HKSAR v. FRANCISCO REYNALDO F.

CACC 146/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 146 OF 2000

(ON APPEAL FROM HCCC 282/1999)

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J U D G M E N T

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Hon Leong JA (giving the judgment of the Court):

1. The applicant was charged with the murder of the deceased Guillermo Dionisia Antonio on 18 July 1999. On 22 March 2000, he pleaded not guilty to murder at the trial before V. Bokhary J. The jury found him not guilty of murder but guilty of manslaughter and he was sentenced to 6 years imprisonment. He now applies for leave to appeal against sentence. It must be mentioned at this stage that the applicant on 22 November 1999, after committal, had through the Director of Legal Aid offered to the prosecution his plea to manslaughter but the offer was not accepted by the prosecution.

2. The applicant was a Filipino man in his 40's and was employed at the material time as a domestic helper at the Pak Sha O Youth Hostel. He also worked there as a voluntary worker. The deceased was also a domestic helper. In the evening of 18 July 1999, the manager of the hostel was at a wedding reception in Central, Hong Kong, with a Miss Cheung. At about 10 pm, Miss Cheung received a telephone call from the applicant who said that he had just killed Jonny and he wanted to speak to the manager. The phone was passed to the manager and the applicant told the manager that he had killed Jonny because she had made him jealous of her boyfriend in Saudi and he would commit suicide. He also said that he had taken insecticide. Subsequently a social worker who went to the hostel found the deceased lying on the floor behind the counter in a pool of blood, with a metal frame of a stool on her body. Police officers arrived at the scene found the deceased no longer alive. The applicant was found lying near the entrance of the lavatory. Beside him there was an empty insecticide bottle and the applicant had the smell of insecticide in his breath.

3. The pathologist report is that the cause of death of the deceased was head injuries due to blunt force impact to the brain and the injuries were consistent with the deceased being hit by more than one blow with the stool frame found at the scene.

4. The prosecution case was that the applicant murdered the deceased.

5. The applicant's evidence, as the Judge summed-up in his direction to the jury, is this. The deceased was his girlfriend and on the night in question, she had asked him for money. When he told her he had none to give her, the deceased reacted strongly, repeatedly stamping her feet, tearing her wallet, scolding the applicant and calling him stupid and useless. The deceased also accused the applicant of having money to spend on other things and no money to give to her, suggesting that he should take money from the cash box for her. The deceased belittled the applicant's sexual prowess, comparing it unfavourably with another man in Saudi who was courting her and said that she might as well go with that man who was rich. The applicant said he became furious and grabbed the deceased's shoulders and shook her. The deceased spat on him, scratched him and wanted to bite him. She became violent and kicked him repeatedly. One kick landed on his private parts causing him great pain. He was angry, hurt and embarrassed. He felt pain in his chest and difficulty in breathing. He lost his head, and not knowing what he was doing, he picked up something from behind him. The next thing he realised was that the deceased was lying on the floor bleeding, and he dropped the thing which he had picked up. He said that he did not intend to hurt her. In cross-examination, the applicant said that he was worried because the deceased was so violent and like a crazy woman, she repeatedly kicked at him, attacking his private parts which he feared might be squashed and he could not stop her. He feared that he might faint under her attack and she might even then kill him and that he had to protect himself.

6. The Judge directed the jury both on murder and manslaughter and on provocation and self-defence. By the jury's verdict of manslaughter, it is obvious that the jury had rejected the applicant's case of self-defence. Although the jury did not indicate the basis of their verdict, it is clear that the verdict had been reached on the basis of provocation.

7. In sentencing the applicant the Judge said:

"Your counsel has said that neither unlawful manslaughter nor manslaughter by provocation is more serious than the other. I certainly will not sentence you on any assumption other than the one most favourable to you. This is a bad case of manslaughter since someone was killed by being struck on the head with a hard and heavy object, but it is not the worse category of manslaughter. All things considered, I proposed to take a starting point of 8 years imprisonment. I will reduce it for the mitigation available to you. As to that, I will take into account everything that has been urged on your behalf by your counsel."

8. The mitigation factors the Judge took into consideration included the applicant's good character, his remorse which the Judge accepted as genuine and deep as evidenced by the applicant's attempted suicide and distress throughout the trial, and his offer to plead to manslaughter before trial. However, the Judge took into account the fact that he had eventually run a defence of self-defence with a view to avoid any conviction at all.

9. The Judge gave the applicant only 2 years discount from the starting point of 8 years and reached the sentence of 6 years imprisonment against which the applicant now seeks leave to appeal.

10. The first ground of appeal is that the starting point of 8 years is excessive in the circumstances of the case because this was:

(a) unpremeditated homicide in a domestic setting;

(b) in the circumstances where the applicant was provoked; and

(c) death caused by a single blow.

11. Ms Remedios for the applicant has referred us to a number of authorities on manslaughter sentences and relying on them, urged upon us that the starting point of 8 years is higher than the norm. It must be said that the sentences in the cases referred to depended very much on the circumstances of the particular case and they do not establish any tariffs since no such can be established. Sentences on manslaughter vary greatly from a case which can be categorised as an accidental killing to one which attracts an indefinite term of imprisonment.

12. In R v Peddie [1990] 12 Cr App R (S) 176, one of the cases Ms Remedios refers to, which was also referred to in R v LAU Puk-yu [1994] 1 HKC 148, it was held that sentences for manslaughter by reason of provocation generally ranged from 3 to about 7 years. But it should be noted that Watkins LJ also said the following at page 179:

"The question which then arises is, how culpable in any given case the defendant must be deemed to be. Much, of course, in that respect will depend upon what kind of provocation it was that the victim offered. There are a number of cases in which the kind of provocation has been so devastating as to cause the court to pass sentences of one, two, or three years imprisonment only. There are others where the provocation is not so severe, where sentences have been passed in the range of 10, 11, even 12 years imprisonment."

13. Kaplan J in LAU Puk-yu referring to R v Shaw [1984] 6 Cr App R (S) 108 also added that 7 years should not in all cases be considered the maximum sentence that the court should impose for killing which had been reduced to manslaughter on the ground of provocation.

14. Ms Remedios also refers to a number of United Kingdom "one unfortunate blow" cases (R v Stuart [1979] 1 Cr App R (S) 229, R v Coleman [1992] 95 Cr App R 159, R v Phillips [1985] 7 Cr App R (S) 235) and submits that the sentences in these cases are relevant to the present case. These UK cases were referred to R v LO Bing-sun, unreported, Cr App No 660 of 1993 and Silke VP did not regard them as applicable in Hong Kong. He said this:

"That may well be the sentencing norm in United Kingdom. In my judgment such norms are seldom, if ever, are applicable to Hong Kong. Our circumstances and conditions are very dissimilar to those pertaining in England. These courts do not see the 'pub row' type of offence for that is not prevalent in Hong Kong. But this city is a very crowded and tense environment and the unlawful and dangerous act constituted by a blow such as the one here must be deterred. The huge variety of circumstances in which the offence of manslaughter is committed leaves sentencing very much at large. We must be conscious of the fact that a human being has lost his life. ..."

15. In HKSAR v LI So-man C.A. 609/1999, a case referred to by Mr Cheung for the respondent, this court held that 8 years imprisonment was appropriate where the accused was provoked to a degree which, looked at in the context of the victim's bizarre conducting the twelve days leading up to his death, was more than merely minimal. Mr Cheung also refers to the case of R v SZETO Ken @ SZETO Shin C.A. 687/1996 where there was minimal provocation and the defendant there attempted to commit suicide and the court held 10 years starting point was not inappropriate.

16. In our view, although the jury had not indicated whether their verdict was based on provocation, the Judge had sentenced the applicant on the basis most favourable to the applicant. The degree of provocation in the circumstances of the present case, albeit more than bare minimal, was not devastating and was not such as to render the starting point of 8 years imprisonment adopted by the Judge manifestly excessive. The first ground fails.

17. The second ground complains that the Judge had failed to call for report on the applicant's background and character.

18. The Judge had accepted the applicant as a person of good character and indeed she accepted the applicant was "a man of whom people have spoken very highly of and a man who has done very worthwhile voluntary work." No complaint can be made in this respect.

19. The third and fourth grounds can be dealt with together. These complain that the Judge failed to give consideration to his remorse as evidenced by his confession to his employer shortly after the killing, his attempted suicide and offer to plead to manslaughter.

20. It is obvious from the sentencing remarks by the Judge that full consideration had been given to all the mitigation factors advanced by counsel on the applicant's behalf which included all the matters complained of in these grounds. The Judge had in fact given 1/4 discount for his offer to plea to manslaughter soon after committal and at the pre-trial review. The Judge had stated that she gave that discount despite the applicant had pursued self-defence. It would appear that had the applicant not advanced self-defence at the trial which was inconsistent with the offer of manslaughter plea, he would have been entitled to the full 1/3 discount.

21. In our view, the applicant had indicated from the outset that he was prepared to plead to manslaughter. The issue of self-defence came out during his evidence in cross-examination. This came out in the heat of him giving evidence relating to provocation and this should not be regarded as a defence that he was actually pursuing and one that he intended to make. The Judge was obliged to put this to the jury since it was in evidence. The applicant should not be penalised for what was not really a defence which he intended to run at the trial. The applicant is entitled to be given full 1/3 discount from the starting point. Accordingly we grant the application for leave to appeal against sentence. Treating the application as the appeal, we allow the appeal to the extent that the sentence of 6 years imprisonment be reduced to a term of 5 years and 4 months imprisonment.