COURT: Now, the defendant Au Chi-ming pleaded guilty to one count of attempted murder, contrary to Common Law and sections 159G and 159J(1)(a) of the Crimes Ordinance, Chapter 200, before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Admitted Facts
At the material time, the defendant shared a bedroom with his 90-year-old father, Au Pong-keung, I will call him “APK”. APK was bedridden after a fall in 2022 and he occupied the lower bunk while the defendant occupied the upper bunk. APK’s daughter, Au Mei-lin, “AML”, and granddaughter, Wat Ka-man, “WKM”, also lived in the same flat. APK’s youngest son, Au Chi-long, “ACL”, did not live with them.
The defendant was the main carer of APK and he also worked as a part-time warehouse worker earning around $15,000 per month. On 3 August 2023, AML left the flat in the evening for work. Nothing unusual was noticed. WKM returned home at around 9 pm and again noticed nothing unusual.
The next morning when WKM woke up, she smelled smoke and she turned off the air-con in the living room. She saw that the bedroom door of her grandfather and uncle, that is the defendant, was closed. She left the flat. She then sent a message to her mother, AML, asking the mother to check the electrical appliances due to the smoky smell.
When AML got home, she noticed a strong smell of smoke outside the flat and in the living room. The bedroom door of the room shared by APK and the defendant was left ajar. She opened the door and found a wok containing burnt charcoal and ashes with no fire, a steam rack and a pair of tongs was placed on the floor. The light was off, the curtain was drawn but the air-con was on. The defendant walked out of the bedroom in a sluggish fashion and sat on the sofa in the living room as instructed by AML. APK did not respond to AML’s call.
AML took the wok to the kitchen and removed all the burnt charcoal into a plastic bag. She put these items in the balcony. She dumped the steam rack and tongs in a nearby rubbish collection point.
The defendant complained of dizziness. AML called her daughter who came back and found APK breathing with no response to voice. A report was made to the police at about 4.15 pm.
Police arrived and found the wok and the plastic bag in the balcony. In the bedroom of the defendant and his father, police found the burnt mark on the floor, an open bag containing charcoal, an igniter on the cupboard and two mobile phones on the defendant’s bed. Both AML and WKM had not seen the bag of charcoal before. The police was unable to retrieve the steam rack and the tongs.
Upon inquiry, the defendant voluntarily admitted he burnt the charcoal contained in the wok at about 2 am on 4 August because of his indebtedness. He had not prepared any suicide note and he bought the charcoal on 31 July 2023. The defendant said his father APK did not know that the defendant’s intention to kill himself, but that APK had said on previous occasions he did not want to have a long life. The defendant was afraid that no one would look after APK so he burnt the charcoal in the bedroom with APK inside at the material time.
The defendant was arrested and he remained silent under caution. Subsequently, he attended a video-recorded interview and made the following admissions. Among them, he said he was a warehouse worker earning a daily wage of $720. He paid the monthly rental of $11,000 and the utility bills of the flat. His sister AML did not contribute to pay the
rent. He was a declared bankrupt and had to repay $2,000 a month. He had accumulated debts in the total of about $110,000. He had been responsible for looking after his father APK since the father broke his leg. APK did not apply for disability allowance and had not sought help from social workers. APK sometimes had cognitive impairment.
And the defendant started to have suicidal idea in July 2023. After considering different ways to kill himself, he decided on charcoal burning and he purchased a bag of charcoal on 31 July 2023. He kept the charcoal in the bedroom and no one knew about his plan to commit suicide.
He decided to do it at around 2 am on 4 August 2023 as he failed to meet the deadline to pay the outstanding three months’ rent or repaying the loans. He proceeded to burn the charcoal in a wok inside the bedroom using the steam rack and tongs in the process. The windows of the bedroom were closed and the curtains were drawn. Initially, the air-conditioner was not turned on, but both he and APK felt hot, so he turned on the machine. In doing so, the ventilation inside the bedroom was not bad.
The defendant wanted his father to die with him as he considered that no one could look after APK and the defendant had not shared his problem, that is his indebtedness and the difficulties in taking care of his father to anyone. He had not consumed drugs or alcohol before burning the charcoal and he had not prepared a suicide note. So those were the contents of the video-recorded interview.
The defendant’s sister, AML, said that while her father APK became depressed after his fall and had indicated he did not prefer a long life, APK was not suicidal. Both AML and ACL knew about the defendant’s indebtedness and that he could not find a second job as he had to look after APK. The defendant had not complained to AML or ACL that he found it tiresome to take care of their father.
The Condition of APK
That is the father, of course. APK was unconscious when admitted to the Prince of Wales Hospital. Diagnosis at the A&E was decreased general condition, accidental poisoning by carbon monoxide secondary to charcoal burning. The blood carboxyhemoglobin was 2.1 per cent, which is above the normal range for non-smokers but far below the toxic or lethal range. CT scan, brain scan show no acute haemorrhage and chest X-ray was clear.
The medical report show that APK had carbon monoxide exposure but toxicity was unsure. There was no definite carbon monoxide poisoning feature. His condition stabilised and he was transferred to an elderly home on 24 August 2023. APK passed away on 2 March 2024 due to coronavirus disease and pneumonia.
The Defendant’s Condition
The defendant was fully conscious when admitted into hospital. His carboxyhemoglobin was 4.8 per cent and is below the toxic range. The diagnosis was suicidal attempt and self-inflicted poisoning by carbon monoxide. No follow-up treatment was required.
The Defendant’s Financial Situation
The defendant was declared bankrupt on 23 August 2022. As at 5 January 2024, he was in debt in the total sum of $251,070. Messages between the defendant and various persons show that he was pressed by the landlord for repayment of the outstanding rental. His brother ACL did not reply when he asked for help and he had indicated to a friend at 1.08 am and at 11.25 pm on 3 August that he would die soon. The browsing history found in the defendant’s mobile phone showed that from 1.03 to 2.57 am on 4 August, the defendant searched for poisoning by carbon monoxide and from 3.19 pm to 5.24 pm on 4 August, defendant searched for first-aid treatment to be given to those who suffered from carbon monoxide poisoning.
Background and Mitigation
According to the antecedents statement, the defendant was born in February 1972, so he is now 53 years of age. The defendant has a clear record. He received education up to Secondary 4 level. He was married but his Indonesian wife lives in Indonesia.
His counsel, Ms Nisha Mohamed, gave this Court more information about the defendant’s background. The defendant’s father died aged 91, whereas defendant’s mother died when she was 59. The defendant had an elder sister and younger brother. The defendant worked as an office boy at first and later joined his father to work at the latter’s company. When his father retired, his siblings who were also working for the father decided to continue with the business and the business continued for five more years.
The defendant had a good relationship with his father. He lived at home with his parents and continued to do so after his mother died. When his father remarried, he stayed with them for a few more years then he moved out to live on his own to start a new life. He also stopped working to focus on himself. He nevertheless continue to visit his father and took him out for yum cha(飲茶). The defendant married an Indonesian woman in 2019. He was unable to bring her to Hong Kong to live due to his lack of financial ability to provide for his wife. So the marriage has since broken down and his wife stopped all contacts with the defendant. They have no children.
The defendant’s father moved in to live at the village house rented by the defendant and his siblings after losing money in the stock market and he had to sell the matrimonial home. His father’s wife moved to live with relatives. His younger brother later moved out.
The defendant and his sister then paid the rent. He was working in a warehouse earning a daily wage of $720. However, because he had to look after his father, he could only did part-time job and he was not making enough money to make ends meet. The defendant had no savings and most of his income went towards paying the rent and daily expenses and for his father.
The defendant’s father suffered a fall and became bedridden. At first, the father was in a nursing home and the government had a fund to subsidise care and the defendant had to pay the balance. However, the subsidy came to an end after six months and his father also did not want to stay in the nursing home, so his father returned to stay with the defendant instead. The defendant was the sole carer taking care of his father’s daily needs.
The defendant could not make ends meet and was unable to pay his portion of the rent. He felt that he could not seek assistance from the family members as they were not financially stable themselves. When he did ask for help, they did not respond. His sister had to take care of her daughter. The defendant turned to borrow money from finance company but he could not repay the rent, and he was of course declared a bankrupt later.
The stress of repaying loans and the toll of looking after his father became unbearable and he considered suicide. His father had on numerous occasions indicate that he did not want to live a long life in his condition. The defendant felt his father did not have any quality of life and he could not bear to see his father in this state. The defendant felt no one would look after his father if he did not.
Growing up, the defendant had never shared his feelings with his siblings. The defendant felt that they were very busy with their lives and also they would not understand how he felt. In his mind, the easiest way and the only option was for him to commit suicide and kill his father at the same time. The defendant therefore committed the offence of attempted to kill his father. When he regained consciousness, he looked up treatment for the carbon monoxide poisoning to save his father.
Counsel submitted the defendant regretted his deed and now understands his approach was not a way to solve the problem. He indicated his intention to plead guilty at the earliest opportunity. The offence was completely out of character. Counsel submitted this is a tragic case.
The defendant wrote to this Court to say that he deeply regretted what he had done. While in custody he received support and encouragement from his family members and he will treasure his life and will not try to kill himself again.
The defendant’s elder sister and younger brother also wrote to this Court asking for leniency. There is no need to reiterate the contents of their letters. Basically they mentioned how the defendant took care of their father and committed the offence under extreme pressure.
I called for a psychologist report on the defendant before sentence. Now, the conclusion and recommendation by the clinical psychologist, Ms Daisy Yeung, succinctly reflects her observation and conclusions, and I repeat the same as follows:
“Mr Au is a man with marked social emotional difficulties and deficit in cognitive flexibility. Such psychological characteristics have led to his great difficulty in problem solving and stress management. His social support network had all along been very limited and he does not seek help proactively. He is unable to generate feasible solutions on his own, which made him felt helpless and trapped when he encounters problems.
The index offence was a product of his maladaptive problem solving approach and lack of stress management skill in the face of financial and caregiving stress. He might be suffering from depression at the time of the offence, with symptoms such as strong sense of helplessness and suicidality. Considering that he is free from anti-social and violent tendency, risk of violence reoffending is low. He is now emotionally stable without any suicidal idea.
Considering his clinical profile, psychological intervention focusing on the enhancement of stress management and problem solving is recommended. He would also benefit from education on financial literacy. As Mr Au is weak in abstract thinking, teaching him the above skills through guiding him to applying the skill to well-defined practical context might facilitate his learning.”
Further Mitigation
With reference to the psychologist report, Ms Mohamed further submitted that the defendant was clearly a person who has the greatest difficulty in elaborating his feeling and thoughts. The defendant bore the financial burden of paying the rental as he felt it was his responsibility. Even when faced with financial difficulties, he did not seek help. He tried to commit suicide and he has attempted to kill his father not out of hatred but out of love. The defendant regrets having committed the offence. He committed the offence as he failed to see alternatives. Ms Mohamed stressed that there is no risk of reoffending. She asked this Court to adopt a lower starting point in light of the factual background of this case.
Sentencing Approach
The prosecution submitted the case of HKSAR v Cheung Chu Kong for my consideration. That case involved the attempted murder of three children by the father. The father pleaded guilty to three counts of attempted murder. The Court of Appeal did not interfere with the 8-year sentence imposed. The Court of Appeal said the trial judge identified two important principles underlying the sentencing of cases of this nature.
The first is to mark society’s abhorrence of such crimes, the second is to deter others who might be minded to do the same thing. The repugnance which the public would feel for offences of this nature and the need to deter others from doing the same thing. In circumstances where the perpetrators would not expect themselves to have to face any consequences if they succeed must inevitably trump the forgiveness of the victims and the consequence loss for some time of their father, the defendant in that case.
Defence counsel accepted the principles stated but urged this Court to bear in mind that the defendant here face one count of attempted murder, not three.
Consideration or Reason for Sentence
For cases of this nature, there are indeed two important principles underlying the sentencing process. The first is to mark society’s abhorrence of such crimes and the second is to deter others who might be minded to do the same thing. I take into account all that is known about the defendant, in particular his psychological profile and all that could be said on his behalf.
Due to his own personality, the defendant was unable to handle the stress caused by his financial situation and the caring of his aged bedridden father. He could not see any way out and resorted to suicide. He committed the present offence thinking that no one would or could take care of his father after he killed himself, and also believing that his father did not want to have a long life in his condition. This is indeed a tragic case.
While there is a certain degree of planning in that the defendant bought the charcoal and hid it from family members, when his suicide attempt failed, the defendant did try to look for ways to assist his father as shown from the internet search record.
Balancing the two sentencing principles I have mentioned against the tragic circumstances of the present case, I am of the view that a starting point of 6 years is appropriate.
The defendant pleaded guilty at the earliest available opportunity and is therefore entitled to a full one-third discount. With the discount, for the offence of attempted murder, the defendant is sentenced to 4 years’ imprisonment.