HKSAR v. LI SO MAN

CACC 609/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 609 OF 1999

(ON APPEAL FROM HCCC 428 OF 1998)

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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):

Introduction

1. On 19 November 1999, the Applicant, aged 45, was convicted of manslaughter by reason of provocation, following a trial before Beeson J and a jury, on an indictment which had alleged murder. The Applicant was sentenced to twelve years' imprisonment against which she now seeks leave to appeal on the ground that this was manifestly excessive.

Prosecution's case

2. The killing, which took place on 1 September 1998 at about 2.00 a.m., arose from an unhappy family situation. The victim was the Applicant's husband who she bludgeoned to death with a hammer. This killing was the culmination of events following a number of days during which there had been argumentative behaviour between the Applicant and the victim. On at least one occasion, this had led to the police being called to the flat in Shamshuipo where they lived.

3. The precise circumstances in which the victim died are impossible to reconstruct with any precision. The Applicant's defence at trial involved the judge having to direct the jury as to self-defence, diminished responsibility and provocation.

4. In summing up the effect of some of the evidence given by police as to the Applicant's admissions, the judge reminded the jury that the Applicant had told one officer her husband had fallen over whilst he was in the toilet. She told another officer that following his fall, she thought her husband had tried to commit suicide and that later he requested her to kill him. She had proceeded to do so because she feared that the victim might carry out his threat to chop the children and herself if she did not do what he had told her to do.

Defence case

5. Many of the things allegedly said by the Applicant to the police were disputed by her when she gave evidence of having acted in self defence and under provocation. She testified also that the victim had been drinking heavily. As to this aspect, whilst some alcohol was detected in the victim's body, the suggestion that he had been drinking heavily was not borne out by scientific tests. What is clear is that the Applicant inflicted massive head injuries to the victim, shattering several areas of the skull. So powerful were the blows that the hammer had penetrated one area of the skull deeply enough to remove small pieces of the brain.

6. At the time of the incident, the Applicant had been married for eighteen years and was living in the flat with the victim and their son and daughter who were 17 and 11 years old respectively. For most of their married lives, the Applicant had lived in the mainland apart from the victim, but after her son settled in Hong Kong in 1997, the Applicant and her daughter followed him shortly afterwards.

7. According to the Applicant, the victim's behaviour began to deteriorate in mid-1998 and this seemed to her to be associated with his alcohol intake and general bad temper. In the weeks before the killing, the Applicant's son's room was damaged by the victim and there were several potentially violent episodes leading up to the occasion when police had to be called to the flat. The Applicant's son gave some support for the background the Applicant had described and, to an extent, some of the neighbours also confirmed a turbulent situation existed at the flat.

8. As to events immediately prior to the killing, the judge summed up to the jury the Applicant's account of what had happened in these terms:

"She told you about the quarrel with the deceased in the early hours of the morning, the quarrel starting first about her getting rid of his cloth belt and then later his threats to chop her and the children. She was then punched very hard and tried to leave the room. At that point the deceased followed her and assaulted her again.

The defendant fainted, and when she came round she began to quarrel with the deceased because she considered that he had not shown any care or concern for her. The deceased became angry at her answering back and made threats to burn the whole family to death. The defendant tried to telephone the police and the deceased assaulted her again, this time kicking her twice in the stomach, and at this point she tried to hit him with a small hammer.

According to the defendant the deceased then taunted her, asking her in effect how was she able to hit him with such a small hammer, why did she not use a large one. Now, at this point the defendant said she was so angry that she could not control herself, and she took the large hammer from the unit and delivered one blow. The deceased continued to scold her from a position near the floor and threw a heavy shoe at her. It was painful and she was so angry that she hit him again without counting the blows that she gave, but there were at least three. She said she was so angry that she did not notice which part of the hammer she was using to give the blows with. She said she felt so painful at the time that she could not stand the pain. She then dropped the hammer on the floor after that and said she sat crying in the living room until dawn, at which point she cleaned up the mess."

Sentencing remarks

9. In passing sentence, the judge described the case as one that was tragic and she went on to say:

"The defendant was provoked, according to the jury findings, into killing her husband in a particularly brutal and frenzied manner with a hammer. He must have died in great pain and probably almost, one hopes, instantaneously. There was evidence before the court, chiefly from this defendant and her son about the family background that pertained prior to the killing. It is clear that the deceased was either ill or affected by some form of psychosis or perhaps mental illness himself, immediately prior to his being killed, and I am particularly mindful in this case of the tragic consequences to the children.

However, taking all factors into account, what I must have to look at is that this was a very serious offence, the most serious offence there is. Although it is ameliorated somewhat by the presence of the provocation, the court has to take a stern view of violence, even within a domestic situation such as this was. For that reason, I do not think that a sentence of less than 12 years would be appropriate and I sentence this defendant to 12 years' imprisonment."

Ground of appeal

10. Mr Cosgrove, for the Applicant, criticised the comments of the judge to the extent that he submitted that the judge had failed to take into account a number of features of the case which could properly be regarded as mitigating the otherwise brutal nature of the crime.

Respondent's reply

11. We have helpfully had our attention drawn by Mr Albert Wong, on behalf of the Respondent, to a number of cases, amongst which is The Queen and Szeto Ken @ Szeto Shin CACC 687/1996 (unreported). In that case, this court upheld a sentence of ten years' imprisonment imposed on a husband ("S") who pleaded guilty to the manslaughter of his wife by reason of provocation. S had gambling debts and had fled to the Philippines but he came back to Hong Kong when he learnt that his wife was having an affair. When, eventually, he tracked his wife down in the early hours of one morning, he attempted to persuade her, but to no avail, to have him back. He then agreed to leave her alone if she would agree to have sexual intercourse with him. She did so, as a matter of expediency, and told him to be quick about it. However, afterwards S questioned her about her affair. He brandished a knife and was speaking of suicide. A quarrel developed, and S then repeatedly stabbed his wife to death before he stabbed himself in the stomach and slashed his wrists.

12. In The Queen and Yu Wing-sze CACC 372/1995 (unreported), again this court upheld a ten-year prison sentence for manslaughter, where the trial judge had described the provocation as only minimal. The killing had arisen from a dispute involving money. In the altercation which followed, the applicant slapped the female victim who shouted for help and called out "robbery". The applicant then struck her hard on the head with a bottle in order, as he later told police, to "silence her". The Court of Appeal, in dismissing the application for leave to appeal against sentence, said that although the sentence was on the severe side, it was disinclined to interfere.

13. Whilst neither of the cases we have just cited provides a scenario which closely resembles the present case, it is apparent that both of these cases were concerned with what might properly be described as minimal provocation when set in their full context.

Degree of provocation

14. The circumstances in which manslaughter results from situations involving prior domestic violence, or a highly stressful relationship because of long-term unhappiness, will inevitably involve an infinite variety of factors. We consider that the Applicant with whom we are today concerned was provoked to a degree which, looked at in the context of the victim's bizarre conduct in the twelve days leading up to his death, was more than merely minimal. Added to the Applicant's difficulties was the fact that she was herself diagnosed by psychiatrists as having had, at the time of the killing, an adjustment disorder stemming from anxiety and depression.

Conclusion

15. In all the circumstances, and in order loyally to reflect the jury's verdict, which must have involved an acceptance of at least part of the Applicant's evidence insofar as it concerned the provocation, we consider that a sentence of eight years' imprisonment would have been the appropriate sentence for what remains a most brutal killing. This takes into account the fact that the Applicant has demonstrated no real remorse. She contested the case from start to finish, primarily on the basis that she had acted in self-defence which the jury rejected.

16. Accordingly, we shall allow the application and grant leave to appeal. Treating the hearing as the appeal, we quash the sentence of twelve years and substitute a sentence of eight years' imprisonment. The appeal succeeds to this extent.