CRIMINAL CASE NO. 124 OF 2011
COURT: On 15 November of this year, the defendant was arraigned on an indictment which charged him with the murder of one Norov Maidar. That murder was said to have occurred on 10 August of 2010. The defendant pleaded not guilty to the murder but guilty to manslaughter.
That plea was accepted by the prosecution in satisfaction of the indictment on the basis that the defendant brought about the death of Maidar by an unlawful and dangerous act. The acceptance of the plea, properly understood, is that the prosecution accepted that whilst the defendant had unlawfully caused the death of Maidar, at the time he did so, he lacked the requisite intent for the crime of murder.
The Summary of Facts admitted by the defendant advanced in support of the prosecution case can be summarised as follows. The defendant is a Mongolian national, as was the victim. On 10 August last year, late in the afternoon, the proprietor of a guesthouse at Flat E2, 14th Floor, Block E, Chungking Mansion, which is located in Nathan Road in Kowloon, found the body of the victim on the floor of one of the rooms in that guesthouse. He had been bleeding profusely from his nostrils and mouth.
Ambulance officers who arrived shortly after this, confirmed that he was, by that time, already dead. The room itself was in a chaotic state. It was littered with beer and spirit bottles and there had obviously been very large quantities of alcohol consumed there.
The Summary of Facts revealed that some two days before the discovery of the victim’s body, this room had been let to a Mongolian couple for some four days. As it transpires, in the early hours of the morning of 10 August, there were present in that room a number of persons, including the victim and the defendant.
Whilst this gathering was initially amicable, as the night wore on and a large quantity of alcohol was consumed, a dispute arose between the defendant and the victim. They were not previously known to one another but the dispute had as its focus matters arising out of their circumstances previously in Mongolia. The victim became very agitated. He and the defendant began to struggle. In the course of that struggle, the defendant, amongst other things, wrapped a bed sheet around the victim’s neck, from behind, intending, he said, to calm the victim down.
The victim managed to remove the bed sheet and, in the course of doing so, bit the defendant on the forearm. It was after this that the victim fell to the floor, apparently unconscious. The defendant believed that he was pretending and consequently kicked him in the abdomen. It is clear that he was not pretending. The defendant and the other persons in the room attempted to revive him but to no avail. The group, including the defendant, obviously realising the gravity of the situation, fled the scene but not before taking from the victim some HK$7,000.
The following day, the defendant was arrested and, on 12 August, was interviewed. In that interview, the defendant accepted that he was responsible for the death of the victim but that death was not the intended result of his action.
As to the cause of death, an autopsy was performed on 11 August. The result as to the cause of death was inconclusive. The pathologist used the expression, “It was unascertained”. He did, however, note that the victim had sustained a number of injuries which included bruises and abrasions to the head and body. Whilst some of these were deep in parts, none of them were lethal, nor did they cause trauma to any vital organ. That finding did, however, indicate that a violent assault or struggle had taken place, according to the pathologist. The pathologist noted that there were abrasions to the neck and other indices of strangulation but, at most, he said, these were a possible cause of death.
On behalf of the defendant, Mr McNamara has told me something of his background. He is 30 years of age and completed secondary education in Mongolia where he was initially employed as a fireman and, latterly, a garment trader. He has previously been arrested and convicted of shoplifting in Hong Kong in 2004, 2006, 2009 and 2010. On each of those occasions, he was sentenced to a term of imprisonment.
As to the offence, Mr McNamara submitted that this was a manslaughter at the lower end of the scale of culpability. This is because, he said, it was the victim who was initially behaving badly and was aggressive and offensive. The defendant was, at the time, trying to calm him and the situation down. This was a one-on-one confrontation. There was no weapon used. The actions of the defendant were not premeditated.
Mr McNamara further submitted that whilst the defendant has pleaded guilty to manslaughter, he could well have challenged the issue of causation and had the possibility of being acquitted. As it was, he did not do this and offered to plead guilty at a very early stage.
Turning now to the circumstances that gave rise to the death of the victim, it is apparent from the material before me that the injuries sustained by the victim, whilst not apparently individually life-threatening, were in number many and were far more serious than any sustained by the defendant.
I pause to ask this question. Is this a case at the lower or lowest range of seriousness for offences of manslaughter as Mr McNamara suggests? Clearly, it is not in the most serious bracket. But it is not, to my mind, in the least serious either. Nor is it a case which can be factually compared with what are referred to in various authorities as the one-punch type of manslaughter.
The conduct of the defendant, together with the other persons in that room, in stealing from the victim after he was clearly in an unconscious state is, to my mind, a significant aggravating factor. It is not, to my mind, offset by the assertion made by the defendant that, having been unable to revive the victim, he had, when leaving together with the contents of the victim’s wallet, tried to call 999 to alert someone to his circumstances.
I do not intend to adopt a starting point for sentence. The sentence I will impose takes into account all of the mitigating factors advanced on the defendant’s behalf, which includes his very early offer to plead guilty to manslaughter.
Taking all of these matters into account, I am satisfied that the most appropriate sentence in all of the circumstances is a term of imprisonment of 6 years and that is the sentence that I impose.