HKSAR v. LEE FUNG YEE

CACC 475/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 475 OF 2010

(ON APPEAL FROM HCCC 109 OF 2010)

BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the reasons for judgment of the Court):

Introduction

1.  The applicant (Lee Fung Yee) was charged with the murders of her two children, Li Siu-hang, a fifteen-year old boy (“the boy”), and Li Po-ka, a thirteen-year girl (“the girl”) on 14 October 2009 in a flat in Greenland Garden in Tuen Mun (“the flat”) where they lived.

2.  The applicant was prepared to plead guilty to manslaughter on both counts, but the pleas were not accepted by the prosecution, and the applicant stood trial before Beeson J sitting with a jury.

3.  On 23 November 2010, a jury unanimously acquitted the applicant of murder and instead convicted her of manslaughter on both counts on the basis of diminished responsibility. The judge, on each count of manslaughter, sentenced the applicant to 7 years’ imprisonment to run concurrently.

4.  Represented by Ms Charlotte Draycott, SC, Mr Raymond Yu and Miss Kamina Lai, the applicant sought leave to appeal against sentence. At the end of the hearing we granted leave and allowed the appeal by reducing the sentence to 4 years’ imprisonment. We indicated that we would hand down our reasons and this we now do.

The Facts

5.  The boy and the girl were two of the applicant’s three children, the 3^rd one being the eldest boy (“the elder son”) born in 1994, one year before the birth of the boy. The boy was severely epileptic and his condition was poorly controlled by drugs. All three children were fathered by a Mr Li, who at all material times had another cohabitee – Madam Leung, who had two sons by a previous marriage, but no children by Mr Li. Mr Li and Madam Leung together operated a religious/ spiritual counselling service as a commercial enterprise with Mr Li claiming to possess special powers.

6.  The applicant, having started the relationship with Mr Li, moved into the flat which was next door to that occupied by Mr Li and Madam Leung. When the girl was born, Madam Leung and Mr Li took the elder son into their home with the applicant’s consent. Mr Li and Madam Leung moved to Mei Foo Sun Chuen in 2000 with the elder son, but the two “families” maintained contact.

7.  It appeared that the applicant became aware in October 2009 that Mr Li had other women and other children. The applicant said she also realized that Mr Li was a religious swindler who cheated the worshippers by charging grossly inflated prices under the pretext that he was able to have direct communication with “gods”.

8.  The applicant said she felt helpless and was in difficulty as she did not know how to deal with the situation when the way she saw the future of herself and her children had completely changed. She sought help from her family, but was rejected and her mother did not appear to welcome her or her children. The applicant said she wanted to commit suicide, but did not want the boy and the girl to be left behind and therefore she decided to kill them too.

9.  In the evening of the 13 October 2009, the applicant gave the boy and the girl each half a sleeping tablet in orange juice, and then put two pots of burning charcoal in the bedroom. This caused so much smoke that a neighbor reported to the caretaker shortly after mid-night on 14 October 2009 and the Fire Services and the police were alerted.

10.  The Fire Services officers were initially unable to gain entry into the flat, despite repeated shouting and knocking on the door, and the applicant only opened the door after a delay of more than 7 minutes. The applicant then expressed great annoyance at being disturbed, and claimed that the smoke was caused by burning incense. The Fire Services officers searched the kitchen and the sitting room, but not the bedrooms because the applicant said she did not want her children, who were sleeping, to be disturbed as they had school the next day.

11.  The Fire Services officers and the police left as they found the applicant rational and quite normal. The applicant then continued her plan to kill herself, the boy and the girl. She put the pots of burning charcoal in the bedroom and sealed the gap in the door. She turned off her mobile phone and unplugged the landline in the room, and then went to sleep.

12.  The applicant survived, apparently because she had taken a large dose of sleeping pills which suppressed her breathing and thus her intake of carbon monoxide.

13.  At about 12.30 p.m. on 14 October 2009, the applicant woke up to find the boy and the girl dead. She rang and told Madam Leung what she had done. She then, on Madam Leung’s suggestion, rang 999.

14.  The applicant told a woman police constable that she committed suicide by burning charcoal after giving her children a sleeping tablet in orange juice because her husband had left her.

The Defence

15.  The applicant admitted to having killed the boy and the girl, but suggested that her responsibility was lessened because of her mental condition brought about by her relationship with Mr Li. In her evidence, the applicant detailed how she started her relationship with Mr Li who claimed to have divine power of communicating with “gods” and the ability to solve problems.

16.  The applicant said in 1989 when she was 17, she accompanied her mother, who was then depressed and unhappy over her husband’s infidelity, to attend the Taoist Temple run by Mr Li and Madam Leung, thinking that Mr Li could bring them luck and good health.

17.  However, in 1993, Mr Li, who was nineteen years older than the applicant, took her virginity on the pretext that the sexual act would balance her “Chi”. When she was pregnant, Mr Li told her that the child would bring good luck to her family. Mr Li even told her not to have any more contact with her family or there would be bad luck.

18.  The applicant said she was completely under Mr Li’s influence and control to the extent that she was cut off from her friends and family. She said she was not even allowed to go out and existed only for Mr Li’s sexual gratification. Despite the fact that the boy was severely epileptic and the applicant became depressed because of that, Mr Li refused to help and even said that it was a manifestation of the bad luck that the applicant carried.

19.  Then in 1997, Mr Li took custody of the elder son and refused to give him back saying that the elder son did not want her and that he would be better off with Mr Li and Madam Leung. 

20.  After Mr Li and Madam Leung moved to Mei Foo with the elder son in 2000, he would summon the applicant there to have sex and it was only then that the applicant had the chance to meet the elder son. The applicant said that she felt the loss of the elder son as if part of her body had gone missing. The applicant also said the boy became resentful from the age of 11 and began to assault her because he was jealous of the elder son. The applicant claimed that the boy, weighing 200 pounds and standing 5’9”, could cause considerable harm. Despite all these adversities and hardship, the applicant said she took good care of her children.

21.  The applicant also said she believed Mr Li to be a “god” on earth and she was able to endure all her suffering because she thought that she was serving the needs of a god.

22.  When the applicant found out the true nature of Mr Li and his business, Mr Li taunted her, saying she performed poorly in bed when compared with his other women. In her desperation, the applicant said she rang her mother, but she flatly refused to help. The applicant said she found life no longer worth living, but feared for the welfare of the boy and the girl. It was in such circumstances that the applicant did what she did.

23.  Dr Chen, a psychiatrist, took the view that the applicant was suffering from “adjustment disorder with depressed mood”, and that “The acute, unexpected and provocative shock of Mr Li’s promiscuity and disloyalty leading to a complete despair of the future for herself and her children might have been the single precipitating cause for this tragedy.” Dr Chen further opined that the traumatic shock substantially impaired the state of her mind at the time and changed the way she saw the future for herself and her children. The jury accepted Dr Chen’s evidence and on that basis, returned the manslaughter verdict.

The Mitigation

24.  Mr Yu, who was trial counsel for the applicant, suggested to the judge that the applicant was a person with a very kind heart and an unblemished character. He emphasized that the applicant, despite the difficulties she faced, had set up a tutorial class, initially to enable the boy to have other children to play with, but the tutorial class turned out to be very successful and both parents and students spoke very highly of her.

25.  Mr Yu further pointed out to the judge that the boy and the girl died peacefully in the course of sleeping in bed. Mr Yu even suggested that it was a “mercy killing”.

26.  Mr Yu emphasized that the applicant had pleaded guilty to manslaughter at the outset and had demonstrated a genuine sense of remorse. He suggested that the applicant’s parents had, since the tragedy, shown concern and had become very supportive of her.

27.  Mr Yu referred to the judgment of the Court of Appeal in R v Li Wai Yi (unreported CACC 330/1995) and emphasized the following sentence in the judgment of the then CJ Yang; “I think the most severe punishment to him would be the punishment to his conscience that he has killed his own father.”

28.  Mr Yu also referred to the reasons for sentence in HKSAR v Chu Wai-yin (HCCC280/2009) when Line J sentenced a defendant, who killed her aged and infirm 72-year old mother by burning charcoal in a suicide attempt and in the course of which her forearm was burnt away, to three years probation. Line J said:

“Your action arose from an abnormality of your mind. That abnormality diagnosed as Bipolar Affective Disorder substantially impaired your mental responsibility for your acts…

The three psychiatrists from whom I have reports speak as one. Dr Yu described the type of morbid depressive state you suffered as being typically experienced as worse than the severest physical pain, taking the form of an inner turmoil that admitted no respite and to which suicide represented an attempt to find deliverance from, what he described as, ‘unrelenting psychic torment’.

The first question I have to address in sentencing you is whether or not the public interest demands your further detention in prison. I am of the view that it does not. Continued detention on the basis that you pose a danger to society is not indicated. You now, in your remission, appreciate the nature and gravity of your conduct. That, of course, will bring you pain for the rest of your life for I have no doubt that you had loved your mother. Those who kill a loved one sentence themselves. No further punishment is called for as you undoubted mental state has taken away your responsibility for the deed.”

29.  Mr Yu asked for leniency for the applicant and suggested that no further punishment of her was necessary.

The Judge’s Approach

30.  The judge accepted that the applicant had intended to commit suicide herself because of the problems over her relationship with Mr Li and that she resolved to kill the boy and the girl at the same time because she feared that they would not be loved or cared for properly after her death either by Mr Li or by her maiden family.

31.  The judge, however, pointed out that the applicant had no previous formal psychiatric history and that although none of the psychiatric reports contained information independently of that given by the applicant, there was a consensus by the psychiatrists that she was, in all likelihood, suffering an adjustment disorder at the time of the killings.

32.  The judge detailed the applicant’s relationship with Mr Li and concluded that the evidence about the shrine and religious practices performed by Mr Li sounded believable although Mr Li denied being a religious swindler. The judge accepted that the applicant, on finding out the true face of Mr Li, became depressive and decided to kill herself and as she considered that only she loved the boy and the girl, she decided to kill them too.

33.  The judge emphasized that society has a right to expect its adult members, who are the parents, carers and guardians of children, to show mature attitudes in dealing with the vicissitudes of their lives, and where matters prove difficult, to seek informed assistance to solve those problems. The judge said it was not possible to countenance or condone the killing of children, on the pretext of giving them a happier life or shielding them from a world that the perpetrator has found too complex to cope with, or exacting revenge on another party, usually the other parent.

34.  The judge criticized the applicant for not seeking help in her 16-year association with Mr Li despite the obvious difficulties that she faced.  The judge took the view that the applicant’s degree of responsibility was quite a high one, in particular with the very calculated way in which the applicant dealt with the Fire Services and the police.

35.  The judge, in adopting a 7-year sentence, made the following concluding remarks:

“In this particular case, I take into account the stress factors which operated on the accused, her age, her clear record, her positive good character, the fact that pleas were offered at the beginning of the trial, albeit not accepted; against that, I have to take into account that this was not a spur of the moment event.

The catalyst was her relationship with (Mr) Li, and she had had opportunities to resolve the situation and remove herself and the children from Mr Li’s influence in the past. There was some degree of preparation in respect of the plan that she conceived to kill herself and the children. She had the opportunity halfway through or part-way through her plan to change her mind. She had the opportunity to stop, but she deliberately ensured that firemen and the police did not see inside the bedrooms. She complained in evidence that she was waiting for a call from Mr Li, but the fact that she turned off the telephones showed that she was intending to go ahead with her plan regardless.

When she recovered and discovered that her children were dead, she did not immediately seek help, but she rang Madam Leung and told her what she had done before; she then made a report to the police.

As I have said, it is not just a question of dealing with the accused in this case. It is also a question of showing society’s abhorrence at what was a deliberate plan to kill children who had no choice about what was happening to them…”

Grounds of Appeal

36.  In a clear attempt to excite sympathy and compassion from this court, Ms Draycott again repeated in detail how the applicant was transformed, through the wickedness and cruelty of Mr Li, from a happy, popular, attractive and successful individual to become a superstitious, helpless, isolated and lonely person who depended entirely on the whim of a man, who took away her elder son and whose only concern was the sexual services that he could obtain from the applicant.

37.  Ms Draycott suggested that the revelation of Mr Li’s chicanery and his relationships with other women took all meaning from the applicant’s life and she could no longer live with the idea that everything she had lived for had been deceit and lies.

38.  Ms Draycott emphasized that the applicant’s superstitious mother, who not only led her astray by taking her to the Taoist Temple run by Mr Li and Madam Leung for the purpose of pure financial gain and as far as Mr Li was concerned, sexual services from unsuspecting female worshippers, also shunned the applicant when she was in a desperate need for love, attention and help.

39.  Ms Draycott suggested that when the applicant’s entire life had centered around Mr Li whom she considered to be a god with supernatural powers, the revelation of Mr Li’s true face was simply too much for her to carry on and it was in such a circumstances that the applicant decided to end her own life and in so doing also killed the boy and the girl for fear that there would be no one to care for them after she was gone.

40.  Ms Draycott argued that the judge’s comment that the applicant only suffered from adjustment disorder, which was a fairly vague concept, was unjustified in light of the jury’s finding that the applicant’s mental responsibility for her actions was substantially reduced.

41.  Ms Draycott also criticized the judge’s adverse comment on the way in which the applicant dealt with the Fire Services and the police, saying that the applicant’s “calculated way” was consistent with the applicant’s “illness” and should not therefore be an aggravating factor against her.

42.  Ms Draycott emphasized the following instructions from the applicant; “I feel the guilt of what I have done every moment of every day. I think of them all the time and I am filled with remorse and heart ache.”

43.  Ms Draycott suggested that in similar cases, it was not uncommon for the court to adopt a humanitarian and compassionate approach by a sentence of binding over or probation order. However, Ms Draycott did accept that the applicant deserved a substantial sentence, but not to the extent of 7 years’ imprisonment.

Discussion

44.  There is no tariff sentence for manslaughter. The circumstances in which the offence of manslaughter is committed are so varied and the degree of culpability is so wide that it is just not possible to define a range of sentences, let alone a tariff.

45.  Ms Draycott relied on R v Bibiana Chi Li [2000] NSWSC 1088 and S for J v Chan Man Yum (unreported CAAR 1/2010), as well as two Canadian cases R v Valiquette 60 C.C.C. (3d) 325 and R v Sriskantharajah 90 C.C.C. (3d) 559 to support her contention that a non-custodial sentence or a short sentence may well be a proper sentence.

46.  It is fair to point out that the defendants in both Bibiana Chi Li (supra) and Chan Man Yum (supra), suffered much more serious mental impairment and there are special features in those cases which justified a more lenient approach.

47.  In Bibiana Chi Li, His Honour Judge Greg James pointed out that the defendant, a caring and devoted mother killed her child whilst so severely depressed as to verge upon being insane and she killed her child so that she would not leave him behind when she herself died. The judge further emphasized that “her illness, endogenous depression, severely impaired her ability to reason”, and that “she is not to blame for becoming ill, nor is her family to blame that she did become ill, nor any member of it.”

48.  There was no indication as to the circumstances leading to the killing of the child, but there was suggestion that there was very little ability on the defendant’s part to control her actions and to refrain from committing the crime.

49.  In Chan Man Yum (supra), the defendant killed her 13-month adopted daughter by holding her upside down, shaking her and then throwing her onto the ground repeatedly when she was suffering from Bipolar Affective Disorder in its manic phase, a major and serious psychiatric disorder. The defendant complained of “reduced sleep, increased talkativeness, agitation and inflated self-esteem for one or two years and she committed the offence before she saw the psychiatrist.

50.  It appeared that the baby girl was badly undernourished before she was adopted and brought to Hong Kong by the defendant and she had difficulty keeping food down. The baby girl would cry often and loudly and there had been numerous visits to doctors, resulting in fatigue and distress to the defendant. There were also arguments with the defendant’s parents over issues of child care.

51.  Just before the killing took place, the defendant went to Shenzhen to obtain repayment of a loan, but was unsuccessful. She returned to Hong Kong in the early evening to collect the baby girl from her mother and there was an argument over the feeding of the child. The defendant then took the child to her apartment and the child was then in a state of distress. A doctor explained the defendant’s actions; “Her aggressive acts at the material time of the offence could likely be the end-result of her extreme frustrations at that time, and the significant impairment of impulse control that was directly caused by the active manic symptoms.”

52.  The judge, in putting the defendant on probation for three years summed up the case as follows:

“…since she suffers from mental illness, and unfortunately has not been able to receive treatment on time, under influence of her mental illness, pressure and distress, she committed the offence of manslaughter on the crying baby. This is an extremely unfortunate incident. The defendant killed the baby girl whom she loves very much due to the aforesaid reasons, and in her heart, I accept that she is being tortured mentally.”

53.  The defendants in the two Canadian cases also suffered from extremely serious mental and emotional problems. Valiquette (supra) involved a woman who was married to a man who was extremely violent to her and was in severely depressed state with psychotic episodes when she attempted to commit suicide after killing her three-year-old child. Sriskantharajah (supra) also involved a woman, who killed her two infant children in a state of severe depression, brought about by the fact that she spoke no English, had no companions, was spurned and tormented by her husband’s family, and abused physically and mentally by her husband. She too attempted to commit suicide after killing her children.

54.  In Valiquette (supra), the defendant was given a suspended sentence and three years’ probation, after serving 20 months in jail and in Sriskantharajah (supra), the defendant was sentenced to two years’ imprisonment and three years probation.

55.  Whilst the jury found that the applicant had a mental condition which lessened her responsibility, there was no evidence that she suffered very serious mental illness and there was no previous formal psychiatric history. The experts took the view, based on what the applicant had told them, that she was suffering an adjustment disorder brought about no doubt by her relationship with Mr Li.

56.  We want to emphasize what Hartmann JA said in SJ v Chan Man Yum Candy (supra) that (a) protection of human life is a foremost objective of our system of criminal justice; the community is entitled to expect that the conduct of unlawfully taking a life be denounced by a punishment that is appropriate to the circumstances; and (b) particular recognition is given to the need to protect the vulnerable; special concern is aroused when an infant child dies at the hands of one of its parents, the very person entrusted to protect and nurture that child.

57.  Whilst the killing of two children by a caring mother is not something that would happen without serious underlying reasons, it appears in this case that the applicant wanted to commit suicide because she was unhappy with the relationship with Mr Li and decided to take the two victims with her. It was clearly a deliberate attempt to take the lives of two innocent children.

58.  We were satisfied that there were no special circumstances in this case to justify exceptional leniency.

59.  The applicant did not kill the boy and the girl on the spur of the moment. It was clearly carefully planned and executed. Whilst the applicant’s “illness” could have led to or contributed to her plan to kill the boy and the girl, the intervention by the Fire Services and the police could and should have discouraged and deterred the applicant from continuing when there was time for the applicant to reconsider and to regain her senses. Yet the applicant pressed ahead with her wicked plan.

60.  In our view, the judge was entitled to take the view that the applicant’s degree of responsibility was quite a high one.

61.  The taking of human life, and in the present case two human lives, is of course a very serious matter and what the applicant did would arouse a sense of moral outrage in any society. The court has the duty to protect children from unscrupulous parents. It must be driven home in no uncertain terms that whatever are the circumstances, parents have no right to decide whether their children should live or die. It is simply not an option open to any parent.

62.  The judge was right to say it is a question of showing society’s abhorrence of a deliberate plan to kill innocent children.

63.  It was not an easy case to decide, but we were firmly of the view that what the applicant did called for a substantial term of imprisonment to demonstrate such abhorrence and as a means of deterrence, however sympathetic we might be towards the applicant.

64.  On the other hand, Dr Chen, whose opinion the jury had accepted, suggested that the applicant had been suffering from “an adjustment disorder with anxiety” in 1995 and “an adjustment disorder with depressed mood” in 2000, and that the episode leading to the killings was far more acute and traumatic than the previous two episodes as it was an acute, catastrophic and traumatic event. Dr Chen further pointed out that within 48 hours after the provocative remarks from Madam Leung, the applicant had developed uncontrollable crying spells, feelings of despair, insomnia, mind being a blank, poor concentration, and excessive tiredness.

65.  The judge was right to conclude that the applicant’s responsibility was quite a high one, but in her reasons for sentence, she did not seem to have placed sufficient reliance on Dr Chen’s opinion that the jury had accepted.

66.  We were satisfied that if the judge had placed more reliance on Dr Chen’s opinion, she might have been persuaded that the 7-year sentence, which represents a notional starting point of over 10 years’ imprisonment, was too much.

67.  We were satisfied that, despite the seriousness of what the applicant did, a starting point of over 10 years is manifestly excessive. We were persuaded that a starting point of 6 years’ imprisonment was a sufficient and proper sentence and, as the applicant had always intended to and did plead guilty to manslaughter, there should be a one-third discount to reduce the sentence to 4 years’ imprisonment.

68.  We therefore granted the applicant leave to appeal against sentence. Treating the application as the appeal proper, we allowed the appeal and reduced the sentence on each count of manslaughter to 4 years’ imprisonment to run concurrently. The applicant’s total sentence was reduced from 7 years to 4 years.