THE QUEEN v. CHOW WING KIN

Headnote

Application for leave to appeal against sentence of five years for manslaughter after plea of guilty. Court was satisfied that five years was a proper sentence in circumstances where it appeared that some provocation had been offered by a wife to her husband.

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. This applicant CHOW Wing-kin was originally charged with murder. The Crown was prepared to accept a plea to manslaughter on the basis of provocation. O'Connor J., the trial judge, approved this course and the applicant then pleaded guilty to manslaughter.

3. The agreed facts were that the applicant, who was a seaman, had married an Indonesian Chinese wife and brought her to live in Hong Kong in 1987. It appears that she did not get on well with her in-laws and, in consequence of that, the applicant and the deceased went to live on the third floor of 230, Tung Chau Street, Sham Shui Po. It seems that there were arguments between the applicant and the deceased over a very long period, and that this generally related to finances and accommodation problems. At about 4 a.m. on 17th October 1989, the applicant telephoned his mother telling her that his wife was dead and asking her to look after the two daughters of the marriage. On hearing that the mother and the accused's brothers immediately went to 230 Tung Chau Street and the body of the accused's wife was found lying on the bed beside which were a swaddling cloth and a knife. The accused told his family that he had strangled his wife to death after she had attacked him with a knife and insulted him. After some discussion, the police were called and when they arrived at 5.23 a.m. the applicant admitted homicide after provocation.

4. A pathologist report revealed that the deceased died at about 4 a.m. and that the cause of the death was strangulation.

5. The accused upon being examined was found to have a cut and linear abrasions on the left side of his abdomen. The report reveals that there was a half inch superficial cut and three small abrasions.

6. On that afternoon, the accused made a statement to the police in which he detailed what had occurred on the previous night. He said he returned home at about 10 p.m., that he and his wife had quarrelled about finances and that she then went to bed. He said that he went to bed after watching television and that at about 3.30 a.m., (what follows is his description as detailed in the agreed facts and we lay stress upon it) he suddenly felt a pain on his stomach and on opening his eyes saw her stabbing him with a vegetable knife. He grabbed her hand and asked her what she was doing. She told him that it would be better if he died so that she could return to Indonesia. She then abused him at which he took a swaddling cloth and pulled it tightly around her neck. She soon stopped moving and it was shortly after that that he phoned his mother.

7. O'Connor J. when sentencing said:

"I think that the statements - the committal statements taken from his brothers and his mother revealed that he was a quiet hard-working person. One might expect that they would say that in any event, of course. It is not unlikely that they would, but they also go on and set out that there had been quarrels and some of them give descriptions of what the quarrels were about."

He went on to say that the statements were taken from the family members about three hours after the arrival of the police and commented:

"Of course, the brothers had not been at the scene and they might have put their heads together and agreed to say this-sort of thing, but I would think looking at the picture overall, that's unlikely in the circumstances of this sudden unexpected day and it rather looks to me as if some support for the history of quarrels and what they were about can be deduced from these statements that were made by different family members so soon after the killing."

He goes on to say that the deceased, being Indonesian Chinese, found herself living in circumstances that made her position difficult. Nevertheless the conditions generally in which she was living and the fact that there were quarrels with mother-in-law and her being dissatisfied with her living conditions are circumstances which hundreds of thousands of people in Hong Kong put up with, bear and overcome.

8. He said finally before sentencing:

"It is unnecessary for me to add anything to what Mr. Franklin has said except to say that this is a sad case of a background of family disputes. The wife apparently dissatisfied by having come to Hong Kong as a married woman and not finding the circumstances in which she was expected to live quite what she had hoped for and this no doubt being aggravated to some extent by her not speaking much Cantonese, as a result, quarrels arose and apparently she attacked her husband with a knife. It may well be that she did not intend to do him any serious harm. There are indications that that may be so that it was really a sort of cry of despair. However that is, one thing led to another and he strangled her. So it is a sad case and further there are two daughters aged 2 1/2 and 1. I think the gravity of the matter is sufficiently emphasized by a sentence of 5 years' imprisonment and that's what I impose."

The appeal has now been brought against that sentence on the ground that it was excessive. It is suggested by Mr. Sceats, who appears for the applicant, that the trial judge failed to give effect to the agreed fact that the killing was provoked. He refers us to the remark of Eveleigh L.J. in Donachie (1982) 4 Cr. App. R (S) 378 where he said that "there must  be a proper assessment of the degree of provocation." He suggests that the trial judge failed to make such an assessment.

9. Ground 2 which is the first particularized ground of appeal sets out two matters which, it is suggested, indicate that the trial judge failed to make a proper assessment of the provocation. It is suggested first that this failure is demonstrated by his use of the words....  apparently she attacked her husband with a knife. It may well be that she did not intend to do him any serious harm. There are indications that that may be so, that it was really a sort of cry of despair."

10. We are satisfied that the trial  judge meant no more when he used those words than that it is a matter of inference from the agreed facts that she inflicted the wound, no one saw her do it, and that it is a matter of further inference, from the nature of the wound, that serious harm was not intended. We are satisfied that those remarks were perfectly proper in the circumstances.

11. It is secondly suggested that the roles of the applicant and the deceased in the history of domestic discord between had not been properly assessed. It is suggested that the trial judge was wrong to take the cautious view he did of the favourable comments of family members. We are unable to agree. We are satisfied that he was doing no more than making a common sense assessment of the matters before him. It was his duty to do so. He was not required to accept, uncritically, statements by loyal family members in circumstances such as this.

12. Ground 3 submits that the trial judge gave insufficient weight to the unchallenged evidence that the deceased had stabbed the applicant while he was asleep at 3.30 a.m., that the applicant had notified his family about 4 a.m. and that he had, almost immediately after their arrival on the scene informed the police of what had occurred. There is nothing which indicates to us that the trial judge failed to give sufficient weight to any of these matters. He clearly had them, along with all of the other circumstances, in his mind When he determined sentence.

13. Ground 4 urges that the reported cases, which are set out in the perfected grounds of appeal, indicate that sentences in manslaughter cases where the accused and the victim are members of the same family are lower than where the parties are unrelated. We are unable to accede to this suggestion. Each must depend upon its own facts. Family relationship as such has no special significance but may, in particular cases, be relevant to explain now the killing occurred and the extent of the aggravating or mitigating factors associated therewith. We find no support in the cases cited for the suggestion that five years was not a proper sentence in the circumstances that obtained here. Nothing has been urged before us today which indicates that this was an excessive sentence and the application for leave to appeal against it must, therefore, be refused.