unfortunately, aggressive alcoholics do not act in a normal way.

15.  Mr Young also relied on the judgment in R v Chan Wing[11], decided almost 30 years ago, where the applicant had been sentenced by the trial judge to 8 years’ imprisonment on his own plea to manslaughter by reason of diminished responsibility for the unprovoked killing of another meat stall employee after drinking heavily. The Court of Appeal upheld the sentence. However, we do not find this rather short judgment of very much assistance. Nor do we derive any utility from the two cases to which the Court therein referred: one, a first instance decision in Hong Kong of 1992; the other, the English appellate decision of R v Norman[12] decided more than 40 years ago, which the Court in Chan Wing understood, not entirely correctly with respect, to have held “that in cases of diminished responsibility the top of the scale was seven years”[13]. Furthermore, we do not think that any of these cases are consistent with modern sentencing practice for this offence in either jurisdiction. The current Sentencing Council’s Definitive Guideline for Manslaughter by reason of diminished responsibility (effective in the United Kingdom since 1 November 2018) suggests that Norman would not survive scrutiny today in that jurisdiction. Even if we were to apply the Definitive Guideline, which has not been adopted and applied in this jurisdiction, Mr Young accepted that the category range for the appellant’s level of what is described as “medium” responsibility should have been between 10 and 25 years in custody, with a usual starting point of 15 years’ imprisonment.

16.  We should make clear that we considered the appellant’s state of mind in this case to have bordered on murderous intent. That is clear from the deliberate actions he took in returning home twice, changing his clothes and arming himself with a knife before setting off in search of the deceased. Had it not been for the directions to the jury on diminished responsibility, which we have earlier held to be deficient, we would have upheld the appellant’s conviction for murder. That we did not do so does not mean we accept the entire defence basis of his diminished responsibility. In any event, having reduced the conviction to manslaughter, it falls to this Court to determine the appellant’s culpability and the extent of the diminution of his responsibility in the light of all the relevant evidence.

17.  We are particularly concerned that the appellant has limited insight into his problem and is likely to relapse into alcoholism for the remainder of his life. We note from the second report of Dr Chan, dated 16 April 2018, which was adduced at trial, that the appellant[14]:

“…has been admitted to detoxification facilities many times but these failed to help him achieve abstinence from using street drugs. His latest admission was said to be between July and October 2016 in Shek Kwu Chau. After his release he rapidly reinstated in use of heroin and methamphetamine, and coupled with his alcohol use, he was evicted from a hostel that was originally arranged for him.” (Emphasis supplied)

He had emerged from Shek Kwu Chau, therefore, barely two months before the present offence took place.

18.  As an alcoholic, who obviously becomes truculent and aggressive when fuelled by drink, he will remain at best a nuisance and menace, at worst a risk and danger, to society for the rest of his active life, unless and until he takes serious steps to address his problem. In our judgment, the appropriate staring point should be 16 years’ imprisonment.

(ii)  Discount

19.  Mr Young sought to rely on the Court’s acceptance in Husnain Safdar of the one-third discount from a starting point of 15 years’ imprisonment, where it substituted a verdict of manslaughter by reason of diminished responsibility for one of murder, notwithstanding that the appellant had also relied on the defence of self-defence, which if it had been accepted by the jury would have seen him acquitted altogether. However, it should be understood that the Court in Husnain Safdar was aware it was not dealing with a “normal” case. It said in terms that the offer of a plea of guilty to manslaughter by reason of diminished responsibility ought to have been accepted by the trial judge, having already been accepted by the prosecution, in which case there would have been no need for a trial. It was “in these quite unusual circumstances” that the Court felt the appellant should be granted a full one-third discount for his plea[15].

20.  However, the Court in Husnain Safdar also made it clear that[16]:

“…if an offender whose plea offer is rejected goes to trial relying on a defence which, if successful, will result in his complete acquittal, then the law is equally clear that he will not normally be accorded the full one-third discount, but instead something less.”

21.  The practice and procedure for entering a plea to an alternative or lesser offence, which is then later relied upon to obtain a discount, has been authoritatively (and more recently) described by this Court in its judgment in HKSAR v Lam Kai Man[17]. Both Husnain Safdar and Chiu Wai Kan Vicken (No 2) should, therefore, be read subject to that which the Court has now laid down in Lam Kai Man. For this appellant to receive a full one-third discount from this Court for the plea he offered, but which was rejected by the prosecution, it was necessary to comply with the formalities set out in Lam Kai Man, a decision handed down some seven months before the commencement of the trial with which we are concerned.

22.  However, rather than pleading guilty on the record upon arraignment to manslaughter by reason of diminished responsibility, the appellant pleaded guilty to manslaughter simpliciter[18]. Rather curiously, the record of the Judge’s clerk also has a reference to defence counsel raising the issue of self-defence at the time of arraignment. In the event, the appellant proceeded to run several ‘defences’ at trial, namely accident, self-defence, intoxication, manslaughter by way of an unlawful and dangerous act, manslaughter by reason of provocation and manslaughter by reason of diminished responsibility. The first three of these defences would have resulted in the appellant’s complete acquittal, while manslaughter by way of an unlawful and dangerous act would have involved a mental state short of that required for provocation and diminished responsibility. It is not surprising, therefore, that we should have remarked in our judgment on conviction, at the outset of our discussion of the merits of the appeal[19]:

“This was not an easy case for the Judge to sum up, given the sheer number of sometime disparate, sometimes inter-related, lines of defence being run.”

23.  Instead of this case providing a simple, single issue for the jury to determine, the jury were faced with a combination of very different defences and a number of different possible verdicts, all of which required the Judge to sum up and present for them. Given that the appellant did not adhere to an explicit, stated position throughout the proceedings before the Judge, we are of the view that he was not entitled to a full one-third discount, even though we have now substituted a verdict of manslaughter by way of diminished responsibility for that of murder.

24.  In our judgment, the appropriate discount for plea in the circumstances of this case should have been in the region of 20%. Applying that discount to the starting point of 16 years’ imprisonment and rounding the resulting sentence down slightly, we arrived at a sentence of 12 years and 9 months’ imprisonment, which was the term we duly passed for the substituted offence of manslaughter by way of diminished responsibility.