HKSAR v. MA FAT MAN

HCCC 111/2017

[2018] HKCFI 188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 111 OF 2017

-----------------

------------------

-----------------------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

-----------------------------------------------

COURT:

The defendant pleaded guilty to one charge of manslaughter. The deceased was a cleaner at Morse Park. In the morning on 7 January 2016, he was sweeping the floor, when the defendant accused him of having swept his foot with the broom and not apologising.

The deceased was seen by a passer-by, to have walked two steps away from the defendant when the defendant suddenly pushed the chest of the deceased with both hands, causing the deceased to fall backwards onto the ground. Afterwards, the defendant admitted later that he did stamp with his right foot on the deceased’s chest and walk away. The passer-by did not witness this part of the incident.

The passer-by, on seeing that the deceased could neither speak nor move, helped him to sit up. The ambulance and police were then called. The deceased was admitted into hospital, and before any spinal surgery could be performed, complications set in, and he eventually passed away on 1 February 2016.

The defendant was arrested in the afternoon on the same day, apparently after he had assaulted the deceased, he went on to another park to sleep, then he went home to have lunch, and when he was on his way through Morse Park to his son’s home, he was identified by the passer-by who witnessed the incident and arrested by the police.

The defendant is aged 61, with borderline intelligence. He has previous record of wounding back in 1995, for which he was sentenced to 8 months’ imprisonment, but it would seem that he had managed to keep himself out of trouble since then.

The defendant now regrets that he has underestimated the seriousness of his impulsive acts. He claimed that he did not realise the vulnerability of the deceased. According to the forensic pathologist, in simple terms, the deceased, not known to have prior medical history of symptoms relating to the spinal cord, had an underlying spondylitis, which increase the risk of vertebral fractures, and a fall to his back is consistent with the complication of the spinal cord injury resulting in vertebral fractures. This underlying condition was perhaps also unknown to the deceased himself.

There are clear authorities that sentencing court must consider consequence of the blow, even if not foreseen or desired as there had been a loss of life.

Counsel has urged me to take very little account of what the defendant allegedly claimed, that he had stamped on the chest of the deceased before he left, but I cannot overlook that this was an admission by him on two separate occasions.

Apart from this aggravating feature, there is another aggravating feature, that after the deceased landed on the ground, the defendant simply walked away without giving a hand.

Counsel for the defendant sent to this court a string of English authorities which suggests where death result from a single blow or punch, and the deceased losing balance and knocked his head against hard objects, commonly known as one-punch manslaughter, 2 years’ imprisonment for a manslaughter charge would be appropriate.

The Court of Appeal in R v Lo Bing Sun CACC 660/1993 commented that the situation in Hong Kong is very different from that of England, as people here lived in a very crowded and dense environment, and the unlawful and dangerous act constituted even by a single blow or push need to be deterred. The court in HKSAR v Tsang Siu Ching [2001] 1 HKLRD 522 has stressed that no attempt to call for medical assistance after the blow is an aggravating feature.

I have taken into account all the features of the present case, in particular defendant’s remorse, as manifested in his guilty plea, as well as his mental history. It might be that his overreaction and impetuosity was caused by his own psychiatric problem which he has very little insight about, and his prolonged consumption of alcohol has let his condition develop into psychosis.

And on the day in question, before he took the stroll in the park, and before the altercation with the deceased, he had admittedly consumed alcohol earlier.

But all these are no excuse to vent one’s anger in this way. I cannot lose sight of the fact that a life was lost as a result. All that could have been said on the defendant’s behalf has been advanced by counsel. I am of the view that a sentence of 4 and a half years is appropriate, and this is the sentence that I pass.