CRIMINAL CASE NO. 274 OF 2011
COURT: On 29 February 2012 the defendant pleaded guilty to a charge of manslaughter and a charge of theft. Both offences occurred on the same day. Initially the defendant was charged with murder,but having considered the evidence,the prosecution accepted a plea to manslaughter on the basis of the facts which the defendant admitted before the court.
The defendant admits and accepts that she unlawfully killed the victim in a manner which was consistent with the findings at the scene by the Forensic Pathologist, Dr Lam.
Facts
Madam Lee Wai-lan was the victim of the offences. She was 88 years old, a widow, and had an adult son and daughter who lived apart but who kept in regular contact with her. Madam Lee lived with a female relative, Miss Zhu Xiao-hung, who did the household chores but who also worked in a restaurant during the day.
Madam Lee was quite able to take care of herself. She enjoyed playing mahjong with her friends and did so frequently during the week.
On the morning of 11 October 2010 at about 8.30 to 8.45 hours the defendant visited Madam Lee’s home. She introduced herself to PW1 and said she had an appointment to play mahjong with Madam Lee. PW1 poured tea for the defendant and left for her work at about 9.15 hours leaving the defendant alone with Madam Lee in the flat.
Madam Lee had telephoned some friends earlier that morning to come and play mahjong at her house at about 1130 hours, but when the visitors arrived they found the front door and the iron grille closed. No one answered the doorbell. A telephone call was made but although the visitors could hear the phone ringing inside the house,no one answered it. Further calls during the day went unanswered.
At about 1800 hours one of the neighbours went to Madam Lee’s premises together with a friend and a security guard but no one answered the door at that time.
PW1 returned from work at about 2200 hours and found the iron grille was locked and the front door closed but not locked. Madam Lee was lying on her back obliquely across the bed. She was unconscious and appeared to be injured. At that stage PW1 telephoned the victim’s daughter and later the police.
The police and ambulance men arrived shortly at the scene and at 2210 hours Madam Lee was certified dead.
The Forensic Pathologist visited the scene and found the window of the bedroom open and the air-conditioning off. Madam Lee’s body was stretched across the bed, face up, with her left arm raised. She was dressed in day clothes and still wearing bracelets, a ring and a gold-coloured watch.
Petechiae were scattered on the face. Patches of small abrasions and bruises were seen on the nose, mouth and all over the chin. There was a dried bloodstain running from the left corner of her mouth towards the cheek. No other identifiable external injuries were found. Rigor mortis had developed in most of the major joints and hypostasis had developed to a limited extent on the back.
Autopsy
An autopsy was performed. That confirmed multiple patches of abrasions and bruises concentrated on the nose, mouth and chin. The patches of facial injuries, according to the Forensic Pathologist, showed that significant pressure had been applied to those areas. That pressure would cause mechanical occlusion of the nose and mouth and lead to death due to mechanical asphyxia by blocking of the external respiratory orifices, that is smothering.
Multiple petechiae were found on the face, eyelids, inner lining of the lips and buccal lining. Those were compatible with mechanical asphyxia due to smothering by prolonged unremitting pressure for a period of time during life.
Two small bruises were found on the back of the deceased’s hands. The Forensic Pathologist said that they were caused by a blunt force trauma as a result of having been hit by, or against some hard surface. Those injuries could suggest that the deceased was conscious and could have struggled prior to her death.
The direct cause of death was stated to be asphyxia due to pressure on the face. A contributing factor was noted as coronary occlusion by atheroma. The time of death was estimated to be 8 to 12 hours prior to the initial examination by the Forensic Pathologist, which was at 0405 hours on 12 October 2010.
Mitigation
In mitigation I was advised that the defendant was aged 48, her date of birth being 13 August 1963. She left school at the age of 13, was educated up to Primary 3 level. She married in 1983, her marriage was dissolved in 1988. She worked at low-paid jobs to support her family. She is a mainland resident who came to Hong Kong on the basis of a two-way permit. Her parents and younger brother reside in Hong Kong. The two children of her former marriage reside in mainland China. At the time of the offence the defendant was living in mainland China and was unemployed.
She has a criminal record in Hong Kong. On 20 March 2006 she was convicted of two counts of theft and one count of breach of condition of stay. She was sentenced to 8½ months’ imprisonment in total.
In 2001 she first visited Hong Kong to see her parents, and in 2006 she had returned for a second visit. On that occasion she is said to have become addicted to gambling, running up large gambling debts. To pay those debts she resorted to theft. Counsel for the defendant pointed out that they were opportunistic thefts. The defendant stole from the till of her friend’s shop when left in charge of it and also stole money from a friend’s handbag. No violence was used in either of those cases. In 2010 the defendant against visited her parents who were ill.
According to the defendant’s account, she met Madam Lee in October 2010 because she joined a group playing mahjong. The night before the killing she had stayed with her boyfriend. She went to Madam Lee’s house before 9 am for a game of mahjong which was arranged for 11.30 am. After having tea with the defendant and Madam Lee PW1 left the house to go to work. The defendant said she helped Madam Lee wash vegetables and after that Madam Lee took a rest.
The defendant then decided while Madam Lee was resting to steal various items of value from the flat. While she was doing so and before she left the flat Madam Lee awoke and began to scream, “Why are you stealing my things?” At this point the defendant panicked; she did not want the neighbours to hear Madam Lee screaming, she did not want to end up in gaol and she did not want to lose her boyfriend when he found out about her dishonesty. She put her hand over Madam Lee’s mouth for a few seconds, according to her, Madam Lee stopped screaming and the defendant left quickly with the stolen property.
The defendant believed that at the time she left there was nothing wrong with the deceased. She said she had no knowledge of the death until the next day and in support of this she pointed out that she made no attempt to flee to mainland China. That afternoon she remitted money to her son to pay for her daughter’s medical expenses; the money was said to be a combination of her mahjong winnings and stolen cash. Only after she had spoken to her lawyer did she understand what had happened to Madam Lee.
Counsel for the defendant submitted that this case was a less serious one in the scale of manslaughter cases because there was no intention to kill or injure, there was no weapon used, the assault was of very short duration, according to the defendant, a few seconds only. There was no premeditation, it was a moment of panic. There was no robbery and no items of jewellery were taken from the body. The defendant’s criminal record was minor and did not include offences of violence. She pointed out that she did not leave knowing that Madam Lee would die. She fled to escape punishment for theft.
Counsel for the defendant submitted that the Forensic Pathologist’s report was consistent with her explanation. The defendant denied the bruises on the back of Madam Lee’s hands had been caused by her and it was claimed that there was no evidence of a prolonged and violent struggle.
Although the death had occurred during the commission of a crime, that crime was a minor one and counsel submitted it was not the type of manslaughter case closest to murder.
The remorse of the defendant was conveyed to the court and a letter was produced to the court from the defendant’s family setting out the details of her remorseful attitude. Counsel submitted that the sentence should be concurrent with that for the theft charge. Although the death the victim was caused during the crime there was no evidence of any intention to kill or cause grievous bodily hard to Madam Lee.
Counsel also relied on the fact that the deceased did have chronic health problems that might have made her more susceptible to the kind of behaviour she was subjected to. It was suggested that as the body was found at an angle on the bed, it was an indication that the deceased must have been able to move after the defendant left.
It should be said first that Madam Lee, despite her subsisting ailments, which can be described as age-related, (chronic bronchitis and emphysema and the atheromatous changes of coronary arteries), she in fact led an independent and energetic life. The signs listed by the Forensic Pathologist were compatible with mechanical asphyxia due to smothering by what was described as a “prolonged and unremitting pressure for a period of time during life”. In the report the Pathologist stated that more than 15 to 30 seconds would be required to cause death from asphyxia caused by smothering.
Although the defendant denied that the two small bruises found on the back of the deceased’s hands were caused by her, the Forensic Pathologist considered that those injuries were consistent with a struggle by Madam Lee during the course of her airways being occluded. It might have felt like a few seconds to the defendant but the occlusion of the airways must have been for a longer time than was claimed by the defendant. The Forensic Pathologist’s report stated that any contribution to the death by the underlying medical conditions could be triggered by the physical and/or emotional stress resulting because of her assault and clearly her smothering and the signs described by the forensic pathologist indicate that there was a smothering.
The Forensic Pathologist noted evidence of haemorrhage into the atheromatous plaque at the narrowest point of the coronary artery. He considered it was reasonable to presume that such bleeding could be precipitated by a sudden change of blood pressure caused by exertion or emotion, including the stress associated with being physically assaulted.
Although I accept that the defendant may not have had the intention to kill the victim or badly harm her in this case, it does appear that she was prepared to silence Madam Lee in an effort to hide her transgressions in stealing the property of Madam Lee. The defendant had endeavoured by her account to lessen her culpability in respect of the manslaughter.
It was true, as counsel submitted, that there was no weapon used by the defendant, but there was no need to use a weapon given the age and physical differences between the two women. Further, any smothering could have been effected by hands, or a blanket or pillows which were available in the bedroom where Madam Lee was found.
Consideration of sentence
In considering the sentence the court must note, first of all, that there are myriad factual situations involved in manslaughter cases and each must be looked at on its own merits. There was no advantage in this case of taking a starting point for sentence. Here one sees a petty thief who was prepared from greed to steal from her hostess and who reacted in a very serious manner when, according to her, Madam Lee woke up and saw what she was doing. She was prepared to use significant physical force against an 88 year old woman to protect herself from her own wrongdoing.
The defendant advised the court through her counsel that she had no intention to kill or cause grievous bodily harm, she was simply anxious to stop Madam Lee raising a hue and cry when she discovered her stealing.
The defendant claimed that there was nothing wrong with Madam Lee, who was all right when she fled from the flat, but it is quite clear that if her account is true then Madam Lee must have been unconscious or incapacitated in some way before the defendant left, because otherwise Madam Lee would have continued to raise the alarm over the theft.
The medical evidence supports a struggle, quite a serious struggle to judge from the photographs of the marks and grazes to the face, and certainly consistent with a forcible smothering by a cushion, bed covers or human hands.
Although it was implicit in the mitigation advanced that another person or persons could have been responsible for those injuries to the back of the hands, that is simply a fanciful scenario adopted by the defendant to excuse her actions.
I sentence on the basis that the defendant wished to stop Madam Lee raising the alarm but I cannot accept, given the medical evidence, that the time was as short as just a few seconds. I sentence on the basis that the defendant had succeeded in her aim of stopping Madam Lee raising the alarm and that Madam Lee had lapsed into unconsciousness or was incapacitated by the time the defendant left.
I note also that despite her avowed panic the defendant did not flee leaving behind the items she intended to steal, but she had sufficient presence of mind, despite her fear of discovery, to gather them together before she left the premises, later disposing of the items. There was no attempt by the defendant to seek help or call an ambulance, despite Madam Lee having fallen unconscious or becoming incapacitated in some way.
Having taken all these matters into account I consider that this is a serious case where a woman unnecessarily lost her life as a result of the defendant’s actions. Taking all matters into account including the plea of guilty I consider that 12 years is the appropriate sentence. I sentence the defendant to a term of 12 years’ imprisonment on Charge 1.
For the theft charge I take a starting point of 3 years. I give full credit for the plea of guilty and sentence the defendant to 2 years’ imprisonment and I order that both sentences be served concurrently.