HKSAR v. LAM KA WAI

HCCC 296/2017

[2018] HKCFI 2311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 296 OF 2017

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Sentence
The following is a transcript of the digital audio recording

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Court：

The defendant is charged with one count of murder, namely the first charge in this case and one count of manslaughter, the second charge in this case.  The second charge is an alternative charge to the first charge.  Originally, there was only the charge of murder in the indictment.  In the beginning, the defendant pleaded not guilty to murder but indicated that he would plead guilty to manslaughter on the basis that he killed the deceased in pursuance of a suicide pact between the two of them. At that time, the prosecution did not accept a guilty plea to manslaughter.  The court therefore proceeded to conduct a trial on the murder charge.  First, a voir dire was held to determine whether what the defendant told the investigating officer was admissible or not.  At the conclusion of the voir dire, I ruled that the evidence in dispute was all admissible.  Later, there were some developments in the matter.  Upon consideration, the prosecution is of the view that under the current circumstances, a guilty plea to manslaughter by the defendant be accepted.  Accordingly, the indictment is amended by adding the second charge as an alternative charge.

Today, the defendant pleads not guilty to the first charge but guilty to the second charge before me. With the prosecution accepting the plea and the defendant admitting the relevant facts, I convict the defendant of the second charge. The first charge is left on the court file, not to be proceeded with without the leave of the court.

As regards the sentence for the second charge, I have taken into account the overall circumstances of the case, including the nature and the facts of the case, the personal background of the defendant and mitigation by defence counsel, and have referred to some authorities.

The facts of the case may be summarized as follows: At the time of the offence, the defendant was aged 20, residing in a public housing estate in Tsing Yi while the deceased was aged 16, studying Form 2 and residing with her family in Ngau Tau Kok.  At about 11 a.m. on 11 December 2016, the deceased alone entered the building where the defendant lived.  Two-odd hours later, she and the defendant went downstairs and left together.  Later, the two of them had a meal with Miss Lui whom the defendant addressed as “god sister” in Sham Shui Po.  Also present were Miss Lui’s two sons and two friends.  After the meal, at about 4 p.m., the defendant and the deceased went to the Jumpin Gym U.S.A. at the Dragon Centre where they stayed for about an hour.  Around 7:50 p.m., the two left the Dragon Centre.  Before that, they bought a lighter and asked to have the words “Wai (the shape of a heart) Jim 6.3.2015 to 12.12.2016” engraved on it.

By the time the two returned to the building where the defendant lived, it was already around 2:48 a.m. on 12 December (i.e. the date of offence). About 15 minutes later, at 3:04 a.m., the two of them left the building, went past some passageways in the housing estate and reached Tsing Yi Heung Sze Wui Road. As they were beyond the CCTV coverage after entering Tsing Yi Heung Sze Wui Road, only the defendant knew where they went thereafter. The defendant, after being arrested, told the police officer about where they had been to and I will elaborate on that later. Around 4 a.m., at the Tsing Yi Promenade, someone heard the defendant in the sea shouting for help. Eventually, the defendant was rescued jointly by passers-by and firemen. While still in the sea, the fireman who rescued the defendant asked the latter why he had jumped into the sea. The defendant replied that he fell into the sea while walking alone. Having been pulled out of the water, the defendant was taken to an ambulance. The ambulance personnel asked the defendant if he had attempted to commit suicide or if he had abused drugs. The defendant did not reply. In the ambulance, a police officer made enquiries with the defendant. The defendant told the officer that around 3 a.m. on 12 December, he went to Tsing Yi Pier alone and, while playing on his mobile phone near the railings off Grand Horizon, he accidentally tripped and fell into the sea. At that time, no one pushed him, nothing in particular happened and he did not have any quarrel with anyone. His belongings fell into the sea. He required no police assistance in sending him to hospital. He said that he would contact the police if necessary. At that time, the defendant was wearing a blue and black long-sleeved jacket with a hood, a pair of black trousers and a pair of trainers. There was no proof of identity on him and the lighter bought from the Dragon Centre earlier on was inside his trouser pocket.

The defendant was sent to Princess Margaret Hospital for treatment. Two days later (on 14 December), the defendant told the doctor that he had jumped into the sea as he harboured suicidal thoughts due to some problems, and the doctor therefore transferred the defendant to Kwai Chung Hospital in accordance with legal procedures for compulsory psychiatric observation. After two days’ observation, from 16 December onwards, the defendant voluntarily remained in hospital for psychiatric observation. Having assessed the defendant, the psychiatrist was of the view that the defendant did not exhibit any mental disorder during his stay in hospital and that it was not necessary to prescribe any psychotropic drugs for him and was minded to discharge the defendant after a regular medical meeting on 22 December.

In the afternoon on 14 December, the defendant called and told Mr. Lo of the Social Welfare Department that he accidentally fell into the sea while playing on his mobile phone and asked the latter to pay attention to the news in order to find out more about the matter. The following day, Mr. Lo paid a visit to the defendant at the hospital. The defendant told Mr. Lo that in the afternoon on 11 December, he and the deceased left separately after a quarrel in Sham Shui Po. After that, he went to a video games centre alone to play video games. That night, at the Tsuen Wan waterfront, he jumped into the sea as he was unhappy. Later, after floating to Tsing Yi Pier, he was rescued by a male passer-by. After he was sent to hospital, he noticed that there was a news item about the discovery of a woman’s body in Tsuen Wan waters. He suspected that the woman’s body was the deceased. He said he wanted to be discharged as soon as possible so that he could find out what had actually happened. The defendant said that he was worried whether or not the woman’s body was the deceased and so lost control of his emotions in hospital. He thought that the woman’s body was the deceased and hoped that he could be discharged as soon as possible so that he could resume work and look for the deceased soon. The deceased’s body was first discovered half afloat in the waters off the Tsuen Wan Pier at 7:10 a.m. on 12 December. The boat master who discovered it made a report to the police. However, before the marine police arrived, the body had already sunk into the sea.

On 15 December, the body of the deceased was picked up from the sea off Tsuen Wan Pier. As the body had decomposed, the cause of death could not be ascertained. Eight days after the defendant was rescued (on 20 December), upon assessment by a psychiatrist, he was found to be suitable to be discharged and subjected to police enquiries. When the police officer cautioned the defendant in respect of the discovery of the deceased’s body, the defendant told the officer, “Sir, I made her a victim. I hugged the deceased and jumped into the sea, causing her to die. I knew she was a non-swimmer.” When the officer arrested the defendant for murder, the defendant said under caution, “Sir, it was me who suggested we commit suicide. Later that night, on Tsing Yi South Bridge, the deceased and I hugged each other and jumped into the sea together.” When the officer further arrested the defendant for aiding and abetting another to commit suicide, the defendant said under caution, “I did not kill her. I only jumped into the sea together with the deceased.”

Later, on 21 December, the police conducted a cautioned video interview with the defendant with a social worker present. Before the interview, a police psychologist was also of the view that the defendant was fit to take part in a cautioned video interview. Throughout the interview, the psychologist was observing from the monitoring room. In the interview, the defendant said the following under caution. He said that he attempted to commit suicide by drinking a disinfectant solution between 2013 and 2014. That was his only suicide attempt prior to this jump into the sea. He came to know the deceased at the beginning of 2015. He was the deceased’s boyfriend and they had been on very good terms. He had met the deceased’s parents. On 11 December, he began to have suicidal thoughts due to some problems. He searched on the Internet for information on committing suicide by jumping from Tsing Yi South Bridge. He suggested to the deceased through WhatsApp on the mobile phone that they commit suicide. He said that the deceased did not oppose it at the time. That day, he had a date with the deceased and they went window shopping and for a meal and a movie in the vicinity of Sham Shui Po. They also bought the lighter in question on which the date they became lovers and their nicknames were engraved. The date, 12 December 2016, was to show the date they committed suicide. When they were watching the movie, the deceased asked that, should either of them survive the suicide attempt, the survivor would not disclose that the other had committed suicide. The defendant promised. When they reached Tsing Yi South Bridge, he threw his mobile phone into the sea to check the depth of the sea before climbing onto the edge of the bridge. After that, he helped the deceased climb beyond the protective barrier. The two of them stood at the edge of the bridge for about 5 minutes. In the meantime, the deceased again asked that if either of them was to be rescued, the rescued party should not disclose that there was another person in the sea. They then hugged each other face-to-face. The deceased said to him, “We shall meet again if our destinies see fit.” When the two of them leapt, the defendant also said, “Let fate take its toll.” The two of them separated after they fell into the sea. The defendant did not know how to swim but began to float. He shouted for help right away and was pulled from the sea by passers-by after drifting for a while. After he was rescued, he did not tell anyone that he had jumped into the sea with the deceased, in pursuance with their pact. That night, the purpose of his returning to his home together with the deceased was to feed his hamsters and to hand over papers in respect of his work injuries to his father for handling.

The defendant is now 22 of age. He was educated up to Form 5. Despite his young age, he has committed multiple offences. In May 2010, he was put on probation for theft and arson. In October 2011, he was also put on probation for shoplifting. In 2013, he was sentenced to a Community Service Order for a count of theft. Thereafter, he was sentenced to a Detention Centre for attempting to obtain property by deception and obtaining property by deception. In July 2016, he was put on probation for common assault. On 19 July 2017, after the commission of the offence in this case, he was sentenced to two months’ imprisonment for a count of sexual intercourse with an underage girl.

In mitigation, Mr. Ng for the defence puts forward the following main points: 1) Although the acts of the defendant caused the loss of the deceased’s life, the defendant himself also had a strong will to die at the time; 2) What the two of them did before plunging to their deaths shows that they were in love. They bought a lighter and had an important message engraved on it. When they leapt from the bridge, the defendant even gave up his mobile phone but still kept the lighter; 3) The defendant survived only by chance, all because his clothes filled with air that made him float; 4) While it was inappropriate for the defendant to hide the truth after he was rescued, he did so because he had an agreement with the deceased that the survivor should not tell other people about the matter; in front of the social worker, he did not tell the truth because the social worker was his probation officer and he submitted to his authority and did not dare to be frank with him; 5) Owing to his personal background and the fact that his mother had abandoned him and his father had no concern for him, the defendant harboured suicidal thoughts; moreover, his mental health was impaired and he therefore did not know how to tackle difficulties in life; he was not mature enough to handle them; he was also troubled by the fact that he might be arrested for a sexual offence; 6) This explains why the defendant failed to give an appropriate response when the deceased suggested committing suicide together; 7) As far as the defendant knew, the deceased was also facing some difficulties; she had congenital diseases and was worried about an upcoming surgery; 8) On this occasion, it was unwise on the part of the defendant to think that dying together was a way out for the two of them; 9) At that time, the defendant was accused of having had sexual intercourse with an underage girl, which made him very worried, and it turned out to be true and the defendant was later convicted and sentenced to two months’ imprisonment.

The defence has submitted a psychiatric report on the defendant, some information stored on others’ mobile phones showing the defendant’s mood at that time, a mitigation letter by the defendant himself and some other mitigation letters by social workers and church people.

Both the prosecution and the defence have submitted some authorities, all overseas ones.  This case seems to be, perhaps, the first ever case of its kind in Hong Kong.

The basis for convicting the defendant of manslaughter is that he acted in pursuance of a suicide pact between himself and the deceased to unlawfully kill the deceased.  In order for a suicide pact to be established, there must be a common agreement between the two having as its object their deaths.  When the defendant did what he did to cause the death of the deceased, he had a settled intention to die in pursuance of the pact.  This is the allegation of the prosecution which the defendant has admitted.

The maximum penalty for manslaughter is life imprisonment.  There is no sentencing guideline for manslaughter committed by way of a suicide pact.  In sentencing, the overall circumstances of the case should be taken into account.  Definitely, no one is allowed, under the law, to make a suicide pact with someone else because this will probably lead to the loss of the lives of that person and the other who enters into such a pact. Therefore, if two persons enter into a suicide pact and one of them dies and the other survives, the survivor should be punished. The culpability of the survivor must be carefully assessed.  Regard must be had to whether there is anything worthy of sympathy and the court must consider the overall relevant circumstances.  

In this case, the defendant and the deceased were lovers. They had known each other for more than a year. They were both young but the defendant was already an adult, aged 20. It can be seen from his criminal records that the defendant was not someone who was particularly naive or timid. On the contrary, the deceased was only 16 years of age. She had congenital health problems and had to stay in hospital for treatment before the age of 4. The deceased would have been emotionally affected by the defendant. According to the defendant, the deceased was emotionally attached to him.

On the other hand, I have had regard to the defendant’s impaired mental health which would affect his judgment and problem-solving abilities.  I have been told that the defendant is the only son in the family and his parents had divorced when he was small.  He has not seen his mother since the age of 3.  His father, a truck driver, is an alcoholic with a hot temper.  The defendant was mainly taken care of by his relatives when he was small and had been put in foster care, staying in children’s homes and various social welfare institutions.  The defendant was often bullied.   He felt helpless and that no one cared about him. He was disinterested in his studies. He was once expelled from school for breaking the law.  He had been a convenience store attendant, a mobile phone salesperson, a mobile phone repairer, a phone card salesperson, a shop attendant, a bartender, a bowling alley repairer, a waiter and a kitchen helper.  However, each job lasted for less than a year and he usually worked part-time only.  The last job the defendant did was to build stages.  He said that his work pressure was great.

According to the psychiatric report submitted by the defence, the defendant told the psychiatrist that the deceased was his only true love and also the only girlfriend with whom he had a stable relationship. He pointed out that the deceased’s hearing was impaired and she was not sociable. However, he found her to be decent, unsophisticated and child-like.  He believed that the deceased regarded their relationship as the centre of her life.  He was aware that the deceased’s father did not like him (i.e. did not like the defendant).  He was aware of the status and reputation of the deceased’s father.  He was very afraid of her father.  He said he knew that the deceased was unhappy and that the deceased was worried about the neck surgery she was planning to undergo.  The defendant himself had suffered from attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD). According to the medical report, he had been a regular mental health patient since the age of 4.  He exhibited oppositional behaviour in class, with poor impulse control.  He was hyperactive and mischievous.  Although his behaviour improved after treatment, it was still difficult to discipline and teach him.  According to the psychiatrist, it would be difficult to manage his oppositional behaviour without medication.  Starting from 2004, he had been diagnosed as suffering from ADHD and ODD.  Since 2006, he had been prescribed with medication for ADHD and also with tranquilizers.  However, owing to side effects, he stopped taking the medication in April 2012 and even ceased to receive psychiatric follow-up treatment after October.  In September 2013, at the age of 17, the defendant attempted to commit suicide by drinking a mouthful of “Pik Dat” detergent at Sha Tsui Correctional Institution.  He said that it was as if he were in hell at that time because he was often assaulted and maltreated there.  He said what he did then was not premeditated and he only acted on impulse.  He was sent to hospital and then to Siu Lam Psychiatric Centre where he received treatment for two months.  Upon assessment, he was found to have suffered from adjustment disorder and was prescribed with some medication.  Having been discharged, the defendant twice received psychiatric follow-up treatment and no medication was prescribed.  According to records, the defendant thought that his condition then was very good and he refused to continue with follow-up treatment at the out-patient specialist clinic for adults.  According to the defendant, on the day of offence, he did not have any psychiatric symptoms.  The court has also been told about things that happened a few days prior to the day of the offence.  On 6 December, the defendant was injured at work sustaining tears to his scalp and was granted sick leave.  During that period of time, someone told him that a girl had made a report to the police, alleging that he had unlawful sexual intercourse with an underage girl.  From that day onwards till the day of the offence, he kept worrying and thought about the consequences of the offence over and over again.  He became hot-tempered and could not concentrate.  He suffered from low mood, had no appetite and did not sleep well.  All along, he was anxious and nervous and often drank beer.  He feared that the offence would land him in jail, which would bring terrible shame.  Moreover, as it was a sexual offence, he might be subjected to dreadful treatment in jail.  He was also worried that should the deceased’s father know that he had betrayed his daughter, the father would take revenge on him.  He told the psychiatrist that on 11 December, he told the deceased about the problem in question and the deceased forgave him.  They had a discussion about a mutual agreement to commit suicide together so as to prevent the defendant from being arrested by the police.  They talked about the plan to commit suicide by jumping from Tsing Yi South Bridge.  He did not ask the deceased to commit suicide together with him but talked about his suicidal thoughts only.  The deceased said that she wanted to die with him.  The defendant said it did not occur to him to stop the deceased from doing so.  The deceased had told him several times that “there is nothing more to treasure in life”, that she was worried about the upcoming surgery, that she thought her father and brothers did not treat her well and that she always wanted to kill herself.  The defendant said he thought that the deceased regarded him as the centre of her life and that should he die, the deceased could not carry on with her life.

On 11 December, the police turned up on his doorstep, which reinforced his suicidal thoughts.  He did not want to be subjected to lifelong shame as a sex offender.  He was very scared, feeling that he would be in great trouble. That afternoon, he and the deceased went to Sham Shui Po.  During that time, they discussed the suicide plan further.  He learnt from the news that jumping from Tsing Yi South Bridge was a good way to end one’s life.  He was aware that the deceased was also considering killing herself at that time. They spent the afternoon together in Sham Shui Po, buying an engraved lighter, watching a movie and having a meal.

According to the psychiatrist, he/she examined the defendant on 6 March 2018.  At that time, the defendant did not exhibit low mood, and when he was relating the incident, he was not agitated, of normal affect, and did not have any suicidal ideas. No active hallucination was noticed.  The psychiatrist had the following conclusions:  During the offence, it is highly likely that the defendant was suffering from anxiety associated with adjustment disorder.  The psychiatrist is of the view that when the defendant and the deceased were attempting to commit suicide together, the defendant was only affected by adjustment disorder, which made him impulsive and inclined to think that committing suicide was a way for him to escape from adversities.  The psychiatrist is also of the view that the defendant was very alert and determined while attempting to commit suicide.  At that juncture, he was fully aware of what was going on around him, was able to analyse the pros and cons without any difficulty, and was of sound mind.  According to him/her, the defendant does not have any psychiatric symptoms at present.

I am satisfied that the defendant’s mental health was impaired. However, according to the psychiatric report submitted by the defence and the medical assessment stated in the summary of facts, the mental condition of the defendant at that time should be normal, though his judgment was affected.  Further, troubled by the worries of being convicted of the allegation against him, he harboured suicidal thoughts.  On the other hand, the defendant was still capable of analysing the pros and cons of the situation.  When the defendant told the deceased about his suicidal thoughts, it turned out that the deceased said that she wanted to commit suicide together with him.  At that juncture, the defendant did not persuade her not to do so but further discussed it with the deceased and finally carried it out, making the deceased a victim.  The defendant was older and more worldly than the deceased.  Even though the defendant himself was in difficulty, what he did was indeed selfish and he had no appreciation for the lives of other people.  The defendant would not have been unaware that what he did would cost the life of the deceased and would definitely cause great sadness to her family.  Notwithstanding the mental health condition of the defendant, his culpability is considerable; it is especially so in this case where what the defendant did was not to relieve the deceased of her suffering.  From an objective point of view, the deceased at that time was not in an extremely harsh and desperate situation in which she could not see a way out.  Nor were they both in a predicament.  The defendant himself was also aware that to a large extent, the deceased took this course of action because of him. Also, he definitely knew that the deceased was someone who was greatly influenced by him.  This is not a case where the defendant did what he did for the sake of the deceased in the hope of helping the deceased extricate her from her agony.  Under these circumstances, when the deceased indicated that she would also commit suicide, the defendant did not reflect on the matter, nor did he turn back and persuade the deceased not to do so.  On the contrary, he did something that caused the deceased to take her life.  This is very different from the situation in many authorities where the person charged and the deceased both felt desperate.  Moreover, the defendant did not carry out such acts during an episode of depression.

As to why the defendant appeared in the waters of Tsing Yi, the evidence in this regard only came from him.  He said that he and the deceased jumped from Tsing Yi Bridge together.  In the absence of any other evidence, I will base my consideration on this.  I am satisfied that the defendant was also trying to kill himself by jumping into the sea from Tsing Yi Bridge.  The risk that he would lose his life was not low and there is no evidence in the case to show that the defendant brought along any survival gear.

Nonetheless, the defendant survived.  He said that he was a non-swimmer and that he was unable to save the deceased in the sea when it was dark.  I will not blame the defendant for this.  However, the defendant, after being rescued, withheld the fact that the deceased was in the sea.  Although it was difficult to know whether the deceased was dead or alive at that time, it showed that the defendant did not care whether the deceased was alive or not.  In sentencing, I will have to have regard the kind of heart he had.  Despite the defendant saying that they had a prior agreement that they would not tell others about it, he chose not to tell the rescuer when it came to life and death, and even taking into account the fact that his judgment and thoughts might be affected due to his impaired mental health, thereby slightly reducing the degree of enhancement of his culpability, I must take this into account when assessing his culpability.

Despite being asked about why he was in the waters by several persons at different stages and under different circumstances, the defendant never said that the incident also involved the deceased.  It was not until 8 days later when he was asked by a police officer that he said so.  There must be ulterior motives behind this.  I understand that one would probably not know what to do under such circumstances and might have missed the most critical moment to tell the truth.  Such understanding aside, in assessing his culpability, the fact that there was a delay in telling the truth must be reflected.  The deceased was still a minor. On considering the overall situation, the influence the defendant had on the deceased was not insignificant.  If not for the defendant, the deceased would not have lost her life in this way.  With the information available to the court, if not for the defendant, the deceased would not have been likely to have any suicidal thoughts.  The words and behaviour of the defendant must have affected the judgment and decision of the deceased.  However, the situation was, after all, different from one where the defendant killed an unwilling victim.  The defendant acted in pursuance of a suicide pact.  He was also trying to end his life and was actually carrying it out.

I have referred to the sentencing authorities submitted by both the prosecution and the defence which set out the general sentencing range.  However, as mentioned previously, each case has its own circumstances and it looks like this kind of case is also rare in other places, and not much data can be drawn from them as reference.

Having considered the overall circumstances, especially those matters mentioned above, I am of the view that imposing a custodial sentence on the defendant is inevitable and that only a starting point of 6 years will fully reflect the seriousness of this case and the culpability of the defendant.  The defendant has indicated his remorse in his letter as well as to others. I am satisfied that the defendant is now remorseful.  However, in the beginning, he kept everybody in the dark.  Perhaps, he was not unconcerned about the deceased.  Yet, his remorse was not obvious at the time.  All along, the defendant indicated that he would admit the offence of manslaughter on the grounds of a suicide pact and he did plead guilty to such an offence in the end, and should be entitled to a one-third discount.  This is agreeable to the prosecution.  Having considered the overall circumstances and taking into account the submissions of defence counsel, I am of the view that this is the discount the defendant is entitled to.

After the defendant was arrested, in July 2017, he was sentenced to 2 months’ imprisonment for the offence of unlawful sexual intercourse with a girl under the age of 16, which he has duly served.  Having considered the overall circumstances and the overall sentence, I am of the view that should that case be dealt with together with this case, it is appropriate to order the sentence in that case be served in full.  Therefore, the sentence in that case will not affect the sentence in this case.

The defendant committed the offence in this case while on probation for the case KT 275/2016.  According to his conviction records, on 1 August 2017, while dealing with another case, the judge ordered that the probation order be continued.  The probation order should have been completed by now.  Having had regard to the sentence in this case, I am not going to make any order for breach of the probation order.

Defendant, please stand up.

For the reasons above, I sentence you to 4 years’ imprisonment in respect of the second charge in this case.