HKSAR v. TAM SHU KIN

CACC 444/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 444 OF 2004

(ON APPEAL FROM HCCC 62 of 2004)

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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 4 October 2004, the applicant was acquitted of murder but convicted of manslaughter by reason of provocation following a trial before Lunn J and a jury.  He was sentenced on the following day to 9 years’ imprisonment against which he now seeks leave to appeal.

Prosecution’s case

2.  The facts fell within a relatively narrow compass.  Shortly after 12 noon on 16 September 2003, the body of the 46-year-old wife of the applicant was examined by an ambulanceman as she lay in a pool of her own blood on the living room floor at her home at Room 1104, Wah Oi House, Wah Kwai Estate in Aberdeen.  There were horizontal wounds to the left and right side of her neck.  The forensic pathologist’s evidence was that these wounds were caused by a single through-and-through stab wound measuring about 11 centimetres in length.  This had cut the left and right carotid arteries and had completely severed the windpipe and the oesophagus.  Death from these injuries would have occurred rapidly.

3.  It was not in dispute at trial that the applicant had used the large kitchen knife, exhibit P6, to cause these wounds to the deceased.

4.  At 11:43 a.m., on the day of the killing, the applicant called his sister-in-law to say, by way of reference to the deceased: “I have killed her.  Don’t mention it to the village fellows”.  He added that he would report the matter to the police.  At 11:54 a.m. on the same day, the applicant told the police, using the 999 system, that he had stabbed the deceased and claimed that he had killed her “accidentally”.  He also said: “It’s been very rough … old husband and young wife … for me to bear my wife’s temper.”  When the police arrived at his home and were let in by the applicant, he again admitted “chopping” his wife.

5.  In the late afternoon of the same day, the applicant was interviewed by police officers at Aberdeen Police Station.  He gave the police an account of how he came to kill his wife.  He spoke of how he flared up on an impulse when his wife wanted to reduce his money from $1,000 to $500.  He took a knife and “poked” her with it once and she fell to the floor.  Self-defence, which the applicant put forward at trial, was never raised by him during his interview.

Defence case

6.  The applicant, aged 68 at the time of the killing, came to Hong Kong from the Mainland in 1962.  In 1982, he returned to the Mainland where he married the deceased.  They had 3 children but the deceased remained in the Mainland until 1998 when she came to Hong Kong.  Two years earlier, the two youngest children had come to Hong Kong to live with the applicant.  By that stage, the applicant had ceased working and was receiving assistance from the Social Welfare Department.  However, it may not be without significance that the applicant is adept in the use of knives having, when he was in employment, worked in an abattoire for seven years and for several decades after that as a market assistant whose job included cutting meat.

7.  When describing the relationship between his wife and himself, the applicant said that she had subjected him to persistent scolding arising from the fact that he had no money.  She had cursed him, saying amongst other things: “Why don’t you die, so many people die, why don’t you die?”

8.  The applicant also described the financial position of the family.  He said that prior to June 2003, the family income had been about $12,000 a month.  Almost all of that money came from payments from the Social Welfare Department but, additionally, his wife worked for 4 hours a day on 3 to 4 days a week which brought in a daily income of about $70 to $80.

9.  In June 2003 the payments made by the Social Welfare Department were reduced by 11% to about $11,000 per month.  These monies were paid into a joint bank account in the names of the applicant and the deceased.  According to the applicant, prior to June 2003 his wife had allowed him $1,600 each month as his share which, in June 2003, she reduced to a monthly sum of $1,000.

10.  The applicant said that at home he occupied a cubicle with no air-conditioning whereas the other family members had an air-conditioned room.  It was his habit, when at home, to get up early and to take a walk in the park at about 5:00 a.m.  He returned home after the children had gone to school.  It was also his practice to live in the Mainland soon after the beginning of each month, having received his money, and to return to Hong Kong at the end of the month.  He said that he did so because he could not stand his wife’s day-and-night scolding.  The applicant said that on $1,000 per month, he was just about able to make ends meet, given that his travel expenses to Dongguan were about $300.

11.  The applicant said that the deceased had turned the children against him.  Most of the time, they spent their time with their mother.  He complained that his children did not greet him, either in the lift or in the street, and that they treated him as though he did not exist.

12.  On the day of the killing, the applicant said that he returned home after his walk in the park, by which time the children had gone to school.  Whilst he and the deceased were having a meal together in their home, she told him that starting from the following month he would only receive a monthly allowance of $500.  He protested that this was not enough and that he needed at least $1,000.  She responded: “$500 is enough”.  He replied: “It means you force me to die.  If I die, you can’t receive my payments from the Social Welfare Department”.  She said: “If I can’t receive it, that’s it, you die, you can die.  Very simple”.

13.  The applicant said that he felt so miserable that he returned to his cubicle where he closed and locked the door. He could still hear the deceased outside continuing to scold him.  Later, when his wife had stopped, he left home and went for a walk.  On his return to the flat after 11 a.m., he and the deceased sat side by side at the table in the living room to have a meal which she had prepared.

14.  When he had nearly finished his meal, he said that the deceased began to scold him again.  They argued and at one point he said that the deceased began to get up and that she picked up a stool as if to hit him.  Immediately, he stood up so that he was against the wall about a foot away from her.  He took one step across the corridor to the drawer and picked up the knife (exhibit P6) which he claimed he had bought some years beforehand for the purpose of peeling apples.  He said that this was done to threaten her and that he did not mean to harm her.  When the deceased saw him take out the knife, she put down the stool.  He went on to say that on impulse he had “poked” the deceased with the knife but he denied an intention to kill her, saying: “I just tried to threaten her with a knife.  I don’t know how the knife stabbed her neck.  I only stabbed her once”. 

15.  The applicant provided three reasons for “poking” the deceased with the knife although only the first of these had been mentioned to the police in his interview.  The most important thing, he said, was that the deceased had said she would reduce the money he was to receive and had rejected the point of view he had tried to put forward; secondly, it had come into his mind that he had overheard the deceased saying some months earlier that she would change the surname of his children which had caused him great unhappiness; and, thirdly, the deceased had picked up a stool and tried to hit him with it.  All in all, according to the applicant, he was left thinking that the deceased wanted him to die.  This made him flare up because he could bear it no more.  However, the applicant admitted that his motive for stabbing his wife was that she was always scolding and cursing him and that he wanted to teach her a lesson so that she had pain on her body.  He did this so that she would not scold him or curse him anymore and so that he would not feel so miserable.

Mitigation and sentencing

16.  In mitigation, counsel who then appeared for the applicant submitted that the applicant had “indicated a willingness to plead guilty to manslaughter on the basis of provocation” at a pre-trial review.  This was followed by a letter to the Department of Justice, but the offer was rejected.  In making the point, counsel was seeking some credit to be given to the applicant for his offer to plead guilty which he accepted fell short of an actual plea of guilty.

17.  This was taken up by the judge who rightly commented at different stages of the mitigation that he had been persuaded to leave to the jury the alternatives of manslaughter by an unlawful act without intent (appeal bundle p. 90), and that the applicant had raised the issue of self-defence which was, if accepted, a complete defence to the count of murder and “inconsistent with the offer to plead guilty to manslaughter” (appeal bundle p. 100).  The judge went on to consider with both trial counsel a number of authorities from Hong Kong and elsewhere dealing with the point at issue before deciding the extent of the applicant’s discount.  We shall return to this shortly.

18.  In passing sentence, the judge said, when describing the provocation as being at the “low end of the scale”:

“The provocation described by you has only to be recited for it to be clear that your wife’s conduct, which did or may have provoked you to do as you did, falls at the low end of the scale of such conduct by which culpability may be reduced from that of murder to manslaughter.

To put the words attributed to your wife by you, on 16 September 2003, into context, it is necessary to note that your evidence was that, in June 2003, your wife had reduced your then payment of $1,600 to $1,000 per month.  That reduction was precipitated by a reduction in the payment to the family as a whole of 11 per cent by the Social Welfare Department.  That was a Territory-wide reduction of payments.  Those moneys were paid into a bank account in the joint name of you and your wife.

When your wife told you, on the morning of 16 September 2003, that the payment to you was to be reduced to $500, adding, according to you, cruel and abusive words to the effect that if you were to die, so be it, your initial response was to walk away from her, to retire to your cubicle and then to go for a walk in the park.  It was only two or three hours later, when you returned to the family home to partake of the lunch that she had cooked for you, that you fell to arguing again about money matters.  The devastating violence which you visited upon the deceased is to be viewed in the context of the conduct I have just described.” (Appeal bundle at pp. 104-105)

19.  The judge considered various matters raised in mitigation including the previous good character of the applicant and the fact that by this stage of proceedings the applicant had attained the age of 70.  He took the view that in isolation these factors did not entitle the applicant to a discount.  The judge paid particular regard to what was said in R v Alden & Anor [2001] 2 Cr. App. R. (S) 401 where the English Court of Appeal took the view that an appellant aged 66 who was liable to be released when 76 could not, by reason of age alone, expect to receive a reduction in his 15- year sentence.  However, turning to the offer of the guilty plea and the discount which flowed from it, the judge had this to say:

“Clearly, you are entitled to a discount of sentence for the fact that, prior to arraignment, you made an offer to the prosecution to plead guilty to the alternative offence of manslaughter by reason of provocation.  That is the very offence of which this jury has convicted you.  Your offer was rejected by the prosecution.  However, as I noted earlier, you did not tender that plea on arraignment.

In the course of your testimony, and because of your testimony, the issue of self-defence was raised. You testified that the deceased had taken hold of a stool with which to hit you.  You testified that, in response to that movement, you took hold of the knife in order to threaten her.  At first, you said that whilst you accepted that you had stabbed the deceased in the neck, you did not know how that had happened.  Later, you said that you intended to stab the deceased, not in the neck but in the shoulder to cause her pain, to teach her a lesson.  Specifically, you said that you did not intend to kill her.” (Appeal bundle at p. 106)

20.  The judge then turned to a consideration of the judgment handed down on 11 December 2003 in HKSAR v Sze Kwan-lung and Ors, CACC 92/2002, in respect of applications for leave to appeal against sentence.  There, this court dealt with some of the principles to be applied when sentencing where an offer to plead guilty has been made to the prosecution in advance of a trial and the defendant is eventually convicted of the offence to which he had offered to plead guilty.  Lunn J put the matter succinctly when observing that there were three different ways in which a defendant can conduct himself, and he set them out as follows:

“… firstly, he could make an offer to the prosecution to plead guilty to manslaughter by reason of provocation and, on arraignment, he could tender a plea of guilty on that basis.

Secondly, he could make an offer to the prosecution to plead guilty to manslaughter by reason of provocation.  On arraignment, he could plead not guilty simpliciter and then conduct his defence in a manner consistent with his offer to the prosecution to plead guilty.

Thirdly, he could make an offer to the prosecution to plead guilty to manslaughter by reason of provocation.  On arraignment, he could plead not guilty, and then he could conduct his defence in a manner inconsistent with his offer to the prosecution to plead guilty.” (Appeal bundle at p. 107)

Applying these principles, the applicant fell into the third category.  The judge took a starting point of 11 years’ imprisonment which he discounted by 2 years to give credit for the offer of a plea of guilty, making a total of 9 years’ imprisonment.

The application

21.  Mr Poll advanced 2 grounds of appeal on the applicant’s behalf.

22.  Firstly, it was submitted that the judge had failed to appreciate the “full extent of the provocation” which had led to a starting point being taken which was too high.  Secondly, it was argued that there had been a failure to take fully into account the age and health of the applicant and the effect on him of a 9-year sentence.

23.  Taking the second of these points first, we were specifically informed about two aspects of the applicant’s health as it stands at present, pursuant to a Notice of Motion to produce fresh evidence in the form of two medical reports under section 83V of the Criminal Procedure Ordinance, Cap. 221.  It was pointed out by Mr Poll that the judge had been told that the applicant was in good health, but in fact the applicant has suffered, as stated in one of the medical reports, from cataracts in both eyes for which he has been regularly seen since 22 September 1998.  The applicant has also suffered from gastro-intestinal problems for which he was last seen on 8 October 2004 when, according to the other medical report, he was described as being “well” except for “occasional reflux symptoms”. 

24.  The medical evidence which we were asked to consider was of no weight in a case of this gravity and clearly did not support a submission that the applicant deserved to be given a reduced sentence (see: HKSAR v Sin Kwai-ching, CACC 176/2004 (unreported)).  Indeed, even if the medical evidence had established a serious illness, this would have been a matter for the Executive to consider rather than this court.  We are somewhat surprised that this issue was even raised as a ground.  It ought not to have been.

25.  Dealing with the allegation that the judge had not appreciated the extent of the provocation, Mr Poll was referring to the way the judge expressed the matter at the time of sentencing which, it was suggested, revealed a failure to take into account the cumulative effect of the deceased’s behaviour towards the applicant.  The passage to which Mr Poll took us was in these terms:

“As I have indicated already, in my judgment, the degree of provocation afforded to you by the conduct of your wife, as described by you, falls at the low end of such conduct which reduces the culpability of murder to manslaughter.  It was no more than, probably, an all too common domestic circumstance, where money is in short supply.”  (Appeal bundle at p. 106)

26.  Mr Simon Tam, on behalf of the respondent, was right to point out that Mr Poll’s submission did not stand close examination.  No doubt the evidence which was relevant to provocation covered a wider ambit than the judge mentioned in the passage just cited, but it has never been suggested that when the judge summed up on provocation he omitted to deal with anything which was relevant to this issue.  On the contrary, he covered the topic in great detail and it is apparent that he was utterly conversant with all the facts in the case.  There are, of course, varying degrees of provocation but again, as Mr Tam submitted, it was for the judge to assess the applicant’s culpability with this in mind and to consider the nature of the violence with which the applicant responded.  We note, at one stage during the summing up, that the judge remarked:

“It is as well to reflect upon what the defendant did do to the deceased.  Having picked up the longest, sharpest and most pointed knife, he plunged it through her entire neck.” (Appeal bundle at p. 28)

27.  Mr Poll has provided us with a number of cases where manslaughter sentences have been considered by this court.  We have considered these but, as Mr Poll accepted, these are necessarily of limited value as each case needs to be considered on its own merits.

28.  We are satisfied that the judge, with the great advantage of having conducted the trial, was entitled to have viewed the provocation in this case as falling at the “low end”.  As he commented in summing up (at appeal bundle pp. 27-28), the applicant had a place where he was able to stay in the Mainland and he was entitled to more than $1,000 out of the money being sent to him by the Social Welfare Department, so “were there not obvious steps that the (applicant) could have taken to protect his personal position”.

Conclusion

29.  Having regard to all the factors which the judge took into account, including the discount for the offer of a plea of guilty which Mr Poll belatedly attempted to criticise, in our opinion the sentence was not manifestly excessive.

30.  Accordingly, this application is dismissed.