HKSAR v. LUO FU DI

CACC 107/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL CASE NO 107 OF 2012

(on appeal from HCCC 274 of 2011)

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REASONS FOR JUDGMENT

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Hon Yuen and Lunn JJA:

1. On 7 March 2012 the Applicant LUO Fudi was sentenced to 12 years imprisonment on one charge of manslaughter and 2 years imprisonment on one charge of theft, the sentences to be served concurrently. She applied for leave to appeal against sentence. At the conclusion of the hearing on 10 October 2012, we gave leave to appeal, treated the application as the appeal proper, set aside the sentence and substituted it with a sentence of 9 years imprisonment, to be served concurrently with the sentence for the theft charge, which remains unchanged. These are the reasons for our judgment.

The facts

2. The summary of facts, which the Applicant admitted, was briefly as follows.  Madam Lee Wai Lan was an 88-yr old woman who lived with a relative Miss Zhu in a flat in a public housing estate.  Early on the morning of 11 October 2010, Madam Lee arranged to play mahjong with some people (including the Applicant) in her flat.  The game was due to start at 11:30 am. 

3. Sometime between 8:30 and 8:45 am, the Applicant arrived at the flat.  After a while, Miss Zhu left to go to work.

4. At 11:20 - 11:30 am, the other two players arrived at the flat for the mahjong game, but no one answered the door.  They then left. 

5. At 6:00 - 6:30 pm, one of the players returned with another friend and a security guard, but again no one answered the door, and they then left. 

6. At about 10 pm, Miss Zhu returned to the flat after work.  The iron grille was locked and the front door was closed.  Miss Zhu found Madam Lee dead in bed. 

7. According to an autopsy report, Madam Lee had been smothered to death.  The pathologist said that more than 15-20 seconds would be required to cause death from smothering, and there were signs (such as bruises on Madam Lee’s hands) that indicated that she had put up a struggle before succumbing to asphyxia. 

8. The autopsy report disclosed that there had also been a haemorrhage in the coronary artery, but there was no structural damage of the heart, and according to the pathologist, the haemorrhage may have been precipitated by a sudden change in blood pressure, such as that caused by exertion. 

9. The pathologist estimated the time of death at between 1- 8 pm.

10. The Applicant was arrested 3 days later.  Madam Lee’s mobile telephone was found in the premises where the Applicant was arrested. 

11. The Applicant was interviewed under caution.  The Summary of Facts recounted her statement that after Miss Zhu left for work that morning, Madam Lee complained of being tired, and she helped her to bed.  While Madam Lee was resting, the Applicant stole cash from Madam Lee’s handbag, some jewellery from a jewellery bag, and a mobile telephone. 

12. It was accepted by the prosecution that while the Applicant was stealing Madam Lee’s property, Madam Lee woke up and screamed demanding to know why she was stealing from her.  The Applicant said she panicked and put her hand over Madam Lee’s mouth to stop her screams being heard by neighbours.  The Applicant said she put her hand over Madam Lee’s mouth for “a few seconds” until she stopped screaming, and immediately left the premises with the mobile phone, the cash and the jewellery, some of which she sold and some of which she gave to a friend.  The Applicant said she did not know Madam Lee had died until she spoke with lawyers after her arrest.

Sentence at trial

13. Beeson J sentenced the Applicant to a sentence of 12 years imprisonment.  Although the judge said there was no starting point, if one adopted the usual one-third discount for plea, that would mean that if the Applicant had not pleaded guilty, the sentence would have been 18 years imprisonment.

14. In imposing that sentence, the learned judge worked on the basis that the Applicant’s wish was to stop Madam Lee raising the alarm, but the judge rejected her suggestion that she only put her hands over her mouth for a few seconds.  The judge took the view that Madam Lee must have lapsed into unconsciousness or was incapacitated by the time the Applicant left the premises and yet the Applicant left her without assistance.

Application for leave to appeal against sentence

15. In her written submissions in support of her application for leave to appeal, the Applicant referred the court to three cases HKSAR v Wong Man-ting (HCCC352/2010), 15 June 2011, unrep., HKSAR v Lee Fung Yee [2011] 5 HKLRD 351 and HKSAR v Liu Chui-fa (HCCC8/2012), 13 August 2012, unrep.  We do not find the latter two cases to be of much assistance as Lee was a case of manslaughter by reason of diminished responsibility and Liu was a case of manslaughter by reason of provocation.

16.   Wong was a case where the defendant killed her mother in an “unlawful act” manslaughter.  The defendant assaulted her mother by pinning her down on the floor and pressing the deceased’s neck with sufficient force to fracture the hyoid bone.  The judge (V. Bokhary J) adopted a starting point of 7 years and reduced it by 1 year for the plea, resulting in a sentence of 6 years.

17. The Applicant has argued that taking those cases into account, her sentence of 12 years after plea is manifestly excessive.

Discussion

18. It is well-established that there are no guidelines for sentencing for manslaughter, as there are so many factors differentiating cases from one another. Given the circumstances in which the offence of manslaughter by unlawful and dangerous act and/or manslaughter without intent may be committed are of wide compass, it follows that it is visited by a wide range of sentences. The sentence of 16 years’ imprisonment imposed by this Court in HKSAR v Lau Bo Ki CACC 412/2005, unrep. is an example of a sentence at the upper end of the range. There, this Court quashed the conviction for murder and substituted a conviction for manslaughter, for which a sentence of 16 years’ imprisonment was imposed. In the course of seeking to intimidate the deceased's son-in-law in pursuing the recovery of a debt, the appellant poured sulphuric acid into her flat. The deceased died from injuries sustained, apparently after she slipped and fell into the acid. Clearly, the sentence after a plea of guilty would have been more than 10 years’ imprisonment.

19. In HKSAR v Lau Kwok Leung [1999] 3 HKLRD 416, this court dismissed an application for leave to appeal against a total sentence of 12 years’ imprisonment imposed on the applicant for an offence of manslaughter and one of robbery committed at the same time and place. Having been tried for murder, the applicant was convicted of manslaughter by reason of lack of intent (to which offence he had offered to plead guilty).  The trial judge sentenced him to 8 years imprisonment for the offence of manslaughter. In addition, he was sentenced to 4 years imprisonment for the offence of robbery, to which count he had pleaded guilty on arraignment. The judge ordered that the sentences be served consecutively. Accordingly, the total sentence imposed was 12 years imprisonment. Although this Court did not interfere with the sentences, it observed that the better practice would have been to impose concurrent sentences, since the offences were “inextricably linked”. It added that a sentence of 12 years imprisonment was appropriate for the manslaughter offence by itself and a sentence in the region of 7 years imprisonment for the robbery.

20. In that case the applicant had entered the home of his 66-year-old female fellow villager, the deceased, as a trespasser at night as she slept, intending to steal. She awoke and the applicant strangled her. In the course of so doing heavy bruising was caused to the back of her head by contact with a hard object and she sustained fractures to many of her ribs. In the judgment of the court delivered by Stuart-Moore VP it was suggested (page 418 G):

“.. where any person goes into the house of another in order to steal and, for whatever reason, ends up killing an innocent occupant in circumstances amounting to manslaughter, the court will be very slow to interfere with a sentence in the region of 12 years.” [Italics added.]

Notwithstanding the breadth of those remarks, the particular facts of the case are pertinent: the applicant entered the premises as a trespasser intending to steal so that he was a least a burglar. In the event, he committed robbery inflicting considerable violence to the deceased before making off with her valuables.

21. In the case before us the applicant was on the premises with consent and the theft appears to have been opportunistic and committed whilst the deceased was resting, albeit that violence was applied to the deceased, which in the event caused her death.

22. This Court is prepared to impose sentence on the basis that the Applicant had smothered Madam Lee in a panicked attempt to stop her raising the alarm, and it may be that the exertion of Madam Lee’s struggle had exacerbated her heart condition, causing her deathsome time afterthe Applicant had left the premises.  It is noted that after the incident, the Applicant made no attempt to escape the jurisdiction to return to the mainland, where she had come from on a 2-way permit to visit family.

23. However the Applicant was aware that Madam Lee was an elderly lady and thus particularly vulnerable to suffering serious effects from the assault she inflicted on her.  The marks on Madam Lee, both on her face and hands, also showed that the Applicant had used some force to overcome her. 

24. Having said that, it seems to us that a sentence of 18 years imprisonment (such as this sentence would have been had the Applicant not pleaded guilty) should be reserved for the most egregious cases, and appears to be manifestly excessive given that the prosecution had accepted that there was no intention to kill or cause grievous bodily harm.  

25. In our view, a sentence of 9 years after plea would be appropriate in the present circumstances.  Accordingly, we gave leave to appeal, treated the application as the appeal proper, allowed the appeal, set aside the sentence in respect of the manslaughter charge, and substituted it with a sentence of 9 years.  This sentence is to be served concurrently with the sentence for the theft charge, which remains unchanged.