HKSAR v. WONG KAM SHING, JACKIE

CACC 197/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 197OF 2009

(ON APPEAL FROM HCCC NO. 297 OF 2008)

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BETWEEN

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REASONS  FOR  JUDGMENT

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Hon Hartmann JA (giving the Reasons of the Court):

Introduction

1.  In May 2009, the applicant was arraigned on a charge of murder, the allegation being that on 29 September 2008 he had murdered a man by the name of Wai Lun. The applicant pleaded not guilty to murder but guilty to manslaughter by reason of provocation. The plea to manslaughter was not accepted by the prosecution and the matter proceeded to trial before Bokhary J and a jury. At the conclusion of the trial, the applicant was acquitted of the offence of murder but convicted of manslaughter. He was sentenced to a term of imprisonment of five years.

2.  The applicant sought leave to appeal his sentence. Having heard submissions, we dismissed the application, saying that we would give our reasons later. We do so now.

The evidence

3.  Three years or so before the death of Wai Lun, the applicant, who was a married man with a young daughter, fell into debt. The cause of that debt was gambling. Although a family member had been able to pay off the greater part of the gambling debts, by early 2006 a balance remained, something in the region of $60,000.

4.  Those who sought to collect this debt were not reputable lending institutions. They charged usurious rates of interest – in the applicant’s case, rates of up to 200% per annum – and were prepared to use whatever tactics were necessary to collect what they said was due to them. In short, the applicant found himself in the hands of loan sharks.

5.  The person principally responsible for collecting the applicant’s gambling debt was Wai Lun himself, the man killed by the applicant on 29 September 2008.

6.  When he testified at trial, the applicant described a history of harassment by Wai Lun, this harassment including menaces aimed at the applicant’s family. The applicant described how, when he was unable to meet his payments, Wai Lun would demand ‘tea money’ in sums of up to $2,000 cash for the privilege of granting an extended time within which to make payments. The applicant further described how in early 2008 Wai Lun had seized his ATM card, changing the PIN number so that, when the applicant’s salary was paid into the bank, Wai Lun could make the first withdrawal.

7.  On 29 September 2008, the day of the killing, it was the applicant’s testimony that he was telephoned at work by Wai Lun’s ‘big brother’, a man called Ah Lung. Ah Lung demanded that the applicant settle his debt that day. He threatened the applicant that, if he did not repay the debt in full, he would send somebody to the applicant’s apartment to collect the money from his wife and would in addition send somebody to his mother’s apartment to collect money from her.

8.  Later, Wai Lun himself telephoned the applicant demanding to meet him after midnight at Fanling Station so that they could then go to the applicant’s apartment and confront the applicant’s wife.

9.  Concerned for the safety of his wife and child, the applicant testified that he contacted his wife, saying that she and the child should stay with friends that night.

10.  It was the applicant’s testimony that, when he met Wai Lun at Fanling Station that night, he gave him a sum of money on account, pleading with him that it was not necessary to return to his apartment. Wai Lun, however, insisted that they make the visit; he said that he had to carry out his boss’s instructions.

11.  According to the applicant, at the apartment, when Wai Lun, discovered that the wife and child were not there, he became angry, punching the applicant and saying that he would find the applicant’s wife in order to collect the debt from her. In addition, said the applicant, Wai Lun threatened to “take care of” the applicant’s daughter until the debt was paid. Understandably, the applicant interpreted this as a threat to abduct the child or to harm her in some way.

12.  When he testified at trial, it was central to his testimony that, with his family threatened, it was at this time that he lost control of his composure. Evidence was given by a neighbour that he heard somebody shout: “You harass my family members”.

13.  The applicant testified that Wai Lun assaulted him again and it was at this time that he was able to seize a knife from the kitchen, the open door to the kitchen being just a pace or so away from where he was standing.

14.  A violent confrontation then took place. The applicant described how the two of them struggled. The evidence revealed that Wai Lun sustained multiple knife wounds to the head, chest and upper limbs, two of the knife wounds puncturing his left lung. The applicant sustained a cut to his right hand.

15.  The applicant described how Wai Lun collapsed to the floor. As he was still moving, the applicant said that he bound Wai Lun’s wrists with plastic cord. He then went to the kitchen to tend to his own single wound. When he returned, it seemed to him that Wai Lun was dead.

16.  It was the applicant’s testimony that he contemplated suicide but determined to see his wife and child one more time. When the applicant saw his wife, he confessed to the killing. The police were then informed.

The judge’s approach to sentence

17.  The verdict of the jury being manslaughter, and the only basis for manslaughter being provocation, it was incumbent on the judge in determining sentence to be faithful to that verdict. Accordingly, as the judge said, she sentenced the applicant on the basis that he had been forced to endure provocation at the hands of Wai Lun which had been “cumulative and considerable”.

18.  Although in respect of the crime of manslaughter it was not incumbent on the judge to set a starting point, she determined that in the circumstances of this case it was proper to do so. She set a starting point of seven years. For reasons to which we shall refer, she reduced that starting point by two years

19.  In determining that there should be a reduction of two years on her starting point of seven years, the judge took two matters into account; first, the fact that the applicant had offered a plea of manslaughter at the commencement of the trial and, second, in recognition of the applicant’s previous good character.

20.  In respect of the applicant’s plea of manslaughter, the judge did not however give to the applicant a full one-third discount of sentence. She chose a lesser discount of 20%.

21.  The 20% discount equalled a reduction in sentence of 17 months. The judge discounted that sentence by a further seven months to take into account the good character of the applicant. In our view, bearing in mind that there was no evidence of the applicant’s positive good character, only the fact that he had no previous criminal convictions, this second discount of seven months was inappropriate.

22.  As to the final sentence of five years’ imprisonment, the judge considered that it was, when all matters were taken into account, an appropriate one. She said:

“I have tested it [the sentence] by looking broadly at all the circumstances as a whole.  Doing so, I … think that, on that broad basis, that 5 years is the appropriate sentence in this case as decided by the jury’s verdict.”

Grounds of appeal

23.  Two grounds of appeal were advanced. First, that the decision by the judge not to give a full one third discount for the plea of guilty to manslaughter was, in the circumstances, unjustified. Second, that the starting point of seven years chosen by the judge failed adequately to reflect the long standing, cumulative provocation to which the applicant had been subjected and the fact that, when the killing took place, Wai Lun was in the applicant’s home as an aggressive and violent trespasser.

The reason why a full discount was not given: the issue of self-defence

24.  When he testified before the jury, the applicant described the confrontation between himself and Wai Lun in terms which suggested that, while provoked, he had nevertheless acted in self-defence. The applicant’s assertions of self-defence were sufficiently clear cut to prompt defence counsel, Mr Haynes, to address the jury in support of a defence of self-defence. In doing so, he informed the jury that they should not feel restrained by the applicant’s plea of guilty to manslaughter by reason of provocation because, when that plea had been rejected by the prosecution, then, to use his phrase, “all bets were off” and it was open to them to find that the applicant had acted in self-defence, and acquit him.

25.  As the judge also observed in her directions to the jury: “In his final speech, Mr Haynes in effect asked, where is the evidence which negatives self-defence?”

26.  Mr Haynes, who appeared for the applicant before us, said that he did not take instructions from the applicant before he addressed the jury; he did not therefore discuss with the applicant whether he should or should not advocate a full acquittal on the basis of self-defence. However, after Mr Haynes had completed his address to the jury but before the judge commenced her summing-up, the applicant instructed him to inform the court that he did not in fact seek to rely on self-defence. Counsel acted in accordance with those instructions.

27.  In our view, the applicant in his testimony having asserted self-defence and counsel, in his address to the jury, having advocated for a full acquittal on the basis of that defence, the judge was obliged to direct the jury on the matter. By way of a preamble, however, she said:

“Before I do so, I must tell you that, although Mr Haynes has told me that his client does not want to rely on self-defence, because of the evidence given, you have to consider self-defence ... and you must acquit if you are satisfied that the defence of self-defence is made out.”

28.  As it was, the jury rejected the defence of self-defence.

29.  The judge was not prepared to give the applicant the full one-third discount for having tendered a plea of guilty to manslaughter at the commencement of trial when, during the course of the trial itself, he had given evidence effectively asserting self-defence and, on that basis, his counsel had pressed the jury to find the applicant not guilty of any offence at all. The rationale of the judge was expressed in the following terms:

“To permit such an attempt to succeed would expose the legal system to a real risk of abuse and would be unfair to accused persons who, having tendered a plea of guilty to manslaughter on a murder charge, ask the jury to convict them of manslaughter.”

30.  We do not see that the judge was wrong in law in concluding as she did. The law is now settled. It has been succinctly summarised by Bokhary PJ in Sze Kwan Lung and Others FAMC Nos. 1 and 2 of 2004:

“Sometimes a defendant who faces a murder charge offers to plead guilty to manslaughter.  If his offer is rejected by the prosecution, he has a choice. He can fight the case on the basis that he is not guilty of murder but guilty of manslaughter. Or he can fight the case on the basis that he is not guilty of any homicide.  There is a considerable difference between these two courses.  If the defendant is convicted of manslaughter after pursuing the first course, the full one-third discount of sentence for a guilty plea is normally given. But if he is convicted of manslaughter after pursuing the second course, something less than a one-third discount is normal.”

31.  As we understood Mr Haynes, he did not suggest that the judge had misdirected herself in law. His submission was rather to the effect that, before the jury retired to consider their verdict, they had been directed that the applicant no longer relied on the defence of self-defence. Any departure from the single defence that the applicant was not guilty of murder but was guilty of manslaughter had therefore been rectified.

32.  In our judgment, however, the defence of self-defence having been raised by the applicant and having been supported by way of counsel’s submissions to the jury, it remained open to the jury to find that the applicant had acted in self-defence and was therefore entitled to a full acquittal. On the evidence, matters were not so clear-cut as to render the defence hopeless from the outset. When the jury retired to consider their verdict, on the evidence, a finding of self-defence quite clearly remained a viable one.

33.  That being the case, we were satisfied that it was well within the parameters of the judge’s discretion to determine that, although the applicant should still obtain a generous discount, one of 20%, it should not be the full discount.

The sentence was nevertheless manifestly excessive

34.  The principal ground of appeal raised by Mr Haynes was to the effect that, when all the circumstances were taken into account, the provocation that had been endured by the applicant had been so prolonged and so profound, the level of the applicant’s culpability so limited, that this case had to be set at the lowest end of the scale. As such, the starting point should have been between two and three years only.

35.  We did not agree. There were a number of factors which the judge was entitled to take into account which set the culpability of the applicant at a higher level than that advocated by his counsel. Among other matters, fearing that his family may come to harm, the applicant had ensured that they spent the night elsewhere. They were not therefore at immediate risk. There was nobody else in the apartment that night other than the applicant and Wai Lun. Nor can it be said that the death of Wai Lun was brought about by just one or two knife wounds impulsively delivered. It was a deadly attack in which multiple knife wounds to the head and chest and upper limbs were inflicted. As we have said, two of the knife wounds punctured a lung. Wai Lun was left lying on the floor, his hands bound, to die.

36.  As Stock JA, as he then was, said in HKSAR v Lam Chun Fai, unreported, CACC 486/2005 cases of this kind are very difficult cases. More often than not the culpable party is a person without a criminal background and more often than not the circumstances in which the killing takes place are complex and require an understanding of deeply personal emotional stresses that develop over time. On the one hand, there is sympathy for a person, such as the applicant in present case, who has found himself out of his depth in what he no doubt saw as being an irretrievable situation. But on the other hand, it cannot be forgotten that a life has been taken, unnecessarily so, and brutally taken too.

37.  In our view, it had to be remembered that the judge had the benefit of acquiring in the course of the trial a true feel for the circumstances that led up to the attack and, of course, of the nature of the attack itself. In the circumstances of this case considerable weight had to be given to that fact.

38.  We were not prepared in this case to conclude that the sentence of five years’ imprisonment imposed by the judge was manifestly excessive. Indeed, on a consideration of all the evidence, it seemed to us to be a sentence that was appropriate.