HKSAR v. SUN SIU TUNG

CACC 377/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 377 OF 1999

(ON APPEAL FROM HCCC 294 OF 1998)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 7 July 1999, the Applicant, aged 30, pleaded guilty before Beeson J to manslaughter (count 1) and wounding with intent (count 3). The more serious offence of murder on count 1 was not proceeded with because the Applicant's plea to manslaughter on the ground of diminished responsibility was accepted. There was a second count on the indictment alleging attempted murder which was also not proceeded with because count 3 was regarded by the prosecution as an acceptable alternative in the circumstances.

2. Both offences were committed on 1 June 1998. The judge imposed concurrent sentences of twelve years and six years on counts 1 and 3 respectively. The Applicant now seeks leave to appeal against sentence.

3. In brief, the background to this case was that a dispute had arisen between the proprietors of adjacent shops in Wanchai Road. This led to an incident on 28 May 1998 during which the wife of the Applicant, who was the proprietor of the Shanghai Hang Cheung and the deceased, who was the proprietor of the Ming Fat Beijing Dumpling Shop, made allegations that one had been assaulted by the other. There came a time when both were arrested, but it was later decided to adopt the binding over procedure and they were bailed to appear at Eastern Magistracy on 4 June 1998.

4. On 1 June 1998, the deceased returned to her shop in Wanchai Road from the police station having been bailed. The deceased told her husband that she was going to call in at the shop next door to settle the matter with the Applicant's wife as she did not want any further trouble. The deceased's husband told his wife not to go but she ignored this and went out of their shop. After this, a witness (PW3) saw the Applicant outside her shop stabbing the deceased in the chest with a pointed knife. The witness then saw the Applicant run into the deceased's shop still holding the knife.

5. Another witness (PW4) heard a woman cry out and saw the deceased on the pavement pressing her hands to her abdomen where there was a lot of blood coming out. He saw the Applicant walk into the deceased's shop holding a pointed knife.

6. The deceased's husband (PW1) saw the Applicant run into his shop carrying a carving knife with a long blade. The Applicant proceeded to chop PW1 (the victim named in count 3). The Applicant then fled in the direction of Queen's Road East. When PW1 went out of the shop, he found his wife lying at the side of the road covered in blood.

7. Soon afterwards, at a few minutes before 7.00 p.m., a team of police officers arrived at the scene of the killing to investigate the incident. An ambulance was already there. At that time the deceased was still alive but very badly injured. PW1 was also badly injured but conscious, sitting on the ground. Both victims were immediately taken to hospital. A few minutes later, the deceased showed no signs of life and eventually the resuscitation procedures which were being attempted were discontinued.

8. When PW1 was examined by a doctor, he was found to have a 4 cm deep laceration over his shoulder, a 5 cm deep laceration over the left arm, a 1 cm laceration over the left forearm and a deep cut wound measuring 4 cm over the right lower chest which exposed fractured ribs. Those injuries in turn had led to breathing difficulties and later examination revealed there had been damage caused to the lung. PW1 then underwent an operation and he was discharged just over three weeks later with further treatment having to be carried out on an out-patient basis in the future.

9. On the day after these attacks, the Applicant surrendered himself at a police station and told an officer there that he had killed someone the previous night. He was searched and found to be carrying a number of handwritten notes which were addressed to members of his family. He explained that he had intended to kill himself and that these were his "dying declarations". He declined to answer any questions at interview. The notes provided no sensible clue to what had happened or why it had happened but, to quote from the summary of facts, what they said was this:

"(i) To Hong Kong Citizen

'I am the murderer in the killing of Chan Siu-ling couple and it has nothing to do with Pang Hui.'

(ii) To Wife

'Therefore I killed Chan Siu-ling couple.'

'Chan Siu-ling colluded with the policeman and wanted to harm you. I killed them with a smiling face.'

(iii) 'For this price I killed Chan Siu-ling couple. If they're still here they would make Ah Hui go to prison.'

(iv) To Pang and Elder Sister

'I don't want to do that but if it's to wait till Chan Siu-ling finds someone to kill me and it'd better to have killed him by me and make the matter rest.'

(v) To Wife

'If I don't kill them sooner or later they would cause our family to ruin or die. I would be better to strike first.'"

10. Before the guilty pleas of the Applicant were ultimately accepted by the prosecution and the court, the judge had received the benefit of five psychiatric reports from the three psychiatrists who had examined the Applicant. The judge was satisfied, at the time the Applicant committed the act which caused death, that he was suffering from an abnormality of mind which the preponderance of opinion in the psychiatric reports describes as an acute stress reaction induced by disease which substantially reduced his mental responsibility.

11. The judge in passing sentence described the weapon used to commit the crimes as:

"a scraping knife normally used to remove the bristle from pigskin. This on inspection is a fearsome weapon, a 10 centimetre handle with a 20 centimetre long blade tapering to a point which was bent upwards and better to accomplish its task."

12. It was therefore unsurprising that this weapon had cut through two of PW1's ribs.

13. The judge summarised the findings of the pathologist who had examined the deceased's body in these terms:

"(He) recorded nine external injuries, six of them substantial stab wounds, two chest wounds that cut through a number of ribs and one, with a 16 centimetre track, had severed the ileum, the lower half of the transverse colon and cut the tip of the transverse process of the lumbar vertebrae. The cause of death was stated as multiple stab wounds."

14. The judge continued by making references to the Applicant's previous good work record and character and to his difficulties in adjusting to life in Hong Kong after he had arrived from the Mainland in 1993. She described the dispute involved between the two women who ran the shops next door to each other, including the deceased, as being "tragically trivial" and the judge went on to say:

"Dr Yuen, who prepared the psychiatric report at the request of the prosecution, considered that the defendant's acute stress reaction built up and continued over the period from about 28 May 1998 to a few days after the killing, the stressor being the threat he perceived to his security and the integrity of his wife. At the time he was examined by Dr Yuen on 8 April 1999, the defendant was found fit to plead and not in need of in-patient psychiatric treatment. Dr Yuen's finding that the defendant was suffering an acute stress reaction at the time of the killing was confirmed by Dr Connell, who examined the defendant on 3 July 1999."

15. Pausing there, it seems that a private examination of the Applicant, conducted at the request of the Legal Aid Department by Dr Chung See-yuen, appears to have been well wide of the mark and may have resulted in a serious misdiagnosis, both medically as well as from the point of view of its legal implications. We have ignored Dr Chung's report and so did the judge who continued by saying:

"The Court's particular concern in seeking a resolution as to the correct basis for the diminishment was to be able to formulate an appropriate sentence for these very serious offences; and in that context I note first Dr Connell's opinion. Dr Connell states:

'Mr Sun is now fully recovered, as one would expect with such a situationally induced condition. He leads me to believe that he greatly regrets his loss of control and has since spent a great deal of time examining his own make-up. The matter suggests that he would benefit from a psychological help. Mr Sun does not require in-patient psychiatric care. I would recommend that if he is imprisoned he should receive stress management counselling from a clinical psychologist working in the Correctional Services Department.'

The consensus of all the psychiatric reports is that the defendant is not in need of a Hospital Order and it is clear that a determinate prison sentence is called for, with its length to be gauged from a realistic appraisal of the offences, the reasons for them and allowing a proper discount for the defendant's guilty plea.

These were very grave offences. Madam Chan was aged 40 at the time of her death, and was married with two young sons. Her husband was badly wounded and it appears that it's more by chance than anything else that the defendant was not facing a second manslaughter charge. Nothing can compensate the husband and sons of the deceased for the loss of a wife and mother and the consequential shattering of their lives."

16. The judge took into account the previously blameless background of the Applicant and was careful to stress also that the victims' interests should not be lost from sight. The judge was aware of the large range of sentencing options applicable to cases of manslaughter where there is diminished responsibility, and she gave consideration to the helpful discussion about these options in R v Chambers (1983) 5 Cr. App. R. (S.) 190, to which we shall return later.

17. Having considered all of the circumstances, the judge formed the view that the Applicant's responsibility was "not minimal".

18. She concluded her remarks in sentencing by saying:

"I consider that his responsibility for this killing over a trivial matter in respect of a complete stranger, or almost stranger, was more than minimal and for reasons I referred to earlier I consider there is a possibility, albeit a small one, that he could offend again given similar circumstances.

Taking all matters into account, I set a starting point of 18 years for the Manslaughter. Giving the defendant a discount for his plea I sentence him to 12 years' imprisonment for that offence.

On the Wounding charge, I note that the injuries inflicted on the victim were serious and necessitated his staying three weeks in hospital. Insofar as the injury to the chest impaired the victim's breathing, the injury could be regarded as life-threatening. The attack was unprovoked, there was no question of self-defence, the weapon was lethal and there were multiple stab wounds.

I accept that the attack on Mr Mak was not premeditated and as it followed on from the frenzied attack on the deceased a few seconds earlier, it can be regarded as part of the same incident for sentencing purposes. I have not been advised that Mr Mak suffered any permanent damage, although that is not to discount the very considerable pain and trauma suffered by him during and after the attack, pain and trauma that was worsened, no doubt, by the knowledge of his wife's cruel and untimely death.

Taking all these matters into account, I adopt a starting point of nine years for the wounding charge, and after giving a discount for plea, I sentence the defendant to six years' imprisonment. I order that both sentences run concurrently."

19. Against this lengthy background, Mr. McNamara, who also appeared for the Applicant in the court below, has submitted that "sentences of beyond ten years for manslaughter are usually not appropriate unless there are unusual aggravating features". He went on to argue that, as a general principle, manslaughter sentences where there has been provocation are similar in their length to those imposed where manslaughter has been accepted on the grounds of diminished responsibility. He submitted that the usual range of sentence would be between two or three years to seven years although he accepted that there may well be cases which will come outside that bracket. He suggested that there were no aggravating circumstances which could justify the much higher sentence taken by the judge in this case. In relation to the wounding sentence, he submitted that this also was manifestly excessive.

20. Dealing firstly with the point which is made that provocation and diminished responsibility cases should generally be in about the same bracket for sentencing purposes, we are unable to agree with that proposition. As Mr Di Fazio, representing the Respondent, was able to point out, by definition provocation cases will always involve a loss of control whereas the degree of responsibility may vary very widely in diminished responsibility cases.

21. This aspect brings us back to the case of Chambers to which the judge referred when passing sentence. The facts in Chambers do not matter. Leonard J, in giving the English Court of Appeal's judgment said this (at page 193):

"Before this Court Mr Farrington, on behalf of the appellant, urged us to take the view that, having approved the acceptance by the Crown of the plea of guilty to manslaughter by reason of diminished responsibility, the learned trial judge was not entitled to impose a sentence as high as 10 years' imprisonment.

Counsel drew the Court's attention to the cases of Bartley (1980) 2 Cr. App. R. (S.) 367 and Bratton [1981] Crim.L.R. 119. These were both cases in which the Court had to deal with sentences on defendants who had been acquitted of murder and convicted of manslaughter on grounds of provocation. In the former case a sentence of 10 years' imprisonment was quashed and one of seven years' imprisonment substituted. In the latter case, having quashed a conviction for murder, the Court sentenced the appellant to five year's imprisonment for manslaughter. Counsel submitted, on this fragile basis, that the maximum sentence where provocation has resulted in a conviction for manslaughter is one of seven years' imprisonment. This Court desires to say that it does not accept that there is any such limitation on a judge's powers.

Proceeding from his argument by way of analogy with provocation cases, Mr Farrington then submitted that a similar limitation existed in diminished responsibility cases where a court decided to impose a determinate sentence of imprisonment. He drew our attention to Robinson (1979) 1 Cr. App. R. (S.) 108. In that case the appellant pleaded guilty to manslaughter on grounds of diminished responsibility and the plea was accepted. The victim was the appellant's wife who had obtained an injunction restraining him from continuing to live at the matrimonial home. He broke into the house, barricaded himself in his wife's bedroom and stabbed her a number of times. One wound in the abdomen proved fatal.

In distinction from the present case, Mrs Robinson was described as a poor wife who had been unfaithful to the appellant. According to a consultant psychiatrist Robinson was suffering at the time from mild psychopathy which was not susceptible to treatment. The trial judge passed a life sentence. The Court of Appeal substituted a sentence of seven years' imprisonment. In giving the judgment of this Court Lord Justice Lawton said, at page 110: 'In our judgment the degree of diminished responsibility shown in the psychiatrist's report does not begin to come within the sort of mental imbalance which this Court has said justifies a sentence of life imprisonment.'

Mr. Farrington accordingly submitted that seven years' imprisonment was the maximum determinate sentence which a Court ought to impose in cases of diminished responsibility. With respect to him, this Court disagrees with that proposition as it disagrees with the earlier one."

22. The court then went on to consider the wide range of options which are open to the courts in determining the proper disposal of cases of diminished responsibility.

23. In fairness to Mr McNamara, it should be said that he did not pursue the narrow and unrealistic path that was taken by counsel in the Chambers case because he accepted that there would no doubt be cases outside what may in England be regarded as the usual range for sentencing manslaughter cases. However, Hong Kong is not, of course, and has not for some time regarded itself as bound by English sentencing decisions in manslaughter cases. Nevertheless, we are inclined to agree that twelve years was on the high side for the manslaughter in the present case. However, the judge was imposing a sentence upon the Applicant for two separate offences. They were both acts of extreme violence and the judge would have been entitled, contrary to the opinion that she herself formed, to have passed a sentence which was consecutive, at least in part having regard to the totality principle, in respect of the wounding with intent charge. It was a wholly unprovoked and life-threatening attack.

24. Bearing in mind all of these factors, we are satisfied that the sentence of twelve years' imprisonment in its overall length was a proper one and we do not propose to disturb it.

25. The application, therefore, is dismissed.