HKSAR v. LI SAI ON

CACC 183/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 183 OF 2008

(ON APPEAL FROM HCCC NO. 285 OF 2007)

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REASONS   FOR   JUDGMENT

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Hon McMahon J (giving the judgment of the Court):

1. The 34-year-old applicant was charged with murder and, after his offer to plea guilty to manslaughter was rejected, went to trial before a jury and Beeson J.  On 28 April 2008, he was convicted of manslaughter and on 14 May 2008, after the provision of a background report, was sentenced to 12 years’ imprisonment.  He sought leave to appeal that sentence.  At the conclusion of the hearing, we dismissed the application and now give our reasons.

The facts

2. The facts of the case were as follows.

3. The applicant was a staff member at the Caritas Jockey Club Lai King Rehabilitation Centre (“the Centre”).  His responsibilities included the day-to-day care of various patients at the Centre including the 47-year-old deceased who had been a long term resident there and who suffered from schizophrenia.  There was evidence before the judge which equated the deceased’s mental age with that of “a child of primary school years”.

4. Shortly before his death, the deceased had lost a book which recorded his attendance at occupational therapy classes conducted at the Centre.  According to the applicant’s case at trial, the deceased had suggested that the applicant had taken it from him.  The applicant was concerned that as a result of this allegation his contract with the Centre might not be renewed.

5. During the night of 25 April 2007, the applicant assaulted the deceased and killed him.  The only detailed evidence as to what had occurred came from the applicant’s video recorded interviews with the police and a video recorded reconstruction, he having elected not to give evidence. 

6. According to those recorded interviews and the reconstruction, the applicant, while on duty in the early hours of 26 April 2007, had gone to the deceased’s dormitory and awoken the deceased by kicking him so as to speak to him about the missing book.  They briefly discussed the complaint the deceased had made about the applicant taking the book and the applicant accused the deceased of lying.

7. He then took the deceased to another part of the Centre called the television hall and there he again warned the deceased about lying and threatened his removal from the Centre.  He told the deceased to sit in a certain part of the hall and to keep quiet and watch television.  The deceased however spoke noisily and, according to the applicant’s video recorded interview :

“He still did not lower the voice and in that moment I did not think.  I held his neck with a fork-like grip and slapped him twice.  When I released the hand he said ‘Don’t beat again, don’t beat again.’  I said ‘Don’t make any noise again.  If you continue to be noisy I’ll make you stand for the whole night’.”

8. According to the contents of the applicant’s recorded interview, the deceased then said that he wanted to go to the toilet and, after the applicant said he was allowed to do so, the deceased then pitched forwards onto the floor.  He appeared to have difficulty breathing.  The applicant described how he tried to assist the deceased to breathe and then decided to get a wheelchair from another wing of the building and having done so placed the deceased in it.  He then wheeled the deceased to a wing of the Centre where a medical nurse and another care assistant were able to attempt to attend to the deceased.  Eventually an ambulance was called to the Centre and the deceased was taken to Princess Margaret Hospital.  Efforts to resuscitate him were unsuccessful and the deceased was certified dead at 5:16 a.m. on 26 April 2007.

9. An autopsy was conducted.  The findings of the Government Pathologist, Dr Lau, as to the injuries he found upon examination of the deceased’s body were not in dispute, though the interpretation to be placed upon those injuries was.  The findings of the pathologist, in summary, were that there were a large number of bruises on the deceased’s body concentrated particularly on the face, neck, buttocks and legs.  Of particular note was deep bruising to the deceased’s neck area, a broken hyoid bone in the neck, the formation of petechiae on the deceased’s face and in his lungs, on the surface of his heart and under his eyelids, and the presence of three broken ribs at his lower back area.

10. The sole issue at trial revolved around the intent of the applicant.  The jury, by its verdict, plainly were of the view that the prosecution had failed to establish an intent to kill or cause really serious bodily injury on the part of the applicant and convicted him instead of manslaughter by an unlawful act.

11. Mr Arthur, on behalf of the applicant, asserted that the sentence of 12 years’ imprisonment was manifestly excessive and provided the following grounds in support of that proposition :

(1)     the judge failed to give proper weight to the possibility of vasovagal inhibition as the cause of death;

(2)     the judge was wrong to categorise the applicant’s assault upon the deceased as occurring within the context of a bullying and punishment session;

(3)     the judge wrongly described the applicant’s reaction to the collapse of the deceased as being one of inaction;

(4)     the judge wrongly found the applicant’s assault on the deceased was premeditated; and

(5)     the judge erred in imposing a deterrent sentence or, alternatively, failed to impose the least possible deterrent sentence.

(1)     The possibility of vasovagal inhibition

12. Mr Arthur argued that the evidence of Dr Lau did not exclude the cause of the deceased’s death as being vasovagal inhibition, occasioned by the applicant applying force to the carotid sinus thereby triggering a reflex action in the vagus nerve which inhibited the normal beating of the deceased’s heart and caused cardiac arrest.  If that were so, the argument went, then a much reduced time frame for the duration of the attack was possible so as to be inconsistent with the sentence imposed which was appropriate only for circumstances in which the death of the deceased was occasioned by a prolonged attack of considerable violence.

13. More particularly, Mr Arthur argued that Dr Lau’s evidence as to the possibility of the deceased’s death being occasioned by vasovagal inhibition was consistent with the applicant’s case at trial which was to the effect that he had grabbed the deceased’s neck with one hand for the purpose of assaulting him by slapping his face and kicking him.

14. With respect to Mr Arthur’s argument in that latter regard, the assault on the deceased amounted to considerably more than “a slapping”.  In any event, Mr Arthur argued that given that scenario as a possibility, the sentence was inappropriate for what was otherwise a death occasioned by a moderate assault.

15. Dr Lau, in his evidence, had accepted that vasovagal inhibition was a possible cause of the death of the deceased, but had also stated that in his opinion where, on the applicant’s version of events, the deceased had not immediately succumbed but had after the assault sat in a chair for a short period of time and then requested to go to the toilet before collapsing, it would have been “exceptional” for there to have been any such delayed reaction brought about by vasovagal inhibition.  His evidence in that regard was given within the context of his original opinion that the cause of death was asphyxia due to pressure being applied to the deceased’s neck, though that opinion seems to have been expanded as a result of cross-examination to allow for the possibility of delayed vasovagal inhibtion.

16. The judge, in sentencing the applicant, said of the deceased’s injuries :

“The Forensic Pathologist’s report, as I have said earlier, described the serious injuries which had been inflicted, including the deep bruising which underlay the neck injury, the broken hyoid bone and the petechiae on the eyelids and lungs as indicators of major force.

Although the injuries could have been caused in some instances by the rough and tumble of hostel life or with being inflicted in the 48 hours before death, I have no doubt that the fresh injuries were largely caused by the defendant in his attempts to punish Mr Chu.  It is most unlikely that that range and number of fresh injuries to Mr Chu would have gone unnoticed by staff in the previous 48 hours, or that the pain and discomfort of his fractured ribs could have been ignored by Mr Chu.

…”

and later :

“Although the Forensic Pathologist agreed it was possible that the defendant’s act of grabbing the neck of Mr Chu with one hand could have caused the death, and that within a fairly short time, it is also clear from his evidence that he considered the amount of force applied was significant.

…

As for the acceptance of death as a result of vaso-vagal inhibition, it was open to the jury to accept this either as the sole cause of collapse and death, or as mixed with a congestive asphyxial mode and causing death in that combined mode.  In either case, the death was attributable to the actions of the defendant who must bear the responsibility for it, just as he must bear the consequences for any heightened sensitivity of the vagal mechanism which might have occurred as the result of fear.”

17. In our view, the judge gave full weight to the possibility of vasovagal inhibition being a contributing factor to the death of the deceased but properly did so against the background of the other evidence in the case.  That background clearly demonstrated that given, inter alia, the petechiae, broken hyoid bone and three broken ribs suffered by the deceased, his death was occasioned, whether by asphyxia or vasovagal inhibition, in the course of a savage and prolonged assault.  Whether following such an assault involving both strangulation and a beating resulting in a number of broken bones and other significant injuries to the deceased, vasovagal inhibition was a cause or the cause of the death of the deceased seems to us to matter little.  Essentially, the applicant’s vicious attack on the deceased brought about his death.

18. The judge’s approach to Dr Lau’s evidence of the “exceptional” possibility of vasovagal inhibition being a cause of death was wholly correct and properly took into account the overall nature of the attack upon the deceased which resulted in his death.

19. There was nothing in this ground.

(2)     The categorisation of the assault as occurring within a punishment and bullying session

20. The judge in arriving at her sentence had said :

“What occurred, even on the rather guarded account given by the defendant, appears to have been a bullying and punishment session carried out by the defendant on the hapless, frightened Mr Chu.  This involved significant assaults by the defendant against Mr Chu, either as punishment for his belief that Mr Chu had complained about him, or because he wished to prevent Mr Chu from making a complaint about him.”

21. Mr Arthur argued that there was no evidence that the assault by the applicant upon the deceased had occurred during any such session and that the evidence was as consistent with the applicant simply taking the deceased to the television hall to talk to him.

22. The judge gave reasons for her reference to a “bullying and punishment session” by reference to the applicant’s actions in taking the deceased out of his dormitory and to the television hall :

“It appears from what happened on that night that the defendant believed, on hearsay evidence, that the victim, Mr Chu, was accusing him of having taken his O/T book.  There does not appear to have been any complaint made to that effect, although it was true that the victim was searching for the book.  The defendant apparently brooded about the matter after hearing from his colleague in the afternoon of that day.  The defendant was worried that his contract might not be renewed.

…

He did so by going completely outside the scope of his duties as a personal care worker and in a particularly aggressive way.  Surreptitiously and without informing his colleague on the AB wing, he left the CD wing and went to Mr Chu’s room on the AB wing.  He kicked the sleeping Mr Chu in the buttocks twice to wake him.  Having done that, he took Mr Chu back to the CD wing, trying to avoid contact with his colleague as he did so.

…

… The defendant returned to the CD wing with Mr Chu, to the television room.  There were no witnesses as to what happened in the TV room thereafter, apart from the account given by the defendant.”

23. What followed in the television hall resulted in the injuries we have already described.

24. Bearing in mind the disparity in size between the applicant and the deceased, the applicant being much the larger; the lack of any evidence that the deceased had fought back and the applicant’s own description of the incident, we do not see that the judge’s categorisation of the events as a bullying and punishment session can be criticised.  It should be borne in mind that the deceased was effectively kicked out of bed while asleep at night, was then taken by the applicant to another wing of the Centre completely unnecessarily and for no good reason and while there was told if he did not keep quiet he would have to stand all night, before or at the time of being savagely assaulted.  During that time he was also told effectively that if he said the applicant had taken his therapy book he would be removed from the Centre.  Putting that in its overall context we do not think the judge’s description of the events was in error.

25. This ground failed.

(3)     The inaction of the applicant

26. The judge in her reasons for sentence made this remark as to the applicant’s actions following the collapse of the deceased :

“The defendant panicked and instead of calling for help immediately by using the ward telephone or his walkie-talkie, rushed back to the AB wing to obtain a wheelchair to wheel the unconscious Mr Chu back to the AB wing.  Only on the return to the AB wing did the defendant seek proper help.  It may be that his inaction was caused by his realisation of the amount of explaining he might have to do if he was found on the CD wing with an unconscious patient he had removed from the AB wing without authority.

…

The nurse in charge, Mr Chan Bing-fun, noted that the defendant had blood on his clothes and this was later shown to be the blood of Mr Chu.  Although the defendant claimed that he was in a state of shock, and this was supported by some of the witnesses who were present at the time, he was sufficiently aware of events and of his position to tell a story to the nurse in charge of what he alleged had happened; an account which was entirely untrue.”

27. Mr Arthur argued that there were explanations for the applicant’s action other than his desire to avoid blame for what had happened.  He argued in effect that the applicant had simply panicked and there was insufficient basis for the judge to conclude that his “inaction”, by which term the judge had referred to the applicant’s failure to immediately call for medical assistance, had been for selfish reasons.

28. It seems to us however that in the context of the case as a whole the judge’s remarks were justified.  If the applicant had raised the alarm immediately rather than spend time going to another wing of the Centre so as to get a wheelchair to take the applicant back to the nurses office in the vicinity of the wing where the applicant was supposed to be, then the outcome of these events may have been different.  It is difficult to understand why the applicant, who was equipped with the means for immediate communication with other members of staff at the Centre, did not call for assistance as soon as the deceased collapsed.  In our view, in the context of the whole of the evidence, the comments of the judge were plain common sense.

29. In any event those remarks were made during the judge’s summarising the course of events which had occurred that night.  There is nothing to suggest she regarded her view of the “inaction” of the applicant as an aggravating factor.

30. There was no merit to this ground.

(4)     The finding that the assault was deliberate and premeditated

31. Mr Arthur criticised the following finding of the judge as contained in her reasons for sentence :

“This was not a spur-of-the-moment incident which occurred in the course of daily contact with Mr Chu.  The defendant’s action in kicking Mr Chu from his bed in the early hours of the morning without reference to his colleague or to the registered nurse indicates a degree of deliberation.  That deliberation is also shown by the fact that he took him to the CD wing where he could deal with Mr Chu without being disturbed by any residents or staff, and that he felt able to frighten Mr Chu with threats of transfer to an ordinary psychiatric facility as a method of ensuring that Mr Chu would not dare to trouble him again.”

32. In our judgment all the judge was saying was that the applicant’s dealings with the deceased on the night of the attack had not come about spontaneously, but had been initiated by the applicant himself and had been brought about by the applicant wishing to take some steps including violence to discourage the deceased from making any adverse report concerning the missing book.

33. On the evidence as a whole, including what had been said by the applicant in his interviews with the police, there was nothing in the judge’s comments which were not supported by the evidence, and indeed in our view, it was the only finding open on the evidence the judge had heard at trial.

34. We bear in mind that this incident occurred at night.  The applicant got the deceased out of bed by going into his dormitory and there kicking him awake.  Dr Lau found deep bruising to the applicant’s buttocks, and it seems clear that a significant assault had taken place at the very beginning of the whole incident and laid down a template for what was to follow. The initial assault could in no way have been provoked by any action of the deceased.  The assaults and threats continued in the television hall, the deceased sustaining the various other injuries found by Dr Lau.

35. No criticism can be made of the judge’s finding that the attack upon the deceased by the applicant “indicates a degree of deliberation”.  We accept that the judge’s finding that the actions of the applicant showed such a degree of deliberation may have been a factor relevant to the sentence she eventually imposed.  But in our view she was more than entitled to arrive at that conclusion.

36. There was nothing in this ground.

(5)     The imposition of a deterrent sentence

37. It was not suggested under this ground that a non-custodial sentence should have been imposed.  Instead it was asserted simply that the sentence of 12 years’ imprisonment contained too great an element of deterrence and so was manifestly excessive.

38. The arguments advanced in respect of this ground in some part repeated those advanced in respect of the earlier grounds, but essentially amounted to this : The applicant was a first offender who committed the offence on an impulse and that, there being no evidence that there is any prevalence of persons such as the applicant abusing people in their care, there was no basis upon which a sentence of general deterrence should have been imposed, and there being no suggestion that the applicant would offend in this way again, he now being unemployable in the nursing industry, there was no basis upon which a sentence of specific deterrence should have been imposed.

39. With respect, those arguments overlooked one fundamental aspect of this case.  What was done by the applicant to the deceased amounted to an extreme breach of trust.  As the judge said in delivering sentence :

“In assessing sentence, I take into account that this was a very serious offence, particularly because it occurred in an environment where vulnerable and damaged people are put in special care for their own protection.  The residents of the centre, their friends and families and society in general are entitled to rely on such residents being given the care, supervision and protection that their special needs require.  Any violation of the high standards of care required in such an organisation diminishes the reality of ours being a civilised and compassionate society.

For that reason, an offence such as this must be dealt with severely, in particular as a deterrent to those who have been entrusted to provide care and fail to ensure that those who cannot care for themselves by reason of age, illness, or mental or physical disability are given the security and protection that they cannot demand for themselves.  To do less than that is to ignore the responsibility a civilised society must bear to ensure that its weakest members are kept safe.”

40. With those comments we entirely agree.  The deceased most certainly was vulnerable, he did not attempt to defend himself against the larger applicant, his injuries attest to the severity of the attack upon him by a person whose responsibility it was to look after the deceased, and who abused his position of trust in the most violent of ways so as to cause the death of the deceased.  Sentences reflecting a serious breach of trust by an offender necessarily incorporate within them an element of deterrence.  That is because persons who, because of their employment, authority or other circumstances, are in positions of power over other individuals in the community must, for the well being of the community, be subjected to a greater degree of sanction if they abuse their position to offend than would the ordinary citizen.

41. A deterrent sentence was plainly called for in this case and we are satisfied that in all the circumstances the sentence imposed was not manifestly excessive.

42. This final ground also failed and for these reasons the application was dismissed.