HKSAR v. HUI KWAN YUEN

CACC 210/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 210 OF 2002

(ON APPEAL FROM HCCC NO. 8 OF 2002)

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J U D G M E N T

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Hon. Cheung J.A. : (giving the judgment of the court)

The appeal

1. The applicant was charged with the offence of murder. On the first day of the trial he offered to plead guilty to manslaughter. The plea was accepted by the prosecution. He was duly convicted on that basis by Lugar Mawson J. The learned judge used a starting point of nine years' imprisonment, reduced it by one third because of the guilty plea and sentenced the applicant to six years' imprisonment. The applicant now seeks leave to appeal against the sentence.

The facts

2. This case is a family tragedy. The victim of the crime was the wife of the applicant. The applicant is aged 44. He was married to his wife for about six years. There are two children born of the marriage, aged five and four respectively.

3. The killing was discovered when the applicant surrendered himself to the police and informed them that he had killed his wife a few days earlier. The applicant explained to the police that he and his wife had a quarrel for a long time. He claimed that the wife tried to stab him with a knife but he managed eventually to snatch it from her hands. The two of them continued to quarrel in the bedroom and during the struggle he strangled her with his hands. He identified a knife as being the weapon which was used by the wife.

4. The applicant provided further details to the police about the killing. When he returned home on the day of the homicide his wife initially refused to let him enter the premises and threw out his clothes. When he eventually managed to gain entry into the home the wife continued to be angry and agitated. He tried to pacify her until she appeared to have calm down. He gave her some water to drink and then she laid down to rest. He then went to have dinner with their two children and put them to bed.

5. Later on that night, the applicant went back to the bedroom. The wife began to get agitated again and started to throw things at him, including a photo frame which hit his forehead. The wife then took a knife from the kitchen. Feeling threatened and concerned as to what she might do with the knife and feeling that she might hurt the children, the applicant struggled with the wife and managed to snatch the knife from her. The applicant then pressed her onto the bed in order to control her and prevented her from moving. He pressed her hands with one of his hands while he squeezed her neck with the other hand until she stopped moving. Believing that she had fallen asleep the applicant then left the bedroom to check on the children. When the applicant returned to the bedroom he found that the wife's body was cold. When she did not respond despite moving her, he then realized that she was dead. He became frightened and did not know what to do.

6. The next day he took the two children to his elder brother's home for them to stay there until he could decide what to do. After he had made arrangements for the children, he then decided to surrender to the police.

7. The applicant also indicated to the police that the wife used to have a hot temper and got angry easily. She had in the past also grabbed knives in the course of the arguments and he had always managed to stop her before she did anything harmful.

The mitigation

8. In mitigation, it was revealed that the applicant used to be a foreman mechanic for 13 years. However, he was laid off from his job in December 2000. He then purchased a van and used it to transport goods for a living. He was not successful and he decided to sell the van. The wife was running a small stall selling goods and the van was of benefit to her. When she discovered that the husband had sold the van she became upset. This was one day before the killing. On that day, there was also another accident at home in which a television had fallen over on the children although without harming them. There was a quarrel at home and the wife sacked the maid. On the next day the wife was still very upset and the events took place as described earlier.

Unfortunate case

9. On the facts disclosed, the prosecution, had in our view, acted most responsibly when it accepted the plea of manslaughter. The prosecution accepted that there was a domestic quarrel which had escalated beyond the contemplation of the applicant and his wife. What the applicant was intending to do was to restrain the wife but in the course of which he assaulted her by way of strangling her. There was also some elements of provocation as well.

10. This is an unfortunate case and it is clear from the mitigation that this was totally out of character of the applicant. He was a reliable and trustworthy worker and had gained many distinctions on certificates in his life. He was also fully supported by his family members. As disclosed in the mitigation, the applicant and his wife might have communication problems. They have different nationalities.

Manslaughter in a domestic setting

11. This Court had emphasized in R v. Chow Wing Kin, CACC No. 248 of 1990 that even if the manslaughter took place in a domestic setting, it does not mean the sentence would necessarily be lower than cases where the parties are unrelated. Each case has to depend on its own facts. Family relationship as such has no special significance but may, in particular cases, be relevant to explain how the killing occurred and the extent of the aggravating or mitigation factors.

Range of sentence

12. The cases indicate that where provocation was also involved in a manslaughter, the sentence imposed by the courts was in the four to six year range.

13. In R v. Chow Wing Kin, the appellant pleaded guilty to the manslaughter of his wife. The sentence was five years' imprisonment.

14. In R v. Lau Puk Yu, CACC No. 402 of 1993, the appellant was charged with murder but was convicted of manslaughter. It was not shown on the facts of the case whether the appellant and the woman victim were related. A five years' imprisonment was substituted in place of the original seven years.

15. In R v. Wong Kwai Chuen, CACC No. 605 of 1994, the appellant was charged with the murder of a woman he was associating with. He was convicted of manslaughter. A sentence of seven years was reduced to four years on appeal. In that case the appellant was suffering from a post-traumatic stress disorder which he had suffered since his teens.

16. In HKSAR v. Francisco Reynaldo F., CACC No. 146 of 2000, the appellant was charged with the murder of his girlfriend. He was convicted of manslaughter. The starting point of eight years' imprisonment was not disturbed on the basis that the provocation, although more than bare minimal was not devastating. However, a full discount of one-third was given for the guilty plea in substitution of the original one-fourth. The sentence of six years was reduced to five years and four months on appeal.

17. In HKSAR v. Ho Shing Kwong, CACC No. 180 of 1997, a six year sentence was not disturbed by this Court. In that case, after killing his wife, the appellant dragged her naked body out of the home and left it in the staircase. In the morning the appellant went off on his usual morning stroll. He pleaded guilty to a manslaughter charge. This Court described what had occurred was a wickedly callous offence. The sentence of six years' imprisonment was said to be severe but the court did not interfere with the sentence.

18. Counsel for the parties further referred us to the case of HKSAR v. Tsang Siu Ching, CACC No. 349 of 2000, in which a sentence of three and a half years' imprisonment was imposed in a manslaughter charge. The appellant pleaded guilty. The facts revealed that a woman had a relationship with the appellant and another man. The appellant killed the man after an argument took place between them. The appellant grabbed the man tightly around his neck before he threw the man backwards towards a cabinet. The man was then "bumped" against the wall by the appellant after which the man laid motionless on the floor. The sentence was affirmed on appeal. This Court observed that the sentence could have been slightly higher.

The present case

19. In this case a precious human life had been taken away. However, the killing was not premeditated. There was an element of provocation which would justify a reduction in sentence. The offence arose out of an argument at home which escalated into violence resulting in an unfortunate end for the victim. The applicant would have great difficulties in explaining to his two children on what had happened to their mother.

20. On the facts of the case, a six year sentence is a severe one and there really is no additional feature which would put it into this bracket of sentence. In our view, a five year imprisonment is the appropriate sentence and is sufficient to reflect the gravity of the offence.

Conclusion

21. We will treat this application for leave to appeal as the appeal itself. We will use a starting point of seven and a half years' imprisonment, reduced it by one-third because of the guilty plea and the sentence is reduced to five years' imprisonment.