HKSAR v. MARIA REMEDIOS COADY

CACC 119/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 119 OF 1999

(ON APPEAL FROM HCCC NO. 194 OF 1998)

______________

_______________

J U D G M E N T

_______________

Keith JA (giving the judgment of the Court):

1. The Appellant was charged with the murder of her lover. She was tried in the Court of First Instance. She pleaded not guilty. Her defence at her trial was that she had not killed him. However, the jury did not believe her and she was convicted of murder. On 23 August, her conviction for murder was quashed on the ground that the issue of provocation should have been left to the jury. On the following day, the Appellant admitted that the deceased had died at her hands, but claimed through her counsel that she had been provoked into killing him. The prosecution accepted that in the circumstances it would not be appropriate for the court to order the re-trial of the Appellant, but that the course which the court should take should be to substitute for the Appellant's conviction for murder a conviction for manslaughter on the ground of provocation.

2. We were prepared to take that course. In giving judgment on 24 August, we said:

"... this morning Mr Bruce [counsel for the prosecution] told us that, in the course of the trial, the prosecution had ... offered on a number of occasions to accept a plea of guilty to manslaughter on the basis of provocation at any time prior to the close of the prosecution case, on condition that it was provided with facts which were capable in law of supporting such a plea. We regard that as crucial. If the prosecution had been prepared to accept a plea of guilty to manslaughter if the facts relied upon were in law capable of supporting such a plea, it would not, we think, be right to order a re-trial - unless that is what the Appellant wanted, which she does not. To order a re-trial in preference to substituting a conviction for manslaughter would, in effect, be permitting the prosecution to go back on the stance which it was adopting in the course of the trial, and that, we think, would be unfair to the Appellant. We recognise, of course, that the conditions which the prosecution imposed on its acceptance of a plea of guilty to manslaughter were not satisfied. But the fact remains that by our judgment we have concluded that the evidence which was before the jury (admittedly given to the jury by the Appellant after the prosecution had closed its case) was capable in law of supporting a plea of guilty to manslaughter."

The hearing today is for us to determine what the sentence on the substituted charge of manslaughter should be.

3. The facts of the case can be seen from our judgment of 23 August and now reported in [2000] 3 HKC 570. The summary of the facts given there was based on the judge's summary of the evidence given at the trial. We do not propose to repeat it here. Mr John Mullick for the Appellant has today told us about a few additional things which the Appellant said in evidence, and has added to the account which the Appellant gave at her trial in various respects which he has helpfully set out in his skeleton argument. Again, we do not propose to set them out. Although, of course, we sentence the Appellant on the basis that the provoking conduct of the deceased was such as to cause a reasonable woman in the position of the Appellant to lose her self-control, we have to say that the deceased's provoking conduct was towards the lower end of the scale. In lay terms, the provocation was relatively slight. That means that the sentence will have to be towards the upper end of the scale of sentences for manslaughter on the ground of provocation.

4. Nor do we think that we should give the Appellant much credit for what amounts to her plea of guilty to manslaughter. She was offered the opportunity during her trial to plead guilty to manslaughter on the basis of provocation but turned it down. We do take into account in her favour the fact that she has no previous convictions, that she has been engaged in various charitable causes, and that distinguished acquaintances of hers speak highly of her. We note the neurological evidence which affect her facial features, her history of epilepsy and the ill-health which has dogged her over the past three years or so while she has been in custody. We acknowledge that that ill-health is likely to continue while she serves her sentence, though we note that she is said to be prone to exaggerating its effects. We recognise that she was in denial for a long time and could not bring herself until recently to admit publicly that the deceased had died at her hands. But it is apparent from her behaviour immediately after stabbing the deceased that she was sorry for the fate which had befallen him.

5. Manslaughter is one of the rare offences for which the court is not obliged to state what its starting point for sentence should be. That is because in cases of manslaughter there invariably is an overlap between the facts which relate to the gravity of the offence and the facts which relate to the mitigation for the offender. Moreover, culpability for manslaughter can vary greatly, especially when the killing of the deceased has been reduced to manslaughter on the basis of provocation, where the killing was a domestic one, and where it was preceded by a turbulent relationship which must have caused stress and unhappiness. We have read the previous manslaughter cases which have been referred to us in the skeleton arguments of Mr Mullick and Mr David Leung for the prosecution, and we are aware of the range of sentences for manslaughter on the ground of provocation in a domestic context. We have concluded that the appropriate sentence which should be passed on the Appellant is one of ten years' imprisonment, and that is the sentence which we impose.