CAC C 414/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 414 OF 2009

(ON APPEAL FROM HCCC NO. 147 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  The applicant was tried before McMahon J and a jury on an indictment that alleged that on 13 September 2008, he murdered Ng Kwai Fong.

2.  The applicant pleaded guilty to manslaughter, a plea that was not accepted by the prosecutor and the trial for murder proceeded.  On 13 November 2009, he was found not guilty of murder but guilty of manslaughter by reason of provocation.

3.  On 16 November 2009, the applicant was sentenced to a term of 15 years’ imprisonment.  This is his application for leave to appeal against that sentence.

The facts

4.  The applicant was arrested on 16 November 2008 and gave a series of interviews in which he admitted killing Madam Ng.  At his trial he testified and the evidence which he gave accorded broadly with the story he had provided to the police.

5.  The applicant is a deaf mute, as was the deceased and as is the deceased’s husband.  They belonged to and were active in the same church of which the applicant was a deacon.  The deceased was aged 39 years at the date of the killing.

6.  The applicant and the deceased had known each other before either was married.  In his video-recorded interview with the police, the applicant said that there had been a sexual relationship between them in 1989 but in his evidence he said that that was incorrect.  Be that as it may, the applicant subsequently married and at the date of the offence, he was aged 45 years and has two children.

7.  The essence of his story was that the deceased made a nuisance of herself in that in and after October 2007 she would lure him to the premises in which she lived with her husband on pretexts that items in her room or apartment required repair, seduced him into sexual intercourse for the first time in October 2007, and this act as well as her attentions made him feel guilty by reason both of his religious convictions and the threat which he perceived to his family unity.  Intercourse took place again in April 2008 and, according to his testimony, for the final time in June 2008.  He said that on the last occasion, he felt confused and pressurised and told her that this was not going to continue.

8.  However, according to the applicant, the deceased was a deceitful person who broke her promise and persisted in her unwanted attentions, even telling him that she wanted to have a child by him. She sent him frequent SMS messages.

9.  On 11 September 2008, they met in a park where she admitted that she had damaged items in her house on one occasion to lure him there for suggested repairs.  At that meeting she did not promise to break off their relationship.

10.  The applicant took a bus home and whilst on the bus, he received from her another SMS saying that she did not know the way home and asked if he could return.  He thought that this was another trick and he became very annoyed; she kept forcing him to do things.  When he received that SMS, he then formed the intention to kill her.  This was, he said, because she put him under so much pressure.  In his video-recorded interview, he said that he had decided to kill her because he could not stand it anymore; he could not stand her lies, her cunning and her cheating him.

11.  On 13 September 2008 he received another SMS message from her at about 2 o’clock in the afternoon just as he was leaving church, asking him to go to her place.  He walked around the park and the idea of killing her returned to his mind.  She had not listened to what he had said about breaking off the relationship.  So he decided to buy a knife and he thought about a plan to kill her.  He bought some clothes, including shoes, into which he would change for the purpose of the killing so as to have a spare set of clothes once the clothes which he wore at the time of the killing were marked with blood.

12.  He then went and purchased a knife and also some gloves, went into a public toilet to change and then went to the deceased’s home knowing, as he went, that he was about to kill her.

13.  After she opened the door to her room he gave her some Horlicks which she had asked him to bring.  When she turned round to put it down, he stabbed her in the side of the neck and the wound bled quite significantly. She covered the wound with a hand and he then scolded her, telling her about her lies and about her having forced him into sex.  He said that he asked for her forgiveness and she said yes but he did not believe her.  She then went to the lavatory to fetch a towel with which she came back and sat down on a stool.  Her neck was bleeding a lot and he took a piece of cloth from the sofa and went over to put the cloth on her.  But she suddenly got up, sprang up, and held him, embraced him.  It is unclear whether the demonstration which he gave in court was that of an embrace or of a push but, whichever it was, it made him, according to his testimony, lose his control, and he stabbed her in a frenzied manner inflicting about nine stab wounds to her chest.  The forensic evidence was that her death was caused by these stab wounds and not by the stab to the neck.  After stabbing her in the neck and before stabbing her in the chest, he had donned the gloves which he had purchased that day.

14.  The deceased then collapsed to the floor and she was making noises so he put a pillow over her face, so that others would not hear her and when she stopped breathing he covered her with a blanket.  The applicant then washed himself, changed his clothes, took her mobile telephone, opened the door to the room with tissue paper so as not to leave fingerprints and took the stairs down rather than the lift because he was afraid of being recognised by CCTV cameras.

15.  According to the summing-up, his testimony was that he never changed his mind about intending to kill her – although in relation to that Ms Remedios tells us that his evidence was that immediately before the fatal attack his mind effectively went blank – but that his actions burst out of him because he could no longer stand the pressure.

The defence of provocation

16.  The defences run at trial were those of diminished responsibility and provocation.  As we have earlier stated, the manslaughter verdict was returned on the basis of provocation.

17.  The defence of provocation was put on a basis which was somewhat unusual, for it was conceded that when the applicant first went to the deceased’s room on 13 September 2008, he went there planning to kill her and had armed himself with a knife, clothes and gloves in pursuance of that plan.  More than that, he actually attacked her with a knife and with that intent at a stage when there was no question of a sudden loss of self-control. The act which allegedly caused him to lose his self-control came after that initial assault and it was that second attack which, as it happened, caused death. So that is how the case on provocation was run: that the act which caused death was a sudden loss of self-control as a result of a provocative act, notwithstanding the earlier act of murderous intent in respect of which no loss of self-control was suggested.  These therefore are the highly unusual circumstances in which provocation became a defence which was left to the jury.

Sentencing

18.  The applicant was a person of previous good character and was spoken of by those who knew him as a mild-mannered man.

19.  In the course of mitigation, the judge canvassed with counsel the proper interpretation of the jury’s verdict saying that it seemed to him that:

“… the verdict of the jury would have been that although he, the defendant, went to the premises with the intention to kill and stabbed the deceased in the neck with the intention to kill, at some stage he lost control of his actions so that that loss of control rendered the intention to kill not the cause of the killing. In other words, the killing came about as a result of a loss of control rather than the intention to kill … The loss of control overwhelmed the intention to kill …. ”

20.  In his sentencing remarks, the judge noted that:

“The relationship between the defendant and the victim was a reluctant one so far as the defendant was concerned, because it was the defendant’s case, which was apparently accepted by the jury, that the victim had, on occasion, tricked the defendant into coming to her flat when her husband was absent, and had then prompted the defendant into having sexual intercourse with her.

This had caused the defendant considerable stress, as these events caused him to believe he was endangering his own relationship with his family and was acting against his moral principles.”

21.  The judge then recounted the events leading up to and including the killing, saying that:

“In short, the narrow defence case accepted by the jury was that although the defendant had gone to the victim’s premises with the intent to kill, the act of killing was not contiguous with that original cold-blooded intent, but was brought about by a sudden loss of control caused by the victim attempting to touch or embrace him.”

22.  Nevertheless, said the judge:

“In my view, even accepting that specific rationale behind the verdict of the jury, this killing, although reduced to manslaughter by reason of provocation, was nevertheless one of very great gravity. That is because of the pre-existing intent of the defendant to kill the victim and his carefully thought out preparations to achieve exactly that and to also allow him to later avoid detection.

To put matters simply, if the defendant had not formed the intent to kill the victim, and had not gone to her flat armed with a knife, and had not then stabbed her with a blow which, while not lethal, was serious, the circumstances which shortly afterwards gave rise to his loss of control would not have arisen.

I take into account the defendant’s willingness to plead guilty to manslaughter at an earlier time, the practical difficulties he will have in prison as a deaf mute, and his prior good character. I give him credit also for the mental disorder or personality problem from which he suffers.

But the offence was, in my judgment, a very serious one, and requires condign punishment.”

23.  He then sentenced him to a term of 15 years’ imprisonment.

24.  The personality problem to which he referred was that described by the psychiatrist called on his behalf as an adjustment disorder and described by the psychiatrist from Siu Lam Psychiatric Centre as a personality difficulty which included coping with stress.

The grounds of appeal

25.  Ms Remedios who appears for the applicant upon this application and also appeared for the applicant at trial advances a number of grounds of appeal:

(1)   that the sentence was manifestly excessive when viewed in the light of sentences passed in other manslaughter cases “arising out of a domestic context”;

(2)   that the judge proceeded on the basis of flawed reasoning when placing emphasis on the fact that the applicant had gone to the victim’s flat armed with a knife intending to kill her;

(3)   that in assessing the applicant’s moral culpability the judge failed to accord sufficient weight to the fact of the applicant’s disability and deep religious convictions;

(4)   that the judge failed to accord sufficient weight to the hardship to be suffered by the applicant in prison as a result of his disability;

(5)   that the judge failed to afford sufficient discount for the applicant’s guilty plea to the offence of manslaughter; and

(6)   that the judge gave no discount for the applicant’s previous good character.

‘Domestic’ cases

26.  Ms Remedios suggests that the Court of Appeal has recognised that in relation to manslaughter cases arising out of a domestic context, of which she suggests this is one, the courts have tended in recent years to impose sentences that fall within a broad range of between three years’ and nine years’ imprisonment.  For this proposition she refers to a recent decision of this Court, differently constituted, in HKSAR v Yau Kit Keung CACC 350/2009, 30 August 2010, unreported.  What the Court in fact was doing in that case was referring to a submission by counsel for the applicant and in that context, the Court said that:

“While therefore, as Mr Andrews submitted, it may be that, when sentencing for cases of this kind, our courts have tended in recent years to impose sentences that fall within a broad range of between three and nine years, that does not derogate from the principle that each such case must be judged according to its own facts and that the infinite variety of circumstances thrown up in these cases may demand sentences less than, or in excess of, that suggested customary range.”

27.  That Court was quite obviously not approving some sort of guideline range for “domestic context” manslaughter cases.  To the contrary, the court was making it clear that such was the infinite variety of circumstances that such cases reveal, that it was unwise to do so because some cases will call for less, some for more, than the “suggested customary range”; and, indeed, we see in that case that the Court upheld a sentence of 12 years’ imprisonment for a case falling within such a context.

28.  Ms Remedios then took us to a number of decisions in her written submissions the facts of which she would pray in aid as indicating that the sentence imposed in this particular case was manifestly excessive.

29.  As has often been said, comparisons in manslaughter cases must be approached with considerable care because the facts in such cases do vary so infinitely and there are few categories of offence which lend themselves so acutely to the treatment of sentencing as an art. They are also cases in which, where there has been a full trial, the judge’s feel for the full circumstances of the offence, including the nature and degree of provocation and the conduct of the defendant both before and after the killing, is a matter which must be accorded considerable weight even though not conclusive, upon appeal, of the justice of the sentence.  In HKSAR v Lam Chun Fai, CACC 486 of 2005, 28 April 2006, unreported, this Court said:

“There is perhaps no instance more illustrative of the fact that sentencing is an art than in the category of manslaughter cases. Any comparison with sentences passed in other cases within this category requires very careful study indeed of the factors at play in the cases used for comparison. Furthermore, where a case has been contested, the sentencing judge will necessarily be in a much better position than an appellate tribunal to acquire the true feel of the case.”

This case

30.  What differentiates this manslaughter case so markedly from other manslaughter cases are the most unusual circumstances in which the provocation defence was advanced and was in law available.  What distinguishes this case is that the applicant set out to murder the victim. That was his original intention, in respect of which he took quite extensive preparatory measures earlier in the day; measures with a view to killing her and measures designed to avoid detection once he had done so.  He did not abandon that plan, for he not only went to the victim’s flat with that intention, armed with a weapon, with gloves and with clothes into which to change but he actually tried to give effect to that intention by attacking her neck with the knife.  It might be thought that there is an element of the bizarre in praying an aid a reaction to, or conduct in the immediate aftermath of, that attack as constituting provocation but, as a matter of law, self-induced provocation may still give rise to the defence; and in this case one is bound to proceed on the basis that the applicant might not have pursued the plan to kill but for her attempt to embrace him – provocative to him because of the history of her previous conduct – whilst bleeding from the assault to her neck.

31.  It is suggested by Ms Remedios that, in this respect, the judge’s reasoning was flawed when he said that “if the defendant had not formed the intent to kill the victim and had not gone to her flat armed with a knife and had not then stabbed her with a blow which were serious, the circumstances which shortly afterwards gave rise to the loss of control would not have arisen.”

32.  The argument is that the applicant might, at the moment of provocation, have picked up a knife anywhere inside the flat, so that it was therefore inappropriate to take into account “from the back door”, as it is put, an abandoned plan to kill the victim.

33.  We see no flaw in the judge’s reasoning.  The flaw is in the argument advanced, for the victim’s conduct was a reaction to an attack by the applicant, which attack was accompanied by an intent to kill. One cannot say what might have happened had the applicant gone to the victim’s flat without a knife, and it is a meaningless postulation, because that is not what happened.  He did not go to the flat unarmed with some innocent motive, only to be faced thereafter with a provocative act which made him suddenly lose his self-control.  He went there intending to kill her and he attacked her with that intention.

34.  In the light of these facts, it would have been surprising had the judge not adopted the reasoning which he in fact adopted, reasoning which in itself shows why this case is so different from other manslaughter cases to which we have been referred.  It shows why the sentence in this case was, justifiably, significantly higher than sentences in many other so-called “domestic context” manslaughter cases.

35.  We do not accept that the judge failed to take into account other salient facts referred to by Ms Remedios in judging the moral culpability of the applicant.  That the applicant was a deaf mute and a deacon and that these factors were relevant to the stress which the victim’s conduct had caused him was expressly referred to by the judge. 

36.  So too did he expressly refer to the hardship to be suffered by the applicant in prison as a result of his disability.  There was no evidence before the court below about facilities or otherwise made available for deaf mutes.  Nonetheless, the judge proceeded on the assumption that the hardship was, despite the gravity of the offence, a matter to be taken into account.  The question for us at the end of the day is whether even taking this factor into account, the sentence was manifestly excessive.

37.  It is suggested further that no or no sufficient discount was given for the applicant’s proposed plea to the offence of manslaughter.  It has long been established that there is no obligation upon the judge in manslaughter cases to state a starting point.  The principle is summarised in Cross and Cheung 5^th ed., at p. 295:

“… in relation to the offence of manslaughter, where sentence can range from probation to life imprisonment, the judge may not feel able to set a starting point. Rather, he ‘may well feel, having taken an overall view of the matter, that all he can finally do is to decide on the appropriate sentence’: R v Lee Sau Ping CACC 189/1995. In HKSAR v Sin Kwai Ching CACC 176/2004, the accused pleaded guilty to manslaughter instead or murder on the basis of provocation and the judge took a starting point of 15 years’ imprisonment and sentenced him to ten. Stuart Moore VP said: ‘The judge was not required to take a starting point for manslaughter. It is no criticism of her that, in the event, she chose to do so.’”

38.  Ms Remedios relied upon two cases for the proposition that a one-third discount had expressly to be afforded and calculated.  The cases (HKSAR v Franciso Reynaldo F. [2000] 4 HKC 37; and HKSAR v Lau Chuen Fat CACC 300/2004, 14 April 2005, unreported) are not authorities for the proposition advanced.  They were both cases in which the first instance judge had chosen to articulate a starting point and it was from that base that the appellate courts in those cases had proceeded to examine the adequacy of the discount in fact afforded.

Conclusion

39.  We see no basis upon which to say that the judge has erred in respect of any matter of principle.  The real question is whether the sentence itself is in all the circumstances to which we have referred manifestly excessive.

40.  This case lasted, we have been told, for about a week and the applicant gave evidence for about two days.  The highly experienced sentencing judge had had some time to acquire the measure of the case, of the applicant, and of the degree and the particularly circumscribed circumstances in which the defence of provocation was available. 

41.  His rationale for taking the view that this was a very serious offence of its kind was unimpeachable, namely, that there was a plan to kill, that measures were taken to give effect to that plan and that there was an actual attack with a knife with that intent before the suggested act of provocation.  But for that, the provocative act which gave rise to loss of self-control, upon which the applicant relied, would not have occurred. Beyond that, there was not at any stage an attempt by the applicant to seek assistance for the victim.  He even put a cushion over her face to make sure that nobody heard her and he took steps to ensure himself against detection. It is true that in due course he gave himself up but that was some days after the event.  Of course one has sympathy for his disability and we recognise the added disadvantage to which that places him whilst incarcerated.  Yet the applicant set out to take a life of a woman, a married woman who had, as he must have known, two sons, and although in the event that life was taken in response to a provocative act, the provocative act itself is in the peculiar context of this case, one that can hardly draw the level of sympathy and understanding that motivate substantially lower sentences in other cases.  In the event we are satisfied that the sentence imposed cannot properly be said to be manifestly excessive.

42.  Accordingly, the application for leave to appeal against sentence is dismissed.