You have been found not guilty by the jury of the murder of your father. I now have to sentence you for the offence of manslaughter.
This is a sad and tragic case. You were so happy at the Annual Dinner hosted by your company three years ago, that you drank far too much red wine. You were so drunk that you had to be assisted home by your colleague. After your colleague had left, and when you were alone inside the flat with your father you attacked him with one stool, and having broken that stool you continued to attack him with a second stool. You hit your father repeatedly on his face and neck, so much so that his facial feature was flattened. Your father’s broken left arm indicated that had tried to defend himself by warding off your attack.
Based on the BAC - that is Blood Alcohol Concentration - measured about two hours after your father’s death, your BAC at the time of the killing was very high, five times over the legal limit.
It would appear that that level of drunkenness made you turn from a gentle person into an extremely aggressive one attacking your father in such a brutal way.
Before this tragic incident you were a man of good character. You lived with your parents and you financially supported them. You were described as a gentle and placid man who hardly lost his temper.
From the testimony of your mother and brother-in-law, and from the letters written by them and other family members, it can be seen that you are a filial son to your parents and a kind gentle and helpful person to others.
Your friends wrote to me singing your praises. In particular, a Mr Chan Chi-ming who wrote to say that you were kind enough to help him by visiting his aged parents when he was working in the mainland. Another friend, Kwan Chun-hung, who has to walk with an aid of a walking stick and whose speech becomes slurred due to a virus attack to his brain in 2000, attended the trial and wrote to inform me that you respected him as a friend and did not forsake him because of his illness.
You yourself have also written to me to express your deep remorse and your desire to return home earlier to take care of your mother. You, your family members and your friends all ask for leniency on your behalf.
I accept that you are extremely remorseful for having done what you had done. The fact that you killed your father after getting rotten drunk must have weighed heavily on your conscious and will continue to be the case for the rest of your life.
While I accept that you are deeply remorseful, it is still a fact that you have voluntarily consumed a large amount of red wine and got yourself very drunk.
Your drunkenness had impaired your judgment and your appreciation of the consequence of your acts. The tragic consequence of your acts was that you have taken away the life of another human being - the life of your father.
Understandably, there is no tariff on manslaughter. The facts of one case may vary vastly from another.
I have been provided with some authorities on the sentencing of manslaughter by both counsel. I do not find any of them helpful. Almost all of them were cases in which the murder was reduced by manslaughter by reason of diminished responsibility or provocation.
I am of the view that where a jury finds that all the elements of murder, including the intent to kill, or to cause really serious bodily harm to the victim are present, but that the culpability of the defendant is reduced by reason of his mental condition or provocation so that the defendant is guilty of manslaughter, such a scenario is very different from one where the jury finds the prosecutionhad not proved that there was intent to kill or cause really serious bodily harm as in the present case.
Having considered all the circumstances of this tragic case, and your personal background, I am of the view that a proper sentence, after trial for this manslaughter is one of 5 years.
You have pleaded guilty to manslaughter to the charge of murder which was not accepted by the prosecution.
I have to decide whether you are entitled to a full one‑third discount which is usually for a timely plea.
I bear in mind that on the last occasion your defence was automatism. The jury raised the question whether manslaughter was open to them, but the trial judge told them they could only consider murder. The jury clearly did not accept your defence of automatism and found you guilty of murder.
The Court of Appeal quashed your conviction on the basis that manslaughter should have been left to the jury on the facts of this case.
If the effect of the alcohol was such that rendered a person incapable of forming the intent to kill or to cause really serious bodily harm to the victim, then that person is not guilty of murder but guilty of manslaughter on the basis of a dangerous and unlawful act.
After receiving legal advice, you indicated through counsel at the pre-trial review that you were prepared to plead guilty to manslaughter on that basis, and you did plead guilty before me on the first day of trial on that basis.
So for this reason I will give you the full one-third discount.
After a one-third discount, 5 years’ imprisonment - that is 60 months, will become a term of 3 years and 4 months’ imprisonment - 40 months.
So the offence of manslaughter, you are sentenced to 3 years and 4 months’ imprisonment.